text:
    Alfred Shrimpton & Sons, Limited, v. Wolf Netzorg.

      Sale — Fraud of vendor’s agent — Evidence.
    1. Where the fact of the giving of an order for goods is not disputed, but the orderer defends upon the ground that he bargained for a smaller quantity of goods than that inserted in the order, which was signed upon the understanding that it was for the lesser quantity, it is competent for the orderer to testify to the conversation had with the agent when the order was taken, for the purpose of ascertaining whether or not the agent deceitfully inserted in the order a larger quantity of goods than that agreed upon.
    2. A sufficient foundation for the introduction of parol proof of the contents of a letter claimed to have been lost is laid by the testimony of the party to whom the letter was written’ that he is not in the habit of keeping his letters; that he looked in the waste-basket for the letter, but was too late, as it, with other letters, had been destroyed.
    3. In a suit to recover the purchase price of three great gross papers of pins which the plaintiff claimed to have shipped to the defendant upon his written order, the defendant claimed that the order, as given, was for three gross of pins, but that plaintiff’s agent fraudulently inserted the larger amount. And it is held that it was competent for the defendant to show, in support of his claim, that the order sued upon was grossly disproportionate to the business in which he was engaged; citing Optical Co. v. Treat, 73 Mich. 599.
    Error to Gratiot. (Daboll, J.)
    Argued January 25, 1895.
    Decided February 26, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Kelly S. Searl, for appellant.

      Stone & Salter, for defendant.
   Hooker, J.

The plaintiff, being a wholesale dealer in the city of New York, brought this action against the defendant for the purchase price of three great gross papers of pins which it claimed to have shipped to him upon his written order. The defendant admitted the signature to the order, but defended upon the ground that he was deceived in regard to the quantity of pins mentioned therein. Plaintiff appeals.

Hpon the trial, testimony was offered for the defendant in relation to the transaction between himself and the plaintiff's agent at the time the order was made, tending to show that he bargained for three gross instead of three great gross of pins, and that the order was not read by the defendant, but was signed upon the understanding that it was for three gross papers of pins. Objection was made to this testimony, upon the ground that it tended to contradict the written order. The objection was not well taken. It was competent to show the conversation between the parties for the purpose of ascertaining whether the plaintiff’s agent deceitfully inserted a larger number in the ■order than the parties agreed upon. In fact, it is the only way by which fraud of the character claimed could be ■shown.

The defendant was allowed to show the contents of a letter received from the plaintiff upon proof of his inability to find it. Exception was taken to this evidence, upon -the ground that the proof of loss was insufficient. The ■defendant testified that he was not in the habit of keeping his letters; that he had looked for this letter in the waste-basket; but that he was too late; it had been destroyed with other letters. We think it sufficient.

The defendant was asked:

“What amount of pins is usual, and has been during the last 16 years, to be sold annually by any one firm?”

This being objected to, as not being confined to any firm in.the place, and as not having any bearing in any way upon the amount of stock, the witness was then asked how many years it would take him in the business, as he knew it, to sell three great gross papers of pins. He answered that it would be about 75 years. It is contended by plaintiff’s counsel that this could have no bearing upon the question of fraud, inasmuch as it was not shown that the plaintiff had any knowledge of the extent of the defendant's business. This testimony was offered upon the theory that it would show that the order was an unreasonable one, and, further, that it was wholly improbable that ■the defendant would knowingly give such an order. We think it competent for defendant to show that the order was grossly disproportionate to the business in which he was engaged. Julius King Optical Co. v. Treat, 72 Mich. 599, 602. Such testimony bears upon the probability of his giving an order for so large a quantity, and it would not be affected by the plaintiff’s want of knowledge of the defendant’s business.

Objection is made that the definition of “fraud” as used by the circuit judge in his charge was not accurate. He-instructed the jury, in substance, that if they found that the agent of the plaintiff, by his acts and representations, induced the defendant to believe that he was giving an order for three gross papers of pins only, and the defendant signed the order in question not knowing its true-character, and believed it to be an order for three gross, papers of pins, then the plaintiff could not recover. An examination of the charge satisfies us that the jury were not misled upon this subject.

We find no error in the record, and the judgment will be affirmed.

Long, Grant, and Montgomery, JJ., concurred. Mc-Grath, O. J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    George Fitzpatrick v. John M. Hoffman.

      Deed — Consideration—Parol evidence — Failure of title — Assumpsit —Pleading—Res judicata — Practice in Supreme Court.

    1. Plaintiff, after cutting and selling a portion of the timber on a parcel of land which he had purchased from the supposed owner, repurchased the land from defendant, who claimed to own the same, and received from him a warranty deed. After-wards a second claimant recovered a judgment against the purchaser of the timber for its value, and the plaintiff reimbursed the purchaser, who had paid the judgment, and then sued the-defendant in assumpsit for the purchase price of the timber, which he claimed was agreed upon at a sum distinct from that agreed to be paid for the land. No reference was made in the deed to said timber. And it is held that, the timber being personal property, the title thereto did not pass by the deed; that some other agreement was necessary for that purpose; and that the plaintiff was not precluded from showing the actual arrangement by the fact that the consideration for both the land and the timber was included in the consideration expressed in the deed.
    2. It is competent for the plaintiff to recover the purchase price of the timber under a common-count declaration.
    8. Upon the institution of the suit against the purchaser for the value of the timber, he notified the plaintiff in writing to appear and defend his title, and plaintiff gave the defendant a like notice, to which defendant paid no attention. And it is held that the defendant was tendered his day in court to test the question of his alleged title, in a suit in which it was involved, and, having failed to appear and defend said title, the judgment in that suit concluded him.

      4. A failure to except to an adverse ruling as to the admissibility of testimony precludes the raising of the question in the appellate court.
    Error to Iosco. (Simpson, J.)
    Submitted on briefs January 25, 1895.
    Decided February 26, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The iacts are stated in the opinion.

      Phillips é JenhS) for appellant.

      M. J. Connine, for plaintiff.
   Grant, J.

Plaintiff, a lumberman, purchased from one Maltby several 40-acre lots. One of these lots was claimed Toy the defendant, and also by one Thompson. Before the •dispute over the title arose, plaintiff had cut nearly all of the timber, and sold it to the H. M. Loud & .Sons Lumber Company. Defendant appears to have convinced plaintiff of the validity of his title, and. he executed to him a warranty deed, the express consideration of which was 4200. Thompson afterwards sued the lumber company in trover for the value of the timber cut from this land* His right, of recovery depended upon his title to the land. Upon the institution of that suit, the lumber company-notified plaintiff to appear and defend his title. He in turn sent a written notice to defendant by registered letter, notifying him of the pendency of the suit, and to appear- and protect the title and save him harmless. To this-notice or to the suit defendant paid no attention, and Thompson recovered. The lumber company paid the judgment, and plaintiff paid the lumber company, and brought, this suit against the defendant to recover the purchase-price of the timber, which he alleges to have been $150.

Defendant objected and excepted to the introduction of testimony of a verbal agreement between the parties in-regal'd to the land and timber, claiming that the entire-arrangement became merged in the deed, and that the plaintiff cannot recover under a declaration upon the common counts, but must declare specially. Plaintiff gave-evidence tending to show that $150 was the price agreed upon for the timber, and $50 for the land. The testimony-on the part of the defendant was to the effect that nothing-was said about a separate consideration for the timber. We think the defendánt’s position cannot be sustained* The timber cut was personal property, and title to it did not pass by the deed itself. Some other agreement was-necessary in order to convey it. Plaintiff was not precluded from showing the actual arrangement by the fact-that the consideration for both the land and the timber cut. was included in the deed. If defendant had sued plaintiff,, in either trespass or trover, for the value of the timber,, plaintiff, under all the authorities, could have shown the-actual arrangement, and that the purchase price of the-timber was included in the deed and had been paid. The consideration of a deed is always open to inquiry. Stroh auer v. Voltz, 42 Mich. 447; Treviclick v. Mumford, 31 Id. 467; Dean v. Adams, 44 Id. 117.

An action in assumpsit upon the common counts’will lie to recbver the purchase price paid, where the-vendor has no title or there has been a failure of consideration. This is not a suit for breach of contract, in whichi the declaration must be special, but where the defendant'has received the entire consideration for personal property,, to which he represented that he had title, but to which in fact he had not. In such case the equitable action for money had and received will lie. Johnson v. Insurance Co., 39 Mich. 33; Barnard v. Colwell, 39 Id. 215; Child v. Pierce, 37 Id. 155; Wright v. Dickinson, 67 Id. 580; Ripley v. Case, 78 Id. 126; 4 Wait, Act. & Def. 500.

It is insisted that there was no evidence that defendant’s title to the land from which the timber was cut was-not good. The reply to this is that he was tendered his-day in court to test this very question, in a suit where-his title was involved, and where it was his duty to appear- and defend it. Having failed to do so, the judgment in. that suit concludes him. Axford v. Graham, 57 Mich. 422.

