text:
    KUPFER v. MICHIGAN CLOTHING CO.
    1. Sales — Go ods — Quality—Defects—Return.
    Where, during a correspondence between a seller and buyer of goods, with reference to some that had proven defective, the seller stated that he was willing to take back any unsatisfactory goods, if in the same condition that they were delivered, the buyer was authorized to return goods only for some reasonable cause.
    3. Same — Sale by Samples.
    Where an order for goods from samples is filled by the delivery of goods equal to the sample, the buyer is bound to be satisfied and cannot reject them for defects in quality.
    3. Same — Quality op Goods — Evidencie.
    In an action for the price of goods sold by sample and rejected by the buyer, without inspection, because of alleged defects in quality, it is error to allow the jury to find that defendant had a right to reject them because of the unsatisfactory character of other goods bought of plaintiff, where there is no evidence that the goods were similar in quality.
    4 Same — Inspection—Satisfaction.
    An agreement that goods sold shall prove satisfactory necessarily implies a reasonably prompt inspection on the part of the buyer, where no period of time is specified.
    5. Same — Rejection—Burden op Proop.
    Where goods were sold under an agreement that they should prove satisfactory, the burden is on the buyer to show that goods rejected were legally unsatisfactory.
    6. Same — Quality of Goods — Evidence.
    A buyer cannot establish his right to refuse acceptance of goods sold under an agreement that they should be satisfactory by merely showing that other goods received under similar circumstances were unsatisfactory.
    7. Same — Return—Subsequent A5ts of Ownership.
    Where, after a buyer has returned goods as unsatisfactory, and notified the seller that the goods are refused and are at the seller’s risk, he again orders the railroad company holding the goods to return them to him, such direction constitutes an acceptance of the goods.

      Error to Ionia; Davis, J.
    Submitted June 23, 1905.
    (Docket No. 65.)
    Decided September 19, 1905.
    Assumpsit by Henry Kupfer and Harold W. Kupfer, copartners as Henry Kupfer & Co., against the Michigan Clothing Company for goods sold and delivered. There was judgment for defendant, and plaintiffs bring error.
    Reversed.

      Knappen, Kleinhans & Knappen, for appellants.

      B. A. Hawley, for appellee.
   Blair, J.

Plaintiffs are dealers in corduroys, and this action was brought to recover for certain corduroys sold to defendant under a contract entered into by correspondence. On December 1, 1899, one Costuma, a salesman of plaintiffs, sent to defendant a full list of samples of corduroys ; each sample being numbered to denote its quality. All orders thereafter given by defendant were by such numbers. On December 28, 1899, defendant sent in an order for some 12,000 yards, which was not accepted in terms on account of the times specified for deliveries. After some further correspondence, defendant soon after, January 22d, 1900, sent in an order as follows:

“You can ship us 2 pcs. of the No. 920. Wish you would send some No. 940 at once, too.”

This order was filled, and nine further invoices were afterwards shipped to defendant. All invoices, up to and including the one of April 16th, were paid. The invoices of June 11th and July 27th were returned and accepted by plaintiffs. The invoices of May 1st, 12th, and 18th, and June 19th, were returned by defendant. Plaintiffs refused to receive them, and it is for their price under the contract that this action is brought.

Prior to January, 1900, defendant had never had any trouble with plaintiffs’ goods. During January and February of 1900, and subsequent months, clothing manufactured from plaintiffs’ cloth was shipped back to defendant by its customers. On February 8, 1900, defendant by letter called plaintiffs’ attention to that fact, saying:

“We have quite a few complaints on No. 920 fabric. Should this be so ? ”

On February 10, 1900, plaintiffs replied:

“As far. as we know, the 920 quality is fully up to standard, and we are selling this cloth largely, and have never had any complaints regarding them. We cannot, therefore, understand why those delivered to you should not have been all right.”

On March 5, 1900, defendant wrote to the plaintiffs as follows:

“We are being flooded lately with complaints regarding corduroy garments made from your goods. Until the past sixty days we never had any complaints to speak of, but lately we are receiving them very often. We incline to the opinion that they are just. We inclose you samples of the letters, and also send you samples of garments returned.”

On February 28, 1900, the defendant also wrote the plaintiffs as follows:

“Your goods with us are turning out in bad shape. We inclose you a sample batch of letters, and send you by express a sample lot of trousers. Please say to us how this seems to you.”

At the time of sending the letters of February 28th and March 5th, defendant inclosed sample letters from retail customers, and also sent by express samples of garments returned. The trouble with the corduroys was that they were tender. The most of the goods that were returned were made up out of qualities 940, 950, 955, 960, and 965. On May 23, 1900, Eeynolds & Co. returned one dozen pants, $40; on July 1st, Schmidt & Son returned eight pair of pants, $14; on July 13th, L. Habercorn returned five pair of pants, $10; on November 19th, C. A. Thum returned two dozen pairs of pants, $50. On account of the defective quality of plaintiffs’ cloth, defendant lost customers, and some customers deducted from the amounts that were due for defective goods that were not returned at all. The garments that were returned had been manufactured out of tender cloth, and were of no value, and were of the better grade of goods, from 940 to 965.

On March 7th plaintiffs wrote defendant, saying:

“ Please let us know just what your claim is, giving, if possible, piece number of the pieces from which the damaged garments were made, and we will submit the same to the mill.”

On March 10, 1900, defendant replied to plaintiffs’ letter of the 7th inst. as follows:

“We can’t give the piece numbers from which goods were cut. Neither do we know how many goods are out that will be returned to us. We can’t cut these goods if they are going to turn out in this way. It would soon ruin our trade completely. The only way, we think, to be fair, would be to keep a record of goods on which we have to make allowance, either submitting to you the garments returned or else the correspondence to you. While it is a serious matter to us, we think we ought to be made right for our actual loss. We have got to have cords that we can fully guarantee.

On March 12th plaintiffs wrote to defendant, as follows:

“ Henry Ktjpfer & Co., Importers, etc.
“ All claims must be made within five days after receipt of goods. No claims allowed after goods are cut or sponged.
“ March 12, 1900.
“ Michigan Clothing Co.,
“Ionia, Mich.
Gentlemen: We have to hand your favor of the 10th inst. and contents of same are duly noted. We have gone into the matter of an allowance on the corduroys, which you claim are tender, with the mill, and the outcome is that they, claiming that the goods are not tender and are fully up to the standard, will make no allowance whatsoever.
“The main cause for dissatisfaction, judging from the specimen trousers which you sent us, seems to be that the buttons rip out, tearing the corduroy with them. The three pairs of trousers which show this give every evidence of having been worn a long time; but, aside from this, had they been made up in the manner in which it is customary to have these, i. e. with a cross top band, we do not think that this would have occurred. As to the pair in which the seat has been ripped, this has the appearance of having been done with the wanton intent of tearing it, and there is no material, and especially no corduroy, which will not rip after once being started, in the manner which this evidently was.
“ The 920 quality is a cloth made out of selected three-ply yarn, and as far as strength is concerned it is as strong a corduroy as can be made, and as compared with goods of which you submitted a sample, and which is a very poorly made cloth, ours is a far stronger and better fabric. In conclusion, we will add that the mill which supplies our corduroy is the very best in this country, and none other can produce the finished goods which they turn out, and as every piece is carefully tested before leaving their premises, and as the trade has accepted their goods as standard, no complaints, such as you have made, are in order, and we can only say that we consider your customers unreasonably critical.
“ Very respectfully yours,
“Henry Kupfer & Co.
“P. S. Our position towards you is the same as that of the mill towards ourselves. It is our rule to make no allowance after goods are cut, unless the mill in turn indemnifies us, and we give warning to that effect by the superscription on our bill heads. You state that you must have corduroys that you can guarantee. In this connection, we would state that we sell the goods upon their merits and we can guarantee nothing. This is as liberal a scope as we are allowed, and we stand quite prepared to cancel your order if you cannot see your way to accept deliveries on this basis, and which, we may remark, is one established not only by ourselves, but by all others who handle the class of goods in question;
“We are at all times perfectly willing to take back any unsatisfactory goods, if in the same condition that we delivered them.”

On July 12th, defendant received the following letter from a customer:

