text:
    BIRD v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Killing Stock — Failure to Fenoe — Yards.
    A point on a railroad where the tracks are twelve in number, tracks on one side leading to factories and brick yards, and those on the other leading to ice houses at which cars in transit are iced, such tracks being used also to store cars and for the inspection of cars while being iced, is a yard, and the railroad company is not liable for’ killing horses upon the tracks at that point because the tracks were not fenced.
    Error to Wayne; Frazer, J.
    Submitted June 12, 1906.
    (Docket No. 78.)
    Decided September 20, 1906.
    Case by William H. Bird against the Michigan Central Railroad Company for the negligent killing of certain stock. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      O. E. Butterfield (Henry Russel, of counsel), for appellant.

      Edward S. Grece, for appellee.
   Hooker, J.

The defendant appeals from a judgment on a charge of negligently omitting to keep its fences in repair. It defended upon the claim that plaintiff’s colts were killed by reason of their escape from the pasture to the highway and from there they strayed to and entered defendant’s yard at Detroit, where its line fence was down in places.

The circuit judge left to the jury the question whether this was a railroad yard, within the meaning of the law, and defendant has assigned error thereon, and upon his refusal to direct a verdict in its favor. The testimony shows that running out from its station in Detroit defendant has a large number of tracks, which, at the point where the colts entered upon the right of way, are reduced to 12 in number. From the northernmost track several switches branch to different brickyards, mills, factories, etc. Immediately opposite, on the south side of the track, was one of two icing stations where refrigerator cars in transit were iced. Cars were stored and cars in transit were inspected on these tracks. There was no dispute about these, facts. . There was testimony from which it is inferable that trains are occasionally made up there, but some witnesses testify that they never saw switching done there. In the nature of things the switching necessary to icing, and for the purposes of the various factory switches, must have been done over this ground, and to draw out and in cars stored, and the plaintiff himself testified that he had seen freight cars and engines switching back and forth there right along, and that the place was a “part of whattheycall the ‘ Junction Yards.’ ” Counsel rests his claim that these premises are not yards largely on the fact that the public is not allowed to load and unload there, and the contention that the proof shows that switching is not done there.

There is sufficient in the undisputed proof to show, that these premises are yards within the meaning of the statute, the case coming easily within the rule of Katzinski v. Railway Co., 141 Mich. 75. The court should have directed a verdict for the defendant.

The judgment is reversed, and a judgment will be entered here for defendant, with costs of .both courts.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    SHOULDICE v. McLEOD’S ESTATE.
    Executors and Administrators — Defending Against Claims— Expenses.
    Under sections 9403 and 9438, 3 Comp. Laws, an executor is-entitled to defend against a claim presented against his testator, provided he acts in good faith upon the advice of counsel, and may be reimbursed his expenses, though the estate is insufficient to pay the expenses and the claim as finally allowed.
    Error to Marquette; Stone, J.
    Submitted June 12, 1906.
    (Docket No. 80.)
    Decided September 20, 1906.
    Margaret J. McLeod and Hugh N. McDonald presented their final account as executors of the last will and testament of Norman McLeod, deceased. The account was allowed in the probate court, and Henry Shouldice, a judgment creditor, appealed to the circuit court. There was judgment affirming the order of the probate court, and claimant brings error.
    Affirmed.

      Ball & Ball, for appellant.

      B. O. Pearl (C. D. Gould, of counsel), for appellees.
   Montgomery, J.

A writ of error has been sued out to review the action of the circuit judge in allowing the final account of the executors on appeal from probate court. Decedent was, at the time of his death, a resident of Minnesota, and his estate was mainly administered in Hennepin county, in that State. The estate was closed in that court in December, 1898, and upon the distribution there was assigned to Christine I. McDonald, in addition to personal and real property in Minnesota, lands in Michigan.

In May, 1899, an exemplified copy of decedent’s will and of its probate in Minnesota was filed in the probate court of Marquette county by the executors. ' The will was admitted to probate, and letters testamentary were issued to Margaret J. McLeod and Hugh N. McDonald. On February 2, 1900, Henry Shouldice filed his claim against the estate for $2,500 and interest from October 9, 1882. The claim was disallowed by commissioners, and an appeal was taken to the circuit court. The case was twice tried at the circuit, and twice reviewed in this court, a judgment of $6,029.16 being finally affirmed. (130 Mich. 444, 135 Mich. 337.)

The executors filed an account which included charges of attorneys and for the executors’ time in contesting against this claim. The circuit judge found these charges reasonable in amount, that the defense of the claim was undertaken on the advice of attorneys and was made in good faith, and allowed the executors’ account. The estate in Michigan was insufficient to pay the claim of Shouldice, in fact is not likely to pay the amount of the executors’ account as allowed.

It is contended that in these circumstances the executors should be held to have undertaken the defense at their peril, and should be required to look to the legatees for their compensation. We cannot discover that the rule that the executor is entitled to be repaid the reasonable expenses of administration (3 Comp. Laws, §§ 9402, 9438) is subject to any such qualification. On the other hand, we understand the rule to be that an executor is entitled to defend against a claim presented against his testator, provided he acts in good faith, upon the advice of counsel, and may be reimbursed his expenditures. Jackson v. Leech's Estate, 113 Mich. 391; Ammon’s Appeal, 31 Pa. 311; 2 Woerner on American Law of Administration, § 515. The cases cited by appellant are not opposed to the general rule, nor do they ingraft an exception on the rule which excludes compensation to an executor of an insolvent estate. In Brinton's Estate, 10 Pa. 408, the effort was to charge an attorney fee in an unwarranted proceeding by an executor to obtain a review of his own account; it was termed “a mere experiment for the benefit of the executor.” In Royer’s Appeal, 13 Pa. 569, the attorney fees which it was sought to recover were incurred in the attempt to probate a suppositious will. In neither case was the expense incurred in a good-faith defense of an estate vested in the executor.

The judgment is affirmed.

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


text:
    ACKERMAN v. PFENT.
    1. Judgment — Satisfaction—Execution—Levy.
    A levy of an execution upon real estate of the debtor is not a satisfaction of the judgment.
    3. Same — Collateral Attack — Probate Order.
    A determination of the probate court that a judgment creditor of a deceased person is entitled to letters of administration is not open to collateral attack by his widow to restrain the proceedings, the petition for administration being regular in form, and there being within the jurisdiction of the court an estate to be administered.
    Appeal from Wayne; Hosmer, J.
    Submitted June 12, 1906.
    (Docket No. 84.)
    Decided September 20, 1906.
    Bill by Mary Ackerman against Frank Pfent to enjoin defendant from proceeding as administrator of the estate of Jacob Ackerman, deceased. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Defendant obtained a judgment against Jacob Ackerman in February, 1903, and on the 17th of November, 1903, filed a transcript in the circuit court, and caused an execution to be issued and a levy made upon 20 acres of land occupied by Ackerman and his family as a homestead. No sale was had under the levy. Jacob Ackerman died May 27, 1904, intestate. No steps were taken to probate the estate of Jacob Ackerman by his widow or next of kin, and on March 13, 1905, defendant petitioned the probate court for administration as principal creditor of the estate. Appraisers and commissioners on claims were appointed. Two claims were allowed: one in favor of defendant, being the amount of his judgment and costs, viz., $115.58, and the other one amounting to $79.06 in favor of Forth & Masch, undertakers. The complainant is the widow of Jacob Ackerman and grantee of the interests of the heirs at law. On October 24, 1905, complainant paid to the sheriff $113.78, and obtained a release and satisfaction of the judgment and execution in his hands. In October, 1905, she also paid the claim of Forth & Masch. The defendant expended certain sums in advertising the notice of hearing on the petition for administration and the hearing on claims, for appraising the property, etc. He also claimed compensation for his services as administrator and for services of his attorney. Complainant offered to pay $25, but this was refused. This bill is filed asking that the probate proceedings be declared void, and that defendant be perpetually enjoined from interfering with the estate. The circuit court dismissed the bill, and complainant appeals.

      James J. McCann, for complainant.

      Walter Barlow, for defendant.
   Montgomery, J.

(after stating the facts). The contention of the complainant is that the levy was prima facie a satisfaction of the defendant’s claim, or at least a suspension of his right to proceed to collect his judgment by other proceedings, and that it follows that defendant was not a creditor entitled to administration of Jacob-Ackerman’s estate. It has long been settled in this State that a levy of an execution upon real estate of the debtor is not prima facie satisfaction of a judgment. Spafford v. Beach, 2 Doug. (Mich.) 150; Miller v. Hanley, 94 Mich. 253.

The petition for administration was regular in form. There was within the jurisdiction of the probate court an estate to be administered. The determination of that court that defendant was a party entitled to letters of administration is not therefore open to collateral attack. Wilkinson v. Conaty, 65 Mich. 614; Johnson v. Johnson's Estate, 66 Mich. 525; In re Sprague's Estate, 125 Mich. 357.

The decree is affirmed, with costs.

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


author: Ostrander, J.

text:
    HARRISON GRANITE CO. v. PENNSYLVANIA RAILROAD CO.

