author: Carpenter, J.

text:
    CORBETT v. AMERICAN SCREEN DOOR CO.
    1. Injury to Employe — Negligence—Defective Appliances — Evidence — Fellow-Servants.
    Where, in an action by an employé in a factory for injuries caused by the fall of a rack used for the storage of lumber, due to the act of defendant’s foreman in directing that certain heavy pieces of lumber be placed thereon, it appeared that, while the rack had theretofore been used for light lumber only, no rule on the subject had been promulgated, that it had been built but two months, and that it was only partially filled on the occasion in question, the jury were warranted in finding that the foreman was using the rack for a purpose for which it was intended, and hence that plaintiff’s injury was not due to the negligence of a fellow-servant.
    2. Same.
    The fact that the rack fell when only half full, and that the light material that was on it at the time constituted half the weight thereon, afforded evidence of the insufficiency of the rack under any theory.
    3. Same — Assumption op Risk.
    It appearing that plaintiff had no occasion to use or to examine the rack, and he having testified that he supposed it was safe, and had no idea that it would fall, it could not be said that he had assumed the risk.
    4 Same — Contributory Negligence.
    Nor could it be said, as a matter of law, that he was guilty of contributory negligence.
    Error to Lenawee; Lockwood, J.
    Submitted May 13, 1903.
    (Docket No. 60.)
    Decided June 30, 1903.
    Case by Ziba M. Corbett against the American Screen Door Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John E. Bird and Grant Fellows, for appellant.

      Herbert B. Clark and Henry C. Smith, for appellee.
   Carpenter, J.

Plaintiff, while in defendant’s employ, was injured by the fall of a rack suspended from the ceiling of the room in which he worked. He brought suit, and recovered a judgment in the lower court. The serious question presented for our determination is this: Did the evidence warrant the jury in finding, as they did, that defendant was negligent in not building the rack sufficiently strong for the purpose for which it was intended ? The evidence warranted the jury in finding that the rack fell because, by the order of defendant’s foreman, certain heavy pieces of lumber were placed on it, and it also warranted their finding that due diligence would have discovered that the rack was not sufficiently strong to carry the load placed on it. It is the claim of the plaintiff that, in placing these pieces of lumber on the rack, defendant’s foreman was using it for the purpose for which it was intended. Defendant claims that in so using the rack the foreman was .using it for a purpose for which it was not intended, and that plaintiff’s injury was due, not to a failure to furnish safe appliances, but to a misuse by a fellow-servant of an appliance which was safe for the purpose for which it was intended. The determination of this question requires no consideration of conflicting legal principles. If the rack was not safe for the purpose for which it was intended, the principle of law which required diligence of the defendant to furnish safe appliances applies. If the rack fell because it was used by the foreman for a purpose for which it- was not intended, plaintiff’s injury was due to the negligence of a fellow-servant, and he cannot recover.

Did the evidence justify the jury in finding that, in placing these pieces of lumber on the rack, defendant’s foreman was using it for the purpose for which it was intended? The rack had been in use only a short time— less*than two months — before plaintiff received his injury. We are to determine the use for which the rack was intended, not by ascertaining what was in the mind of defendant’s manager or servant who made the rack, but by determining what use its employés to whom it was furnished had a right to make of it. No formal rules, either written or verbal, prescribed that use. Prior to plaintiff’s injury, the rack had .been used to hold “beading and light stuff generally, and pieces that had been cut; and during all the time up to the accident it was used just for the piling of light stuff that had been sawed up .and cut, and not for the piling of the heavy lumber. * * * If they got a little more than they needed of one kind, they put it up there. * * * The boys in the shop used the rack to put material in.” Oak moldings had also been placed on it. About two hours before plaintiff’s injury, defendant’s foreman directed one of his workmen to pile the pieces of lumber on the rack, which, as heretofore stated, occasioned its fall. These pieces were 15 or 16 in number. They were 15 to 18 feet long, and of more than ordinary width. They were heavy and wet. They were designed for a particular order, and were placed on the rack to enable defendant’s workmen to pile other stuff in the place they occupied on the floor. The testimony, in our judgment, proves that no lumber as large or as heavy as these pieces had ever been placed on the rack before. Defendant contends that this circumstance makes it the duty of the court to decide, as a matter of law, that in placing these pieces on the rack the foreman used it for a purpose for which it was not intended. We cannot sustain this contention. The rack was apparently adapted to hold lumber of this size and weight. If defendant did not furnish this rack for the storage of lumber above a certain size and weight, it should have advertised its purpose by some appropriate instruction or notice. Failing to do This, it must be held to have furnished it for such purposes as its employés might presume to be proper, — to have intended that the employés using it should exercise a proper discretion in determining what material should be placed on it. In our judgment, the jury were fully warranted in deciding that the foreman, who, to get these pieces out of the way, ordered them placed in the rack, exercised a proper discretion, and was using the rack for a purpose for which it was intended. The fact that the rack fell when only about half full, and that the light stuff that was on it constituted half the weight upon it, affords evidence that it was of insufficient strength to sustain a full load even of the light stuff which defendant claims it was intended to hold. The testimony, therefore, warranted the jury in finding that defendant was negligent, as charged.in plaintiff’s declaration.

Defendant also insists that a verdict should have been directed for the defendant on the ground, that the plaintiff assumed the risk of the injury from the defectively constructed rack. We have recently had occasion to consider the doctrine of assumed risk in the case of Bauer v. American Car & Foundry Co., 132 Mich. 537 (94 N. W. 9). That doctrine applies, as there stated, to dangers obviously incident to the discharge of an employe’s duty. The injury from this defective rack was by no means an obvious incident of plaintiff’s employment. He testified: “I supposed it was safe. I never examined it, and no one ever asked me. * * * I never had the slightest idea that the shelf was liable to fall.” It was no part of his duty to examine the rack or to use it, nor can we say that it was obviously dangerous to one working near it.

The same reasoning which compels us to decide that plaintiff did not assume the risk forces us to say that he was not, as a matter of law, guilty of contributory neglfi gence.

The judgment of the court below will therefore be affirmed.'

The other Justices concurred.


source: Caselaw Access Project

license: Public Domain

text:
    TOWN v. JEPSON.
    1. SXle — Default of Buyer — Abandonment of Oontraot — Rescission.
    Where a contract for the sale of fruit made payment a condition to the transfer of the property, the buyer’s refusal to pay for a third of the fruit as delivered, unaccompanied by any explanation, warranted a finding that he had abandoned the contract, justifying the seller in refusing to make further deliveries. West v. Bechtel, 125 Mich. 144, distinguished.
    2. Same — Nonpayment of Draft.
    Where, under a contract for the sale of fruit, a sight draft on the buyer, with bill of lading attached, was to be sent to a certain place in Michigan, and, before the receipt of the draft, the buyer returned to his home in New York, instructing his banker in Michigan to return any drafts to the makers, with directions to forward them to a bank in New York, the seller after the return of his draft marked “No funds,” with the suggestion that it might he paid if sent to New York, was not bound to 'hold the fruit, and send the draft to New York, before he could treat the contract as abandoned.
    3. Same — Agency.
    The banker to whom the draft in such case was sent was not the agent of the seller, so as to charge the latter with the banker’s neglect to notify him of the arrangement made by the buyer for the payment of the draft, but was the agent of the buyer.
    4. Same.
    But the banker through whom the draft was drawn was the agent of the seller, rendering the latter chargeable with such information as the banker received.
    5. Same — Pleading—Notice of Defense.
    In an action for the breach of a contract for the sale of fruit, a notice attached to a plea of the general issue, setting up, in substance, that plaintiff agreed to have funds in the bank at a certain place to pay drafts for the fruit, which defendant was to draw from time to time as shipments were made, and that a draft for fruit shipped in accordance with the contract was returned unpaid, whereupon defendant, having heard that plaintiff had left the State, taking his funds with him, sold the fruit to third parties, — is sufficient to apprise plaintiff that defendant will rely on the former’s abandonment of the contract.
    6. Sale — Modification of Contract — Parol Evidence.
    In an action for the breach of a contract for the sale of fruit, evidence that, after the execution of the contract, it was verbally agreed that defendant might ship in specified quantities, was admissible.
    7. Same — Terms of Payment.
    Where a contract for the sale of fruit provided for payment on “sight draft, with bill of lading attached,” evidence of an oral agreement that the draft should be sent to a certain place was not objectionable as varying the terms of the contract.
    8. Same — Nonpayment of Draft — Abandonment of Contract.
    The fact that a sight draft for the purchase price of fruit, sent to the place agreed upon, was returned unaccepted before the expiration of grace, did not prevent the seller from treating the contract as abandoned, particularly where the buyer had left the State with no intention of returning.
    9. Same — Notice of Rescission.
    Where the conduct of a buyer of goods is such as to warrant the inference of an intention to abandon the contract, the seller is not bound to give notice of an election to rescind, in order to be relieved from further performance.
    Error to Ionia; Davis, J.
    Submitted May 13, 1903.
    (Docket No. 66.)
    Decided June 30, 1903.