“L. Habercorn & Co.,
“ Merchant Tailors and Gents’ Furnishing Goods.
“ 431 Main Street.
“Fond du Lac, Wisconsin, July 10, 1900. “Michigan Clothing Co.,
“Ionia, Mich.
“Gentlemens We have returned a pair of pants, of lot 4009. This is the fifth pair which was returned to us in that way. We are losing trade through these pants. We have five pairs of pants of that lot on hand yet. Please let us know whether we can return them or not, as we do not care to spoil our trade on account of these pants. The pair we return to you were only worn four days, and the customer wants us to return the money or get him a new pair of pants. So please let us know what we should do with them, and oblige.
“Yours truly,
“L. Habercorn & Co.
“ P. S. When will our last order be shipped ? ”
Defendant’s manager, Preston, testified:
“ When this letter of Habercorn came, this thing was keeping up, and I called the superintendent down, and told him not to unpack the last two shipments we had received from them — they hadn’t been unpacked yet — and take every whole piece of their better grade of corduroy. I ordered them to return everything we had unpacked of every whole piece of goods that were in original packages and ship them by freight to Henry Kupfer & Co., New York.
Q. Do you remember receiving a shipment that was sent on from New York on June 19th, the invoice bears date ?
“A. Yes, those had never been unpacked. They were in the boxes nailed up as they were sent by the company.
Q. What was done with these boxes of goods by you ?
“A. We delivered them to the Grand Trunk Railroad Company.
Q. Had them shipped back?
“A. Yes, sir.
“ Q. Do you remember what other goods were shipped back besides that shipment of June 19th ?
“A. I could tell from the memorandum, I guess.
Q. Refreshing your recollecti.on by the use of that memorandum, can you state what goods were shipped back?
“A. One piece 940 brown corduroy, aside from the 940 brown corduroy that was in the shipment of June 19th. We shipped them 576 yards.
“ Q. You say 940 drab.
“A. Yes.
Q. How many yards ?
“A. 76 yards.
Q. What order was that in ?
‘ ‘ Counsel for Plaintiff: What date was that returned ?
“A. Returned on the 15th of July; received by us on invoice of 1st day of May. The next is 950 drab corduroy. Defendant shipped them back 576 yards; 960 drab, shipped 153 yards, two pieces; 965 drab, shipped them 153 yards, two pieces. All of these were whole pieces; never been cut or touched; wrappers never been removed by defendant. They were in the original condition they had been received. Those numbers of yards specified were all that were returned, except the shipment of June 19th, which •was returned in full. Those were out of other shipments. * * * '
“They are folded different than most goods, they come folded in that way and over, back and forth, just like that (illustrating). They are doné up with a string, and two ribbons run lengthwise, then a paper wrapped around, then across, run twice or three times around them, in this way. After these pieces of corduroy are tied with ribbons, then paper is wrapped around each piece; then they are tied with a heavy cord. Each of these several pieces of corduroy that were returned by us were wrapped in that way and had never been opened by defendant, never cut. Defendant had some of these goods on hand that had been cut, but which were not returned because they weren’t in the original condition and weren’t covered by their offer of March 12th. Defendant only returned just what were in the original condition they received them in. The reason or cause of the dissatisfaction of defendant with these goods that were returned was they weren’t giving satisfaction to their trade. They were proving tender. Couldn’t sell them at the prices they were buying them at and sell them out, because they couldn’t guarantee them. They had to stand behind them, as those letters indicated, and could not use them, and under the offer of March 12th returned them, because they weren’t satisfactory.”

After defendant returned these goods on July 15th, defendant wrote the letter of July 15th.

“Q. Anyhow, you returned them to the city of New York?
“A. Yes, sir. .
“Q. How were they addressed ?
“A. Henry Kupfer & Company, their street address, 81 Greene street, N. Y.”
The letter of July 15th was as follows:
“Ionia, Mich., 7 — 15—’00.
“H. Kupfer & Co.,
• “New York.
Gentlemen: We are obliged to return you some of your better grades of goods, which are not proving satisfactory to our trade at the prices. We regret to do this, and ask you to charge us with freight.
“Yours,
“T. B. Preston.”
■ Among others, the following letters passed between the parties:
“July 21, 1900.
“Michigan Clothing Co.,
“Ionia, Mich.
Gentlemen: We today received a notice from the Delaware, Lack. & W. R. R. that a lot of four cases of cofduroys had arrived consigned to us, and that if not removed within 24 hours they would be stored at the risk and expense of the owner. As this notice presumably concerns you, we send it to you. We think it very much out of tha ordinary that you should venture to return such a lot of goods without first obtaining our consent and without giving us any particulars.
“ Yours respectfully,
“H. Kupfer & Co.
“P. S. The goods will remain at your disposal.”
“Ionia, Mich., 7 — 24—1900.
“H. Kupfer & Co.,
“81 Greene St., New York.
Gentlemen: Yours 21st inst. Our Mr. Preston left yesterday for a two weeks’ trip in Colorado, and as he has charge of all matters connected with your house, we ask you to kindly take the goods represented by the inclosed notice out of storage and hold for us till he returns, when he will take the matter up with you. Thanking you in advance for your kindness,
“Very truly yours,
“Michigan Clothing Co., “Benedict.”
“July 26, 1900.
“ Michigan Clothing Co.,
“Ionia, Mich.
Dear Sirs: Your favor? — 24 inst. is rec’d. The goods which you returned had already been stored and it is customary to charge not less than one-month for any lot. It cannot make any difference to you whether they are left or not during the period stated as Mr. Preston’s absence. Your risk is in case of fire, and we could not cover you in the absence of any memo, or information as to the value of the contents, respecting which we have not the least idea.
“ Respectfully,
“ Henry Kupfer & Co.”
“August 11, 1900.
“Michigan Clothing Co.,
“Ionia, Mich.
Gentlemen: We return check received in yours of the 9th inst., as we cannot accept any such settlement as you intend with it. Your refusal to take any notice whatever of our recent correspondence regarding your unjustifiable course in dumping upon us a lot of goods, which you had ordered and received about three months ago, needs no comment, nor will you expect us to fill any more orders, if we are exposed to the risk of similar treatment after we have executed them. We regret, that we must decline to take back the corduroys represented by your deduction of $503.05, and which, as business men, you must admit to be an arbitrary action on your part. At the samé time, we expect to receive the full amount of bills due by return mail.
“Respectfully,
“ H. Kupfer & Co.
“P. S. We call your attention to the fact that the goods returned are at the R. R. depot, never having been received by us. We understand that they charge high storage rates.”
“Ionia, Mich., 8 — 13—’00.
“EL Kupeer & Co., N. Y.
“Gentlemen: Yours ll’th'inst. In investigation of matter, we fail to find letter from you of acceptance of order or promise to fill same. Please advise us of the date of such letter. We were of the opinion that some numbers had not been shipped at all, and we can find no letter of explanation of why. Without going into the merits, we should think, offhand, if you took liberty to not ship part, we could take liberty of returning part. Would that be right or not ?
“Yours,
“T. B. Preston.”
“New York, August 15, 1900.
“Mr. T. B. Preston,
“Secretary and Treasurer Michigan Clothing Co.,
“Ionia, Mich.
‘ ‘ Dear Sir; Yours of 8 — 13 received. After you have received and accepted ten or more shipments on account of your order, it is rather late to quibble about having received any formal confirmation of same. You certainly do not need to be enlightened on the weakness of such a defense. The goods in controversy were in your possession some three months, and you cannot, in law or in equity, set up any claim as to this. If you so desire, we will take them out of storage and try to sell them for your account at such prices as you may limit and without charging you more than actual cost of selling for this service, but the only condition precedent to this is remittance in full for all overdue bills, and at once.
“ Yours, etc.,
“H. Kupeer & Co.”
“Ionia, Mich., 9 — 19—’00.
“EL Kupeer & Co.,
“ New York.
Gentlemen: The goods contained in the four cases of corduroy are at the Pere Marquette depot at Ionia, Mich., subject to your order: The goods contained in the same are the goods invoiced you as 7 — 12, $503.25, and the shipment made by you 6 — 19, $494.75, returned on arrival. Check herewith inclosed, $112.83, is the check sent you 8 — 9 to balance as per statement inclosed. Your failure to fulfil your part of contract and ship goods as ordered made it proper for us to return portion of goods unsatisfactory to us. This will close all correspondence on our part.
' ■ “ Yours,
“T. B. Preston.”
The goods in question were ordered back to Ionia through the instrumentality of the defendant, by the following order:
“ Ionia, 9 — 11, B.
“Dawle: Please have shipment four cases corduToy for Kupfer & Company, New York, 81 Greene Street, covered by Ionia to New York Great Eastern Line, bill 60, July 13, returned to Michigan Clothing Company, Ionia, Michigan. I hold bill of lading. Hurry please.
“Wallace.”
Mr. Preston testified as to the examination of the returned goods, as follows:
“By the Court: Do I understand, Mr. Preston, that two of these boxes you opened — the two you sent back were opened sometime ?
“A. No, sir; they weren’t opened at all.
Q. Two sent back without opening ?
“A. The two sent back were not. The others were ■ goods we had had in the storeroom maybe 30 days.
Q. Those had never been unpacked ?
“A. They hadn’t been taken out of the original papers they came in.
“That is all.”

On cross-examination witness testified they had been out of the boxes. The goods were not examined or inspected. The papers had never been taken off from them.

Q. Whose duty was it ?
“A. Nobody’s. We took the goods, accepted them, and never examined them. We took it for granted they were all right unless something developed that they were not.
“ Q. It would be your duty, if anybody’s ?
“A. I was too busy to go and examine every case or piece of goods that came in, test it, and examine it to see whether it was all right or not.”

Witness testified that he could not always determine in regard to tenderness by an examination of it. For instance, you might examine the end of a piece that would be all right, and not when you get into the middle of the piece. You might test it every time one of these little ridges comes. One side of the piece might be perfectly good, and the other side of the piece not. In an examination one might strike every part of the piece that would be perfectly good, and omit an examination of that part of a piece that would be tender. Have to rely upon the representation of the manufacturer and upon his good intentions. It would be just like an examination of the kernels in a bushel of corn to see whether they were good or not. Witness testified that his attention was called to some of the goods returned. He examined the goods Habercorn returned. He remembers particularly. Some of those he did not know.

u Q. Did you discover from those this tenderness ?
“A. Just take and tear it right down, you know.
Q. That could have been found by examining it in the piece ?
“A. It would have been found very easily, if we had struck the locality in the piece. Examine just that locality, yes, we would have found it.”

That the only way of testing corduroys would be to go through and examine every yard and every particle of the width of them; but no manufacturer would do that, nor could do it. They have to depend upon the reputation of the people that deliver the stuff to them.

Defendant’s witness Benedict testified that he had examined all of the goods returned by customers, and that those that were damaged had been worn a day or two and goods proved tender. No rip in the seams at all, but in the goods themselves. They proved tender and were returned for that reason, and were good for nothing only rags; worthless for commercial purposes. By taking the goods through one’s hands, you could very easily tell that the textile of the goods was faulty.

