text:
    NESBITT v. ONAWAY-ALPENA TELEPHONE CO.
    I. Trusts — Constructive Trusts — Fraud—Bona Fide Holder.
    Where an officer of a corporation by fraudulent artifice possessed himself of certificates of stock belonging to a woman lately bereaved and of limited business experience, a constructive trust arose as to such stock in the hands of the officer or any person not a tona fide holder.

      2. Same.
    Where certain shares of such stock were turned over to the corporation, the trust would follow it, in the absence of any evidence that it parted with anything of value for the same.
    3. Same — Laches.

      Helé, that the record • does not disclose any unreasonable delay in bringing the action after discovery of the fraud.
    Appeal from Branch; Knowlen, J.
    Submitted June 7, 1918.
    (Docket No. 84.)
    Decided July 18, 1918.
    Bill by John S. Nesbitt, administrator of 'the estate of Warren D. Baker, deceased, against the Onaway-Alpena Telephone Company and others to establish the title to certain corporate stock. From a decree for plaintiff, defendant telephone company appeals.
    Affirmed.

      H. H. & B. E. Barlow, for plaintiff.

      Henry & Henry, for appellant.
   Brooke, J.

Prior to the 13th day of March, 1913, 400 shares of stock of the Onaway-Alpena Telephone Co., a Michigan corporation, stood in the name of “Warren D. Baker or Martha E. Baker.” The par value of said stock was $25. This stock, or the stock of the Onaway Telephone Company, which was exchanged share for share for this stock, was purchased by Warren D. Baker from M. T. Streeter about the year 1911. Mr. Streeter was vice president of the telephone company and active in the management of its affairs. On said 13th day of March, 1913, Warren D. Baker died, and about six weeks later, on April 30, 1913, said Streeter went to the home of Martha E. Baker, the widow of Warren D. Baker, and, after some negotiations with her, secured possession of said stock certificates, giving her at the time the following papers:

$10,000.00 Union City, Mich., April 30,1913.

“On or before one year after date, I promise to pay to the order of Martha E. Baker, Ten Thousand Dollars, interest at seven per cent, paid each six months, at Mrs. Baker’s home. Value received.
“M. T. Streeter.”
“Union City, April 30th, 1913.
“This agreement made this day between M. T. Streeter of Lansing, Michigan, party of the first part and Martha E. Baker of Union City, Michigan, party of the second part,
“Witnesseth: the said first party has given his note for ten thousand dollars to be paid on or before one year for Onaway-Alpena Telephone stock, to be handled and sold and turned into cash to take care of said note bearing even date herewith.
“Morris T. Streeter.”

Of this stock, 180 shares of the par value of $4,500 were, by Streeter, turned over to the telephone company. The certificates of transfer being signed “Martha E. Baker, widow of Warren D. Baker,” and indorsed across the face: “Turned back and held as treasury stock.” Ninety-seven shares of such stock, said to be nonnegotiable, are outstanding in the name of Morris T. Streeter. The remaining 123 shares were disposed of by Streeter to persons who paid valuable consideration and purchased without notice. Prior to the commencement of this action Martha E. Baker assigned to John S. Nesbitt, plaintiff herein, as administrator of her husband’s estate, all the right, title, and interest in and to said certificates of stock. The bill was filed for the purpose of establishing the title to said stock in said Martha E. Baker. She testified that her husband had paid for said stock $10,000 in cash; that Streeter had on various occasions offered to sell said stock for her husband and herself if they desired to get their money back; that at the time she delivered said stock certificates to Streeter he represented to her that he would take the stock and have the certificates changed to certificates standing in her own name; that her understanding was that she was not making a sale of the stock to Streeter, but that she was turning it over to him as a representative of the company for the purpose indicated.

It is clear from the record that Streeter’s management of the telephone company was irregular in many respects; that he‘had illegally withdrawn from the treasury of the company considerable money and had sold stock of the corporation in excess of that allowed by the Michigan railroad commission. In July, 1913, he was ousted from the management of the affairs of the corporation and later appears to have absconded from the State. An action brought by the company to recover from him sums wrongfully taken by him from it could not be prosecuted because he could not be found within the State. A perusal of the record convinces us that Streeter by fraudulent artifice possessed himself of the certificates of stock here in question, knowing that he was dealing with a woman lately bereaved and of limited business experience. Under the facts as disclosed by this record there is no question but that Streeter could have been compelled to return the stock to the person from whom he secured it without consideration. As to the 97 shares that precise situation exists. Touching the 180 shares delivered by Streeter to the telephone company, the learned circuit judge held that as to these shares there was no evidence of any consideration having passed from the telephone company to Streeter; that the telephone company was not a bona fide holder for value without notice and that therefore the same should be issued to the plaintiff herein. The defendant introduced no testimony in the case, but Charles S. Davis, now president of the company, was called by plaintiff under the statute. The transaction between Streeter and the company occurred before Davis’s incumbency of the office of president. He testified:

“I think it (the stock), was received into the company’s hands to reimburse the company for money or stock that they had sold beyond what they had any right to sell.”

We can find no evidence in the record that the company parted with anything of value to Streeter at the time of the delivery to it of the 180 shares of the Baker stock or even that Streeter was credited for the value of the same upon his indebtedness to the company which it is said was considerable at that time. We have no doubt that under the authorities a constructive trust arose as to this stock in the hands of Streeter and that such trust follows the stock in the hands of any person not a bona fide holder for value without notice. Morris v. Vyse, 154 Mich. 253, and Weir v. Union Trust Co., 188 Mich. 452.

The claim is made on behalf of the appellant, the telephone company, that the failure of Mrs. Baker or her assignee, the administrator of her husband’s estate, to act earlier should bar them from the relief sought. Streeter was ousted from the management of the corporation in July, 1913, and the bill of complaint in this case was filed September 26, 1914. Mrs. Baker testified that in the meantime she had endeavored to correspond with Mr. Streeter, hut had failed to get into communication with him. The record does not disclose at what period she became aware of the fraud that had been practiced upon her. In any event the delay in starting the proceeding has apparently been of no disadvantage to the defendant telephone company. It has not changed its position in reliance upon her silence. While it is true that one defrauded must be active in disaffirming a contract obtained through fraud and must not sleep upon his rights, we are unable to find from this record that there was any unreasonable delay in action after the fraud was discovered.

The decree is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    FOWLER v. ISBELL.
    Specific Performance — Reai Estate — Parol Contracts — Part Performance.
    On a bill by a daughter against her father for the specific performance of an oral contract to convey to plaintiff a house and lot, where the record shows that plaintiff has performed on her part, under authority of section 11979, 3 Comp. Laws 1915, the decree of the court below awarding specific performance' will be affirmed.
    See note in 8 L. R. A. (N. S.) 870.
    Appeal from Washtenaw; Sample, J.
    Submitted June 12, 1918.
    (Docket No. 96.)
    Decided July 18, 1918.
    Bill by Flora Fowler against Charles B. Isbell and another for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Floyd E. Daggett, for plaintiff.

      John P. Kirk, for defendants.
   Brooke, J.

Bill for specific performance. Plaintiff ■is the daughter of defendant. She is the mother of three children, all of whom are married. She lives with her husband. Defendant is 86 years of age, a widower, and has two children living besides plaintiff. He had lived for upwards of 50 years on a farm near Saline. Plaintiff and her husband resided in Ypsilanti. In June, 1911, he purchased a house and lot in Ypsilanti, paying therefor the sum of $3,500, and permitted the plaintiff and her family to go into possession thereof. The parties are in agreement upon the following facts: That defendant was to purchase and pay for the house in question; that plaintiff was to be permitted to occupy it, paying him five per cent, interest on the amount of the investment as well as taxes, insurance, and repairs. It is plaintiff’s contention that her father agreed to execute a deed of said premises to her to be, placed in escrow beyond the reach of either of them, but deliverable to her at his death. This defendant denies. He says he never agreed to deed the property to her, but that in the fall of 1911 he actually did make a deed from himself to her covering the premises and left it with a Mr. Curtis for delivery to her at his death. The deed remained on deposit at the Citizens’ Bank at Saline from September, 1911, until 1914 or 1915, when defendant called for it, secured possession of it and destroyed it. He had been rooming and boarding with his daughter for some time but finally such differences arose between them that he ceased to board with her although he continued to room in the house up to the time of the trial. After the destruction of the deed and in May, 1917, defendant sold the place on land contract to a Mr. Wilber for $4,700 and Mr. Wilber advertised it for sale. Speaking of this contract, defendant testified:

“It was not a bona fide contract, but he has paid enough to bind the bargain.”

At this time plaintiff had been in possession of the premises nearly six years, had expended several hundred dollars thereon for repairs and had paid taxes and insurance thereon in accordance with the agreement. She had likewise paid to her father the interest agreed upon until the trouble arose. The question presented is whether the defendant shall be compelled now to execute a deed to plaintiff to become operative at his death, conditioned upon her carrying out the contract so far as its terms impose duties or obligations upon her.

The learned circuit judge who heard and saw the witnesses entered a decree compelling defendant to execute said deed upon the condition that plaintiff pay to him five per cent, per annum upon the sum of $3,-500; that she keep the dwelling house insured in the name of the defendant in the sum of $2,500, and pay all taxes within 30 days and keep said dwelling house in good repair.