      Assumpsit by Lewis S. Town against Merton K. Jepson and Edward Jepson, copartners as Jepson Bros., for the breach of a contract for the sale of fruit. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    The notice attached to defendants’ plea, referred to in the opinion, is as follows:
    “ To the Above-Named Plaintiff:

    “You will please take notice that the above-named defendants will prove under the general issue above pleaded, and insist in their defense upon the trial of this cause, that, if they ever entered into the contract mentioned and set forth in the declaration of the said plaintiff, they were induced so to do by reason of the statements and representations made at the time of entering into the same by the above-named plaintiff, and in consideration of such statements and representations; that, if such contract was entered into, said plaintiff, at and before the time of entering into the same, stated and represented to said defendants that he, said plaintiff, was engaged in business at Manchester, in said State of Michigan, and then had a place of business at that village, and would continue to have such place of business and to be present at said village during the whole of the coming apple season, to wit, the apple season of A. D. 1898; that he had a bank account with the bank at Manchester aforesaid, and would continue to have and keep a bank account at said bank during the whole of the said apple season, and that he would continually have in such bank a sufficient amount of money standing to his credit to pay any and all drafts made upon him from time to time by said defendants for apples shipped by said defendants under the terms and provisions of said contract; that in express reliance upon and in consideration of said statements and representations, and believing the same to be true, these defendants entered into said contract mentioned in said plaintiff’s declaration, if they ever entered into same at all; that at the time of and after such agreement was executed and delivered, if the same was ever executed and delivered by said defendants to said plaintiff, it was agreed by and between said plaintiff and said defendants that, as fast as said defendants could manufacture and place in boxes for shipment 100 boxes of evaporated apples, such 100 boxes of apples were to be shipped to L. S. Town, in care of W. A- Banks Company, Cleveland, Ohio, and at the same time said defendants were to draw upon said plaintiff, with bill of lading attached to the draft, through the bank at Manchester, Michigan, for the amount of such shipment, and were to continue to make such shipments, and to draw in like manner for the amount thereof, until such contract had been satisfied, and that such draft so made should be paid at sight at said bank at Manchester, Michigan; that, in accordance with the terms of said agreement, on the 5th day of October, A. D. 1898, said defendants shipped 100 boxes of apples and made a draft therefor as agreed as above stated, and that on the 10th day of October, A. D. 1898, said draft was duly honored and paid by said plaintiff; that on the 22d day of October, A. D. 1898, said defendants again shipped 100 boxes of apples in accordance with the terms of said agreement, and made draft in like manner upon said plaintiff, but that said draft was, after the lapse of several days, returned by the bank at Manchester, Michigan, to said defendants, dishonored and unpaid; that said defendants heard nothing further from said plaintiff until on or about the 12th day of November, A. D. 1898, when they received a registered letter purporting to have been written by said plaintiff and mailed at Rose, New York, requesting said defendants to ship the balance of the apples to said plaintiff at Cleveland, Ohio, and to make draft at sight to the Briggs National Bank, Clyde, New York; that in the meantime, after the dishonor of said draft, and. hearing that said plaintiff had left the State of Michigan and taken his funds with him, these defendants sold and contracted their evaporated apples to other parties, and at the time of the receipt of such registered letter the apple .season was so far advanced that it was impossible to procure apples in order to comply with said contract with said plaintiff,' even if they had not been discharged therefrom; that said defendants will insist upon the trial of said cause that, by reason of the facts above set forth, said defendants were absolutely released and discharged from any liability upon said contract, if such contract was ever entered into, or for any damages by reason of the nonfulfillment of the same.”

      A. F. & F. M. Freeman and V. H. & H. H. Smith, for appellant.

      B. A. Hawley, for appellees.
   Carpenter, J.

On the 28th of September, 1898, the parties to this suit entered into a written contract, reading as follows: .

Witnesseth, that the said Jepson Bros, hereby agrees to deliver and sell, and does sell, unto the said L. S. Town, 7£ tons of good, prime, wood-evaporated apples, at 5 cents per pound, to be packed in 50-pound boxes, net weight; * * * same to be delivered on or before November 15, 1898, f. o. b. cars at Saranac; terms, sight draft, with bill of lading attached. And said L. S. Town agrees to buy aforementioned stock on terms and conditions as specified. And it is agreed that said Jepson Bros, may furnish 5 tons more on same terms, if they make them. Weight guaranteed.”

Defendants delivered on said contract only 100 fifty-pound boxes, or one-third of the amount contracted for, and, the market price of apples having advanced, this suit was brought to recover damages for the failure to deliver the remaining two-thirds. Defendants offered testimony tending to prove that, both before and after the execution of the contract, it was agreed that the draft referred to in said contract should be drawn on the plaintiff at Manchester, Mich., and that it would be honored at that place; that, after the execution of the contract, it was also orally agreed that defendants would ship 100 boxes at a time. October 5, 1898, defendants delivered 100 boxes, containing 5,000 pounds, and received their pay in the method agreed upon. October 22, 1898, defendants delivered to the railroad the second installment, consisting of 100 fifty-pound boxes, and drew upon plaintiff, with the bill of lading attached, at Manchester, Mich. This draft was returned without acceptance, with no information as to plaintiff’s whereabouts, though very soon thereafter •defendants learned from another customer of plaintiff’s that he had gone to his home in the East. Regarding this as an abandonment of the contract, defendants sold their apples to a third person. They did not hear from plaintiff until they received a letter written by him and mailed at his home in New York November 9, 1898, directing them to ship the balance, and to draw on him for the amount through a bank at Clyde, N. Y. This defendants declined to do, on the ground that plaintiff’s failure to honor the draft for the second shipment ended their obligations under the contract.

The court instructed the jury that, if the failure of the plaintiff to pay the draft indicated an intention to abandon the contract, their verdict should be for the defendants. They found for the defendants. Plaintiff insists that, in instructing the jury as above indicated, the trial court .erred. He insists that under the decision of West v. Bechtel, 125 Mich. 144 (84 N. W. 69, 51 L. R. A. 791), plaintiff’s failure to pay for this installment of the fruit did not warrant defendants’ rescinding the contract. We do not think that decision applicable to the facts of this case. There it was held that “the mere refusal to pay for a portion of the property delivered until more was received would not alone constitute such a breach of the contract as would warrant the other party, the defendant, in repudiating the entire contract.” That case, however, approves the language of Chief Justice Coleridge in Freeth v. Burr, L. R. 9 C. P. 208:

“ The true question is whether the acts and conduct of the party evince an intention no longer to be bound by the contract. Nonpayment on the one hand, or nondelivery on the other, may amount to such an act, or may be evidence for a jury of an intention wholly to abandon the contract, and set the other party free.”

We think a refusal to pay for a third of the property described in this contract, which payment was to be made as a condition of the transfer of that property, unaccompanied by any explanation whatever, would, without doubt, afford evidence of an intention to no longer perform the contract. See, also, Withers v. Reynolds, 2 Barn. & Adol. 882, cited in the opinion in West v. Bechtel.

Plaintiff insists, however, that the evidence in this case conclusively proves that there was not such a refusal. October 20, 1898, he returned to his home in Rose, N. Y., leaving funds in the bank at Manchester. He instructed the banker at Manchester, if drafts were drawn on him, to return them to the makers, and have them forward them on to the Briggs National Bank at Clyde, N. Y. Defendants drew their draft of October 22d through a banker at Saranac on the plaintiff at the bank in Manchester where plaintiff’s funds were deposited. According to defendants’ testimony, the draft and attached bill of lading were returned to the Saranac banker, with a letter from the Manchester banker, saying, “No funds,” together with the information that possibly, if a draft was sent to Clyde, N. Y., it would be paid. While the defendants testify that their banker did not communicate to them the information received by him, we think the case should be disposed of upon the assumption that they are chargeable with that information. Assuming defendants so chargeable, we do not think this information imposed on them an obligation to hold their fruit, and send their draft to Clyde, N. Y., upon the chance that plaintiff might there pay it. The draft not having been honored as agreed, defendants were not bound to follow plaintiff to another State upon the possibility that he would there perform a contract which he had already broken.

Nor can we agree with plaintiff that because defendants sent their draft to the bank at Manchester, where plaintiff did his business, that banker became their agent in such a way as to make them chargeable for his neglect. It is a fair inference from the record that the draft was sent to that bank because it was known that, that was where plaintiff kept his funds in Manchester. If defendants dealt with the Manchester banker as the agent of plaintiff, —and in a sense he was the plaintiff’s agent, — they did not make him their agent. There was an obligation on the part of the plaintiff, under the agreement he had made with the defendants, either to accept the drafts at Manchester, or communicate to them any change he made in his arrangements for their payment. The person, therefore, whom he selected to transmit that communication, was his agent, and he was chargeable for his neglect.

Plaintiff also insists that the Saranac banker had transmitted a draft for another customer of his to Clyde, N. Y., — a draft drawn on plaintiff at that place, — and that defendants, having used this same banker, were charged with this information. It is a sufficient answer to this argument to say that the testimony does not make it conclusively appear that the Saranac banker obtained this information before he ceased to act ^ for defendants. According to his testimony, he might have returned defendants’ draft before that information was obtained.

In our judgment, defendants are justified by this testimony in claiming that there was a refusal to pay for these 100 fifty-pound boxes of fruit without any explanation whatever; and, as heretofore indicated, this, in our judgment, warranted the jury in finding that plaintiff had evinced an intention to no longer perform the contract. ■

It is argued by plaintiff that the notice attached to defendants’ plea of the general issue was not sufficient to justify their making the defense relied upon. Under the law as stated in this opinion, and the case of Briesenmeister v. Knights of Pythias, 81 Mich. 525 (45 N. W. 977), we are bound to hold the notice sufficient.

Plaintiff contends that the court erred in permitting defendants to prove that, after the contract was entered into, it was agreed that shipments of 100 fifty-pound boxes might be made by them. This testimony was clearly admissible. See Summers v. Wagner, 87 Mich. 272 (49 N. W. 570); Freese v. Arnold, 99 Mich. 13 (57 N. W. 1038).

Neither can we agree with plaintiff that parol testimony showing the agreement that the draft should be paid at Manchester was incompetent. This evidence did not tend to vary the contract. The contract contained these, and only these, terms: “Sight draft, with bill of lading attached.” It was not only competent, but proper, for the parties to determine by an oral agreement upon whom these drafts should be drawn, and where they should be presented. Liggett Spring & Axle Co. v. Michigan Buggy Co., 106 Mich. 445 (64 N. W. 466); National Cash Register Co. v. Blumenthal, 85 Mich. 464 (48 N. W. 622).

Nor is the point well taken that, because the acceptor of a sight draft has three days of grace, defendants were obliged to wait three days before treating plaintiff’s failure to accept as an abandonment of the contract. While one who accepts a sight draft has three days in which to pay it, one to whom a draft is presented for acceptance has not three days in which to accept it. See Case v. Burt, 15 Mich. 82. After plaintiff had returned from Manchester to his home in New York with the intention of remaining, defendants were not bound to keep the draft at the Manchester bank three days upon the chance that he might return there and accept it.

Defendants were not, as contended by plaintiff, under an obligation to give notice of their election to rescind the contract. They had a right, under the facts as claimed by them, to treat the contract as rescinded by the plaintiff.