It is claimed that there was no legitimate evidence-that defendant was notified by plaintiff of the pendency of the suit. Plaintiff testified that he notified the defendant, •by registered letter sent to him at Port Huron that the trial was coming off. He then offered in evidence a notice dated July 6, 1891, which was full and explicit as to the pendency of that suit. This was objected to as immaterial, irrelevant, and incompetent under the declaration. No exception was taken to the ruling, which of itself precludes the raising of the question in this Court. But no such objection as is now made was raised upon the trial, and therefore cannot be raised here. The conclusion is irresistible that it was then understood by the witness, the court, and the jury that the notice introduced was the one sent by registered letter. The defendant did not deny its receipt.

The judgment is affirmed.

'The other Justices concurred.

       See Adams v. Watkins, 103 Mich. 431.


author: McGrath, C. J.

text:
    Julius W. Chapin et al. v. Peter F. Dodds, Presiding Judge of the Montcalm Circuit Court.

      Fraudulent conveyances — Bill by assignee of insolvent debtor— Venue.

      1. Under How. Stat. § 6612, which provides that every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated if the subject-matter is local, a bill by the assignee of an insolvent debtor to set aside as fraudulent certain conveyances of lands made by the assignor must be filed in the county where the lands, or some portion thereof, are situated.
    2. It was not intended by 3 How. Stat. § 8749, which provides that the circuit court in chancery in the proper county shall have supervisory power of all matters, questions, and disputes arising under an assignment for the benefit of creditors, to repeal How. Stat. § 6612, or to divest other circuit courts of equitable jurisdiction when the subject-matter is local.

      Mandamus.

    Argued January 29, 1895.
    Granted February 26, 1895.
    Relators applied for mandamus to compel respondent to set aside an order overruling a plea to the jurisdiction of the court. The facts are stated in the opinion.

      W. O. Webster and F. A. Miller, for relators.

      Thomas F. MoGarry, for respondent.
   McGrath, C. J.

Clarence W. Chapin and Merrick W. Chapin, copartners as C. W. Chapin & Co., doing business at Stanton, Montcalm county, assigned to one Gorham. Afterwards Gorham, as such assignee, filed a bill in the circuit court for the county of Montcalm, in chancery, against relators, residents of Ingham county, to set aside as fraudulent certain conveyances of land in Ingham county, made by the assignors in March, 1893, to relator Julius W. Chapin. Belators afterwards filed a plea setting forth that the circuit court for the county of Montcalm, in chancery, was without jurisdiction to hear and determine said matter, which, coming on to be heard, was overruled. This is an application to compel the circuit judge to set aside the order overruling said plea, and to dismiss the bill.

The writ must be granted. The statute provides that every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local. How. Stat. § ■6612. It has frequently been held that under this statute bills in equity affecting interests in real estate must be filed in the county where the lands, or some portion of them, are situated. Godfrey v. White, 43 Mich. 171; Krolik v. Bulkley, 58 Id. 411; Rankin v. Rothschild, 78 Id. 10.

It clearly was not intended by 3 How. Stat. § 8749, to repeal the foregoing section, or to divest other circuit courts •of jurisdiction in chancery when the subject-matter is local. In Edwards v. Symons, 65 Mich. 348, it was expressly held that this statute does not vest exclusive jurisdiction in that •court to try and determine the claims of third persons to property in the hands of the assignee; that such court may dispose of such claims where the parties are willing and voluntarily subject themselves to its jurisdiction; but that 4he right to bring an action against the assignee for property wrongfully taken or. converted must exist and remain in the law court, where a jury can be impaneled, if desired, to determine the merits of the controversy.

In Kittridge v. Circuit Judge, 80 Mich. 200, it was held that the proceeding was subject to transfer to another circuit, under How. Stat. §§ 6495-6502.

In Southern Mich. Nat’l Bank v. Byles, 67 Mich. 296, the question involved was the order of distribution by the assignees.

In Smith v. Circuit Judge, 84 Mich. 564, and in Re Smith’s Appeal, 86 Id. 149, the court had ordered a sale of certain of the assigned property, and Smith had filed a bill elsewhere attacking the assignment. In the last two-cases this Court held that the matters were exclusively within the supervision of the court obtaining jurisdiction of the assignment proceeding. The same would be true in any case, without reference to the particular statute, where a receiver had been appointed.

The mandamus will issue as prayedf

The other Justices concurred.


text:
    Rouse, Hazard & Company v. Joseph W. Donovan, Circuit Judge of Wayne County.

      Limited partnership associations — Execution against members— Constitutional law — Construction of statutes—

      Due process of law.

    1. How. Stat. § 2366, which provides that, upon the return unsatisfied of an execution issued against the property or effects-of a limited partnership assoeiation, an execution may issue against any of the members of the association to the extent of the portions of their subscriptions, respectively, in the capital of the association not then paid up, is not in conflict with the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law.
    2. The entry of a motion based upon the flies and records in the gase, and upon an affidavit. setting forth the organization of the association, the rendition of the judgment, the issuance of the execution, its return unsatisfied, the amount of the capital stock of the association, the amount paid in by each member, and the amount remaining unpaid, together with service upon the association and each of its members of a copy of said motion and affidavit, with notice of hearing, constituted “ due process of law.”
    3. The following propositions are summarized from the opinion of Mr. Justice Grant:
    a — The decisions of the court of last resort of a state, sustaining the validity of a statute in its entirety, are entitled to great respect by the courts of sister states when called upon to pass upon the validity of a provision in a statute similar in all respects to that of said state, and in most cases are held to be controlling when the law has been enacted after the making of said decisions.
    b — Where said decisions were rendered after the passage of the statute in the other states, it cannot be said that their legislatures adopted the construction given to it by said decisions.
    e — The due process of law required by the Constitution means that notice or summons by which a party is tendered his day in court, with a right to frame an issue and be heard before a judgment can be rendered or execution issued which shall take away his liberty or property.

      Mandamus.

    Argued January 29, 1895.
    Granted February 26, 1895.
    Relator applied for mandamus to compel the respondent to vacate an order denying its motion for the issuance of an execution against the individual members of a limited partnership association, under How. Stat. § 2366. The facts are stated in the opinion.

      Bowen, Douglas & Whiting (Otto Eirchner, of counsel), for relator.

      Russel & Campbell, for respondent.
   Grant, J.

The relator, a foreign corporation, recovered judgment against the Detroit Cycle Company, a limited partnership association, for $1,705.50-and costs, being for goods sold. The cycle company was organized under chapter 79, How. Stat. Execution was issued, and returned nulla bona. The plaintiff then moved the court for an order directing execution to issue against the individual members of the defendant to the extent of the portions of their subscriptions, respectively, in the capital of the association not paid up. The motion was based upon the files and records of the cause, and upon an affidavit thereunto attached, which set forth -the judgment, the organization of the defendant, the issuance .of execution and return, and a copy of its articles of association, showing that the association consisted of three members; that the capital stock was $10,000, subscribed for in equal amounts by each of its members; that $1,000 was paid in by each at the time of the organization; and that the balance of the capital, $7,000, was to be paid from time to time, as needed. The affidavit further alleged that subsequently each member paid in $500, and that the balance of the capital had not been paid; that the defendant had mortgaged all its property to one creditor, and that each member had executed a note to the defendant for the balance of his unpaid subscription, and had then turned these notes over to that creditor, with the agreement that they were not to be paid; that such action was in fraud of other creditors, who were entitled to the amount of the unpaid capital to apply upon their debts. A copy of this motion and of the affidavit, with notice of hearing, was duly served upon the defendant association and each of its members. These members appeared specially at the hearing of the motion, and protested against its consideration by the court, because section 2366, How. Stat., which provides for the issuing of an execution against the individual members, is unconstitutional and void, in that it violates section 1 of the fourteenth amendment to the Constitution of the United States, and section 32 of article 6 of the Constitution of this State, both of which provide that no person shall be deprived of life, liberty, or property without due process of law. The judge sustained this contention, and denied the motion. Relator thereupon applied to this Court for the writ of mandamus to compel the vacation of this order made by the respondent.

The section upon which the question arises reads as follows:

The members of any such partnership association shall not be liable under any judgment, decree, or order which shall be obtained against such association, or for any debt- or engagement of such company, further or otherwise than is hereinafter provided, that is to say: If any execution or other process in the nature of execution, either at law or in equity, shall have been issued against the property or effects of the company, and if there cannot be found sufficient thereof whereon to levy or enforce such execution or other process, then such execution or other process may be issued against any of the members to the extent of the portions of their subscriptions, respectively, in the capital of the association not then paid up: Provided always, that no such execution shall issue against any member except upon an order of court or of a judge of the court in which the action, suit, or other proceeding shall have been brought or instituted; and the said court or judge may compel the production of the books of the association, showing the names of the members thereof, and the amount of capital remaining to be paid upon their respective subscriptions, and from them or other sources of information ascertaining the truth in regard thereto, and may order execution to-issue accordingly; and the said association shall be and it-is hereby required to keep a subscription list book for that purpose, and the same shall be open to inspection by the creditors and members of the association, at all reasonable times: Provided, that nothing herein contained shall be construed to exempt the members of such partnership association from individual liability for all labor performed for the association.”