After a careful examination of this record we are disposed to conclude that the learned circuit judge reached a proper result. The statute, 3 Comp. Laws 1915, § 11979, authorizes specific performance in case there has been part performance of an oral agreement. We have no doubt that the agreement as recited by plaintiff and her witnesses was made and that there has been such performance on her part as to warrant the court in ordering specific performance thereof. Friend v. Smith, 191 Mich. 99, and cases cited therein.

The decree of the court below is in all things affirmed, but without costs.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


author: Steere, J.

text:
    CITY OF TRAVERSE CITY v. MICHIGAN RAILROAD COMMISSION.
    1. Telegraphs and Telephones — Common Carriers — Regulation —Michigan Railroad Commission.
    Under Act No. 206, Pub. Acts 1913 (2 Comp. Laws 1915, § 6689 et seq.), tbe status of telephone companies in this State is settled to be that of common carriers, and general control thereof is placed in the railroad commission, with power to make, alter, amend, or abolish any rate or charge for public service.
    2. Constitutional Law — Telephone Companies — Fixing Rates— Legislative Function.
    Exercising its legislative function over common carriers, the State may fix the rates or charges for public service by telephone companies.
    3. Same — Reasonable Rates — Judicial Function.
    The judicial function is limited to determining whether any particular rate fixed by. the legislature or its duly authorized agency is reasonable or otherwise.
    4. Same — Legislative Authority — Delegation—Railroad Commission — Municipal Corporations.
    It is competent for the legislature to delegate its control over, and power to regulate charges of, common carriers operating within the State to a board or commission created for that purpose, and, within the range of legitimate municipal purposes, to municipalities; but when such power is delegated to a municipal corporation by its charter it must be done in express terms.
    5. Municipal Corporations — Telephone Companies — Fixing ■ Rates — Power to Regulate Streets.
    Where no power is given a city by its charter in express terms to fix rates to be charged by telephone companies operating within its borders, such authority is not inferable from the conferred power to regulate and control the use of its streets by telegraph, telephone, and other companies referred to.

    6. Same — Constitutional Law — Common Carriers — Franchise Rights — Contracts—Authority oe State to Fix Rates.
    A franchise contract entered into between a city and a telephone company is but permissive, and though binding upon the parties to it, is to be construed as having been entered into with reference to the right and power of the government to assert and exercise its inherent, paramount authority to fix the rates.
    7. Telegraphs and Telephones — Common Carriers — Local Activity.
    Where a telephone company in its connected corporate activities as a eommon carrier is not confined to a city or its immediate environments in its relations with the general public, it is not to be treated as a strictly local municipal activity independent of State regulation and control.
    8. Constitutional Law — Common Carriers — State Control— Impairment oe Contracts.
    Act No. 206, Pub. Acts 1913, authorizing the railroad commission to fix the rates to be charged by telephone companies, and the exercise of that power by the commission, increasing the rate fixed in the franchise of a telephone company, held, not to be in violation of the State and Federal Constitutions prohibiting impairment of contract obligations.
    9. Same — Municipal Corporations — Telephone Companies — Franchise Contract.
    Sections'21 and 28, Art. 8, Const.-1909, held, not to affect the contract relations of a city and telephone company under a franchise granted and accepted before said Constitution was adopted; whatever rights the parties had under it as a permissive contract remaining.
    10. Same — State Control.
    Section 21, Art. 8, Const. 1909, giving cities the right to frame, adopt, and amend their charters and pass laws and ordinances relating to municipal concerns “subject to the Constitution and general laws of this State,” does not confer upon a city paramount authority to assume, against a State agency acting under a general law of the State, the power to regulate rates to be charged by a telephone company operating within the city.
    Appeal from Ingham; Wiest, J.
    Submitted June 19, 1918.
    (Docket No. 77.)
    Decided July 18, 1918.
    Bill by the city of Traverse City against the Michigan Railroad Commission and the Citizens’ Telephone Company to enjoin the fixing of telephone rates. From a decree for defendants, plaintiff appeals.
    Affirmed.

      Parm C. Gilbert, for plaintiff.

      Alex. J. Groesbeck, Attorney General, and Thomas G. Baillie, Assistant Attorney General, for defendant railroad commission.

      Philip H. Travis (Travis, Merrick, Warner & Johnson, of counsel), for defendant telephone company.

      See note in L. R. A. 1915C, 287.

   Steere, J.

This controversy involves the validity of an order by the Michigan railroad commission permitting the Michigan Telephone Company to charge and collect stated rates in excess of those specified in its franchise contract with plaintiff under which the telephone company had been operating. It is a continuation of the. differences between the municipality and public utility company reported in City of Traverse City v. Telephone Co., 195 Mich. 373, to which reference is made for a sufficient statement of the facts and relations of the parties up to the time that case was decided.

During the progress of that litigation it was the impression of the trial court that the questions involved more properly belonged in the first instance to the State railroad commission than to the court, intimating the propriety of initiatory steps being taken by application of one of the parties to that body, whose action in the premises was reviewable by the courts as provided by statute, but the suggestion was not acted upon by the litigants at that time and the case was pressed to a final hearing in this court.

After it had been decided in the lower court and was pending on appeal to this court, the Citizens’ Telephone Company applied to the railroad commission for authority to make increased charges, on the ground that existing rates were inadequate to produce reasonable returns on investment and cost of operation. The city filed written objections to the application with the railroad commission claiming that the rates were controlled by a contract between the parties. Hearings were had upon the application while the chancery suit between the parties was pending in this court, but on the suggestion of counsel the commission withheld final disposition of the matter until after this court handed down its opinion in the chancery case, when, in July, 1917, an order was made by the commission authorizing the Citizens’ Telephone Company to put into effect a new scale of rates for Traverse City, some of which were higher than those named in the ordinance contract, which had been the subject of litigation in ■ the chancery suit and held by this court to be a binding contract between the litigating parties as the case then stood in that record.

The city thereupon filed a bill in the Ingham county circuit court in chancery to enjoin proceedings under such order, claiming that the railroad commission had no power to make the same. Answers were duly filed and the case brought to a hearing which resulted in a decree dismissing plaintiff’s bill, and affirmance of the railroad commission’s order, from which plaintiff has taken an appeal to this court.

The grounds upon which plaintiff attacks the order are, as stated in counsel’s brief:

“The order of the Michigan railroad commission violates the terms of the franchise granted to the telephone company by the plaintiff city and accepted by the telephone company and under which the telephone company has always operated.
“The order of the Michigan railroad commission is ■ void as being without consideration and because it deprives the city of all control and regulation over the telephone company and takes the funds allowed under the new rates without consideration.
“The law under which the Michigan railroad commission claims authority to make this order is unconstitutional.
“The Citizens’ Telephone Company is now estopped from seeking to collect or charge rates different from those named in the franchise.
“The order violates our Constitution, particularly as being opposed to the home rule provisions thereof.”

Act No. 206, Pub. Acts 1913 (2 Comp. Laws 1915, § 6689 et seq.), under which the order in question was made, declares all persons, corporations and associations operating telephone lines or exchanges doing business in Michigan to be common carriers subject to all applicable laws regulating transportation of persons or property by railroad companies within the State. By it general control of all telephone lines and companies within the State is given to the Michigan railroad commission with ample powers, amongst which it is expressly authorized (section 6691),

“* * * to make, alter, amend or abolish any rate or charge for any service, and may regulate by rules or orders any service.or facility; and it shall likewise prescribe the standard of cohstruction and equipment that shall be maintained by any person, copartnership or corporation maintaining a physical connection between the lines and facilities of any such person, co-partnership or corporation, and the lines and facilities of any other person, copartnership or corporation.”

This act committing to the commission control of telephone lines and companies as common carriers is similar in plan and provisions to statutes of other States prescribing the powers granted to, proceedings before, and duties of, public utility commissions in matters over which they are given control. It closely follows and, in effect, is a revision with amplifications of Act No. 138, Pub. Acts 1911, which was under consideration and sustained to the extent questioned in Home Telephone Co. v. Railroad Commission, 174 Mich. 219, and in Re Briggs, 178 Mich. 28.

As indicated in the record of proceedings prior to this appeal and by plaintiff’s brief, the reasonableness of the schedule of rates allowed by the commission is not involved but, as stated by its counsel to the commission, plaintiff’s position is that the “rates are fixed by franchise” and the inquiry is limited to whether the commission possessed power to change the rates.

In City of Traverse City v. Telephone Co., supra, this court held that the telephone company was operating under an accepted franchise of the city which stood as a binding contract between the parties to it in the absence of the exercise of any paramount governmental authority, regardless of whether it was by absolute right of the parties to contract as to rates and inviolable or permissive only and subject to State control, it being said:

“Accepting it as permissive only, it remains valid between the parties until such time as the reserved State control is asserted and interposed against it. The statute conferring controlling powers upon the railroad commission does not of itself abrogate the contract.”

This but followed the equitable rule applied in City of Monroe v. Railway, 187 Mich. 364, which is well supported by decisions in other jurisdictions. Although it was there said “plaintiff was not given by its charter express power to regulate rates,” whether the contract was permissive only was not a controlling issue as the case then stood, but the State authority having been appealed to and since asserted in disregard of this contract, it becomes material to authoritatively determine its character in that particular.

The status of telephone companies, recognized at common law as analogous to common carriers, and sometimes held to be such, is settled in this State by the statute so classifying them. That the State may regulate charges of common carriers, and the power to fix the rates which they may charge the public for their services is a legislative and not a judicial function, is now elemental; the judicial function, or power of the courts, being limited to determining whether any particular rate fixed by the legislature or its duly authorized agency is reasonable or otherwise.