    1. Garnishment — Service—-Sufficiency—Jurisdiction —Record on Appeal.
    Where service is obtained by garnishment and attachment, so that there is no jurisdiction to render judgment against the principal defendant unless there is a liability of the garnishee to him, and the record on error contains neither the writs, the disclosure, nor the answer of the garnishee, a ruling sustaining jurisdiction cannot be reviewed.
    2. Appeal and Error — Rulings Sustaining Jurisdiction — Review — Record.
    Even in proceedings in which jurisdiction of the trial court must be made affirmatively to appear, this court will not consider exceptions to a ruling sustaining jurisdiction without the evidence upon which the ruling was made.
    3. Evidence — Conversation by Telephone — Admissibility.
    Where, there is no doubt of the identity of persons communicated with by telephone the conversation is admissible.
    4. Same — Opinion — Financial Responsibility — Statement of Fact.
    Where, in answer to the question whether a certain association has any financial responsibility or property the witness answers “No,” the answer imports knowledge, and it need not appear further how he obtained that knowledge.
    5. Same — Materiality—Responsibility of Third Person.
    Where a railroad company, having possession as carrier of a monument consigned by the manufacturer to himself, rendered special service regarding its transportation against the manufacturer’s protest, and took therefor a large portion of. the fund which had been raised by a voluntary association for its purchase, and the manufacturer brought suit against the carrier to recover the money so paid, the question whether the association had any financial responsibility was material.
    6. Appeal and Error — Review—Exceptions—Necessity.
    Rulings as to the admissibility of evidence to which no exceptions.are found in the record cannot be reviewed.
    7. Carriers — Special Service — Interference Between Buyer and Seller of Shipment — Declaration—’Variance.
    Evidence from which it may be found that defendant railroad company, with full knowledge of the facts that a monument in its possession as carrier was manufactured pursuant to a contract with a voluntary association which had in its possession sufficient funds to pay the contract price, refused to render its regular service in carrying the monument to its destination, and by agreement with the purchaser rendered special service in that respect, for which it received from the . purchaser several hundred dollars of the fund which had been raised to pay for the monument, supports a declaration alleging that with full knowledge of the facts defendant took possession of and forwarded the monument on the contract made with strangers and obtained possession of the fund which was thereby lost to plaintiff.
    8. Same — Liability of Carrier.
    Such facts support recovery against the carrier on the theory that there was a breach of duty on the carrier’s part and a wrongful interference with the rights of the manufacturer to his damage and to defendant’s profit, notwithstanding the carrier transported the property and delivered it in good order as it was bound to do by its contract.
    9. Trial — Direction op Verdict — Propriety.
    Though the testimony is undisputed, it is improper to direct a verdict where it cannot be said that but one conclusion can be reached upon the facts.
    Error to Lenawee; Chester, J.
    Submitted June 13, 1906.
    (Docket No 11.)
    Decided September 20, 1906.
    Case by the Harrison Granite Company against the Pennsylvania Railroad Company for wrongful interference with plaintiff’s contract rights. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      Morgan & Priddy and D. B. Morgan, for appellant.

      Smith, Baldwin & Alexander, for appellee.
    The testimony produced for the plaintiff tended to prove that it is a Michigan corporation with quarries at or near Barre, in Vermont, its principal office at Adrian, Mich., and its executive offices in New York City. Under date May 19, 1902, it contracted with the Philadelphia Chapter, Daughters of the Confederacy, to furnish and set complete in Hollywood Cemetery, Richmond, Va., a soldiers’ monument, to be erected about October 1, 1902, for which the said chapter agreed to pay to the order of plaintiff $1,500 upon completion of the work. For various reasons, the monument, not completed, was, on October 21, 1902, still at Barre. Arrangements were made by the said chapter for a public dedication of the monument to take place in the afternoon of October 25, 1902, of which arrangements plaintiff was notified and an understanding reached that dedication could be and would be made, with some details of the monument unfinished. Instructions to plaintiff to ship the monument were received October 20, 1902. On October .21, 1902, the monument was delivered, at Barre, to the Central Vermont Railroad for transportation to Richmond, via the Central Vermont, New York, New Haven & Hartford, Pennsylvania, and Richmond, Fredericksburg & Potomac Railroads; the last-named road being operated by the Pennsylvania. The freight charges were $72. Plaintiff was both consignor and consignee. The car arrived at New York early on the morning of October 23d, and was there met by a representative of plaintiff, who under instructions from plaintiff went with the car to Jersey City, and there made application to the proper officers of the Pennsylvania Company to have the car go out that d^y with through freight train B. P. 1, by which, according to usual schedule, the car would be delivered at Richmond about noon of Octpber 24th, affording proper time to unload and set the monument. On October 21, 1902, an arrangement had been made between the Pennsylvania Company and some person or persons representing the said chapter to give this car special service from Jersey City to Richmond, for which service the sum of $700 was to be paid. The regular service for the car, applied for, was refused, the defendant stating the reason for such refusal to be that the said special arrangement had been made. The car went forward by special service, the monument was received at Richmond by representatives of plaintiff who awaited it, and was set, dedicated, finally completed, and plaintiff was paid the sum of $800, with notification that:
    “ Inasmuch as the chapter was compelled to expend the sum of $700.00 in order to get the monument to Richmond at the proper time, which expenditure was rendered necessary by your failure to keep your contract with them as to the time when the said monument should be delivered, this amount of $700.00 has been charged against your bill.”
    The law firm of Weeks, Battle & Marshall, of New York City, represented the said chapter. Under date of October 21, 1902, a letter was written by this firm to plaintiff, reciting an interview of the previous day between the president of plaintiff company, a member of the said firm, and ladies whose names are given, and notifying plaintiff that it was expected that the monument would be in position on or before October 25th, with the further statement:
    “We are informed that the Pennsylvania Railroad will rush it through after delivery to them, and the Central Railroad of Vermont have informed us today by long distance telephone from St. Albans, Vt., that they saw no reason why a special could not be arranged to handle the monument through to New York.”
    This firm of attorneys remitted to plaintiff the money paid to it with the notification already referred to. During the negotiations which were had on October 23d with officials of the defendant company, plaintiff was informed by the assistant general superintendent of transportation that the instructions to forward the car by special service had come from a Mr. Blythe, who was then in his office. The president of plaintiff asked that the matter be again referred to Mr. Blythe to see if the order could not be revoked, and was told that he had talked with Mr. Blythe, that the special service would be given, and referred plaintiff to the said firm of attorneys. He was told to say to Mr Blythe that plaintiff would not consent to have payment for said special service made out of the fund for the monument. Plaintiff at once took up the matter with the said law firm, informed them of his conversation with the railroad officials, and asked them to cancel the arrangement with the railroad company. The reply was that the arrangement would go forward unless the plaintiff would deposit a certified check for $2,500 as indemnity. This plaintiff declined to do.
    In the court below, plaintiff had verdict, by direction of the court, and judgment, for the sum of $700 and interest thereon. The defendant pleaded the general issue with notice that defendant would show that there had

      been no service of process, direct or substituted, made upon defendant within the period of time provided and limited by the statute; that the substituted service made upon defendant after the expiration of the period of time provided by the statute was illegal and void. The printed record, by recital, discloses that the suit was begun by garnishment and attachment. The declaration recites that defendant was duly summoned by writ of attachment.

      Morgan & Priddy, for appellant.

      Smith, Baldwin & Alexander, for appellee.

       Rehearing denied November 7, 1906.

   Ostrander, J.

(after stating the facts). The points argued in the brief for appellant will be considered in the order in which they are presented. The first is that, where service is obtained by garnishment or garnishment and attachment, if the garnishee defendant is not liable to the principal defendant, the court has no jurisdiction to render judgment against the principal defendant. It is predicated upon the recital, in the brief, that the garnishee defendant in its disclosure and in answer to interrogatories denied all liability to the principal defendant. We find neither the writs, the disclosure, nor the answers of the garnishee defendant incorporated in the record. Even in proceedings in which jurisdiction of the trial court must be made affirmatively to appear, this court will not consider exceptions to a ruling sustaining jurisdiction without the evidence upon which the ruling was made.

Objection was made to the reception of certain testimony given by witnesses for plaintiff. The grounds of objection are:

(a) That conversations, related, were by telephone, and the identity of the person talked with was not established; (b) that it was improperly assumed that certain persons were officials of the Pennsylvania Railroad Company; (c) that statements made to and by the representative of the firm of attorneys referred to were immaterial; (d) that incompetent and immaterial testimony of the financial responsibility of the said chapter was received.

The testimony leaves no doubt concerning the identity of the persons communicating by telephone and the official character of those who were assuming to speak for the defendant. The connection between the firm of attorneys and the said chapter and, as to the particular issue, the defendant, is also made out. None of the statements made by the attorneys is used to bind the defendant. Their authority to speak for the said chapter with respect to the particular matter was recognized by both the chapter and the railroad officials. The fact that the arrangement for the special service was made and the money consideration for it paid is not disputed.

It was essential to a recovery by plaintiff to show that it had sustained damage by reason of the alleged wrongful intermeddling of defendant. The president of plaintiff company was asked:

Did this branch of the Daughters of the Confederacy have any financial responsibility ?
A. No, sir.
Mr. Weaver: That is objected to as immaterial.
“ Q. Or property ?
“ Mr. Weaver : Incompetent.
“The Court: He may answer.
Mr. Weaver: Give us an exception.
“A. No.”

The argument made is that it does not appear that the witness had any knowledge of the facts to which he testified, or had made any inquiry to satisfy himself upon that point, and if he had knowledge the fact proven was immaterial. The answers of the witness import knowledge. He was not asked for an opinion. The fact was, upon plaintiff’s theory, material. As to the admission in evidence of certain letters, two, dated respectively October 23, 1902, and January 3, 1903, written by plaintiff, and one, dated January 15, 1903, written by defendant, no exceptions are found in the record.