Joint stock companies, similar in character to those authorized by the statute of Michigan, were early organized in most of the states, and were recognized as lawful without legislative enactment. Their existence and methods were early modified and controlled by statute. An act, similar in character, was passed by the legislature of New York in 1849. Pennsylvania, in 1874, enacted the first law in this country for the organization of limited partnership associations. In 1877 the Legislature of Michigan passed an act similar in all essentials to that of Pennsylvania. It is almost an exact reprint of it. The Pennsylvania act first required the capital stock to be paid in cash. It was afterwards amended so as to permit contributions to be made in real or personal estate. Virginia, New Jersey, and Ohio enacted the same law in 1875, 1880, and 1881, respectively. In Pennsylvania alone does the law appear to have come before the court of last resort for construction. The supreme court of that state in many decisions has sustained its validity in its entirety, and has expressly passed upon the question now before us. Such decisions are entitled to great respect by the courts of sister states, and in most cases are held to be controlling when the law has been enacted after the construction placed upon it by the court of that state. The following are the leading cases in Pennsylvania sustaining the act: Bement v. Machine Co., 12 Phila. 494; Maloney v. Bruce, 94 Penn. St. 249; Lauder v. Tillia, 117 Id. 304; Lauder v. Logan, 123 Id. 34; Cox v. Watts, Twells & Co., 157 Id. 93. All the decisions of that state were rendered after the passage of the act in Michigan, and therefore it cannot be said that the Legislature adopted the construction which that court has given.

• The decision in the case now before the Court must be reached with the well-recognized principle in view that—

“ The power of declaring laws unconstitutional should be exercised with extreme caution, and never where serious •doubt exists as to the conflict. In cases of doubt, every possible presumption, not clearly inconsistent with the language and the subject-matter, is to be made in favor of the constitutionality of the act.” Sears v. Cottrell, 5 Mich. 259, and authorities there cited.

The due process of law required by the Constitution means that notice or summons by which a party.is tendered his day in court, with the right to frame an issue and be heard before a judgment can be rendered or exe•cution issued which shall take away his liberty or property. This constitutional provision was “intended only to protect persons from being deprived of their property without their ■assent unless by due process of law.” The same objection was raised to an entry of judgment upon an appeal bond against the sureties without notice to them; but it was held that the bond should “be read in all respects as if dhe whole of the statute in reference to the appeal, the bond, and mode of entering up judgment upon it were Tecited at large in the bond.” Chappee v. Thomas, 5 Mich. 53, 59. So the summary seizure upon a warrant, without a suit, of the property of a defaulting city treasurer and his sureties was held not to have been made without due process of law. Weimer v. Bunbury, 30 Mich. 201. This was upon the ground that the warrant was an administrative, and not a judicial, process. An able and instructive •discussion by Mr. Justice Cooley on the meaning of due process of law will there be found.

It appears to be conceded that if, under this statute, -the members of the association are entitled, as a matter -of right, to their day in court in a proceeding where the jssue of fact may be framed and determined, the notice given is due process of law. But it is insisted that the .statute makes no provision for a trial, and it is left to the court’s discretion to give one. This point was expressly decided in Lauder v. Tillia, supra, in which execution was issued against the members without notice to them. The court held that, when the property of the association was exhausted, the court should subrogate tbe creditor to' its demands against its members for unpaid subscriptions; that the association was not in position to show cause for its debtors; and that the rule to show cause why execution should not issue should be served upon the members.

That the creditors of such associations are entitled to-the unpaid subscriptions is too clear for argument. The proceeding is analogous to that authorized by statute, whereby the judgment creditor may summon his judgment debtor or other persons before the court, after return of an execution nulla bona, to disclose property subject to an execution. The proceeding against the members in the original suit, and in the court in which judgment has-already been rendered against them in their collective capacity, is ancillary to that suit and judgment. By their own voluntary act in organizing they have read the statute into their articles of association, and have solemnly agreed with their creditors that execution may issue against their unpaid subscriptions. The issue to be determined by the court is simple, viz., how much, if any, of their subscription is unpaid? The statute clearly contemplates and provides for an investigation by the court, for it is authorized to compel the production of the books, and to ascertain the truth from other sources of information. The court has jurisdiction and is clothed with all the machinery necessary to frame the issue and afford a trial with all the incidents of a judicial proceeding. What other course should be pursued? The creditors are certainly not without remedy, for this would result in the accomplishment of a gross fraud. Should they resort to a court of equity? No such course is provided by this statute, and all parties would still be in the same court, and before tbe same-judge, and with the same issue. Is there any objection or lack of power in the Legislature to authorize the court of law to determine the question? We can see none. We think it the obvious purpose of the statute to avoid an-expensive proceeding in chancery, which might necessarily result in the appointment of a receiver. It must be presumed that the Legislature understood that it was conferring this power upon a court already equipped with the necessary machinery to bring the parties before it and to adjudicate their rights.

The learned counsel for the respondent cite and appear to rely mainly upon Parsons v. Russell, 11 Mich. 113, and Risser v. Hoyt, 53 Id. 185. It is unnecessary to review these decisions at length. We think the distinction between them and the case at bar is apparent. In Parsons v. Russell the boat and vessel law was held unconstitutional and void, because it provided that a vessel could be seized and sold upon the mere assertion of a ' debt, without any proof to substantiate the claim before a judicial tribunal, and without any judgment or decree allowing the sale. In Risser v. Hoyt, Act No. 193, Laws of 1883, to prevent debtors from giving preference to creditors, etc., was held unconstitutional for many reasons. It was held that the act provided for no judicial proceedings whatever, nor for any adjudication upon the allegations of the petition filed. Three opinions were written, in but one of which was any reference made to the point that the act provided for the taking of property without due process of law.

In the present case the members of the association, through the suit against it, have had their day in court to test the relator’s claim, and judgment has been duly entered. The relator is entitled to a levy upon all the assets of the association and to a sale thereof in satisfaction of its judgment. The subscriptions of the members are a part of such assets, which they are legally and morally bound to contribute. The statute and their own solemn agreement have provided a simple method by which such assets can be reached. The proceedings taken by the relator were such as are contemplated by the statute, and constitute due process of law.

The writ of mandamus must issue.

The other Justices concurred.


author: Hooker, J.

text:
    George D. Williams and Charles H. Williams v. William C. Robb.

      Sale — Severable contract — Acceptance—Estoppel—Refusal to receive goods — Resale by vendor — Damages—Evidence.
    1. A contract for the shipment of 15 car-loads of potatoes, while entire in the sense that either party has a right to full performance, is severable where it clearly appears that the shipments were to be made in car lots, to be paid for as received.
    2. The sale of the potatoes having been made without a distinct warranty that they should be of the kind and quality ordered, their acceptance by the vendee, after an opportunity for inspection, estops him from claiming damages for alleged defects therein; citing Paving Co. v. Gorman, 103 Mich. 403.
    8. An excessive freight rate was charged upon some of the cars, which, with the accompanying draft for the purchase price, amounted to more than the price agreed to be paid. On discovering this, the vendors agreed to pay the excess in freight, and deliver the potatoes for the agreed price. And it is held that, if this was done within a reasonable time, the vendee should have received the potatoes.
    4. Two car-loads of the potatoes went astray, and the vendors thereupon arranged to supply from the local market the deficiency thus caused. And it is held that it is not important where the cars went; that the agreement was to deliver the potatoes where the vendee resided, and, if the vendors had the potatoes there, it was no concern of the vendee how or where they got them, or how many cars went astray.
    f>. An instruction that the plaintiffs could not recover unless the jury should find that they tendered potatoes of the agreed quality and in the agreed quantity, within a reasonable time, and for the agreed price, at the city where the vendee resided, was as favorable a charge as the defendant was entitled to.
    ■8. The vendors, on the refusal of the vendee to receive a portion of the potatoes, sold them at the best price obtainable, and sued the vendee for damages for his refusal to receive the potatoes. And it is held that, in case of a recovery, the measure of damages would be the difference between the contract price and the market value of the potatoes.
    ’7. Evidence that the vendors sold the potatoes for the highest, price obtainable was admissible, and, if true, furnished a most satisfactory indication of the market price, and might, if an immediate sale was necessary to avoid loss, have justified a verdict for said difference, although the potatoes were sold below the market value.
    Error to Wayne. (Frazer, J.)
    Argued January 31, 1895.
    Decided February 26, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      George X. M. Collier, for appellant.

      Bowen, Douglas & Whiting, for plaintiffs.
   Hooker, J.