Neither the railroad commission nor the municipality had any rate-making power except that which the legislature might delegate to them to exercise as State agencies. There is no doubt that it is competent for the legislature to delegate its control'over and power to regulate charges of common carriers operating within the State to a board or commission created for that purpose, and, within the range of legitimate municipal purposes, to municipalities, but when such power is delegated to a municipal corporation by its charter it must be done in express terms. City of Jacksonville v. Telegraph Co., 57 Fla. 374; City of St. Louis v. Telephone Co., 96 Mo. 623. No power is given Traverse City by its charter in express terms to fix rates to be charged by telephone companies operating within its borders, nor is such authority inferable from the conferred power to regulate and control the use of its streets by telegraph, telephone, arid other companies referred to, and quoted so far as material, in City of Traverse City v. Telephone Co., supra. This subject will be found to have been so exhaustively discussed in its various aspects and the applicable rule so plainly declared in the above cases and those cited in them that it is sufficient here to state we need not go to the extent of many of those decisions to determine in the instant case that Traverse City was not given by its charter the power to regulate the rates to be charged by telephone companies, that the franchise contract upon which it relies was but permissive, and, though binding between the parties to it in the absence of governmental interposition, is to be construed as having been entered into with reference to the right and power of the government to assert and exercise its inherent, paramount authority. Home Telephone Co. v. City of Los Angeles, 211 U. S. 265; 28 Cyc. p. 724, where numerous authorities on the subject are cited.

This general principle is very plainly stated by Justice Day in the recent case of Milwaukee Electric R. Co. v. Railroad Com’n, 238 U. S. 174, as follows:

“No specific authority having been conferred on the city to enter into the contract in question, the right of the State to interfere whenever the public weal demanded was not abrogated. The contract remained valid between the parties to it until such time as the State saw fit to exercise its paramount authority, and no longer. To this extent and to this extent only, is the contract before us a valid subsisting obligation. It would be unreasonable to hold that by enacting section 1862, statutes of 1898, * * * the State intended to surrender its governmental power of fixing rates. That power was only suspended until such times as the State saw fit to act.”

In the case of Michigan State Telephone Co. v. Railroad Com’n, 193 Mich. 515, an order was granted by the commission on petition of certain citizens of Traverse City “who are said in their application to represent a large number of their fellow townsmen,” requiring this defendant Citizens’ State Telephone Company and the Michigan State Telephone Company to make physical connections. ' On review at the instance of the Michigan State Telephone Company.in the circuit court of - Wayne county the action of the commission was sustained, and the decree affirmed in this court.

Though not entirely in point upon the questions raised here, that case involved in certain particulars the constitutionality and scope of Act No. 206 of 1913, and makes clear that the Citizens’ Telephone Company, in its connected corporate activities as a common carrier, is not confined to Traverse City or its immediate environments nor in its relations with the general public to be treated as a strictly local municipal activity independent of State regulation and control. Along those lines the opinion of Justice Person is illuminating as to the authority, duties, right of interference and regulation vested in the commission as a State agency to meet the demands of public necessity and convenience under the paramount power of the State, touching to a greater or less extent many of the constitutional objections now raised by plaintiff. Although it is broadly charged in counsel’s brief that the law under which the commission claims authority to act is unconstitutional as a whole, the objections urged and questions raised are rather directed against the scope of the order claimed to violate the Constitution in certain specified particulars than against the constitutionality of the law itself in its entirety, which we regard as too well settled to demand discussion now.

Upon plaintiff’s claim of estoppel and contention that this order violates provisions of the State and Federal Constitutions which prohibit impairment of contract obligations, a case arose in the State of Georgia closely analogous in form and facts to the instant case. The city there sought by injunction to restrain putting in operation an order of the State railroad commission made upon application of a telephone company operating under a franchise from the city, accepted in writing, permitting it to charge rates in excess of those fixed by the franchise. As here, a statute of that State gave its railroad commission power to fix the rates to be charged by telephone companies for service within the State. It was there said:

“The granting of a franchise to a telephone company by an ordinance passed by the municipal authorities of a city, wherein it is provided that the company ‘agrees and binds itself by this ordinance that the rates charged shall be $1.50 per month for residence phones and $2.50 per month for business phones,’ and an acceptance of such franchise by the company, does not prevent the telephone company from increasing such charges, if permission to do so is subsequently granted it by the railroad commission; especially as it appears that the city was not specifically authorized by its charter, or other legislative enactment, to fix the charges to be made by telephone companies. * ,* * The order of the railroad commission does not violate the provisions of the State and Federal Constitutions, prohibiting the impairment of the obligations of contracts.” City of Dawson v. Telephone Co., 137 Ga. 62.

We are unable to follow plaintiff’s contention that the provisions of sections 21 and 28, article 8, of our last Constitution, of 1909, affect the relations of the city and telephone company as previously established. The franchise upon which plaintiff relies was granted, accepted and acted upon long before the present Constitution was adopted, and whatever rights the parties had under it as a permissive contract remain. City of Lansing v. Power Co., 183 Mich. 400. Neither do the questions raised here pertain to the control of streets but to control of rates to be charged the public by a common carrier doing business under a franchise. If those rates were subject to governmental control irrespective of a permissive contract they so continued, for the right of the State under its police power to regulate the charges to the public by common carrier does not depend upon or arise out of their use of or right to use the highways in cities or elsewhere.

Neither does the so-called “home rule” feature of our present Constitution (section 21, article 8) giving cities the right to frame, adopt, and amend their charters and pass all laws and ordinances relating to their municipal concerns, “subject to the Constitution and general laws of this State,” confer upon them, as an incident of a grant of power to frame a charter for city government, paramount authority to assume against a State agency, acting under a general law of the State, those powers which the State originally possessed and has reserved to itself in matters of general concern, for protecting the rights and regulating the duties of its citizens wherever located within its boundaries; and the power to regulate rates to be charged by common carriers is a matter of general concern which does not pertain solely to municipal affairs.

The scope of constitutional authority conferred on cities to frame charters for their own government is well outlined in City of St. Louis v. Telephone Co., supra, and State, ex rel. Garner, v. Telephone Co., 189 Mo. 83, both of which involved a question of rates which the cities claimed under their charters the right to fix and enforce.

The constitution of the State of Oregon contains a provision granting to the legal voters of every city power to enact and amend its charter, subject to the Constitution and criminal laws of the State, and forbids its legislature to amend and repeal municipal charters. Of this constitutional right of home rule it is said in Coleman v. La Grande, 73 Or. 521:

“By granting and reserving to the people of municipalities the power to enact and amend their charters- and adopt local or special laws, the State has not surrendered her sovereignty to the municipalities. Within their boundaries cities are clothed with power to regulate matters purely local. However, a city is not constituted as a sovereignty as regards all matters of legislation, but is still to a certain extent a mere agency of the State of which it is a part. Beyond such municipal boundaries and in matters of general concern not pertaining solely to local municipal affairs, cities are amenable to the general laws of the State, which do not infringe upon the right of cities to local self-government.”

In the recent case of the City of Woodburn v. Public Service Com’n, 82 Or. 114 (161 Pac. 391), the city of Woodburn contested the right of the State by its > public service commission to change the telephone rates which the common council had fixed in a franchise authorized by a provision of its charter adopted under the home rule section of the Sítate constitution. In a carefully considered opinion by Justice Harris, where a large number of leading cases upon the various questions involved are cited, it is said upon the contention that the local rates charged are purely a matter of local concern:

“It is true that the regulation of the rates for telephones in Woodburn may not immediately affect the pocket-books of all the people of the whole State any more than does the prosecution of a person in a justice court for assault and battery, when taken alone and by itself, directly affect all the people of the whole State, and yet the State is just as much interested in promoting the comfort and general welfare of all the people as in preserving peace for all the people. In these modern times, when the activities of public utilities are not always confined to a single city, the people are especially concerned in the retention of the right to adjust rates to changing conditions, so that no person may be discriminated against and all may receive adequate service at reasonable rates, and at the same time affording sufficient returns to the public utility. The State guards its right to regulate so vigilantly that specific authority is necessary to compel a surrender of this element of sovereignty and in the language of the Supreme Court of the United States: ‘The general powers of a municipality or of any other political subdivision of the State are not sufficient/ Citing Home Telephone Co. v. City of Los Angeles, 211 U. S. 265; Milwaukee Electric R. v. Railroad Com’n, 238 U. S. 174."

And in denying the relief asked the following conclusions are reached, which we think are well sustained by the authorities referred to and applicable in the instant case:

“The power of the State to regulate rates by compulsion is a police power, and must not be confused with the right of a city to exercise its contractual power to agree with a public service company upon the terms of a franchise. The exercise of a power to fix rates by agreement does not include or embrace any portion of the power to fix rates by compulsion. When Woodburn granted the franchise to the telephone company, the city exercised its municipal right to contract, and it may be assumed that the franchise was valid and binding upon both parties until such time as the State chose to speak; but the city entered into the contract subject to the reserved right of the State to employ its police power and compel a change of rates, and when the State did speak, the municipal power gave way to the sovereign power of the State: (Citing cases). The power to fix rates by compulsion as distinguished from the power to fix rates by agreement is not granted to cities or towns, nor is the right of the legislative assembly to legislate upon that subject curbed by Article 11, section 2, of the State constitution because in its essence it is neither a municipal power nor an incident to a pure municipal power, and therefore, * * * the legislative assembly was not prohibited from making the public utility act applicable to urban as well as extra-urban territory.»

