text:
    GRAND LODGE, ANCIENT ORDER OF UNITED WORKMEN v. BROWN.
    1. Insurance — Competency to Change Beneficiary — Contracts.
    In determining the mental competency of insured to change the beneficiary of an insurance policy, the same rules of law are applicable as in the case of bequests or of deeds, and the test is whether he had sufficient mental capacity to understand the business in which he was engaged, the extent of his property, the manner in which he desired to dispose of it, and who were dependent on him.
    2. Appeal and Error — Conclusion of Trial Court.
    The conclusion of the trial court in a chancery case, on conflicting evidence, is entitled to much weight on appeal.
    3. Evidence — Burden of Proof — Competency—Presumption of Mental Soundness.
    Sanity being the normal condition of the human mind, insanity or incompetency must be established by a preponderance of evidence.

    4. Same — Inoompetency—Presumption from Subsequent Adjudication.
    Although the insured had been adjudged insane subsequently to his making a change in the beneficiaries of his insurance, the burden rested on the first beneficiary who alleged his incompetency, to establish that the change was not made during a lucid interval.
    5. Witnesses —Competency —Statutes —Matters Equally in Knowledge of Deceased.
    Testimony by a party to a suit in chancery for an interpleader, where the evidence relates to matters equally within the knowledge of deceased, is inadmissible as to the beneficiaries under an executed alteration in a policy of insurance from the witness to the new beneficiaries who are parties to the suit.
    6. Insurance — Beneficiaries—Brothers and Sisters.
    It is a valid change of beneficiary from a wife to insured’s brother and sisters, under a by-law authorizing members of his family or persons related to him by blood to be named as such.

      7. Insurance — Validity of Change in Beneficiary — Irregularity.
    Only the insurer may raise the objection that a change of beneficiary was not regularly effected under its rules, the defense not being available to the original beneficiary.
    8. Same — Contracts—Presumptions.
    The presumption is in favor of the regularity and legality of a policy of insurance and the power and authority of the insurer to make it in a case where it is claimed that its articles of association had not been amended to permit the change of beneficiaries.
    Appeal from Bay; Collins, J.
    Submitted February 25, 1910.
    (Docket No. 49.)
    Decided March 19, 1910.
    Bill of interpleader by the Grand Lodge of the Ancient Order of United Workmen against Alida B. Brown and Edward M. Brown, Anna E. Skelley, and Mary Hogan to determine the right to the proceeds of a'policy of insurance. From a decree for defendants Edward M. Brown, Anna E. Skelley, and Mary Hogan, defendant Alida B. Brown appeals.
    Affirmed.

      De Vere Hall (Albert V. Ingersoll, of counsel), for appellant.

      Weadock & Duffy, for appellees.

       As to burden of proof as to sanity, see note to State v. Scott (La.), 36 L. R. A. 726.

   Stone, J.

This is a bill of interpleader filed in the circuit court of Wayne county, in chancery, and transferred to the circuit court of Bay county, in chancery. Alida B. Brown, defendant and appellant, is the widow of Thomas M. Brown, deceased, and the remaining defendants and appellees are his brother, Edward M. Brown, residing at Washington, D. C., and his sisters, Anna E. Skelley, residing at Batavia, N. Y., and Mary Hogan, residing at Buffalo, N. Y. The bill was filed April 10, 1905, setting forth that complainant was a fraternal beneficiary association incorporated and doing business under the laws of the State of Michigan, being known as sections 8047 to 8057 of the Compiled Laws of 1897 and the amendments thereto. This bill avers that the complainant does business through the lodge system, a lodge at that time being located in the city of West Bay City, Mich., known as West Bay City Lodge No. 134. It appears, that on the 20th day of February, 1889, said Thomas M. Brown made application in writing upon the proper blank, to become a member of the West Bay City Lodge of complainant, in which application he requested, and applied for a benefit certificate in the sum of $2,000, and the amount to which he would be entitled? on said certificate to be paid at his death to his wife, Alida B. Brown, as beneficiary. On the same day Mr. Brown was initiated as a member of complainant order, and a certificate was duly issued to him in the sum of $2,000, payable to his wife on his death, a copy of which certificate appears in the record. On June 26, 1903, the said Thomas M. Brown made application to the complainant for the issuance of a duplicate certificate of membership, claiming and alleging the loss of the original benefit certificate. This application was made in due form. On the same day a new certificate was issued to said Thomas Mi Brown in the sum of $2,000, bearing the same number as the old one, and in which his wife, Alida B. Brown, was named as beneficiary. On the 27th day of June, 1903, Mr. Brown surrendered to the complainant the benefit certificate issued to him the day before, with a request indorsed on the back thereof, revoking the designation of his wife, Alida B. Brown, as his beneficiary, and designating in her stead, as his beneficiaries, the defendants, Edward M. Brown, Anna E. Skelley, and Mary Hogan, bearing the relationship to him of brother and sisters. Thereupon a new certificate was issued to said Thomas M. Brown on the same day. It is conceded in the pleadings that this method of obtaining a new certificate, where the old one was lost or mislaid, and a surrendering of the new one thus obtained, with the designation of the new beneficiary, was the proper and regular form for changing the beneficiaries under the rules of complainant. Thomas M. Brown died on the 16th day of January, 1905, at Buffalo, N. Y., and proofs of his death were made by said Edward M. Brown, and proofs of claim of the beneficiaries under the benefit certificate were sent in. Later, complainant was notified by the wife, Alida B. Brown, appellant herein, that she would make claim to the amount of the certificate, and because of these conflicting claims, complainant filed this bill for the purpose of having the court determine who was entitled to the fund. All of the defendants answered the bill, and, an issue being joined, the case was heard upon the testimony taken {n open court, save that certain depositions, relating to the death and previous condition of said Thomas M. Brown, taken at Buffalo, N. Y., were read in evidence.

It appeared in evidence that at the time of the issuance of the original benefit certificate to Mr. Brown in 1889, he was living with Alida B. Brown as his wife, and they had one son, Frank, who was born in 1886. At the time of his death Mr. Brown was upwards of 55 years of age. For a number of years prior to June 27, 1903, he had resided at Bay City with his wife, and son. He had been employed for a number of years by the Michigan Central Railroad Company as freight brakeman, afterwards as passenger brakeman, and then as baggageman. In 1894 or 1896 (the evidence is conflicting as to the date) Mr. Brown was seriously injured by being caught between two cars, in attempting to couple them, the injury consisting of having his head caught between two projecting logs. After this injury he was confined to his home for several weeks, and was in bed attended by a nurse four weeks. During that time he was delirious and out of his head a good deal of the time. After his injury Mr. Brown’s eyesight became affected, and a slight deafness which he had before was aggravated, so as to necessitate the use of an ear trumpet. Upon recovering from his injuries he went back into the employment of the Michigan Central Railroad Company, as baggageman, and continued in such employment practically up to the time of his leaving Bay City in June, 1903.

Upon the hearing of the case it was the claim of the appellant that immediately after his injury a decided change was noticed in Mr. Brown’s disposition and conduct; that he became depressed, ugly, and very hard to get along with; that he was irritable and would fly into a rage upon the least provocation; that he became suspicious of his wife and son and imagined they were working against him, and talking about him, when he could not hear them; that his mental condition became gradually worse; that he ill treated and abused his wife and boy. A large number of witnesses were examined, and their testimony tended in a greater or less degree to support the appellant’s claim. In the spring of 1903 Mr. Brown was discharged from the railroad service. About that time he visited Chicago for the purpose of taking treatment from a specialist, but it appears that he was not benefited. On June 22, 1903, Mr. Brown called upon H. M. Gillett, Esq., an old friend of his, and a practicing attorney, and said that he wanted a separation agreement drawn, and one was drawn accordingly. He at that time told Mr. Gillett his trouble with his wife and family, and said that he had been denied access to his wife’s rooms for several years. Mr. Gillett tried to dissuade Mr. Brown from his course, but the latter seemed determined to have the agreement drawn, and it appears that it was drafted and taken by Mr. Gillett and Mr. Brown to the latter’s home for Mrs. Brown’s signature. That agreement was as follows:

“This indenture, made this 22nd day of June in the year of our Lord one thousand nine hundred and three, between Thomas M. Brown and Alida B. Brown, his wife, of West Bay City, in the county of Bay and State of Michigan, witnesseth: That whereas, a State of circumstances exists, which, in the opinion of said parties, renders it improper and undesirable that they shall longer continue to live together as husband and wife, or claim or exercise against or toward each other any marital rights, and renders it most right and prudent that they shall separate and live and remain apart from each other; now, therefore, it is mutually agreed by and between the said parties that they shall from this time henceforth live and remain separate and apart from each other as if they had never been married, and each of them hereby covenants and agrees not in any way to molest, annoy, interfere with, or make claim against the other on account of their marital relations, and the said Alida B. Brown hereby covenants for and in consideration of the premises and of the sum of $300 to her in hand' paid by said Thomas M. Brown, and the conveyance to her of the homestead this day made by said Thomas M. Brown, to relinquish and release all her rights and claims upon the said Thomas M. Brown, and upon or against any other property now owned or hereafter acquired by him and upon or against his estate after his decease.
“The said Alida B. Brown, in consideration of the premises, further agrees to and with the said Thomas M. Brown that she will hereafter live separate and apart from him, and from this time forthwith provide for and furnish her own support and the support of their son Frank M. Brown, who will be seventeen years old in October, and will never make any claim on the said Thomas M. Brown, for any aid or assistance, it being the intention of both parties hereto that this separation shall be complete and final the same as if the marriage had been dissolved by the decree of a court of competent jurisdiction.
“And the said Thomas M. Brown hereby covenants and agrees that he will never make any claim or demand upon the said Alida B. Brown arising from their marital relations.
In witness whereof, the said parties have hereunto set their hands and seals, in duplicate, the day and year q fArfiaain
[Signed] “Thomas M. Brown'.
[Signed] “Alida B. Brown.
“Witnesses:
“H. M. Gtllett.
“Frank M. Brown.”

Duly acknowledged by both parties.