The defendant, a dealer in Detroit, contracted for the delivery to him of 15 cars of potatoes. The 'contract was made by wire, and. consisted of the following telegrams:

“Detroit, July 7, 1892.
“Name lowest, five cars choice Eose and five Ohilies, delivered Detroit.
“W. C. Eobb.”
“Norfolk, July 7, 1892.
“Will sell five cars potatoes, delivered Detroit, two-twenty bbl., mostly Rose. Will ship as soon as possible. If wanted, wire quick.
“Williams Bros.”
“Detroit, July 7, 1892. “Ship eight quick. Wire numbers and route.
“W. C. Robb.” “Detroit, July 8, 1892.
“Ship potatoes via Mich. Central, at Toledo.
“W. O. Robb.” “Norfolk, July 8, 1892.
“Ship two cars C. and 0., three cars Penn, railroad. Will try and ship some to-morrow. Draft with bill lading.
“ Williams Bros.”
“Detroit, July 9, 1892.
„ “ Make our order fifteen cars. Ship four or five a day. We will pay drafts. Reference Preston National Bank.
“W. O. Robb.” “Norfolk, July 9, 1892.
“Ship five cars yesterday, same to-day. Ship balance Monday. Draw draft for amt.
“Williams Bros.” “Norfolk, July 11, 1892.
“Shipping four cars to-day. Must we ship the other-car Wednesday? Answer.
“Williams Bros.” “Detroit, July 11, 1892.
“Suit yourself. Wire if you ship.
“W. C. Robb.” “Norfolk, July 13, 1892.
“Shipping car potatoes to-day; last contract.
“ Williams Bros. ”

Two cars arrived in due season, and were unloaded by the defendant, plaintiffs'’ sight draft, being paid for the-purchase price.

The following correspondence by wire and letter passed' between the parties:

“ Detroit, July 15, 1892.
■ “Two cars unloaded. Stock runs poor; lots rotten. Can’t pay drafts till unloaded. We bought delivered.
“W. O. Robb.”
“Norfolk, Va., July 15, 1892.
“Pay drafts. All rotten potatoes turn over to D. O. Wiley & Co. They will pay for them, or you can draw on us for difference. Answer.
“Williams Bros.” “Detroit, July 16, 1892.
“Will pay drafts, two dollars barrel. Sell for your acct., if not willing take our word for poor stock. We can buy plenty. Wire quick.
“W. C. Eobb.” “Detroit, July 17, 1892.
“Will pay drafts, two dollars bbl. Wire bank to that effect. First two cars unloaded; worth no more; too much poor stock.- Potatoes here subject to your order. Wire quick. Weather hot. Should be unloaded quick.
“W. C. Eobb.” -
“July 17, 1892.
“If convenient, meet me Hotel Normandie, arrival Mich. Central to-night.
“0. H. Williams.” “Detroit, Mich., July 18, 1892.
“W. C. Eobb, Esq.,
“ Detroit, Mich.
“Dear Sir: You make objection to receiving the potatoes shipped you under our contract by telegram of recent date, which called for fifteen car-loads, two of which you have already accepted and paid for, on the ground that the potatoes at the Michigan Central yard are not in merchantable condition. Being able to supply any deficiency in the potatoes shipped, at once, we herewith offer to ■deliver, as per contract, thirteen car-loads of potatoes of quality contracted for. Please signify, on receipt of this, your conclusion as to whether you will accept or reject this offer. In case of your failure to accept, and owing to the perishable nature of the goods, we shall have the potatoes sold at the best market price, crediting you-with proceeds thereof.
“Yours truly, Williams Bros.”
“ Detroit, July 18, 1892.
Williams Bros.
Gentlemen: Your favor of this date to hand. We are ready at all times to carry out our contracts. The potatoes at depot are not such stock as we bought; conseqnently will not accept them. We did take two cars to store, they seemingly all right on top; bnt, when we began to empty them, found that they were a very inferior lot,, being small in size, badly decayed, and not merchantable.
“Yours truly, W. O. Robb.”

One of the plaintiffs went to Detroit, and, finding that, all of the potatoes contracted for except two cars had arrived, arranged with a local dealer to supply a sufficient quantity of potatoes to make good any deficiency that might exist by reason of the non-arrival of the two cars- or defects in any of the potatoes. He then saw the defendant, and offered to deliver to him the full amount of potatoes ordered. The defendant refused to accept them, whereupon the plaintiffs sold the potatoes for the best-price obtainable, and this action was brought.

The plaintiffs claimed damages for the defendant’s refusal to accept the potatoes. The defendant sought to' recoup for alleged defects in the two car-loads of potatoes' •received. The coúrt instructed the jury that, by receiving, the two car-loads after an opportunity for inspection, the: defendant accepted the same; and stated, further, that, unless the plaintiffs delivered the requisite number of' potatoes called for by the contract within a reasonable time, and at the price agreed upon, the defendant was. under no obligation to receive the same, but that, if they offered to deliver the same within a reasonable time for such price, after having arranged to procure the necessary quantity to supply defects, the defendant was bound to receive the same, and in such case, if he refused to accept them, the rule of damages would be the difference between the contract price and the market value of these goods in Detroit. The jury found a verdict for the plaintiffs, and the defendant appealed.

The contract was severable. Although it contemplated the delivery of 15 car-loads of potatoes, and was therefore, entire in the sense that either party had a right to full performance, it was the manifest intention of the parties that the shipments were to be made in car lots, which were to be paid for as received. The defendant’s testimony shows this to have been his understanding. The defendant had an opportunity for inspection, and, unless there-can be said to have been a distinct warranty that the-potatoes should be of the kind and quality ordered, he-should have refused to receive them. The distinctiom between a condition precedent and a warranty was recently-discussed in the case of Talbot Paving Co. v. Gorman, 103 Mich. 403, and need not be repeated here. • The circuit judge was right in holding that he could not claim damages for defects in the two car-loads received. ■

The testimony shows that two car-loads went astray,, being sent to Chicago by mistake of the railroad companies. It also appeared that excessive freight was charged! by the roads upon some of these cars, and that, had the-defendant desired to get them, he would have been required to pay these freights, which, with the accompanying drafts, amounted to more than the agreed price. The-defendant claims that the plaintiffs were not authorized to ship the potatoes to themselves, sending draft to bank for amount less freight, with bill of lading attached, to-be surrendered on payment of the draft. As already intimated, we think this last claim is refuted by the defendant’s own testimony, while he made no complaint about excessive freights, if, indeed, he knew-about it. He declined to receive the potatoes upon other grounds, and apparently never took the trouble to look at them or ascertain anything about the charges. The plaintiffs discovered it, and offered to pay this excess, and to deliver the potatoes for the price agreed upon. If this was done within a reasonable time, as the jury seem to have found that it was, the defendant should have received them. Nor is it important where the two cars went. The agreement was to deliver the potatoes in Detroit. If the plaintiffs had the potatoes there, it is no concern of the defendant how or where they got them, or how many cars went astray, or where they went.

The court instructed the jury that the plaintiffs could mot recover unless they tendered potatoes of the agreed ■quality and quantity, within a reasonable time, and for the •agreed price, at the city of Detroit, which was as favorable a charge as the defendant was entitled to. The jury having found this state of facts, it is a complete answer to the claim that the ■ defendant was entitled to damages for the non-delivery of the 13 cars, upon the claim that he could have gotten $2.50 a barrel for the potatoes if they had arrived earlier. It is therefore unnecessary to consider the questions raised upon the refusal of the court to admit evidence to show that the market was higher before their arrival.

The jury having found that the plaintiffs were entitled to recover, the measure of damages was correctly stated to be the difference between the contract price and the market ■value of the potatoes. It was competent to show that the ^plaintiffs sold the potatoes for the highest price obtainable. If true, it furnished a most satisfactory indication of the market price, and might, if an immediate sale was necessary to avoid loss, have justified a verdict for the difference, although sold below the market.

The market report of potatoes by the barrel from retailers was properly excluded. The question here was what such dealers paid for potatoes, not what they sold them for.

There are many other assignments of error that we cannot mention specifically. We have examined them, and think there are none that should reverse the case.

The judgment will therefore be affirmed.

McGrath, C. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.


author: Long, J.

text:
    Jacob Staffon v. Thomas R. Lyon et al.

      Public buildings — Failure to require bond from contractor— Material men.

    A manufacturer of brick who supplies a contractor, who has agreed to furnish the materials and erect a public building at an agreed price, with the brick used in the building, cannot be classed as a subcontractor, so as to deprive him of the protection of 3 How. Stat. § 8411a, which makes it the duty of public officers to require from a contractor for the erection of a public building a bond for the payment of all labor and material claims.

    Error to Mason. (McMahon, J.)
    Submitted on briefs February 1, 1895.
    Decided February 26, 1895.
    Case. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      D. W. Reardon (John Galloway, of counsel), for appellant.

      M. B. Danaher, for defendants.

       For cases bearing upon the construction of 3 How. Stat. § 8411a, see Weinberg v. Regents of University, 97 Mich. 246, and note.

   Long, J.