44 Q. That could have been determined before they were sent out by your company ?
“A. If we had any idea that the goods were defective.
44 Q. If you had examined the cloth, it would have shown, wouldn’t it ?
“H. Not unless you had gone at it particularly to find out such a thing.
44 Q. I say the goods that had never been used at all, simply made up. You say you discovered some faulty condition ?
“A. Same condition as to those. If they had been worn at all, they would have torn them the same as those that had been worn.
4 4 Q. The goods, when they were sent away from your factory, could have been determined the same way, couldn’t they ?
“A. Oh, hadn’t any idea they were in that condition when they were sent out. We supposed we got goods up to the sample we bought. * * *
44 Q. In order to test corduroys, to find the defects, what would it be necessary to do ?
“A. The wearing quality of the corduroy, texture of it, can be told very easily by pulling it each way, with the weave and against it. Whether it is tender or not can be very easily told in that way. He would have to go over each pair separately, and each part of the pair, in order to ascertain that.”

Witness testifies that from 30 yards of weave a dozen pairs of pants could be cut. In examining a piece of goods of that kind, they are thrown open and looked over. The sample piece that defendant buys from is simply sometimes a small piece of that size; other times it may be cut long enough to make a pair of pants, two yards and a half. Usually defendant opened the goods, that were sent but did not make a minute examination or investigation of the goods, and have them tested. Sample test is all right. Have to suppose it is in same condition. If there were black and white streaks across it, they would notice that, but not the wearing qualities of it at all. Do not examine goods as to tenderness at all.

The court instructed the jury correctly, as we think, '‘that by their letter of March 12, 1900, the plaintiffs granted to the defendant the privilege to return any unsatisfactory goods, if in the same condition as they were when the plaintiffs delivered them,” and further correctly instructed them “that the defendant could not arbitrarily determine that the goods were unsatisfactory and reject them or return them without some valid and sufficient reason, but that in order to authorize the defendant in rejecting or returning such goods it would be necessary for the defendant to satisfy you that there was some reasonable basis and ground for his action in returning such goods.”

W e think, however, that the court was in error in instructing the jury that there was any evidence before them from which they would be justified in finding that there was any reasonable basis for the defendant’s action. Mr. Preston testified that ‘ ‘ this sale was originally a sale by samples. The sale was originally by samples of goods. The samples came by express. Witness had then in mind at the time he gave the order of December 28th— the samples that Costuma sent them; that he examined them and knew what they were fairly well.” Each subsequent order was given by reference to the number of these samples, and if the plaintiffs filled the order with goods which were up to the standard of. the samples it was the legal duty of the defendant to be satisfied. Schliess v. City of Grand Rapids, 131 Mich. 52. “That which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is satisfied with. ” Duplex Safety Boiler Co. v. Garden, 101 N. Y. 387.

Plaintiffs gave evidence tending to show that the particular goods returned were well up to the standard of the samples. Defendant never had even looked at them, knew nothing about them, and gave no evidence as to their quality whatever. The court permitted the jury to determine the quality of the goods returned entirely from the testimony as to other goods, charging them as follows in this regard:

“ If you find that the defendant was having trouble with sales of goods manufactured from grades of corduroy furnished by plaintiffs, and which grades were similar in number and quality to the grades returned to plaintiffs, and that such trouble with such sales to customers was occasioned by the tender and defective quality of such grades of corduroys and by such corduroys not being up to sample, or was occasioned because of the defendant’s losing trade and customers without guaranteeing the quality of the manufactured articles, and that the quality of the cloth furnished by the plaintiffs was of that character that the defendant could not give such guaranty, then the defendant had valid reason for rejecting such corduroys and returning them to the plaintiffs, if such goods were in the same condition as when they were delivered, provided such goods Were returned to the plaintiffs within a reasonable time.”

There was no basis furnished by the evidence from which the jury could determine that the goods defendant had trouble with were similar in quality to the goods returned to plaintiffs . An agreement that goods sold shall prove satisfactory necessarily implies a reasonably prompt inspection where no period of time is specified, and if the vendee refuses the goods he must be prepared to show that the goods rejected wpre legally unsatisfactory. He cannot establish his right to refuse acceptance by showing merely that other goods received under similar orders were unsatisfactory. McFadden v. George C. Wetherbee & Co., 63 Mich. 390.

We are also of opinion that the court erred in refusing to direct a verdict for plaintiffs as requested, for the reason that the defendant’s act in ordering the goods back to Ionia constituted an acceptance in law. The defendant need not have shipped these goods to New York. It might have kept them at its place of business or stored them in Ionia, taking reasonable precautions to protect the goods. It saw fit, however, to ship the goods to plaintiffs and repudiated any interest in them. If defendant’s claim that the goods were not in accordance with the contract was correct, then upon its refusal to accept them and return to plaintiffs, the goods belonged absolutely to the plaintiffs, and the reshipment of them by defendant would constitute an unlawful conversion of them. Defendant, having taken its position, must adhere to it, and its dealing with the property in such manner as would be unlawful if it were the property of another constitutes an acceptance of the goods. Farrington v. Smith, 77 Mich. 550; Foster v. Rowley, 110 Mich. 63; Cream City Glass Co. v. Friedlander, 84 Wis. 53 (21 L. R. A. 135); Benjamin on Sales (6th Ed.), § 703; Chapman v. Morton, 11 M. & W. 534.

For the reasons given, the judgment is reversed, and new trial granted.

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


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    AMERICAN TROTTING ASSOCIATION v. REYNOLDS.
    Rayments — Recovery—Necessity oe Assignment.
    The American Trotting Association is composed of local driving clubs and agricultural societies, and its by-laws provide, among other things, that each member shall pay all premiums won, unless properly withheld, and that any person obtaining a purse through fraud or error shall surrender it to the secretary of the association, if demanded by the member having paid it, or by the president or secretary of the association. Held, that the association could not maintain suit for purses fraudulently obtained where there had been no assignment to the association of the right of the local societies to sue.
    Error to St. Clair; Tappan, J.
    Submitted July 21, 1905.
    (Docket No. 66.)
    Decided September 19, 1905.
    Assumpsit by the American Trotting Association against Felix Reynolds for money had and received. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      William T. Mitchell (Stevens, Graham & StevensK of counsel), for appellant.

      Cady & Crandall, for appellee.
   Moore, C. J.

This case was commenced by attachment. The declaration is on all the common counts in assumpsit. The bill of particulars is for illegal earnings obtained by defendant at various races, the names and dates of which are given in the bill of particulars. It is the claim of plaintiff that defendant entered a horse under an assumed name at these races, in classes in which it was not entitled to trot, and illegally obtained purses to which he was not entitled. The defendant pleaded the general issue. The case was tried before a jury, which, by the direction of the circuit judge, returned a verdict in favor of the plaintiff. The case is brought here by writ of error.

Many assignments of error are made, one of them because the judge declined to direct a verdict for defendant. It appeared on the trial that the various sums of money obtained by defendant were paid out of the funds of the local societies. None of these societies assigned any claim it had against defendant to the plaintiff. It is claimed by plaintiff no assignment was necessary. The plaintiff is a corporation organized under the laws of this State for the declared purpose of improving “the breed of horses by promoting the interests of the American trotting turf.” Act No. 18, Pub. Acts 1887.

The articles of association provide that—

“Any person, partnership, voluntary association, corporation, or any State, county, or town agricultural society, or other organization having control of a track and grounds for the trotting or pacing of horses, may with the approval of the board of directors become a member of this association on the payment of such annual dues, and on such other terms and conditions as may be prescribed by the by-laws.”

Section 31 provides:

“It shall be the duty of the members to rigidly enforce the by-laws, rules, and regulations of this association upon and in connection with their respective courses.”

Section 33 provides:

“Each member shall, immediately after the close of a meeting, pay all premiums won, unless the same are properly withheld under the by-laws and rules of this association.”

Among the “rules and regulations” are the following:

Rule 7: “ Every entry shall constitute an agreement that the person making it, the owner, driver, and horse, shall be subject to the rules, regulations and hy-laws of this association, and will submit all disputes and questions arising out of such entry to the authority and judgment of this association, whose decision shall be final.”
Rule 31: “A person obtaining a purse or money through fraud or error shall surrender or pay the same to the secretary of this association, if demanded by the member or by the president or secretary of this association, or by order of the board of appeals, or he, together with the parties implicated in the wrong, and the horse or horses shall be suspended until such demand is complied with, and such purse or money shall be awarded to the party justly entitled to the same.”
Rule 33: “Any horse that has been painted or disguised to represent another or different horse and shall have been entered in a class in which he does not belong shall forfeit the entrance money and be ruled out, and the guilty party and horse shall be fined, suspended or expelled. ”

It is claimed by virtue of these rules plaintiff could recover in this action, though the local societies, before the suit was brought, had made no assignment of their respective claims, and though no demand had been made upon defendant for a return of the money it is claimed he fraudulently obtained from them. It will be observed that section 33 provides the local society shall pay all premiums won, unless the same are properly withheld under the bylaws and rules of the association. It nowhere appears in any of the rules and regulations that the plaintiff is entitled to the receipts.of the local meetings, nor is it under obligation to pay any premiums. It- is true that by virtue of Rule 31 in certain contingencies it shall be the duty of a person, on demand properly made, to pay to the secretary of the association any money obtained through fraud; but none of the contingencies provided in the rule are present here, and there is nothing to prevent the several local societies from bringing suit against defendant for the money. See Davis v. Savings Bank, 53 Mich. 163; Corey v. Webber, 96 Mich. 357.

Judgment is reversed, and new trial ordered.

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


author: Hooker, J.

text:
    GOODRICH v. HACKLEY-PHELPS-BONNELL CO.
    Statutes — Implied Repeal — Corporations—Service of Process.
    Act No. 232, Pub. Acts 1903, providing in section 30 for the service of process on corporations, is, as to that section, a re-enactment of Act No. 232, Pub. Acts 1885, § 30, and therefore does not repeal Act No. 242, Pub. Acts 1887, § 3, the two sections not being inconsistent.
    Error to Oceana; Russell, J.
    Submitted April 6, 1905.
    (Docket No. 35.)
    Decided September 20, 1905.
    Assumpsit by Charlie Goodrich against the HackleyPhelps-Bonnell Company for goods sold and delivered. There was an order dismissing the case for want of proper service of the summons, and plaintiff brings error.
    Reversed.

      F. E. Wetmore, for appellant.

      Bundy, Travis & Merrick and Wallace Foote, for appellee.
   Hooker, J.

In 1887 a general act was passed in relation to the service of process against corporations, except railroad companies, and repealing all acts or parts of acts inconsistent therewith. See Act No. 242, Pub. Acts 1887, § 3.

It was afterwards held that a service upon a manufacturing corporation under this statute was valid, notwithstanding the existence of other provisions in relation to process found in defendant’s organic act. It was said that ‘ ‘ the legislature evidently intended to place corporations upon the same footing as individuals.” Potter v. Manufacturing Co., 79 Mich. 209. The important change was that process might be served upon the enumerated persons in any county where the plaintiff should reside. It is noticeable that there is nothing in that provision, or in the case cited, that indicates that the organic act referred to was inconsistent with the law of 1887, or that a service conforming to the provisions of the organic act would be invalid, while the language used in both seems to imply an enlargement of it.

Act No. 232 of the Public Acts of 1903 is an act to revise and consolidate the, laws providing for the incorporation of manufacturing companies, etc. It is a broad act, evidently designed to be complied with in the future incorporation of companies for a variety of purposes, as indicated by sections 36 and 37, but by no means includes all purposes. Section 30 provides:

“Service of any notice or legal process against any corporation formed or existing under this act may be made on the president, secretary or treasurer, or upon the agent in charge of any business office of such corporation within this State, or if neither of such officers or agent can be found, then such service may be made by posting a true copy thereof in some conspicuous place at the business office of the corporation in this State.”

This section is in terms permissive, and the question before us is whether we must find it mandatory, and by implication exclusive of the general provision referred to in Potter v. Manufacturing Co., supra, i. e., 3 Comp. Laws, § 10468. Furthermore, section 30 of the revised Act No. 232, Pub. Acts 1903, is identical with the corresponding section in the earlier act, and has been in the statute for a long time. Act No. 232, Pub. Acts 1885, § 30. Indeed, it is said to be much older than that.

The act of 1887 was an enlargement of the rights of plaintiffs desiring to sue any corporation. It was a general act applicable to all corporations, and is similar in character to chapter 230 of the Compiled Laws. No one would claim that this chapter does not apply to corporations formed under acts passed later than the time of the passage of that act, nor would it be claimed that the recent revision of the act in question has had the effect to repeal the general act mentioned as to manufacturing corporations. Again, the law of 1887 may be called an intermediate act; i. e., it was passed after the act of 1885 and before the revision of 1903. The question is whether it is repealed by the latter, which specifically repeals several acts, but not the act of 1887. If that act is inconsistent with the act of 1903, it should be held to be repealed by implication; but it is no more inconsistent with it than with the act of 1885', section 30 of both acts being identical. In such cases the effect of the amendment is not to repeal the intermediate act. Endlich on Interpretation of Statutes, § 194, citing Morisse v. Royal British Bank, 1 C. B. (N. S.) 67, 26 L. J. C. P. 62; Wallace v. Blackwell, 3 Drew. 538; Rex v. Dove, 3 Barn. & Ald. 596.

There should be no presumption that the revision was designed to affect the general act of 1887 as to service of process, which was designed to apply generally to corporations previously organized or which might afterwards be formed under then existing or prospective laws. The revised act being in no way inconsistent with the general act, we must assume that it was not intended to have the effect of repealing the act of 1887. There is no inconsistency between this view and the cases of People v. Wenzel, 105 Mich. 70; Sherlock v. Stuart, 96 Mich. 193 (21 L. R. A. 580); Toledo Ice Co. v. Munger, 124 Mich. 4.

The judgment should be reversed, and the court directed to proceed with the cause.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    HUTCHINSON v. CLEVELAND-CLIFFS IRON CO.
    Negligence — Contributory Negligence — Trespasser.
    The servant of a contractor employed to cover pipes in a certain part of a mill cannot recover against the mill owner for injuries caused by a fall down a temporarily unguarded elevator shaft in a part of the mill to which his duties did not call him or his foreman, of whom he was in search.
    Error to Delta; Stone, J.
    Submitted April 13, 1905.
    (Docket No. 71.)
    Decided September 20, 1905.
    Case by John Hutchinson against the Cleveland-Cliffs Iron Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      William P. Belden, for appellant.

      James H. Clancy, for appellee.
   Hooker, J.

The plaintiff was injured by falling through a hatchway in defendant’s chemical works. The machinery of these works consisted of a number of large steel or iron and copper cylinders, called “stills,” and vats and necessary pipes. The defendant had been making alterations and an enlargement of its plant by increasing the number of cylinders, and had employed the JohnsManville Company, of Milwaukee, to cover some of its cylinders and pipes with plastic covering, and the plaintiff was employed by that company to do this work under its foreman. This work was confined to the easterly portion of the mill at the time of the accident; the new stills for the north part not being set. Defendant was engaged in raising them through the hatchway in question, though not doing so at the exact time of the accident, which was near quitting time for the workmen in the evening. The hatchway was open and unguarded at the time plaintiff walked into it. His business was to mix the plastic material in a box near where he was at work, and it is conclusively shown that his work did not call him nearer than within 20 to 40 feet of the elevator, and that he had to step over a steam pipe a foot high from the floor to go there. His excuse for going there is that it was near night, and he wished to ask the foreman whether he should mix another quantity of plastic. He had seen the foreman go in a northwesterly direction from him and disappear from his sight around a still, a few feet from him. The mill was in operation, and was lighted by electricity. Plaintiff testified that the light was dim: He started in the same direction and went around the still, ultimately walking into the trap, which he did not see or notice. The railing had been removed to facilitate the raising of the cumbrous machinery. The foreman was not produced as a witness.

It was defendant’s contention that it owed no duty to plaintiff, who had not been invited to enter that portion of the mill, and that he was guilty of contributory negligence. The court refused to direct a verdict for defendant, and plaintiff recovered $1,500. Defendant has appealed.

The important question is whether defendant owed a duty to this plaintiff of anticipating that he would approach this elevator and guarding him against the danger of his walking into the hole in the floor. There is nothing to indicate that there was any work to call him there, and the case rests upon the proposition that the foreman might have occasion to go th'ére, and that the plaintiff might find it necessary to follow him, if he wanted directions about his work. There is no evidence indicating that the foreman went there upon business, or that the foreman had any invitation to go there, or that anything pertaining to his work called him there. The Johns-Man-ville Company had contracted to cover certain specified pipes and stills, which were set, and others to be set, the latter in the new part of the mill. It had nothing to do with the latter, for they were not set. Those in readiness and upon which they were at work were remote from this elevator, which was in use for the general purposes of the defendant. We do not find it necessary to discuss the right of the plaintiff to follow the foreman, because we find no invitation to either of them to go beyond the place where the stills to be covered were located.

The undisputed proof shows that the defendant’s business was continued while repairs were being made. Its contract with the Johns-Manville Company specified the stills to be covered. It contains no implication of an expectation that the laborers of that company would be at liberty to go about the premises, or to any portions except those where the work was to be done. It should not have been expected to interrupt its business unnecessarily, and it had no reason to expect an invasion of places where plaintiff’s work did not call him.

The learned circuit judge submitted to the jury the question whether it was reasonable for plaintiff to leave the place of his employment and go elsewhere about the mill. He could safely have said that the undisputed proof ex-eluded the question, first, because the elevator was so far beyond the confines of his legitimate territory, and, second, because there was nothing justifying his intentional transgression beyond the limits contemplated by the contract. The authorities are numerous in support of the doctrine invoked, and many are cited in the brief of defendant’s counsel. Phillips v. Library Co; 55 N J. Law, 307; Sullivan v. Waters, 14 Ir. C. L. 460; Ivay v. Hedges, 9 Q. B. Div. 80; Batchelor v. Fortescue, 11 Q. B. Div. 474; Zoebisch v. Tarbell, 10 Allen (Mass.), 385; Victory v. Baker, 67 N. Y. 366; Diebold v. Railroad Co., 50 N. J. Law, 478; Doggett v. Railroad Co., 34 Iowa, 284 Kennedy v. Chase, 119 Cal. 637 (this last was a case much like the present one); Wright v. Rawson, 52 Iowa, 329; Pfeiffer v. Ringler, 12 Daly (N. Y.), 437; 1 Thompson on Negligence, chap. 7, p. 308; Murray v. McLean, 57 Ill. 378; Schmidt v. Bauer, 80 Cal. 565 (5 L. R. A. 580); Redigan v. Railroad, 155 Mass 44 (14 L. R. A. 276). The principle is recognized in our own cases of Kinney v. Onsted, 113 Mich. 96 (38 L. R. A. 665), and Pittsburgh, etc., Dock Co. v. Transportation Co., 122 Mich. 449.

We are constrained to reverse the judgment and order a new trial.