A deed turning over the homestead and the furniture contained therein was made and delivered at the same time, and the $300 mentioned in the agreement was paid to Mrs. Brown. Mr. Brown then left the house, and it does not appear that he ever returned. That he was much estranged from his wife and son is very apparent from a letter which he wrote and mailed on June 23, 1903, to Mrs. Skelley, his sister, residing at Batavia, N. Y. That letter was as follows:

“ W. Bat Citt, 6-24, 1903.
“ Dear Sister Anna: As I have been in trouble here a long time we have decided on a separation which I have got. I have got kicked out of my home and $300 in money which I have worked hard for, to try to have a little something to take care of me with but I had to deed my house and lot to her and give her $300, no place to sleep. Now, Anna, I do not want you to show her any courtesies because she is not deserving of it. I have a policy in the A. O. U. W. and she will not give it to me but I have ordered a new one made payable to Minnie, Anna, and Ed. I have left Jimmy out for this reason, about the time mother died father had to go to work to mortgage his home in order to keep him from getting into trouble and that was money that he had worked hard for and I did not get a thing, that is the reason. Now Anna there is no use in going into details, maybe if the Lord spares me I may see you this summer and tell you all. I expect a new policy in about a week. I intend to try and go to the Soldiers’ Home if I can get there that is all I can do at present, my health has got the best of everybody I guess. I have been to Chicago to see some specialists but I could not get any relief. I am about to resign on the railroad before they kick me out the same as my wife has. Now Anna I told Minnie that the policy would cost to keep it up about $4.00 per month and as I will not be earning any money all I have got is my pension to take care of me, I thought you three between you might keep it up for me so I wrote to Minnie and I will write to Ed. When you answer write W. Bay City, Bay Co., Mich. Don’t send to the house because I cannot go there any more. Tears in my eyes writing this.
“T. M. Brown.”

At the same time the separation agreement was executed Mr. Brown requested Mr. Gillett to get him into the Soldiers’ Home at Grand Bapids, Mich. His application was sent to that institution by his attorney, but he could not be admitted there because he had served in the Civil War in a New York regiment. The policy referred to in the letter seems to have been in the house, but it was evident that he did not know where it was. On June 27th he changed his beneficiaries as hereinbefore stated. Thereafter Mr. Brown left Bay City and went to Buffalo, N. Y., where he stayed a short time with his sister Mrs. Hogan, and then spent a few days with his sister Mrs. Skelley, at Batavia, N. Y. On July 10, 1903, C. H. Hogan, husband of defendant Mary Hogan, filed a petition in the supreme court of the State of New York alleging that he was a brother-in-law of Thomas M. Brown, who was residing at his house and was insane. The petition prayed that said Thomas M. Brown be alleged insane and be committed to the Buffalo State Hospital. Thereafter Mr. Brown was duly adjudged insane and was committed to said institution, where he remained until his death, January 16, 1905. While Mr. Brown was in the hospital at Buffalo, the assessments on his benefit certificate issued by complainant, were paid by defendant Edward M. Brown, amounting to upwards of $80. The learned circuit judge, after hearing the case, reached the conclusion that the appellees were entitled to the said fund for the following reasons:

“First. The complainant concedes that the fund in controversy belongs either to Alida B. Brown, widow, or E. M. Brown, Anna Skelley and Mary Hogan, brother and sisters of the deceased, Thomas M. Brown. The actual controversy then is between the widow on the one side, and the brother and sisters on the other.
“Second. That when Thomas M. Brown executed the revocation of the direction for the payment of the beneficiary fund in his certificate provided for, which revocation is dated June 27, 1903, and directed the fund to be paid to his brother and sisters, he was not mentally incompetent to execute the said paper.
“Third. That such revocation and new direction was not fraudulent as to his widow, and was not procured by undue influence of the brother and sisters, or either of them.
“Fourth. That under the laws of the A. O. U. W. and the certificate issued to the brother and sisters, and the evidence in this case and the law applicable thereto, the revocation and direction were permissible, and that said Edward M. Brown, Anna E. Skelley and Mary Hogan are entitled to the said fund.”

And a decree was entered accordingly.

The two points upon which appellant relies for a reversal of the case are:

First. That upon June 27, 1903, Thomas M. Brown was mentally incompetent to designate the change of beneficiaries which he did.

Second. That under the laws of this State and the laws of the complainant, such designation and change of beneficiaries was not valid or effective.

Mental Competency. The solicitor for appellant correctly says that in determining the mental competency of appellant’s husband in this case the same rules of law should .be applied to the case as are applied to bequests by will or deed. That the test usually followed in determining the mental capacity of the grantor, or testator, in such cases, is whether, at the time in question, he had sufficient mental capacity to understand the business in which he was engaged, to know and understand the extent of his property, and how he wanted to dispose of it, and to understand who are dependent upon him. We have read this entire record carefully, and are free to say that upon the facts the case is a close one. In such a case, where there is evidence pro and con, much weight should ordinarily be given to the conclusion reached by the trial judge, who has had the opportunity of seeing and hearing the witnesses. It should also be borne in mind that sanity is the normal condition of the human mind, and where insanity or mental incompetency is claimed, it should be proved by a preponderance of evidence.

The vital question is, What was this man’s mental condition on June 27, 1903 ? Mr. Gillett’s testimony comes the nearest to this date in point of time. It also appears that he had known Brown from his (Gillett’s) boyhood. He testified that on June 23d, and the day before, Brown appeared to know what he wanted to do and how to do it, and the witness gives it as his opinion that at that time Brown was mentally competent, and understood the nature and purpose of the paper. Brown at this time seemed to have an opinion and a will, and would not be dissuaded by Mr. Gillett from the course he had chosen. His relations with his family were strained, and he was irritable when in the presence of his wife. It appears that he dictated the terms of the agreement. An examination of the agreement and the deed made in connection therewith, show that he made a rational disposition of his property, and everything indicates that he had mental capacity to understand the business in which he was engaged, and the extent of his property. We have also copied the letter written the next day for the purpose of aiding us as to the condition of his mind on that day. He has the same grievance as on the day before, but he correctly states what he has done with his property and the reasons therefor. He refers to his certificate and states that he is taking steps to make the change therein, which was made. Knowing that it would be necessary to pay assessments, he requests that these be taken care of. While this letter would indicate that the writer was a despondent and irritable man, it fails to show insanity or an unsound mind, in our judgment. It seems to us that all of the acts of Mr. Brown, as they appear in this record for many days before, and on June 2?th, indicate that he was capable of comprehending, and did comprehend, the nature of his act in designating the new beneficiaries.

It certainly cannot be said that the testimony in this case proves that Mr. Brown was insane at the time he applied for and obtained a change of beneficiary. It is incumbent upon appellant not only to prove insanity, but also to prove that the act of the alleged insane person was not done during a lucid interval. This court has held that the act of a man, who had been insane, was valid if made during a lucid interval. Ramsdell v. Ramsdell, 128 Mich. 110 (87 N. W. 81). In the latter case deceased had been insane, and had been confined in insane asylums three times prior to 1872. From that time down to 1896 his conduct had given no indication of mental unsoundness. In 1896 his mind again became affected, and he was confined in an asylum, where he was kept until the latter part of July 1897, when his mind seemed to be clear. On September 22, 1897, he executed the deed to his son which was sought to be set aside. Subsequently he had another period of mental disturbance, which lasted off and on until his death. In that case the deed was set aside in the circuit court. In this court, Mr. Justice Long, speaking for the court, said:

“We think that the decree by the court below cannot stand. There was no direct proof offered by complainant showing an unsettled mental condition of Mr. Bamsdell on the day the deed was executed, nor for some time before that. Complainant rests his case upon the fact that Mr. Bamsdell had been insane in previous years; also some months preceding the making of the deed, as well as after its execution. * * *
“In the present ease Mr. Bamsdell was able to describe the land (which consisted of two forties, separately described) from memory. * * *
“We think it apparent that Mr. Bamsdell, at the time the deed was executed, was restored to his mental faculties so far as to be able to comprehend what he was doing, what property he was disposing of, the condition of his family, and his own situation, and was able to act with memory and judgment.”

The testimony of Alida B. Brown, as to matters equally within the knowledge of her deceased husband, was incompetent, under section 10212, 3 Comp. Laws, and under the rulings of this court. Great Camp K. O. T. M. v. Savage, 135 Mich. 459 (98 N. W. 26); Wallace v. Mystic Circle, 127 Mich. 387 (86 N. W. 853). Upon this record we must hold that Thomas M. Brown, at the time of the act, was mentally competent to change said designation.

Validity of Change of Beneficiary. Appellees claim that this question is not raised by the pleadings, and there is force in the contention. But if this question were properly raised by the pleadings, it is difficult, to see how the appellant can complain, since the complainant has admitted its liability, and the complainant order is the only party that has the right to raise the question. Standard Life & Accident Ins. Co. v. Catlin, 106 Mich. 138 (63 N. W. 897); Hosmer v. Welch, 107 Mich. 470, 474 (65 N. W. 280, 67 N. W. 504); Supreme Lodge O. M. P. v. Dewey, 142 Mich. 666 (106 N. W. 140, 3 L. R. A. [N. S.] 334, 113 Am. St. Rep. 596); Cowin v. Hurst, 124 Mich. 545 (83 N. W. 274, 83 Am. St. Rep. 344).

The by-laws of the association which were offered in evidence contained provisions for changing beneficiaries when the certificate of membership was either mislaid or lost. Section 15 provides:

c{ Each and every member shall designate the person or persons to whom the beneficiary fund due at death, shall be paid, who shall, in every instance, be one or more members of the family of the member, or some person or persons related to him by blood, or who shall, be dependent upon him.”