The facts in this case are admitted. The defendants, in the year 1885, were the duly-elected officers of the school district and constituted the school board of the city of Ludington. The school district authorized the building of a schoolhouse in the First ward of the city, and the board, after advertising foh bids, let the contract for the building to the lowest bidder, Mr. John Briggs, for §6,073, The plaintiff at that time was a manufacturer of red brick. After Briggs was awarded the contract for the building, he arranged with the plaintiff to supply the brick for the building, at $6.50 per thousand. Plaintiff began delivering the brick on November 25, 1885, and. continued to deliver until he had furnished upon the-ground 89,000. The school board had a meeting in March,. 1886, at which it was voted to change from red to white-brick for the outside of the building. After this meeting, Briggs said to the plaintiff that he could not use the> brick already furnished, unless plaintiff furnished the balance required in white brick for the outside, and made the price $6 per thousand on the whole lot. Plaintiff,, accepting this change in the price, procured and began delivering the white brick, until he had delivered of these-65,086, making the total of brick delivered 154,086. The-entire brick were used in the building, and the building was completed and accepted by the school board from Briggs, under his contract, in the fall of 1886. The entire-amount received by the plaintiff for the brick was $368,. made in two payments, the last of which was made on July 31, 1886. The balance due him is $556.51. Plaintiff sought payment from Briggs, but could get nothing from him. He then saw the school officers about it, and informed them of the balance due, and that Briggs was-financially irresponsible. At this time, August 10, 1886, the school board had about $2,000 in its hands to Briggs7' credit, but the building was not then completed. It also-appears that the school officers failed to require from Mr. Briggs, the contractor, the bond provided for by Act No. 94, Laws of 1883, as amended by Act No. 45, Laws of 1885, making it the duty of the board contracting on behalf of the district to require security, by bond, for the-payment by the contractor and all subcontractors for all labor performed and materials furnished in the erection of the building. This action is in case against the defendants-for the balance due to the plaintiff for the brick furnished, and is founded upon the negligence of the defendants in. failing to require the bond from Mr. Briggs, the contractor.

On the trial the court below directed verdict in favor of the defendants. It is apparent from the remarks of the-learned judge that the reasons which moved him to give-this direction to the jury were that there was some evidence which showed, or tended to show, that the plaintiff was a subcontractor, and that, therefore, the statute did not apply, as was held in Avery v. Board of Supervisors, 71 Mich. 538. We are, however, unable to find any evidence that the plaintiff was a subcontractor. Mr. Briggs-took the contract at $6,078, and was to supply all the material for the building. The entire arrangement with the plaintiff was for brick to be delivered upon the ground at $6.50 per thousand, which was afterwards changed to $6 per thousand. It is true that some talk was had between the plaintiff and different members of the board about using his brick, and they were left a sample of the brick. He also had some talk with the different members-about a change from red to white brick, and some claim is made that it was done for the plaintiff's benefit. But this does not show or tend to show that the plaintiff stood in any other relation to the board or to Mr. Briggs than as a material man. He was furnishing the brick, not for a lump sum, as under a contract, but was to supply them as would any other material man supply the lime or sand or other articles to be used in the building, at so much per thousand, per barrel, or load. Clearly, he could not be classed as a subcontractor. The case is ruled by Owen v. Hill, 67 Mich. 49; Plummer v. Kennedy, 72 Id. 301; Wells v. Board of Education, 78 Id. 268; Weinberg v. Regents of University, 97 Id. 246.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    Job T. Reynolds et al. v. Martin L. Sweet.

      Logs and logging — Evidence—Assignment of contract — Pleading— Damages — Quantum meruit.

    1. In an action to recover the balance claimed to be due upon a contract for sawing hard and soft wood logs, the defendant, in support of his claim that a large amount of the lumber was improperly and defectively manufactured by reason of the sawing of the logs indiscriminately with the same saw, introduced a witness whose testimony was to the effect that, by sawing indiscriminately all of the logs with the same setting of the saw, good lumber could not be manufactured. And it is held that it was proper to show in answer to this, not only that it was possible to make good lumber by this way of sawing, but also that good lumber was made.
    2. A contractor under a sawing contract, after sawing and piling the lumber within the time limited therefor, and after the lumber had been received and shipped by the contractee, assigned all his right, title, and interest in, to, and under the contract to .third parties, who brought suit to recover the balance due on the contract. The defendant, who sought to recoup damages by reason of the alleged improper manufacture of the lumber, contended that, under the assignment, the plaintiffs could not recover upon a quantum meruit, for the reason that they did not stand in the place of the contractor in all respects, he having only assigned to them his right, title, and interest in, to, and under the contract; that, if they had any right of recovery, it was upon the contract; that, if there was any substantial departure from the contract, no recovery could be had, and hence the plaintiffs must recover the whole amount claimed or nothing. And it is held that, conceding that a recovery could not be had upon a quantum meruit, -there is no difficulty in the plaintiffs’ position jnd their right to recover; that they had a valid assignment of the contract, and all the right, title, and interest which the contractor had therein; that the action was brought upon the contract, upon which, under the charge of the court, the recovery was based; that the contract had been fully performed, except, as claimed by the defendant, the lumber was not properly sawed and piled; and that plaintiffs had all the rights of recovery under the contract that the contractor would have had if no assignment had been made.
    Error to Newaygo. (Palmer, J.)
    Argued February 13, 1895.
    Decided February 26, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      M. Brown and Bundy é Travis, for appellant.

      A. F. Tibbitts and Wesley W. Hyde, for plaintiffs.
   Long, J.

This action is brought to recover upon a contract originally made between Lorenzo Y. Davis and Walter F. Pumfrey and Martin L. Sweet, and assigned by Davis & Pumfrey to the plaintiffs. The contract provided that Davis & Pumfrey should cut and saw into lumber for the defendant all the merchantable red and white oak, black and white ash, hard and soft maple, birch, basswood, beech, pine, hemlock, and elm timber on certain descriptions of land mentioned. Defendant was to pay $6.50 per thousand feet for sawing, hauling, and piling all lumber, except hemlock, for which $6.25 per thousand was to be paid, and $3.25 for peeling, hauling, and piling the hemlock bark. The lumber was to be manufactured and piled in cross piles at West Troy station, each kind, length, and thickness of hardwood by itself, to be one inch thick and thicker, as defendant might direct. A scaler was to be agreed upon, and the scale made at the tail of the edger, each party paying half of scaler’s wages. The contract then provides:

“Such of the lumber as shall be spoiled in sawing (except one per cent.) shall he turned over to the first parties at the price it would have been worth if not spoiled in manufacturing, and any claims that the party of the second part may have on account of such badly-sawed lumber shall be made and settled before such lumber shall be shipped from West Troy, or else be deemed waived.”

The contract was afterwards amended so as to include hickory timber at the same price. The contract was made November 8, 1890, and was to be completed within two years from date.

Davis & Pumfrey commenced operations under the con-tract, and, plaintiffs claim, completed it in accordance with its terms. On May 19, 1891, Pumfrey assigned his interest in the contract to Davis, by a writing of that date. On October 22,1892, Davis assigned the contract to the plaintiffs ■by the following instrument:

“For a valuable consideration to me in hand paid, I do hereby assign, transfer, and set over unto J. T. Reynolds ■& Co., of Fremont, Newaygo Co., Michigan, all my right, title, and interest in, to, and under the above and foregoing ■contract, as modified.
“Witness my hand, this 22d day of October, A. D. 1892.
“Lorenzo V. Davis.”

At the time this assignment was made, plaintiffs claim there was due on the contract the sum of about $4,000.

The declaration sets up the contract and the assignments. In the notice under the plea of the general issue, •claim is made that Davis & Pumfrey did not manufacture the timber into lumber in a skillful and workmanlike manner, so as to obtain from the logs the largest percentage of the best qualities and grades of lumber, but sawed •them in such a careless, negligent, and reckless manner that a much larger proportion and percentage of the lumber therefrom had to be placed' and sold in inferior grades •than would have been the case had the proper skill been used in the sawing. It is also claimed by the notice that •the parties had waived the provision of the contract by which Davis & Pumfrey should take and pay for the lumber spoiled in sawing in excess of 1 per cent., and any •claims that defendant might have on account of bad sawing should be made and settled before such lumber should be shipped from West Troy, or else' deemed waived. On -the trial the coart charged the jury substantially that, if Davis & Pumfrey sawed the lumber as the contract pro-wides, then the plaintiffs should recover; but if, as defendant claimed, the lumber or any considerable portion of it -was badly sawed, that would not be a substantial compli.ance with the contract, and the defendant might recoup his damages. The jury returned a verdict in favor of plaintiffs, for $3,518. Defendant brings error.

While the record contains 60 assignments of error, only -two questions are mentioned or discussed in the brief of -defendant’s counsel:

It appears that defendant claimed upon the trial that .a large amount of the lumber was improperly and defectively manufactured, and that such defective manufacture was produced by sawing all kinds of logs indiscriminately with the same saw. To show this, defendant called Thomas H. Cook, who testified that it was not a proper way to manufacture lumber to saw oak, beech, maple, hemlock, .and other kinds of timber with the same setting of the -saw, as the saw would not stand up and go straight through the log. Mr. Cook did not see the lumber manufactured under the contract. To rebut this, the plaintiffs called a witness, who was asked:

What do you say as to the possibility of making good lumber when hemlock, pine, maple, beech, basswood, elm, ■and other kinds of timber are sawed promiscuously?
“A. It is possible.”

Other questions, of like import were asked and permitted to be answered, under objection. This raises the first •question suggested by defendant’s counsel.

