text:
    Adelbert Mosher v. Mary A. Kittle.

      Married woman — Contract of employment — Sole property.

    A married woman, after receiving from her husband a deed of his farm, subject to a mortgage of $2,000, mortgaged the farm for $1,000, and expended $700 of-the money in building a house on the farm. About two months after receiving the deed, she informed a farm laborer, who had been for several years employed by her husband on the farm, that she had a deed of the place, and desired him to continue to work as formerly, and that she would pay him. He made no reply, but continued to work on the farm for four years and five months. Nothing was said between him and the husband as to the termination of the original employment. The income of the farm was used in supporting the family, in paying interest upon the mortgages, the farm expenses, and certain indebtedness of the husband, who was aged and infirm, and did but little active work. The wife at times gave directions regarding the farm work, and it was understood in the family that she owned the farm. The income passed mainly through the hands of her son, who lived in the family, and assumed a good deal of the control and management of the farm. The wife at one time instructed this son to market a load of wheat, and pay the laborer some money out of the proceeds.
    She also stated to the neighbors that she considered him in her own personal employment, and was liable to him for his wages; and he also considered himself in her employment. Upon these facts the trial court, in a suit brought against the wife by the assignee of the laborer to recover for the labor performed by him after she received the deed of the farm, found that a contract existed between the wife and the laborer relating to her own estate, and upon which she was in law liable; which view is concurred in by the Court.

    Error to Ingham. (Person, J.)
    Argued June 20 and 21, 1894.
    Decided June 26, 1894.

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

      Smith, Lee <& Day, for appellant.

      Jason E. Nichols, for plaintiff.

       For cases bearing upon the question of the liability of married women upon general contracts, see note at the end of the opinion herein; upon promissory notes, see O'Donnell v. Bray, 99 Mich. 534, and note.

        CONTRACTS of married women.
      For cases bearing upon the question of the liability of married women on their contracts generally, see:

        General Rules Applicable to the Subject.

      1. DeVries v. Conklin, 22 Mich. 255, stating that the statute removing the disability of married women to contract in relation to property owned by them at the time of their marriage, or thereafter acquired, has been liberally construed, with a view to effectuate its general purpose; that a married woman’s contracts for the purchase of property on credit have been sustained (Tillman v. Shackleton, 15 Mich. 447); that it has been held that husband and wife may make conveyances of land directly to each other (Burdeno v. Amperse, 14 Mich. 97); that a married woman may mortgage her lands for the debt of her husband has also been held (Watson v. Thurber, 11 Mich. 457), as a conveyance by mortgage comes clearly within the power given her by the statute, and she must judge for herself whether it is for her interest to give it or not; but holding that the statute neither in terms authorizes her to make herself personally liable for the debt of another, nor, where no consideration moves to her, can it be presumptively for her benefit to do so.
      2. West v. Laraway, 28 Mich. 464, holding that, under our present system, whatever contracts a married woman may lawfully make may be made “with the like effect as if she were unmarried,” but that she can only make such contracts as relate to her own property; that she may purchase property, and bind herself for the purchase money, but that she cannot enter into an undertaking jointly with her husband merely as his surety, and she can never be held without affirmative proof that the contract is her own and within her powers.
      3. Johnson v. Sutherland, 39 Mich. 579, holding that a married woman’s promise to pay must be based on a consideration in the shape of property; that she has no power to make contracts except concerning her separate estate, which must be either by making agreements concerning property already possessed, and referring to it, or else concerning property acquired by the contract or in consideration of it.
      4. Insurance Co. v. McClellan, 43 Mich. 564, holding that there is never any presumption of the validity of an executory promise of a married woman, whether negotiable or not; that proof must always be given of such a consideration as will bind her, whether value received is expressed or not.
      5. Edwards v. McEnhill, 51 Mich. 160, 166, holding that the statute removes the common-law disabilities only parti illy, and it therefore becomes necessary, when a contract by a married woman is counted on or relied upon, to show the facts, that it may be seen that they were such as would enable her to make it.
      6. Insurance Co. v. Bank, 68 Mich. 116, holding that, in order to bind a married woman, the contract must be one on behalf of her sole property, and it should appear to have been made with that intent, as well as upon a consideration that would sustain it for that purpose; the burden of proof being upon the plaintiff to show for what purpose she contracted, and to prove it clearly.

        When Estopped from Raising the Question of Invalidity.

        Evans v. Calman, 92 Mich. 427, holding that where, after personal service of summons, a married woman allows a judgment to be taken against her ex parte upon a note signed by herself and husband, she cannot, in a suit in equity brought by her to set aside a levy made upon her land under an execution issued on the judgment, attack the judgment as invalid as to her because the consideration of the note was not for her individual benefit or for the benefit of her estate, it being her duty to have made the defense in the original suit.

        Appointment of Agent.

      1. Rankin v. West, 25 Mich. 195, 200, holding that, as held in Tillman v. Shackleton, 15 Mich. 447, a married woman may carry on business in her own name, and for that purpose make herself liable for a purchase of property on credit; and, if she may do this, there is no reason in law why her husband may not be her agent for this purpose.
      2. Insurance Co. v. McClellan, 43 Mich. 564, holding that a married woman cannot give to an agent any power which she does not possess herself, and cannot therefore appoint any agents that could bind her except concerning her property; and persons dealing with such agents must inquire into their powers.
      3. Fechheimer v. Peirce, 70 Mich. 440, holding that there can be no presumption of a husband’s authority to act for his wife, and a person.seeking to hold her for acts done by another must show affirmatively full authority to bind her.

        Rights of Bona fide Holder.

      1. Johnson v. Sutherland, 39 Mich. 579, holding that, inasmuch as a married woman cannot contract generally, her contracts, whether negotiable or non-negotiable in form, can never be any better in the hands of a bona fide holder than in those of the first holder.
      2. Waterbury v. Andrews, 67 Mich. 281, holding that a note given by a married woman to secure her husband’s debt is void as soon as made, and will not be protected in the hands of a bona fide holder, whether negotiable or not.

        Contract of Suretyship.

      1. Russel v. Bank, 39 Mich. 671, 673, holding that a mere contract of suretyship is within neither the letter nor the spirit of the statute.
      2. Howe v. North, 69 Mich. 272, 285, where a married woman contracted for the board of her husband, son, and herself, with the understanding that she was making a personal contract which would be binding upon her and her estate. And it was held that she simply became responsible for the debt and default of another, and occupied the position of surety for her husband, and such a contract she had not the power to make.

        Contract of Partnership.

      1. Bassett v. Shepardson, 52 Mich. 3, holding that partnership relations between a man and a woman are dissolved by their marriage; and the man’s continued possession of property owned by the woman, but used by the fiim, is by virtue of a license, merely, which would cease at her death.
      2. Artman v. Ferguson, 73 Mich. 146, holding that a husband and wife cannot enter into a contract of partnership between themselves, and thus render themselves jointly liable for the contracts of the firm thus (sought to be) established.
      3. Vail v. Winterstein, 94 Mich. 230, holding that a married woman may enter into partnership relations with others than her husband, and thus make her separate estate liable for the debts of the firm.

        Mortgage of Land to Secure Husband’s Debt.

      1. Watson v. Thurber, 11 Mich. 457, 469 (approved in DeVries v. Conklin, 22 Mich. 255, 259), holding that a wife may mortgage her lands to secure her husband’s debts.
      2. Frickee v. Donner, 35 Mich. 151, holding that the connection of a husband with a mortgage given by his wife upon her land, which was occupied as a homestead, to secure his debt, arising from his joining'with her in the mortgage, is of no consequence, she being able to mortgage the property as though she were sole, and any irregularities or defects in the execution or acknowledgment of the mortgage on his part will not impair the security.

        Liability on Joint Covenant in Deed or Mortgage of Husband’s Land.

      1. Kitchell v. Mudgett, 37 Mich. 81, 84, holding that a married woman who joins with her husband in a mortgage of his land is not personally liable on their covenant to pay the mortgage debt; and Carley v. Fox, 38 Mich. 387, holding that a wife who joins with her husband in a warranty deed of his land is not liable on their covenants of warranty.
      2. Gantz v. Toles, 40 Mich. 725, 728, holding that a married woman cannot become the debtor of a mortgagee by joining with her husband in a mortgage of his land to release her dower, or by the invalid act of joining in the bond given with the mortgage.
      3. Arthur v. Caverly, 98 Mich. 82, holding that a wife who joins with her husband in a warranty deed of his land, the sole consideration for which is the conveyance to her of other land, is jointly liable with him for a breach of the covenants in said deed.

        Effect of Joining with Husband in a Mortgage of His Lands, on Which She Holds a Prior Mortgage.

        Kitchell v. Mudgett, 37 Mich. 81, where a' married woman, who held a duly-recorded mortgage upon land owned by her husband, and which they occupied as a homestead, united with him in a second mortgage of the land in the manner prescribed by the statute for the release of dower and homestead rights. The second mortgagee brought suit to foreclose his mortgage, and claimed that, by uniting in the mortgage, the wife transferred her own mortgage interest, and subjected it to the lien of the'mortgage she signed, and in support of his claim cited Niles v. Ransford, 1 Mich. 338, and Thayer v. McGee, 20 Id. 195, where it was held that a quitclaim deed will pass a mortgage interest. And it was held that the cases are very different; that the quitclaim deed, as the name of the instrument imports, is intended as a transfer of any interest the grantor or releasor may have in the lands, whatever its nature, but the execution by the wife of the husband’s deed of any sort implies no such intent; that it implies, on the other hand, that she executes it for the purposes for which the statute makes her joining with him important to the giving of full effect to his deed, namely, the releasing of her contingent right of dower, and the consenting to the deed when it affects the homestead; and, if the intent is to affect any independent interest of her own, it is reasonable to expect some special provision in the instrument showing specifically in what manner and Low far her separate interests are intended to be affected.

        Liability on Covenants in Lease from Husband.