It must be held that Edward M. Brown, Anna E. Shelley, and Mary Hogan, the brother and sisters of deceased, were persons related to him by blood, and were therefore proper persons to be designated as the beneficiaries of Thomas M. Brown. We must hold, therefore, that this association, previous to the amendment of the act under which it was incorporated, viz., Act No. 192, Pub. Acts 1901, had full power to issue a certificate to an assured, designating brothers and sisters, or both, as beneficiaries, and that, if it had not the power, the complainant order only, arid not the defendant Alida B. Brown, could raise the question. Hosmer v. Welch, supra; Cowin v. Hurst, supra; Great Camp K. O. T. M. M. v. Deem, 143 Mich. 652 (107 N. W. 447); Grand Lodge A. O. U. W. v. Beath, 150 Mich. 657 (114 N. W. 662).

But if we were to hold, which we do not, that the amendment of 1901 were necessary to permit the naming of brothers and sisters, there is no proof in this record that complainant did not reincorporate. The point is not raised by the pleadings. Offering, by appellant, of the original articles of association does not prove this. The burden of showing that the order did not amend its articles, if such amendment were necessary, and if the point is material, is upon the party who asserts it, and it should be shown by the affirmative proof, and not by negative proof. The presumption is in favor of the regularity and legality of the contract, and of the power and authority of the complainant to make it. At all events, only the complainant could raise the question, and it has not done so. So, in any view of the case, the decree below should be affirmed, with costs of both courts, and it is so ordered.

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


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    LEEDY v. HOOVER.
    1. Damages — Permanent Injuries — Pleading—Declaration.
    A recovery for prospective damages, reasonably liable to be sustained, is not objectionable under a declaration alleging, and charge to the jury permitting, the same, although permanent injuries are not counted on or proved.

      2. Trial — Witnesses — Evidence — Cross-Examination — Order of Proof.
    It is discretionary with, the trial judge to prevent a cross-examination of the plaintiff, in an action for trespass to his person, by questions apparently not asked in good faith concerning previous quarrels, which are denied by plaintiff, where the ruling permits the asking of such questions after a proper showing.
    3. Evidence — Hearsay—Complaints of Pain.
    While testimony of a physician, called for the purpose of obtaining evidence, is not admissible as to complaints and expressions of pain made by the injured party, it is competent unless a purpose of that kind appears.

    4. Trial — Jury Trial — Province of Court and Jury — Coercing Verdict.
    No error is committed by a trial court in informing the jury that they must unanimously agree upon their answers to special questions.
    Error to Van Burén; Des Voignes, J.
    Submitted February 15, 1910.
    (Docket No. 120.)
    Decided March 19, 1910.
    Trespass vi et armis by Richard G. Leedy against Josephine S. Hoover and Clyde Hoover. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Barnard & Lewis, for appellants.

      Thomas J. Cavanaugh, for appellee.

       As to admissibility of expressions or statements of present pain made during sickness or subsequent to injury, see note to Mississippi Cent. R. Co. v. Turnage (Miss.), 24 L. R. A. (N. S.) 253.

   Hooker, J.

The plaintiff recovered a verdict and judgment for $200, in an action of trespass for assault and battery, and defendants have appealed.

Permanent Injury. Counsel allege that the court erred in permitting evidence of permanent injuries and instructing the jury that they might award damages for permanent injuries; the declaration not alleging any permanent injury. We are unable to find in declaration or proof a statement that plaintiff had suffered a permanent injury, but the declaration does contain averments that warranted the recovery of prospective damages for injuries not wholly recovered from at the time of filing. We have examined the pages cited in support of this claim without avail; counsel not having pointed out the language relied upon. We infer that counsel find it in the description of the injuries received, evidence of which was competent in any case. We find no claim of damages based upon the permanence of any injury, and no allusion to a permanent injury is made in the charge.

The following is the charge complained of:

“ And under the declaration on this case, and in view of the foregoing instructions on damages, the plaintiff would be entitled to recover damages for the injuries suffered for their natural consequences up to the time of the trial, together with such prospective damages of a like character as would be reasonably probable to result from the nature and effect of the injuries received, and which cannot exceed the sum named in the declaration, which is $10,000.”

The declaration alleges:

“ With their hands and feet, stones, sticks, and cluhs make an assault upon him, the said plaintiff, and did then and there push, kick, strike, knock, pound, beat, bruise, stamp upon, wound, and ill treat the said plaintiff, and did then and there strike the said plaintiff a blow over the head with a large stick, cutting a large gash in his head and felled him, the plaintiff, to the ground, and did then and there stamp upon and kick the said plaintiff in the back, side, ribs, and elsewhere, and did then and there jump upon and pound with their clenched fists the said plaintiff in his face, head, shoulders, and body with such force and violence that his head and face were pounded into a jelly, and almost killed him, the said plaintiff, whereby and in consequence of which said several matters the said plaintiff became, and was, and is, sick, sore, lame, disabled, and disordered, and hath so continued to be sick, sore, lame, disabled, and disordered for a long space of time, to wit, from thence hitherto, and yet continues to be sick, sore, lame, disabled, and disordered, and in further consequence of said several matters and things the said plaintiff became, and was and is, disfigured in and about his face and head and greatly injured thereabout, and became, and was, and is, injured internally, and suffers great bodily pain in and about his head, face, and body.”

We think no error was committed in this regard.

Cross-Examination of Plaintiff. Counsel asked plaintiff:

“Do you remember being in a poker game down to Bangor one time, and drawed a gun on A. Harbin, and he choking you there until you nearly died ?
“A. No, sir; I never was. Now, that is a false statement entirely.
Mr. Cavanaugh: Wait a moment. I object to that for the reason that it includes a statement that counsel .knows did not exist, and further object to it in any event because it is not competent in the condition that this case is at present.
‘ ‘ Mr. Barnard: We expect to go into several fights with this man.
ilQ. How many fights have you had in your lifetime, sir ? ”

The object stated was to show that defendants had heard of said alleged fights where plaintiff had drawn weapons. The court excluded the testimony until proof should be offered that defendants had heard of the transaction, disposing of the question on the order of proof. No effort was made to show such information. It was also claimed that defendants had a right to such testimony to discredit plaintiff. No error was committed. While it would not have been error to admit the testimony, the subject was within the reasonable discretion of the trial judge.

Complaints of Injury. Counsel contend that testimony of plaintiff’s wife and physician that he made exclamations of pain and complained of his back was inadmissible. We have held that where a physician or other person is called for the purpose of obtaining information upon which to base his evidence, his testimony regarding complaints and expressions of pain should, be excluded. In addition to the two cases cited by counsel, viz., Kelley v. Railroad Co., 80 Mich. 237 (45 N. W. 90, 20 Am. St. Rep. 514), and O’Dea v. Railroad Co., 142 Mich. 268, we call attention to the cases cited in the latter case at page 270 (105 N. W. 746), which show a limitation of the rule relied on in this case. We think the testimony was admissible, subject to the scrutiny of the jury. The statement of the wife that he complained of his back does not appear to have been objected to and is not within the motion to strike, as we are unable to find that it “was made after the action was commenced,” to which class of statements the motion applied. We find no error in the charge, nor was the refusal to give defendants’ requests erroneous.

Coercion of the Jury. Complaint is made that the trial judge coerced the jury, thereby obtaining a verdict, in that he told them that, unless they agreed unanimously upon the answer to questions submitted to them, he would not receive their verdict. At the close of the charge a juror said:

“Supposing, judge, the jurors ignore that, then what?
The Court: You can’t ignore it. You must answer those questions, and no verdict will be received until you answer them. That is the law.”

After being absent for a time, the jury returned into court and the following proceedings were had:

The Court: Mr. Foreman, I understand that you have a request that you desire to make known to the court.
The Foreman: Your honor, we don’t understand exactly about these special questions. Now, we can settle everything but the answers to those questions and the signatures.
The Court: In what respect ?
The Foreman: Well, the jurymen want to know whether they have to, for instance, take the first question —if they are divided on it whether they have got to— whether they can sign their names giving their vote on it.
liThe Court: Well, you will have to answer those questions, gentlemen, as they appear there. As I said to you, either in the affirmative or negative; as you find the evidence to be, either yes or no, and that is something you will have to agree upon the same as any other part of the verdict. I can say nothing further to you than this: That the law permits in cases of this character the parties to frame not to exceed four questions, I think it is, perhaps it is more, but it is limited, and those questions are so framed that they may be answered by yes or no, and it is your duty to collectively talk those' questions over and agree upon them, and answer them the same as any other part or portion of your verdict; and, after having done so, you will have to sign the paper on the other side or at the bottom — all of the jurors. Now, that is all that I can say to you, gentlemen. I cannot discuss questions with you at all, because it is a question of fact, but that is one of the things that you will have to agree upon the same as anything else.
A Juror: I think, honorable court, some of the jurymen, some of us, are at a loss to know — for instance, take the first question whether a part of us could sign those questions yes and the other part no. That is the understanding that I have that we have got to sign them unanimously.
“ The Court: Yes, sir; they have got to be unanimous and sign your names to it. You may return the jury.
“ A Juror: Then we’ve got a job.”

We see nothing in this that should be called coercion. Every jury is informed that their verdict must be unanimous to be effective. There are other questions raised, but they require no discussion.

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

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


text:
    McDONNELL v. CENTRAL DRUG CO.
    1. Master and Servant — Duty to Provide Saee Tools — Explosion.
    In an action for the death of plaintiff’s intestate because of an explosion of a gas tank which he was shaking and filling, while another servant, sent by a representative of the master to instruct the deceased in the method of doing the work, was turning on more pressure, evidence that the tank had been used for a long time and had been allowed to become rusty furnishes evidence from which the jury might find that the explosion was due to the master’s neglect.
    2. Same — Fellow-Servant—Proximate Cause.
    Since the evidence does not conclusively show that the fellow-servant was guilty of negligence, or that his negligence alone caused the explosion, it was error to direct a verdict for the defendant.
    3. Same — Fellow-Servant—Negligence in Instructing EMPLOYE.
    An explosion resulting from the negligence of a co-employé with the deceased in turning on an excessive pressure of gas into a tank which he was instructing deceased to operate, is neglect in the performance of one of the master’s nondelegable duties.
    Error to Wayne; Murfin, J.
    Submitted February 15, 1910.
    ( Docket No. 151.)
    Decided March 19, 1910.
    Case by Ella McDonnell, administratrix of the estate of Michael McDonnell, deceased, against the Central Drug Company for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Sloman & Sloman (William S. Sayres, Jr., of counsel), for appellant.