We have carefully examined the other assignments of error relied upon. In our judgment, they are not well taken, and do not warrant discussion.

The judgment will be affirmed, with costs.

The other Justices concurred.


author: Grant, J.

text:
    ATTORNEY GENERAL, ex rel. MARR, v. BOARD OF EDUCATION OF DETROIT. D. C. HEATH & CO. v. SAME.
    1. Equity Jurisdiction — Injunction—Breach or Contract.
    A bill in equity will not lie, at the suit of a schoolbook publisher, to enjoin a board of education from making a change of text-books in the public schools, in violation of an alleged contract with complainant, as there is an adequate remedy at law.
    2. Same — Uncertainty or Measure or Damages.
    Equity will not entertain a bill to restrain a breach of contract solely because of the uncertainty of the measure of damages in case of such breach.
    3. Same — Multiplicity or Suits.
    Nor, the contract covering a term of but three years, can a resort to equity be justified on the ground of preventing a multiplicity of suits, since that matter is entirely within the control of complainant.

      4. Schools and School Districts — Adoption op Text-Books— Contract with Publisher.
    The provision of the free school text-book law, that books once adopted by the board shall not be changed within five years (2 Comp. Laws, § 4775), was designed for the protection of the public, and not for the benefit of book publishers; and hence a resolution of a board of education, directing the purchase of a certain number of copies of a specified text-book for use in the schools, did nob, with the aid of such statute, amount to a binding contract between the board and the publisher of such book for the use thereof for the statutory period.
    5. Same.
    Nor could the additional fact that the purchase was preceded- ' by a letter from the publisher to the superintendent of schools, fixing the price of such book with a view to its ‘ ‘ complete introduction” into the schools, operate to effect such contract.
    6. Same — Suefioienoy op Adoption.
    But such -resolution constituted a sufficient adoption of the book to preclude the board from changing the same within the five years fixed by the statute.
    7. Same — Limitation.
    In such case the five years began to run from the date of the resolution, and not from the time the book was completely installed in all the schools.
    8. Same — Uniformity of Text-Books.
    The provision of the statute (2 Comp. Laws, § 4775) that all text-books used in any school district shall be uniform in any one subject, requires uniformity of the books used in the same grade only, and does not require that all text-books used in different grades on the same subject shall be of the same series.
    9. Same — Validity op Purchase.
    A resolution of a board of education to purchase certain textbooks for “supplementary use” in the schools shows that there is no intention of adopting the books, within the sense of the statute, and the purchase is illegal and void.
    Appeals from Wayne; Donovan, J.
    Submitted May 14, 1903.
    (Docket Nos. 71, 72.)
    Decided June 30, 1903.
    Bills by Horace M. Oren, attorney general, on the relation of Maurice R. Marr and Peter Guenther, and by D. G. Heath & Company, against the board of education of the city of Detroit, to enjoin a change of text-books in the public schools. From decrees dismissing the bills, complainants appeal.
    Affirmed.
    Complainant D. C. Heath & Co., a corporation organized under the laws of the State of Maine, filed this bill. It alleges that it is a publisher of schoolbooks known as “Walsh’s Arithmetic;” that this arithmetic is divided into three volumes, — one called the “Primary,” and volumes 2 and 3 the “Grammar School,” parts; that the defendant school board solicited bids; that complainant put in a bid, which was accepted; that in August, 189?, the Walsh Grammar School Arithmetic was introduced 'by resolution of the school board of the city of Detroit, directing the purchase of a certain number of copies thereof for use in the schools; that similar resolutions followed in September and December, by which the Grammar School Arithmetic was adopted in accordance with said bid and proposition; that the exchange for the old arithmetics was carried out as fast as was feasible; that this Grammar School Arithmetic was not fully installed until May, 1898; that the Primary Arithmetic has never yet been fully installed; that on August 22, 1901, the school board passed a resolution directing that the Werner Primary Arithmetic be adopted for use in the schools, and that on July 24, 1902, the board passed another resolution directing that the Werner Arithmetic be adopted for general use in the grammar grades; and that these resolutions are void. The prayer of the bill is that the resolutions adopting the Werner Arithmetic be declared void, and the defendant enjoined from proceeding thereunder, and from discontinuing the use of complainant’s arithmetic in the schools of the city. This bill was filed August 8, 1902. On August 25th the attorney general filed a similar bill upon the relation of two citizens and members of the school board. The prayer of the latter bill is—

      “That the date at which the Walsh series of arithmetics was adopted and actually introduced into the schools of the city of Detroit may be fixed and determined by the decree of this court, or, if it is competent to introduce only a part of a text-book into the public schools, that the date at which the Walsh Primary Arithmetic was introduced into the schools may be ascertained and determined by the court, and also the date at which the Walsh Grammar School Arithmetic was introduced into the schools may be determined and ascertained; that the introduction of said Werner’s Primary Arithmetic may be declared to be illegal, and the said board ordered and directed to withdraw said arithmetic from the public schools; that said board may be temporarily and perpetually enjoined from making any change in the text-books in use in the public schools of the city of Detroit, unless the full period of five years of their actual introduction and use in the public schools has expired, and that said board be temporarily and perpetually enjoined from withdrawing the Walsh Arithmetics from the public schools of said city until after the 1st day of September, 1905.”
    By stipulation the two suits are consolidated and heard as one. Answers were duly filed, proofs taken, and decrees entered dismissing the bills.
    The laws of the State applicable to the questions raised are section 4680 of the general school law (2 Comp. Laws), which provides, among other things, that:
    “Text-books once adopted under the provisions of this act shall not be changed, within five years, except by the consent of a majority of the qualified voters of the district present at an annual meeting, or at a special meeting called for that purpose.”
    And section 4775, known as the act “providing for free school text-books,” which also provides that “textbooks once adopted under the provisions of this act shall not be changed within five years,” and that “all textbooks used in any school district shall be uniform in any one subject.”
    And section 4776, providing as follows:
    ‘ ‘ The district board of each school district shall select the kind of text-books on subjects enumerated in section one to be taught in schools of their respective districts: Provided, that nothing herein contained shall require any change in text-books now in use in such district. * * * If a majority of all the voters, as above provided, present at such meeting, shall authorize said board to raise by tax a sum sufficient to comply with the provisions of this act, the district board shall thereupon make a list of such bookd, and file one copy with the township clerk, and keep one copy posted in the school, and due notice of such action by the district shall be noted in the annual report to the superintendent of public instruction. The district board shall take the necessary steps to purchase such books for the use of all pupils in the several schools of their district, as hereinafter provided. The text-books so purchased shall be the property of the district purchasing the same, and shall be loaned to pupils free of charge, under such rules and regulations for their careful use and return as said district board may establish.”
    And section 4777, which provides as follows:
    “ It shall be the duty of the district board of any school district adopting free text-books provided for in this act to make a contract with some dealer or publisher to furnish books used in said district at a price not greater than the net wholesale price of such books. ”
    And section 4780, which provides as follows:
    “ That school districts in cities organized under special charters shall be exempt from the provisions of this act, but such districts may, when so authorized by a majority vote of their district boards, submit the question of free text-books to the qualified voters of said districts. If a majority of the qualified electors vote in favor of furnishing free text-books, such district boards shall have authority to proceed under the provisions of this act.”
    In November, 1891, the question was submitted to the voters, and they adopted the free text-book system. It has been in operation in the district since that time.

      Horace M. Oren, Attorney General, and Herbert L. Baker {Fred A. Baker, of counsel), for complainants.

      T. E. Tarsney and P. J. M. Hally {H. H. Hatch, of counsel), for defendant.
   Grant, J.

(after stating the facts). The questions presented are these :

(1) Has complainant D. C. Heath & Co. presented a case for equitable relief by injunction?
(2) Has any one or all of the Walsh series of arithmetics been adopted, so as to bring it within the five-year limit ?
(3) When was the Walsh Grammar School Arithmetic adopted ?
(4) Did- the adoption and use of the Walsh Grammar School Arithmetic carry with it the adoption of the Walsh Primary Arithmetic ?
(5) Has the Walsh Primary Arithmetic been adopted?

1. If the complainant D. C. Heath & Co. has any standing in the court, it is because it has made a valid contract with the defendant for five years, either for its entire series of arithmetics or for the Grammar School Arithmetic. It seeks an enforcement of this contract in equity. If it has a valid contract, its remedy at law is complete, in the appropriate action for breach of contract. Counsel cite in support of their right to maintain this suit Steward v. Winters, 4 Sandf. Ch. 587; Hamilton v. Dunsford, 6 Irish Ch. 412; Kemp v. Sober, 1 Sim. (N. S.) 520. In Steward v. Winters a lessee was restrained from carrying on a business upon the rented premises, which he had covenanted not to carry on. In Hamilton v. Dunsford it was held that the court had jurisdiction to grant relief on a covenant not to remove machinery from a mining property. In Kemp v. Sober the defendant was carrying on a business contrary to the covenants in the deed of conveyance to him. He was properly enjoined.

It is urged as a ground for equitable interference that the measure of damages is uncertain, and that the thing itself is what the complainant seeks, and that to which it is entitled. It is not a ground of equitable jurisdiction that, in case of a violation of a contract, the damages are uncertain. If parties have deliberately made such a contract that, in case of a violation by either, no damages can be assessed on account of uncertainty, certainly equity cannot for that reason compel either party to perform the contract.

There is no occasion to resort to equity to avoid a multiplicity of suits. Its contract had only three years to run from the date of the commencement of this suit. It could wait three years and bring one suit for damages, or could bring a suit at the end of each year, or as often as it chose, to recover damages. It was not threatened with a multiplicity of suits. The number of suits it might bring would be of its own choosing. The jurisdiction of chancery to avoid a multiplicity of suits has nó application to this case.

The mere requirement of the law that books, when adopted, shall not be changed for a given time, and the resolution for the purchase of complainant’s Grammar School Arithmetic, to take the place of those then in use, did not constitute a binding contract between complainant and defendant. That law was enacted, not for the protection of book dealers, but for the protection of the public. Bancroft v. Thayer, 5 Sawy. 502 (Fed. Cas. No. 835).