The declaration consists of four counts, and it is insisted that the evidence makes no case within the declaration. No objection was taken to the joinder of counts or of causes of action. The first count is trover, for conversion. The second count avers that defendant without authority possessed itself of the monument and delivered it to said chapter, which was irresponsible, and received from said chapter money of the plaintiff which it refuses to pay over. The third count avers the knowledge of defendant that said chapter had collected and had in its possession $1,500 to be paid to plaintiff as the price of a monument to be delivered at Richmond, and that for the purpose of making such delivery and getting a part of said money defendant wrongfully possessed itself of the monument and delivered it to said chapter without the payment to plaintiff of said sum of $1,500. In a fourth count, added to the declaration at the hearing, the alleged facts are set •out, with scienter, in detail, with the averment that defendant, to obtain for itself $700 which otherwise would have been paid to plaintiff, knowing that said sum would thereby be wholly lost to plaintiff, wrongfully took possession of and forwarded the monument upon its contract made with strangers, thus losing such sum to plaintiff. The jury might have found, from the evidence, that the •defendant, with knowledge of all the facts, refused its regular service to the plaintiff, thus preventing plaintiff from performing, as it would otherwise have done; its contract with said chapter; that the special service, rendered over the protest of plaintiff, was unnecessary, and resulted, and was bound to result, in diverting to the defendant $700 which otherwise would have been paid to plaintiff and which has, in consequence, been wholly lost to plaintiff. These facts support the declaration. Found to have existed, they warrant a recovery by plaintiff, because they establish a breach of the duty of defendant and a wrongful interference with the rights of plaintiff to its damage and to defendant’s profit. The fact that defendant transported the property of plaintiff, as it was bound to do, from Jersey City to Eichmond, and there delivered . it to the consignee, in good order, does not afford a compíete answer to plaintiff’s claim, because to defendant’s knowledge, upon the above assumption of facts, regular transportation, which was refused, would have cost plaintiff a very few dollars, whereas the service actually rendered was bound to cost, and defendant knew would cost, plaintiff |700, which sum the defendant, instead of plaintiff, would receive. The supposed facts are not found, but, upon an idea of the import of the evidence not in harmony with that here advanced, the court directed a verdict.

For defendant it is contended that a verdict should have been directed in its favor. We are satisfied that a directed verdict for defendant would have been wrong, and that defendant’s requests to charge were properly refused. We cannot, however, say that but one conclusion may be or should be reached upon the facts. As presented, it is a case in which inference and deduction perform no inconsiderable offices. We think that there were questions for the jury, and that the case should have gone to the jury with instructions.

The judgment is reversed, and a new trial ordered.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


text:
    SPURR v. TRAVIS.
    1. Constitutional Law — Equal Protection of Law — Sales of Merchandise in Bulk.
    Act No. 223, Pub. Acts 1905, invalidating sales of stocks of goods in bulk, applies to residents and nonresidents alike, and is therefore not repugnant to the Fourteenth Amendment of the Constitution of the United States in that respect.
    2. Same — Class Legislation — Protection of Creditors.
    The apparent purpose of the act to protect creditors furnishes a sufficient reason for not including within its terms sales by-merchants who owe no debts.
    3. Same — Restriction to Merchants.
    The act is not invalidated by reason of being restricted in its operation to merchants.
    4. Same — Due Process of Law — Invasion of Property Rights.
    Such act is a valid exercise of the police power and is not an unconstitutional invasion of liberty or property rights within section 32, article 6, of the Constitution.

    Error to Lapeer; Smith, J.
    Submitted June 15, 1906.
    (Docket No. 64.)
    Decided September 20, 1906.
    Garnishment proceedings by Howard W. Spurr and others against Henry Swift and Frank G. Rice, as garnishees of Dayton A. Travis and May Travis. There was judgment for plaintiffs, and the garnishees bring error.
    Affirmed.

      A. H. Perkins, for appellants.

      W. E. Brown, for appellees.

       As to statutory requirements on sale of stock of goods in bulk, see note to Everett Produce Co. v. Smith (Wash.), 2 L. R. A. (N. S.)

   Montgomery, J.

This case involves the question of the validity of the “ sales in bulk act,” so called, being Act No. 2»S of the Public Acts of 1905. The circuit judge held the act valid, and defendants have brought the case before us for review on writ of error.

The material portion of the act reads as follows:

“ The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the seller, transferor or assignor, shall be void as against the creditors of the seller, transferor, assignor, unless the seller, transferor, assignor and purchaser, transferee and assignee, shall, at least five days before the sale, make a full detailed inventory, showing the quantity and, so far as possible with exercise of reasonable diligence, the cost price to the seller, transferor, and assignor of each article to be included in the sale; and unless the purchaser, transferee and assignee demands and receives from the seller, transferor and assignor a written list of names and addresses of the creditors of the seller, transferor and assignor, with the amount of indebtedness due or owing to each, and certified by the seller, transferor and assignor, under oath, to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless the purchaser, transferee and assignee shall, at least five days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.”

It is the contention of the appellant that this statute violates section 32, article 6, of the Constitution of the State, which provides that no person shall be deprived of life, liberty, or property without due process of law. It is also contended that the act violates section 1 of article 14 of the Amendments to the Federal Constitution, by denying to the vendor and vendee respectively the equal protection of the laws of the State, and by abridging their respective privileges and immunities as citizens of the United States. There is no invasion of the Fourteenth Amendment by discriminating between citizens of different States. The terms of 'the act are equally applicable to residents and nonresidents, so that this is not class legislation in this sense. People v. Gay, 107 Mich. 422 (30 L. R. A. 464).

It is contended that the act is class legislation for two reasons: First, because it limits its operation to merchants and does not include farmers, manufacturers, etc.; and, second, that it does not relate to merchants who owe no debts.

A sufficient reason for not including within its provisions merchants who owe no debts is found in the apparent purpose of the act, which is to protect creditors. If there be no creditor, there is no one requiring protection. It would be a novel application of the doctrine which forbids class legislation to hold that creditors of such merchants as have creditors may not be protected by regulation of transfers by such merchants because the provisions cannot properly be made applicable to others having no creditors.

Nor is it class legislation within the meaning of this term as used to express an unconstitutional exercise of power to limit the application of the act to a particular calling or relation. People v. Bellet, 99 Mich. 151 (22 L. R. A. 696).

In Cooley on Constitutional Limitations (7th Ed.), p. 554, it is said:

“Laws public in their objects may, unless express constitutional provision forbids, be either general or local in their application. They may embrace many subjects or one, and they may extend to all citizens, or be confined to particular classes, as minors, or married women, bankers or traders, and the like. * * * If the laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply; and they are then public in character and of their propriety and policy the legislature must judge.”

See, also, McDaniels v. Shoe Co., 30 Wash. 549 (60 L. R. A. 947).

It is easy to discover reasons for apprehending and guarding against fraudulent disposition of stocks of merchandise by debtor owners which would not relate to other species of property. As was said in the case cited above, “it is well known that the business of retailing goods, wares, and merchandise is conducted largely upon credit, and furnishes an opportunity for the commission of frauds upon creditors not usual in other classes of business.” The act is not class legislation. See, also, Ripley v. Evans, 87 Mich. 217, 231; People's Building & Loan Ass'n v. Billing, 104 Mich. 186.

Does the act conflict with section 32 of article 6 of the Constitution? It may be conceded that an act which should prohibit the sale of property of any character, either generally or for a stated time, without any adequate purpose or object, would constitute such an interference with the property and liberty of the individual as is inhibited by this section. The courts have, however, never treated this or similar provisions as prohibitive of legislation in the exercise of the police power which regulates the manner of the use or disposition of property, even though a temporary inconvenience may be suffered by the owner. An illustration of this is afforded by the laws providing liens in favor of mechanics. Many other illustrations might be given, but it is, we think, safe to state, as a general rule, that where, in the exercise of the police power, a beneficial result is sought, and legislation is enacted in protection of rights which would, but for the enactment, be subject to defeat, such legislation does not infringe the liberty of the citizen in a legal sense or deprive him of property because it involves regulations which may postpone for a reasonable time the exercise of hiá right to sell. It is to be noted that in case of an owner who owes no debts no delay is required. A sale may be had at once. The owner of merchandise who is also a debtor may at once qualify himself to make a sale by dis-i charging his indebtedness, but, if he does not, this act postpones the sale until notice is given to the creditors. In our belief this is within the police power, and does not constitute an unconstitutional invasion of liberty or property rights. Laws similar to the one under consideration have been enacted in 20 States of the Union. This is significant of a general belief that transfers of the character sought to be regulated afford peculiar opportunities for the perpetration of fraud upon creditors. While this general course of legislation in sister States is in no sense controlling, it may afford evidence of a concensus of opinion that some legislation is necessary to meet a manifest, if not a growing, evil.

What is more significant is that the courts of other States have dealt with the question here presented, and that the decided weight of authority sustains the validity of such legislation. The courts of Massachusetts, Connecticut, Tennessee, and Washington have upheld this law. McDaniels v. Shoe Co., supra; Neas v. Borches, 109 Tenn. 398; Walp v. Mooar, 76 Conn. 515; Squire v. Tellier, 185 Mass. 18. The constitutionality of similar acts was assumed by the supreme court of Wisconsin in Fisher v. Herrmann, 118 Wis. 424, and in Maryland in Hart v. Roney, 93 Md. 432. The court of appeals of New York, by a bare majority, held such a law unconstitutional in Wright v. Hart, 182 N. Y. 330 (2 L. R. A. [N. S.] 338). In the case of Block v. Schwartz, 27 Utah, 387 (65 L. R. A. 308), an act somewhat similar was declared unconstitutional by the supreme court of Utah, but the court cited and distinguished the cases from Massachusetts, Tennessee, and Washington, and seem to rest their decision upon two grounds: (1) That the statute of Utah, unlike the Massachusetts and Washington statutes, failed to exempt from the operation of its provisions persons acting in fiduciary or official capacity under judicial process; and (2) because the Utah statute made it a criminal offense for both the purchaser and seller to act in making a sale and purchase in disobedience or disregard to its provisions. It will be noted that our statute is not subject to either of these objections. The supreme court of Indiana, in Sellers v. Hayes, 163 Ind. 433, leaves the question undecided. The supreme court of Ohio has held a similar act invalid. Miller v. Crawford, 70 Ohio St. 307. It will be seen that the weight of authority sustains the validity of this act. As in our opinion the act is on principle within the police power, we find ourselves in accord with the weight of authority.

The judgment is affirmed.