      O. E. Butterfield, for appellee.
   Hooker, J.

The plaintiff’s intestate and husband was killed by the explosion of a soda fountain tank while he was engaged in charging it. In an action brought to recover damages for his death, a verdict was rendered in defendant’s favor by direction of the trial judge upon the ground that negligence of the defendant was not proven, or, to be more specific, we understand that the learned circuit judge was of the opinion that the testimony in the case left the cause of the accident a matter of conjecture merely, and that it was quite as consistent from the testimony to conclude that it was caused by a fellow-servant in admitting too much gas, and consequently subjecting the tank to too high a pressure, as that it was due to the rusting and weakness of the tank, a condition of the tank which was fairly deducible from the testimony. The plaintiff has appealed.

We append a diagram of the apparatus used on the occasion of the accident. The theory upon which it is said to operate is that the cylinder marked “drum” is filled with carbonic acid in a liquid form, which this gas is said to assume under a sufficient pressure. The operation of the cylinder marked “tank” is, first, to put in 10 or 11 gallons of water, which is expected to absorb carbonic acid when introduced in gaseous form. This gas is then introduced through the copper pipe and rubber tube on opening a valve on top of the drum marked “key” and the valve marked “valve” at the upper end of the rubber tube. We do not find any testimony tending to show the amount of pressure that the tube or pipe will withstand. The gas passes through the gauge shown between the pipe and tube, and it is said that the regulator, if properly set, will shut off further pressure from the drum, when it reaches the desired pressure in the tank. This regulator was not used on this occasion; it being the common practice to control the admission of gas with the key. It was proved that the regulator is not provided for some such apparatus. The plaintiff claimed, and proved, that her husband was a porter in defendant’s drug store, and was sent with an experienced man to charge the tank, who was to show him how to perform that work. We cannot find evidence tending to show that the accident was due to lack of instruction, for the deceased did nothing leading to or causing the accident which apparently was due to one of two things: (1) The defective condition of the tank. (2) The overchanging of the tank by his companion.

Condition of Tank. This tank sat upon the floor in a cellar, which was damp, and in which there was more or less salt in a wet state upon the floor, caused by emptying ice and salt from ice cream freezers. It was an old tank, which showed considerable rust, and which had been affected to the extent of scaling. It had been painted by order of defendant upon the rust without removing the rust or scale, and without examination as to condition. A photograph shows that the bottom of the tank was shattered in the explosion, and there was testimony showing that the metal of the bottom had become very thin, which was easily ascertainable after the explosion. There was testimony that new tanks were tested at the factory to the point of 1,000 pounds cold water pressure to the square inch, that similar tanks had been put under 250 pounds pressure, and on this occasion 150 pounds was contemplated.

Negligence of Berlin. Berlin must be taken to have been competent to charge this tank. It is urged by the defendant that circumstances show that the accident was due to an overcharge. It appeared that in charging the tank one drum was exhausted, and Berlin coupled the copper pipe to another drum, and there was testimony that the gauge showed a pressure in the tank of 102 pounds at that time. Mr. Brooks, a member of the police force, arrived about 15 minutes after the explosion, and stated that while there he noticed the gauge, which registered 220 pounds. If this is true, it would seem obvious that the drum was open long enough to create such pressure. Counsel for the defense urge, however, that it does not follow that such a pressure was raised in the tank, explaining that it might have come from the freezing of the second valve which would be the result of a too rapid flow of gas, and might occur before the tank was charged to such pressure. On the other hand, it is suggested that the tank may have had a much higher pressure, which was afterwards diminished to 220 pounds at the gauge through escape through the exploded tank. It is undeniable that there is much reason for the conclusion that the explosion was due to Berlin’s carelessness.

Jury’s Duty. In the absence of proof to indicate an overcharge, the testimony relating to the condition of the tank would have warranted the finding that the explosion was due to the rusted and weakened condition of the tank, which was properly chargeable to the master’s neglect. It was therefore a question for the jury unless the testimony can be said to have conclusively shown that it was due to another cause, and not to that. Under this proof, that cannot be said, for two reasons: (1) The proof does not show conclusively that Berlin was negligent; (2) it may have been that, but for the weak tank, the pressure actually permitted, though excessive and due to Berlin’s negligence, would not have exploded the tank. Thus, if they should find that the tank exploded at the 220-pound mark, they might also find that the tank would not have exploded had it not been weak through rust. We see no way to sustain the conclusion that the accident was due to the negligence of Berlin alone, or to say that there was so much uncertainty that the cause was necessarily a mere matter of conjecture.

Fellow-Servant. There was proof in this case that the deceased was sent to the basement for instruction. Berlin was the man selected to represent the master in giving this instruction. If this was true, and in giving the instruction (or, in other words, showing him how to operate the apparatus) the deceased was killed through Berlin’s negligence, it was the master’s act, for it would be a strange conclusion that the man who was a representative of the master to illustrate for the purpose of instruction ceased to be such and became a fellow-servant when an accident resulted from his negligent illustrative operation. Whether it was conclusively proved that he was sent to instruct we do not determine, but there was testimony of that kind, and, if disputed, the question was for the jury. We have often held that one who in the performance of his ordinary duties is a fellow-servant with the novice may be directed to perform duties, in the way of instruction or warning, for which the master is responsible and which he cannot escape liability for, if negligently performed or omitted, by delegating the duty to another, who may be a fellow-servant. This is an uncommon if not a novel question, but we think it a plain one on principle, and, if it can be said that while operating a machine for the purpose of instruction, his negligence in such operation is the cause of injury to the novice, the master is certainly liable. It follows, therefore, that if it was due to either cause the defendant was chargeable, and it would be an unjust rule to require a case to be taken from the jury in favor of defendant, no matter how great the difficulty of determining which it really was.

We also think that there was evidence from which the jury might have found that deceased contributed to his wife’s support, up to the time of his death, had that question been submitted to them.

The judgment is reversed, and a new trial ordered.

Moore, Me Alva y, Brooke, and Stone, JJ., concurred.


text:
    BUCKHOUT v. BROWNE.
    1. Appeal and Error — Findings of Lower Court — ConolusiveNESS.
    Findings of fact of the trial court, if supported by the evidence, where the issue was tried without a jury, are conclusive on error.
    2. Same — Refusal of Requests — Inconclusive Matters.
    The refusal of requests for findings which, singly or collectively, would not necessarily change the result is not prejudicial.
    Error to Kalamazoo; Knappen, J.
    Submitted February 16, 1910.
    ( Docket No. 48.)
    Decided March 19, 1910.
    Assumpsit by Romaine H. Buckhout and Frank J. Henry, copartners as the Buckhout-Henry Company, against Ella Drake Browne for commissions on the sale of real estate. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Affirmed.

      Boudeman, Adams & Weston, for appellant.

      Harry C. Howard, for appellees.
   Hooker, J.

The defendant owned a business block in Kalamazoo, which she was desirous of selling, and made an arrangement with plaintiffs to aid in its sale. They were real estate agents. There seems to be no question but that she had previously placed it in the hands of one White for sale, and it is evident that plaintiffs solicited the privilege of selling the property. The parties tell .radically different stories about the employment; defendant claiming that she gave plaintiffs but a week to sell it, for a price of $75,000, and afterwards terminated the arrangement and sold it herself for $70,000. The plaintiffs testify to a general authority to sell on the discharge of Mr. White, and subsequent collusion between defendant and the purchaser to avoid payment of a commission to the plaintiffs. The trial was without a jury, and a judgment was entered, on findings, in favor of the plaintiffs. Defendant has appealed.

A few of the errors assigned relate to the admission of evidence. We have examined these and find nothing of importance in these assignments. Most, if not all, of the testimony was properly admitted, and none of it, if immaterial, could well have injured the defendant. A large number of assignments are based on exceptions to findings of fact, while many others relate to refusals to find as requested. We find upon examination that all of the former and many of the latter relate to questions upon which there was contradictory evidence. Of one of these questions counsel say:

“It will probably be argued that because Henry denied these conversations with Peck and defendant about throwing over the contract, that there was evidence on which to base the findings of fact and judgment. But we submit that the vast preponderance and weight of the testimony is against plaintiff on this question of throwing up the contract, and, considered in connection with the other claims made against this judgment, shows that the evidence did not support the findings of fact nor warrant a judgment for plaintiff.”

We understand the rule to be that the finding of the trial judge must be accepted by us, on all questions of fact, supported by evidence.

The refusal of the requests for findings, if there are any justified by the evidence, is inconsequential, for the reason that, singly or collectively, they would not necessarily change the result.

We' find no error, and the judgment is affirmed.

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


author: Stone, J.

text:
    FLETCHER PAPER CO. v. CITY OF ALPENA.
    1. Taxation — Illegality—Insufficient Valuation — Fraud of Board of Review.
    In an action to recover back taxes paid under protest on account of the illegal action of a board of review in arbitrarily reducing the valuation of property owned by a corporation from §800,000 to §10,000, the action of the circuit judge in valuing the assessed property at §200,000 more than the assessment is not prejudicial to plaintiff.
    2. Same — Municipal Corporations — Power of Common Council.
    A resolution of the common council of a city directing the board of review to make such reduction is illegal and of no effect.

      3. Same — Illegal Reduction by Board op Review.
    The unlawful action of the board of review does not invalidate the entire assessment, but entitles the plaintiff to recover the excess over the just tax.
    Error to Alpena; Emerick, J.
    Submitted February 28, 1910.
    (Docket No. 15.)
    Decided March 19, 1910.
    Assumpsit by the Fletcher Paper Company against the city of Alpena for taxes paid under protest. A judgment for plaintiff for less than the amount claimed, on a verdict directed by the court, is reviewed by plaintiff on writ of error.
    Affirmed.

      Charles It. Henry, for appellant.

      Joseph Cavanagk (Frank D. Scott, of counsel), for appellee.
   Stone, J.