The decree of the lower court will stand affirmed.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Fellows, J. Kuhn, J.

text:
    STREICHER v. STREICHER.
    1. Divorce — Desertion.
    In divorce proceedings by tbe husband, where the record shows that the wife, without justification, deserted him against his will, and persisted in such desertion for the statutory period, a case of wilful desertion is made out, entitling plaintiff to a decree.
    2. Same — Alimony—Allowance in Lieu of Dower — Nominal Sum — Statutes.
    Under section 11436, 3 Comp. Laws 1915, providing, when a decree of divorce is granted, for an allowance to the wife in lieu of dower in the property of the husband, held, that more than a nominal sum is called for, although the wife was guilty of the wrongdoing, but not a large amount where the parties lived together for only about six months, there is no child to be considered, and defendant in no way assisted in the accumulation of plaintiff’s property. Kuhn, J., dissenting.
    Appeal from Wayne; Collingwood, J., presiding.
    Submitted June 14, 1918.
    (Docket No. 78.)
    Decided July 18, 1918.
    Bill by August Streicher against Rachel Streicher for a divorce. From, a decree dismissing the bill, plaintiff appeals.
    Reversed, and decree entered for plaintiff.

      William Look (Allen P. Cox, of counsel), for plaintiff.

      Albert E. Sherman, for defendant.
   Fellows, J.

Plaintiff and defendant were married June 10, 1914. On New Year’s day following, defendant left the church where they were attending early mass, handing her husband the key to their home, and went to the home of her parents where she has since remained. However, a few days later she wrote him a letter in which she complained of his conduct towards her but offered to return if he would “act like a husband ought to.” Shortly thereafter he went to. her parents’ home to see her and then asked her to return to him. There is some conflict as to just what took place at this interview but it fairly appears that she refused to return to him unless he would be a different man. He insists, and it is undisputed, that he was and is a man of good habits, never drank or used tobacco and that he told her he could not make a different man of himself, and that he left her parents’ home without any assurance from her that she would return. Later she came to get some of the household furniture which he refused to give up, and in March following she brought an action of replevin for the same. This bill, charging desertion, was filed February 27, 1917. Defendant, in her answer, sets up the conduct of her husband justifying, as she claims, her return to her parents and her refusal to live with plaintiff, but asks no affirmative relief. The testimony was taken in open court and the bill dismissed. Plaintiff appeals.

A careful consideration of this record satisfies us that there existed no such genuine affection on the part of either of these parties for the other as would prompt the overlooking of -matters of difference that arose in the family. This husband appears to be willing to continue their matrimonial venture. The record discloses him to be a man of excellent habits, a good provider, and of an economical disposition; indeed, defendant insists that he was parsimonious. Defendant is a woman of exemplary character, prone to depend upon her mother and other relatives for advice. She properly discharged her household duties while living with plaintiff, but it is apparent that she was disappointed in the outcome of her marriage and. magnified slight inattentions of her husband until she satisfied herself, with the aid of her family advisors, that she had just cause for leaving and remaining away from him. This record does not satisfy us that she was justified in such desertion and does satisfy us that it was against the will of the plaintiff. She has persisted in such desertion for the statutory period, and we are satisfied that she had not during that period, and has not now, any intention of resuming her marital relations with her husband. While admissions of counsel do not make out a case in divorce proceedings, it is significant that at the beginning of the case defendant’s counsel frankly expressed the opinion “that a reconciliation is undoubtedly out of ' the question.” We are satisfied from the whole record that plaintiff has "made out a case of wilful desertion continued for the statutory period and is entitled to a decree of divorce.

Section 11486, 3 Comp. Laws 1915, provides:

“When any decree of divorce is hereafter granted in any of ’the courts of this State, it shall be the duty of the court granting such decree to include in it a provision in lieu of the dower of the wife in the property of the husband, and such provision shall be in full satisfaction of all claims that the wife may have in any property which the husband owns or may thereafter own, or in which he may have any interest.”

Upon the argument of the case it was most strenuously urged by counsel for plaintiff that we should allow only a nominal sum, sufficient to comply with the requirement of .the section quoted, and no more. But we are impressed that the case calls for more than a nominal allowance; at the same time it is not a case calling for a large amount of alimony. The parties lived together but a little over six months. There is no child to be considered. Defendant in no way assisted plaintiff in the accumulation of his property — all of it either came from his father or was earned by him before his marriage. He owned, when they were married, 10 acres, of land worth $150 per acre, and had $800 in cash. Some of this cash has been used since the marriage. He also has a one-fifth interest in a valuable farm left by his father, which is subject to the life use of his mother. Taking everything into consideration, we conclude that the plaintiff should pay the defendant $700 within 60 days from the settlement of the decree, the same to be in lieu of dower or any interest in plaintiff’s property; this sum to also include the amount allowed for attorney fee and costs in the court below. This sum to be a lien on plaintiff’s land until paid.

It follows that the decree of the court below is reversed, and one will be here entered in conformity with this opinion. No costs in this court will be allowed to either party.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, and Stone, JJ., concurred with Fellows, J.

Kuhn, J.

As we find the defendant guilty of wrongdoing and give relief based thereon, I do not think substantial alimony should be awarded to her. A nominal award of $1 in my opinion is sufficient to satisfy the statute.


author: Fellows, J.

text:
    BROWN v. WESTON-MOTT CO.
    Master and Servant — Workmen’s Compensation Act — Presenting Claim — Limitation oe Action.
    Claim for compensation under the workmen’s compensation act, not made until more than two years after the accident, is barred by section 15, pt. 2, of the act (section 5445, 2 Comp. Laws 1915), although the employer had actual knowledge of the accident and paid for an operation and all physician’s services.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted June 11, 1918.
    (Docket No. 85.)
    Decided July 18, 1918.
    Joseph R. Brown presented his claim for compensation against the Weston-Mott Company for injuries received in defendant’s employ. From an order awarding compensation, defendant and the Massachusetts Bonding & Insurance Company, insurer, bring certiorari.
    Reversed, and order vacated.

      Monaghan, Monaghan, O’Brien & Crowley, for appellants.

      James S. Parker and Clay W. Wilber, for appellee.
   Fellows, J.

November 9, 1914, a piece of steel accidentally entered the right eye of plaintiff, an employee of defendant Weston-Mott Company. February 3, 1917, he filed a claim for compensation. From the time of the accident to the time of the hearing before the arbitrators plaintiff had been constantly employed by the defendant, with the exception of a few days when first injured and about a month at the time his eye was operated on shortly before he made claim for compensation. At the time of the hearing his wages were more than when injured. It appeared, however, that he had practically lost the' use of the eye and had had a serious operation, which, together with all physician’s services, had been paid for by the defendants. The only questions therefore involved relate to compensation under section 10, part 2 of the act (2 Comp. Laws 1915, § 5440), and whether the claim for compensation was seasonably made. Defendants insisted before the arbitrators and the board that such claim, made more than two years after the accident, was barred by section 15, part 2, of the act (2 Comp. Laws 1915, § 5445). The industrial accident board awarded compensation, and this writ was allowed.

The defendant is correct in its contention. This court has fully considered and determined this question, holding as contended by defendant in the following cases: Cooke v. Furnace Co., 200 Mich. 192 (166 N. W. 1013); Kalucki v. Foundry Co., 200 Mich. 604 (166 N. W. 1011); Dane v. Traction Co., 200 Mich. 612 (166 N. W. 1017); Schild v. Railroad Co., 200 Mich. 614 (166 N. W. 1018); Peterson v. Fisher Body Co., 201 Mich. 529 (167 N. W. 987). It is due the board to state that the instant case was decided by it prior to the handing down of the cases cited.

But plaintiff’s counsel insists that the employer had full knowledge of the accident and the resultant injury; that he continued in its employ under its obser-' vation; and that he is required under the act to do no more than he has done. It is undoubtedly true that this record discloses such knowledge of the accident and injury by the employer as to justify, and, in fact, require the board to find that the employer had notice of the injury. But the section above cited requires not only notice of the injury but also claim for compensation, one to be given within three months and the other to be made within six months after the occurrence of the injury. We have recently held that the claim for compensation must be an unequivocal one. Baase v. Banner Coal Co., ante, 57 (167 N. W. 594). Upon this record there is no evidence that such a claim for compensation was made until February 3, 1917, more than two years after the injury.

The award must be vacated.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


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    PACHUCZYNSKI v. DETROIT UNITED RAILWAY.
    Carriers — Street Railways — Appeal and Error — New Trial— Weight of Evidence.
    In an action, by a passenger against a street railway company for personal injuries received in a collision between defendant’s street car and a locomotive, where the evidence was contradictory, the court below having declined to grant a new trial, held, the verdict was not manifestly against the clear weight of the evidence.
    Error to Wayne; Hally, J.
    Submitted June 4, 1918.
    (Docket No. 10.)
    Decided July 18, 1918.
    Case by Lukasz Pachuczynski against the Detroit United Railway and another for personal injuries. Judgment for plaintiff. Defendant railway brings error.
    Affirmed.

      Corliss, Leete & Moody and A. B. Hall, for appellant.