The theory of the defendant was, in offering the testimony of witness Cook, that the lumber was not sawed in .a good and workmanlike manner, and that much of it, by reason of the sawing, was not merchantable. The testimony of Mr. Cook, however, was to the effect that, by sawing indiscriminately all kinds of logs, good lumber could not be manufactured. The reason that Mr. Cook’s testimony was admissible, if admissible at all, was that it tended to show that the lumber was badly sawed, because good lumber could not be made without sorting the logs. It was proper to show in answer to this, not only that it-was possible to make good lumber by this way of sawing, but also that good lumber was made. We are of the-opinion that the testimony was competent.

It is contended that, under the assignment from Davis, the plaintiffs could not recover upon a quantum, meruit, but that, if they had any right to recover at all, it was upon the contract; that, if there was any substantial departure from the contract, plaintiffs could not recover at all. The reason given for this claim is that the plaintiffs, did not stand in the place of Davis in all respects, because there was no assignment from Davis of anything but his- right, title, and interest in, to, and under the above and foregoing contract; ” that, therefore, plaintiffs must recover the whole amount claimed or nothing; and that, if the evidence shows any defect in the execution of the contract,, plaintiffs cannot recover. If we concede that the plaintiffs-could not recover upon a quantum meruit, we see no difficulty in the plaintiffs’ position and their right to recover. They had a valid assignment of the contract, and all the right, title, and interest which Davis had therein. The-action was brought upon the contract, and the recovery was based upon the contract, under the charge of the court. The court fully instructed the jury that the recovery, if any, must be upon the contract. It appears that the timber was all cut.and hauled to the mill, s*awed, and piled within the time limited in the contract. The defendant received the lumber, and shipped it away. The contract had been fully performed, except, as defendant claims, the lumber was not properly sawed and piled. The plaintiffs had all the rights of recovery under the contract that Davis would have had. The defendant gave notice of recoupment of damages, and was permitted to show defects in sawing, piling, etc. No claim was made that recovery could be had upon the quantum meruit, and that question need not be discussed.

The judgment must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, O. J., did not sit.


text:
    Samuel L. Crockett and Edmund J. Hoppins v. Edgar C. Bearce and The Western Beef & Provision Company.

      Findings of fact — Amendments—Landlord and tenant — Chattel-mortgage clause in lease — Suit by lessor — Damages— Unfiled mortgages.

    1. Where the findings of fact support the judgment, and the testimony as to certain matters covered by proposed amendments is conflicting, it will be presumed that the court refused the amendments because they were not warranted by the testimony.
    2. A lessee, who held under an unfiled chattel-mortgage lease, mortgaged the property covered by this clause of the lease. The mortgage was withheld from record. After the mortgage and the lease had been filed, the lessee gave the mortgagee a second mortgage upon the same property, containing a recitar tion that it was subject to the former mortgage and to the lease. And it is held that, the second mortgage being expressly subject to the lease, the rights of the lessors as creditors, to the extent of the rent which had accrued between the time of the execution and of the filing of the first mortgage, are superior to the rights of the mortgagee.

      -15. The mortgagee sold the property under the second mortgage, subject to the first mortgage. The lessors sued the mortgagee in case for depriving them of the right to take and sell the property to satisfy the amount due on the lease. The court found that the mortgages were made and used in pursuance of an agreement between the lessee and the mortgagee that they should be used to defraud the lessors of the amount ■due them for rent under the lease. And it is held that it is unnecessary, under this finding, to discuss the question raised T>y the mortgagee that the mortgage clause in the lease conveyed no present interest in the property, but was a mere naked power, and not a mortgage; that, if the mortgages were given and taken for the purpose of defrauding the lessors, they have lost their right to exercise the power and make their claim through a fraud to which the mortgagee was a party; that their right of action accrues, not by virtue of their interest in the property, but by reason of their being fraudulently deprived of a right, to their damage.

      4. The court found that the mortgagee took possession of the leased premises, and retained the same for a number of days, to the exclusion of the lessors, and awarded the lessors damages on account of such occupancy. And it is held that the lessors were entitled to compensation for such use and occupation of the leased premises by the mortgagee, and it was proper to allow them to recover for the same in said suit.
    Error to Kent. (Grove, J.)
    Argued February 14, 1895.
    Decided February 26, 1895.
    Case. Defendants bring error.
    Affirmed.
    The facts are stated in the opinion.

      Sweet & Perhins, for appellants.

      Maher & Salsbury, for plaintiffs.

       Said provision reads as follows: “And the said party of the ■second part doth hereby covenant and agree that all goods, wares, merchandise, household furniture, fixtures, or other property which are or shall be placed in or on said premises by him shall be liable, .and this lease shall hereby constitute a lien or mortgage on said property, to secure the rent due, or to grow due, on this lease.” It is further provided that, in case of default, the lessors may take possession of the property, and sell it in the same manner as in the case of a chattel mortgage, etc.

   McGrath, C. J.

Plaintiffs leased certain premises to one Fysh. The lease contained a provision that the goods and chattels placed in the premises should be liable, and this lease shall hereby constitute a lien or mortgage on said property to secure the rent due, or to grow due, on this lease.” Fysh subsequently gave a chattel mortgage for $829.50 to defendant Bearce on the aforesaid property, and ■some months afterwards Fysh gave a second mortgage to Bearce. When the second mortgage was given the lease •aforesaid had been filed in the clerk’s office, and the mort■.gage recited that it was subject to the former mortgage •and to the lease aforesaid. The goods were taken under the second chattel mortgage, sold subject to the first chatdel mortgage, bid in by defendant Bearce, and then sold at private sale by him to other parties. The plaintiffs’ •declaration is in case, and alleges plaintiffs’ right to take and sell the goods for the purpose of satisfying the amount •due them under the lease, and that defendants, well knowing the premises, and combining and conspiring with Fysh to injure and defraud plaintiffs, and to prevent them from collecting the amount so due, wrongfully entered upon said premises, and held possession of the same, and took said property, and removed and fraudulently converted the same to their own use. The court found that the terms and conditions of said lease were fully understood by the defendants at the time it was made.

Defendants insist that under the rule laid down in Holmes v. Hall, 8 Mich. 66, and Dalton v. Laudahn, 27 Id. 529, the stipulation in the lease conveyed no present interest in the property, but was a mere naked power, and mot a mortgage. The second mortgage must, however, be held to have been given subject to the exercise of the power. The first mortgage was executed March 8, 1893, and was not filed until July 17, 1893, during which time the principal portion of the indebtedness to plaintiffs accrued. Plaintiffs’ rights as creditors, to the extent of the indebtedness accruing during such period, would be superior to those of the defendants.

The court has, however, found that both of these mortgages were made and made use of by defendants in pursuance of an understanding and an agreement between defendants and Fysh that they should be used to defraud plaintiffs of the amount due to them as rent under the lease. In view of this finding, it is unnecessary to discuss the question raised. If the mortgages were given and taken for the purpose of defrauding plaintiffs, they have lost their right to exercise the power and make their claim through a fraud to which defendants were parties. The-right of action accrues, not by virtue of plaintiffs’ interest, in the property, but by reason of being fraudulently deprived of a right, to their damage. There was evidence-tending to support that finding, and we cannot disturb it.

Certain amendments were proposed to the findings, wherein the court was requested to find that the plaintiffs-agreed, for and in consideration of $50, a part of which was paid by defendant Bearce, to execute the lease without, a chattel-mortgage clause therein; that afterwards, without, the knowledge or consent of defendants, the lease was-executed, embracing said mortgage clause, and that plaintiffs agreed with Fysh that said clause was not effectual, and 'would not be enforced; that, after the filing of the-first mortgage, plaintiffs agreed, in consideration of the execution of certain notes and a mortgage to plaintiffs, upon certain real estate in Manitoba by Fysh, to execute a release in full of their claims against him, and, although said notes and mortgage were executed and held subject-only to the execution of the release, plaintiffs refused to-execute the release; and, further, that plaintiffs expressly authorized defendants to proceed to foreclose said second mortgage, and to take possession and sell the property thereunder, waiving all rights under the clause in the lease. The court refused to find as requested. Upon these questions the testimony was in conflict. The findings support the judgment. The presumption is that the •court refused to find as requested because the testimony ■did not warrant such finding. The request was not general, but was for a specific finding with defendants. A finding against them would not have availed them.

The court further found that defendants took possession ■of the premises in question, and held possession of the «ame for 12 days, and excluded the plaintiffs therefrom; and assessed damages in favor of plaintiffs, by reason of such occupancy, in a given sum. Plaintiffs were entitled to compensation for the use and occupation of the store by defendants. Such occupancy was directly associated with the other wrongs, and there is no reason why plaintiffs should be driven to a second suit to recover for such use.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


author: McGrath, O. J.

text:
    Lucy A. Gould v. Payson M. Doty.

      Findings of fact — Conclusiveness.
    The evidence in support of the findings of fact being abundant, the judgment is affirmed.
    Error to Kent. (Grove, J.)
    Submitted on briefs February 15, 1895.
    Decided February 26, 1895.