The law requires boards of education to enter into contracts with some dealer or publisher for the purchase of books at not to exceed wholesale prices. No such contract was made. The several resolutions of the board for the purchase of this arithmetic, under the advertisements for bids, and the furnishing of them by D. C. Heath & Co., did not constitute a five-year contract. These transactions covered only the books they purchased. The board, at a meeting held August 4, 1897, recommended the purchase of 400 Walsh’s Grammar School Arithmetics. On August 25, 1897, the agent of complainant wrote to the superintendent of public schools of Detroit a letter, in which he said:

“Looking to the complete introduction of the Walsh series arithmetic into your schools, we beg to make the following proposition.”

Here follows the proposition, giving prices of the Walsh Arithmetics, and the price to be paid for those which they were to supplant. Other correspondence passed between this agent and the superintendent. This correspondence did not make a five-year contract, and, besides, there is no evidence that it was submitted to the board, and action upon it taken by them.

It follows that the bill of D. C. Heath & Co. was properly dismissed.

2. But, upon the bill filed by the. attorney general on behalf of the people, the whole subject is open for investigation. An examination of the record conclusively shows that the defendant board had paid little heed to the law. It has not entered into contracts as the law provides it should, but has substantially ignored the law, and now insists that there is no valid adoption of any text-books, for the reason that it has not complied with the law. That the rights of the people under the law should be thus ignored will not be approved by the courts, if the action taken by the board of education can be reasonably construed into an adoption of a text-book, within the spirit of the law. It does not lie in the mouth of this defendant to say to the people of the school district: “By resolution, we have substituted one text-book for another; have provided for the purchase of a new in exchange for the old. We have not complied strictly with the law in adopting this text-book, and therefore we are at liberty to at any time make another change.” To uphold such a contention would be little short of a disgrace to the administration of law, and put it in the power of every school board in the State to virtually annul the law, as the defendant apparently has done in this case. We are therefore constrained to hold that the resolution in August, 1897, for the purchase and use of the Walsh Grammar School Arithmetic, was a sufficient compliance with the law, and that it was not in the power of the defendant to change it within five years.

3. We are of the opinion that the five years began to run from the date of the adoption of the resolution for the purchase and use of the Grammar School Arithmetic, and not from the time this arithmetic had been completely installed in all the schools, in place of the others which it supplanted. Steps were immediately taken to introduce this book in the schools. There is no reason to doubt that the defendant used reasonable diligence in complying with the wishes of the district, as indicated at the election, and in placing this arithmetic in the schools. There might be very good reasons why the change should not be made all at once. The language of the statute is “ adopt.” Books are adopted when such action as the statute provides is taken, and not when every other book then in use has been removed, and the new one substituted. We think that this is the plain meaning of the statute. Unless this be so, the adoption must in most instances take place at some indefinite time after the resolution of adoption, for it would be impossible to effect a change immediately. If in the resolution of adoption a definite time were fixed for the installment of the new book, another question would be presented, upon which we express no opinion. Under this holding, the five years for the use of the Walsh Grammar School Arithmetic had expired. Jones v. Board of Education, 88 Mich. 371 (50 N. W. 309).

4. The adoption of the Walsh Grammar School Arithmetic did not mean the adoption of the Primary Arithmetic by the same author. Educators may think that the primary arithmetic of one author is better than that of another, and that the higher arithmetic of the other author is better. This law does not mean that the school board is obliged to use all the books of the same series for all the grades of the school. They are at liberty to select what shall be used in each grade, and as to those there must he uniformity. The term “uniformity” does not mean that all the text-books of one author in grammar, arithmetic, history, physiology, etc., for the different grades of scholars, must be used. Boards of education are at liberty, under this law, to adopt the book of one author for use in all the primary departments, and the book of another author on the same subject in all the grammar or higher departxnents. All the law requires is that they be uniform in .the same grade.

5. On August 23, 1900, the defendant board passed a resolution to purchase 4,000 copies of Walsh’s Primary Arithmetic, at 24 cents per copy, for “supplementary use.” This purchase was wholly illegal. The sole authority for such purchases must be found in the statute. Detroit Board of Education v. Detroit Common Council, 80 Mich. 548 (45 N. W. 585). Upon the face of the resolution, it appears that they were not purchased for general use in the schools, or with any intention of adoption. On the contrary, the language of the resolution is repugnant to any intention to adopt. It follows from the above that Walsh’s Primary Arithmetic has never been adopted.

Under the above holding, both decrees must be affirmed.

The other Justices concurred.


text:
    MORLEY BROS. v. STRINGER.
    1. Judgments — Collateral Attack — Bill in Aid of Execution.
    On a bill in aid of execution, the judgment cannot be attacked for mere irregularities.

      Ü. Fraudulent Conveyances — Consideration.
    A conveyance made in fraud of creditors, while valid as between the parties, is absolutely void as to creditors, irrespective of the consideration paid by the grantee.
    3. Same — Tenancy in Common — Payment of Mortgage — Reimbursement.
    Where a tenant in common of land incumbered by mortgage, with the active co-operation of his co-tenant, made a conveyance of his interest for the purpose of defrauding creditors, and the co-tenant, in furtherance of such purpose, paid off the mortgage, taking a new mortgage from the fraudulent grantee for the amount chargeable against such interest, such co-tenant was not entitled to be reimbursed for such payment, in a suit by a judgment creditor to set aside the conveyance.

      Appeal from Genesee; Wisner, J.
    Submitted May 15, 1903.
    (Docket No. 86.)
    Decided July 8, 1903.
    Bill by Morley Brothers, a corporation, against Marshall L. Stringer, Zachariah Stringer, Edgar J. Osband, and Grant Parker, in aid of execution. Prom a decree for complainant, defendant Marshall L. Stringer appeals.
    Affirmed.
    This is a bill filed in aid of an execution. The facts are found in the decree of the court, and are as follows:
    “1. The firm of Parker & Dunstan, composed of Grant Parker and John W. Dunstan, while conducting business at Otisville, Michigan, contracted a considerable amount of indebtedness to the complainant and other creditors. The firm of Parker & Dunstan wás dissolved by the parties in the latter part of the year 1889; the said Dunstan being succeeded by the said Marshall L. Stringer; the firm name being changed to Parker & Stringer.
    “2. In the early part of the year 1890, the debt due said complainant remaining unpaid, as well as the claims of other creditors of Parker & Dunstan, and it becoming apparent to the said Grant Parker and Marshall L. Stringer that their said business might become embarrassed by suits against the said Parker, and for the purpose of protecting the said Parker and the said business, Grant Parker and wife made, executed, and delivered to Zachariah Stringer and Edgar J. Osband, of Otisville, Michigan, a deed of the building occupied by Parker & Stringer, described as lots 1 and 2, Freeman & Crowles’ addition to the village of Otisville (Grant Parker owning an undivided half interest), county of Genesee, this State, except six feet off the east side thereof, subject to a mortgage of $700 on said interest ; and also at the same time said Parker made, executed, and delivered to Zachariah Stringer and Edgar J. Osband a bill of sale of his interest in the stock of goods of the firm of Parker & Stringer; such firm name being immediately changed to M. L. Stringer & Oo.
    “3. All of said conveyances and transfers of property so made by said Parker were wholly without consideration, and were made and taken for the purpose of hindering, delaying, and defrauding the creditors of Parker & Dunstan, including the complainant. ■ The said defendants severally participated in such fraud. The said Marshall L. Stringer, Zachariah Stringer, and Edgar J. Osband assisted, aided, and abetted the said Parker in perpetrating such fraud on the complainant and other creditors.
    “4. All of said defendants so conspired, concerted, and confederated together so that all the property of the said Parker that might have been reached and taken to satisfy the claims of such creditors was placed and kept out of the reach of creditors; and said defendants thereby hindered, delayed, and defrauded such creditqrs in the collection of their just demands.
    “5. The above-described real estate, at the time'of such transfer, was incumbered by a mortgage held by the Genesee County Savings Bank; and the said Marshall L. Stringer, claiming to own a half interest in said real estate, paid such mortgage indebtedness, and the' same was discharged from record. Thereafter, in the year 1894, and while the interest of said Parker therein remained in the name of Zachariah Stringer and Edgar J. Osband, of record, the two defendants last named made, executed, and delivered to the said defendant Marshall L. Stringer a mortgage on an undivided half interest in said real estate, and said mortgage was thereafter foreclosed, and said premises sold thereunder, and a sheriff’s deed given therefor to said Marsháll L. Stringer; said mortgage being recorded in Liber 118 of Mortgages, at page 538, Genesee county records, and said mortgage being for the consideration therein named of $813.25. Said sheriff’s deed was recorded in Liber 1 of Sheriff’s Deeds, page 538, Genesee county records.
    “ 6. The said Marshall L. Stringer, while participating in and aiding in the fraudulent transaction as herein stated, was guilty of fraud in taking and recording said mortgage, and in foreclosing the same, and in obtaining and recording said sheriff’s deed.
    “7. The payment by the said Marshall L. Stringer of the mortgage on said premises so held by the Genesee County Savings Bank was voluntary, and made at a time when the said Marshall L. Stringer, Zachariah Stringer, and Edgar J. Osband had control and apparent ownership of all the property of the said Grant Parker.
    “8. The executing and recording of said mortgage from said Stringer and Osband to Marshall L. Stringer operated to still further hinder, delay, and defraud the said complainant and other creditors of Parker & Dunstan.

      “9. On the 17th day of April, A. D. 1893, the said complainant obtained a valid judgment against the said Grant Parker and John W. Dunstan for the sum of $254.23 damages and $29.40 costs of suit, and said judgment remains of force and unpaid, both at the time of the filing of the bill of complaint herein and at the time of the rendition of this decree; and there is now due and remaining unpaid on said judgment, for principal and interest, the sum of $466.81.
    “ 10. Por the purpose of collecting said judgment, said complainant caused an execution to be issued out of, and under the seal of, the circuit court for the county of Genesee, where said judgment was rendered, and has caused said execution to be duly levied “upon the real estate above described, and notice of such levy was duly filed in the office of the register of deeds of said county, and said judgment remains unsatisfied and unpaid.”
    Proofs were taken in open court, and decree rendered for complainant.

      Brown & Farley, for complainant.