      Dohany & Dohany, for appellee.
   Fellows, J.

About five o’clock in the morning, February 2, 1915, a car of defendant Detroit United Railway collided with a locomotive of defendant Detroit, Grand Haven & Milwaukee Railway Company on Forest avenue, in the city of Detroit. Plaintiff claims to have been a passenger in the street car and -to have been seriously injured. He brought this suit against both companies. The jury exonerated the Detroit, Grand Haven & Milwaukee Railway Company from liability, but rendered a verdict against the Detroit United Railway for the sum of $1,000. It is not claimed that this amount is excessive if the plaintiff is entitled to recover, or that the- defendant Detroit United Railway was not negligent. The sole meritorious question being that the verdict is against the great weight of the evidence.

At the time of the accident the plaintiff resided in the extreme western part of the city. He claims that on the morning of the accident he arose at an early hour, went to the extreme eastern part of the city to see a man with reference to renting a house and was returning home when the accident occurred. He produced two witnesses, fellow countrymen, who testify to assisting him on the occasion of the accident, and who claim to have taken him to a doctor’s residence. He also produced the doctor who corroborated his and their testimony on this point, and who also testifies to his injuries and the subsequent treatment, and his condition! Plaintiff and his fellow countrymen seem to have given their testimony through an interpreter and there are some apparent inconsistencies in their testimony. Defendant produced witnesses who contradicted the plaintiff on material points. The trial court who saw and heard the witnesses declined to grant a new trial.

We are not persuaded that the plaintiff’s testimony is so highly improbable as to justify us in concluding that it is without foundation in fact, or that it is so weakened by inconsistencies as to render it unworthy of belief. It is corroborated by that of his two fellow countrymen, and the physician who claims to have treated him, all of whom appear from this record to be entirely disinterested.

If the testimony of plaintiff and the witnesses produced by him was believed by the jury — and the jury had a right to believe it — plaintiff made a case. The trial court, upon a motion for a new trial on the grounds here urged, determines in the first instance the question, and this court, upon such question being properly saved and presented for review, determines whether error was committed by the trial court on such grounds. But in the determination of the question in this court it must be 'borne in mind that this court is not the trier of the facts. We cannot invade the province of the jury. It must also be kept in mind that the trial judge heard and saw the witnesses, was in a position to judge of their credibility and their mental capacity; that the presumption that he correctly measured them must be considered, and that we may not set aside a verdict unless it is manifestly against the clear weight of the evidence. Muir v. Kalamazoo Corset Co., 155 Mich. 624; Krouse v. Railway, 170 Mich. 438; Rice v. City of Pontiac, 173 Mich. 41; Bosek v. Railway, 175 Mich. 8; Druck v. Antrim Lime Co., 177 Mich. 364; Morrison v. Carpenter, 179 Mich. 207; Darling v. Railway Co., 184 Mich. 607; Gardiner v. Courtright, 165 Mich. 54, and authorities there cited.

We are impressed from a careful examinatioñ of this record that the verdict is not manifestly against the clear weight of the evidence. It would profit no one to extend this opinion by a detailed statement of the testimony of each witness.

The judgment is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


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    JOHNSON v. BOARD OF SUPERVISORS OF IONIA COUNTY.
    1. Judgment — Issue Determined — Res Adjudicata.
    Where the issue was single and the pleadings disclosed but one issue, it will be assumed by the appellate court in another proceeding between the same parties that the case was determined upon the single issue made by the pleadings.
    2. Drains — Authority to Spread Tax — Statutes.
    Act No. 176, Pub. Acts 1915 (1 Comp. Laws 1915, § 4927), authorizing the board of supervisors to proceed to spread assessments for drain taxes on application of land owners does not apply to a tax held invalid in a proceeding in which the party now seeking to' enforce the same was a party.
    3. Mandamus — Writ of Right.
    Mandamus is not a writ of right, and will not issue to compel an unlawful act or to work an injustice.
    Certiorari to Ionia; Sharpe, J., presiding.
    Submitted June 18, 1918.
    (Calendar No. 28,245.)
    Decided July 18, 1918.

      Mandamus by Sven J. Johnson to compel the board of supervisors of Ionia county tp order a tax spread for the payment of a drain contract. From an order granting the writ, defendant brings certiorari.
    Reversed.

      Locke & Gemuend and F. C. Miller, for appellant.

      John Nichol, for appellee.
   Fellows, J.

The proceedings instituted for the purpose of cleaning out and straightening the “Campbell creek drain,” located in Ionia county, is not a stranger to this court. Nash v. Kenyon, 151 Mich. 152; Yeomans v. Board of Sup’rs of Ionia Co., 174 Mich. 451. A detailed statement of the proceedings prior to those leading up to the present case will be found in these cases and need not be here repeated. It will suffice to say that the present plaintiff is the Mr. Johnson referred to in the Nash Case as having contracted, for the sum of $266.40, to construct the section of the job theie referred to, and the same person referred to in the Youmans Case as having, with others, instituted unsuccessful mandamus proceedings in November, 1903, to compel the present defendant to spread the identical tax here involved. The former mandamus proceedings, which ended in the circuit court, are made a part of this record.

The plaintiff here asserts rights as the owner of lands assessed for said improvement, and as- grantor with covenants of warranty of other premises, which were also assessed for said improvement, and claims that such rights authorize him to proceed in accordance with the provisions of Act No. 176, Public Acts 1915 (1 Comp. Laws 1915, § 4927). After this act became effective plaintiff filed with the county clerk his application as required by the terms of the act. Pursuant to this application and the provisions of the act the county clerk presented to defendant a certified copy of the special assessment roll of the Campbell creek drain for the year 1902. Defendant refused to spread such special assessment and this proceeding in mandamus was instituted, resulting in the peremptory writ being allowed by the circuit court. This writ of certiorari was then issued by this court to bring up such proceedings.

In the mandamus case instituted by the present plaintiff and others in 1903, against the present defendant, it was sought to compel this defendant to spread the identical tax here involved in order that this plaintiff might be paid for the performance of his contract on the drain in question. He admits that one of his reasons for instituting this proceeding is to collect such pay. One would not be required to read between the lines to discover this. In that case, in answer to the order to show cause, the respondent there, defendant here, set up fully the proceedings it insisted were invalid, and specifically alleged eight reasons for such invalidity. The issue tendered by such answer, and the sole issue so tendered, was the invalidity of such proceedings. While it is true that where several issues are presented and a general judgment rendered, one who asserts that such judgment determines a particular issue has the burden of proving it (Hoffman v. Silverthorn, 137 Mich. 60), still, where the issue is single and the pleadings disclose but one issue, we must assume, at least in the absence of proof, that the case was determined upon the single issue made by the pleadings. This court so regarded such proceedings in the case of Yeomans v. Board of Sup’rs of Ionia Co., supra, and there stated:

“The same drain proceedings were in controversy, the same points raised, and the same alleged tax litigated as before us now; and, after full hearing, the side which Yeomans then represented prevailed, the application for mandamus being denied. No appeal was ever taken from said judgment, and it yet stands unreversed in that court, adjudicating invalid the proceedings upon which the order relator is seeking to collect is based.”

We must therefore, assume from an examination of the pleadings in that.case, which pleadings tendered but the one issue, that of the validity of the proceedings, that the court in there denying the writ of mandamus did so on the sole grounds there submitted to it, and that it has been determined between this plaintiff and this defendant that such drain proceedings were invalid.

Plaintiff relies upon the rights conferred upon him by the act of 1915. Does that act give to him the right which may be enforced by mandamus to compel the spreading of a tax which, in a proceeding between him and this defendant, the same parties, has been held invalid? We think not. We are not here dealing with a case where, in disregard of a plain ministerial duty, a public body has arrogated to itself the determination of the validity of the proceedings. Here we have a tax, held invalid many years ago, now sought to be enforced by the same person who was a party to the proceeding in which it was held invalid. The act in question does not contemplate and does not afford relief under such circumstances. The writ of mandamus is not a writ of right (Yeomans v. Board of Sup’rs of Ionia Co., supra), and will not issue to compel an unlawful act, or to work an injustice (Citizens’ Life Ins. Co. v. Com’r of Insurance, 128 Mich. 85; Board of Sup’rs of Cheboygan Co. v. Township of Mentor, 94 Mich. 386; Wooster v. Calhoun Circuit Judge, 150 Mich. 459). The levy and collection of this tax, something over $2,000, would compel those assessed to pay for an improvement, only a small portion of which was completed; and under the guise of removing a cloud on his title allow plaintiff to recover that which the circuit court of Ionia county-held in 1903 he was not entitled to recover.

It follows that the case must be reversed and the petition for mandamus denied. Defendant will recover costs of both courts.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


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    FOSTER v. RINZ.
    1. Trial — Credibility of Witnesses — Automobiles — Personal Injuries.
    In an action against a father and son for personal injuries to an infant received by being struck by an automobile owned and driven by the son who was In the father’s employ, where the son, who was called for cross-examination under the statute, gave inconsistent testimony as to whose orders he was obeying on the occasion of the accident, it was a question for the jury and not the court as to which of his statements was correct.
    2. Master and Servant — Automobiles—Negligence—Liability of Master.
    If a son while in the father’s employ was directed by the latter to convey his wife to a car, and while on his return to the father's place of business the accident occurred, the relation of master and servant existed and the father would he liable for the son’s negligence.