Grant, Blair, Ostrander, and Moore, JJ., concurred.


text:
    BOWERMAN v. BOWERMAN.
    1. Divorce — Alimony — Determination of Allowance — Matters Considered.
    In determining the allowance to a wife, on granting her a divorce, the value of the homestead will be taken into consideration though the title stands in the name of the parties as tenants in the entirety, where the title once stood in the husband and was conveyed upon no consideration except the discontinuance of a prior divorce suit.
    2. Same — Propriety of Award.
    Where a husband, against whom a decree for divorce is granted, is shown tobe possessed of an estate of the value of $7,553, including a homestead of the value of $1,200, is 53 years of age and physically unable to perform manual labor, though able to earn some income in other service, and the wife is 47 and able to do something toward her own support, an award of alimony to her consisting of the household goods, the homestead, $2,000 in money, and $25 per month until the older of the two children shall reach the age of 17 years, and $12.50 per month until the younger child shall reach the age of 16 years) is excessive, and the money payment should be reduced to $1,000 cash, and $8 per month for the use of each child until they shall, respectively, reach the age of 16 years

      Appeal from Van Burén; Des Voignes, J.
    Submitted June 20, 1906.
    (Docket No. 111.)
    Decided September 20, 1906.
    Bill by Mary E. Bowerman against Samuel R. Bower-man for a divorce. From a decree for complainant, defendant appeals.
    Modified.

      Wicksall & Cogshall, for complainant.

      Dallas Boudeman, for defendant.
   Montgomery, J.

A divorce absolute was granted to complainant, together with an award of alimony of the household goods, the homestead, $2,000 in cash, and $25 per month until the elder of the two children of the parties should reach the age of 17 years, and $12.50 per month thereafter until the younger should reach the age of 16 years. We are asked to review this award of alimony, and to reduce the amount. The property of defendant consisted at one time of the homestead, which we find to be worth about $1,200; two lots and a house in the city of South Haven, directly opposite the homestead, worth about $1,700; four lots in Chicago worth about $500; a small farm on the lake shore south of South Haven, which was not productive of an income more than sufficient to pay taxes, and a small return in addition upon which the estimates vary radically. This property, as a farm, would be highly valued at $2,250, but it is shown to have a larger speculative value as resort property. The demand for property for such use is shown to have been very little during the last two years. We are satisfied that as an available asset with which to meet the charges imposed by the decree it would be wholly unsafe to estimate this property as worth more than $5,000. Defendant also had in cash about $300, making a total of property to be considered $8,700. Defendant owes $1,147, léaving the net worth $7,553, aside from household furniture. We have included the homestead although the title stands in the name of the two parties as tenants in the entirety for the reason that the title once stood in defendant and was conveyed to complainant upon no consideration except the discontinuance of a prior divorce suit. We have then a net estate of $7,553 to be considered.

It is obvious that this estate cannot be divided so as to produce an income sufficient to support complainant and the two children in any reasonable style of living and leave to the defendant any means of support except his own labor. He is shown not to be physically able to perform hard manual labor, but is capable of earning some income in other service. He is 52 years of age, and complainant 47. She is apparently capable of doing something toward her own support. In these circumstances we think a fair allowance to complainant will be the homestead and household furniture, and an additional sum of $1,000. Defendant should also be required to give security to pay into complainant’s hands $8 per month for the use of each child until they shall, respectively,' reach the age of 16 years. The complainant, as a condition to the receipt of these items, should be required to release her dower interest in defendant’s lands.

The decree is so modified.

Carpenter, C. J., and McAlvay, Ostrander, and Moore, JJ., concurred.


author: Moore, J. Ostrander, J.

text:
    KILLEFER v. BASSETT.
    Wills — Construction—Estate Devised — Limitation on Fee.
    Where an estate is devised in fee, a subsequent clause directing what disposition shall be made of that portion of the estate remaining at the devisee’s death is void for repugnance to the devise in fee.
    Appeal from Yan Burén; Carr, J. Submitted January-31, 1906.
    (Docket No. 78.)
    Decided October 1, 1906.
    Bill by William Killefer, administrator de bonis non, with the will annexed, of the estate of Theodore E. Hendrick, deceased, against Fred R. Bassett, administrator of the estate of Elvira C. Hendrick, deceased, for an accounting. From a decree for complainant, defendant appeals.
    Reversed, and decree entered for defendant.

      Thomas J. Cavanaugh and Benjamin F. HecJcert, for complainant.

      Barnard & Lewis (A. W. Lamson, of counsel), for defendant.
   Moore, J.

The bill in this case was filed by the complainant, as administrator de bonis non, with the will annexed, of the estate of Theodore E. Hendrick, deceased, against Fred R. Bassett, as administrator of the estate of Elvira C. Hendrick, deceased, for an accounting for the assets which were in Mrs. Hendrick’s hands at the time of her death, under and by the terms of the last will of said Theodore E. Hendrick; she having been appointed executrix' of his estate. The answer of the defendant denies that there were any assets in the hands of his intestate or that any ever came to his hands belonging to the estate of Theodore E. Hendrick, but avers that under the ninth paragraph of the will of Mr. Hendrick the residue of his estate, after paying the legacies, and other obligations, became and were the assets of Mrs. Hendrick, and, at her death, went to her heirs under the statute of distribution. The circuit judge held, in favor of complainant. The case is brought here by appeal.

The second provision in the will reads:

2. I give and devise to my beloved wife, Elvira C. Hendrick, all those certain pieces and parcels of land situate and being in the county of "Van Burén and State of Michigan, known, etc., * * * together with all the hereditaments and appurtenances thereunto belonging or anywise appertaining. ”

Then follow a number of bequests. Then comes the following provision:

“9. I give and devise all the rest, residue, and remainder of my real estate of every name and nature whatsoever to my beloved wife Elvira C. Hendrick, and I also give and bequeath to my said wife all' my household furniture, beds and bedding and all the rest, residue and remainder of my personal estate, goods and chattels of what nature or kind soevei’, and whatever is left of said real estate or personal estate at the death of my said wife, Elvira C. Hendrick, I give to the following named persons: Peter Hendrick, Elizabeth A. Caldwell, Martha M. Edwards, Edwin C. Hendrick, John "W. Hendrick, Adelbert M. Hendrick, Rose Snyder, Elvira Hendrick, Sarah Hendrick, George Hendrick, William Hendrick, Ella Hendrick, Frank Barber, Helen Hillman, Mollie Hillman, Elvira Rosette Hubbard, Charles Heston, Minnie Bentley, Dow Bently, Mary Lamson, Harry Lamson, Cora Lamson, and Edwin Lamson-, provided they should be living at the death of my said wife, Elvira C. Hendrick, and in case of death of any of the above named persons, then I give it to all that are living to be divided equally between them, share and share alike.”

It is the claim of the complainant that Mrs. Hendrick obtained only a life interest in the property, and that the case is controlled by Robinson v. Finch, 116 Mich. 180, and like cases, a large number of which are cited.

It is the claim of defendant’s counsel that Mrs. Hendrick took title to the fee in the property, citing a large number of cases. It is sometimes difficult to determine whether a given case is within one of these lines of cases or the other. We think the case at bar is distinguishable from Robinson v. Finch, supra. It was the opinion of the writer that when the firs! part of the third provision of the will in the last-named case was read in connection with the second provision of the will it modified the second provision so as to indicate that the testator intended to give to Thomas Weldon the use of the property for his education and benefit with remainder over in case he died leaving no wife or children. See Gadd v. Stoner, 113 Mich. 689; Thorn v. Scofield, 143 Mich. 473; In re Mallary’s Estate, 127 Mich. 119.

In the case at bar the testator does not indicate in the will an intention to place any limitation upon the bequest to Mrs. Hendrick. He does indicate if there is anything left of the property at the time of her death his desire as to where it shall go. The case of Jones v. Jones, 25 Mich. 401, is almost a parallel case to this one. In that case it was held the wife took an absolute estate. In Law v. Douglass, 107 Iowa, 608, it is said:

“The intention of the testator is the polar star in the interpretation of a will. It will be sought from an examination of the entire instrument when taken up by its four corners. This must be so, as, of necessity, wills are prepared in all situations and by all sorts of people, the wise. and the ignorant, the unlearned in the law, as well as the learned. Because of this, courts have deemed it of more importance to ascertain and give effect to the wishes of the deceased than to indulge in particular refinement of reasoning or niceties of distinction, which may operate to defeat the accomplishment of the very purposes for which the instrument has been executed. There are some things, however, which even a testator may not do, and which the courts are powerless to aid him in doing, however clearly his intentions may be expressed. He cannot create a fee with absolute power of 'disposal, and at the same time clog that power of alienation by limitations over to another. In other words, he cannot include provisions which are absolutely inconsistent in terms and meaning, and have all- given force and effect. See Ingersoll's Appeal, 86 Pa. 245. Rules for ascertaining the intention have developed from the observations and experience of the past, which are believed to be well adapted as guides for learning the wishes of men generally, as expressed in such instruments. These canons of interpretation cannot be rejected, except on great consideration. As said by Sharswood, J., in Doebler’s Appeal, 64 Pa. 15:

“ ‘It becomes no court to be wise above that which is written. Security of titles requires that no mere arbitrary discretion should be exercised in conjecturing what words the testator would have used, or what form of disposition he would have adopted had he been truly advised of the legal effect of the words actually employed.’