      Assumpsit. Defendant brings error.
    Affirmed.
    The-facts are stated in the opinion.

      Dunham & Presión, for appellant.

      Maynard & Chase, for plaintiff.
   McGrath, O. J.

This case was commenced in justice’s-, court for one month’s rent. The circuit judge found the facts with plaintiff, and gave her a judgment of $20. The defendant excepts to the findings of both fact and law.

No claim' is made that the findings of fact do not support the conclusion of law. The case turned upon the-contract respecting a certain room in the house, the use-of which the court found that plaintiff reserved to herself..

We find abundant evidence to support the finding, andi the judgment is therefore affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    John D. Mouat v. Fred E. Fisher.

      Mechanic’s lien — Service of notice — Acceptance—Estoppel—Unrecorded deed.

    1. Where a land-owner, prior to the expiration of the time limited by the mechanic’s lien law of 1891 for the service upon him by posting of a copy of a claim of lien, and prior to the expiration of the time within which the claimant could file a new lien, signs an acceptance of service of a copy of such claim in lieu of such posting or other notice, he is estopped from objecting that the statutory service was not made. .
    2. Where, at the time of filing a bill to enforce a mechanic’s lien, the record title to the land appears to be in the defendant, the lien cannot be defeated by the recording of a deed of the land to the defendant’s wife, which purports to have been executed!, prior to the filing of the bill.
    Appeal from Washtenaw. (Kinne, J.)
    Submitted on, briefs January 24, 1895.
    Decided March 5, 1895.
    Bill to enforce a mechanic’s lien. Defendant appeals..
    Decree affirmed.
    The facts are stated in the opinion.

      Boioen, Douglas <& Whiting, for complainant.

      John P. Kirh, for defendant.
   Montgomery, J.

This bill was filed in the circuit court for the county of Washtenaw, in chancery, to enforce-a mechanic’s lien under the provisions of Act No. 179„ Laws of 1891.

The complainant was an original contractor with the-defendant, who was the owner of the land. The last of the labor and material was furnished September 12, 1892. A verified claim of lien was filed in the office of the register of deeds October 13, 1892. On October 26, the-defendant signed a waiver of service, which read:

October 26, 1892.
“ I accept service of a copy of this notice on me in lieu? of posting the same on my building, within described, or other notice under the statute.
F. E. Fisher.”'

The court below decreed a lien in favor of complainant^ and defendant appeals.

It is claimed by defendant that, under section 6 of the-act, service of a copy of the claim of lien is necessary. This section provides, in substance, that the person filing such statement or account (referring to the statement in. the preceding section) shall serve a copy of the same upon the owner, if he can be found within the county wherein the property is situated, within 10 days after such filings but, if he cannot be found within the county within th& 10 days, a copy shall be served by posting the same in some conspicuous place on the premises within five days after the time limited for the personal service; and provides that proof of such service shall be made and filed with the register of deeds before any subsequent proceedings shall be taken for the enforcement of such lien. TJnder section 5, the claim of lien may be filed within 60 days from the date of the furnishing of the last material and labor.

If it be held that a compliance with the provisions of section 6 is necessary to continue the lien in force as against the owner, where, as in the present case, the lien is asserted by the original contractor, and no rights of subsequent purchasers intervene (a point which we do not decide), we think it is clear that it was competent for complainant to file a lien at the date of the waiver of notice by defendant (Davis v. Schuler, 38 Mo. 24); and it was also competent for him to serve the notice of lien already filed by posting at the date of the waiver, if the fact existed that previous service could not have been made personally. The acceptance of service is broad enough to justify the inference that such service was still possible to be made, and, after the defendant has thus accepted service in lieu of the statutory service, we think he should not be heard to complaim that the statutory steps were not taken, which were still open to the complainant to take. To permit such an objection to prevail would be inequitable, and the defendant should be held estopped from raising such a question.

It is claimed that defendant’s wife was the owner of the property at the time the bill was filed. But, if so, no such fact appeared of record. A deed purporting to have been executed previously was subsequently recorded, but the lien of complainant cannot be defeated in this way.

There are no other questions which we think require a discussion.

The decree of the court below will be affirmed, with costs.

The other Justices concurred.

       Act No. 199, Laws of 1893, § 6, provides that a copy of such statement need not be served where the person claiming the lien deals directly with the owner.


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    Patrick Reynolds v. George H. Reeder et al.

      Contract of employment — Construction—Salary—Time of payment — Pleading —Evidence—Variance.

    1. A contract between a firm and a traveling salesman provided that the salesman should enter upon his duties for the term of one year from the date of the contract, for the sale of $40,000 worth of goods; that he should receive $800 and his traveling expenses; that all mail orders received from his territory should be credited to his sales account; that he should receive, in addition to said salary, 1 per cent, on all goods in excess of $40,000 sold by him, and shipped and paid for; that if, at the end of the year, his sales should fall short of $40,000, 2 per cent, on the deficiency should be deducted from his salary. And it is held that the contract does not provide for monthly payments; that, in view of the fact that money was asked and furnished at intervals, the most reasonable construction is that the salesman was to be paid from time to time on the basis of goods sold and shipped, but not beyond the rate of $800 per annum and traveling expenses.
    2. Where the contract received in evidence differs so radically from the one declared upon as to be inadmissible under the special count in the declaration, and the plaintiff, on objection being made, does not choose to amend his declaration, and the findings of fact and law show that the judgment was rendered upon said special count, the judgment will be reversed, and a new trial ordered.

      Error to Kent. (Adsit, J.)
    Submitted on briefs January 23, 1895.
    Decided March 5, 1895.

      Assumpsit. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      Peter Doran, for appellants.

      Griffin, McDonald <& LaGrou, for plaintiff.
   Hooker, J.

Plaintiff brought an action for the breach of a contract of employment. The declaration alleged:

“ For that whereas, heretofore, to -wit, on the 10th day of October, A. D. 1892, at the city of Grand Rajiids, the said plaintiff, at the defendants’ request, entered into an agreement with the said defendants, whereby said plaintiff bargained to work for said defendants as a traveling salesman for the term of one year from the 10th day of October, 1892, and said defendants, in consideration of such services, agreed to pay said plaintiff for his said services the sum of $800 a year’s services, in monthly installments of $66.66 per month.
“And that whereas, the said plaintiff entered into the employment of the said defendants according to said agreement on the said 10th day of October, 1892, and faithfully and energetically performed his duty as such salesman for four months, and that said defendants on, to wit, the 18th day of February, 1893, disregarding the terms of their said contract, wrongfully and unjustly discharged said plaintiff from their employment, and that, though said plaintiff has been willing and ready, and now is ready, to continue in said employment, and carry out his contract with said defendants, yet said defendants have refused, and still do refuse, to allow said plaintiff to do so, to his damage $300; and therefore he brings suit.”

To sustain this count the following contract was offered, and, against defendants’ objection and exception, received in evidence, viz.:

“Grand Rapids, Mich., April 7, 1892.
“The following, made this 10th day of October, by and between the two undersigned parties, is fully agreed upon by both: October 10, 1892, P. Reynolds commenced the duty of salesman on the road for George H. Reeder & Company, for the term of one year from date, for the sale of 840,000 worth of their goods, consisting of boots, shoes, rubbers, felt boots, socks, and all goods dealt in by the said George H. Reeder & Company, that are shipped, to and paid for by the said P. Reynolds’ customers. He, the said Reynolds, is to receive 8800 and his necessary traveling expenses while out on the road for them. All mail orders received and filled by the said George H. Reeder & Company from the territory covered by IA Reynolds is to be placed to the credit of his sales account. He is to receive, in addition to the above-stated salary,, one per cent, on the dollar on all goods sold by him,, shipped and paid for, over and above the aforesaid 840,000. If his sales at the end of the year are less than the said 840,000, then two per cent, on a dollar is to be deducted from the amount of his salary for all that he-shall fall short of 840,000 on sales.
“George H. Reeder & Co.
“P. Reynolds.”

The case appears to have been tried upon the theory of the special count, viz., that the contract was terminated by the defendants wrongfully, and that the damage for the-month was 866.66, the amount alleged to be payable-monthly.

We think that this contract cannot be said to provide-for monthly payments. It would be much more reasonable to say that payments were to be made upon orders taken or accepted, if if; can justly be said that anything was payable before the expiration of the year. To hold that the plaintiff was entitled to one-twelfth of 8800-monthly would ignore the provision that 2 per cent, on shortage was to be deducted from his salary. The contract, does not state the time of payment, nor does it provide for paying back a deficiency; and, unless we are to assume that it is to be paid monthly from the fact that it was a. contract for personal labor, or from tbe fact that payments were made from time to time, there seems no reason that it should be given a different construction from any other contract providing for certain work by one and payment therefor by another. In such case the natural inference is that payment is to be made on completion of the work.

The brief of counsel asserts that an oral contemporaneous agreement was made that payment should be made monthly, etc., but we find no evidence of that, and need not discuss the value of such evidence were it in the record.