    3. Appeal and Error — New Trial — Review.
    In passing upon a motion for a new trial, it is only where the record discloses that the verdict was manifestly against the clear weight of the evidence that the appellate court is authorized to act.
    4. New Trial — Evidence—Weight of Evidence.
    The verdict being against the clear weight of the evidence, the court below was in error in denying the motion for a new trial.
    Error to Wayne; Collingwood, J., presiding.
    Submitted June 19, 1918.
    (Docket No. 92.)
    Decided July 18, 1918.
    Case by Seifert Foster, an infant, by Edward Foster, his next friend, and Edward Foster, individually, against Gustav A. Rinz, Sr., and Gustav A. Rinz, Jr., for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Eugene L. Miltersky and James A. Murtha (John H. Dohrman, of counsel), for appellants.

      McIntyre & Robinson, for appellees.

      See note in 10 L. R. A. (N. S.) 938.

   Fellows, J.

The infant plaintiff had verdict and judgment against both defendants for $5,000, the ad damnum of the declaration, for being struck by an automobile owned and operated by defendant Gustav A. Rinz, Junior. The adult plaintiff, father of the infant, had like verdict and judgment for $445, which appears to slightly exceed the amount claimed to have been expended by him, including his own loss of time, growing out of the accident to said infant. Both defendants bring the case here. We shall have occasion to state the pertinent facts as we proceed.

The only evidence connecting the senior defendant with liability was that drawn from the junior defendant when on the stand as an adverse witness called for cross-examination under the statute. From his testimony it appears that he was slightly upwards of 21 years of age at the time of the accident. At that time and for some time prior thereto, he was and had been in the employ of his father. The automobile was owned by the son and the license was in his name. Upon such cross-examination he testified that on the occasion of the accident he was returning from taking his mother to the car line to go down town. He first stated that he took her to the car line at her request; subsequently he stated that he did so at the request of the senior defendant; and later stated that he did so at his mother’s request, that his father did not request him so to do, and that he was confused or misunderstood the questions when he stated his father asked him to take the mother to the car line. Defendant insists that there was no testimony connecting the senior defendant with the accident, and that the junior defendant fully explained his mistake in giving his testimony. The record discloses that the testimony of this witness on this subject was not consistent with itself. Such being the case, the question was for the jury, not for the court as to which of his statements was correct. Lonier v. Savings Bank, 153 Mich. 253; B. F. Goodrich Rubber Co. v. Sewell Cushion Wheel Co., 196 Mich. 600. If the junior defendant, while in the employ of the senior defendant, was directed by him to convey Mrs. Rinz to the car line, and he did so and while on his return to his father’s place of business, and the place of his employment, ran over the infant plaintiff, the accident occurred while the relations of master and servant existed and the master (senior defendant) was liable. Houseman v. Karicofe, 201 Mich. 420. We think the testimony most favorable to the plaintiff — and we must view it in that light on a motion for a directed verdict — is susceptible of this construction and there was no error in the ruling of the court in this regard.

The defendants moved for a new trial on the ground that the verdict was grossly against the weight of the evidence and grossly excessive. This motion was refused, and error is assigned on such refusal. A careful examination of this record convinces us that this motion should have been granted. The province of this court, in passing upon a motion for a new trial, is well understood. It is only in cases where the verdict is manifestly against the clear weight of the evidence that we are authorized to act. Such is the case at bar. The plaintiffs produced no eyewitnesses to the accident. Some of the testimony introduced by the plaintiff, showing the position in the street of the infant plaintiff and the automobile after the accident would indicate, if unexplained, that the machine was being driven on the wrong side of the street. One of plaintiff’s witnesses testified that the infant plaintiff was on the sidewalk after the accident, but her testimony does not clearly show whether she meant the sidewalk proper or the cross-walk; another, in her direct examination, testifies that the infant plaintiff was struck on the sidewalk, but upon her cross-examination she admits she did not see the accident, and it is apparent that she was testifying to her conclusion alone. No witness called by plaintiffs testified that the machine was exceeding the statutory or ordinance limit of speed. The junior defendant was called as an adverse witness for cross-examination under the statute. His testimony is to the effect that he was driving at from 10 to 12 miles per hour, that the infant plaintiff ran into the street ahead of the machine, that he turned his machine in attempting to avoid the collision but the child ran in the same direction and he was unable to do so. Two witnesses who saw the accident and who appear to be entirely disinterested, corroborate this testimony. The infant plaintiff was six years old at the time of the trial. He appears to be an exceptionally bright boy. He seems to have clearly understood all that he was asked about and intelligently answered the questions put to him. He was interrogated by both his attorney and the attorney for the defendants, and to both of them he stated that he ran into the street without looking either way, although he had been cautioned by both his parents not to do so. He also states that he was struck in the street and pointed out on an exhibit about where the accident occurred. One cannot read this record without being overwhelmingly convinced that this was a mishap pure and simple, and that there was nothing done by the driver which caused the accident and nothing he could have done to have prevented it.

We are constrained to reverse the case with a new trial. Defendants will recover costs of this court.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


text:
    PETERSON v. PETERSON.
    Divorce — Aumoiít.
    Where both parties appealed from a decree in divorce proceedings awarding to the wife the home, owned by them by the entireties, where the evidence as to the value of the home and the property remaining to the husband was contradictory, but shows that the house is in need of immediate repairs, and additional furniture is required to enable the wife to derive an income by taking roomers, the decree will be amended by awarding her an additional $1,000.
    Cross-appeals from Washtenaw; Kinne, J.
    Submitted June 12, 1918.
    (Docket No. 66.)
    Decided July 18, 1918.

      Bill by George L. D. Peterson against Minnie R. Peterson for a divorce. Defendant filed a cross-bill asking for a divorce. From a decree for defendant on her cross-bill, both parties appeal.
    Modified and affirmed.

      Martin J. Cavanaugh and John P. Kirk, for plaintiff.

      Fred A. Baker (A. B. Hall, of counsel), for defendant.
   Fellows, J.

The parties to this case were married May 18, 1894, and have one child, a daughter, who was 20 years old at the time this bill was filed. The record discloses that they had but little means at the time of their marriage and that during their married life they accumulated some property, which will presently be more specifically referred to. Their home life seems to have been a contented one until another woman entered the life of this husband. The parties were then living together in Detroit, and divorce proceedings in the Wayne circuit resulted. A reconciliation seems to have been effected through the interposition of the daughter; but it was not permanent, and plaintiff claims to have taken up his residence at Ypsilanti in Washtenaw county, where he filed this bill charging defendant with acts amounting to extreme cruelty. The defendant answered claiming the benefit of a cross-bill. Upon the hearing the plaintiff introduced no proof to sustain his bill and decree passed for defendant upon the cross-bill. Both parties appeal, and the sole question here argued or considered by them is the amount of alimony awarded.

At the time of the separation the parties were living at 327 Lincoln avenue, Detroit. This property was owned by them as tenants by the entirety, and is variously estimated to be worth from $8,500 to $13,-000. It is incumbered for $3,000. The furniture does not appear to have been elaborate but was comfortable; the parties do not agree as to its value. It includes a piano given the daughter by her father upon her graduation after the separation. Some repairs are needed on the home and additional furniture required to enable defendant to take roomers, as she has been doing in one or two instances.

The plaintiff is a builder and contractor and owns 573 out of 600 shares of the G. L. D. Peterson Company, which company conducts the business. This company, according to its annual report, has $6,000 invested in real estate, $500 in personal property, and $106.90 in cash. As we read this record the real estate consists of encumbered property and interests in land contracts, and it is doubtful if plaintiff’s estimates of the value of these equities is far out of the way. In addition to plaintiff’s interest in the Lincoln avenue property and his interest in the company, he also owns an automobile, has a small place at an inland lake said to be worth $150, and some lots in Sandwich, Ontario.- These lots are not readily salable and are worth from $1,000 to $1,500. The company and plaintiff both owe some debts, a portion attributable to the business operations and some for the support of defendant. Due to war-time conditions, building operations are not extensive at the present time.

The decree of the court below awarded to the defendant the Lincoln avenue property, including the furniture, subject to the mortgage, the same to be in lieu of dower or other interest in plaintiff’s property, made an allowance for attorney’s fees and costs, and provided the necessary detail to effectuate its provisions. .The plaintiff insists that this decree is most inequitable. He insists that the Lincoln avenue property is worth $13,000; that the value of the property left for him, after the provision for the wife, has decreased, due to shrinkage in real estate values in Detroit, and his counsel, in the brief, has submitted a computation showing the value of the property given to defendant to be $11,000, while plaintiff, after payment of his debts will have less than $5,00t). On the other hand, defendant insists that the property given her is overvalued, while that of plaintiff is undervalued, and her counsel submits a computation showing that plaintiff’s property is worth approximately $9,-000, while the property going to defendant is worth much less. We cannot accept either .of these claims at par. The shrinkage in values of the real estate involved is general; it applies as well to the property awarded to one as to the other.