“ It appears that no rule is better settled in the law than that the first taker of property under a will, with full power to dispose thereof, must be considered the absolute owner, and limitations over held void for repugnancy. Rona v. Meier, 47 Iowa, 609; Alden v. Johnson, 63 Iowa, 125; Killmer v. Wuchner, 74 Iowa, 359; Pellizzarro v. Reppert, 83 Iowa, 498; Halliday v. Stickler, 78 Iowa, 388; In re Burbank’s Will, 69 Iowa, 379; Mulvane v. Rude, 146 Ind. 476; Bradley v. Carnes, 94 Tenn. 27; Wilson v. Turner, 164 Ill. 398; Van Horne v. Campbell, 100 N. Y. 287; Schouler on Wills, §§ 558, 559; 2 Jarman on Wills (5th Ed.), p. 529; Gifford v. Choate, 100 Mass. 346; Jones v. Bacon, 68 Me. 34; Kelley v. Meins, 135 Mass. 231; McKenzie’s Appeal, 41 Conn. 607; 2 Redfield on Wills, p. 277; 20 Am. & Eng. Enc. Law (1st Ed.), p. 955. This is because the limitation is inconsistent with the power of alienation or an absolute fee, and the testator will be presumed to have intended the gift rather than to have defeated it by the limitation over. * * *

“Mr. Schouler, in his work on Wills (§ 559), says:

‘“As a rule, an absolute devise in terms must be construed in connection with other clauses of the will which serve to modify its effect. And a fee which is given in the first part of a will may prove to be so restrained by subsequent words as to reduce it to a life estate.’

“Urich's Appeal, 86 Pa. 386; North v. Martin, 6 Sim. 266; Norris v. Beyea, 13 N. Y. 273; Healy v. Eastlake, 152 Ill. 424; Chase v. Ladd, 153 Mass. 126; Mansfield v. Shelton, 67 Conn. 390; Stivers v. Gardner, 88 Iowa, 310. Indeed, we have discovered no case to the contrary. The ordinary rules of interpretation are perspicuously stated in the recent case of Mansfield v. Shelton, 67 Conn. 390:

‘First. If the primary gift conveys and vests in the first taker an absolute interest in personal, or an absolute fee simple in real property, it exhausts the entire estate, so that there can be no valid remainder.
‘Second. A life estate, expressly created, will not be converted into a fee, absolute or qualified, or into any other form of estate greater than a life estate, merely by reason of there being coupled with it a power of disposition, however general or extensive.
“ ‘ Third. An express gift in fee will not be reduced to a life estate by mere implication from a subsequent gift over, but may be by subsequent language, clearly indicating intent, and equivalent to a positive provision.
“‘Fourth. Except as restrained by the foregoing limitations— indeed, in some instances, apparently impinging upon them — the question as to whether the primary gift is in fee, .so as to exhaust the entire estate, is in each case to be decided upon a careful examination of the entire will, aided by legitimate extrinsic evidence, to ascertain the actual intent of the testator, which intent, when so discovered and made obvious, is controlling.’”

In Gadd v. Stoner, 113 Mich. 689, Justice Montgomery, speaking for the court, among other statements, said:

“ It should also be noted that, in applying the rule contended for by defendants, a marked distinction exists between the case of an express bequest in fee and a case where the will creates a life estate with power to alienate. See this distinction noted in Bradley v. Carnes, 94 Tenn. 27; Schouler on Wills, § 559. In the latter case, the test seems to be whether the will gives an unlimited, or only a modified, power of disposition in the first taker. If the former, it is treated as a conveyance in fee; if the latter, an executory devise may yet be given effect. In Jackson v. Robins, 16 Johns. (N. Y.) 588, Chancellor Kent said:

“ ‘We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to the rule is, where the testator gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion.’ ”

The late case of Moran v. Moran, 148 Mich. 322, is in point. In that case it was held that the proviso that the property left at the death of the wife should go to the heirs of the testator is repugnant to the clause creating the estate in fee simple. Such we think should be the construction put upon the provisions of the will before us.

The decree is reversed, and one may be entered in accordance with this opinion.

MoAlvay, Grant, and Hooker, JJ., concurred with Moore, J.

Ostrander, J.

I am of opinion that this case is not to be distinguished from Robinson v. Finch, 116 Mich. 180. I do think this case correctly decided.


author: Montgomery, J. Ostrander, J.

text:
    SMITH v. HOCKENBERRY.
    1. Husband and Wife — Criminal Conversation — Trial — Instructions — Harmless Error.
    Where, in. an action for criminal conversation, the charge makes the case turn upon the sole question of whether defendant is guilty of the act of intercourse alleged, and defendant disclaims any conspiracy between plaintiff and his wife, and the jury find for the plaintiff, refusal to charge that collusion cannot be inferred from certain facts appearing in the case is not prejudicial to plaintiff.
    2. Same — Condonation—Mitigation op Damages.
    In an action for criminal conversation, the fact that plaintiff has continued to live and cohabit with his wife may be considered in mitigation of damages.
    3. Same— Evidenoe— Charaoter of Wife — Specific Acts of Immorality.
    In an action for criminal conversation, evidence of prior specific acts of unchastity of plaintiff’s wife and her association with other women of ill repute is admissible, as well as evidence of her general reputation for chastity.
    4. Same — Mitigation of Damages.
    In an action for criminal conversation, evidence that plaintiff’s wife consulted counsel in regard to bringing suit therefor before plaintiff did, offered under a disavowal of an attempt to show connivance and collusion,, but for the purpose of showing the depravity of plaintiff’s wife and as tending to show that the alleged criminal intercourse was brought about by the wife under circumstances indicating that discovery was expected, is properly admitted.
    5. Same — Witnesses—Impeachment—Collateral Matters.
    In an action for criminal conversation, a female witness having testified to seeing defendant and plaintiff’s wife in a compromising situation, the question whether she had not stated that there was an understanding between herself and plaintiff’s wife to get money out of defendant is not a collateral matter as to which the cross-examiner is bound by the answer, but she may be impeached by showing that she has so stated.

      Error to Eaton; Smith, J.
    Submitted February 7, 1906.
    (Docket No. 104.)
    Decided October 1, 1906.
    Case by Howard Smith against Clinton Hockenberry for criminal conversation. There was judgment for plaintiff for less than the amount claimed, and he brings error.
    Affirmed.

      Q. A. Smith and O. J. Hood (George Huggett, of counsel), for appellant.

      Lyman H. McCall {Frank A. Dean and Garry C. Fox, of counsel), for appellee.
   Montgomery, J.

This is an action for criminal conversation. The case was before the court at the October term of 1904, and is reported in 138 Mich. 129, where a sufficient statement of the main features of the case is given. It was there held that on the record as there made there was no proof to sustain defendant’s claim that the plaintiff connived at his wife’s criminal intimacy with the defendant, and that the wife’s alleged statements to witnesses that her husband knew of her intimacy with other men were incompetent. It was also held that testimony relative to the criminal intimacy of plaintiff’s wife with other men before the act in question was competent, but that testimony as to her after conduct was not. The case has been tried anew, and a verdict of $25 for plaintiff rendered. The plaintiff brings error.

The record contains 41 assignments of error. Error is assigned- on a refusal of a request which in substance directed the jury that collusion could not be inferred from certain facts appearing in the case. As the charge of the court made the case to tura upon the sole question of whether the defendant was guilty of the act of intercourse alleged, and as the defendant disclaimed any theory of conspiracy, and, what is more conclusive, as the jury found for the plaintiff, it is altogether clear that the refusal of this request should not now be complained of.

The plaintiff requested the court to charge that:

“The fact that the husband, after learning of the wrong that he had suffered, did not break up his home or drive his wife therefrom or apply for a divorce, but condoned her offense, is no bar to his action against the defendant for any wrong committed by him. ”

This was given with the addition of these words:

“ It may lessen the damages, but it does not take away the right of action, and the damages, if any, are for you to find, if you reach that branch of the case.”

It will be seen that the question is thus presented whether the condonation of the wife’s offense by the husband may be considered in mitigation of damages. Plaintiff’s counsel cite, in support of the claim that such testimony is not to be received in mitigation, Heermance v. James, 47 Barb. (N. Y.) 120, which was a case in no wise like the present. The question in that case was whether the act of defendant, in influencing the plaintiff’s wife to refuse to recognize or receive the plaintiff as her husband or to live with him as his wife, was actionable. The holding of the court was that an action would lie for this wrong, even though the wife continued to live in the house with her husband. It was with reference to this situation that the language used in the brief of counsel was employed, viz.:

“ Her remaining with him under the circumstances would rather add the provocation of insult to the keenness of suffering. It would continue before him a present, living, irritating, aggravating, if not consuming, source of grief, which even her absence might, in a measure, relieve.”

It is obvious at a glance that the court was not there dealing with the question here involved. The authorities bearing directly upon this question are not numerous. Some English cases are said to hold condonation a bar. 3 Enc. of Evidence, p. 795. The current of authority is not so. On principle, however, we hold that the fact that the plaintiff has continued to live and cohabit with the wife is a circumstance to be considered in mitigation.

The declaration in such case usually, as in the present, contains a charge of loss of the society, fellowship, and. assistance of the wife. Why should it not be competent to show that this was not the case for any considerable time? Morning v. Long, 109 Iowa, 288; Ball v. Marquis, 122 Iowa, 665. We think the instructions of the court fair in all respects.

The court permitted evidence of the conduct of Mrs. Smith prior to the act charged, including testimony tending to show criminal intimacy with other men, and also tending to show association with women of bad repute. This latter testimony is claimed to have been incompetent on the ground that plaintiff, while he might be expected to meet testimony of reputation of his wife, could not be prepared to meet attacks upon the character of his wife’s associates. We think the testimony was admissible. Not only is it competent to show the previous reputation of the wife, but distinct acts of immorality may also be given in evidence. 8 Enc. of Evidence, p. 796. This was so decided when this case was here before. Testimony of intimate association with lewd women clearly bears upon the question of her chastity. The testimony of the previous acquaintance and intimacy of the witness Stevens and plaintiff’s wife was competent for the like purpose. The question asked of the witness Mary Boyer as to whether she saw Mrs. Smith at Stevens’ place of business several times since the last suit was not objected to.