This is an action of assumpsit brought against the city of Alpena in the circuit court of that county, in which action the plaintiff seeks to recover the sum of $5,758.50 and interest, being the amount of taxes and charges paid for the year 1908 by it on its property in said city, said taxes having been paid involuntarily and under protest, and the present suit having been brought under the provisions of section 3876, 1 Comp. Laws, as. amended by Act No. 130, Pub. Acts 1901. The property of the plaintiff was assessed at the sum of $300,000. It appears that on April 13, 1908, that being the date when, by the tax law of the State, values of property were determined for taxation, the Huron Portland Cement Company, a corporation, had a large amount of property within the city of Alpena subject to taxation. This property consisted of buildings, machinery, docks, wharves, and other things incident to the manufacture of Portland cement. The comptroller of the city for said year assessed the real estate of the said Huron Portland Cement Company at $800,000, and its personal property at $5,000. When the board of review of the city met for the purpose of reviewing and determining assessments against property for that year, it reduced the valuation of the real estate of said Huron Portland Cement Company from $800,000 to $10,000. The only record made by the board of review at the time of making this reduction was as follows:

“ Moved by McCain, supported by Spens, that the assessment of the Huron Portland Cement Company be placed at $10,000 as agreed by common council of the city of Alpena, the plant still being in the course of construction. Carried. The comptroller and city attorney not voting.”

The action of the common council, above referred to, does not fully appear in the record, but plaintiff’s attorney has, we think, correctly set it forth in his brief. After the statement of the members present, the resolution upon this subject is as follows:

“Resolution by Alderman Mawhinney, supported by Alderman McPhee — Whereas, the citizens of the city of Alpena, at a mass meeting held at the Maccabee Temple in the city of Alpena, on Friday, August 17, 1906, passed a resolution recommending the common council of the city of Alpena to make arrangements with H. J. Paxton to assess the property of the company he was to organize at the same amount as the land purchased by his company for a site is now assessed, for a period of two years, and thereafter assess the same at the sum of $50,000 for a period of eight additional years, and, said H. J. Paxton, acting upon said resolution, has purchased what is known as the Avery Mill site and other property, and has organized what is known as the Huron Cement Company, and is proceeding to carry out said arrangements -upon his part. Now, therefore, be it resolved, that the comptroller of the city of Alpena and the board of review are herein and hereby instructed to assess said property of said Huron Cement Company at the same amount as said property is now assessed ($10,000) for the years 1907 and 1908, and at the sum of $50,000 for the years 1909 to 1916, inclusive.”

This resolution was adopted with but one dissenting vote. It will be seen that by this action of the board of review the valuation of the real estate of the Huron Cement Company was reduced from $800,000 to $10,000, ■which appears to have been merely a nominal valuation, and it seems to have been conceded upon the trial of this case that the property was not, by the board of review, assessed at its true cash value; and this within the knowledge of the members of the board of review. When the roll was placed in the hands of the treasurer for collection the plaintiff refused to pay its taxes because of the said action of the board of review. Whereupon the treasurer made seizure under the-warrant attached to his roll, and the plaintiff paid, after seizure and under protest, the amount of its taxes, and within the time prescribed by the statute brought this action to recover back what it had so paid. Upon the trial the evidence tended to show the value of the real estate of the Huron Cement Company to be from $500,000 to $1,250,000. The circuit judge determined that the value of the property, real and personal, of the Huron Cement Company, was $1,005,000, and calculated on that basis the loss which the plaintiff had sustained, and directed a verdict for the plaintiff, and against the defendant, including interest and expenses, of $987.15.

It appears that the comptroller, whose duty it was to make the assessment, fixed the value of the real estate of the Huron Cement Company at $800,000. Manifestly the action of the board of review was unlawful and void. The circuit judge might have well adopted the valuation as fixed by the comptroller, at $800,000. By increasing the valuation to $1,000,000 the plaintiff was benefited; for the larger the amount of the omitted property was found to be, the less tax the plaintiff would have to pay. The plaintiff does not allege error because the circuit judge fixed the valuation of the omitted property at $1,000,000 instead of $800,000 but alleges error because the circuit judge did not direct a verdict for the plaintiff for the full sum of taxes and charges paid by it, instead of the sum of $987.15. The whole amount of taxes to be raised was $116,748.72. By this action of the circuit judge the aggregate valuation upon the roll was changed from $6,145,-188 to $7,185,183. This took into consideration the valuation on the roll of the personal property at $5,000, and of the real estate at $10,000. It is very clear to us that the resolution of the common council was of no force or effect, and the action of the board of review was equally as palpably wrong and illegal as though the council had not passed their ineffective and unauthorized resolution. The single question presented in this record by the assignment of error is, Can the taxpayer, under the circumstances here stated, sue and recover back all of the taxes paid, or can the court adopt the action of the assessor' and adjust the defendant’s liability accordingly ?

If we are correct in treating the action of the board of review as wholly void and without authority, this would leave the assessment made by the comptroller to stand at $800,000; and, if the court has benefited the position of the plaintiff by adding $200,000 more as the value of thej omitted property, the plaintiff cannot complain of the re-1 suit. The attorney for the defendant contends, and we * think justly, that a reading of the record at pages 35 to 37, inclusive, clearly shows that upon the trial the plaintiff’s v( attorney acquiesced in the sum of $1,000,000, as fixed and adopted by the circuit judge.

Plaintiff’s counsel cites the following decisions of this court in support of his position: Merrill v. Humphrey, 24 Mich. 172; Walsh v. King, 74 Mich. 350 (41 N. W. 1080); Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990); Weston v. Monroe, 84 Mich. 341 (47 N. W. 446); Auditor General v. Prescott, 94 Mich. 190 (53 N. W. 1058); Auditor General v. Pioneer Iron Co., 123 Mich. 521 (82 N. W. 260); Auditor General v. Improvement Co., 129 Mich. 188 (88 N. W. 468, 56 L. R. A. 105); Auditor General v. Hughitt, 132 Mich. 311 (93 N. W. 621); Bialy v. Bay City, 139 Mich. 495 (102 N. W. 1033); Delray Land Co. v. Township of Springwells, 149 Mich. 397 (112 N. W. 1132); Williams v. Merritt, 152 Mich. 621 (116 N. W. 386).

The appellee contends that the doctrine of this court, as announced in Auditor General v. Jenkinson, 90 Mich. 523 (51 N. W. 643), and kindred cases, applies, and that/ the action of the circuit court was correct. It will be well/ for us to examine the cases cited.

In the case of Merrill v. Humphrey, supra, a bill was filed against a property owner to enjoin the collection of taxes on the ground that the amount was excessive; and it was held that the complainant should show by his bill, as near as might be, practicably, what amount was just, and that he should offer to pay to the proper officer the amount which he concedes to be properly chargeable against him. The opinion in that case was by Justice Cooley. He said:

• “Accepting to the fullest extent, as we must upon demurrer, the truth of the matters alleged in the bill, there is no equity in relieving the complainant altogether from the payment of taxes upon his lands. He owes to the state, county, and township the same duty, and is under the same obligation with every other property owner therein; and the attempt by an official to exact from him more than is just, will not excuse him from bearing the burden so far as it is just.”

The case of Walsh v. King, supra, was a bill in equity to cancel taxes and to enjoin their collection. The case was before this court on demurrer to the bill. The bill alleged that $400,000 of taxable property was practically exempted from taxation in violation of law, and by an agreement of the assessing officers with vessel owners in the city of Port Huron. This was held to be a fraud upon the complainant, and that where the assessing officers by an agreement with the owners of a certain class of property assess the same at less than its cash value, a taxpayer whose taxes are increased is entitled to relief in equity, and to'such a reduction of his taxes as will make his burden of taxation no greater than if said property had been assessed at its fair cash value; and this was so held; that is, that reduction of the tax could only be had to the* extent that the complainant had been injured, event though there was a wilful, intentional violation of the law by the officers.

Solomon v. Township of Oscoda, supra, was, like this case, an action of assumpsit, brought to recover certain moneys which the plaintiff had paid as taxes, under protest on the ground that they were illegally assessed. It appeared in that case that the supervisor and other members of the board of review had agreed between themselves that salt, lumber, and logs should not be listed for taxation, or assessed in the township, and there was omitted from the roll such property amounting to at least $800,000. It was held that this condition of things would entitle a taxpayer to relief from the excessive amount of his tax. In that case the evidence furnished no basis for an apportionment of the tax, and it was held that where the illegalities in a tax assessment are such that it is impossible to ferret out the legal from the illegal taxes which the taxpayer should pay, the general rule requiring him to show the excessive taxes over those which he would have been obliged to pay had he been legally and properly assessed does not apply. This case clearly indicates that if the basis is furnished, the tax will be apportioned, and the plaintiff will recover only the illegal portion paid.

Weston v. Monroe, supra, was an action of ejectment, and the tax title, relied upon by the plaintiff was set aside because, after the supervisor had completed and certified to his roll, had submitted it to the board of supervisors, and had received it back from the board, with the certificate of the chairman affixed thereto, the supervisor, without any authority from the board, made several substantial alterations in the roll by adding a number of parcels of property thereto, and increasing the assessment of one parcel from $80 to $800. The additions thus made amounted to about $3,500. This case was decided upon the authority of Ferton v. Feller, 33 Mich. 199, which we shall later refer to; and it was held that the roll thus changed was not the tax roll authorized by law; that its identity had been destroyed, and that it was against public policy to permit any tampering with the roll after it had been completed and certified to, notwithstanding the intention be good, and the taxpayer not injured.

Auditor General v. Prescott, supra. This was a petition by the auditor general for the sale of lands delinquent for taxes. The evidence showed in that case that there was purposely omitted from the tax roll of the township of Oscoda about $800,000 worth of personal property which was taxable in that township, and also that the real estate was assessed at one-fourth of its cash value. Justice Montgomery, speaking for the court, said:

There was a very plain, clear, and wilful violation of the law by the assessing officers, and in a manner affecting prejudicially the interests of the defendants; and there is no sufficient data upon which the equitable amount due from the defendants for taxes can be ascertained. The questions involved have been fully considered and decided in the cases of Walsh v. King, 74 Mich. 350 (41 N. W. 1080); Auditor General v. Jenkinson, 90 Mich. 523 (51 N. W. 643); and Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990).”

In Auditor General v. Pioneer Iron Co., supra, the question arose under the petition of the auditor general for the sale of land delinquent for taxes. It was there held that where, on the hearing of objections to the petition of the auditor general, it appeared that the assessor and board of review of the city intentionally omitted a large amount of personal property and real estate from the assessment roll, and greatly undervalued certain personal property, and the business and residence property of the city, in order to throw a heavier burden of taxation on the outlying lands owned by the objectors, the entire roll was properly held void as to the latter; it not being incumbent upon the objectors in such a case to furnish the court with data from which to determine the amount they should equitably pay which would practically involve the making of a new roll. The court said:

‘ ‘ Even where there was a fraudulent assessment the court could grant relief by a reduction of the excess of tax; but in each case cited where that was done, the court had some basis by which the proper reduction could be made. In the present case none is found, and it is apparent that none can be found without making new rolls.”

Auditor General v. Improvement Co., supra. This case arose upon the petition of the auditor general for the sale of lands delinquent for taxes. Objections were filed by the Sage Land & Improvement Co. It was held that the action of the auditor general in deeding to the State, as tax homestead lands, a large quantity of land in a certain township, under 1 Comp. Laws, § 3949, and the subsequent omission of such lands from taxation, as belonging to the State, if unauthorized, did not invalidate the taxes assessed against the remaining lands in the township, though improperly increasing the tax imposed upon them; the action of the authorities having been taken in good faith, and under a misconstruction of the tax law.

In Auditor General v. Hughitt, supra, the question arose also upon the petition of the auditor general for the sale of land. It appeared in that case that after the assessment roll had been made, reviewed and completed, the supervisor corruptly and fraudulently changed and altered the valuation of certain lands by reducing the valuation fixed by the board of review, in the sum of $34,-000. The assessment for the taxes for the said year was made on such fraudulent valuation. In this case Justice Grant said:

“ Every taxpayer in the township is prejudiced, except the one whose valuation was reduced. The tax roll is a forgery. It is not the roll made by the supervisor, reviewed by the board of review, and placed in the hands of the treasurer for collection. As we said in Weston v. Monroe, 84 Mich. 341 (47 N. W. 446): £ Its legal identity is destroyed. It is not the roll authorized by law.’ A forged assessment roll possesses no more validity than does a forged note. Such tax rolls have been held void even where the changes were made in good faith, and where the parties had not been injured.”

In Bialy v. Bay City, supra, assumpsit was brought against Bay City to recover taxes paid under protest. It was there held that after tax rolls have been passed on by local boards of review, and are properly certified by the members thereof, no change can be made by the board or any assessing officer. Personal assessment had been made against the plaintiff of $35,000, as fixed by the board of review, which amount was increased by the State tax commissioners to $70,000. The taxes against the plaintiff were computed and carried out upon the basis of the valuations and amounts of assessment as so increased by the State tax commissioners. This court said:

“ These taxes are invalid only as to the amount of the excess of the real and personal taxes, by reason of the increase in the assessments and valuations by the State tax commissioners over the original assessments. There is no question as to the legality of the assessments on the rolls before the action of the State board. The amount of 4axes wrongfully assessed against the plaintiff and his assignors is determined without difficulty. The judgment of the court below is reversed, and a judgment entered in this court in favor of the plaintiff for the amount of the increase under the assessments fixed by the board of State tax commissioners, paid by plaintiff under protest, with interest from date of payment.”

This case seems to be authority in support of the action of the circuit judge in the case at bar.

Delray Land Co. v. Township of Springwells, supra. This case was held by this court to be governed by the Bialy Case, last above referred to. This court disposed of the case in the following closing language of the opinion:

“Upon this matter we agree with the learned circuit judge who heard the case, and hold that the tax is void as to the excess created by the action of the board of State tax commissioners over and above the original assessment.”

Williams v. Merritt, supra, was an action of assumpsit brought against the town treasurer and drain commissioner for taxes paid under protest. It was there held that where a drain tax paid under protest consisted of a single item, in which were improperly included the expense of constructing two sections of tile drain which should have been laid as an open drain, and a large amount for tile and a bridge, rendering it impossible to separate the legal from the illegal portion of the tax, the taxpayer could not be limited in his recovery to the portion of the tax which was illegal, but was entitled to judgment for the entire tax. The court disposed of the case in the following language:

“Under these circumstances it may be said in this case as the court said in Solomon v. Township of Oscoda, 77 Mich. 365 (43 N. W. 990): That it is impossible to ferret1 out the legal from the illegal taxes, and therefore the rule j invoked by the defendants has no application ”—citing the cases of Auditor General v. Pioneer Iron Co., supra; Auditor General v. Hughitt, supra.

It is in point to refer to the case of Auditor General v. Sparrow, 116 Mich. 574 (74 N. W. 881). In this case it was held that a change of valuations in the township assessment roll by the board of review, upon its own motion, after the expiration of the time allowed for that purpose by section 29 of the tax law of 1893 (Act No. 206, Pub. Acts 1893, 1 Comp. Laws, § 3852), invalidated the entire tax. This court said:

“We are unable to determine what the defendant’s properties are valued at in the original roll, or the aggregate valuation of such roll, which we should have to know were we to attempt to ascertain their just proportion of taxes upon their original assessment. It is contended that this is within the curative section 99, which says that ‘ no tax * * * shall be held invalid * * * on account of any assessment or tax roll not having been made, or proceeding had within the time required by law.’ We think, however, that this was clearly prejudicial, and therefore not within the terms of the section mentioned. This rendered invalid all taxes upon the roll of the township of Wakefield.”

In Ferton v. Feller, 33 Mich. 199, the township treasurer, after the roll had been delivered into his hands, made certain alterations in the roll by drawing his pen across the figures denoting the amount of one Feller’s taxes, and setting down in lieu of them other figures varying the amount of each item under the head of “School Taxes,” and reducing the gross amount a little less than $1. He made similar alterations in the cases of three other taxpayers. Under this tax roll, so altered, the treasurer demanded payment of Feller of those items so inserted as taxes he was bound to pay. Payment was refused, and the treasurer seized and sold Feller’s wagon. Feller then sued in trespass in this action. Referring to the action of the treasurer in altering the roll, Justice Graves said:

“ His act in altering the roll was not an official one. It was private and personal. It is true the gross amount of the items after the alteration, and for which the seizure was made, was less than the sum officially written down, and to which the warrant applied. But this cannot aid. What was thus inserted and sought to be collected by the levy was not a tax. It was an unauthorized entry to which the warrant in legal contemplation could not apply. Public policy is opposed to all unwarranted tampering with such matters, however well intended in the particular instance, and the courts ought not to strive for reasons to screen or excuse it.”

And judgment in favor of Feller was affirmed.

It seems to us very clear that the case at bar can be easily distinguished from the cases of Ferton v. Feller, supra; Auditor General v. Pioneer Iron Co., supra; Weston v. Monroe, supra; Auditor General v. Sparrow, supra; Auditor General v. Hughitt, supra. The Hughitt Gase, and in fact all the cases just cited, are exceptional ones. The tax roll had been tampered with, had been altered and changed in its character after a time J when such action could be legally had by anybody. In other words, the rolls were forgeries. It seems to us that this cannot be said in the case we are here considering. | It cannot be said in this case that the action of the board of review was a forgery. So far as it shows in this recsord, that board met at the proper time and place to cont' sider the subject of assessments. That board had full authority to review the action of the assessing officer. Its action was illegal, not because it attempted any forgery, but because it arbitrarily reduced an assessment from $800,000 to $10,000 admittedly fraudulently, and acting in bad faith. The basis is furnished in this case which enables the court to do exact justice to this plaintiff. The plaintiff has brought an action of assumpsit, which is an equitable action, against the city of Alpena, and it ought to recover the sum in which it has been damaged, by the unlawful and fraudulent action of the board of review.

It seems to us that the doctrine announced in Auditor General v. Jenkinson, supra, should apply here. It is true that case arose upon the petition of the auditor general for the sale of lands; but, as we have already shown, the court has applied the same rule in equity in such proceedings as it has applied in actions of assumpsit brought to recover taxes paid under protest. In the Jenkinson Case it appears that the vessels owned in the city of Port Huron had been assessed at 10 per cent, of their actual cash value. In that case Justice Montgomery said:

It is claimed by appellant that the entire tax assessed against her should be declared invalid and set aside; but we think otherwise. There is no difficulty in ascertaining the extent to which she has been affected by this unlawful omission of assessments, and it appears that her taxes were increased in consequence of the wrongful assessment by the sum of $31.23. We think, therefore, that she is entitled to have this sum deducted from the tax assessed against her, and that this should be the extent of her relief. Merrill v. Humphrey, 24 Mich. 170.”

In the case of Lingle v. Township of Elmwood, 142 Mich. 194 (105 N. W. 604), the plaintiff sued the township to recover taxes paid under protest. In the circuit court there was a judgment for defendant directed by the court, and the plaintiff brought error. In reversing the case Justice Hooker said:

“If the protest contains a sufficient allegation, and the evidence supports it, the question of plaintiff’s right to recover for a fraudulent amount should have gone to the jury.”

In other words, the court there recognizes that the amount which the plaintiff would be entitled to recover was the fraudulent amount.

In view of the foregoing authorities, showing the state of the decisions of this court, we are of opinion that the circuit judge did not err to the prejudice of the plaintiff in this case; and the judgment of the court below is affirmed.

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


text:
    COOK v. DARLING.
    1. Sales — Contracts—Implied "Warranty of Fitness — Food.
    Articles bought by a dealer and sold for consumption are impliedly warranted to be fit for the intended purpose.

      2. Same — Express Provisions of Contract — Interpretation.
    A provision expressed in the contract of sale that, if goods prove unsatisfactory, after the purchaser uses half thereof they may be returned with the name of the purchaser and cause of complaint and the price would be refunded, is not a limitation of redress to cases only in which half of the goods were used.

      3. Same — Buyer’s Remedies — Breach op Warranty.
    A breach, of the warranty of fitness may be urged in defense of an action for the purchase price brought on an accepted draft having a condition that the plaintiff perform his contract, without defendant’s offering to return the goods; since the omission to return affects only the amount of damages, unless the contract by its terms requires such return.
    4. Same — Return op Property — Construction op Contract.
    Under the provisions of a contract stipulating that the goods sold thereunder might be returned after half of any kind purchased should be consumed, if found unsatisfactory, worthless and unwholesome goods are construed not to be necessarily included, and their return not a condition precedent to recoupment for breach of warranty.
    6. Same — Questions op Law and Fact.
    The question of plaintiff’s due performance of its contract should have been submitted to the jury where evidence was introduced tending to show that unfit goods were furnished thereunder.
    6. Same — Reasonable Time — Complaint op Buyer — Questions por Jury — Directing Verdict.
    Where the nature of the purchaser’s business required some months to set it in operation, the question of reasonableness of the defendant’s delay for several months in making complaint should be submitted to the jury.
    Error to Lenawee; O’Mealey, J.
    Submitted February 18, 1910.
    (Docket No. 90.)
    Decided March 19, 1910.
    Assumpsit by Cliff R. Cook against Elbert W. Darling for goods sold and delivered. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      Smith, Baldwin & Alexander, for appellant.

      Charles L. Robertson, for appellee.
    The seller’s plan was as follows:
    “When goods have been bought out of the dealer’s stock sufficient to call for any of the merchandise listed in the catalogue or double value in goods, the same will be furnished by us free of charge, f. o. b., distributing point on order from the dealer accompanied by reorder for goods at the wholesale price amounting to 75 per cent, of the retail price of the goods sold. The 75 per cent, sent for reorder pays for at actual factory cost the double values shipped. The reorder replaces for the dealer the goods sold, and at the same time secures for him the extra or double value furnished his customer without one cent cost, and with full profits on this and all sales. This is the point at which we give up our profits for the furnishing of the double value and the strongest possible expression of our real purpose to do our full share in the cooperation.
    “ It devolves upon us to furnish the manufactured goods which we have already arranged to do; also to furnish the merchandise for double values, and catalogues properly illustrating and listing this merchandise. The catalogues of merchandise will afford satisfaction and sales when placed alongside of the offers made by the mail order firms. * * *
    “ The club organizer or secretary will be furnished one dollar either in goods or in premiums for each club member secured who pays ten dollars. For a club of five the club organizer will receive five dollars in goods or a five dollar premium.
    “ The premium to the club organizer is furnished by us as advertising expense for promoting the club plan, and without any expense on the part of the dealer. Special club agreement blanks are furnished by us.
    “If goods should be sold for the dealer by a solicitor and a commission of 40 per cent, on the sales should be preferred in place of double values in premium of goods, the same will be allowed. So far as cost to us is concerned, we can afford to do this, but advise that the double values offered are of greater value and a better advertisement for the dealer.
    “Pass books, premium catalogues, order blanks, etc., will be furnished the dealer without charge.”

       As to implied warranty of fitness upon sale of food, see notes to McQuaid v. Ross (Wis.), 22 L. R. A. 195, and Farrell v. Manhattan Market Co. (Mass.), 15 L. R. A. (N. S.) 884

   Stone, J.

This is an action of assumpsit, brought by Cliff E. Cook, doing business as the Colonial Manufacturing Company. It was commenced in justice’s court on June 18, 1908. The declaration was oral on all the common counts, and especially on a signed acceptance. The plea was the general issue with notice of fraud and breach of warranty. The draft sued upon was dated October 22, 1907, for $65, and was one of a series of four drafts made in payment for a bill of goods purchased by defendant from the plaintiff under a contract hereinafter referred to. Judgment was rendered for the defendant in justice’s court, and the plaintiff appealed to the circuit court, where upon a trial by jury the circuit judge directed a verdict for the plaintiff. The defendant assigned error upon the charge, and the case is here upon writ of error.

The goods were sold upon what the plaintiff terms “ a premium or double value plan.” The defendant signed the several acceptances, but added the words, “Provided said company does according to contract.” The defendant was a retail grocer doing business in the city of Adrian. The goods ordered by him from the plaintiff consisted of a quantity of soaps, toilet goods, perfumes, flavoring extracts, coffee, tea, allspice, cinnamon, ginger, mustard, nutmegs, cloves, pepper, baking powder, saleratus or soda, celery salt, etc., and were intended by both parties to be sold to the customers of the defendant in the course of his trade in the city and vicinity. The written contract contained the following:

“ Goods Guarantees. — All our goods are manufactured in compliance with the requirements of The Food and Drugs Act, June 30, 1906,.and are produced with skill and great care for the building up and holding of trade. If any article purchased in this order proves unsatisfactory as to quality after using one-half of it, return with name of consumer and cause of complaint, and we will refund price paid. And it is further arranged that if the dealer should have more of any article than his trade demands, or for any reason desires to make an exchange for other goods, such goods will be received at the full purchase price at any time within one year in payment of any new order to the extent of one-half of such order, but no goods are to be returned as payment on this first order.”

Upon the trial of the case the plaintiff offered the testimony of one Beck, an employé, tending to show that the plaintiff had performed the contract on his part. It was the claim of the defendant that the goods furnished by plaintiff were not pure and wholesome, and were not as represented by the plaintiff;, that he in good faith put out to his customers the goods furnished by plaintiff, relying upon the warranties and agreements as to the kind and quality, and believing such representations to be true he put out these goods to customers under the same guaranties; that said goods were not “produced with skill and great care for the building up and holding of trade; ” that they were inferior in quality; and that he had lost trade and customers by reason of the premises, and had suffered damages thereby. The defendant offered evidence tending to support his claim. Ten witnesses were examined on the part of the defendant. Their testimony tended to show that defendant received many complaints from his customers as to the quality of the goods, and that especially the tea, coffee, baking powder, soda, and soap were of an inferior quality, and, in fact, worthless.

The amount of the original order was $260. The acceptances were in equal sums of $65 each, and were payable in four, six, eight, and ten months from date. The defendant paid the draft first due. He claims that it took him some months to get the scheme or plan in operation, and it does not appear that he made any positive complaint to the plaintiff until April 15, 1908, when he wrote and mailed the following letter to the plaintiff:

“Adrian, Mich., April 15, 1908.
“Colonial Mng. Co.,
“Detroit, Michigan.
Dear Sirs: My experience in handling your goods is to the effect that they are not as recommended to me. Have been to quite an expense in advertising and have got quite a large number of people to try the goods. Have about 50 pass books started but the business is práctically dead. I have advertised of late but it has no effect. When I ask the people about it they say the goods is not what they are represented to be, that they are not worth the money even at the double value proposition. In your guarantee you say the goods are produced with great care for the building up and holding up the trade which you can plainly see does not work in my ease. The premium No. 75 roller skates you sent me one of the rollers split in two the first time used. Please advise me what to do as I do not wish to put any more money in them under present circumstances.
“Yours very truly,
“E. W. Darling, Adrian, Mich.”

On April 16, 1908, plaintiff answered this letter, expressing great surprise at the dissatisfaction of defendant, praising the goods and plan of the plaintiff, claiming that plaintiff was not responsible for the inferior quality of the skates, etc. Upon presentation of the draft sued upon on April 28th, the defendant wrote the following letter to the plaintiff:

“Adrian, Mich., April 28, 1908.
“Colonial Mfg. Co.,
“Detroit, Mich.
“Sirs: Your draft was presented to me this morning but as I have told you that the goods were not as represented by you that I did not care to put any more money into them did not honor it but will say I will send you a check for second payment and also send back the goods that have been condemned and the people’s names who have tried them and you return the price paid as per contract. Will send you check in a few days.
“ Yery truly,
“E. W. Darling.”

The next letter in the record was written to the defendant by the plaintiff on May 7, 1908. After commending his goods and claiming that the plaintiff is without fault, he closes the letter in this language:

“ I presume that the several customers that you refer to who have expressed dissatisfaction with our goods will be willing to make an affidavit to that effect, and, if you will return the article to us with the name of the customer and the cause of the complaint together with the one-half of the contents of the package, we will refund the price paid if the cause of complaint is just, and we are in any way responsible. We try to build up our business on tbe merits of the goods, and it is very disappointing to us to hear that any one should be in the least dissatisfied. We want to guarantee satisfaction, and we will co-operate with you in every way to convince your customers that the goods in our line are right.”

It is the claim of the defendant that these goods were sold with the express warranty that they were manufactured in compliance with the requirements of the food and drugs act of Congress (Act June 30, 1906, chap. 3915, 34 U. S. Stat. p. 768 [U. S. Comp. Stat. Supp. 1909, p. 1187]), and that they were produced with skill and care for the building up and holding of trade, and that there was a breach of this contract on the part of the plaintiff. Whether there was here an express warranty or not, the fact appears that many of the goods were articles of food, and all were intended for family consumption. It seems to be a well-settled doctrine in this State that where property is bought for a particular purpose, and only because of its supposed fitness for that, and where articles are bought for consumption, and the vendor sells them for that express purpose, the consequences of unsoundness are so dangerous to health and life and the failure of consideration is so complete that, where there is not an express warranty, there is an implied warranty that the goods are fit for the purpose for which they were bought, and that articles of food are fit for consumption. In such cases the vendor is held to a strict accountability. Hoover v. Peters, 18 Mich. 51; Sinclair v. Hathaway, 57 Mich. 60 (23 N. W. 459, 58 Am. Rep. 327); Copas v. Provision Co., 73 Mich. 541 (41 N. W. 690); Blodget v. Detroit Safe Co., 76 Mich. 538 (43 N. W. 451); McCray Refrigerator & Cold Storage Co. v. Woods & Zent, 99 Mich. 269 (58 N. W. 320, 41 Am. St. Rep. 599); Little v. G. E. Van Syckle & Co., 115 Mich. 480 (73 N. W. 554); West Michigan Furniture Co. v. Diamond Glue Co., 127 Mich. 651 (87 N. W. 92).