As to the construction said to have been given by the parties by a course of dealing under the contract, if this is a contract so uncertain in its terms as to permit such aids to the construction of a writing, there is nothing conclusive in the conduct of the parties. They do not appear to have made monthly settlements, or made and received payments monthly. Money was asked and furnished at intervals, and it is as consistent to say that such payments were considered advancements on the salary in view of sales. To our minds, the most reasonable construction of this writing is that the plaintiff was to be paid from time to time on the basis of goods sold and shipped, but not beyond the rate of 8800 per annum and expenses.

The plaintiff was allowed to recover the sum of 866.66, which the court finds his due upon the basis of 8800 a year. This contract was not admissible under the special count, for it was a radically different contract from the one declared upon, and counsel did not choose to amend the declaration when the objection was made. Hence there could be no recovery upon that count, for the reason that the proof did not support it. 1 Chit. Pl. 305, 307; Bromley v. Goff, 75 Mich. 213. As the findings of fact and law show that the judgment was rendered upon this count, we have no alternative but to reverse it and order a new trial.

Ordered accordingly.

The other Justices concurred.

       The common counts Were added.


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    In the Matter of the Petition of the Auditor General of the State of Michigan for the Sale of Certain Lands in Alcona County for the Taxes of 1889. Martha J. Benedict v. The Auditor General and Absalom Backus, Jr.

      Taxes — Proceedings against delinquent lands — Parties—Notice-Proof of publication — Jurisdiction—Opening decree.

    1. All owners of land described in the Auditor General’s petition for the sale of delinquent tax lands, whether named or not, and whether brought in by personal service of subpoena or by publication of the statutory notice, are parties to the tax proceedings; and the court may, at any time prior to the enrollment of a decree by default, entertain the petition of such an owner to alter or vacate said decree, notwithstanding the purchase of the land from the State by a third party in reliance thereon.

    2. 3 How. Stat. § 1170Í4, which provides that no tax, or sale of property for any tax, shall be rendered or held invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office, and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed, does not apply to the proof of the publication of a copy of the Auditor General’s petition for the sale of delinquent tax lands, and the notice in. relation thereto, required by 3 How. Stat. § 1170/4, to be filed before any final order is made in the tax proceedings.
    3. The printer of the newspaper in which the copy of the tax petition for the sale of lands delinquent for the taxes of 1889, and the notice relating thereto, were claimed to have been published, testified that he remembered printing a notice of the pendency of said petition; that it was published in his paper December 3, 10, 17, 34, and 81, 1891; that the proof, within a week after the last publication, was delivered to the clerk of the circuit court, and filed. The clerk testified that he did not know of any such proof being filed; that, if any was on file at the time he gave his testimony, he did not know of it; that he was not certain that any was filed, but thought it was; that he had no record showing the filing of any such paper. And it is held that, if this testimony can be held sufficient to raise a presumption that the proof was filed, the testimony of the printer did not show that any sufficient proof was filed; that it was a mere statement that notice of the pendency of the petition was published in said paper; that, even if such testimony was admissible, it fell short of showing a proper publication of the required notice.
    Appeal from Alcona. (Simpson, J.)
    Submitted on briefs January 25, 1895.
    Decided March 5, 1895.
    Petition to set aside a decree for the sale of certain lands in Alcona county for the taxes of 1889. Petitioner •appeals.
    Order reversed, and tax decree vacated.
    The facts are stated in the opinion.

      Avery Bros. <& Walsh, for petitioner.

      O. H. Smith and li. J. Kelley, for defendants.

       For cases involving questions arising in proceedings under the tax law of 1889 for the sale of delinquent tax lands, see Jenkinson v. Auditor General, 104 Mich. 34, and note.

   Hooker, J.

Martha J. Benedict, the petitioner, a resident of Port Huron for many years, filed her petition in the circuit court for the county of Alcona, asking that the decree theretofore entered by said court in the matter •of the petition of the Auditor General of the State of Michigan for the sale of certain lands for the taxes assessed thereon for the year 1889 be vacated. Upon such sale the land in controversy was purchased by the State, and later was sold to Absalom Backus, Jr., who, with the Auditor ■General, is made a party to the petition, and appeared and ■contested the claim of the petitioner in the circuit court.

The petition shows that the petitioner and others were ■owners by inheritance of a tract of land of which that in •controversy was a part, theretofore owned by her father, ■one' Kilmaster; that in the year 1889 the land was partitioned by the heirs, and she received a deed of her portion, ■said deed being dated in November, 1889; that, up to the time of said partition, the entire tract was occupied, possessed, and controlled by some of her co-owners, and she was informed and believed, when she received her deed, that all back taxes were paid, and she had no knowledge do the contrary until a short time before she filed her petition, when she learned that the land had been sold to the State for the tax of 1889. She alleges several grounds upon which she claims the decree to be invalid.

The petition fails to show how or to whom said land •was assessed for the year 1889. It does not state that petitioner had ever been informed that the taxes for the year 1889 had been paid. She received her deed several weeks before the taxes for that year could have been paid. .Apparently the non-payment was through an oversight upon her part. It remains to inquire whether the proceedings to enforce payment were regular.

At the outset, counsel for the defendants assert that -the petitioner has not sought a proper remedy. She was .a party to the proceedings, as are all owners of land described in the Auditor General’s petition, whether named ■or not, and whether brought in by the publication of the .statutory notice or by personal service. As between her .and the State, the court might at any time hear her upon petition, unless a point had been reached, when it had no .longer authority to vacate or alter its decree. A decree by default may be opened within a reasonable time on showing an adequate excuse, and this must generally be within the sound discretion of the court. Graham v. Elmore, Harr. Ch. 265; Russell v. Waite, Walk. Ch. 31; Hart v. Lindsay, Id. 72, 74; Brewer v. Dodge, 28 Mich. 359; Low v. Mills, 61 Id. 44, and cases cited; Mickle v. Maxfield, 42 Id. 313. It appears to be conceded that the case had not been enrolled, which permits a vacation of decree upon petition. Maynard v. Pereault, 30 Mich. 160; Mickle v. Maxfield, 42 Id. 313; Low v. Mills, 61 Id. 41; Barnes v. Circuit Judge, 97 Id. 212. A party is not deprived of this remedy by the fact that third parties have purchased in reliance upon the decree. Such persons purchase at. the risk that the decree may be set aside. Ritson v. Dodge, 33 Mich. 463; McGoren v. Avery, 37 Id. 120; Cook v. French, 96 Id. 525, 530.

The alleged defects relied upon are as follows:

1. That no order pro confesso was entered.

2. That no proof of publication of the statutory notice-was filed before the decree was made.

3. That no valid decree for the sale was ever made and entered, and none is of record.

4. That no certified copy of the decree was annexed to-the tax record and handed to the treasurer prior to the-sale.

5. That the decree never was enrolled.

6. That the county treasurer made no report of sale,, and none was ever filed with the county clerk.

In the absence of any allegation to the contrary, we-must assume that the land was not listed in the name of the petitioner. She did not receive her deed on partition until after the time for making the assessment. So far as-we can discover, her name may not have appeared on the-roll, and the register could not be expected to issue a. subpoena against her, and none was in fact served. In that case she would be brought in by publication, and the-first requisite would be proof of publication. But the case-fails to show any such proof. An attempt is made to> supply it by the testimony of a printer, who says:

“I remember printing a notice of the pendency of a petition of the Auditor General for the sale of delinquent taxes for 1889. They were published in my paper. The taxes of 1889 were published December 3, 10, 17, 24, and 31 of the year 1891. The proof was delivered to the clerk of the circuit court for this county, and filed. I delivered the proof within a week after the last publication. The thing that fixes the fact of my delivering that proof of publication to the register is that the publishers of the delinquent tax lists are required to secure from the county clerk a receipt that he has received the affidavit of publication, and that has to be filed with the Auditor General of the State of Michigan, and that is a part of the contract with the printers. I cannot get my pay without filing that receipt. I got my pay.”-

Section 1170/’4, 3 How. Stat., provides that “proof of the publication of the notices herein required shall be filed before any final order is made.” The clerk testified that he did not know of any proof of publication being filed, and, if any was on file at the time he gave his testimony, he did not know of it. He was not certain that any was filed. He thought there was, but did not know, and had no record showing the filing of any such paper.

If this testimony could be said to be sufficient to raise a presumption that it was filed, the testimony of the printer did not show that any sufficient proof was filed. It was a mere statement that notice of the pendency of the petition was published in his paper. Even if such testimony was admissible, it fell short of showing a proper publication of the required notice.

It is urged that section 85 of the tax law of 1889 (3 How. Stat. § 1170Í4) applies, which provides that—

“No tax, or sale of property for any tax, shall be rendered or held invalid by showing that any record, statement, certificate, affidavit, paper, or return cannot be found in the proper office; and, unless the contrary is affirmatively shown, the presumption shall be that such record was made, and such certificate, statement, affidavit, paper, or return was duly made and filed."

In our judgment, this section does not apply to an affidavit of publication in the proceeding to adjudicate the tax delinquent.

The record fails to show jurisdiction, and the decree must be vacated; the order of the circuit court denying the prayer of the petition being reversed, with costs to petitioner.

The other Justices concurred.