Testimony was received tending to show that Mrs. Smith, plaintiff’s wife, saw the attorney employed in the case before plaintiff did. ' A letter written by plaintiff’s counsel to the defendant was then received under objection. Defendant’s counsel disclaimed any purpose of showing connivance or conspiracy, but say that this letter was offered to show the depravity of plaintiff’s wife, and also as tending to show that the alleged acts of criminal intercourse were brought about by plaintiff’s wife herself, and under circumstances indicating that discovery was expected. We think the testimony along this line was competent for this purpose. It had a decided bearing upon the question of the character of the plaintiff’s wife at the very time the* acts of intercourse are claimed to have occurred, and in this way affects the question of damages.

One Mrs. McAllister was a witness for the plaintiff, and testified that she discovered plaintiff’s wife and defendant in a compromising position. The foundation having been laid on cross-examination, the defendant was permitted to show statements of this witness, made to another, the tendency of which was to show an understanding between Mrs. Smith and herself to get money out of defendant. Complaint is made of this on the ground that it was a collateral matter, and that the cross-examiner was bound by the answer. We do not think this was collateral matter within this rule. The testimony bore directly upon the truthfulness of this witness. It tended to show an interest, and that her testimony was given in pursuance of a conspiracy between Mrs. Smith and herself, although the plaintiff was not a party to it.

The other questions discussed have had full consider- ' ation. We discover no damaging error.

Judgment affirmed.

Hooker and Moore, JJ., concurred with Montgomery, J.

Ostrander, J.

I concur in affirming the judgment. The undisputed testimony shows that the wife of the plaintiff saw the attorney, later employed by plaintiff, about this matter, before her husband, the plaintiff, saw him, and that soon thereafter, at the direction of the plaintiff, this suit was begun. The jury might have inferred, from these facts and from other evidence in the case, a conspiracy between plaintiff and his wife. That such aii inference might be drawn would not require the evidence to be excluded if it also tended, fairly, to prove, or furnished reasonable ground for inference concerning, the character of the wife as to chastity, at the time the alleged wrong was committed, and a desire and expectation on her part that her conduct with defendant would be discovered. It cannot be said that this evidence, in connection with other evidence properly in the case, had no such tendency.

As to the letter in question, while its admission is made the ground of an assignment of error, the record discloses that, after the letter had been marked and identified by the writer, the following took place:

Mr. Fox: I will read Exhibit 1.
The Court: Read it.
“Mr. Smith: Exception.”

The reasons which in this court are urged for and against the right to admit it in evidence are not therefore considered. Neither the purpose of counsel in offering it nor the grounds of objection to it were stated. I find no motion to strike it out, no requests to charge, and no part of the charge given referring to it.

Blair, J., concurred with Ostrander, J.


author: McAlvay, J.

text:
    DUVALL v. FERWERDA.
    1. Sales — Contract—Breach—Damages—Profits .
    Where a contract for the sale of goods for resale is broken by failure to deliver, or delivery of goods not in accordance with the contract, the prospective profits of the purchaser, in so far as they are certain and capable of ascertainment, are recoverable.

    2. Evidence — Hearsay.
    Testimony by plaintiff that another told him that defendant had telephoned for plaintiff to perform certain services for defendant, defendant denying having requested the service performed, is inadmissible as hearsay.
    3. Sales — Delivery —Goods not in Aooordanoe with Contract — Recovery of Value.
    Where goods are delivered which are of less value than those contracted for, the seller is entitled to recover only their value unless they are accepted under the contract.
    Error to Missaukee; Chittenden, J.
    Submitted February" 14, 1906.
    (Docket No. 165.)
    Decided October 1, 1906.
    Assumpsit by Clarence Duvall against John Ferwerda for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Eeversed.

      E. E. Sawyer, for appellant.

      F. 0. Gaffney, for appellee.

       For loss of profits of sale or purchase as damages, see note to Guetzkow Bros. Co. v. A. H. Andrews & Co. (Wis.), 52 L. R. A. 209.

   McAlvay, J.

This suit originated in justice’s court. It was appealed to the circuit court for Missaukee county, and tried before a jury. Plaintiff recovered a judgment. The action was in assumpsit for the price of certain wood sold to defendant and for hauling certain goods for defendant. Defendant under his plea of the general issue gave notice of recoupment. The facts are that plaintiff made an agreement to sell and deliver to defendant, loaded in the cars, certain dry beech and maple wood at the price of $1.40 per cord. There is a dispute as to the amount agreed to be delivered; defendant claiming that he bought and plaintiff agreed to deliver 100 cords. Plaintiff denies that any number of cords was agreed upon. Defendant had seen 42 cords of this wood which had been cut the year before. He had not seen the balance of the wood which was afterwards delivered. Defendant delivered 79 cords. The principal dispute in the case is whether 87 cords of the amount delivered was dry wood. It had been cut in September and October before the sale, which was made November 30th. All the wood was delivered on or before December 19th. Defendant sought to show that he had a contract with Grand Rapids parties to sell them dry wood at $1.60 per cord, and that was the price he received for the 42 cords of dry wood, and claimed a right to recoup 20 cents a cord on the balance of 100 cords as his loss of profits. He also attempted to show by his own testimony that of the amount delivered 37 cords brought only the price of green wood. At the time this shipment was made dry wood was bringing $1.60 per cord. Afterwards the price of wood fell so that there was no profit. It is clear he was not entitled to profits on the balance of the 100 cords he claimed to have purchased, but of the shipment made he should have been allowed to show as an element of damages the loss of profits on the portion which was green wood. He could testify of his own knowledge what he received for the wood, and there was evidence in the case of the value of green wood. These profits were easily ascertainable and certain. The court was in error in refusing to admit the testimony. Fell v. Newberry, 106 Mich. 542, and cases cited.

Defendant also assigns error upon the refusal of the court to strike out the testimony of the plaintiff as to what the station agent had told him defendant said over the telephone about hauling one load of merchandise, on the ground that it was hearsay. Plaintiff testified that he requested the station agent to call up defendant and ask hdm if plaintiff should haul the goods for him, “ So he called him up and then came, to where I was unloading and said Ferwerda wanted me to take the load up there, so I did.” The testimony was not admissible. If the station agent had been produced as a witness it would have been proper for him to testify as to the conversation he had over the telephone with defendant. Defendant denied that he had requested plaintiff to haul the goods, and plaintiff could not prove defendant’s order by testifying to what the station agent reported to plaintiff defendant had said over the telephone. The testimony was hearsay and should have been stricken out;

Defendant requested the court to charge the jury:

“If the contract was to deliver dry wood, and instead of that the plaintiff delivered green wood, that such wood not being delivered upon contract the plaintiff could only recover the value of the wood at the time it was delivered, and they must take that into account and find a verdict for the value of the green wood provided they find it was not accepted by Mr. Ferwerda. ”

The court refused so to charge. Defendant was entitled fo have this request given. It properly stated the measure of damages to be recovered for any green wood the jury might find had been delivered, provided they found such green wood was not accepted by defendant under the contract.

The judgment of the circuit court is reversed, and a new trial granted.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


author: Moore, J.

text:
    KAMINSKI v. GREAT CAMP KNIGHTS OF THE MODERN MACCABEES.
    Beneficial Associations— Membership— Initiation— Personal Injuries — Liability of Grand Lodge.
    Where an applicant for membership in a fraternal organization agrees to be governed by the rules of the order, which provide that the local lodge is the agent of the applicant, and that the grand lodge shall not be liable for any fault or ' negligence on the part of the local lodge or its officers, and the local lodge chooses its own officers to perform the initiatory ceremonies and uses a ritual provided by the grand lodge, which contains nothing suggesting that the initiation shall be conducted in such a way as to hurt the candidate, the grand lodge is not liable to the candidate for personal injuries inflicted upon him by the members of the local lodge during initiation.
    Error to Wayne; Donovan, J.
    Submitted April 13, 1906.
    (Docket No. 43.)
    Decided October 1, 1906.
    Case by Anthony Kaminski against the Great Camp of the Knights of the Modern Maccabees for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      John B. Mcllwain (Jeffries & Williams, of counsel), for appellant.

      Dohany & Dohany, for appellee.
   Moore, J.

It is the claim of plaintiff that while undergoing initiation at the Belle Isle Tent of the Knights of the Modern Maccabees he received personal injuries. He brought suit and recovered judgment. The case is brought here by writ of error.

Plaintiff bases his right to recover against defendant upon the proposition that the relation of principal and agent exists between defendant order and the degree team of Belle Isle Tent, so as to make the former liable for the negligent, careless, or willful acts of the latter, resulting in injury to him during the initiation. In the declaration it is said:

“ The plaintiff further avers that by the rules and regulations of the said defendant, governing the initiation of new members, the said initiation officers are required to put the said new members through certain motions, marches, and gymnastics, which, when properly conducted, are entirely harmless; and the said defendant by its said agents and servants in so doing used a certain ritualistic method of initiation adopted and promulgated by the defendant.”

It then avers the duty of the defendant to warn the plaintiff of the danger of being injured, and to furnish competent initiating officers, and that he be initiated in a careful and prudent manner. It avers the initiation was recklessly conducted:

“ That during the initiation the said initiating officers recklessly, negligently and carelessly grasped the plaintiff by his shoulders, tripped his knees forward, and threw his body backward, causing plaintiff to fall upon the floor of said room with great force .and violence * * * whereby the said plaintiff was seriously and permanently injured.”

It is the claim of plaintiff that the following is part of the ritualistic ceremony that was exercised upon the plaintiff at the time of his injury:

“ Two of the soldiers pass out of the inclosure and capture Judas and take his sword. They wrap chain about his arms and remain outside of the inclosure until the general says: ‘ Let him stand aside and await his doom.’ The other soldiers rush upon and seize the candidate (plaintiff) and after a brief pause, the lights being turned on, first soldier says:

First Soldier: He is a rebel.

Second Soldier: Let us kill him.”

The soldiers, or guards, as they are sometimes called, “rushed upon and seized” the candidate with such force and roughness that he fell to the floor. It is further claimed that in view of the ritual and the proofs it was proper for the court to submit the question of defendant’s liability to the jury. Counsel say the case of Mitchell v. Leech, 69 S. C. 413 (66 L. R. A. 723), is controlling in favor of the action of the trial judge.