      Lee & Parker (Edward J. Bissell, of counsel), for appellant.
   Grant, J.

(after stating the facts). Counsel for the defendant raise objections to the validity of the judgment rendered in the suit at law. They make no argument upon them, and the pleadings upon which they are based are not found in the record. Therefore they cannot be considered. Enough, however, does appear to indicate that they constitute a collateral attack upon the judgment, which cannot be maintained, under Griffin v. McGavin, 117 Mich. 372 (75 N. W. 1061, 72 Am. St. Rep. 564), and Peninsular Savings Bank v. Ward, 118 Mich. 87 (76 N. W. 161, 79 N. W. 911), and authorities there cited.

The meritorious question in the case is whether the •defendant appellant is entitled to protection for the mortgage of $700, the amount he paid for Mr. Parker’s half of the mortgage existing upon the premises at the time of the fraudulent transfers, and whether the foreclosure of the mortgage given by Zaobariah Stringer and Edgar J. Osband to him, of $813.25 (being said $700 and interest thereon), is valid. The conclusion is irresistible that this entire transaction was fraudulent ab initio, and that Parker, defendant, and his brother entered into it with the sole view to not only hinder and delay, but to defraud, the creditors of Parker. In such cases the courts will leave parties to lie ‘in the beds they have voluntarily made. “ He that committeth iniquity shall not have equity.”

While conveyances made in fraud of creditors are valid as between the parties themselves, they are absolutely void as to creditors, and as to them it is immaterial whether the grantee paid any consideration or not. If the purpose of both the grantor and the grantee is to defraud the grantor’s creditors, the title to the land, as to creditors, is regarded in equity the same as though no conveyance had been made, and the title still stood in the grantor. The wise theory of the law is that a creditor, trusting the debtor upon the faith of his owning the land, is entitled to the first lien upon it, where the grantee has participated in the fraud of the grantor, the debtor. This is the long and well-established rule. Sands v. Codwise, 4 Johns. 536 (4 Am. Dec. 305); Shand v. Hanley, 71 N. Y. 319; Davis v. Leopold, 87 N. Y. 620; Wiley, Banks & Co. v. Knight, 27 Ala. 336; Daisy Roller Mills v. Ward, 6 N. Dak. 317 (70 N. W. 271). In this last case will be found a valuable discussion of the subject, and a citation of authorities.

But we are not without authority in this court. The question arose in the early case of How v. Camp, Walk. Ch. 427. In that case the grantee was allowed the benefit of taxes paid and improvements made by him after the conveyance, but he was held not entitled to the consideration paid for the deed. The reason of the rule undoubtedly is that taxes and improvements in good faith are for the benefit of the creditors, while the consideration paid with the intent to defraud is not. The distinction is drawn in that case between constructive and positive fraud, where the grantee is particeps criminis. See the language of the court on page 436. See, also, Robinson v. Boyd, 17 Mich. 128.

Prior liens paid in pursuance of such fraudulent agreements stand upon the same basis as actual payments for the purchase price. They are in fact a part of the purchase price. Authorities above cited; also Bump, Fraud. Conv. § 628.

This mortgage was voluntarily paid and discharged, and the mortgage to defendant Marshall given as a part of the fraudulent scheme.

We have examined the authorities cited by counsel for the defendant in support of their contention, and find that they have no application.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, C. J.

text:
    STEEL v. CLINTON CIRCUIT JUDGE.
    1. Mandamus — Plea in Abatement — Waiver.

      Mandamus will not lie to compel a circuit-judge to reinstate a plea in abatement, stricken from the files on the ground that the right to maintain it had been waived, since the action of the court is reviewable on writ of error after final judgment, in case defendant shall see fit to stand upon his plea, and otherwise the point is waived.

    2. Pleading — Abatement—Effect of Motion to Strike.
    An order striking a plea in abatement from the files has the same effect as if the judge had directed a jury to render' a verdict for the plaintiff upon the trial of the issue raised by tiie plea.

      Mandamus by George A. Steel to compel George P. Stone, circuit judge of Clinton county, to reinstate a plea in abatement.
    Submitted May 12, 1903.
    (Calendar No. 19,929.)
    Writ denied July 8, 1903..

      H. E. & E. L. Walbridge, for relator.

      Norton & Dooling, for respondent.

       See Grand Rapids & Ind. R. Co. v. Charlevoix Circuit Judge, ante. 123.

   Hooker, C. J.

The defendant, relator herein, a resident of Detroit, was sued in an action of case in the county of Clinton by one John C. Hicks. The action was begun by summons December 30, 1899. The defendant caused his general appearance to be entered January 6, 1900. On February 24, 1902, the plaintiff’s default for not filing a declaration was entered, and this order was set aside, upon a stipulation, on March 19, 1902. On March 22, 1902, a declaration was filed, and on March 25th a demand for a bill of particulars of plaintiff’s claim was served. The declaration consisted of special counts, wherein the plaintiff’s causes of action were set forth at great length, i On October 7, 1902, the defendant filed a plea in abatement, in which he claimed that the plaintiff was not the owner of the alleged causes of action, but that they belonged to a bank located in Gratiot county, and that they were transferred to the plaintiff for the sole and only purpose of enabling the bank to litigate its claim through and in the name of the plaintiff, but for its sole benefit, by acquiring jurisdiction of said defendant in Clinton county, and thereby avoiding a suit against him at his residence iii Detroit.

On November 13, 1902, the plaintiff served his bill of particulars, and on November 15, 1902, a motion was made to strike the plea in abatement from the files, upon the ground that the right to maintain such a plea was waived (1) by the entry and service of defendant’s appearance; (2) by filing an affidavit and entering plaintiff’s default, and subsequently making a stipulation to vacate the same; (3) by demanding a bill of particulars; (4) by reason of his delay, especially as defendant at all times knew the nature of plaintiff’s claim; (5) because the plea was not filed within the time prescribed by rule; '(6) because the plea is not signed by counsel. This motion was granted. Thereupon, upon application to this court, an order was issued to the circuit judge directing that he show cause why a peremptory mandamus should not issue, requiring him to reinstate such plea.

The question raised by defendant’s plea is, Did the court acquire jurisdiction over the person of the defendant? The coqrt has seen fit to dispose of this question by holding that it did, and, although the subject was disposed of upon a motion to strike the plea from the files, the result and order are in no essential respects different from what they would have been had the judge directed a jury to render a verdict for the plaintiff upon a trial of the issue raised by such plea. He has ‘ ‘ proceeded and determined ” that issue, and it is not proper practice to compel him by mandamus to do it again because we may think he erred in his conclusions. As well might we issue a mandamus to correct any other error in disposing of such issue.

It should not be forgotten that this is a dilatory plea, and the order interlocutory. It is not the policy of the law to interrupt proceedings, and postpone a hearing of the merits of a case, to enable parties to review, and possibly correct, the proceedings of the trial court at successive stages. It was the practice of the common law never to review an action at law until it reached a final judgment, and that has been the practice adopted in this State; and especially is it so in relation to dilatory pleas, which are not favored.

One who demurs to a declaration must let the case go to a final judgment before he can complain of error in such order. If he pleads, he waives the question: The same is true of pleas in abatement. He must be content to stand upon his plea, and review the adverse judgment on error, or the point will be waived.

In Thompson v. Benefit Ass’n, 52 Mich. 524 (18 N. W. 247), one was held to have waived a jurisdictional question by appearing and filing a demurrer; citing several cases from other States. See, also, Norberg v. Heineman, 59 Mich. 210 (26 N. W. 481).

“ And the fact that a defendant had previously moved to dismiss the case does not render a general appearance any the less effectual to confer jurisdiction. Manhard v. Schott, 37 Mich. 234. When a defendant appears and objects to the jurisdiction, and his objection is overruled, he must then elect either to stand upon his objections or to go into the merits.” Montgomery, J., in Stevens v. Harris, 99 Mich. 233 (58 N. W. 230).

In the case of Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 272 (70 N. W. 582), Moore, J., with the approval of the entire bench, after calling attention to the fact that there was a want of consistency in the opinions, declared the rule to be:

“The writ will be entertained when the court has refused to retain jurisdiction, supposing it had no jurisdiction when it had jurisdiction in fact, because, if the writ was not entertained under such circumstances, the party would be without remedy. On the contrary, if the court claims jurisdiction in a case where it is not entitled to exercise it, such action of the court can be reviewed by appeal or writ of error. In such a case the writ of mandamus ought not to issue. Applying these general principles to the case now here, we do not regard it as a case where the writ should issue. If the court is wrong in asserting jurisdiction, the aggrieved party has a remedy by writ of error.”

In Watkins v. Plummer, 93 Mich. 217 (53 N. W. 165), one sued on a note pleaded the general issue, and it was said to be a waiver of jurisdictional questions. The court said: “It was known to defendant that the action was not necessarily brought in the name of the real owner.”

In Griffin v. Wattles, 119 Mich. 346 (78 N. W. 122), it was said:

“It is a rule of the common law that rulings upon dilatory pleas cannot be reviewed when the defendant has subsequently pleaded to the merits, as the right to review is thereby waived. Under that practice, a plea in abatement must precede the plea to the merits. * * * W© have seen that the common law, with a view to the same end, prohibits a defendant from putting his adversary to the expense of a trial of the merits, if he would test the correctness of proceedings upon dilatory pleas. To review such questions, he must incur the hazard of a judgment against him. This court has steadily adhered to this practice, although frequently importuned to so change the rules as to permit the course .which the common law condemns. The statute, like the common law, looks upon a speedy trial of the merits as a desirable result; and á practice which delays, by permitting technical and dilatory tactics, is contrary to the policy of both, and we cannot give an unnecessary construction to Rule 6 which would have that effect.”

See, also, Reed v. St. Clair Circuit Judge, 122 Mich. 156 (80 N. W. 985); Ambos v. Ingham Circuit Judge, 123 Mich. 618 (82 N. W. 267); City of Detroit v. Wayne Circuit Judge, 125 Mich. 634 (85 N. W. 1).

The rule extends to criminal cases (see Maynard v. Ingham Circuit Judge, 124 Mich. 465 [83 N. W. 102]; Hosford v. Gratiot Circuit Judge, 129 Mich. 302 [88 N. W. 627 ]), and to garnishment (see Freud v. Saginaw Circuit Judge, 125 Mich. 670 [85 N. W. 193]). See, also, National Fraternity v. Wayne Circuit Judge, 127 Mich. 186 (86 N. W. 540); Fisher v. Wayne Circuit Judge, 128 Mich. 543 (87 N. W. 792); Poupard v. Judge of Recorder's Court, 129 Mich. 662 (89 N. W. 577); Welling v. Antrim Circuit Judge, McGrath, Mand. Cas. 95; Rosen v. Wayne Circuit Judge, Id. 96; Rosenberg v. Clinton Circuit Judge, Id. 97; Taylor v. St. Clair Circuit Judge, 32 Mich. 95; Snyder v. Lapeer Circuit Judge, McGrath, Mand. Cas. 220; Willson v. Gratiot Circuit Judge, 104 Mich. 155 (62 N. W. 293); Bailey v. Calhoun Circuit Judge, McGrath, Mand. Cas. 260; Harris v. Muskegon Circuit Judge, Id. 261; Smith v. Wayne Circuit Judge, 84 Mich. 564 (47 N. W. 1092); Coot v. Ionia Probate Judge, 93 Mich. 304 (53 N. W. 395); McBride v. Common Council of Grand Rapids, 32 Mich. 360; St. Clair Tunnel Co. v. St. Clair Circuit Judge, 114 Mich. 417 (72 N. W. 249).

The writ is denied, with costs.

The other Justices concurred.


text:
    FIRST NATIONAL BANK OF HANCOCK v. JOHNSON
    1. Bills and Notes — Note Payable to Bank Cashier — Indorsement — Action.
    Suit may be brought by a bank upon a promissory note payable to the order of its cashier, though not indorsed by him, where the evidence shows that he acted in the transaction for the bank.

      % Same — Parol Evidence — Liability oe Surety.
    The liability of a surety on a promissory note is not affected by a showing that the payee told him that one of the principals was worth a certain sum of money, and that he took no risk in signing the note; there being no evidence to show that the principal was not worth the sum stated.
    3. Same — Consideration.
    A consideration passing to the principal of a promissory note is sufficient to support the promise of the surety.

      4. Same — Renewal Note — Insolvency oe Principal — Release of Surety.
    The liability of a surety on a renewal note, who also signed the original note, is not affected by the payee’s failure to inform him that one of the principals had lost her property since the making of the first note.
    Error to Houghton; Streeter, J.
    Submitted June 3, 1903.
    (Docket No. 21.)
    Decided July 8, 1903.

      Assumpsit by the First National Bank of Hancock against Andrew Johnson on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      W. A. Burritt, for appellant.

      Hanchette & Lawton, for appellee.
   Carpenter, J.

This suit was brought to recover the amount of a note, upon which defendant was an accommodation maker. The court below directed a verdict for the plaintiff. Defendant seeks a reversal on several grounds.

1. The note was payable “to the order of William Condon, cashier, at First National Bank, Hancock, Michigan.” It was never indorsed by Condon, though the evidence showed him to be plaintiff’s cashier, and that he acted in the transaction for the plaintiff. It is insisted that, under these circumstances, suit could not be maintained in plaintiff’s name. This objection is fully answered by Garton v. Union City Nat. Bank, 34 Mich. 279.

2. Defendant, legally speaking, was a surety on this note. The principals were Allen Kirkpatrick and his wife, Mrs. E. A. Kirkpatrick. He offered testimony tending to prove that, when he signed the note for which the note in suit was given as a renewal, plaintiff’s cashier informed him that Mrs. E. A. Kirkpatrick owned property to the value of #10,000, and that he “took no risk” in signing it. Defendant contends that this evidence, together with other evidence offered by him, made a case for the consideration of the jury, and that the court therefore erred in directing a verdict. It is a sufficient answer to this claim to say that there was no evidence, either introduced or offered, tending to show that Mrs. Kirkpatrick was not worth #10,000 at the time the original note was executed, and that the statement that defendant “took no risk” in signing the note had no effect upon the obligation he incurred by signing it. Adair v. Adair, 5 Mich. 204 (71 Am. Dec. 779); Hyde v. Tenwinkel, 26 Mich. 93; Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3); Mason & Hamlin Co. v. Gage, 119 Mich. 361 (78 N. W. 130).

3. Nor can we agree with defendant that there was any want or failure of consideration. It is proved that, at the time the first note was signed, the money secured thereby was advanced to the Kirkpatricks. No authority need be cited to the proposition that this constituted a legal and sufficient consideration for defendant’s promise.

4. Defendant’s counsel contends, as we infer from his brief, that it was the duty of the plaintiff’s cashier, when the renewals were signed, to inform defendant of his knowledge of Mrs. Kirkpatrick’s changed financial condition (she had, as defendant claims, lost her property), and that the failure to do so was evidence of fraud. The notice attached to defendant’s plea did not apprise plaintiff of any such theory, nor do we think the theory sound under any notice. It is sufficiently answered by saying that defendant was under a legal obligation to pay the original note, and he was in no way damnified when he satisfied that obligation by giving another of the same character.

We discover no error in the record, and the judgment of the court below is therefore affirmed.

The other Justices concurred.


author: Moore, J.

text:
    RETAN v. UNION TRUST CO.

    1. Registers in Chancery — Deposit of Funds.
    Where a register in chancery deposited money in a bank without the order of the court required by 1 Comp. Laws, § 420, but on the first day of each term exhibited to the court an account of all such moneys, as required by section 421, to which the court made no objection, the effect is the same as though an order for the deposit had been made in the first instance.
    2. Same — Special Deposits — Insolvency of Bank.
    Money deposited in a bank by a register in chancery pursuant to such statute is not a special deposit, entitled to priority over others on the insolvency of the bank.
    Appeal from Wayne; Donovan, J.
    Submitted April 8, 1903.
    (Docket No. 6.)
    Decided July 8, 1903.
    Petitions by Ann Retan, Ralph E. Wisner, Thomas B. McGregor, and William H. McGregor, register in chancery, against the Union Trust Company, receiver of the City Savings Bank of Detroit, to have certain moneys deposited in said bank declared to be trust funds, to which petitioners are entitled as against the bank’s general creditors. From orders denying the petitions, petitioners appeal.
    Affirmed.

      Kilpatrick & Pierpont, for petitioner Retan.

      Clark, Jones, Allor & Bryant (Frank E. Robson, of counsel), for petitioner Wisner.

      George W. Radford, for petitioner Thomas B. Mc-Gregor.

      O. D. Joslyn, for petitioner William H. McGregor.

      Bowen, Douglas, Whiting & Murfin, for defendant.

       Rehearing denied October 27, 1903.

   Moore, J.

Ann Retan is the widow of Benjamin S. Retan, who at the time of his death was a member of the Ancient Order of United Workmen of the State of Michigan, and the holder of a certificate issued by the grand lodge of said order, in which Ann Retan was made the beneficiary of the fund of $2,000 therein provided for. A former wife and her sons made claim for said fund, and a bill of interpleader was filed in the Wayne county court, making said Ann Retan one of the defendants, and the fund of $2,000 was paid into court, which money was received by William H. McGregor, register in chancery, and by him deposited in the City Savings Bank; and such proceedings were had that on the 9th day of May, 1902, it was decreed by said court that said money be paid to said Ann Retan, less costs, and $266 to Colin McCormick, and $172 to Owosso Lodge, No. 48, of the Ancient Order of United Workmen, assigned to them to secure advances to said B. S. Retan and Ann Retan.

A controversy arose between John McGregor and Thomas B. McGregor, who were partners, which resulted in the filing of a bill in chancery by the former against the latter. A receiver was appointed, who converted the assets into cash, amounting to $3,253.23, which amount was deposited with the register in chancery. A decree was afterwards entered awarding the said money to Thomas B. McGregor, who on July 7, 1902, made a demand for the money upon William H. McGregor, register in chancery, who refused, assigning as a reason that, upon payment of said moneys by the receiver into court, on December 7, 1901, he had deposited said moneys in the City Savings Bank; that such bank had been approved by the court as the depositary; that subsequently the City Savings Bank had become insolvent, and its affairs and assets were in charge of the Union Trust Company, as receiver, appointed by the court below.

In March, 1900, the sum of $975 was placed in the hands of said McGregor, as county clerk and register in chancery, which sum was deposited by him in the said City Savings Bank. On the 10th day of January, 1902, it was decreed that the $975 be paid to Ralph E. Wisner, as trustee, for the benefit of Jeanette Goudreau and Hattie Goudreau.

February 10, 1902, the doors of the said hank were closed by direction of the banking commissioner, and on February 12, 1902, the Union Trust Company was appointed receiver of said bank.

This proceeding is had for the purpose of requiring the receiver to pay over said sums of moneys in full. In the matter of the petition of Ann Retan and Ralph E. Wisner, the court entered an order denying the prayer of the petitioners. In the matter of the petition of Thomas B. McGregor, the order, at the request of counsel; was more formal, and the judge held:

“First. The money deposited by the county clerk was legally done under court sanction, duly obtained.
“Second. That William H. McGregor is not bound to pay over any money until received from the avails of said bank, and then only such proportion as he shall receive as depositor thereof. ■•
“Petition denied.”

From these orders the petitioners have appealed.

It is claimed by all of the petitioners that the funds mentioned are trust funds, and, though mingled with the funds of the bank, that they should still be considered trust funds, and paid in full. It is the claim of Mr. McGregor that it was the duty of the register to obtain an ■order of the court designating the bank in which he should deposit the fund. This the register did not do, but deposited the money in the City Savings Bank under an arrangement made at the beginning of his term of office; notifying the bank, however, of the character of the fund, and the authority of the court over it, under the statute. That the court, the register in chancery, and the bank, in affect, undertook to comply with the terms and spirit of the statute, and, whether the statute was strictly complied with or not, the bank had full notice of, and was bound by, the statute, and no act by either the register in chancery or the bank can destroy the trust character of the fund, and the consequent liability of the receiver to pay it over in full. It.is further claimed on the part of Mr. McGregor that if this court should reach the conclusion that, owing to the failure of the register to comply with the statute in dealing with the bank, this trust fund is lost as such, then the register, William H. McGregor, and his sureties, should be held responsible, the same as though he had converted the fund to his own use in total disregard of his official duty.