        Jenne v. Marble, 37 Mich. 319, where the plaintiff, as assignee, sued the defendant upon her personal covenants contained in a lease from her husband to her, and for the value of certain farm live stock claimed to have been sold to her by him. And it was held:
      a — That the agreement was one intended to be enforced by an ■ordinary action at common law, and not in equity.
      b — That it was executory entirely on the part of the wife, involving no present transfer or charge of her property, or any of it.
      c — That it required her to pay rent, incapable of being apportioned, upon the farm on which the family at, the time resided, ■and which included a legal homestead, over which her husband or his creditors could under no circumstances exercise dominion which would interfere with her right of possession, and it conferred a right of eviction for any default in the payment of rent.
      d — That it either contemplated a separation, which no court of law would enforce, or else it compelled defendant to pay rent‘for property jointly occupied with her husband as a home, in which-he was legally bound to maintain her.
      e — That, as regarded the personal property, it consisted of animals used on the homestead, most of which were exempt from execution and incapable of being disposed of by the husband without defendant’s consent, and liable, if so interfered with, to be replevied by her, and none of which had been so distinguished as to take them out of the exemption.
      And it was further held that, if the contract was to be sustained, it must be upon the ground that husbands and wives can contract with each other just as freely as strangers can, and may sue each other just as freely at law or in equity; that the statutes have not gone far enough to allow this, and that, so far as husbands and wives are concerned, they cannot contract with each other in any larger sense than they could formerly in equity, except that their contracts, when valid, may be enforced at law when legal in form.

        Contract for Improvements on Land Held by Husband and Wife Jointly.

      1. Speier v. Opfer, 73 Mich. 35, holding that a married woman cannot be held liable upon a joint contract with her husband for the. erection of a building upon land held by them jointly by entireties.
      2. Curtis v. Crowe, 74 Mich. 99, holding that a wife cannot make a valid contract for the erection of a building upon land owned by herself and husband jointly.

        Bond of Husband and Wife Given for Loan Used in Erecting Building on Her Land.

        Wilson v. Wilson Estate, 80 Mich. 472, holding that a married woman is liable upon a joint and several bond, signed by herself and her husband, given as security for money borrowed by her, and used in building a house upon her land.

        Contracts for Family Necessaries.

      1. Campbell v. White, 22 Mich. 178, 185, where one of the questions presented was whether a married woman residing with her husband, and owning separate estate, could be held liable for merchandise purchased by herself on her individual credit and sole agreement to pay for it, in case the items belonged to the class of family necessaries, and were actually used by the husband’s family and in his household. And it was held:
      a — That the question must be answered in the affirmative, and upon the grounds stated by Mr. Justice Cooley in Tillman v. Shackleton, 15 Mich. 447.
      b — That in the present case, as in that, the liability of the wife was consequent upon her obtainment of the goods on her sole credit and individual promise to pay for them, and was therefore contemporaneous with such obtainment, and not conditional upon the kind of use to which the goods should be subsequently put.
      c — That her right to acquire upon her own credit was complete when tlie articles were obtained, and her liability to the vendor was not contingent upon her ownership of pther separate estate, or on the character of the goods bought, or the nature of their immediate or ulterior disposition, but it existed, if at all, when the property was obtained on her exclusive credit and individual agreement; that her promise to pay for the articles was an undertaking to pay for her separate property, and one she was competent to make.
      2. Powers v. Russell, 26 Mich. 179, holding, in a suit by a merchant against a married woman for the price of goods sold to her, that if the plaintiff knew that the defendant was a married woman, living with her husband, and the goods were not of a character to indicate that they were bought for other than family use in her husband’s family, and she did not claim affirmatively to be purchasing them on her individual account, the natural inference would be that she was purchasing them on her husband’s account, and for the use of his family, and she could not be made individually liable without an express agreement to become so, or that the goods should be charged or the credit given to herself.
      3. Howe v. North, 69 Mich. 272, 284, holding that, under the statute, a married woman residing with her husband is liable for merchandise purchased by herself upon her individual credit and sole agreement to pay for the same, even when the merchandise so purchased belongs to the class of family necessaries, and are actually used by the husband’s family, and in his house.
      4. Fafeyta v. McGoldrick, 79 Mich. 360, holding that a married woman is liable for the price of a suit of clothes for a minor son, of which she is the sole purchaser, and to whom alone credit is given, upon her agreement to pay for the same.
      5. Hirshfield v. Waldron, 83 Mich. 116, holding that a married woman is liable for the price of clothing purchased by her for a minor son, and charged to her by her direction, she agreeing to pay for the same.

        Contract for Professional Services.

      1. Carstens v. Hanselman, 61 Mich. 426, holding that a contract between a married woman, whose husband has deserted her, and a physician, for professional services, is binding upon her.
      2. Buck v. Haynes Estate, 75 Mich. 397, holding that the promise of a married woman to pay for medical services rendered to her husband is not binding, it not being a contract relating to or benefiting her separate estate.
      3. Wolcott v. Patterson, 100 Mich. 227, holding that a married woman may make herself chargeable with the value of services rendered by an attorney upon her employment to secure a divorce from her husband.

        Miscellaneous Cases.

      1. Damon v. Deeves, 57 Mich. 247, holding that a married woman is as much at liberty as a spinster to create express liens on her property for any lawful purpose, and can mortgage it to secure another person’s debt, even if her note therefor be not binding.
      2. Heinmiller v. Hatheway, 60 Mich. 391, holding that, where a wife joins with her' husband in a deed of the fee of land of which she is in whole or in part the sole owner, she conveys all of her interest therein, but she can only be held liable on her covenants in such deed to the extent of her interes,t in the land conveyed.
      3. Jordan v. Westerman, 62 Mich. 170, holding that a contract between a wife and her solicitors, made in advance of a decree for divorce and allowance of alimony, giving the solicitors one-half of such alimony, is void as against public policy.
      4. Post v. Shafer, 63 Mich. 85, 89, where judgment was rendered against a husband and wife upon their joint promissory note, and they appealed jointly to the circuit court, and executed a joint bond on such appeal. And it was held that the rendition of judgment against the wife made her appeal necessary; that the appeal-bond was one that she could execute, and that she was bound thereby to the same extent as the surety, and judgment could not be properly rendered on the bond against one more than the other.
      5. Wineman v. Phillips, 93 Mich. 223, holding that a married woman can secure the payment of the unpaid purchase price of property, the title to which vested in herself and husband jointly, by a mortgage upon her real estate.
      6. Gillespie v. Beecher, 94 Mich. 374, where a husband and wife sued their landlord, who had put them into joint possession of a house and premises which they were using as a dwelling and an hotel and boarding-house under a lease executed to and by them jointly, for his unlawful entry into the leased premises, and their eviction therefrom. The circuit judge directed a verdict for the defendant, on the ground that the wife was not a proper party to the lease, and could not join with her husband in bringing the suit. And, in reversing the judgment entered on the verdict, it was held that the married woman’s act was passed for the protection of married women, and its purpose was to enlarge their rights, not to contract them; and that it was not meant to deprive them of the right, either acting alone or jointly with others,- of protecting their interests in property, either real or personal.
      7. LeMay v. Wickert, 98 Mich. 628, holding that a deed executed by a married woman in payment of her husband’s debt is valid.

   Grant, J.

This case was tried before the court without a jury, and comes before us on exceptions to the findings.

The husband of the defendant was a farmer possessed of a'farm of 160 acres. Alfred Mosher, the assignor of plaintiff, had been for many years in Mr. Kittle’s employment as a farm laborer. January 19, 1885, Mr. Kittle conveyed the farm by warranty deed to his wife. It was subject to a mortgage of $2,000. She subsequently executed another mortgage for $1,000, $700 of which she expended in building a house. The first of April, 1885, defendant informed Alfred that she had a deed of the place, and that she wanted him to keep right on as he had done, and that she would pay him. To this Alfred made no reply, but continued to work till September 2, 1889. There was no talk between Alfred and Mr. Kittle as to the termination of his employment for Mr. Kittle. The income from the farm was used in supporting the family, in paying interest upon the mortgages, the farm expenses, and certain indebtedness of Mr. Kittle, who was aged and infirm, and did but little active work. Mrs. Kittle at times gave directions regarding farm work, and it was understood in the family that she owned the farm. The income passed mainly through the hands of their son, who lived in the family, and assumed a good deal of the control and management of the farm. At one time, Alfred wishing some money, Mrs. Kittle instructed her son to draw a load of wheat to market and pay him out of the proceeds. She made statements to the neighbors that she considered Alfred in her own personal employment, and was liable to him for his wages. Alfred also considered himself in her employment. Upon these facts the court found that a contract existed between Alfred and defendant relating to her own estate, and upon which she was in law liable.

It is argued, on behalf of defendant, that there was no contract in regard to her sole property; that she was not in fact carrying on the business of farming, but that the business continued in the same manner after the deed as before. We cannot concur in this view. We think the conclusion reached by the court below correct. The farm was hers. She made a payment to Alfred. She was benefited by his labor. She to some extent directed the management. Her husband had but little to do with it. It is evident that both understood that Alfred’s employment for her husband had ceased, and that he was thereafter in her employ. The husband had no interest in the farm any further than his support and the payment of his debts were concerned. But no agreement for either of these upon her part is shown. No formal termination of the contract of hire between Alfred and her husband was necessary. The burden of proof was, of course, upon plaintiff to show a contract with her, and in regard to her sole property. He satisfied these requirements by proof of a promise to employ and pay, acted upon by Alfred, and that the work was performed upon her own property and for her benefit.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Joseph Gambs and Charles Daniels v. The Estate of Charles H. Sutherland, Deceased.

      Sale — Illegal use of goods — Intoxicating liquors — Action for purchase price — Practice in Supreme Court.

    1. Mere knowledge on the part of a brewing company that a purchaser of beer is conducting business in his brother’s name, when in fact the business is his own, will not prevent a recovery of the value of the beer.

    2. The appellate court will not go outside the findings of fact, and draw inferences from circumstances, for the purpose of establishing error, no exceptions having been taken to refusals to find.
    Case made from Benzie. (Aldrich, J.)
    Argued February 15, 1894.
    Decided July 5, 1894.
    Appeal from the allowance of a claim against the estate of the decedent. Defendant assigns error.
    Affirmed.
    The facts are stated in the opinion.

      Manly G. Dodge, for appellant.

      D. G. F. Warner, for claimants.

       The right to recover the price of property sold for unlawful use is the subject of an extensive note to Graves v. Johnson, 15 L. R. A. 884.
      And see Brewing Co. v. Wall, 98 Mich. 158, and cases cited.

   Montgomery, J.

This is a claim filed against the estate of Charles E. Sutherland for beer claimed to have been furnished to Sutherland in his lifetime.

It appears from the case made that, for several years prior to the year 1888, Charles H. Sutherland had carried on a saloon business in the village of Frankfort, in his own name; that for some time prior to June, 1888, his brother, George Sutherland, had been employed by him in the business; that in that month Charles and George, in order to enable Charles to furnish the liquor bond required by law, made an arrangement by which the saloon business should be carried on in the year 1888 in the name of George Sutherland. To carry out this arrangement, Charles executed and delivered to George a bill of sale of the saloon outfit, excepting the liquors. An inventory was taken, the tax was paid by George Sutherland, and a bond in the sum of $3,000 was given and approved, Geoi'ge Sutherland appearing as principal, and Charles as surety. George continued to work in the saloon, as bartender, for $2 a day and his house rent. The business continued to belong to Charles, and he furnished all the capital, and received all the profits of the business. Charles kept the books of account, wrote all the letters relating to the business, and looked after the business generally, but everything was done in the name of George. George did nothing in the business, except waiting on customers. The claimants sold beer, which was shipped to “Sutherland,” and knew of -the fact that the business was being conducted in George’s name, and also that the business was in fact'that of Charles H. Sutherland.

Under the circumstances, it cannot be doubted that Charles H. Sutherland, who was the actual owner of the business, and who had the property and the proceeds of it, is in law liable to pay for the goods, unless the claimants have been connected with an illegal transaction in such a way as to preclude recovery by them, on grounds of public policy. Does the evasion of some of the terms, of the liquor law (see sections 1, 4, and 8 of the act, 3 How. Stat, p. 3181 et seq.) constitute an offense, under the facts found in the present case? We think not. The date when the claimants or their agent learned that the business was being conducted in the name of George Sutherland, while it was 'in fact that of Charles H. Sutherland, is not definitely fixed, nor is there any affirmative finding that the claimants did any, act with the purpose of aiding in the evasion of the law. The case comes within the ruling in Webber v. Donnelly, 33 Mich. 469, where it was held that mere knowledge on the part of the vendor that the vendee of the goods is engaged in an illegal business will not prevent a recovery of the value of the property, if there be no act done by the vendor in furtherance of the attempted illegal transaction. It may perhaps be admitted that there are circumstances in the present case from which an inference might be drawn that the claimants were guilty of some participation in the attempt to defeat the statute, but we cannot draw inferences of fact from the testimony, for the purpose of establishing error. The proper practice would have been to have the findings cover the point, or, if the circuit judge .should refuse to find in accordance with the testimony, to •except to such refusal, and thus raise the question as to whether the evidence called for a finding of facts in .accordance with the claim of the defendant. Unless we go outside of the findings, and draw inferences from cir■cumstances, which might or might not be justified, error •does not affirmatively appear.

The judgment will be affirmed, with costs.

McGrath, 0. J., Grant and Hooker, JJ., concurred. Long, J., did not sit.


text:
    The R. Brand Company v. The Estate of Charles H. Sutherland, Deceased.

      Sale — Intoxicating• liquors.

    This case is ruled by Gambs v. Estate of Sutherland, ante, 355.
    Case made from Benzie. (Aldrich, J.)
    Argued February 15, 1894.
    Decided July 5, 1894.
    Appeal from the allowance of a claim against the estate of the decedent. Defendant assigns error.
    Affirmed.
    The facts are stated in the opinion, and in Gambs v. Estate of Sutherland, ante, 355.

      Manly G. Dodge, for appellant.

      N. A. Parker, for claimant.
   Montgomery, J.

The record in the present case is not materially different from that in the case of Gambs v. Sutherland Estate, ante, 355. The statement of facts proven is more specific that the claimant had knowledge of the arrangement between' Charles and George Sutherland; but there is no finding of fact showing that the claimant did any act, other than the sale of the liquors, which was calculated to assist in the evasion of the statute by the deceased.

The judgment will be affirmed, with costs.

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


author: McGrath, C. J.

text:
    August Knop v. The National Fire Insurance Company of Hartford, Connecticut.

      Fire insurance — Conditions of policy — New trial — Exceptions— Bill of particulars.

    1. In an action upon an insurance policy issued upon the plaintiff’s dwelling-house and household effects, it was insisted that under a clause in the policy which provided that it should be void “if the interest of the insured be other than unconditional and sole ownership,” inasmuch as plaintiff held under a land contract, he could not recover. Plaintiff made no written application, nor any representations as to ownership. And it is held that such a condition will not invalidate the policy in such a case; citing Insurance Co. v. Fogelman, 35 Mich. 481; Dupreau v. Insurance Co., 76 Id. 615.

      2. The statement in an affidavit, made by the plaintiff after the loss, that he was the sole and . unconditional owner, will not. prevent a recovery, as the defendant could not have been, prejudiced by if.
    3. To enable a party to avail himself of the provisions of Act No. 134, Laws of 1893, allowing exceptions to be taken and error-assigned on the decision of the circuit judge in refusing a motion for a new trial, and providing for a review of the same by the Supreme Court, he must take exceptions to such decision, and, if he fails to do so, the error, if any, will be deemed to have been waived.

    4. A bill of particulars is expected to be explanatory of the declaration, and in amplification of it.
    5. In the cases where it has been held that it is the duty of a party demanding a bill of particulars to re-move for a more specific bill if the one served is not satisfactory, and that an objection upon the trial comes too late, there had been some effort at compliance with the demand; citing Freehling v. Ketchum, 39 Mich. 299; Township of Buckeye v. Clark, 90 Id. 432.

      6. Plaintiff sued up in an insurance policy covering his dwelling-house, and household furniture, beds, bedding, family wearing apparel, printed books and music, silver and plated ware, pictures, paintings, engravings, mirrors, and their frames, piano, organ, and sewing-machine, trunks, fuel, and family provisions, while contained in said building. The defendant demanded a bill of particulars, and one was furnished claiming for the complete loss by fire of the house and contents, namely, “house, $300; contents of house, $300.” On the trial objection was made to the introduction of proof as to the contents of the house, on the ground that a bill of particulars had been called for, and no particulars of the contents of the house had been furnished. It was urged on the part of the plaintiff that the defendant had in its possession a list of the lost articles furnished by plaintiff; but it appeared that, after such list had been furnished, a number of articles, corresponding in description to those named in that list, had, to plaintiff’s knowledge, been discovered secreted in a barn upon the premises. And it is held that defendant was entitled to know whether plaintiff still claimed to recover for such articles; that the paper furnished in answer to the demand was obscure and evasive, and gave no additional information whatever, and possessed none of the qualities of a bill of items or particulars; that the court should have exercised its discretion under Circuit Court Eule No. 38, which provides that, if the bill of particulars delivered be insufficient, the court may, in its discretion, nonsuit the plaintiff, allow further time to furnish it, or require a more particular bill to be delivered; and that it was error to permit the evidence to be introduced, over defendant’s objection, under said bill of particulars.
    Error to Wayne. (Hosnier, J.)
    Argued April 36, 1894.
    Decided July 5, 1894.

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

      Elbridge F. Bacon, for appellant.

      E. S. Olarlcson, for plaintiff.

       See, on this same subject, Hamilton v. Insurance Co., 98 Mich. 535.

       See Brassel v. Railway Co., 101 Mich. 7, and note.

   McGrath, C. J.

Action on a fire insurance policy issued by defendant upon plaintiff’s dwelling and household effects. It is insisted that under a clause in the policy which provided that the policy should be void “if the interest of the insured be other than unconditional and sole ownership/5 inasmuch as plaintiff held under a land contract, he could not recover. Plaintiff marU no written application, nor is it claimed that he null any representations as to ownership. It has been repeatedly held that such a condition will not invalidate the policy in such case. Farmers’ Mut. Fire Ins. Co. v. Fogelman, 35 Mich. 481; Dupreau v. Insurance Co., 76 Id. 615. Nor do we think that the statement in the affidavit, made after the loss, that he was the sole and unconditional owner, would prevent a recovery. The defendant could not be prejudiced by such a statement.

A motion for a new trial was made in the court below, and a review is sought of the court’s ruling denying the motion. The language of the act of 1893 (No. 134) is that—

“Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court."

In the present case no exceptions were taken, and the error, if any, must he deemed to have been waived.

An objection was made to the introduction of proof as to the contents of the dwelling, for the reason that the bill of particulars described the articles for which recovery was sought as “contents of house." Defendant had demanded a bill of particulars. That furnished was obscure and evasive. A bill of particulars is expected to be explanatory of the declaration, and in amplification of it. The paper served in the present case in response to the demand gave no additional information whatsoever, and possessed none of the qualities of a bill of items or particulars. In those cases where it has been held that it is the duty of the party demanding the bill to re-move for a more specific bill, and that an objection upon the trial comes too late, there had been some effort at compliance with the demand. Freehling v. Ketchum, 39 Mich. 299; Township of Buckeye v. Clark, 90 Id. 432. It is urged that defendant had in its, possession a list of the lost articles furnished by plaintiff; but, after such list had been furnished, a number of articles, corresponding in description to those named in that list, had, to plaintiff’s knowledge, been discovered sebreted in a barn upon the premises, and defendant was entitled to know whether plaintiff still claimed to recover for such articles. The court should have exercised its discretion, under Circuit Court Rule No. 38.

For this error the judgment must be reversed, and a new trial granted.

The other Justices concurred.


text:
    The Common Council of the City of Detroit v. The Public Lighting Commission of Detroit.

      Municipal corporations — Contract for public lighting — Approval by council — Mandamus.

      Mandamus will lie to compel the public lighting commission of Detroit, provided for by Act No. 294, Local Acts of 1893, to submit to the common council, for its approval or disapproval, contracts entered into by the commission under section 4 of the act for the purchase of lands, machinery, and appliances necessary to the establishing of a plant for public lighting. '

      Certiorari to Wayne. (Donovan, J.)
    Argued June 5, 1894.
    Decided July 5, 1894.
    Relator applied to the circuit court for mandamus to compel the public lighting commission of Detroit to submit to the common council, for its approval or disapproval, certain contracts entered into by the commission for the purchase of appliances incident to the establishing of a public lighting plant. Relator brings certiorari to review order denying the writ.
    Reversed, and mandamus granted.
    The facts are stated in the opinion.

      Philip T. Van Zile, for relator.

      John J. Speed, city counselor, for respondent.
   McGrath, C. J.

In 1893 the charter of the city of Detroit was amended so as to provide for a public lighting commission. Act No. 294, Local Acts of 1893.

Section 1 of the amending act provides for the appointment of the commissioners.

Section 2 provides that the city may procure the necessary plant for lighting, or it may purchase towers, poles, wires, lamps, and other appliances, . the use of which it may let to persons contracting to light the city, and empowers the city to lay pipes and conduits and maintain wires in the streets, alleys, etc.

Section 3 provides that, if the common council shall determine to contract for lighting, it shall, by resolution, direct the public lighting commissioners to enter into a contract for lighting said city, either by electricity or by such other means as it may determine, and that it shall thereupon be the duty of the commissioners to prepare specifications and advertise for proposals, and enter into a contract on behalf of said city with the lowest responsible bidder.

Section 4 is as follows:

“If the common council shall determine that it is advisable to establish a plant for public lighting, to be owned by the city, it may direct said commissioners to purchase the necessary lands, machinery, wires, poles, lamps, towers, and other apparatus and appliances mentioned in the first section of this chapter, the cost of which shall not exceed $800,000, and it shall thereupon be the duty of said commissioners to carry into effect the authority thereby conferred, and to make the necessary purchase of lands, machinery, engines, tools, lamps, apparatus, and appliances, and construct the buildings required, and cause to be constructed or laid all necessary conduits and lines of wire below ground, and to erect and construct all necessary poles, towers, posts, lines of wire above ground, which they shall deem necessary or required according to such system or systems as they may deem best for the lighting of said city.”

Section 5 provides that the commissioners may employ an electrical engineer, and such other superintendents, engineers, clerks, agents, and subordinates under them as may be necessary to carry into effect the provisions of this chapter, regulate and define their duties, and prescribe their compensation.

Section 6 provides that the commissioners shall have a general supervision and management of all public lighting, and of any plant established by the city, and all employés engaged in or about the construction or operation thereof, provided that, after the adoption by them of plans and specifications for the erection of any buildings, the board of public works shall have the immediate supervision or superintendence of construction thereof, and also of the laying of conduits in the public streets, and of the necessary excavation, refilling, and repaving caused thereby.

Compiler’s section 190 of the charter provides that— until approved by the common council, and until the contract therefor has been duly approved and confirmed by the common council.”

“No contract shall be let or entered into for the construction of any public work, or for any work to be done, or for the purchasing- or furnishing of supplies for said city not herein provided for, and no such public work, performance, purchasing, or supplying shall be commenced

Relator applies for a mandamus to compel respondent to submit to the common council, for its approval or disapproval, certain contracts entered into by the commissioners under section 4 of the act of 1893.

The commissioners insist that, with the direction to purchase, the authority of the common council ceased; that the direction to purchase, without conditions or limitations, is inconsistent with authority to purchase by contract,'subject to approval by the council; and that a purchase according to such systems as the commission shall deem best is inconsistent with the approval of another body, which may not agree with the commission.

The act in question is not a separate, independent act. It is an amendment to the charter. Compiler's section 190, above referred to, is found in the chapter relating to Taxation and Finance; ” and this chapter contains, not only this, but other conditions, limitations, and restrictions, which are applicable to all purchases made and contracts entered into by or on behalf of the city, unless the act creating the agency of the city, in express terms or by necessary implication, exempts such agency from the operation of these provisions. A direction to purchase, given to this agency, must be construed just as a direction given to any other agency of the city. The mode of the exercise of the authority conferred must be that provided by the charter, of which the act is amendatory.

It will be noticed that section 3 of the act provides that, in case the council determines to contract for lighting, it shall, by resolution, direct the commissioners to enter into a contract for lighting, while section 4 provides that, if the council shall determine that it is advisable to purchase a plant, it may direct said commissioners to purchase the necessary lands, etc. Section % authorizes the city to purchase, and it would seem that the Legislature intended that the direction to the commission to purchase the lands, machinery, and appliances at least should be discretionary with the common council. Clearly, if the council had undertaken to purchase, it would have been bound by the restrictions contained in chapter 11. The authority “to purchase” is none the less specific in the one case than in the other. It is made the duty of the commissioners to carry into effect the authority conferred by the council. The construction contended for by respondent necessarily excludes, not only the provision respecting the confirmation of contracts by the council, but all of the limitations, conditions, and restrictions imposed by chapter 11, and gives to the commissioners absolute authority to expend the sum of $800,000 in their own way, and without even a report to anybody as to such expenditure.

It is urged that the act empowers the commission to determine the system, and that, if the council may refuse to confirm the contract, it may thus control the system to be adopted. We cannot assume that the council will act capriciously, or seek to interfere with the proper exercise of the discretion reposed in the commission. It is not unusual to place limitations upon the exercise of discretionary powers, or to require the concurrence of other agencies to effectuate conclusions reached. The question here is whether the limitations contained in the body of the charter apply to this amendment. Was it intended that this section 4, which is devoid of detail or method, should be treated as an independent provision, without regard to general charter provisions expressly applicable to all purchases and all .contracts? We think not.

The judgment must therefore be reversed, and the court below directed to issue a mandamus as prajred.

The other Justices concurred.

       Compilation of 1893.

       Act No. 326, Local Acts of 1883, chap. 11, § 8.


author: Grant, J.

text:
    Mary A. Chittock v. Gordon Chittock.

      Susband and ivife — Divorce—Settlement—Release of dower — Fraud and duress.

    1. A contract by which a wife releases her right of dower to her husband is valid; citing Dakin v. Dakin, 97 Mich. 284.
    2. Pending a suit for divorce instituted by the defendant against the complainant, a contract was entered into, pursuant to . which defendant discontinued his suit and paid $600 to complainant, and she released all property rights growing out of the marriage relation. Subsequently she filed a bill for divorce, and he, relying on the settlement, made no defense, and a decree was entered in her favor. Complainant thereafter filed a bill to set aside the contract of settlement so far as it related to her right of dower, alleging that the same was obtained by fraud and duress. And it is held that, the solicitors and counsel who negotiated and effected the settlement being attorneys of great experience, undoubted probity, and high standing in the profession, there being no concealment of any facts, and the terms of the settlement being clear and unmistakable, the decree dismissing complainant’s bill must be affirmed.
    Appeal from Jackson. (Peck, J.)
    Submitted on briefs June 7, 1894.
    Decided July 5, 1894.
    Bill to set aside a release of dower. Complainant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      W. W. Mitchel, for complainant.

      Wilson & Coll, for defendant.
   Grant, J.

Complainant and defendant were married June 11, 1883. She was then 24 years of age, and he 58. They lived together as husband and wife until October, 1886, when they separated. In the following February he filed a bill of complaint against her in the Jackson circuit court for a decree of divorce, charging her with adultery and cruelty. She answered, denying the allegations. The cause was subsequently removed to the Ionia circuit court for hearing. Ex-Gov. Austin Blair and Hon. Thomas E. Barkworth were his solicitors, while Cahill & Ostrander were hers. The case was set for hearing May 23, 1888. Just before this date, Mr. W. W. Mitchel was employed as counsel for her. Negotiations for a settlement had been proceeding for some time between the solicitors for the respective parties. At the time set for the hearing, these negotiations were renewed; Judge Cahill and Mr. Mitchel representing Mrs. Ohittock, and Gov. Blair and Mr. Barkworth representing Mr. Ohittock. An agreement was reached, by which he agreed to pay her $600, and she released 'him “from any and all liability now or at any time hereafter existing or accruing, either on account of support, maintenance, alimony, dower, thirds, or allowance, either statutory or arising at common law, incident to the marriage relation; intending hereby to relieve the said party of the first part entirely from all present claims or demands, and from any that may hereafter attach, arising in any manner from the relation of husband and wife, and from any and all costs, charges, and expenses, as well as alimony, either temporary or permanent, incident to any divorce suit now pending, or that may hereafter be commenced by either of the parties hereto against the other.” The agreement also recited that the parties were “ desirous of settling their property interests, and making a division thereof between themselves, and of providing relative to their mutual rights, interests, and liabilities arising from tbe marital relation, so far as the same can be done without the intervention of law.” It was also agreed that his suit for divorce should be discontinued, and that he should surrender a certain statement made by her, and certain letters written by her, which acknowledged the commission of adultery by her. But these provisions were not included in the written agreement of settlement. The agreement was fully executed, the money paid, the suit discontinued, the statement and letters surrendered, and the release delivered to Mr. Chittock. Subsequently she filed a bill of divorce against him, on the ground of cruelty. He, relying upon the settlement as to their property rights, made no defense to that suit, an order pro confesso was entered, and she obtained a decree. December 1, 1890, she filed the present bill, alleging that that settlement was obtained by fraud and duress, without adequate consideration, and praying that it might be set aside, and declared void, so far as it related to the right of dower. Issue was duly framed by answer and replication. Proofs were taken in open court, and the bill was dismissed.

A contract by the wife, releasing her right of dower to the husband, is valid. Dakin v. Dakin, 97 Mich. 284. The only question, therefore, in this case, necessary to determine, is, was the release obtained by fraud and duress?

All the solicitors for the respective parties in the first divorce suit who were present at the settlement, viz., Gov. Blair, Mr. Barkworth, Judge Cahill, and Mr. Mitchel, and also Mr. and Mrs. Chittock, were witnesses in the present case. Other witnesses were introduced, whose testimony related to the value of the dower interest, and the alleged adulterous conduct of Mrs. Chittock'. The .solicitors and counsel for the respective parties who negotiated and effected the settlement were attorneys of great experience, undoubted probity, and high standing in the profession. There was no concealment of any facts. The existence of the statement and the letters was fully known to both her and her counsel. With this knowledge,' they advised her to settle. The terms of the settlement were clear and unmistakable. There was no haste, threats, or undue influence. She deliberately chose to accept $600, and to release all her rights in his property, rather than to contest the grave charge made against her by her husband. She obtained the surrender of the incriminating written documents. We are thoroughly convinced that the conclusion reached by the court below is correct.

This disposal of the case renders it unimportant to determine other questions which have been raised.

Decree affirmed, with costs.

The other Justices concurred.


text:
    Charles Talmage, By his Next Friend, v. Charles Smith.

      Trespass to the person — Intent—Contributory negligence — Opening to jury.

    1. Where in an action of trespass for the throwing of a stick by the defendant, which struck the plaintiff, the right of recovery is made to depend upon an intention on the part of the defendant to hit somebody, and to inflict an unwarranted injury upon some one, the fact that the injury resulted Oto another than was intended will not relieve the defendant from liability.

      2. In a suit by an infant plaintiff for an injury inflicted upon.bim by the defendant, the attorney for the plaintiff, in his opening to the jury, stated that the subject-matter of the suit had been submitted to arbitration by the plaintiff’s father and the defendant, and that a certain compensation for the trespass alleged to have been committed had been agreed upon, and repeated the proposition in his offer of testimony. The offered testimony was excluded, and the circuit judge not only specially cautioned the jury not to take the matter into account, but further defined the issues with exceptional clearness in his charge. And it is held that the ruling was proper, but that the Court are not prepared to say that the statement of counsel was intended by him to influence the jury improperly, or that, under the circumstances, it had that result; and that the case falls within the rulings in Daniels v. Weeles, 90 Mich. 190; Kirchner v. Railway Co., 91 Id. 400; Prentis v. Bates, 93 Id. 234.

    Error to Ionia. (Smith, J.)
    Submitted on briefs June 7, 1894.
    Decided July 5, 1894.
    Trespass. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      George E. Nichols, for appellant.

      F. D. M. Davis (id 0. Miller, of counsel), for plaintiff.

       Intent, as an element of an assault, is the subject of a note to the Wisconsin case of Vosburg v. Putney, 14 L. R. A. 238.

       See Prentis v. Bates, 93 Mich. 234, holding that nothing short of bad faith or a gross misconception of what is admissible, resulting in bringing to the attention of the jury matters wholly irrelevant, and of a nature calculated to create so profound an impression that the charge of the court cannot eliminate the prejudice produced, will justify an appellate court in vacating a judgment on the ground of improper opening, either in statement of the law or fact.

   Montgomery, J.

The plaintiff recovered in an action of trespass. The case made by plaintiff’s proofs was substantially as follows: On the evening of September 17, 1891, some limekilns were burning a short distance from defendant’s premises, in Portland, Ionia county. Defendant had on his premises certain sheds. He came up to the' vicinity of the sheds, and saw six or eight hoys on the roof of one of them. He claims that he ordered the boys to get down, and they at once did so. He then passed around to where he had a view of the roof of another shed, and saw two boys on. the roof. The defendant claims that he did not see the plaintiff, and the proof is not very clear that he did, although there was some testimony from which it might have been found that plaintiff was within his view. Defendant ordered the boys in sight to get down, and there was testimony tending to show that the two boys in defendant’s view started to get down at once. Before they succeeded in doing so, however, defendant took a stick, which is described as being two inches in width and of about the same thickness and about 16 inches long, and threw it in the direction of the boys; and there was testimony tending to show that it was thrown at one of the boys in view of the defendant. The stick missed him, and hit the plaintiff just above the eye with such force as to inflict an injury which resulted in the total loss of the sight of the eye.

Counsel for the defendant contends that the undisputed testimony shows that defendant threw the stick without intending to hit anybody, and that under the circumstances, if it in fact hit the plaintiff, — defendant not knowing that he was on the shed, — he was not liable. We cannot understand why these statements should find a place in the brief of defendant’s counsel. George Talmage, the plaintiff’s father, testifies that defendant said to him that he threw the stick, intending it for Byron Smith,— one of the boys on the roof, — and this is fully supported by the circumstances of the case. It is hardly conceivable that this testimony escaped the attention of defendant’s counsel.

The circuit judge charged the jury as follows:

If you conclude that Smith did not know the Talmage boy was on the shed, and that he did not intend to hit Smith, or the young man that was with him, but simply, by throwing the stick, intended to frighten Smith and the other young man that was there, and the club hit Talmage, and injured him, as claimed, then the plaintiff could not recover. If you conclude that Smith threw the stick or club at Smith, or the young man that was with Smith, — intended to hit’ one or the other of them, — and you also conclude that the throwing of the stick or club was, under the circumstances, reasonable, and' not excessive, force to use towards Smith and the other ;young man, then there would be no recovery by this plaintiff. But if you conclude from the evidence in the case that-he threw the stick, intending to hit Smith, or the young man with him, — to hit one of them, — and that that force was unreasonable force, under all the circumstances, then Smith, you see (the defendant), would be doing an unlawful act, if the force was unreasonable, because he had no right to use it; then he would be doing an unlawful act. He would be liable, then, for the injury done -to this boy with the stick, if he threw it intending to hit the young man Smith, or the young man that, was with Smith on the roof, and the force that he was using, by the throwing of the club, was excessive and unreasonable, under all the circumstances of the case; if it was, and then the stick went on and hit the boy, as it seems to have hit him, if it was unreasonable and excessive, then he would be liable for the consequences of it, because he was doing an unlawful act in the outset; that is, he was using unreasonable and unnecessary force — excessive force — against Smith1 and the young man, to get them off the shed.”

We think the charge a very fair statement of the law of the case. The doctrine of contributory negligence could have no place in the case. The plaintiff, in climbing upon the shed, could not have anticipated the throwing of the missile, and the fact that he was a trespasser did not place him beyond the pale of the law. The right of the plaintiff to recover was made to depend upon an intention on the part of the defendant to hit somebody, and to inflict an unwarranted injury upon some one. Under these circumstances, the fact that the injury resulted to another than was intended does not relieve the defendant from responsibility. Tbe cases cited in defendant’s brief, we think, support this rule. Scott v. Shepherd, 3 Wils. 403, 2 W. Bl. 892; Railroad Co. v. Riley, 39 Ind. 568. The case is to be distinguished from a case of negligence on the part of defendant. The act is found by the jury to have been a willful act.

Plaintiff’s counsel, in opening the case, referred to a conversation between the plaintiff’s father and the defendant, and stated that they submitted the matter to arbitration, and that a certain compensation was agreed upon between the parties, and this proposition was repeated in the offer of testimony. This the circuit judge ruled out,, and held that it was not competent to go to the jury, and cautioned the jury that the proposition should have no weight with them.- The ruling of the circuit judge was proper, but we are not prepared to say that the statement of counsel was intended by him to influence the jury improperly, nor do we think, under the circumstances of' this case, that it had that result. The circuit judge not only specially cautioned the jury not to take the matter into account, but further defined the issues with exceptional clearness in his charge. Under these circumstances, we think the case falls within the rulings of this Court in Kirchner v. Railway Co., 91 Mich. 400, Prentis v. Bates, 93 Id. 234; Daniels v. Weeks, 90 Id. 190.

The judgment will be affirmed, with costs.

McGrath, O. J., Long and Hooker, JJ., concurred. Grant, J., concurred in the result.


text:
    Fletcher Blagborne v. Albert Hunger.

      Contract — Seal—Parol modification — Consideration—Equity practice — Appeal.
    1. The parties to a written contract, though under seal, may vary or cancel it by a parol agreement, if such contract be not required by law to be in writing; citing Barton v. Gray, 57 Mich. 634.
    2. Complainant filed a bill to procure the discharge of a mortgage, given to secure the payment of a portion of the contract price for the construction of a dwelling-house upon the mortgaged premises, upon the ground that the contract had been canceled and abandoned by agreement of the parties. The testimony was conflicting as to the making of such subsequent agreement. And it is held that, as the circuit judge had the better opportunity of judging of the credibility of the witnesses, the Court are not disposed to disturb his finding upon such question of fact.
    3. After a land-owner had paid $100 on account of a contract for the removal of certain buildings and the construction of a dwelling-house upon the site thus vacated, and the contractor had let the contract for moving the buildings for $75 and commenced getting together the material for the new building, a verbal agreement was made between the parties for the cancellation and abandonment of the contract, in consideration of the retention by the contractor of the $100, and. the promise of the land-owner to pay the contractor for the material which he had purchased and deliyefed on the premises. And it is held that .there was a ■ sufficient consideration for the agreement.
    Appeal irom St. Clair. (Vance, J.)
    Submitted on briefs June 8, 1894.
    Decided July 5, 1894.
    Bill to cancel a mortgage. .Defendant appeals.
    Decree affirmed.
    The facts are stated in the opinion.

      Phillips é Jenks, for complainant.

      V. A. Saph and H. W. Stevens, for defendant.
   Montgomery, J.

In May, 1892, the complainant entered into a written contract with the defendant for the construction of a house. The contract required the defendant to remove an older dwelling-house and office to the rear of complainant's lot, erect a small addition to the office, and construct a dwelling-house on the site of the old residence. The agreed price was $2,200. Complainant agreed to pay defendant $800 in cash from time to time, as the work proceeded, and $1,400 was to be secured by a mortgage upon the premises. The mortgage was executed and delivered on June 4, -and, soon thereafter, defendant began moving back the old buildings, and getting together the material. The defendant let the job of moving the old buildings to a house mover, for $75. Shortly after the work commenced, complainant paid the defendant $100 npon the contract.

The complainant filed this bill to procure a discharge •of the mortgage, alleging that, after the making of the •contract in question, he changed his mind, and agreed with the defendant that the contract might be abandoned, in consideration of defendant's being permitted to retain the $100 which had been paid him upon the contract, which would pay the $75 expenses of removal, and leave defendant $25 for his trouble; and that complainant also agreed, as a consideration for being released from the contract, to pay defendant for his material. There is a •conflict in the testimony between the two parties as to this question of fact, — the defendant claiming that the contract never was abandoned; the complainant insisting that it was, and that he asked for a statement of the amount of material which was placed upon the lot, which defendant refused to give, but sent him a note, saying that he would accept $250 over and above what he had already received, and release him from the contract.’ The circuit judge granted the relief prayed by complainant, and defendant appeals.

There is a direct conflict in the testimony, and, as the circuit judge had the better opportunity of judging of the credibility of the witnesses, we are not disposed to disturb his finding upon the question of fact.

As a condition to the relief, the circuit judge required that "Complainant should pay to the defendant the value of the material, $48.56, and found that the complainant was excused for not tendering the amount because the defendant furnished no bill of items. As no costs were awarded to the complainant by the court below, the decree was not, in this respect, as favorable to complainant as would be expected, if he was entitled to relief at all.

But it is contended:

1. That there was no consideration for the release of the agreement by the defendant.

2. That as the agreement was in writing, and under seal, it could not be discharged- by a verbal promise.

We do not think either of the positions tenable. There was already in the hands of defendant $25 over and above what he had expended, which would have been, in and of itself, sufficient consideration for the discharge of the agreement. In addition to this, there was the promise on the part of complainant to pay for the material.

As to" the contention that the agreement could not be varied by parol, we think the question has been determined in this State. As is said in Barton v. Gray, 57 Mich. 634:

“In modern times the attaching of a seal to a signature is not regarded with that reverence which was formerly the case; and when the Legislature enacted that a seal or wafer was unnecessary, but that a scroll or other device should be sufficient the solemnity attending the execution of such contract vanished; and when the Legislature further provided that no instrument should be held invalid for want of a seal, and it became, under the statute, mere prima facie evidence of consideration, the affixing of seals, except to instruments required by law to be under seal, became of no practical importance. Consequently, it has been held by this Court that parties who have made written contracts may vary them afterwards, as much as they please, by parol, if the nature of the agreement is not such that the law requires them to be in writing/'

See, also, Seaman v. O’Hara, 29 Mich. 66; Westchester Fire Ins. Co. v. Earle, 33 Id. 152; Roger Williams Ins. Co. v. Carrington, 43 Id. 256; Kimmerle v. Hass, 53 Id. 341.

The decree will be affirmed, with costs.

The other Justices concurred.

       How. Stat. § 5699.

       How. Stat. § 7778.

       How. Stat. § 7520.


text:
    John A Rice v. Geert Rankans.
    [See 97 Mich. 623.]

      Bills and notes — Negotiability—Fraud—Bona fide holdei — Burden of proof — Instructions to jury — Foreign statutes and reports — Evidence—Appeal—Error without prejudice.

    1. The erroneous exclusion of questions put to the plaintiff on his cross-examination is not prejudicial where he is asked the same questions when called in rebuttal, and the answers desired by the defendant to the excluded questions are drawn from the witness.
    2. Where, in a suit upon negotiable notes, which the defendant claims were procured by fraud, there is no evidence tending to show that the plaintiff was guilty of any fraud in their purchase, or to contradict his statement that he bought the notes in the usual course of business, paying value therefor, the defendant is not prejudiced by an instruction which, standing alone, might leave the jury with the impression that the burden of proof was upon him to show want of good faith on the part of the plaintiff in the purchase of the notes, it appearing that the correct rule as to the necessity of the plaintiff’s showing good faith, and want of notice of any imperfection in the paper, after the defendant had shown fraud in its inception, was clearly given to the jury.
    3. The statutes and reports of the courts of another state are admissible in evidence under How. Stat. §§ 7508, 7509, as proof of the negotiability of notes executed in said state.

      4. The oases of Lauferty v. Johnson, 17 Ill. App. 549, Jones v. Hubbard, 17 Id. 564, and Wolff v. Dorsey, 38 Id. 303, 305, fully establish that an instrument by which the signer, for value received, promises to pay on a designated day to the order of the payee a certain sum, with annual interest according to certain coupons attached thereto, and which provides that, if any part of the principal or interest remains unpaid at maturity, it shall bear interest at an increased rate, payable semi-annually, and that if any interest remains unpaid 20 days after due the principal shall become due and collectible at once, without notice, at the option of the holder, and for the payment of attorney’s fees if suit is brought to collect principal or interest, and which states that both principal and interest are secured by a mortgage deed, which constitutes a first lien on real estate in another state, — is, according to the law of Illinois, negotiable.

    5. Where the statutes and reports of the courts of another state are received in evidence as proof of the negotiability of certain instruments executed in that state, it is proper that the circuit judge should construe the testimony, and instruct the jury as to its effect.
    6. Where a specific objection to testimony as not admissible under ' the declaration is sought to be raised for the first time on appeal, and the defect in the declaration, if any, could have been easily cured by amendment if the objection had been made when the testimony was offered, the objection cannot avail.

      Error to Ottawa. (Padgham, J.)
    Argued June 8, 1894.
    Decided July 5, 1894.

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

      Farr & Soule, for appellant.

      Walter I. Lillie, for plaintiff.

       Proof of statute law and of the common law of other
      STATES AND OF FOREIGN COUNTRIES.
      For cases bearing upon the construction of— a — 3 How. Stat. § 7508, which, provides that “printed copies of the statute laws and resolves of any other of the United States, or of any territory thereof, or of any foreign state, if purporting to be published under the authority of the respective governments, or if commonly admitted and used as evidence in their courts, shall be admitted in all courts and in all proceedings within this State, as prima facie evidence of such laws and resolves, and— b — How. Stat. § 7509, which provides that “the unwritten or common law of any other of the United States, or of any territory thereof, or of any foreign state or country, may be proved as facts by parol evidence; and the books of reports of cases adjudged in their courts may also be admitted as evidence of such law,”—
      See:

        Pleading Statute.

      1. Jones v. Palmer, 1 Doug. 379, holding that where a defendant desires to rely upon the alleged invalidity of a contract made in another state, and so counted upon, under the law of that state, which law is not set forth in the declaration, he should plead to the declaration, and thus place himself in a position to give evidence of said law on the trial.
      2. Railway Co. v. Miller, 19 Mich. 305, where plaintiff sued a Canadian railway company for damages on account of his expulsion from its cars at a distance from any dwelling or usual stopping-place. On the trial a statute of Canada was given in evidence, under which, as claimed, — but which claim was not averred.in the declaration, — this manner of expulsion was illegal. And it was held that the Canadian statute was probably adopted on grounds of public policy, and to establish a general rule most likely to prevent suffering; but that the privilege it conferred depended entirely upon its provisions, and, as the court had no judicial knowledge of said statute, any one relying upon it must aver and prove it as a ground of recovery.

        Presumption in Absence of Proof of Statute.

      1. Jones v. Palmer, 1 Doug. 379, holding that, where the defendant desires to. avail himself of the alleged invalidity of the contract sued upon under the law of the state where it was made, he must prove to the court such law, and until such proof is made the court will test the validity of the contract by the law of Michigan; and Crane v. Hardy, 1 Mich. 56, holding a like doctrine.
      2. People v. Lambert, 5 Mich. 349, holding that where, in a prosecution for bigamy, the first marriage is alleged to have taken place in another state, proof not only of a marriage in fact, but of a valid marriage, according to the laws of that state, must be made by the prosecution; and, there being evidence in the case that the law of that state on the subject of marriage is in statute form, it cannot be presumed, against the innocence of the respondent, that such statute law is like our own.
      3. Ellis v. Maxson, 19 Mich. 186, where the defense to a suit upon a promissory note was that the plaintiff had agreed to surrender the note in consideration that the defendant would sell and convey to him a parcel of land in the state of Illinois. On the trial the defendant offered parol evidence of this contract, to which the plaintiff objected that, to be valid, it must be in writing. No proof of the laws of Illinois affecting contracts for the sale of lands was offered. And it was held that the evidence was properly admitted; that a parol contract to sell lands was good at common law, and is only made void by statute; that, if any presumption could be made, in the absence of evidence, as to the provisions of any foreign laws, it would be that they conform in substance to the general principles of the common law; that it was unnecessary to consider how universally such presumption obtains; that it certainly could not be presumed that the legislature of another state had adopted all the Michigan statutes, and therefore the court must have proof before it could know that such state had passed any statute; that, if the contract in question was required by the statutes of Illinois to be in writing, they should have been introduced, and, in the absence of such proof, the contract was properly assumed to be valid.

        4. Worthington v. Hanna, 23 Mich. 580, holding that, while the court cannot assume judicially to know what any foreign law is, there is no principle which will justify it in holding anything void under a foreign law which is lawful here, until the variance is shown.

        How Statute Proved.

      1. People v. Lambert, 5 Mich. 349, where, on the trial of a respondent for bigamy, the first marriage was alleged to have taken place in New Jersey, and a witness who testified that he had been a policeman and constable in that state, and did not swear to any general knowledge of its laws, was allowed to testify what the written laws of New Jersey were in regard to marriage. And it was held that the statutes should have been proved by copies, and that, if they needed explanation, the witness was not in a position which qualified him to expound them.
      2. Kermott v. Ayer, 11 Mich. 181, holding that foreign statutes cannot be proved by parol without some showing why secondary evidence becomes necessary, and statutes regulating the rates of interest are no exception to this general .rule.
      3. People v. Calder, 30 Mich. 85, where, in a prosecution for bigamy, an attorney of the court produced upon the stand a printed volume, purporting to be a copy of the revised statutes of the state where the first marriage took place, and to contain the statutory regulations on the solemnization of marriage as they existed in 1852. The witness, after being interrogated at considerable length as to his knowledge whether the legislature had made any change between 1852 and 1869, the year in which the marriage was contracted, testified that he could not state positively that none had occurred, but the fair inferepce from his evidence was that, if any change had been made, he would have been likely to know of it, and that he was not aware of any alteration. And it was held that the volume was admissible under the statute, and that the jury might fairly presume that the law, as it was in 1852, continued to 1869, and more especially as the evidence of the attorney tended in that direction, and the respondent offered no proof to indicate anything to the contrary.
      4. Witt v. Cutler, 38 Mich. 189, where a printed volume, the title page of which read, “Revised Statutes of the State of New Jersey: passed in 1874. Trenton. Printed by order of the Governor. 1874,” — was received in evidence over the objection that it did not purport to be published under the authority of the government of that state, as required by the statute. And it was held that the intent of the statute is to prevent mere private or unauthorized publications of the statutes of another state from being admitted in evidence, but that the distinct authority imprinting and publishing the laws need not appear in any case where they purport to be published under the authority of the government; and that, where (they purport to be) published under the authority and sanction of the governor of a state, they must be accepted.
      5. Kopke v. People, 43 Mich. 41, holding that the statutes of a sister state should be proved in a more direct way than by the testimony of a lawyer of that state, and that our statutes, as well as the acts of Congress, make distinct provision on the subject.
      6. People v. McQuaid, 85 Mich. 133, holding that the marriage laws of Pennsylvania may be proved by the introduction of Brightly’s Purdon’s Digest, a non-official compilation of the statutes of that state of 25 years’ standing, and which is admitted in the courts of Pennsylvania as prima facie evidence thereof; and that a minister of the gospel of- that state, authorized by statute to perform the marriage ceremony, and required as such to observe certain formulas therein prescribed, is a competent witness to identify said digest in which said statute is published, and to show the common acceptance of the publication as authority in the home courts.

       For cases holding that certain instruments are, and that certain instruments are not, promissory notes, see Crump v. Berdan, 97 Mich. 293, and note.

   Montgomery, J.

The plaintiff claims to be the Iona fide purchaser of certain written instruments, reading as follows:

“$960.00. First Mortgage Bond. No. 710.
“Chicago, August 16, A. D. 1888.
“ On the 16th day of August, A. D. 1893, for value received, I promise to pay to the order of Niels C. Fredericksen the principal sum of $960, with interest thereon at the rate of 7 per cent, per annum, payable annually, according to the tenor and effect hereof, and of five coupons hereto attached. Both principal and interest are payable at the office of Fredericksen & Co., Chicago, Illinois. If any part of the principal or interest remains unpaid at maturity, it shall bear interest thereafter at the rate of 10 per cent, per annum, payable semi-annually; and if any interest remains unpaid 20 days after due the principal shall become due and collectible at once, without notice, at the option of the holder. If suit is brought to collect principal or interest, I agree to pay attorney’s fees. Principal and interest are secured by a mortgage deed, which constitutes the first lien on real estate in Nobles county, Minnesota.
“G-. Rankans.”

Attached to this statement were five coupons, reading as follows:

“$67.20. Chicago, August 16, 1888.
“Due to the order of Mels C. Fredericksen $67.20 on the 16th day of August, A. D. 1890, without grace, payable at the office of Fredericksen & Co., Chicago, Ill., with interest at the rate of 10 per cent, per annum after maturity; this coupon note being for the interest due that day upon my note No. 710, of this date, for the payment to the order of said Niels C. Fredericksen of $960.00.
“G-. Rankans.”

The other coupons were of similar import, payable at different dates, and the instruments were indorsed by the payee named.

The declaration alleges that these instruments were made and delivered in the state of Illinois, and that they constitute, under the law of that state, negotiable promissory notes; the plaintiff alleging that he bought the same for value, before maturity. The defense denied — First, that the instruments in question were negotiable under the law of this State; second, that they were negotiable under the law of Illinois; and defendant offered testimony tending to show that the notes were given without consideration, and were procured by the payee named by fraud, and, having made this proof, contends that error was committed on the trial in excluding certain examination of the plaintiff, and in the instruction given to the jury as to the necessity of proof of fraud.

Certain questions were asked on the cross-examination of the plaintiff as to whether he pursued the mortgage on. the land in Minnesota. The questions were excluded. He was also asked whether he did not have a large quantity of this paper of the same kind, — some $90,000 worth,— which he sold for $3,000. This was at that stage of the case excluded, and an exception taken. While it may have been proper to receive this testimony upon cross-examination, there was no error to the prejudice of the defendant, for, when the witness was called in rebuttal, the same questions were put, and the answers which counsel for defendant, in their brief, indicate that they desired to elicit, were drawn from the witness.

It is next urged that the court erred in instructing the jury as follows:

“Now, the defendant claims that there was fraud on the part of this plaintiff in obtaining this paper. The rule of law on this point is that fraud will not be presumed on slight circumstances, but must be clearly proved. Circumstances or mere suspicions are not enough to warrant the conclusion of fraud, and the burden of proving fraud is upon him who complains of it.”

It is true, as claimed by defendant’s counsel, that this instruction, standing alone, might have left the jury with the impression that the burden of proof was upon the defendant to show the want of good faith on the part of the plaintiff, which, where fraud is shown in the inception of the contract,. is not a correct statement of the law. See Conley v. Winsor, 41 Mich. 255, 256; Mace v. Kennedy, 68 Id. 398; Little v. Mills, 98 Id. 424. But we think, under the circumstances of this case, it is unnecessary to determine whether the other portions of the charge — which were very full upon this subject, and very clearly stated that the burden of proof did shift to the plaintiff after the defendant had shown fraud in the inception of the notes — operated to cure the error in the instruction quoted, for a very careful examination of the record discloses that there was no evidence tending to show that the plaintiff was guilty of any fraud. It is true, the circuit judge submitted the question to the jury as to whether the plaintiff bought the notes Iona fide, but we have searched the record in vain for any evidence contradictory to his statements that he bought the notes in the regular course of business, and paid 85 cents on the dollar for them. Whatever circumstances there may have been in the case, which, the defendant might contend, tend to show some notice or knowledge on the jtart of the plaintiff, there were none which connected him with any fraudulent transaction] and we think that under these circumstances the defendant is not in position to complain of the instruction, inasmuch as the correct rule for the necessity for showing good faith, and want of notice of any imperfection in the paper, was so clearly given to the jury.

It is next contended that the court erred -in receiving the evidence offered to prove the negotiability of the instruments. The proofs offered were the statutes and reports of the courts of the state of Illinois. These statutes and reports were admissible under How. Stat. §§ 7508, 7509.

It is also contended that the circuit judge erred in instructing the jury that the instruments in question were negotiable. The proofs offered to show the negotiable character of the notes consisted of the statutes and reports of Illinois. The cases offered in evidence (Lauferty v. Johnson, 17 Ill. App. 549, and Jones v. Hubbard, 17 Id. 564, and Wolff v. Dorsey, 38 Id., at page 303, and a case of the same entitling in the same volume at page 305), we think, fully establish that the note is, according to the law of Illinois, negotiable. See, also, Chicago Railway Equipment Co. v. Merchants’ Bank, 136 U. S. 268. And, in view of the fact that the testimony was documentary, it was quite proper that the circuit judge should construe it, and instruct the jury as to its effect. It was not contradicted, and there was no duty of weighing the evidence to be performed. Under such circumstances, where the facts are undisputed, it is proper for the court to state the effect of testimony to the jury.

We do not overlook the fact that the declaration alleged that the notes were negotiable by the common law of the state of Illinois, and it is claimed that the statute was, to some extent, relied upon. But this specific objection was mot made at the time the testimony was offered, and as the defect, if any, could have been easily cured by amendment, the objection cannot avail.

We are satisfied that no error was committed, to • the prejudice of the defendant.

The judgment will be affirmed, with costs.

Long, Grant, and Hooker, JJ., concurred. Mc-Grath, C. J., did not sit.


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    Nathan Thomas v. Jerome D. Hamilton.

      Mandamus — Druggists—Record of liquor sales.

      Mandamus will not lie, at the instance of a private individual, to ■ compel a druggist to allow the relator to examine the record of sales of liquor which the druggist is required by the statute to keep, the same to be open for examination to all persons during business hours.

      Certiorari to Van Burén. (Buck, J.)
    Argued June 19, 1894.
    Decided July 5, 1894.
    Relator applied to the circuit court for mandamus to compel respondent, a druggist, to allow relator to examine the book containing a record of sales of liquor. Respondent brings certiorari to review an order granting the writ.
    Reversed.
    The facts are stated in the opinion.

      Lincoln H. Titus, for relator.

      Mills, Osborn & Cavanaugh, for respondent.
   McGrath, C. J.

Section 3 of Act No. 313, Laws of 1887, requires each dealer in drugs and medicines to keep a book, in which shall be recorded the names of all persons applying for liquor, the amount and kind of liquor sold to such person, and the purpose to which the same was to be applied, which book is required to be open for examination to all persons during business hours. Relator alleges that respondent is a dealer in drugs and medicines, .that he refused to allow relator to examine such book, and asks for a mandamus to compel respondent to allow such examination.

The general rule is that mandamus will not run against a private individual. Merrill, Mand. §§ 13, 21-23. Nor does it lie to enforce the performance of a public duty at the instance of a private individual, or in any case unless he has some private or particular interest to be subserved, or some particular right to be preserved or protected, by such process, independent of that which he holds in common with the public at large. People v. Regents of the University, 4 Mich. 98; People v. Inspectors and Agent of State Prison, 4 Id. 187; People v. Green, 29 Id. 121; Smith v. City of Saginaw, 81 Id. 123.

The judgment must therefore be reversed, with costs of both courts.

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


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    Alice M. Jones v. Archibald J. Peek.

      Attachment — Affidavit—Use of disjunctive — Exemptions—Selection by debtor'.

    1. The use of the disjunctive “or,” in an averment in an affidavit in attachment that the defendant “is about ,to assign, dispose of, or conceal her property, with intent to defraud her creditors,” will not invalidate the affidavit, as it states but one ground for the writ.
    2. How. Stat. §§ 7687, 7688, provide that, when a levy is made upon property of any class or species which is exempt by law from execution to a specified amount or value, the officer may make an inventory of the property, and cause the same to be appraised, and the defendant may thereupon select from such inventory an amount of such property not exceeding, according to such appraisal, the amount of his exemption. And it is held that the statute is fully complied with, in case of the seizure of goods under a justice’s court attachment, by the service on the defendant of the inventory made by the officer ' of the attached property, and the tender to the defendant of the use of the appraisal which the officer has caused to be made of said property, to enable the defendant to select his exemption.
    Error to Jackson. (Peck, J.)
    Argued June 21, 1894.
    Decided July 5, 1894.
    Trover. Defendant brings error.
    Reversed, and judgment entered in this Court for defendant.
    The facts are stated in the opinion.

      Richard Price, for appellant.

      D. P. Sagendorph, for plaintiff.
   Grant, J.

Two questions are presented in this case:

1. The" affidavit for the writ of attachment stated as the basis therefor that “said Alice M. Jones is about to assign, -dispose of, or conceal her property, with intent to defraud her creditors.” It is claimed by the plaintiff, and was held by the court below, that this affidavit was void because it is in the alternative. Counsel for the plaintiff relies upon Kegel v. Schrenkheisen, 37 Mich. 174. In that case the affidavit stated that the defendant “has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property,” etc. That case is not conclusive in this. On the contrary, it distinctly recognizes the existence of but two causes for the issuance of an attachment, viz., that the defendant has assigned, etc., and that he is about to assign, etc. The one ground for the attachment may apply to an intent either to assign, dispose of, or conceal, and in such case the use of the disjunctive is permissible. The record in this case does not show the reason for the belief. That would only appear on the hearing, upon a motion to dissolve the attachment. It is, however, stated in the brief of defendant's counsel that the ground for making the affidavit and issuing the attachment was that the defendant had said that she “was going to fix her property so that none of her creditors would get a cent.” If this were the fact, it would be applicable to an intent either to assign, to dispose of, or to conceal, but not to a case where it was alleged that she had assigned, disposed of, or concealed. It would be impossible for the creditor' to determine, from this statement of the debtor, whether she intended to assign, dispose of, or conceal her property; and the statute does not contemplate that he should, at his peril, so determine. This phrase constitutes one ground for the writ, and may be stated in the words of the statute. The weight of authority sustains this view. Wap. Attachm. 97-100; Wade, Attachm. §§ 56, 93; Brown v. Hawkins, 65 N. C. 645; Conrad v. McGee, 9 Yerg. 428; Van Alstyne v. Erwine, 11 N. Y. 331; Parsons v. Stockhridge, 42 Ind. 121; Emerson v. Steel & Spring Co., 100 Mich. 127. We have examined the other authorities cited by tbe plaintiff, and we do not think that they are in opposition to this view.

2. Plaintiff was entitled to an exemption in goods seized under the writ. The defendant, who was the officer serving the writ, made an inventory, which he served upon her, and at the same time tendered her the use of an appraisal, which he had caused to be made, to enable her to select her exemption. She declined to take the appraisal or to make the selection. Thereupon the officer made the selection for her. The statute for attachment in justice's court requires the service of an inventory upon the defendant, but does not require the service of an appraisal. The exemption statute (How. Stat. §§ 7687, 7688) provides that when the defendant is entitled to an exemption the officer shall cause an appraisal to be made, whereupon the defendant is entitled to select his exemption. This statute was fully complied with when she was-served with the inventory, and tendered the use of the. appraisal to make her selection.

It follows that the judgment must be reversed, and. judgment entered in this Court for the defendant.

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

        Miller v. Munson, 34 Wis. 579; Moody v. Levy, 58 Tex. 532; Rittenhouse v. Harman, 7 W. Va. 380; People v. Blanchard, 61 Mich. 478; Beebe v. Morrell, 76 Id. 114; Buehler v. DeLemos, 84 Id. 554. 557; Howell v. Circuit Judge, 88 Id. 361.

       How. Stat. § 6840.


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    William O. Haney v. Fred J. Russell, Circuit Judge of Muskegon County.

      Mandamus — Costs—Final judgment — Writ of error.

    An order granting costs to the defendant in an action for trespass to lands, on the recovery by the plaintiff of a judgment for less than $100, is a final judgment, and mandamus will not lie to vacate the order, the remedy being by writ of error.

      Mandamus.

    Argued June 26, 1894.
    Denied July 5, 1894.
    Relator applied for mandamus to compel respondent to vacate a judgment in favor of the defendant for costs ‘in an action of trespass qu. cl. The facts are stated in the opinion.

      Walter I. Lillie, for relator.

      Nelson DeLong, for respondent.

       See How. Stat. §§ 8964 (subd. 2, 6), 8967, regulating the matter of costs in such cases.

   McGrath, C. J.

Relator brought trespass qu. cl. in the circuit. He was not in actual possession, and, in his declaration, set up title in himself. He recovered a judgment of $47.50, whereupon the court entered judgment in favor of defendant for costs. Relator asks for a mandamus to compel the court to vacate the order granting costs to defendant.

The order was a final judgment. All of the facts upon which the application is based are matters of record, and relator has another ample and specific remedy. The question is reviewable upon writ of error. McFarlane v. Ray, 14 Mich. 465; Singer Manfg. Co. v. Benjamin, 55 Id. 330.

We think the application must be denied.

The other Justices concurred.


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    The Detroit Manufacturers’ Mutual Fire Insurance Company v. George H. Merrill and George Lewis.

      Mutual fire insurance — Assessments—Losses and expenses — . Unearned premiums — Withdrawal of members.

    1. Policy-holders in manufacturers’ mutual fire insurance companies organized under 3 How. Stat. chap. 134a, are liable only for losses occurring during the lifetime of their policies.
    3. A policy-holder who contracts to pay assessments for the losses and' expenses of the company cannot be assessed to pay unearned premiums.
    3. Each member of the company makes a contract, not only with the corporation itself, but with each member thereof, and the corporation possesses no power to release policy-holders from the liability for losses and expenses which they assumed by their membership.
    Error to Bay. (Cobb, J.)
    Argued .June 23, 1894.
    Decided July 5, 1894.

      Assumpsit. Defendants bring error.
    Keversed, and judgment entered in this Court for defendants.
    The facts are stated in the opinion.

      Simonson, Gillett & Courtright (John L. Stoddard, of counsel), for appellants.

      Bowen, Douglas & Whiting, for plaintiff.
   Grant, J.

Plaintiff is a corporation organized under Act No. 78, Laws of 1883 (3 How. Stat. chap. 134a). May 24, 1890, a policy was issued to the defendants, who gave their note for the premium, which reads as follows:

$324.00. Detroit, Mich., May 24, 1890.
"In consideration of policy No. 1,023, dated the 24th day of May, 1890, we promise to pay the Detroit Manufacturers’ Mutual Fire Insurance Oo. the sum of $324, by installments, at such time as the directors of said company may order and assess, for' the losses and expenses of said company, pursuant to its charter and by-laws. It is hereby expressly understood and agreed that this note is not transferable, and that there is no liability beyond the face amount thereof.
G. H. Merrill & Co.”

Two installments were paid, amounting to $64.80 each. November 11, 1891, the board of directors made an assessment of 40 per cent, on the face value of the premium or deposit notes then outstanding. The total sum thus assessed upon the policy-holders was $28,237.16. Defendants’ assessment was $109. The court directed a verdict for the plaintiff, but gave no reason therefor, except to say that the assessment was valid. Plaintiff has filed no brief in this Court, and its counsel announced that they did not desire to, thus virtually confessing error.

The assessment cannot be sustained, for the following reasons:

The assessment includes losses, amounting to $4,000, which occurred prior to the date of the defendants’ policy. In companies organized under this and similar laws, the policy-holder is liable only for losses occurring during the lifetime of his policy. Wardle v. Townsend, 75 Mich. 395; Insurance Co. v. Houghton, 6 Gray, 77; Insurance Co. v. Hartshorne, 90 Penn. St. 465; Evarts v. Association, 16 N. Y. Supp. 27; Wood, Ins. § 541.

A large proportion of the assessment was for the purpose of paying unearned or return premiums. Defendants did not contract to pay any unearned premiums, but only losses and expenses. Dewey v. Davis, 82 Wis. 500, and tbe authorities there cited.

Members were allowed to surrender their policies, and withdraw from the company, and were not included in this assessment. The corporation possessed no power to release policy-holders from the liability for losses and expenses which they assumed by their membership. In such mutual companies, each member makes a contract, not only wdth the corporation itself, but with each member thereof. Conrad v. La Rue, 52 Mich. 83, and the cases there cited.

No other questions need be discussed.

Judgment reversed, and entered in this Court for the defendants, with the costs of both courts.

McG-rath, C. J., Long and Hooker, JJ., concurred. Montgomery, J., did not sit.