It is the claim of counsel for defendant that the court should have directed a verdict in its favor for the following reasons:

1. That defendant is not liable in damages for the wrongful acts of the degree team to plaintiff during initiation.

2. That the funds held by defendant are trust funds and cannot be charged with the payment of judgment for the torts of alleged agents.

He cites in support of this claim the case of Jumper v. Sovereign Woodmen of the World, 127 Fed. 635, and claims it is controlling in favor of this contention.

An examination of the two leading cases cited by counsel will show them to be distinguishable from the case at bar, and none of the many cases cited are controlling. In the case before us we have the statute under which the defendant was organized, the defendant’s articles of incorporation, the by-laws, its ritual and plaintiff’s application for membership. In this application plaintiff agreed to be bound by the laws, rules, and regulations of the order. Section 106 at this time read:

“A subordinate tent and its officers shall be the agent of its members and all applicants for membership, in all matters, and the great camp will in no case be liable for any fault or negligence on the part of a subordinate tent or any of its officers in the transaction of any business whatsoever between the members or applicants for membership and the great camp.”

The subordinate tent under the laws of the order is authorized to do the following:

1. It elects its own officers.

2. Originates its own means of support.

3. Passes upon the social qualifications of all applicants for membership, and determines who shall be accepted and who rejected.

4. Decides whether an applicant, who has been accepted, shall be initiated or merely obligated.

5. Selects the degree team to confer the initiatory work.

6. Has power to expel members for violating the laws -of the order, and thus cut off their social and beneficial rights and terminate their membership in the order.

7. Provides its own lodgerooms, furniture, furnishings, .and paraphernalia for use in initiatory work.

It will he noted from what we have quoted from the ritual which is relied upon by the plaintiff that while the two persons are expected to rush upon and seize the candidate there is no suggestion in it that he shall be thrown to the floor with great violence. We then have a situation where an applicant to become a member agrees to be governed by the laws and rules and regulations of the defendant. These rules provide that the subordinate tent and its officers shall be the agent of the applicant, and that the great camp shall not be liable for any fault or negligence on the part of a subordinate tent or any of its officers. They further provide that the subordinate tent shall decide whether an applicant must be initiated, that it shall select the men to conduct the initiation, that it shall provide its own lodgerooms, furnishings, and paraphernalia for the initiation when conferred, and finally there is nothing in the ritual suggesting that the initiation shall be conducted in such a way as to do physical hurt to the candidate. Whatever may be the liability of the persons conducting the initiation, or of the subordinate tent which has selected them for that purpose, we think it very clear there was no question to he submitted to the jury based upon the idea that the persons who did the injury were the agents of the defendant in that act. See 20 Am. & Eng. Enc. Law (2d Ed.), pp. 180, 181; Joslin v. Ice Co., 50 Mich. 516; Wiltse v. Bridge Co., 63 Mich. 639; Keating v. Railroad Co., 97 Mich. 154; 1 Bacon on Benefit Societies and Life Insurance (3d Ed.), § 636.

Judgment is reversed, and new trial granted.

Carpenter, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


text:
    TEMBY v. CITY OF ISHPEMING.
    Municipal Corporations — Highways and Streets — Personal Injuries — Liability.
    A city is not liable for an injury occurring to a pedestrian from a billboard being blown upon him from the front of a building, the board being placed on a space between the lot line and the front of the building, and there being no evidence that the city ever exercised any control over the space, though the sidewalk covered it.
    Error to Marquette; Stone, J.
    Submitted May 2, 1906.
    (Docket No. 57.)
    Decided October 1, 1906.
    Case by Richard Temby against the city of Ishpeming for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed, and no new trial ordered.

      W. T. Potter and William Peters, for appellant.

      C. F. Button, for appellee.
   McAlvay, J.

Eor a complete statement of the facts in this case and the questions of law involved, reference is had to our former decision, Temby v. City of Ishpeming, 140 Mich. 146 (69 L. R. A. 618), when the case was first before this court: The case is here again after the new trial which was ordered. When the evidence was closed, a motion made on the part of defendant to instruct a verdict in its favor was denied, and the case submitted to the jury, which found a verdict in favor of plaintiff, upon which a judgment was entered.

The principal error relied upon by defendant at this time, as upon the former hearing, is upon the refusal of the court to instruct the jury to find for defendant. • The injury to plaintiff was caused by a' billboard, used for ■advertising entertainments at an opera house, being thrown by the wind against the plaintiff, who was passing on the street. The billboard was placed wholly outside of the highway, and upon private ground. The opera house building was about three feet back from the street line. The sidewalk extends beyond the street line to the building.

Plaintiff in his brief says:

“The facts as they appear in this case, different from the former case, are substantially as follows: The opera house in front of which this billboard sat is upon the south side of an alleyway, and from said alleyway south along Main street to Division street (the street) is built up by business blocks which are on the same line as the opera house building, and the sidewalk from said alley to Division street was all one sidewalk, extending from the curb flush with the buildings, and while the sidewalk extended in the neighborhood of three feet over the street line, still there was never any difference made between that portion over the line and on private property and that portion in the street. It was all one sidewalk, and under the jurisdiction of the city.”

In the former opinion the court said:

“ Before the defendant can be held liable to pay for this injury it must be shown .that it ‘neglected to keep its sidewalk in reasonable repair, and in condition reasonably safe and fit for travel.’ No complaint is made that the street or sidewalk was not in proper condition and in a reasonably safe and fit condition for travel, so far as the same was dependent upon the condition of the street itself. Plaintiff’s claim rests upon the proposition that, to avoid liability under the statute, the municipality must protect the traveler against dangers beyond the limits of the highway which make traveling unsafe.

“ The only theories upon which defendant can be held liable in this case are: (1) That all of the sidewalk was a portion of the highway, or (2) that the billboard was a nuisance which the city might, and should, have abated.”

Plaintiff contends that the facts as they appear in the present record bring the case within the first of these theories. The present record does show that the buildings from the opera house alley to the corner of the block are back on a line with the opera house, being about three feet from the street line; and that the sidewalk extends to' the line of the buildings; also that there is no indication on the sidewalk where the lot line is. It is not true that the record shows that “ there was never any difference made between that portion (of the sidewalk) over the line on private property, and that portion in the street,” at least as far as the opera house property and the lot next adjoining are concerned. The adjoining building was put back to make the building line uniform, and for the purpose of using the space next to the street line for displaying goods, which space was so used by the builder for 14 years. The space in front of the opera house has been, used by the owner or lessee for a billboard, and for the display of goods by the occupant of the store part. If counsel for plaintiff means there was never any difference made by the city in its treatment of the walk inside and outside the lot line, such claim is answered by the fact that the record is barren of any proof which shows that the city ever exercised or attempted to exercise any control over this sidewalk. It is undisputed that the .public walked over it when going into the premises, and also, if not used by the occupants, when passing along the street. The sidewalk, as far as the record shows, was built by abutting owners without order or supervision by the city. It is not necessary, nor will it be of any benefit, to quote the testimony relied upon by plaintiff. That of the city surveyor is given as indicative of its character.

Q. Have you ever known of the city making any difference as to taking care of and using the part for a public way between the curbs and the edge of the buildings ?'

“A. No, sir.

Q. As a matter of fact there never has been any difference ?

“A. No, sir.”

This does not amount to affirmative testimony showing that the municipality assumed or exercised any control or care over the sidewalk in dispute. The case was submitted to the jury by the court in his charge to determine as a question of fact whether the city ‘ had assumed control over that part of the sidewalk towards the lot, and over the city street line. Had the city treated the place as a part of the highway or sidewalk ? Did it exercise control over that part as well as the remainder of the sidewalk ? ” The evidence in the case did not wárrant this charge. The request to instruct a verdict for defendant should have been given. The case presented by this record being no different from that before us when the 'former decision was rendered, a reference to that decision ydll show the conclusions of this court upon the questions involved.

The judgment is reversed, and no new trial ordered.

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


author: Blair, J.

text:
    CHAPMAN v. CITY OF SAULT STE. MARIE.
    1. Dedication — Private Alley — Evidence—Sufficiency.
    On the issue whether an alley was a public or merely a private way, evidence examined, and held, that it was open to the jury to find that while the primary motive of the person opening the alley was his own convenience, he intended to confer upon the public the same rights he had in it.
    2. Same — Conveyance—Effect.
    The mere fact of recording a conveyance of right of way over a lane or alley in use by the public, without any other notice to the public, and with out any change in the use of the alley or exercise of ownership over it, will not of itself change the character of the alley from public to private, so as to prevent the running of the statute of limitations.

      3. Same — Evidence—Sufficiency.
    On the issue whether an alley was a public or merely a private way, evidence examined, and held, that it was competent for the jury to find a dedication to the public from user for the statutory period, but that there was no competent evidence of acceptance by the public.
    4. Same — Acceptance—Necessity.
    In order that a way customarily used by the public may become a public way by user, the public must not only use it as a thoroughfare, but the implied dedication must be accepted by the public authorities, and the way taken in charge and maintained as other highways.
    5. Same — Ejectment—Burden of Proof.
    In ejectment against a city to recover a strip of land used as an alley, the city claiming it to have been dedicated by user, the burden is upon the city to show that the dedication was accepted by the public authorities. '

    6. Estoppel — Deeds—After-Acquired Title.
    Where one having possessory rights in land, the title to which is in the government, conveys it by deed containing full covenants of warranty except as to the government, and afterwards his title is confirmed by the government, the title so acquired inures to his grantee, and a subsequent deed by the grantor to a third person with full covenants is of no effect.
    Error to Chippewa; Steere, J.
    Submitted May 2,1906.
    (Docket No. 140.)
    Decided October 1, 1906.
    Ejectment by Charles H. Chapman against the city of Sault Ste. Marie. There was judgment for defendant, and plaintiff brings error.
    Reversed.