In order to dispose of the case, a brief statement of the important facts, beyond what have heretofore appeared, is necessary.

When Mr. McGregor came into office as county clerk and register in chancery, his predecessor in office had on deposit with the City Savings Bank quite an amount of money. This money was placed to the credit of William H. McGregor, county clerk; and, when other sums were received by him, they were deposited in the bank, and carried to his credit, as stated above. The funds were mingled with the commercial funds of the bank. The bank had full knowledge of the character of these funds. No formal order was ever made by the court, requiring the county clerk to make these deposits in this bank; but upon the 1st of April, 1901, September 20, 1901, and January 7, 1902, the county clerk made a statement to the presiding judge of the court of which he was clerk, each of which was substantially like one that reads as follows:

“Detroit, Jan. 7, 1902.
“Hon. R. E. Frazer,
“Presiding Circuit Judge.
“Dear Sir: I attach herewith the quarterly statement of moneys deposited in my hands as clerk and register in chancery, showing a total of $19,107.17. You will find below certificates from the cashiers of the City Savings Bank and the Michigan Savings Bank, certifying as to the amounts deposited in each b.ank, which, added together, make the amount above referred to. The statement also shows an amount of $22,486.92, being the amount deposited in the People’s Savings Bank in the Casserly estate, also certified to, but which amount, or any portion thereof, cannot be withdrawn except upon your order! All of which is respectfully submitted.
‘ ‘ Respectfully yours,
“Wm. H. McGregor,
“County Clerk,
“ By Charles H. Austin,
“Deputy Clerk,”
“I hereby certify that there is deposited in this bank, to the credit of Wm, EL McGregor, county clerk, the ■sum of $16,145.17.
“El. R. Andrews,
“ Cashier City Savings Bank.”
“ I hereby certify that there is deposited in this bank, to the credit of Wm. EL McGregor, county clerk, the sum of $2,962.00.
“George Wiley,
“Assistant Treasurer Michigan Savings Bank.”
“ I hereby certify that there is deposited in this bank, to the credit of Wm. EL McGregor, county clerk, the sum of $22,372.38.
“M. W. O’Brien,
“ President People’s Savings Bank.”

Attached to this was ¿ detailed statement of the number of the case, and the amount in the bank on account thereof, so that the judges were fully advised of the action of the county clerk and of the custodian of these funds.

It is claimed what was done did not meet with the requirements of the statute,' which reads as follows (1 Comp. Laws):

“ Sec. 420. All moneys brought into the court for or by any suitor, and paid to the register, shall be deposited in such banks or safely kept in such other manner as the court shall direct.
“Sec. 421. On the first day of the term of the court, the register, at the place where the same is held, shall exhibit the account kept by him of all such moneys, and also his bank account, in case such moneys shall have been deposited in a bank.
“Sec. 422. Every such bank account shall be accompanied by a certificate of the cashier of the bank in which the deposit is made, that the total amount stated thereinto be deposited is actually in the bank, placed to the credit of such register as register in chancery of the proper county, and not mingled with .any other account.
“Sec. 423. No money brought or paid into the court, and deposited in any bank to the credit of any officer of the court, shall be paid out by such bank, without the production of the order of the court, authenticated by the signature of the circuit judge.
“ Sec. 424. Each circuit judge may cause any moneys brought into court pursuant to any order made by him to be invested or placed at interest, as he shall think proper; and the party bringing money into court pursuant to any order thereof shall in all cases be discharged from all further liability to the extent of the money so' brought into court.”

It is said the court never directed, as required by section 420, the deposit of any of the moneys in question in the City Savings Bank, and that the certificate of the cashier did not comply with section 422, in that it did not certify “that the total amount stated therein to be deposited is actually in the bank, placed to the credit of such register as register in chancery, * * * and not mingled with any other account.” It is urged that the requirement that the funds could not be mingled with any other account, taken with the restriction placed upon the bank by section 423, that no money paid into court, and so deposited, “shall be paid out by such bank, without the production of the order of the court, authenticated by the signature of the circuit judge,” prohibits any other conclusion than that the funds in controversy were a special deposit, and that the bank was a mere naked bailee of the fund; that it had no right to mingle the funds with its own, and the bank acquired no title to these funds that permitted the commingling of the same with its other funds, and acquired no right to-use the same as a general deposit, and no right to subject them to any of its general liabilities.

It is apparent from what was done that the clerk of the-court and the cashier of the bank made an attempt to. comply with the provisions of the statute, and, though the court did not designate a bank in which the clerk and register in chancery should deposit the funds which came to him before the deposit was made, we think it must be held that as the clerk advised the court in the manner he did, and the court made no objection to what he did, the effect was the same as though the order had been made in the first instance.

Are counsel right in insisting that the funds deposited by the clerk or the register in chancery must be regarded as a special deposit, and might not be loaned by the bank as its other deposits are loaned ? The statute does not, in terms, require the fund to be kept intact, nor forbid the bank to loan it. These funds were not public funds, in- the ordinary sense of that term. They belonged to individuals, but to whom was a subject of controversy until the court could inquire into and determine the matter. In the meantime they were in the custody of the clerk, either as clerk of the court or register in chancery. It is evident he could not retain them upon his person. What should he do with them ? The legislature undertook to make provision for such a condition by the statute we have quoted. He put the money into a bank of such financial standing as to have the approval of the court when the register exhibited to it the status of the account. The money was deposited to the credit of the clerk of the court, who is register in chancery, and no part of it had been drawn out by him when the bank failed.

In Perley v. County of Muskegon, 32 Mich. 132 (20 Am. Rep. 637), it was said:

“The position of a public officer is peculiar, and the differences in different systems of statutes show that the responsibility is not by any means uniform. There seems to be nothing at common law which distinguished public treasurers or depositaries from any other financial managers. Where the same person receives and pays out money, the identity of the particular money received must almost necessarily be changed constantly, and it must have been customary for a long time to place such funds in what may be supposed to be safer custody than private premises will always afford. The usual rule in regard to bailments exonerates the bailee who has done all that was in his power to prevent loss or accident, and there are authorities which, on this ground, discharge public treasurers from any greater liability. There are others which hold them to be debtors, and not bailees, and not exonerated under any circumstances.
“It is well settled that, in the case of all but special deposits, the money deposited becomes the property of the banker, and he becomes the debtor of the depositor. No depositor can, upon refusal to pay a check, replevy or seize the funds in the bank. His redress must be as a creditor in some form of action to enforce his debt. Statutes sometimes give priority to peculiar debts, but, except in such cases, the depositor has no advantage over any other creditors. Commercial Bank of Albany v. Hughes, 17 Wend. 94; Marine Bank v. Fulton Bank, 2 Wall. 252; Foster v. Essex Bank, 17 Mass. 479 (9 Am. Dec. 168); Bank of Kentucky v. Wister, 2 Pet. 318; Graves v. Dudley, 20 N. Y. 76; Matter of Franklin Bank, 1 Paige, 249 (19 Am. Dec. 413); Chapman v. White, 6 N. Y. 412 (57 Am. Dec. 464); Downes v. Phoenix Bank, 6 Hill, 297; Swartwout v. Mechanics’ Bank, 5 Denio, 555.
“The deposit which creates these contract relations must be either the money of the officer or of the public, but it cannot usually be that of both. If an officer is required or authorized by law to make deposits in any particular place or with any particular person, he is usually, if not universally, protected from any further responsibility, so long as he leaves it there, and is not a guarantor of the safety of the deposit.”

The case of Otis v. Gross, 96 Ill. 612 (36 Am. Rep. 157), is an instructive one. In that case the court designated the bank as the depositary of moneys coming to the hands of the clerk of the court, and by resolution the bank accepted the trust. Mr. Gross, the clerk, opened an account with the bank as clerk. The order of the court did- not require that the moneys deposited by the clerk should be kept separate from the general funds of the bank, and they were not kept apart, but wei’e mingled with the general funds of the bank. The bank failed, and a receiver was appointed. The officers fled to avoid criminal prosecution. There was to the credit of the clerk of the court nearly $2,GOO at this time, while the liabilities of the bank were nearly §2,000,000 in excess of its assets. The clerk filed a petition against the receiver to have the amount of the credit standing in his name declared a trust. In refusing to so declare, the court used the following language:

“But the controlling question in the case is whether, under the circumstances of this case, the court had the legal right to make the order. When the court seized the fund, it did so for the benefit of the creditors of the bank. The court, by its receiver, took possession of the property, and did so to be administered, paid, and distributed according to the equitable claims of all the creditors of the bank. By appointing the receiver and placing the fund in his hands, none, the slightest, change occurred in the rights of a single creditor, not even the court, as a depositor. It became the duty of the court to distribute the fund according to the rights of all creditors as then existed. If it was then right, according to equitable principles, to order that deposit to be paid in full, and others but a per cent, on their debts and deposits, the court should have so ordered; but, if such was not the legal duty, the mere fact that the court has acquired the possession of the fund confers no legal right to retain its deposit in full from the fund.
‘ ‘ The deposit, when made, passed into and became a part of the common fund of the bank, as it was, no doubt, intended ; and the clerk thereby acquired a legal, and not an equitable, claim against the bank. His claim became the same and no more than that of the other depositors, —purely legal. It became an equitable demand for the first time when the court seized the fund for distribution among the creditors. And as all of the claims were legal, and on the same footing, and, so far as shown, no one having a superior natural equity, the court was required to adopt the rule that equality is equity, and distribute the funds amongst alljpro rata. Each person, on becoming a creditor by deposit, loan, or otherwise, had the legal right to full payment of his entire debt; but, the fund being wholly insufficient for the purpose, equity requires each should receive his proportion of his debt. The mere fact that this was a fund in court does not give the claim of the court a preference over other just claims. It may be a misfortune and a great hardship that the money was deposited in this institution, but it is equally so that the other creditors were so unfortunate as to repose confidence in dishonest or incompetent men, and deposit their means with them.”

See, also, McAfee v. Bland, (Ky.) 11 S. W. 439; Fletcher v. Sharpe, 108 Ind. 270 (9 N. E. 142).

In the case at bar the bank did not treat the funds deposited by the clerk as a special deposit, but mingled them with the general funds of the bank. When the receiver was appointed, there was less than §40,000 in cash in the bank, while the amount to the credit of the clerk was upwards of $18,000; and other deposits which are claimed to be trust funds will aggregate a very large sum of money, — much in excess of the money on hand,— while the debts of the bank otherwise are greatly in excess of its assets.

We have not overlooked the cases cited by the counsel for petitioners, including the cases of City of Marquette v. Wilkinson, 119 Mich. 413 (78 N. W. 474, 43 L. R. A. 840), and Board of Fire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655 (78 N. W. 893, 44 L. R. A. 493), but do not think they sustain the contention of petitioners, as will appear by an examination of them.

There is nothing in the statute to indicate that it is the duty of the bank, when the clerk or register makes a deposit, to keep that specific fund on hand; but it is provided that the statement of the clerk to the court must be accompanied by a statement of the cashier, not that the specific fund deposited by the clerk is in the bank, but that the total amount stated therein to be deposited is actually in the bank, placed to the credit of such register, — implying that the deposit made may be used by the bank as other deposits are used.

It is unfortunate for these petitioners that their money was in this bank. It was also unfortunate for all its depositors. The fund was put into the bank at a time when it was supposed by tbe banking department of the State, as well as by the court and the clerk of the court, to be worthy of public confidence.

Under the facts disclosed by the record, we think the court below made a proper disposition of the case.

Decree is affirmed.

The other Justices concurred.


author: Montgomery, J. Montgomery, J.

text:
    CITY OF DETROIT v. DETROIT RAILWAY.
    1. Jurors — Taxpayers—Competency.
    A person who is a taxpayer in a city is not, for that reason, incompetent to sit as a juror in a case to which the city is a party.
    2. Street Railways — Ordinances—Ultra Vires.
    An ordinance permitting the construction of a street railway through the streets of a city, and "requiring the city to lay, at its own expense, a concrete foundation under the street-railway tracks, is not ultra vires.

    3. Res Judicata — Parties.
    A decision by a circuit judge in a case between a taxpayer and a city, that a provision in a street-railway ordinance is ultra vires, does not make the question res judieata in a case between the city and the street railway.

      4. Settlement — Conclusiveness.
    A settlement between parties may be conclusive as to a claim made and considered, though totally disallowed.
    5. Street Railways — Relaying Pavements — Use oe Old Material — Liability op City.
    Where a street railway is required by the terms of its franchise, on laying its tracks in paved streets, to restore the streets to their former condition, and, while engaged in such work, the city removes the material taken out of the old pavement, requiring the railway company to replace it by new material, the city is liable to the company- therefor.

      Error to Wayne; Brooke, J.
    Submitted February 3, 1903.
    (Docket No. 64.)
    Decided July 8, 1903.
    Supplemental opinion filed April 26, 1904.

      Assumpsit by the city of Detroit against the Detroit Railway for work done and materials furnished. From a judgment for plaintiff, defendant brings error.
    Reversed.
    In December, 1894, the city of Detroit, by ordinance, granted its consent to the construction of a street railway by appellant through certain streets of the city. The company proceeded with the construction of the road, and in the years 1895, 1896, and 1897 incurred a liability to the city for the expense of supervision by the board of public works, and for work done by the city and materials furnished. An adjustment of the account was made by representatives of the company and the board of public works, and the claim of the city established up to April 1, 1896; the amount due being substantially $32,922.95. Of this amount the company agreed to pay $12,194.90 within 30 days, but the balance, $20,728.05, the company desired to remain until a counterclaim could be made and presented to the common council for concreting under tracks on unpaved streets, under the provision of its ordinance reading as follows:
    ‘ ‘ In all unpaved streets wherein the grantees are duly authorized by the common council to construct street-railway tracks under the provisions of this ordinance, the preparation of the roadbed shall be made by the grantees, their successors or assigns, the excavation to extend seven inches below the under side of the cross-ties upon which the tracks are laid; but the six inches of concrete required by the ordinance as foundation for the ties to rest upon shall be laid by and at the expense of the city at the time of the construction of the tracks; the city not being required, however, to do the paving between the tracks until the street is paved. The common council may, however, in its discretion, order the paving of the tracks on unpaved streets to be done at city expense contemporaneously with the first construction of said tracks. ”

      This claim was asserted as a counterclaim on the trial, and affords the principal ground of contention. There was also a claim made for material which it is claimed the board of public works took away from the streets, thereby preventing the railway company from using these materials in reconstructing the pavement and restoring the streets. The. circuit judge refused to permit either of these claims of defendant to be submitted to the jury, and the jury, under the charge of the court, found a verdict for the plaintiff in the sum of $29,34-5. G8.

      Corliss, Andrus & Leete (John J. Speed, of counsel), for appellant.

      Timothy E. Tarsney and Albert B. Hall, for appellee.
   Montgomery, J.

(after stating the facts). A question of great importance to practitioners was presented on the trial of this case. A number of the jurors called in the case were taxpayers in the city of Detroit. They were challenged for cause on the ground of interest. Were they competent jurors? There is no statute of this State to which our attention has been directed which, with respect to this case, modifies the common-law qualifications of jurors. It is provided by section 10226, 3 Comp. Laws, that, “in penal aétions for the recovery of any sum, it shall not be a good cause of challenge that a juror is liable to pay taxes in any county, city, village, township, or district which may be benefited by such recoveryand by section 2468, 1 Comp. Laws, it is provided that, “on the trial of every action in which a county shall be interested, the electors and inhabitants of such county shall be competent witnesses and jurors.” No similar provision is found affecting the common-law qualifications of jurors in suits where cities or townships are parties. In Smith v. Insurance Co., 107 Mich. 270 (65 N. W. 236, 30 L. R. A. 368), we held that since the enactment of section 2468, 1 Comp. Laws, a taxpayer of a county is a competent juror in an action to which the county is a party; but this holding does not relieve the difficulty in the present case. The question here is as to the competency of these jurors at common law. The authorities are not agreed. A number of cases, and perhaps numerically the weight of authority, sustain the contention of appellant’s counsel. But there are not wanting cases which hold that the interest of a taxpayer in a municipality is not sufficient to exclude him upon the ground of interest. See Kemper v. City of Louisville, 14 Bush, 94; City of Marshall v. McAllister, 18 Tex. Civ. App. 160 (43 S. W. 1043); City of Dallas v. Peacock, 89 Tex. 58 (33 S. W. 220); Rathbun v. Thurston County, 8 Wash. 238 (35 Pac. 1102); Jackson v. Pool, 91 Tenn. 448 (19 S. W. 324); Eastman v. Commissioners of Burke County, 119 N. C. 505 (26 S. E. 39); City of Omaha v. Cane, 15 Neb. 657 (20 N. W. 101); City of Omaha v. Olmstead, 5 Neb. 453; Commissioners of Clermont County v. Lytle, 3 Ohio, 289. The practice in this State, so far as we are advised, is in line with the authorities cited. A significant fact is that section 1109, 1 Comp. Laws, excludes judges from sitting in cases on the same ground that jurors are excluded; and yet, so far as we are advised, the uniform practice both at the circuit and in this court, during the entire judicial history of the State, has been for judges to sit in cases involving the rights of municipalities in which the presiding judge is a taxpayer. This has been true both as to the circuit and the supreme court during its entire history; and this long-continued practical interpretation of the law should be deemed, as we think, controlling. There was, therefore, no error in permitting these jurors to sit.

As to the claim of defendant for materials removed, it is not clear that they were not considered as in part compensation for the work done by the board of public works.

The important question in the case is as to the right of the defendant to demand compensation for concrete placed under the ties in laying the tracks of the road in unpaved streets. That it was the duty of the city, under the ordinance, to put down this concrete, is clear; but it is contended that this provision of the ordinance was ultra vires. This contention is answered by the mandamus case between these same parties, decided at the present term. 133 Mich. 608 (95 N. W. 736).

It is said in the brief of plaintiff’s counsel that this question is res adjudicata. It appeared on the trial that a taxpayer had at one time procured a temporary injunction against the city or the board of public works, restraining the work of concreting. The record of that case is not in evidence, although it appears that the circuit judge was of the opinion that the contract was ultra vires. Apart from the fact that the record does not disclose that that case ever passed to decree, the fact that defendant was in no way a party to the record is a sufficient answer to the contention that the holding of the circuit judge in that case is a controlling determination of the present.

For the error pointed out, the judgment will be reversed, and a new trial ordered.

The other Justices concurred.

supplemental opinion.

Montgomery, J.

Reference is made to the decision of this case, reported supra. It is said in the decision, in substance, that, as to the claim of defendant for materials removed by the city, it is not clear that this claim was not considered and adjusted by the parties; but, as the opinion leaves undecided the question of liability in case the jury should find that this item was not adjusted, the parties have stipulated that this question should be considered by the court, and an announcement made for the guidance of the court on a new trial.

The testimony is conflicting upon the question whether in the adjustment of May 14, 1896, when an agreement was reached as to the amount due the city, a claim for such material was put forward and considered. This was a question of fact. If such a claim was. made, even though it was totally disallowed, yet, in view of the fact that other deductions aSd concessions were made by the city, we agree with the circuit judge that the settlement then made concluded the defendant.

If no settlement of this item was made, the question presented is this: Whether, when the defendant was engaged in tearing up the pavement or surface of the street for the purpose of laying the track, it was entitled to use the material thus torn up in putting the street in the condition required by the ordinance, so far as the same was suitable to the purpose, and whether the city was liable for such material removed by its authority while the replacing of the pavement was in progress. We think the answers to these questions should be in the affirmative. We can see no good ground for saying that the ordinance contemplated that the old material which was entirely suitable for use should be replaced with new. This was not the contract.

It is now said that the claim had not been presented to the common council, for allowance, and that this will afford a complete answer to the defendant’s claim on a new trial. The record does not show that’this question was raised on the former trial, and need not now be considered.

The case will be remanded for trial.

The other Justices concurred.