The circuit judge charged the jury as follows:

“ The contract further provides:
‘“If any article purchased in this order proves unsatisfactory as to quality, after using one-half of it, return with name of consumer and cause of complaint, and we will refund price.’
“ I think, gentlemen, that in this provision of the contract the parties fixed and determined the remedy which would be available to the defendant in the event that any of the goods mentioned in this order were found to be defective by the customers to whom the defendant might sell them, as to quality.”

We think that this was too narrow a construction to place upon this contract. It was to instruct the jury that the defendant could not have any redress for the sale of goods unsatisfactory as to quality unless one-half of them was used, and to make use of one-half of each article a condition precedent to any relief to defendant for inferior and unfit goods, notwithstanding the qualified acceptance sued upon, that, in order to recover, the plaintiff must show affirmatively that he had performed his contract.

There is force in the position of the defendant that in and by his letter of May 7, 1908, above quoted, the plaintiff had himself departed from the original terms of the contract by requiring an affidavit from the customer, and making the refund depend upon whether he considered the complaint a just one — terms that were not in the original contract. In our opinion the doctrine of the case of Hull v. Belknap, 37 Mich. 179, applies here, that breach of warranty may be set up as a defense without returning the goods, unless the contract of sale expressly requires their return; that the omission to return them only affects the amount of damages.

We think it unreasonable to hold that the language of the contract quoted by the circuit judge was intended to cover all cases of unwholesome and worthless goods, and that the customer should in all cases be required to use one-half the goods, whatever the result to health or comfort might be. Therefore it cannot be said that the contract expressly required the return of the goods in all cases.

We think that the circuit judge also erred in refusing to submit to the jury the question of whether the plaintiff had performed his contract, and had furnished goods fit and suitable for the use intended by the parties. Whether the defendant had. made complaint within a reasonable time under the circumstances as shown by the evidence was also a question of fact in this case for the jury. It would naturally take some months for the defendant. to put the proposed scheme into effect and operation before he could reasonably make complaint. All of these questions were taken from the jury by the direction of a verdict for the plaintiff.

For the errors pointed out, the judgment below is reversed, and a new trial granted, with costs of this court to the defendant.

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


author: Brooke, J.

text:
    KLOTZ v. SLOAN.
    1. Taxation — Equity Jurisdiction — Collateral Attack — Judgments.
    The decree in chancery in tax proceedings authorizing a sale of lands for delinquent taxes may be attacked after confirmation because of the payment of the tax, exemption from taxation (3 Comp. Laws, § 3893), or for lack of jurisdiction to render the decree.

      2. Same — Jurisdiction—Grounds of Attack.
    Neither the fact that a tax is irregularly assessed or that the court reaches an erroneous conclusion concerning its validity impairs the jurisdiction to enter a decree, although failure to observe the statutory requirements for substituted service may constitute a jurisdictional defect.

      3. Same — Res Judio at a.
    A chancery decree for the sale of lands for taxes assessed thereon may not be collaterally attacked for irregularity or invalidity of the tax.
    4. Same — Collateral Attack — Remedies for Errors.
    A petition by a person who had no actual notice of proceedings for such decree, filed in the proceedings for the purpose of re-opening the decree, is the proper remedy for erroneous action of the court, not a separate bill in equity.
    Appeal from Lenawee; O’Mealey, J.
    Submitted February 18, 1910.
    (Docket No. 67.)
    Decided March 19, 1910.
    Bill by Effie A. Klotz against James Sloan, county drain commissioner, William Britton, county treasurer, and Oramel B. Fuller, auditor general, to enjoin the sale of land delinquent for taxes. From an order sustaining a demurrer to the bill, complainant appeals.
    Affirmed.

      Leland F. Bean and Smith, Baldwin & Alexander, for complainant.

      Burton L. Hart, Prosecuting Attorney, for defendants Sloan and Britton.

      John E. Bird, Attorney General, and J. Shurly Kennary, Assistant Attorney General, for defendant Auditor General.
   Brooke, J.

Complainant, who is the owner of a farm in Lenawee county, filed her bill of complaint on April 24, 1909, against the defendants, who are, respectively, drain commissioner and county treasurer of Lenawee county and auditor general of the State of Michigan, seeking to restrain them from selling her land for the purpose of collecting a certain drain tax, and praying to have said tax declared null and void, and not a charge upon her lands. She avers lack of knowledge or notice of the proceedings to institute the drain in question, and of all the subsequent steps taken thereunder. Said proceedings were launched September 22, 1903. The drain has been constructed and a tax amounting to $428.43 levied against complainant’s land. She shows that she learned on April 14, 1909, of the filing of the petition of the auditor general and of the fact that a decree had been entered thereon fixing the date of sale for May 4, 1909. To this bill of complaint defendants demurred, and complainant appeals from a decree sustaining the demurrer and dismissing the bill.

Three grounds of demurrer were advanced by defendants:

(1) That all matters alleged in the bill were foreclosed by the decree of the court March 15, 1909, on the petition of the auditor general.

(2) That the decree of the court decreeing a sale of the lands for a drain tax at the annual tax sale in May, 1909, cannot be attacked collaterally by bill in equity.

(3) That there is no equity in the bill.

Section 3893, 1 Comp. Laws, provides:

“ No sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation.”

This court has frequently held that, in addition to the two grounds named in the statute, there exists a third, viz., lack of jurisdiction to enter the decree. Rumsey v. Griffin, 138 Mich. 413 (101 N. W. 571); Burns v. Ford, 124 Mich. 274 (82 N. W. 885); Berkey v. Burchard, 119 Mich. 101 (77 N. W. 635, 79 N. W. 908); Spaulding v. O'Connor, 119 Mich. 45 (77 N. W. 323). The bill makes no claim that the taxes were paid or that the property levied upon was exempt.

Did the court have jurisdiction to enter the decree ? 1 Comp. Laws, § 3889, requires a publication of a copy of the order and petition, and further provides:

“The publication of the order and petition aforesaid, shall be equivalent to a personal service of notice on all persons who are interested in the lands specified in such petition, of the filing thereof, of all proceedings thereon and of the sale of the lands under the decree, and shall give the court jurisdiction to hear such petition, determine all questions arising thereon, and to decree a sale of such lands for the payment of all taxes, interest and charges thereon.”

The bill contains no allegation that there was an omission to observe all the statutory requirements necessary to confer jurisdiction, but complainant claims that the court had no jurisdiction to enter the decree, because she believes and is advised that the proceedings to establish the drain were defective, and therefore void as to her lands. We think it must be said upon the authority of recent cases in this court that irregularity or infirmity in the proceedings constituting the authority for the levy of the tax does not affect the jurisdiction of the court to enter the decree. Such irregularities may properly be urged before the court possessing jurisdiction as a reason why a decree should not be entered, but neither that fact nor the fact that the court reaches an erroneous conclusion impairs the jurisdiction. Blanchard v. Young, 152 Mich. 619 (116 N. W. 189). A very full discussion of the question here involved will be found in Peninsular Sav. Bank v. Ward, 118 Mich. 87, 104 (76 N. W. 161, 79 N. W. 911), where Mr. Justice Hooker, speaking for the court upon the rehearing, said:

“In the case before us the jurisdiction rests upon a statute, which confers upon the court the power of determining whether the State has a lien for taxes upon the land and enforcing payment by a decree of sale. It has undoubted jurisdiction in every case where there is an enforceable lien. In a sense it has no jurisdiction in a case where there is no existing lien which the State has a right to enforce. But manifestly the only way of finding out whether the State has such a lien is to try the question, and if, as is contended here, the question may be raised collaterally in any court or proceeding, it follows that these proceedings (in pro confesso cases at least) are decisive of nothing, for the same claim can be made as to any or all parcels of land covered by the decree. The statute prescribes what the petition shall contain. * * * It alleges a lien and prays enforcement, thus impliedly informing defendants that it is claimed that they are subject to such proceedings. The judge decides that they are so when he includes them in the decree. We must presume that he has found the necessary facts. But there is a mistake of fact. The defendant has not chosen to bring the truth to his attention, or has inadvertently omitted it. But we must presume from the record that the necessary facts have been found, and the record cannot be contradicted; otherwise there would be a premium on not making a defense, for it would be safer.”

The irregularities of the antecedent proceedings (if any) are foreclosed by the decree. Muirhead v. Sands, 111 Mich. 487 (69 N. W. 826); Cole v. Shelp, 98 Mich. 56 (56 N. W. 1052); In re Wiley, 89 Mich. 58 (50 N. W. 742). The question was re-examined in the case of Ball v. Ridge Copper Co., 118 Mich. 7 (76 N. W. 130), and the ruling reaffirmed. See, also, Hall v. Mann, 118 Mich. 201 (76 N. W. 314).

This court has frequently held that a chancery decree entered in the proceedings instituted by the auditor general may not be attacked collaterally. To permit this practice would be to put in issue questions of fact which might, and should, have been determined in the original case. Peninsular Sav. Bank v. Ward, supra; Wilkin v. Keith, 121 Mich. 66 (79 N. W. 887); Munroe v. Winegar, 128 Mich. 309 (87 N. W. 396); Tromble v. Hoffman, 130 Mich. 676 (90 N. W. 694); Hoffman v. Flint Land Co., 144 Mich. 564 (108 N. W. 356); Shaaf v. O'Connor, 146 Mich. 504 (109 N. W. 1061, 117 Am. St. Rep. 652); Harrington v. Dickinson, 155 Mich. 161 (118 N. W. 931). From the allegations contained in the hill, it is apparent that the complainant knew of the decree and its terms several days before the day fixed for the sale. A petition to the court in that proceeding based upon the showing made in her bill of complaint would have been proper, and the trial court might have been moved thereby to reopen its decree, and hear and determine the matters alleged.

We are, however, of the opinion that complainant cannot maintain her independent suit, and that the decree dismissing her bill must be affirmed, with costs.

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