The allowance of alimony cannot be measured by a yard stick. Each case must be determined by its own peculiar facts. The learned circuit judge made a painstaking effort to work out an equitable division of the property these parties have together accumulated. In the main we are impressed he succeeded. But we think sufficient account was not taken of the fact that repairs on the Lincoln avenue property are imperatively needed, and that new furniture must be put into some of the rooms to make them available for roomers, the only remunerative use to which the house may be devoted. We are, therefore, constrained to add to the property decreed to the defendant the sum of $1,-000, which shall be a lien on plaintiff’s property. In all other regards the decree of the court below will be affirmed. The defendant will recover her costs in this court.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.


author: Bird, J.

text:
    THORNTON v. GRAND TRUNK-MILWAUKEE CAR FERRY CO.
    1. Master and Servant — Jurisdiction — Admiralty — Federal District Court.
    Under Art. 3, § 2, and Art. 1, § 8, of the Federal Constitution, and Judiciary Act of 1789, § 2, giving Congress paramount power to fix and determine the maritime law which shall prevail throughout the country, plaintiff’s claim for injuries received while working as a coal passer on an interstate car ferry on the Great Lakes falls within the admiralty jurisdiction of the United States district court.

      2. Same — Workmen’s Compensation Act — Statutes—Retroactive Effect — Jurisdiction.
    An amendment to the Federal judiciary act of 1789, saving to “claimants the rights and remedies under the workmen’s compensation law of any State,” was not applicable to plaintiff’s case which was commenced and determined by the industrial accident board before the amendment was passed, there being nothing in the law to indicate it was to be given a retroactive effect.
    See notes in L. R. A. 1916A, 23; L. R. A. 1917D, 80.
    Certiorari to Industrial Accident Board.
    Submitted January 11, 1918.
    (Docket No. 48.)
    Decided July 18, 1918.
    Thomas Thornton presented his claim for compensation against the Grand Trunk-Milwaukee Car Ferry Company for injuries received in defendant’s employ. From an order awarding compensation, defendant brings certiorari.
    Reversed.

      W. A. Geer and R. R. Weaver (H. Geer and W. K. Williams, of counsel), for appellant.

      Louis H. Osterhous, for appellee.
   Bird, J.

While plaintiff was engaged in his work as a “coal passer” on the car ferry “Milwaukee” he was struck in the eye by a piece of flying coal, resulting in an injury thereto, which later made it necessary to remove it. He filed his claim with the industrial accident board, and an award was made by the committee of arbitration, and afterwards approved and confirmed by the board.

From the stipulation of facts it appears:

(1) That defendant is a Wisconsin corporation, and filed its written acceptance of the Michigan compensation act on September 12, 1912.

(2) That defendant owns and operates the car ferries “Milwaukee” and “Grand Haven” between the ports of Milwaukee and Grand Haven, and is exclusively engaged in interstate commerce on the Great Lakes.

(3) That the accident occurred to plaintiff on the 8th day of January, 1917, while engaged in the course of his employment, just as the “Milwaukee” was leaving the port of Grand Haven, and at that time she was loaded with interstate freight.

The defendant takes the position that the award made by the industrial accident board is of no force because it had no jurisdiction in the premises for the reasons:

(1) That plaintiff was engaged in interstate commerce at the time he received his injury, and therefore his sole remedy is under the Federal employers’ liability act.

(2) That the accident having occurred while plaintiff was employed on the Great Lakes, his remedy, if he has one, must be pursued in the admiralty court.

When this case was first presented to this court we were of the opinion that the first objection was well taken and that the industrial accident board was without jurisdiction because the stipulated facts brought the case within the Federal employers’ liability act and in consequence was ruled by Carey v. Railway Co., 200 Mich. 12. Upon further consideration we are persuaded that the agreed facts bring it within the exclusive jurisdiction of the admiralty court and is ruled by Southern Pacific Co. v. Jensen, 244 U. S. 205.

This case holds, in effect, that under article 8, section 2, of the Federal Constitution, extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and article 1, section 8, conferring on congress power to make all laws which may be necessary and proper for executing the powers vested in the general government or in any of its departments or officers, congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. That congress, in the exercise of this power, has vested the district courts of the United States with exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction. Section 9, Judicature Act 1789 (1 U. S. Stat. 76, 77). Plaintiff’s contract of service with defendant is clearly a maritime contract and, therefore, we conclude must be litigated in the district court under the holding of this case. A like conclusion was reached by the Wisconsin court in the case of Neff v. Industrial Commission, 166 Wis. 126 (164 N. W. 845).

Congress, in conferring jurisdiction on the district courts saved “to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” Since the case of Southern Pacific Co. v. Jensen was decided, congress has amended this saving clause, adding thereto the following: “and to claimants -the rights and remedies under the workmen’s compensation law of any State.”

It is argued by counsel for plaintiff that this amendment saves the award made by the Michigan compensation board. Had this case been commenced after ■ttiis amendment took effect we should be inclined to agree with him. There is nothing, however, in the law which indicates that it is intended to have a retroactive effect. The case at bar was commenced and determined by the commission before the passage of this amendment. If we are to hold that the award may now be sustained we will be obliged to hold in effect that an award which had no validity when made, is given life by this amendment, subsequently passed. We think this is not permissible under the rules of construction. 36 Cyc. 1215; Bedier v. Fuller, 116 Mich. 126; Hall v. Perry, 72 Mich. 202; Wheatland v. Levering, 10 Gray (Mass.), 16.

The award must be set aside.

Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


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    CLARAGE v. LUPHRINGER.
    Injunction — Strikes—Picketing—Labor Unions.
    Where employees of plaintiff, a manufacturer, left his employ, went on a strike, and organized themselves into a picketing force, he was entitled to a perpetual injunction, although defendants were proceeding peacefully and without violence or threat of violence. (
    See notes in 4 L. R. A. (N. S.) 302; 50 L. R. A. (N. S.) 412.
    Appeal from Kalamazoo; Weimer, J.
    Submitted June 6, 1918.
    (Docket No. 62.)
    Decided July 18, 1918.
    Bill by Charles Clarage, doing business as the Clarage Fan Company, against John Luphringer, national organizer of the International Association of Maehiiists, and others to enjoin the picketing of plaintiffs premises. From a decree for plaintiff, defendants appeal.
    Affirmed.

      Harry C. Howard, for plaintiff.

      Mulholland & Hartmann and Claude S. Carney, for defendants.
   Brooke, J.

The plaintiff is a manufacturer employing about 200 men. On July 10, 1916, such employees as were members of Kalamazoo Local Number 843, International Association of Machinists (about 95 in number), left plaintiff’s employment and immediately organized themselves into' a picketing force. This force covered all approaches to plaintiff’s shop. ' Its purpose was to prevent all who were willing or desirous of working for the plaintiff from so doing. No violence was resorted to. The course followed proved so effective that plaintiff, on July 17th, filed his bill of complaint praying for an injunction. A temporary injunction was issued upon the filing of the bill and the picketing was thereafter discontinued. As a result all the strikers with a single exception returned to work for the plaintiff or secured employment in other shops. The case was heard in open court commencing February 15, 1917. At the conclusion of the hearing a decree was entered enjoining defendants among other things from “peacefully or otherwise picketing plaintiff’s plant.” The learned trial judge in his opinion said:

“Defendants produced no witnesses. There is no disputed questions of fact involved, and the usual features of a labor union in strike are presented except possibly violence and threats of violence.
“The allegations in the bill as to the combination and confederacy of the defendants and the picketing of the premises and plant, and the purpose of such combination and picketing are clearly established, except, as already noted, there is no evidence of violence or threats thereof.
“The only question presented for determination is, Is the plaintiff entitled to a perpetual injunction restraining the picketing of his premises by the defendants without violence or threats thereof?”

It is asserted by counsel for appellants that the principal question involved is that of enjoining the defendants from “peacefully or otherwise picketing plaintiff’s plant,” and it is said in argument:

“As a matter of fact picketing in and of itself is no more than one of the means of ascertaining those upon whom persuasion may be exercised advantageously to the object of the strikers. That was the object in this case, but if it is held to be unlawful for the strikers to adopt this obvious means of ascertaining upon whom persuasion may be effective it is a mere idle statement to say the right of persuasion exists. Picketing per se is no more harmful to an employer than a parade through the streets of a city where the plant is located or than a mass meeting to which employees were invited would be.
“All these things are resorted to for the purpose of securing converts to the cause of the strikers. If the paraders become violent and assault those who refuse to agree with them it becomes unlawful. The same should be true of picketing. It seems to us ridiculous to say that simply because an employee is approached within the neighborhood of a struck plant rather than at some place distant from the plant that he is subject to intimidation in one case and not in the other. There is no doubt that under the guise of picketing strikes may annoy and interfere with new men and by threats and menaces, as well as by physical assault, intimidate them, but it is the duress and not the persuasion that should be prohibited, and whether or not there has been duress or intimidation should be determined from the evidence and not from the fact merely that the persuasion was resorted to in one particular locality, or, in other words, that there was picketing.”

The question thus raised and discussed is not an open one in this State. See Beck v. Protective Union, 118 Mich. 497, and authorities there cited, as well as the later case, In re Langell, 178 Mich. 805.

Without approving of the language of the decree in haee verba, which we find unnecessary, the same is affirmed upon the point raised by the appeal, with costs.