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


author: Ostrander, J.

text:
    POWER v. COMMON COUNCIL OF THE VILLAGE OF LITCHFIELD.
    1. Intoxicating Liquors — Dealers’ Bonds — Sureties—Number.
    Section 5886, 2 Comp. Laws, does not authorize a municipality to require more than two sufficient sureties on a liquor dealer’s bond, but confers the privilege on the principal of presenting a bond with two or more sureties, and the authority of the municipality is limited to a determination of the sufficiency of bonds tendered in compliance with the law.
    2. Same — Mandamus—Answer—Exercise of Judgment.
    On mandamus to compel the common council of a village to approve a liquor dealer’s bond with two sureties, its answer that it had adopted a resolution requiring four sureties, because of its belief that four sureties would operate as a restraint in conducting the business, sufficiently showed that the council had not attempted to determine, as expressly required by section 5386, 2 Comp. Laws, the sufficiency of the bond.
    8. Mandamus —Liquor Dealer’s Bond — Compelling Aooept- ' anoe.
    On certiorari to review the refusal of a mandamus to compel the common council of a village to accept a liquor dealer’s bond with two sureties, a finding by the court below that the council acted in good faith in determining that the bond did not comply with a resolution of the council requiring four sureties is immaterial.
    Certiorari to Hillsdale; Chester, J.
    Submitted June 6, 1905.
    (Calendar No. 21,142.)
    Decided September 20, 1905.
    Mandamus by John J. Power to compel the common council of the village of Litchfield to accept a liquor bond. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      Shirley Hadley and William H. Lockerhy, for relator.

      Frankhauser & Cornell, for respondent.
   Ostrander, J.

Relator, desiring to operate a bar or saloon in connection with his hotel, presented a bond to the common council of the village, in proper form, with two sureties. The bond was rejected. Thereupon he applied to the circuit court for the county of Hillsdale for the writ of mandamus to compel the acceptance of the bond. The court denied the writ, and his action is brought here by writ of certiorari for review.

By unanimous vote, the common council of the village had required saloon bonds to be in the sum of $6,000, with four sureties. The answer of the common council avers its good faith in the premises, and that,—

“The purpose of requiring four sureties was that the best possible results might be realized in said village in connection with the operation of a proposed saloon; that it was conceived by said common council that four responsible citizens of said village as sureties on said liquor bond would operate as a wholesome salutary restraint against "the well-known vicious tendencies of such places.”

The only question presented is whether the common council had authority to require more than two sureties upon the bond.

The statute (2 Comp. Laws, § 5386) requires as a condition precedent to the right to carry on the retail liquor business the execution and delivery to the county treasurer of a bond—

“The sufficiency of which shall be determined by the township board of the township, or the board of trustees, the council or common council of the village or city in which such business is proposed to be carried on, to the people of the State of Michigan, in the sum of not less than three thousand nor more than six thousand dollars, with two or more sufficient sureties, who shall be male residents and freeholders of the township, village or city in which such business is proposed to be carried on,” etc.

And sets out the form of the bond.

It is contended that, because the statute calls for two or more bondsmen, it is within the power of the common council to require more than two. We disagree with this contention. If the council has the power to require four sureties, it may require eight or ten, or more. The statute is in form a general law, and should not receive a construction which will make its operation variable. There must be at least two sureties, and we think that no more than two who are able to answer the statute conditions can be required. It is well known, however, that sureties upon official and other bonds sometimes prescribe as a condition for becoming sureties that either certain particular persons or a certain number of persons join in assuming the responsibility and liability imposed by the bond. It is the privilege of the principal in the bond required by this statute to present a bond having more than two sureties, so long as each of them is able to answer the statute requirements.. What is left to the municipal authority is the sufficiency of the bond tendered in compliance with the general law.

The opinion of the common council that the larger the number of bondsmen who are responsible the less likely would violations of the law occur is undoubtedly a sound one, which experience would approve. But there is involved in it more than the duty of determining the statute sufficiency of the particular bond. The declared purpose of the common council for requiring four sureties affirmatively establishes the fact that it has not attempted to determine, as the law requires it to do, the sufficiency of the bond tendered.

The finding that the council acted in good faith in determining whether relator had complied with the standard used is immaterial. If the bond is found to be otherwise sufficient, it should be approved.

The order is reversed.

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


text:
    HOOPER v. BATDORFF.
    Physicians — Regulation—Statutes.
    Act No. 191, Pub. Acts 1903, applying in terms to those who “wish-to begin the practice of medicine, etc.,” requires those illegally practicing under the prior law to register as well as those who have not heretofore practiced; it being reasonable to say that one who is not a lawful practitioner is a beginner.
    Certiorari to Calhoun; Hopkins, J.
    Submitted June 6, 1905.
    (Calendar No. 21,101.)
    Decided September 20, 1905.
    Mandamus by Joseph L. Hooper, prosecuting attorney, to compel Howard H. Batdorff, a justice of the peace, to issue a warrant. There was an order denying the writ, and relator brings certiorari.
    Reversed.

      Joseph L. Hooper, in pro. per.

      Walter S. Powers,.for respondent.
   Hooker, J.

Griswold had been practicing medicine prior to September, 1903, in violation of law (Act No. 337, Pub. Acts 1899), not having been registered as thereby required. In September, 1903, Act No. 191 of that year took effect (Act No. 191, Pub. Acts 1903), being amendatory to the act first cited. Griswold has since continued to practice medicine without any effort to comply with such laws. On January 33, 1905, relator presented a sworn complaint to the respondent, requesting him to file the same and to issue a warrant for said Griswold, under the provisions of said act. This was refused, and relator applied to the circuit court for a mandamus to compel it.

The return of the justice shows that Griswold had practiced in Battle Creek continuously from and after Decemher, 1902, and that he was not registered under any law of the State prior to Act No. 237 of the Public Acts of 1899, although said act, § 3, provided that—

“On and after the second Tuesday of October, eighteen hundred and ninety-nine, all men and women engaged in the practice of medicine and surgery in any of its branches, and all who wish to begin the same in this State, * * * shall make application * * for a certificate,” etc.

Section 7 provided a penalty for a violation of the act. Further, that by amendment (Act No. 191, Pub. Acts 1903) the law was amended:

“On and after the date of the passage of this act, all men and women who wish to begin the practice of medicine and surgery in any of its branches in this State shall make application to the State board of registration in medicine to be registered and for a certificate of registration.”

It was contended, on his behalf, that he did not fall within the terms of this provision, for the reason that, inasmuch as he was already engaged in practice, though in violation of law, it cannot be said that he “wished to begin the practice.” The circuit court sustained this contention and denied the writ. The cause is now here upon certiorari.

Attention is called to the fact that the act of 1899 requires all persons engaged in or who wish to begin the practice to make application, etc., while the amendatory act omits the former class, thus apparently limiting the law to cases of beginners in practice. W.e think this inconsistent with the legislation upon the subject, which began as early as 1883. Act No. 167, Pub. Acts 1883; Act No. 268, Pub. Acts 1887. Considering these several acts, it is reasonable to believe that in 1899 the legislature took it for granted that practitioners then engaged in business had complied with the law of 1899, and that it was not the design to compel them to again make application. We cannot believe that they deliberately intended to offer a premium to law breakers, which is the effect of respondent’s contention. It is more reasonable to say that such a man is a, beginner for the purpose of making such an application, not being already a lawful practitioner.

The order of the circuit court is reversed, and the writ will issue as prayed.

Moore, C. J., and Carpenter, McAlvay, Grant, .and Hooker, JJ., concurred.


text:
    VAN NORSDALL v. SMITH.
    1. Specific Performance — Purchase of Land — Decree—Lien-Propriety.
    On a bill by the owner of an interest in land against his co-owner to enforce specific performance of a contract by which such co-owner agreed to purchase complainant’s interest, a decree for complainant giving him a lien for the agreed purchase price on more than the interest he agreed to convey is too broad.
    2. Same — When Granted — Inadequacy of Consideration.
    Mere inadequacy of consideration, not accompanied by other elements of bad faith, is not sufficient ground for refusing specific performance unless so excessive as to furnish satisfactory evidence of fraud; but fraud is always a sufficient ground, and inadequacy of consideration may be, with other facts and circumstances, convincing evidence of fraud.
    3. Same — Unconscionable Contracts.
    Courts withhold relief by way of specific performance and leave complainants to their legal remedies, as well when the hardship of the contract appears from external facts, events, or circumstances, as when it appears from the provisions of the contract itself.
    4. Same.
    Where, in .negotiating a contract for the sale of the interests of certain heirs of an estate to the widow, their agent concealed a claim he had against the estate, and the effect of specific performance under the circumstances would be to materially diminish the sum she had a right to expect as widow, it will be denied.
    Appeal from Eaton; Smith, J.
    Submitted June 14, 1905.
    (Docket No. 6.)
    Decided September 20, 1905.
    Bill by Sarah Van Norsdall, G. Willis Smith, and Emma A. Clark against Emma Smith to compel the specific performance of a land contract. From a decree for complainants, defendant appeals.
    Reversed and bill dismissed.

      Joseph B. Hendeé (Garry O'. Fox, of counsel), for complainants.

      S. B. Boe and Black & Beasoner, for defendant.
   Ostrander, J.

Defendant is the widow, and complainants are sisters and a brother, respectively, of Levi Smith, who died intestate on or about January 18, 1903, owner of about 94 acres of land which had been his home} There are no other persons interested in his estate, excepting his creditors. After some negotiations, a written agreement was made between the widow on the one side and the sisters and brother on the other, dated February 25, 1903, by the terms of which the widow agreed to buy and the others to sell, for the sum of $675, to be paid on or before April 25, 1903, their interest in said land. The contract contains the further following stipulations and agreement:

“ It is hereby further agreed that the said party of the second part, in consideration of said deed of said above-described premises, shall pay all claims and demands, of whatever name and nature, against the estate of Levy Smith, except such claims as are herein otherwise provided ; that said second party shall also, in further consideration of said conveyance, erect a monument upon the grave of said Levi Smith, at a cost not less than three hundred dollars, within two years from date hereof, and at the time of the conveyance of the premises herein shall make, execute, and deliver to the judge of probate a good and sufficient bond, to be approved by said judge, for the faithful performance and building and erecting of said monument.
‘ ‘ The said G. Willis Smith, in consideration of the payment to him of his share of said six hundred seventy-five dollars, hereby agrees, at the time of making the conveyance of said premises, to make, execute, and deliver a receipt in full of all notes now in the hands of other persons upon which said Levi Smith is surety, comaker, indorser, or in any manner obligated with the said G. Willis Smith, and which were given for the express benefit of G. Willis Smith.”

Pursuant to this agreement, and on April 24, 1903, complainants executed and tendered to defendant a quitclaim deed of the premises, and also tendered her, marked “Paid,” the only outstanding note, answering to the terms of the said written agreement, and they demanded of her the sum of $675. She refused to accept the deed, and refused to pay the money, and thereupon they filed the bill in this cause, setting out the said agreement and tender, and praying that the defendant be decreed to specifically perform said agreement. A demurrer to the bill was overruled, and an answer filed. Proofs were taken in open court, and the court made and entered a decree that said contract be performed. It is provided in the decree that complainants shall deposit with the register of the court the quitclaim deed and the promissory note, and that within 60 days thereafter the defendant pay to complainants $675, with interest from the 24th day of April, 1903; that if defendant neglected or refused within the time limited to pay such sum of money, with interest, and accept the deed of conveyance, the decree stand as a conveyance of the lands;—

“That upon the recording of such decree, or a duly certified copy thereof, these complainants shall have, and they are hereby given, a lien in the nature of and of the same force and effect as an execution levy for the sum of six hundred and seventy-five dollars and interest thereon as aforesaid, upon all of the interest of the said defendant, Emma Smith, in and to the lands and premises, with the appurtenances, of which the said Levi Smith died seised and possessed, both as widow and heir at law of the said Levi Smith, deceased, and as grantee of the complainants; * * * and that such lien as aforesaid shall take precedence over any and all claim or claims which may be allowed the said defendant, Emma Smith, against the estate of Levi Smith, deceased, and which may be or might become a charge upon said lands for the payment thereof, and the said complainants shall have, and they are hereby given, the right, power, and authority at once, upon the recording of this decree as aforesaid, to enforce the said lien so created by this decree upon the lands and premises hereinbefore mentioned and described, and sell the same by execution sale to satisfy the amount due thereon, together with all interest, costs, and expenses of such sale, such sale to be in all things in accordance with the provisions of the statute relative to execution sales of real estate”—

And complainants were given their costs of the suit.

Among other objections made in the court below to the settlement of this decree was one that complainants were not entitled to a lien upon the defendant’s interest in the lands. It is conceded in this court that the decree is too broad, and that the court had no power to decree a lien upon any interest in the land, except the interest which complainants proposed to convey. It is to be noted, also, that the decree does not order defendant to perform the contract in any other respect than, is above stated. Defendant has appealed, complainants have not appealed, from the decree.

The land in question lies partly in Ingham and partly in Eaton county; that portion lying in Eaton, about 34 acres, having upon it the house and barn. Appraisers valued the estate, of which the widow was later appointed administratrix, at $2,700, $300 of which amount represented the personal estate. There was a mortgage upon the property of $165. Complainants’ witnesses, some of them, valued the 34 acres in Eaton county at $1,200, and the 60 acres in Ingham at $1,400. It is contended that specific performance of the contract should nbt be enforced: (1) Because of concealment of material facts by complainants’ agent who negotiated the transaction. (2) Because defendant misconceived her legal rights and was ignorant of material facts. (3) Because the consideration for the money which defendant agreed to pay is inadequate. We will examine these contentions.

1. Reuben Clark, husband of complainant Emma A. Clark, seems to have undertaken for the complainants to sell to defendant their interest in the estate. On the other hand, defendant had the advice and counsel of her father and brother. It does not appear that complainants were more anxious or interested than was defendant to arrive at a conclusion. It is said, however, and is undisputed, that Reuben Clark had a personal claim against the deceased, one which he afterwards presented to the commissioners on claims, for nearly $700, of which defendant knew nothing, and of which Clark told her nothing. Defendant executed the contract with no knowledge that such demand existed. The commissioners allowed the claim at the sum of $345. Purchasers of land from heirs take it subject to debts and expenses of administration (Flood v. Strong, 108 Mich. 561; Armstrong v. Loomis, 97 Mich. 577); and it might seem, therefore, that the provision in the contract which required defendant to pay “all claims and demands, of whatever name and nature, against the estate of Levi Smith, except such claims as are herein otherwise provided,” was an unnecessary and immaterial stipulation. As affecting the sum which defendant could afford to give for' what she supposed she was buying, it was of very great importance that she should know the net value of the.estate. It was mutually supposed by the parties and by Reuben Clark that defendant’s interest in the land was an undivided one-half of it, and that the other undivided one-half was the interest of complainants. Of his demand, Mr. Clark, relating what took place at one meeting, testified:

“I told them they knew more about the indebtedness than I did, as I had no basis to figure from. She was the widow of Mr. Smith, and knew more about his business than I did, and, being administratrix of the estate, she knew more about matters than 1 did. I thought she might have an idea of all the claims which might be presented against the estate. I don’t know as to whether she knew what claim I had or not. I didn’t say anything about it that night. It would be optional with me whether I wanted to present it against the estate. I always calculated I had a first-class claim, if I wanted to present it. At that time I was not certain about presenting it. I had never at that time figured up the amount of my claim, and I hadn’t said anything to the .heirs about it, except my wife.”

It is suggested by counsel for complainants that at that time there was nothing certain about his presenting it, and no evidence that at such time the possibility of his filing any claim had ever occurred to him; that he did not file it until after defendant had repudiated the contract, and after the bill in this case was filed. To my mind, this does not answer the objection. The widow was confronted with the proposition of buying the interest of three heirs. She had offered them $200 each. Reuben Clark, for the heirs, had declined to accept this amount, and was asking $300 for each. The cost of a tombstone, which all agreed it was proper to buy, the amount of the debts, everything which entered into the value of the interests proposed to be bought and sold, were gone over.

Excluding a claim presented by and allowed the father of defendant, the commissioners on
claims have allowed claims to the amount of.. $696 25
There is the mortgage__________________________ 165 00
Other outstanding debts, $50 to $75............. 60 00
Tombstone at price agreed to be proper_________ 300 00
Amount to be paid complainants, as per terms of the contract, $225 each....................... 675 00
A total of.................................. $1,896 25

The personal estate is by statute the property of the widow. The expenses of administration are estimated at $100. The balance of the estate, then, would be from #400 to $500. These figures are produced to show of what importance it was that defendant should know that Reuben Clark had a demand of $691 against the estate.

Enough has been said, also, to explain the force of the third contention made for defendant. Mere inadequacy of consideration, not accompanied by other elements of bad faith, is not a sufficient ground for rescission of a contract or for refusing specific performance of it, unless so excessive as to furnish satisfactory evidence of fraud. Eraud is always a sufficient ground for refusing specific enforcement, and inadequacy of consideration may be, with other facts and circumstances, convincing evidence of fraud.

2. It is contended that defendant was and is entitled to •a homestead, and that this right was unknown to her at the time she executed the contract. The answer of defendant does not advance this claim, and it is said by counsel for complainant that it is asserted for the first time in this court. It is argued, also, that at most it is' a mistake of law, which cannot be relieved against. It may well be doubted if want of knowledge that she owned a larger estate in the land than she supposed she did, and was therefore buying a less valuable estate than all parties understood was being conveyed, can be called a mistake of law within the proper meaning of that term. In the view we take of the case, it is not necessary to discuss the proposition. While there are many matters set up in the answer concerning the designs and fraudulent conduct of complainants and their agent which are not proven,, the fact remains, as has been pointed out, that the agent of complainants concealed from defendant a matter of vital importance in the transaction between them, the effect of which will be, if specific performance is decreed, to diminish materially the sum she had the right to expect would remain to her as widow. The amount of the difference is not large. Neither was the entire transaction a large one. The parties were not, when the contract was made, on equal terms as to knowledge. Every unfair contract is in some measure unconscionable and hard. Courts withhold the peculiar relief asked for here, as well where the hardship appears from external facts, events, or circumstances as when it appears from the provisions of the contract itself, and leave complainants to their legal remedy.

It is perhaps proper to notice that if the decree should be modified to the extent counsel concede that it must be, and, as so modified, affirmed, complainants would have for their land an order that defendant pay them the agreed purchase price, and, if she did not, that they sell the very land they had conveyed to her, in the manner of execution sales, to pay themselves.

The decree is reversed, and a decree will be entered dismissing the bill of complaint, with costs of both courts to defendant.

Carpenter, McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    MARTIN v. DETROIT LUMBER CO.
    Master and Servant — Injuries to Servant — Assumption op Risk.
    A boy of 17, of average intelligence, with a limited experience in lumber mills, operating a resawing machine under which was an iron trough to receive the sawdust, held, to have assumed the risk of being injured while using a short stick to clean the trough and inserting his hand under the saw, though not instructed as to the dangers.
    Error to Wayne; Frazer, J.
    Submitted June 15, 1905.
    (Docket No. 21.)
    Decided September 20, 1905.
    Case by Nelson Martin, by next friend, against the Detroit Lumber Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Plaintiff had two fingers cut off by a circular saw, and sued his employers for resulting damages. The negligence of defendant, which, is charged and relied upon, is that the saw was not guarded, and that plaintiff, who was 17 years old at the time of the accident, was not instructed in his duties and notified of the danger and risk of his employment. The statement of the facts which was made by the trial judge to the jury in giving his reasons for directing a verdict is not questioned, and is here repeated:
    “The plaintiff brings this suit against the defendant, claiming he is entitled to receive damages because he had his hand injured while working for defendant. The boy was 17 years old. He had a limited amount of experience in mills of that character. He has operated one or two machines. He had operated a matcher, and he had operated a swing saw, some little. He had had some, experience in this work — not any very great amount of experience; but he had had experience, practically, upon the machine upon which he got injured. This machine that he was injured upon was what was known as a ‘ resaw machine ’ — a machine used for cutting out siding, ripping siding out of boards. The machine in operation, as you have seen upon observation there, consisted of a frame, attached probably to the floor, and a circular saw, and under that circular saw is an iron trough, and that trough receives the sawdust; and it was in cleaning out this iron trough that this boy got injured. He claims that this was a very dangerous machine, and that he ought not to have been put to work upon it on account of his immature age, and that he had not sufficient experience or knowledge to be trusted with the operation of a machine of this character ; and he also states that some man, named Smith, told him that, if this trough got clogged up with sawdust, he was to take a stick and remove it. The evidence in this case, which is uncontradicted, shows that the distance between the circumference or teeth of the saw and the nearest point of this trough was about six or seven- inches. This boy, in following the instructions of Mr. Smith, took a stick six inches long and undertook to clean out this trough. There is no evidence at all in this case that Mr. Smith told him to take a stick six inches long and insert his hand, holding that stick, under a saw, not more than an inch back from his hand, or that anybody told him to take any such kind of a stick and undertake to remove that sawdust.
    “Now, a boy of that age, or any other boy — I think that a boy 17 years old of ordinary intelligence — and it is shown by the evidence in this case that this boy is a boy fully up to the average intelligence of boys of that age, if not more so, because, in giving his testimony in this case, he described very clearly the danger connected with the operation of all these different machines — he knew just as well then as he will ever know in his lifetime that, if he put his hand up against a saw in motion, his hand would be cut, and he knew, just as well as Mr. Smith knew, or anybody else, that it was his business to keep his hand away from that saw, and. not bring it in contact with it.
    “ Now, if he exercised care such as he should have exercised, he would not have taken a stick six inches long to clean out sawdust under that saw. If he had taken a stick three feet long, or two feet long, and stood up above the cutting edge of the saw and scraped that sawdust out, he could have done it without any possible injury to himself, and he knew it just as well then as he will ever know it in the world. Anybody ought to have known that, if they took a stick six inches long and put their hand down under that saw, there was danger either in pulling his hand back, or, if some obstruction met with the stick, of knocking his hand up against that saw and getting his fingers cut off.

      “Mr. Springer: I would like to have it appear in the record that, when the plaintiff gave his evidence, he gave the size of the stick, indicating the size with his hands, and it would be something like a foot long.

      “The Court: Whether'it was six inches or a foot, he had his fingers down under that saw when he got cut, because, if he had had them above the cutting edge of the saw, they would never have got there. That stands to reason, and nobody can dispute it, because it is a self-evident proposition.”
    Further along he said:
    “Now, there are a large class of cases that have been decided by the Supreme Court of this State and other States that, where these dangers are latent — that is, where they are known only to men skilled in the business and experts in the trade — the party who is not skilled in the business does not assume those risks; but he assumes all risks that are apparent to him, just as well as they are to the foreman, and, unless it is a matter in which the foreman, on account of his skill or ability in that particular direction, has a greater knowledge than he has, then the servant is not bound to obey the directions of the foreman, and, if he does it, he does it at his own peril. Now, the question arises in this cause whether anybody does not know, just as well as the foreman, whether, if they put their hands in contact with a swiftly revolving saw, they are not liable to get it cut; whether that knowledge is peculiar to men skilled in that trade, or to anybody; whether a child of even smaller years or a younger age than the boy in question here would not know that. I submit that they would, and that this is one of the risks that is assumed when taking that employment.”
    If we add to this statement of facts a picture of the machine, showing the saw and the trough under the saw, we have before us substantially all that appeared at the trial, so far as the case of the plaintiff is concerned, excepting the evident? intelligence of plaintiff himself and his appreciation of the risk attendant upon the use of such machinery.
    It is contended for plaintiff that the case should have been submitted to the jury, and the ground taken is that plaintiff cannot be held to have assumed risks of which he was ignorant and which he was not capable of appreciating; that—
    ‘£ While in this case it may be said that the danger that caused the injury was an incident to the work of operating the machine as the defendant had it operated, it cannot be said that the danger was apparent to a boy of no experience in doing that sort of work.”
    The cases of Chicago, etc., R. Co. v. Bayfield, 37 Mich. 211, and Michigan Cent. R. Co. v. Smithson, 45 Mich. 212, 217, are relied upon.

      Oscar M. Springer, for appellant.

      Keena & Lightner, for appellee.
   Ostrander, J.

(after stating the facts). It is clear that the case is ruled, not by the authorities cited for plaintiff, but by Kean v. Rolling Mills, 66 Mich. 277, 285, 288; Hathaway v. Milling Co., 1-39 Mich. 708, and similar cases.

The judgment is affirmed.

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


author: Grant, J.

text:
    HERPOLSHEIMER v. HANSELL-ELCOCK CO.
    Bonds — Building Contractors — Enforcement by Material-men.
    A bond given by a building contractor to the owner of a büilding under construction, to secure the performance of his contract, is a private instrument, enforceable only by the owner, and cannot be availed of by a materialman having a claim against the contractor, but for which neither the owner nor his property is liable.
    Appeal from Kent; Wolcott, J.
    Submitted June 15, 1905.
    (Docket No. 12.)
    Decided September 20, 1905.
    Bill of interpleader by William G. Herpolsheimer against the Hansell-Elcock Company and others to determine the disposal of an amount due on a building contract. The defendant Hansell-Elcock Company filed an answer in the nature of a cross-bill, making the Fidelity & Deposit Company of Maryland a party defendant, and praying to be subrogated to the rights of complainant in an indemnity bond to the amount of its claim. From a decree sustaining a demurrer of the Fidelity Company to the cross-bill, said defendant appeals.
    Affirmed.
    The complainant let a contract to Hayden, Appleyard & Co. for the erection of a building upon a lot owned by him in the city of Grand Rapids; the total cost of the building to be about $100,000. A second contract between complainant and Hayden, Appleyard & Co. was made for an additional story. The defendant and appellant, Hansell-Elcock Company, furnished most of the structural iron, the total bill for which was about $20,000, to Hayden, Appleyard & Co. The contractors paid appellant all but $1,446.74. The contractors were unable to pay their obligations in full, and laborers and material-men filed' liens amounting to about $19,000. Some also commenced suits by garnishment, among whom was the appellant. The appellant also filed its lien. In order to avoid a multiplicity of suits, complainant filed this bill in the nature of an interpleader, making all the lien and garnishment claimants defendants therein. The appellant, in its answer in the nature of a cross-bill, set up its defective lien and ineffectual garnishment proceedings. It also set forth an indemnity bond for $50,000, executed by the contractors, with the defendant Fidelity & Deposit Company of Maryland, for the faithful performance of the contract on the part of Hayden, Appleyard & Co. The express condition of the bond, so far as it is essential •to the determination of this case, is that—
    “ The surety shall not be liable under this bond to any one except the' owner; but it is agreed that the owner, in estimating his damage, may include the claims of mechanics and materialmen, arising out of the performance of the contract, and paid by him only when the same, by the statutes of the State where the contract is to be performed, are valid liens against his property.”
    A similar bond was executed by the same security company to the complainant, in the sum of $7,000, for the second contract. It then prayed for an accounting between complainant and Hayden, Appleyard & Co.; that said security company be decreed to pay the lien claimants named in paragraph 4 of the bill; that complainant be decreed to pay appellant its claim out of the balance in his hands, mentioned in paragraph 3 of the bill, or that said •security company be decreed to pay pro rata sufficient of those liens which are found regular under the statute to leave a balance in said complainant’s hands large enough to pay appellant’s claim in full and costs; that the assets be marshaled; and that those claimants having a double security be compelled to first exhaust that security in which appellant had no interest before being permitted to participate in the fund in complainant’s hands against which the appellant has a claim by reason of its suit in garnishment, or that, if for any reason it be found that the whole matter cannot legally be adjudged and determined by the decree of this court as above mentioned, then said complainant be directed to institute proceedings at law or in equity upon said bonds to enforce the payment of such valid liens therefrom, so as to permit said complainant to pay its (Hansell-Elcock Company’s) claim in full, or that said valid lien claimants be compelled to institute such proceedings. There were several other prayers for relief, but it is unnecessary to mention them. To this cross-bill the Fidelity Company demurred. The demurrer was sustained and the bill dismissed.

      Knappen, Kleinhans & Knappen, for complainant.

      Elvin Swarthout, for appellant. '

      Frank W. Hine, for defendant Fidelity & Deposit Co.
   Grant, J.

(after stating the facts). There are two complete answers to the claim of the defendant the Han-sell-Elcock Company:

1. This is not a public bond, required by statute of public officials, given for the purpose of protecting laborers and materialmen. It is a private bond, given, not for the benefit of Mr. Herpolsheimer’s creditors, but for his own benefit; and there is no liability upon the bond until Mr. Herpolsheimer has suffered loss and makes a claim under the bond. He has neither suffered loss nor made any claim.- The Hansell-Elcock Company stands in the position of a stranger or volunteer. It trusted the contractors, not Mr. Herpolsheimer. This bond was given and taken as security alone for Mr. Herpolsheimer. The Hansell-Elcock Company, therefore, is in no position to be subrogated to the rights of this contract between Herpolsheimer and the Fidelity Company. 27 Am. & Eng. Enc. Law (2d Ed.), p. 255. The case is within the principle announced in Desot v. Ross, 95 Mich. 81, and authorities there cited.

2. The defendant the Hansell-Elcock Company has no valid lien against the complainant’s building. By the express terms of the contract of suretyship, the surety is not liable unless there are valid existing liens against his estate. It was only such liens as this that the bond of indemnity protects Mr. Herpolsheimer against, and in which defendant the Hansell-Elcock Company could possibly have any interest. Having no .valid lien under the statute, it follows that it has no interest whatever in this private contract of suretyship between complainant and the defendant the Fidelity Company.

The decree is affirmed, with costs.

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


text:
    BOTSFORD v. BRADFIELD.
    1. Trusts — Parol Trusts — Evidence^Instruotions.
    An. instruction that leaves.the jury to infer that'there are circumstances to sustain the testimony of the only witness testifying to the existence of a parol trust, when in fact there are none, and the circumstances are in direct hostility to such a claim, is erroneous.
    3. Same — Evidence—Pleading- as Evidence — Estoppel.
    On the issue of the existence of a parol trust in certain notes and collateral securities, plaintiff’s petition in probate court asking the surrender of them, in which she sets up the nature of her claim, may be used as evidence against her, and binds her to the claim there stated.
    3. ■ Same — Evidence—Supeioienoy.
    In replevin for notes and securities collateral thereto in possession of the payee at the time of her death, brought by the maker on the theory that decedent had declared a trust therein in plaintiff’s favor, evidence examined, and held, not sufficient to maintain a suit at law on such theory.
    Error to Kent; Wolcott, J.
    Submitted June 15, 1905.
    (Docket No. 18.)
    Decided September 20, 1905.
    Replevin by Mary L. Botsford against Thomas D. Brad-field and John E. Botsford, executors of the last will and testament of Sarah C. Turner, deceased. There was judgment for plaintiff, and on petition of Helen M. Burr and others, legatees under said will, they were allowed to intervene and bring error.
    Reversed.
    This is an action of replevin for two promissory notes executed by plaintiff to the deceased, Sarah C. Turner, and certain certificates of stock assigned therewith, as collateral security. One note is dated June 15, 1893, and. the other September 1, 1892, and they are for $500 each. Mrs. Turner died December 16,1901. The notes and securities collateral thereto were found, with her papers and other evidences of debt, in a box under lock and key. The box, its contents, and the key were under her exclusive control, and the key was on her person when she became unconscious, just before death. She had no children. She left a will bequeathing .various sums to some of her relatives, including the plaintiff, to whom she bequeathed, with four other relatives, $3,000 each. The will was executed in June, 1900. For other provisions of the will, see Turner v. Burrt ante, 106. She left an estate of about $60,000, consisting of about half of houses and lots in the city of Grand Rapids, and half in securities of various kinds. She was a shrewd, careful, and experienced business woman.
    The defendant Botsford is the husband of plaintiff. The executors inventoried these notes as a part of the estate. Plaintiff made a demand of the defendants, executors, for them, and, upon refusal to deliver them to her, she, on August 8, 1902, presented a sworn petition to the probate court of the county of Kent, asking for the surrender of' these notes and securities collateral thereto. Her grounds for asserting title thereto are there stated as follows:
    “Your petitioner further represents that during the lifetime of the said Sarah C. Turner, and a short time— that is to say, about 30 days — before her death, she, the said Sarah C. Turner, in consideration of the natural love and affection which she entertained for your petitioner, presented to your petitioner the said principal sum of $1,000, represented by the said notes, and the said notes, and promised that she would deliver the same to her, and was only prevented from making such delivery by the distance at which your petitioner resided from her, and the unforeseen sudden attack of disease which deprived her of her faculties some days previous to her death, and that previous to such attack it was distinctly understood and agreed by and between the said Sarah C. Turner, in her lifetime, and when in full possession of her faculties, and your petitioner, that said notes and the said securities should be returned to your petitioner, and should not be considered as assets of the estate of the said Sarah C. Turner, and that your petitioner should not pay the same.”
    To this petition answer by defendant Bradfield, as executor, was duly filed denying the material facts therein stated. The probate court denied the relief asked for, upon the ground that the court had no jurisdiction to grant the prayer of the petitioner. Thereupon she instituted this suit.
    The sole testimony to sustain plaintiff’s claim is that of one witness, Charles M. Turner, who had lived with her for about a year, under circumstances detailed in Turner v. Bradfield, 138 Mich. 507. She had never known him. until he came to live with her under circumstances detailed in that case. Mr. Turner’s testimony, which alone serves as a foundation for the verdict of the jury in this case, is as follows:
    “ Q. I show you these notes, and security attached, and ask you if you ever saw those before ?

      “A. Yes. I saw them in the afternoon of December 4th (1901). My aunt, after we talked awhile, got the tin box she kept her notes and mortgages in, the same day I returned, and after looking for other papers she took out these notes and securities — I had seen them a number of times before — and she told me that Mrs. Botsford was over just before Thanksgiving, and she thought of letting Mrs. Botsford take the notes and mortgages home with her, but she had kept them on account of collecting the interest, and told me that she wanted Mrs. Botsford to have them, and that she wanted me to see, in case anything happened to her, that Mrs. Botsford got them» as they belonged to Mrs. Botsford, and put them back in the box.”
    Under a question so leading as to be objectionable, and to which objection was duly made for that reason, the witness testified that Mrs. Turner said:
    ‘ ‘ She did not want them [the notes] to go into her estate, as they did not belong to her; that she was only holding them for the interest, and that they belonged to Mrs. Botsford.”
    After the jury were sworn, counsel for defendants asked counsel for plaintiff whether he claimed “this is a gift inter vivos, or a gift causa mortis ?

      “Mr. Albers: If anything, it is a gift causa mortis.”
    No claim appears to be made that there was a gift inter vivos, and the court directed the jury that there was no gift causa mortis, but submitted the question to the jury whether there was a trust created by parol, and whether Mrs. Turner held these notes and the securities collateral thereto as trustee for the plaintiff.
    The jury returned a verdict for the plaintiff.

      Frank L. Carpenter, for appellants.

      Myron H. Walker, for appellee.
   Grant, J.

(after stating the facts). The court instructed the jury that:

“The evidence in relation to the declaration of trust is given for the most part by Mr. Turner. The declaration of trust, if one was made by Mrs. Turner in her lifetime, was made to him; and it is from his evidence, and all the surrounding circumstances, that you must find, if you find a declaration of trust.”

The above instruction left the jury to infer that there were circumstances to sustain the testimony of Mr. Turner, and to show that Mrs. Turner held the notes and securities in trust for plaintiff. In fact, there were no such circumstances. On the contrary, all the circumstances refuted any theory of a gift or trust. Mrs. Turner retained during her lifetime the absolute and exclusive control of the notes, and regularly collected the interest thereon. They were kept with her other securities and evidences of property. Plaintiff lived in Port Huron, Mich., and Mrs. Turner in Grand Rapids. Plaintiff visited her, and made a visit at about the time she alleges the promise was made to deliver them to her. Many letters passed between them, and in no one did Mrs. Turner refer to any intention to forgive plaintiff the debt. Plaintiff was not related to her by blood, yet in her will she placed her upon the same basis with her blood relatives. It is to be presumed that Mrs. Turner, a person of long and great business experience, knew what was essential to transfer title to her property, both real and personal. Her will made no mention of these notes. She made a handsome bequest to plaintiff in her will. She made iao mention of the matter to her close friend, neighbor, and executor, Dr. Bradfield, or to any other of her friends. She made no indorsement upon the notes. She did not need the interest for her support. All her acts and conduct, from the time the notes were given to the time of her death, were consistent only with her absolute ownership. If there was any question for the jury, they should have been instructed that Mr. Turner’s testimony constituted the sole evidence tending to sustain the plaintiff’s claim, and that all the circumstances were in direct hostility to the claim.

The plaintiff’s petition to the probate court for an order that these securities be delivered up to her by the executors cannot be used as evidence in her favor, but may be used as evidence against her. She there stated her claim, and it was put in writing by her attorney. That petition does not state a gift causa mortis or inter vivos, or show a trust. It shows only a promise to deliver the notes to her, which it is alleged Mrs. Turner was prevented from doing by the distance between them and an unforeseen attack of disease, and states that it was understood and agreed that the said notes and securities should be returned to the plaintiff. The petition shows only a promise or an executory agreement without consideration and wholly void. • It is but just that she should be bound by the record she thus deliberately made.

Under the rulings of the court and the admission of counsel, there was no gift, and plaintiff now seeks to maintain her title to these notes upon the ground that there Was an executed trust, which, if sustained, must be based upon the statements which the witness Charles M. Turner testified she made to him. This court said (Hamilton v. Hall’s Estate, 111 Mich. 296):

It [the declaration of trust] must be such that, from the time it is made, the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the terms of the declaration of the trust itself.”

' If Mrs. Turner in her lifetime had declared her intention to sell and transfer these notes, could plaintiff have maintained an injunction to restrain such action, or, if she had actually sold them, could plaintiff have maintained trover against her for their value, on the strength of the testimony of Mr. Charles M. Turner ? What consideration could she have shown for the transaction? There was no act or writing on the part of the deceased to indicate that she intended to part with her property. The declaration on her part that these notes belonged to the plaintiff, and that when she was dead she wanted them surrendered to plaintiff ánd not made a part of her estate, would not have been sufficient to pass title or give her any equitable enforceable interest.

It .may have been the intention of Mrs. Turner to forgive plaintiff the debt upon her death. It is very probable that she concluded to give her more than this debt, and place her on the same basis with her blood relatives by her will, which she did, and that she therefore left these notes as a part of her estate: However this may be, there

is nothing in the record to show an executed trust, such.as is essential to maintain a suit at law. The case is ruled in principle by Trombly v. Klersy, 139 Mich. 209; Trombly v. Klersy, ante, 73; Clay v. Layton, 134 Mich. 317.

The court should have directed a verdict for the defendants.

Judgment reversed, and new trial ordered.

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