      John W. Shine, for appellant.

      George B. Holden, for appellee.
   Blair, J.

This is an action of ejectment to recover a strip of land 13 feet wide, off the west side of private land claim No. 33, commonly known as “Ashmun Alley,” extending from Portage avenue to Ridge street, two public streets of the city of Sault Ste. Marie. Plaintiff claimed that he was the owner of the strip of land in question, that the alley thereon was originally, and still continued to be, a private way; and that such use as the public had made of the alley was consistent with such private character and presumably in recognition thereof. Defendant denied that plaintiff had the record title, claimed that the alley was originally opened as .a public alley, and that, whether so opened or not, it had become such by user under section 4061, 2 Comp. Laws, or by adverse possession for the time prescribed by section 9714, 3 Comp. Laws.

The following conveyances and evidence of title of private land claim 33 were shown from the public records: Deed from Samuel Ashmun to John Spaulding, May 2,1849. Conveyance by John Spaulding to Sheldon McKnight, May 5, 1853, of a “right of way in and over a certain strip of land 13 feet in width,” etc., “and being a lane or passage now fenced out and leading from Portage street to Ridge street, nearly in front of Judge Samuel Ashmun’s now dwelling house,” etc., “and the said lane or passageway shall be for the full term of one hundred years from the date of this instrument of a width not less than thirteen feet.” This conveyance of a right of way was not recorded until June 22, 1853. Deed by John Spaulding to Silas H. Ashmun, June 22, 1853. Power of attorney, Silas H. to Samuel Ashmun, June 3, 1853. Lease Silas H. by Samuel Ashmun, his attorney, to John E. Pickining, April 15, 1854, of lot “bounded on the north 27 feet by Portage street, west 100 feet by lane from Portage to Ridge street,” etc. Duplicate receipt of the register and receiver of the IT. S. Land Office at Marquette to John Spaulding, dated September 21, 1857, pursuant to an act of Congress, entitled “An act to provide for the examination, and settlement of claims for land at Sault Ste. Marie in Michigan.” Deed, John Spaulding to Samuel Ashmun, July 30, 1858. U. S. patent to John Spaulding, March 29, 1873.

Plaintiff also produced evidence tending to show his acquirement of the title and interest in the property of Silas H. Ashmun and Sheldon McKnight. It is conceded that, from the time this alley was opened, it was used by the public as freely and fully as they' wished or the requirements of travel in that locality demanded, and the evidence tends to show that the public had no intimation that this was a private alley, other than the public records. It appears from the conveyance of the right of way to McKnight that, at that time, May 5, 1853, the alley was defined by fences and connected two public streets or highways. William P. Spaulding, a brother of John, testified that the alley was opened for two or three years-before 1853, and it was his impression that it was open in 1849, and then had the appearance of a roadway. That he lived near the alley, knew McKnight and the Ashmuns and others living in the vicinity, and never heard from his brother John or any one else, until this suit came up, that the alley was claimed to be private property. Samuel Ashmun lived on the south side of Ridge street, about opposite the alley, and owned lands on both sides of the alley. John Bouchatestified that he heard “the boys and my brother and my father mention that he opened this alley so that he could get in.”

Defendant gave evidence tending to show that a ditch had been dug along one.side of the alley; that in 1867 or 1868, the south end of the alley at its juncture with Ridge street had been filled in with earth or gravel; that in 1876, a sidewalk had been built on the east side, which had been subsequently repaired; that some 15 years before the trial, filling and grading was done on the center and southern portion of the alley; that in 1897 some gravel was put on the alley by direction of the mayor and paid, for by the city; that a resolution was adopted by the city council in 1895, declaring the construction of a sewer in the alley to be a necessary public improvement. Some time in 1886 or 1887, when plaintiff was president of the ■village, an application for the improvement of the alley was acted upon by the council, and denied. In 1899, the city took possession of the alley and began filling in at the Nidge street end. With the exception of the grading done by direction of Mayor Webster in 1897, and the sewer resolutions of 1895, there is no direct competent evidence of any action of the municipality or its officers with reference to this alley until 1899, which was the occasion of this suit. Sheldon McKnight, in 1858, lived on Nidge street near the south end of the alley, and was engaged in portaging freight around the rapids. He kept a number of teams, and used the alley in connection with his • business.

The circuit judge held that plaintiff had shown title in himself and submitted the case to the jury “squarely upon the question of 20 years’ peaceable possession, and we will leave it for you, for your opinion and verdict upon that matter, under instructions which it is the duty of the court to give you relative to peaceable possession.” Among other things, the judge instructed the jury as follows:

“ It is claimed that this strip was not only traveled by the public, but that it was improved at public expense, and that is a question of fact for you. The user required as a matter of law to sustain the defense must be like that of highways generally. Not only the general public must use it and travel upon it as a thoroughfare, but the implied dedication must be accepted by the public authorities, and the way taken in charge and maintained as other highways. It is for you to say what the testimony shows along that line, but, in connection with other proof, if you find that there is other proof, you have a right to consider acceptance. User, of itself, does not constitute acceptance, but it is competent evidence tending to prove it, and the general use by the public as evidence tending to prove it is for you to consider.”

Error is assigned upon this instruction, and it is contended that there was no competent evidence of any improvements of the alley at public expense at a date early enough to bring the case within the statute. It is also urged that this was clearly a private alley and the statutes relied upon were not applicable at all under the doctrine of Stickley v. Township of Sodus, 131 Mich. 510 (59 L. R. A. 287), and similar cases.

The question whether this alley was originally laid out as a private way was properly submitted to the jury. So far as the record affords any light, the way would seem to have been originally opened by Samuel Ashmun, probably to gain access to his lands adjoining the alley and to his house on Ridge street opposite the south end of the alley. Whether Ashmun had any title whatever to private land claim 33, upon which to base his deed to Spaulding, does not appear. The natural inference would be from the record that he had no title but merely a claim which might or might not eventually ripen into a title. If this alley was opened as a private way by Samuel Ashmun, as testified by plaintiff’s witness, Boucha, then it is apparent that he must have opened it prior to his deed to Spaulding in May, 1849, and it is significant that he made no reservation of this way in- his deed. It was open to the jury upon this record to find that while Ashmun’s primary motive in opening this alley was his own convenience, he intended to confer upon the public the same rights he had in it.

The mere fact of recording the conveyance to McKnight of a right of way, without any other notice to the public, and without any change in the use of the alley or exercise of ownership over it, would not of itself change the character of the alley from public to private so as to prevent the running of the statute. Ellsworth v. City of Grand Rapids, 27 Mich. 256.

There is a marked difference between this case and Stickley v. Township of Sodus and similar cases where the use of the way by the public was for the benefit of the owner of the way and it was originally laid out as a private way.

Plaintiff’s counsel insists, however, that even if it was competent for the jury to find a dedication to the public from user for the statutory period, there was no evidence of any acceptance of such dedication and the judge erred in submitting the question to the jury. • The learned trial judge correctly instructed the jury that “not only the general public must use it and travel upon it as a thoroughfare, but the implied dedication must be accepted by the public authorities and the way taken in charge and maintained as other highways.” Alton v. Meeuwenberg, 108 Mich. 629; Irving v. Ford, 65 Mich. 241; Harriman v. Howe, 78 Hun (N. Y.), 280, 155 N. Y. 683.

Important consequences flow from the acceptance of a highway by the public authorities, and the rule is a salutary one which requires that mere user by individuals shall not render the corporate body liable for such consequences. We are unable to find in this record any competent evidence of any act of any public officer or of the expenditure of any of the public funds, prior to 1895, with reference to this alley, and unless the doing of the work shown to have been performed, without any competent evidence as to who did it, permits an inference that it was performed by public officers, there was no evidence of an acceptance of the way by the municipality. The burden of proof was on the defendant to show the acceptance of the way, and we do not think the evidence produced was sufficient to discharge such burden.

Defendant contends that plaintiff failed to establish record title, for the following reasons:

“June 22, 1853, when Spaulding deeded the land to Silas H. Ashmun, through whom plaintiff claims, the fee was in the United States government, and Spaulding, at best, was but a squatter on government land, laying claim to it. He merely had a deed from Samuel Ashmun who in turn had no title to the property.

“In 1857 the contested claims in Sault Ste. Marie were adjudicated by the government, and title to the said land was confirmed and a duplicate receipt for patent issued to Spaulding, September 21st of that year. His next step, July 30, 1858, was to deed this land to Samuel Ashmun, giving him a full covenant warranty deed therefor. In the deed of conveyance of June 22, 1853, to Silas H. Ash-muD, Spaulding expressly refused to warrant title against the United States government, in whom the fee of the land was lodged at the time. That conveyance amounted to nothing more than to convey a squatter’s right, but the' conveyance later (after claims had been adjudicated and title to this land was confirmed in Spaulding) to Silas H. Ashmun, warranting title without exception, must be held to have carried title, and plaintiff does not claim through this chain. * * *

“ Since the conveyance to Samuel Ashmun of the land in question, he and his heirs and assigns have held possession, occupied and asserted title to said claim 33, except the strip in question, with between two and three feet adjoining, until the present time, the strip, in question having been in use and open to the public as a traveled way by whomsoever desired to pass along it.”

There is no testimony in the record to support the nlaim that since the conveyance to Samuel Ashmun his heirs and assigns have occupied the lands in question. The deed to Silas Ashmun preceded the deed to Samuel Ashmun, and Samuel recognized his title by accepting and acting under a power of attorney from him. Any title which Spaulding acquired would inure to the benefit and support the title of Silas Ashmun. The fact that the acts of the United States government were excepted from the covenants of warranty in the deed to Silas and not from the later deed to Samuel is of no importance, since the title was confirmed in and the patent issued to Spaulding. We think the instruction of the court was correct upon this record.

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

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