Ostrander, C. J., and Bird, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


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    FLEMING v. FLEMING.
    1. Homesteads — Alienation — Husband and Wiee — Constitutional Law.
    An oral contract by a husband and wife agreeing to give a son one-half of their farm, which was also their homestead, in consideration of his moving upon the farm, working it, and caring for them until their death, was void, not being in writing and signed by the wife as required by section 2, Art. 14, Const.
    2. Same — Contracts—Wills.
    A will executed by the husband and wife to carry out. the terms of said oral contract was not such an instrument as complies with the constitutional requirement, it being ambulatory, and not partaking of the essentials of a contract, and being revocable at will.
    3. Same — Contracts—Part Performance — Equity.
    Where the contract was void and unenforceable because relating to a homestead, but the son had for 11 years performed his part of the contract, making permanent improvements, the court of equity will decree the margin1 above the homestead exemption to be subject to a lien for the value of his services together with any money or property he may have furnished, less the amount he may have received; the necessary farm tools bought to run the farm to belong equally to the' parties, and to be paid for equally by them.
    4. Same — Accounting.

      Held, an accounting under defendant’s cross-bill not justified by the testimony.
    Appeal from Barry; Smith, J.
    Submitted June 6, 1918.
    (Docket No. 50.)
    Decided July 19, 1918.
    Bill by Fred Fleming and another against John Fleming to enjoin an action of ejectment and for the specific performance of a land contract. From a decree for plaintiffs, defendant appeals.
    Reversed, and remanded.

      Thomas Sullivan and Colgrove & Potter, for plaintiffs.

      John M. Gould (Elmer N. Peters, of counsel), for defendant.
   Fellows, J.

As is quite common when cases of this character, involving family troubles, are submitted to courts for determination, a want of harmony appears in the testimony as well as in the relations of the parties. We do not find it necessary to state all the conflicting claims of the parties, but prefer to states the controlling facts which we find established on this record. In reaching our conclusions we are aided by. the findings of the trial judge, who heard and saw the witnesses and was well able to judge their credibility.

John Fleming, the defendant, and Arista his wife, were old residents of Carlton township in Barry county. They had three children: Charles, Fred, one of the plaintiffs, and Minnie. Charles married; he seems to have remained at home. Fred was a carpenter by trade; he married the plaintiff, Bertha, and after remaining a short time with his parents established a home of his own. Minnie, the remaining child, married a man named Vester. For a time Mr. Vester worked the Fleming farm; at the time of the hearing he lived in Hastings. Defendant owned 135 acres of land in Carlton township. For a time he engaged in mercantile pursuits but the venture was not successful. He deeded to Charles 55 acres of his farm land and took back a mortgage for $1,000, which seems to have been used to settle with his creditors. This conveyance to Charles, with the mortgage back, appears to have been regarded by all the family as giving to Charles his prospective share of his father’s estate. At about the time of this conveyance to Charles defendant placed the title to the remaining 80 acres in himself and Arista, as tenants by the entirety.

Charles died in 1904, leaving a widow and two children who lived with defendant and his wife until the re-marriage of the widow in 1912. Charles’ widow did nursing, and it is fairly to be inferred from the testimony that from her earnings and the proceeds of the 55 acres she furnished her share to the satisfaction of the old people. Soon after Charles’ death the mother began importuning plaintiff, Fred,. to move upon and work the home farm. We are satisfied that she was the active one in negotiating with Fred, but that all she did had the sanction and approval of defendant. She impressed on Fred that he was the only son left and that it was his duty to come with them in their declining years. He at that time was following his trade, doing other work, and maintaining his home not far from the old home, and her visits were frequent and her importunities insistent. Mr. Vester worked the farm for the first year after Charles’ death. We are satisfied that the trial court correctly found that as an ultimate result of these negotiations, covering about a year’s time, the parties agreed as contended by plaintiff, that he should give up his own home, move upon the old homestead, work it during the remainder of their lives, that both families should be cared for on the farm, the taxes and interest on a mortgage of a thousand dollars outstanding should be paid, and the balance, if any, was to be divided equally; and that upon the death of the parents Fred was to have one-half of the farm and the other half was to go to the daughter, Mrs. Vester. Defendant under the arrangement was to have a garden patch and was not required to do any work on the farm, unless he desired. We are further satisfied that it was originally agreed that defendant was to furnish the necessary teams and tools, but that it was later agreed that such new tools as it might be necessary to purchase should be paid for out of the proceeds of the farm. ,

Pursuant to this arrangement the plaintiffs gave up their home and Fred his trade, and in the spring of 1905 they moved upon the place. The father and mother, with Charles’ widow and children, occupied one part of the house and plaintiffs’ family the other, until after the death of Arista in the fall of 1912, and the marriage of Charles’ widow. After the death of" the mother, defendant lived with the family of the plaintiff. During the lifetime of Arista she and her husband executed a joint will giving Fred one-half, their property and the daughter, Minnie, the other half. We are satisfied that during all these years plaintiff fully carried out his contract. There was an occasional unpleasantness, such as might be expected. Defendant seems to possess some temper, and of late has on occasion failed to successfully curb it.

In February, 1916, defendant asked plaintiffs to fix up some things for him as he was going to Hastings to stay with his daughter, Mrs. Vester, for three weeks and take treatment with a Hastings doctor. After he had been at his daughter’s a short time he caused a notice to quit the premises to be served on plaintiffs. Negotiations between the parties proved fruitless, and this bill praying for the specific performance of the contract was filed. From a decree for such specific performance, and fixing the rights of the parties in the future defendant appeals.

The decree entered in the court below afforded an equitable solution of this unfortunate family trouble. But for insuperable legal objections we would be inclined to affirm it. The premises in question, however, were, at the time of the making of the contract, the home of defendant and his wife; they continued such home during the succeeding years of. her life. The constitutional homestead had never been admeasured and the contract was for an undivided one-half of the whole farm, including the homestead. In section 2, article 14, of the Constitution of the. State, is found the following provision with reference to the homestead :

“But such mortgage or other alienation of such land by the owner thereof, if a married man, shall not be valid without the signature of his wife to the same.”

The contract in the instant case, a verbal one, was in effect a contract for the conveyance of land including the homestead of the vendors; the payment was. to be made in a. certain way. To square with the constitutional provision a contract to convey the homestead must be in writing and signed by both husband and wife. Our authorities are numerous on this subject. The early case of Ring v. Burt, 17 Mich. 465, is quite in point. In that case one Ira -Ring, husband of complainant, made a verbal agreement with defendant Daniel Burt, whereby the defendant agreed to move upon the premises, which were the homestead and which were worth slightly in excess of the amount of the exemption, and was to care for the old people the balance of their lives and have the property. Burt went upon the premises and performed his part of the contract with the knowledge and consent of the wife, and with her knowledge the husband delivered a deed to the daughter of Burt; which deed, however, she did not sign. It was held that the deed was void. We quote from the syllabus:

“A widow is not bound by a verbal contract, made by her husband, in his life time, by which his homestead was to be conveyed to a third person, in consideration of the support of himself and wife during their life time. And this is so, even though she assented to the contract, and the husband gave a deed in accordance with it, but which was not executed by her.”

A contract, without the wife’s signature, to convey a homestead is not voidable merely but is wholly void. Phillips v. Stauch, 20 Mich. 369; Hall v. Loomis, 63 Mich. 709. See, also, Webster v. Warner, 119 Mich. 461; Lott v. Lott, 146 Mich. 580; Klett v. Klett, 175 Mich. 224. The equities in the instant case are strongly with the plaintiffs; strong equities have existed in many of the cases cited. But strong equities cannot break down the constitutional barriers placed around the homestead.

The will executed by the defendant and his wife was not such, an instrument as complies with the constitutional requirement under consideration. Grindling v. Rehyl, 149 Mich. 641; Gould v. Mansfield, 103 Mass. 408. It is ambulatory, and did not partake of the essentials of a contract, and was revocable at will.

While the plaintiffs are not entitled to a decree for specific performance of this void contract, they are not without remedy, and their rights may be protected in this proceeding. Klett v. Klett, supra. Upwards of 11 years of their lives had been given before the filing of this bill to the faithful performance of a contract which they expected and had a right to expect would be equally faithfully carried out by this defendant. During that time permanent improvements have been made by plaintiff Fred on the premises in question. Since the death of defendant’s wife they have cared for him in their own home in the good faith expectation that one-half of the home farm would be theirs at his death. They must not be turned from a court of equity empty handed. That they have performed services for the defendant of greater value than they have received this record discloses, but how much greater in dollars and cents we cannot determine from the testimony before us. The farm consists of 80 acres; the record discloses it to be worth $6,000; there is a margin above the exemption of $4,500. The practice adopted in Klett v. Klett, supra, will be here followed. Defendant may, within 30 days, elect his exemption. If the parties do not agree upon the amount of land to go with the buildings it may be admeasured by commissioners to be appointed by the court. The plaintiffs will be allowed the value of the services they have performed, together with any money or property furnished from the date of the contract to the date of the decree, less the amount they have received. The necessary new tools bought to run the farm belong equally to the parties, and should be paid for equally by them. There is some testimony in the record from which it might be inferred that unnecessary tools have been put on the place. The trial judge will determine this question and adjust the amount on the basis of necessary farm implements and no others. When the amount due the plaintiff shall be determined by the court below a decree shall be there entered, fixing the same as a lien upon the premises outside the homestead and' directing a sale conformable as near as may be to mortgage foreclosure sales. In the meantime defendant will be enjoined from incumbering or selling said premises.

Defendant, by way of cross-bill in his answer, asked for an accounting. There is no testimony justifying an accounting in his favor, and his cross-bill will be dismissed. He holds the note of plaintiff Fred; the amount due on this note may be off-set against plaintiff’s claim.

The decree of the court below will be reversed and the case remanded for proceedings not inconsistent with this opinion. Defendant will recover costs of this court.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred.