author: Mooee, J.

text:
    PEOPLE v. McGLAUGHLIN.
    1. Constitutional Law — Title of Act — Marriage — Civil License.
    Act No. 128, Pub. Acts 1887, as amended by Act No. 256, Pub. Acts 1889 (3 How. Stat. § 6222a et seq.), entitled “An act for the requiring of a civil license in order to marry, and the due registration of the same, and to provide a penalty for the violation of the provisions of the same,” does not conflict with section 20, art. 4, of the Constitution, providing that “no law shall embrace more than one object, which shall be expressed in its title,” — the several provisions of the act, including that of section 6, which makes it a misdemeanor to join parties in marriage unless a proper license is delivered, being germane to the object expressed in the title.
    2. Same — Criminal Prosecution — Defenses.
    Upon a prosecution for a violation of said section, it is no defense that one of the parties was under a legal disability to enter into the marriage relation.
    Exceptions before judgment from Berrien; Coolidge, J.
    Submitted January 31, 1896.
    Decided March 3, 1896.
    Daniel J. McGlaughlin was convicted of performing a marriage ceremony without having received from the parties the license required by law.
    Conviction affirmed.

      Richard Price, for appellant.

      N. A. Hamilton, Prosecuting Attorney, for the .people.
   Mooee, J.

The respondent is a clergyman, who, on the 26th day of February, 1895, performed a marriage ceremony between James F. McNamar and Emma Nagle. At the time of such ceremony, James McNamar had a former wife living, and was afterwards convicted of bigamy in the circuit court of Berrien county, and sentenced to the state prison. At the time of such ceremony, McNamar represented to the respondent that he had applied for and procured a license to marry from the county clerk, and that the same was on its way in the mail. As a matter of fact, he had made no such application, and no license was issued to him by the county clerk. Neither of the parties to said marriage procured the license provided for by sections 6222a-6222/c, inclusive, of 3 How. Stat. The respondent was complained against for a violation of the provisions of Act No. 128, Pub. Acts 1887, as amended, in performing this ceremony under the circumstances stated, was tried, and found guilty. He brings the case here on a bill of exceptions.

The first assignment of error reads:

“The complaint and warrant filed against respondent are defective, and do not charge him with an offense under the laws of this State; the act upon which they are based being unconstitutional and void—
“1. Because it does not comply with section 20 of article 4 of the Constitution of Michigan, in that it embraces more than one object, and the same are not expressed in its title.
“2. Because said act embraces more than one object.
“3. Because the title of said act does not express its object.
“4. Because that portion of said act with the violation of which respondent is charged is not expressed in the title of said act.”

Section 20, art. 4, of the Constitution, provides: “No law shall embrace more than one object, which shall be expressed in its title.” The title of the act in question reads: “An act for the requiring of a civil license in order to marry, and the due registration of the same, and to provide a penalty for the violation of the provisions of the samé.” We think this title is broad enough to cover all the provisions of the act, and that its provisions are all germane to the object expressed in its title. People v. Mahaney, 13 Mich. 494; Kurtz v. People, 33 Mich. 279; Hall v. Judge of Superior Court, 88 Mich. 438; Canal Street Gravel-Road Co. v. Paas, 95 Mich. 378; Van Husan v. Heames, 96 Mich. 507; Bissell v. Heath, 98 Mich. 476; People v. Kelly, 99 Mich. 83; City of Grand Rapids v. Judge of Superior Court, 102 Mich. 321.

It is urged that what was done by respondent is not an offense in the law; that, as it was charged, in the complaint and warrant, “that he did join together in marriage James F. McNamar and Emma Nagle, they nor either of them having delivered to him a properly issued license,” etc., and as the marriage ceremony performed by the respondent did not result in a legal marriage, because of the disability of McNamar to enter into the marriage relation, what was done was simply an idle ceremony, of which the law will take no notice. This is, in effect, saying that, if he had joined in marriage, without a license, two persons who were legally qualified to marry, he would be guilty, but that, if he joined in marriage, without a license, two persons who could not legally marry, because of the disability of one of them, he would not be guilty. One of the objects of the law was to prevent the perpetration of fraud upon innocent persons by others of evil design leading them into the marriage relation, supposing it to be legal, when in fact it was void. To give the statute such a construction as counsel urge would be to defeat its purpose. The same course of reasoning would have prevented the conviction of McNamar of the offense of bigamy. According to counsel, the ceremony between McNamar and Miss Nagle was an idle ceremony. He did not marry her, and therefore cannot be convicted. It is only necessary to state these propositions to show how illogical they are.

The judgment is affirmed..

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    RYAN v. WAYSON.
    1. Conditional Sale — Default—Right of Possession.
    A contract for the sale of a stock of goods provided that title should remain in the vendor until the whole of the purchase price should be paid, but that the vendee should have the right of possession of the goods, with the right to sell the same at retail, subject to the provision that the stock should not at any time be reduced below a certain amount. Held, that upon the failure of the vendee to make the payments provided for by the contract, or in case of the reduction of the stock below the specified value, the vendor was entitled to the possession of the goods, although there was no express provision to that effect.
    2. Same — Replevin—Judgment.
    In replevin by the vendor under such a contract, a judgment in favor of the vendee for the excess of the value of the goods over the unpaid purchase price is unauthorized, since the vendee has no special interest in the goods, even if entitled to treat the contract as rescinded, but at most a personal claim against the vendor.
    Error to Wayne; Donovan, J.
    Submitted January 10, 1896.
    Decided March 3, 1896.
    Replevin by Hugh R. Ryan against Samuel W. Way-son. Both parties bring error.
    Judgment modified.

      Brennan, Donnelly & Van DeMarJe, for plaintiff.

      Harlow P. Davock and E. F. Bacon, for defendant.
   Hooker, J.

It appears from the undisputed facts that on the 14th day of September, 1893, the defendant purchased from the plaintiff a stock of goods in the city of Detroit for an agreed consideration of $2,525. At the time of the purchase defendant paid all but $1,200 of the purchase price, the balance of which was to be paid at the rate of $100 per month, with interest at 7 per cent, per annum, the first payment to be made on the 14th day of October, 1893; but none of the balance of $1,200 was paid by defendant. At the time of the purchase a written contract of sale was drawn up and executed by 'the parties. Defendant failed to keep up his payments, and, after several interviews between the parties, an arrangement was made that one Ziegler should be placed in the store to look after plaintiff’s interests, and to see that the stock was not allowed to be depreciated below the sum of $2,000, as provided in the contract. A few days after Ziegler was put into the store, plaintiff went there while the defendant and his other clerks were at dinner, and, together with Ziegler, took possession of the stock, and locked up the store, keeping defendant and his employés out of the store. That night Mr. "Wayson’s clerks again obtained possession of the store, and on the following morning, January 13, 1894, plaintiff sued out a writ of replevin, and took the goods. The case was tried before a jury, and they rendered a verdict in which they found that the value of the stock at the time it was replevied was $2,272; that the plaintiff had a claim against said stock for unpaid purchase money of $1,200 and interest, amounting to $1,272; and that the defendant had an interest in the property of $1,000. Upon this verdict a judgment was rendered finding that the defendant unlawfully detained the goods, that the plaintiff had a lien upon the goods for the sum of $1,272, and that defendant had a special property in the goods in the amount of $1,000; also finding that the plaintiff had recovered the goods on his writ, and adjudging that the plaintiff recover from the defendant the sum of six cents damages and costs to be taxed, and that defendant recover from plaintiff the snm of $1,000, the amount of his special property as found by the jury. The plaintiff and defendant joined in settling the bill of exceptions, and writs of error were taken out by each.

It will be observed that the effect of this is to cancel the defendant’s debt, and creaté one of $1,000 against the plaintiff. The contract made by the parties contained the following provisions:

“And it is further especially agreed between the parties hereto that the title of said stock of hardware and fixtures shall be and remain in the said Hugh R. Ryan until the whole of said purchase price is paid as herein provided. It is further agreed that the said Samuel W. Wayson shall have the right of possession of said stock of hardware and fixtures, and may sell the same at ordinary retail price: Provided, that said stock and fixtures shall not at any time be reduced below the sum of two thousand dollars.”

The defendant contended that the plaintiff had no right to the possession of the goods, for the reason that the contract gave the right of possession to the defendant, and contained no provision that the plaintiff might take them into his custody. The circuit judge held otherwise, and in this, we think, he was right. The defendant was in arrears $300, and, by the terms of the contract, the title to the stock was in the plaintiff until the whole purchase price should be paid. The right of possession was given to the defendant, but this must be held to be limited to the period that he should not be in default. A failure to pay according to the terms of the contract, or a reduction of the stock below $2,000 in value, would justify the' plaintiff in taking possession. Wiggins v. Snow, 89 Mich. 477. We find nothing in the record showing a waiver of this right or an extension of the time of payment. Ziegler was put in the store by agreement, to see that the stock was not unduly reduced; but there was nothing to imply that the plaintiff relinquished his right to take possession in case of a breach of the contract by the defendant. We think, therefore, that the defendant has no reason to complain of the judgment. The plaintiff was the owner of these goods, and, under the facts found by the jury, was entitled to the possession of them at the time they were replevied.

The circuit judge permitted the jury to find that both the vendor and vendee had special interests in or liens upon the goods, and, as the plaintiff had taken possession, the amount of the interest of each was fixed by deducting the amount of the defendant’s debt remaining unpaid from the value of the goods as found by the jury, and defendant given a judgment against the plaintiff for the remainder ; in other words, the defendant was permitted to sell the goods to the plaintiff for such price as the jury might see fit to give him, by applying section 8342 of 2 Howell’s Annotated Statutes. There is nothing to indicate that the defendant had a special interest in or lien upon those goods. He had a right to purchase them by making payment according to the contract. If, as seems to be claimed, he had a right to treat the contract as rescinded, he would certainly have no interest in the property, and at most might have a personal claim against the plaintiff for the amount paid. If there was any opportunity to find that the defendant was general owner of the goods, subject to plaintiff’s lien, the latter ought not to be compelled to take the goods at a value to be fixed, and submit to a judgment in defendant’s favor for the remainder, after deducting the amount of the unpaid purchase money. Thirlby v. Rainbow, 93 Mich. 164; Olin v. Lockwood, 102 Mich. 444; Farrah v. Bursley, 100 Mich. 547; Tufts v. D’Arcambal, 85 Mich. 185. Upon the undisputed facts and the findings of the jury, the court should have entered a judgment for the plaintiff, with damages assessed at six cents. The cause will be remanded, with direction to vacate the judgment heretofore entered, and to enter a new judgment as above stated. The plaintiff will recover costs.

The other Justices concurred.


author: Montgomery, J.

text:
    BURT v. BOARD OF SUPERVISORS OF IRON CO.
    1. Public Officers — Removal of Superintendents of Poor-Record on Certiorari.
    Wliere, on certiorari by the superintendents of the poor of a county to review the action of the board of supervisors in removing them from office, the return of the board shows that, by mutual consent, the making of a record of the testimony in the case was dispensed with, the plaintiffs are not in position to complain that the evidence is not returned, nor can the court assume that it was insufficient.
    3. Same — Sufficiency of Charges.
    The petition for the removal of the plaintiffs charged them with having audited and allowed their own bills for individual services performed by them, with having issued warrants on the county treasurer in their own favor in excess of the compensation allowed them by the board of supervisors, and of the amounts justly due them, as fixed by the board or the statutes, and with having used the credit of the county in procuring livery rigs for their own use, and with having audited bills for the same, and drawn warrants on the county treasurer for their payment. The charges were amplified by a bill of particulars setting up the amounts of the items claimed to have been improperly allowed, with the date of allowance and the name of the person to whom allowed. Held, that the charges, as thus limited, were sufficiently specific.
    3. Same — Inoompetency.
    Under the statute (1 How. Stat. § 483, subd. 17), it is not essential to the validity of a removal of such officers for incompetency that the action taken should be based upon specific charges.

      Certiorari by John Burt and Christopher T. Roberts to review the action of the board of supervisors of Iron county in removing plaintiffs from their offices as superintendents of the poor.
    Submitted January 10, 1896.
    Writ quashed March 3, 1896.

      Handy & Abbott, for plaintiffs.

      M. H. Moriarty, Prosecuting Attorney, for defendant.
   Montgomery, J.

This is certiorari to review the action of the board in removing the. plaintiffs in certiorari from office as superintendents of the poor. In the brief filed on behalf of the plaintiffs in certiorari it is conceded that the meeting of the board at which the action was taken was regular, that notice of the hearing was properly given, and a copy of the charges duly served. The errors relied on are — First, the insufficiency of the charges; and, second, the insufficiency of the evidence.

As to the latter objection, it will suffice to say that the evidence is not returned, and that the return of the proceedings by the clerk of the board shows that, by mutual consent, the making of a record of the testimony in the case was dispensed with. Under these circumstances, the respondents are not in position to complain that the evidence is not returned, nor can we assume that it is insufficient. McGregor v. Gladwin Co. Supervisors, 37 Mich. 390.

The petition for removal was in general terms, and charged:

“1. That the superintendents of the poor have audited and allowed their own bills for individual services performed by them in and about the care and management of the poor of said county.
‘ ‘ 2. That they have issued warrants drawn on the county treasurer in favor of themselves, in excess of the compensation allowed them by the board of supervisors of said county, and in excess of the amounts justly due them, as fixed by said board or the statutes of the State of Michigan.
“3. That they have been directly interested in contracts made with the county of Iron in and about the management of the poor, for the sale of wood and other materials purchased by them for the use of the county, and in the rental of buildings hired by them for the use of the said county, and have audited and allowed bills, and drawn their warrants on the treasurer of said county to their own order in payment of the same.
‘ ‘ 4. That they have drawn warrants upon the county treasurer of said county in excess of the amount appropriated by the board of supervisors of the said county for the support of the poor of said county.
“5. That they have used the county’s credit in procuring livery rigs for their own use, and have audited and allowed Mils, and drawn warrants upon the county treasurer of said county in payment of the same.
“6. That the county poor fund is now overdrawn by them, in the sum $23,000, on account of their extravagance and incompetency to properly and economically discharge the duties of the office of superintendents of the poor, to which they have been appointed.”

On appearing before the board, the respondents moved to dismiss the proceedings, on the ground that the charges were not sufficiently specific, and, on this motion being denied, demanded a bill of particulars, which was furnished, as follows:

“You will please to take notice that the following is a bill of particulars of the charges preferred against the superintendents of the poor, as near as your petitioner can furnish the same:
1895.
January 2. To Frank Raher, transportation, mileage, etc., audited and allowed__________________ $23 00
January 2. To Frank Raher, allowed.............. 8 00
February 1. To Frank Raher, for time, mileage,
etc--------------------------------------------- 45 00
February 1. To Frank Raher, to board of Champion-........................................... 8 00
March 1. To Frank Raher, services, mileage, etc... 39 00
April 1. To Frank Raher, for bill rendered-........ 7 55
April 1. To Frank Raher, for bill rendered_________ 5 65
April 1. To Frank Raher, mileage and services____ 14 80
April 1. To Frank Raher, to services as fixed by county board-.................................. 100'00
1895.
May 3. To Frank Raher, time and mileage for
April------------------------------------------- $39 00
January 2. To John Burt, mileage, services, etc... 22 00
March 1. To John Burt, mileage, etc.............. 15 00
April 1. To John Burt, to services and mileage---- 15 00
April 1. To C. T. Roberts, to 4 months’ services---- 133 33
April 1. To C. T. Roberts, to services as secretary.. 66 66
“ Said board used the credit of the county, as shown by their records, for livery rigs, as follows:
January 2. To A. J. Boyington, livery............. 4 00
February 1. To A. J. Boyington, livery............ 5 00
April 1. To A. J. Boyington, livery................ 13 00
May 3. To A. J. Boyington, livery................. 6 25
• ‘ Which hills were audited and allowed by the superintendents of the poor at their meetings held on the dates herein mentioned.”

Respondents then moved that the proceedings be quashed, except as to the fifth charge, “that being the only charge in which said hill of particulars is in any way clear.” This motion was denied, and the board proceeded to take testimony, and, at the conclusion thereof, and after hearing arguments by counsel, passed a resolution embodying the following:

“Be it therefore resolved by the board of supervisors of said county of Iron, that it is the opinion of this board, sitting in judgment in said cause, on this 9th day of July, A. D. 1895, and it does, by the adoption of this resolution, find, that the charges set forth in the petition of said M. H. Moriarty are true; and that the said Christopher T. Roberts and John Burt are wholly incompetent to perform and transact the duties of the office of superintendents of the poor of said county of Iron, and unfit to longer hold the said office of superintendents of the poor to which they were appointed; and that the said Christopher T. Roberts and John Burt he, and they each are hereby, removed from the office of superintendents of the poor of the county of Iron, and that the office of said Christopher T. Roberts and John Burt, and each of them, be, and is hereby, declared vacant.”

The board of superintendents of the poor consisted of the two respondents and Frank Raher.

While the proceeding for removal is quasi judicial, and while it is well settled that the officer is entitled to notice of the charges, and that such charges must be sufficiently specific to apprise him of what he is to meet, yet the technical rules of pleading are not to be applied. Throop, Pub. Off. § 398. We think the charges, as limited by the bill of particulars, were sufficiently specific, and apprised the respondents of the' items which it is charged that the board improperly allowed to themselves. This proceeding was had under paragraph 17, § 483, 1 How. Stat., and it is held, in Trainor v. Board of Auditors, 89 Mich. 169, that, on removal for incompetency, it is not essential to the validity of a removal under this section that specific charges be made. In any view, we think the respondents had no ground of complaint.

The writ will be quashed, with costs against plaintiffs in certiorari.

The other Justices concurred.


author: Hooker, J. Per Curiam.

text:
    PEOPLE v. SMITH.

    1. Constitutional Law — Police Power — Protection of PLOYÉS. Em-
    The State, in the exercise of its police power, may scribe reasonable regulations for the protection of employés, notwithstanding the latter, as between themselves and their employer, may have assumed the risk of the injuries sought to be averted. pre-
    2. Same — Right of Private Property.
    The constitutional right of the citizen to use his property without regulation is plain, unless the public welfare requires that such use be regulated. But if the public welfare does require it, the private right must yield to the public exigency.
    3. Same — Presumption as to Validity of Statute.
    Legislative regulation of the use of private property will be presumed to be reasonable and necessary, unless the contrary appears from facts of which the court may take judicial notice.
    4. Same — Use of Emery Wheels.
    Act No. 136, Pub. Acts 1887 (3 How. Stat. § 1690M etseq.), as amended by Act No. Ill, Pub. Acts 1893, requiring emery wheels which are in continuous use to be provided with blowers to carry away the dust arising from their operation, is a valid exercise of the police power.
    5. Same — Class Legislation.
    The statute is not open to the objection that it is class legislation, since all persons who are given continuous employment over dry wheels are within the provisions'of the act.
    6. Same.
    Whether the law is invalid as applied to a person operating his own wheel, — quaere.
    Error to Wayne; Hosmer, J.
    Submitted January 30, 1896.
    Decided March 3, 1896.
    Joseph N. Smith was convicted in justice’s court of having violated the statute regulating the use of emery wheels. On certiorari to the circuit the conviction was affirmed,' and respondent brings error.
    Affirmed.

      Corliss, Andrus & Leete (.Arthur Webster, of counsel), for appellant.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.

       With this case in 32 L. R. A. 853, is a note collecting the authorities on the police power to protect the health of employés.

   Hooker, J.

The defendant was convicted of a violation of the statute requiring emery wheels to be provided with blowers to carry away the dust arising from their operation. Act No. 111, Pub. Acts 1893, and 3 How. Stat. § 1690z3. Counsel for the defendant assert that they care to raise but one question, viz., the constitutionality of this law.

It is not disputed that the State may regulate the use •of private property, when the health, morals, or welfare of the public demands it. Such laws have their origin in necessity. Prent. Police Powers, 4-8, 53, 54, 161, 433. Counsel say that this law is invalid because it does not apply to all, not even to all who use emery wheels, because some may use with water, and others may not work continuously. Again, it is contended that it is invalid because it prohibits a man from running his own machine continuously without protection. We need not concern ourselves with the last objection, because we have not the case before us, and for the reason that the law may be valid to the extent that others are protected, and invalid in the particular mentioned, if such a construction is unavoidable. For the purposes of this case, it may be said that all persons who are given continuous employment over dry emery wheels-are within the provisions of this act. This singles out no class, as it applies to all persons who use emery wheels in that manner. Necessarily, the practical application is limited to those who engage in such business, but such is the case with many laws. All criminal laws apply only to those who choose to break them. This law applies to all who choose to use the emery wheel. The legislature has seen fit to permit certain uses of the dry wheel without n blower, while in other cases it is required. This is competent, and is not class legislation, as between operatives. It fixes the limits of use without a blower, and requires it after such limits are passed; but the rules apply to all.

The vital question in this case is the right of the State to require the employer to provide, and the employé to "use, appliances intended for the protection of the latter. Laws of this class embrace provisions for the safety and welfare of those whom necessity may compel to submit to existing conditions involving hazards which they would otherwise be unwilling to assume. Among them are provisions for fire escapes, the covering or otherwise rendering machinery safe, the condition of buildings, ventilations, etc. In the main, where the necessity is obvious, they commend themselves to those who have at heart the welfare of their fellows, and should be upheld if they do not contravene private rights.

The Constitution secures to the citizen the rights of life, liberty, and private property, and, as the only value in the latter consists in its use, it follows that the right to use private property is within the provision. There can, however, be no doubt that the use of private property may be regulated by law. No one would think of questioning the validity of laws regulating the manufacture, use, and sale of dangerous drugs or explosives, or laws designed to insure safety in railway travel. The inspection of boilers, fire escapes upon hotels, means of exit from churches and other buildings which the public are wont to frequent, are familiar instances of the exercise of the police power. These rules are defended upon the ground that they are necessary to the safety of the public; not the entire populace, but such persons as shall lawfully place themselves in a position requiring such protection. Where the law is aimed at acts or conditions which threaten contagion, — as where sewers, disinfection, or quarantine is required, — the necessity of and the power to make such laws are obvious. But at first blush they may not be so apparent where there is no direct danger to others than the party whose business is sought to be regulated, and those with whom he contracts. It is contended in this case that neither the public welfare nor health is involved, inasmuch as the protection sought to be afforded is limited to the individual employé, who, by his contract of employment, signifies a willingness to use the machine in its dangerous condition, and therefore cannot be heard to complain.

It is the law that a manufacturer may provide inferior, and even dangerous, machinery, tools, and utensils; and enterprises more or less hazardous are common and lawful. Men may contract to use such machinery, or to perform dangerous service, and have no remedy if injured. But we are not aware that the police power is limited by such contracts. As between the parties themselves, the contract may cut off legal redress for injuries sustained; but we are not satisfied that the authority of the State is limited to the protection of those who do not sustain contract relations with each other. In the absence of a law requiring fire escapes, one who works in a high building and is injured may be held to have assumed the risk incident to his employment; but we know of no rule that precludes the State from making a regulation requiring fire escapes to be placed upon high buildings, though the only object be to facilitate the escape of employes who are under contract to work there without such appliances for escape. Fire escapes in hotels, and means of exit in theaters and public halls, are required by law for the benefit of patrons, who are there by virtue of contract relations with the proprietor. So long as the rule is general, and the danger to the public — i. e., that portion of the public who are subjected to the danger — is clear, it is a proper subject for legislative intervention. In re Jacobs, 98 N. Y. 98 (50 Am. Rep. 636), is cited to sustain the proposition contended for, but it cannot be said to have decided the question, although allusion is made to voluntary submission to alleged dangerous conditions. The case does not dispute the power to regulate the business of private persons where the public welfare requires, but does deny the power of regulation in the absence of such necessity, where the law has no relation to the public welfare or health. See, also, Tied. Lim. § 122c.

The case of People v. Warden of City Prison, 144 N. Y. 529, is an interesting one upon this question, and although the decision there laid down is criticised (perhaps justly) by Mr. Justice Peckham in a dissenting opinion, concurred in by two- of his associates, the power to regulate private affairs where the public necessity exists is asserted in an exhaustive opinion by the same learned judge in the case of Health Department of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, in the course of which the power to regulate the appliances for manufacturing is asserted. Id. 43, 44. The opinion says:

“Hand rails to stairs, hoisting shafts to be-inclosed, automatic doors to elevators, automatic shifters for throwing off belts or pulleys, and fire escapes on the outside of certain factories, — all these were required by the legislature from such owner, and without any direct compensation to him for such expenditure. Has the legislature no right to enact laws such as this statute regarding factories, unless limited to factories to be thereafter built? Because the factory was already built when the act was passed, was it beyond the legislative power to provide such safeguards to life and health, as against all owners of such property, unless upon the condition that these expenditures to be incurred should ultimately come out of the public purse? I think to so hold would be to run counter to the general course of decisions regarding the validity of laws of this character, and to mistake the foundation upon which they are placed. ”

The trouble with these cases arises over the inability of the courts to fix a rigid rule by which the validity of such laws may be tested. Each law of the kind involves the questions: (1) Is there a threatened danger? (2) Does the regulation invade a constitutional right? (3) Is the regulation reasonable ? In the present case no controversy is raised over the first of these. Hence we are not called upon to discuss it. As is implied by what has been said, the constitutional right to use property without regulation, is plain, unless the public welfare requires its regulation. If the public welfare does require it, the right must yield to the public exigency. And it is upon this question of necessity that the third question depends. All, then, seems to be embraced in the question of necessity. Unless the emery wheel is dangerous to health, there is no necessity, and consequently no power, to regulate it. Unless the blower is a reasonable and proper regulation, it is not a necessary one. Who shall decide the question, and by what rule? Shall it be the legislature or the courts? And, if the latter, is it to be determined by the evidence in the case that happens to be first brought, or by some other rule ? Does it become a question of fact to be submitted to the jury or decided by the court ? Of all the devices known to human tribunals, the jury stands pre-eminent in its ability to determine cases in direct violation of and contrary to law, without impairing the binding force of the law as a rule of future action. We have known of instances where the question of the constitutionality of acts, as applied to the particular case on trial, has been made to depend upon the finding of the jury upon the facts in the case. But there is a manifest absurdity in allowing any tribunal, either court or jury, to determine from testimony in the case the question of the constitutionality of the law. Whether this law invades the rights of all the persons using emery'wheels in the State is a serious question. If it is a necessary regulation, the law should be sustained, but, if an unjust law, it should be annulled. The first case presented might show by the opinions of many witnesses that the use of the dry emery wheel is almost necessarily fatal to the operative, while the next might show exactly the opposite state of facts. Manifestly, then, the decision could not settle the question for other parties, or the fate of'the law would depend upon the character of the case first presented to the court of last resort, which would have no means of ascertaining whether it was a collusive case or not, or whether the weight of evidence was in accord with the truth. It would seem, then, that the questions of danger and reasonableness must be determined in another way. The legislature, in determining upon the passage of the law, may make investigations which the courts cannot. As a rule, the members (collectively) may be expected to acquire more technical and experimental knowledge of such matters than any court can be supposed to possess, both as to the dangers to be guarded against and the means of prevention of injury to be applied; and hence, while under our institutions the validity of laws must be finally passed upon by the courts, all presumptions should be in favor of the validity of legislative action. If the courts find the plain provisions of the Constitution violated, or if it can be said that the act is not within the rule of necessity in view of facts of which judicial notice may be taken, then the act must fall; otherwise it should stand. Applying this test, we think the law constitutional, and the judgment is therefore affirmed.

The other Justices concurred.

Per Curiam.

Our attention is called to the fact that under the opinion heretofore filed the act as originally passed might be held unconstitutional, inasmuch as it does not discriminate between dry and wet wheels, which last, it is said, cannot possibly produce dust, and therefore do not require the blower. This question was necessarily passed upon in the former opinion, as the amendment could not be sustained if the original act was invalid. In addition to what was said in the former opinion, we may say that two sufficient reasons may be given for not holding the first act void: First. We are not able to say that a wheel may not be run with or without water at pleasure, in which case it would seem proper that the blower should be required as an efficient means of preventing its being run without water. Second. If this were not so, the act might be construed as applicable only to wheels capable of producing dust, as the language of the act clearly shows that it was intended to reach such, and an act should always be so construed as to bring it within the Constitution, if it can be reasonably done. Coit & Co. v. Sutton, 102 Mich. 324.


author: Grant, J.

text:
    LEE v. KELLOGG.
    Eorged Mortgage — Assignment—Recording Laws.
    A purchaser of a forged mortgage, and of forged notes purporting to he secured thereby, acquires no rights as against a prior assignee from the same person of genuine instruments the counterpart of those forged, although the latter’s assignment was not of record at the time the forged instruments were purchased.
    Appeal from Van Burén; Buck, J.
    Submitted January 16, 1896.
    Decided March 3, 1896.
    Bill by Wilson Lee against Harriett I. Kellogg and Mary Baker to foreclose a mortgage. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Mary Baker, being the owner of 40 acres of land, on March 30, 1893, executed to one George E. Breck a mortgage thereon for $1,000, collateral to six notes, — one for the principal amount, and five interest coupon notes. The mortgage was recorded on the day following its execution. June 26, 1893, Breck sold and delivered the notes and mortgage to one Hubbard, accompanying the same with the usual form of assignment. March 17, 1894, Hubbard sold, assigned, and delivered them to defendant Kellogg. These assignments were recorded September 24, 1894. August 17, 1893, Breck forged a mortgage and six notes, for the same amount as the others, upon the same land, with defendant Baker as the maker, and offered to sell and assign them to complainant, Lee. Lee went to an abstract office, and inquired if Breck was the owner, upon the record, of such a mortgage. The abstracter informed him that he was. He then purchased, Breck delivering to him the forged mortgage and notes as and for genuine ones. Subsequently complainant ascertained the true situation, viz., that defendant Kellogg was the bona fide purchaser and owner of the mortgage and notes, and that those held by him were forgeries. He thereupon commenced - foreclosure proceedings in chancery by the ordinary suit, making defendant Kellogg a party thereto, “ as having, or claiming to have, rights and interests in the premises as subsequent incumbrancer or otherwise.” Defendant Kellogg answered, setting up the true state of affairs, and praying affirmative relief by way of cross-bill. Complainant answered the cross-bill, denying that the mortgage and notes held by him were forgeries, and asserting their genuineness. Upon the hearing the bill was dismissed.

      T. J. Cavanaugh, for complainant.

      A. M. Stearns and Heckert & Chandler, for defendant Kellogg.
   Grant, J.

(after stating the facts). The theory of the complainant’s bill, and of his answer to the cross-bill, was that he owned and had in his possession the original and genuine mortgage and notes. He did not prove, or attempt to prove, their execution; but, although forgeries, they were admitted in evidence. The complainant made no case entitling him to relief. Under his bill it was incumbent upon him to prove and produce the original mortgage and notes. His bill was not framed upon the theory upon which he now seeks to recover.

Forged papers cannot be made the basis of a recovery, either at law or in equity, against the supposed maker, or those in good faith holding and owning the genuine papers. Austin v. Dean, 40 Mich. 386; Camp v. Carpenter, 52 Mich. 375; Crawford v. Hoeft, 58 Mich. 21; Laprad v. Sherwood, 79 Mich. 520; Williams v. Keyes, 90 Mich. 290. Had the suit been against Mrs. Baker alone, either at law, upon the notes, or in equity, to foreclose the mortgage, the suit would have failed, upon proof that the papers were forged.

Where an assignor does uot have the papers to be assigned, to deliver, this is sufficient to put the purchaser upon his guard, to put his good faith in doubt, and to charge him with any defect in his assignor’s title. 1 Jones, Mortg. (5th Ed.) § 483. Forged papers cannot give to an assignee any greater or better right than he would have without any, nor can they be made the basis of a valid assignment, or held to convey to such pretended assignee the original papers, which have been, in good faith, purchased by another. The recording laws do not apply to such a case. Complainant might as well claim that if Mrs. Baker had sold and conveyed the land, by warranty deed, to Kellogg, and, before she had recorded it, Breck had forged a deed from Mrs. Baker, to himself, and then conveyed to complainant, he would have been a bona fide purchaser, entitled to the protection of the recording law. Kernohan v. Manss, 53 Ohio St. 118.

The decree is affirmed, with costs.

The other Justices concurred.


author: Long, C. J.

text:
    STEBBINS v. PATTERSON.
    1. Equity Practice — Hearing on Appeal.
    Where the testimony in a chancery suit is taken in open court, and no case has been settled under the statute, it must stand for hearing on appeal upon the pleadings, orders, files, and decree alone, and it will be presumed that there was evidence in the lower court to sustain the decree made.
    2. Statute op Limitations — Disability to Sue — Concealment op Cause op Action.
    The payee in a certificate of deposit'was induced, when non compos mentis, to transfer the certificate to a third party, who drew the money thereon. The payee died a week thereafter, without having regained her normal mental condition, and an administrator of her estate was at once appointed. A few days after the expiration of six years from the receipt by the transferee of the money, the administrator, from whom the transferee had fraudulently,concealed the facts relating to the transfer, filed a bill to compel the payment to the estate of the money and interest thereon. Held, that the action was within 3 How. Stat. §§ 8718, 8731, and was not barred by the statute of limitations.
    Appeal from Kent; Adsit, J.
    Submitted January 7, 1896.
    Decided March 11, 1896.
    Bill by Andrew J. Stebbins, administrator of the estate of Mary Patterson, deceased, against William Patterson, to recover moneys alleged to have been fraudulently obtained from complainant’s intestate. Prom a decree for complainant, defendant appeals.
    Affirmed.

      T. J. O'Brien and James H. Campbell, for complainant.

      Stephen H. Clink, for defendant.
   Long, C. J.

The bill in this case sets out that Mary Patterson, in her lifetime, was possessed of a certain certificate of deposit issued by the National City Bank of Grand Rapids, dated October 17, 1887; that she held such certificate of deposit in her possession until August 18, 1888, and on that day it was presented at said bank by the defendant, indorsed upon the back with the name of Mary Patterson, by her mark, which mark was witnessed by the defendant and Sylvia C. Patterson, and was duly paid by the bank on that date; and that said moneys are still held by the defendant. The bill further sets forth that, at the time of such indorsement, Mary Patterson was upwards of the age of 70 years, and was ill of a serious and fatal malady, and died on August 25, 1888, intestate, at the city of Grand Rapids, this State; that, at the time the defendant obtained possession of the certificate, the said Mary Patterson was mentally incapable of understanding and of making any gift, salé, transfer, assignment, or delivery of any property, security, or evidence of debt, or of writing her' name, or of understanding that, by making her mark, the defendant could draw the money upon such certificate; that, when conscious, she could, and always did, write her name in business transactions; that the apparent transfer of said certificate to the defendant was fictitious and fraudulent, without consideration, and did not pass any right or title to said moneys to the defendant; that the same, as matter of equity and right, are the moneys of the complainant as administrator; and that the defendant has wrongfully and unlawfully withheld, and still withholds, said moneys from the complainant. The bill also alleges that the defendant has concealed from the complainant the fact that he obtained said certificate and the payment thereon, and has never informed or notified the complainant of the fact, although he has known, ever since October 15, 1888, that the complainant was the administrator of the estate of his mother, Mary Patterson; and that the complainant, from another source, recently obtained information of the fact that such certificate had been obtained, and the moneys drawn thereon by William Patterson, and of the fraud with which the transaction was tainted. The bill sets up the appointment of the complainant as such administrator on September 28, 1888, and prays that it may be decreed that the indorsement upon such certificate was fraudulent, and passed to the defendant no title to such moneys; that the deceased remained the owner of such moneys to the time of her death,- and that the same then became the moneys of her estate; that the defendant drew and received, and now holds, such moneys wrongfully and fraudulently; and that he be compelled to pay the same over to the complainant, with the legal interest from August 18, 1888. The defendant answered the bill, and claimed, by the answer, that more than six years elapsed after the alleged conversion of the certificate of deposit set out in the bill, before the commencement of this suit, and therefore the defendant could not be compelled to further answer or make defense to the suit. There are no allegations in the answer, except a denial of certain portions of the bill, and an admission of other portions thereof. A replication was filed, and proofs were taken in open court, and a decree was entered therein finding the material facts charged in the bill to be true, and decreeing that the complainant recover from the defendant the moneys claimed and the interest thereon. From that decree the defendant appeals.

It appears that the testimony was not settled in the case within the time prescribed by the statute, so that the case stands for hearing upon the pleadings. The only contention by the defendant is that the claim is barred by the statute of limitations, as the conversion of the moneys is charged to have taken place on August 18, 1888, and the bill in this case was not filed until September 24, 1894. The decree made by the court below is returned, and by it the court finds:

“That the material allegations in the bill of complaint in this cause are* true, and that the defendant, William Patterson, fraudulently obtained and appropriated the sum of $715.75 of the moneys of the said Mary Patterson, and has withheld the same from the complainant, who has been and is rightfully entitled to the same as administrator of the estate of said deceased; that said moneys were obtained from the bank in which they were deposited, on surrender by said defendant of the certificate of deposit, with the indorsement thereon, as set forth in the bill of complaint in this cause; that, at the time the apparent indorsement of such certificate was made, the said Mary Patterson, deceased, was incapable, on account of old age and sickness, and physical and mental infirmities, of writing her name, and of understanding, making, or assenting to the transfer and indorsement of said certificate, and of making a gift or disposition of said moneys; and that the defendant has no right to said moneys or any part thereof, and that the complainant is entitled to have and recover of said defendant the said moneys, with interest thereon.”

The court below found, by the decree, that all the material allegations of the bill were true. The bill recites that—

“ The apparent transfer of the certificate of deposit to said William Patterson was fictitious and fraudulent, and without consideration, and did not pass any right or title to said moneys to said William Patterson; * * * that the said William Patterson has concealed from your orator the fact that he had obtained said certificate and payment thereon, and has never informed or notified your orator of the fact, although said William Patterson has known, ever since the I5th day of October, 1888, that your orator was administrator of the estate of his said mother; that your orator, from another source, has recently obtained information of the fact that said certificate had been obtained, and the moneys drawn thereon by said William Patterson, and of the fraud with which the transaction was tainted.”

The bill also recites that the deceased was mentally incompetent to make the transfer at the time the certificate was obtained from'her on August 18, 1888, and that she continued sick from that time until August 25, 1888, when she died.

It will therefore be seen that, by the findings in the decree, the certificate was fraudulently obtained from Mary Patterson when she was incompetent to make the transfer, and that she died seven days thereafter from the same illness, and that from that time forward the defendant concealed the fact that he had the certificate or the moneys thereon. The findings in the decree must be taken as true. As was said in Shelden v. Weatherwax, 75 Mich. 418, where the testimony in a chancery suit is taken in open court, and no case has been settled under the statute, it must stand for hearing on appeal upon the pleadings, orders, files, and decree alone; and it will be presumed that there was evidence in the lower court to sustain the decree made. Under these findings of fact, the statute did not begin to run against Mary Patterson during her lifetime, because she had no knowledge of the fraudulent conversion of the fund, and the statute would not begin to run against the administrator until the fraud was discovered. In Tompkins v. Hollister, 60 Mich. 470, it was said:'

“The statute of limitations does not apply, in this State, against a cause of action fraudulently concealed before the fraud is discovered. The complainant filed her bill within two years from her discovery of her rights as to this note and the deceit practiced upon her in reference thereto. She has thereby, if the fraud has been committed and concealed as claimed, saved her right of action. ”

So, in the present case, the findings show that a fraud had been committed in getting this certificate from Mary Patterson, without consideration, and at a time when she was non compos mentis. She died from the illness with which she was then afflicted. From that time forward the defendant fraudulently concealed all the facts in relation to the transaction from the administrator, and it was only within a short time before the bill was filed that he discovered the fraud. The case falls within sections 8718, 8724, 2 How. Stat., and is not barred by the statute of limitations.

The decree of the court below must be affirmed.

The other Justices concurred.


text:
    ESLER v. KENT CIRCUIT JUDGE.
    Garnishment — By Whom Maintainable.
    The word “plaintiff,” as used in 3 How. Stat. § 8058, providing that, in all oases where there remains any sum unpaid upon any judgment or decree, a writ of garnishment may issue on the affidavit of the “plaintiff,” his agent or attorney, refers to the party moving in the garnishment proceeding; and, therefore, a defendant who has recovered judgment against the plaintiff is entitled to sue out the writ.

      Mandamus by Alexander D. Esler to compel Allen 0, Adsit, circuit judge of Kent county, to set aside an order vacating a judgment recovered by the relator in a garnishment proceeding.
    Submitted January 7, 1896.
    Granted March 11, 1896.

      Earle & Hyde, for relator.

      Hatch & Wilson, for respondent.
   Montgomery, J.

This application for mandamus presents the question of whether a defendant who has recovered a judgment against the plaintiff may sue out a writ of garnishment, based on such judgment, against a third party. The circuit judge held that the defendant is not entitled to the remedy.

The statute (3 How. Stat. § 8058) reads as follows:

‘ ‘ That in all personal actions arising upon contract, express or implied, brought in the several [circuit] courts or municipal courts of civil jurisdiction, whether commenced by declaration, writs of capias, summons, or attachment, and in all cases where there remains any sum unpaid upon any judgment or decree rendered in any of the several courts hereinbefore mentioned, or upon any transcript of a judgment filed in said courts, if the plaintiff, his agent or attorney, shall file with the clerk of said circuit court at the time of or after the commencement of suit, or at any time after rendition of judgment or decree or the filing of a transcript of judgment, an affidavit stating that he has good reason to believe, and does believe, that any person (naming him) has property, money, goods, chattels, credits, or effects in his hands, or under his custody or control, belonging to the defendant, or any or either of the defendants, or that such person is indebted to the defendant, or any or. either of the defendants, whether such indebtedness is due or not, and that the principal defendant, or any or either of the defendants (naming him or them), is justly indebted to the plaintiff on such contract, judgment, decree, or transcript, in a given amount, over and above all legal set-offs, and that the plaintiff or affiant is justly apprehensive of the loss of the same unless a writ of garnishment issue to the aforesaid person, a writ of garnishment shall be issued,” etc.

The legislative intent, it must be conceded, is not made as clear as might be desired, and we are cited to no case which can be said to rule this.' It is safe to assume, in view of the end aimed at by the legislation, that it was not the intent to afford to one party a remedy not open to the other. The ambiguity arises out of the fact that the provision for remedy on judgment was inserted in a section which previously provided for the suing out of the writ at the commencement of suit, and the provision for the making of the affidavit by the plaintiff. was left unchanged. Literally construed, this provision Would render nugatory the remedy given on a decree;, for, strictly speaking, there is no party invehan eery designated as “plaintiff.” The construction contended for by respondent would also limit the general language giving the remedy in all cases where any sum remains unpaid on any judgment or decree. We think it not unwarranted to assume that by the word “plaintiff,” as here used, was meant the moving party or suitor in the garnishment proceeding. A question having some analogy was presented to the supreme court of Massachusetts. The statute provided that after the rendition of a judgment in a civil action, if the execution had not been satisfied, the court or justice, upon petition of defendant, might order a stay or supersedeas. It was held that the word “defendant,” as used, was clearly intended to refer to the person against whom the judgment sought to be recovered was rendered, and who, as petitioner, asked for a stay of execution, and not to the defendant in the original action. Leavitt v. Lyons, 118 Mass. 472. See, also, Westcott v. Booth, 49 Ala. 182; Fort Street Union Depot Co. v. Backus, 103 Mich. 564. It has been held that, in garnishment statutes, the word “ plaintiff” should be construed to include the assignee, who is the owner of the judgment. Dugas v. Mathews, 9 Ga. 510. We are of opinion that it was intended to give this remedy to the person who recovered judgment or decree, whether he be plaintiff, complainant, or defendant, and that the word “plaintiff,” as used in the statute, must be construed to mean,the party moving in the garnishment proceeding.

Writ granted.

The other Justices concurred.


author: Moore, J.

text:
    CAMPBELL v. PRATT.
    Appeal — Failure to Show Error.
    No material error being found in the record, the judgment was affirmed.
    Error to Wayne; Donovan, J.
    Submitted January 14, 1896.
    Decided March 11, 1896.

      Assumpsit by George Campbell against Stephen Pratt to recover for medical services rendered to defendant’s infant child. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      James H. Pound, for appellant.

      Louis J. Siemon (Alfred Lucking, of counsel), for appellee.
   Moore, J.

Plaintiff is a practicing physician, who sued defendant to recover for medical services rendered to a child of defendant. The plaintiff claimed the child was dangerously burned; that his patient caused him much anxiety, but was getting along nicely until his treatment wás interfered with by the parents. The defendant admitted the child was severely, but not dangerously, burned. He claimed it was not skillfully treated by the plaintiff, and that, had it not been for the care of its mother, and a good constitution, it would not have lived. The plaintiff recovered a judgment of $50 in justice’s court, and $75 in the circuit court. The defendant brings the case to this court by appeal.

"We have examined the assignments of error and the record with great care. The questions raised are of no interest, except to the parties litigant, and for that reason we do not discuss them in detail. We find no material error in the proceedings in the court below, and for that reason the judgment is affirmed, with costs.

The other Justices concurred.


text:
    WILSON v. LA TOUR.
    Principal and Agent — Authority to Collect Mortgage.
    A mortgage company is impliedly authorized to receive payment of the principal of a mortgage which is in the possession of the mortgagee, where the latter has instructed it to inform the mortgagors in mortgages owned by her, including that in question, that they must pay at once or the mortgages will be foreclosed, and the company has been accustomed to collect the principal of her mortgages, and remit the sums collected to her upon receipt from her of a discharge of the mortgage together with the original papers.
    Appeal from Otsego; Sharpe, J.
    Submitted January 8, 1896.
    Decided March 11, 1896.
    Bill by Otis B. Wilson against Elizabeth A. La Tour to compel the discharge of a mortgage. From a decree for •complainant, defendant appeals.
    Affirmed.

      Lyon & Dooling, for complainant.

      Fedewa & Walbridge, for defendant.
   Moore, J.

Complainant has owned and resided upon a farm situated in Otsego county for the last 14 years. August 26, 1886, he executed and delivered to Walker & White, a firm engaged in the loaning business at St. Johns, Mich., his note of $350, due October 1, 1891, with interest; both principal and interest payable at their office in St. Johns. The interest was represented by 10 coupons, of $12.25 each, and accompanying them were 10 other (commission) coupons, of $1.75 each, due at the same times. To secure the payment of the note, complainant gave a mortgage on his farm, the mortgage being duly recorded in Otsego county. Walker & White assigned- the mortgage and note to Jeanette L. Tefft on November 39, 1886, by written assignment duly recorded in Otsego county. ' Mrs. Tefft died before receiving any interest on the mortgage, and her executors assigned the note and mortgage to defendant, who resided in Buffalo, N. Y., April 33, 1887, and said assignment was duly recorded in Otsego county. Walker & White notified complainant, from time to time, of the maturity of his interest, collected and remitted it to defendant, and sent complainant his canceled interest coupons. In September, 1889, they were succeeded in business by the Michigan Mortgage Company, Limited, of which company they were the leading officers, and had charge of its affairs. From that time the mortgage company held substantially the same relations towards both parties that Walker & White had held. Complainant had no notice of the transfer of the note and mortgage, except that he knew that Walker & White were succeeded by the mortgage company, and always supposed they or the company still owned them. On March 33, 1893, he sent the company a draft of $364.10, which covered the principal, of $350; interest to April 1, 1893, $13.35; exchange, 10 cents; and commission, $1.75. The company acknowledged the receipt of the money in full payment of the mortgage, and advised complainant they had sent for the discharge thereof, and, as soon as received, would forward it to him. The mortgage company placed the principal sum of $350 to the credit of defendant on its books, and on the same day notified defendant of the payment of the money, sending her a discharge of the mortgage to execute and return with the canceled papers pertaining to the Wilson loan, and advised her that upon the receipt of the same they would remit. For somo reason defendant failed to send the discharge or the canceled papers, or to reply to the company’s letter. The mortgage company failed on February 6, 1894, and receivers were appointed. In the following April, complainant first learned that defendant claimed to own the mortgage in question, and filed his bill to cancel the note and discharge the mortgage and assignments from record, claiming that the payment made to the mortgage company was a payment of the mortgage debt. The defendant appeared, and insisted that the mortgage company had no authority from her to receive payment ,of the mortgage, and claimed the mortgage to be a subsisting lien upon the land. The circuit judge made a decree in accordance with the prayer of the complainant, and defendant appeals.

All of the business was done by correspondence. There were originally 16 mortgages running to Walker & White which were assigned to Jeanette L. Tefft, and, upon whose death, became the property of defendant. The amount of the mortgages was $11,900. The record shows that, soon after the defendant became the owner of these mortgages, she applied to Walker & White to collect the interest as rapidly as it matured, and that either Walker & White, or the Michigan Mortgage Company, as their successor, collected all of the interest that accrued upon these mortgages up to the time of the failure of the company. The total amount of interest collected and remitted during this time was $3,836.97, of which Walker & White collected and remitted $1,986.44, and the Michigan Mortgage Company collected and remitted $1,850.53. The record also shows that, of the principal of the mortgages, Walker &.White collected and remitted to defendant $650, and the Michigan Mortgage Company collected and remitted $9,650. In addition, the company collected the principal of the mortgage in question, $350, making a total of $10,650 collected.

A large amount of correspondence was received in evidence between the defendant and Walker & White and the Michigan Mortgage Company in relation to their conduct of the business of Miss La Tour, in which she urges them to collect the mortgages of which we have before spoken. This correspondence indicates very clearly that her request was acceded to; that Walker & White, and afterwards the Michigan Mortgage Company, did receive payments of these mortgages when the mortgages and notes were in the hands of Miss La Tonr, and upon their request she forwarded the notes and mortgages to them, with the necessary discharge papers, showing that she had knowledge of their method of doing business, and approved of it. In August, 1891, she asked the mortgage company to notify a number of the mortgagees that their mortgages. would soon be due, and, among others, the mortgage of Otis B. Wilson, for $350, in October. In September she requested a report on the Wilson mortgage. In October, 1891, .she wrote the company, calling attention to the fact that she had over $3,800 due her for interest and principal on the mortgages, called their attention to the Wilson mortgage, and added:

“Miss La Tour wishes these parties informed that she will not renew or extend the time on these mortgages. Miss La Tour would like to hear from you, and, if you send discharge of mortgages, will send you the papers.”

Replying to that letter on October 14, 1891, the company wrote:

“We hand you discharge of the Martin mortgage, which please have executed, and return with the canceled papers, and we will remit therefor. In reference to the Wilson mortgage, would say that Mr. Wilson paid his interest promptly, and asked for a short time on the principal.”

Defendant sent the Martin papers as requested, and received remittance to cover the same.

On November 2, 1891, defendant wrote the company:

“All of the mortgages Miss La Tour has (10 in number) are now due, or will be by December 1st. She has been very patient with these parties, but now, as she has other use for her money, will require a settlement by the 1st of January, and those that are not closed up by that time she will place in her lawyer’s hands. You can let these different parties know of her intentions, so that they can fix their affairs accordingly.”

Replying thereto on November 4, 1891, the company wrote:

“Replying to yonrs of November 2d, would say that we are looking after your matters, and collecting them in as promptly as possible; and if you will give us such time as we need in the course of business, to collect in, we shall be able to collect all of the interest, together with the principal, without costs of any kind.”

On NovemberTl, 1891, the company wrote defendant:

“Inclosed we hand you discharge of the Bergenzer mortgage, which please execute and return to us with the canceled papers, and we will remit for the same.”

In reply thereto, under date of November 16, 1891, the defendant sent the papers, and shortly thereafter received a draft of $2,369 in payment thereof.

On December 4, 1891, the company wrote the defendant:

“Inclosed we hand you discharge of the John W. Saunders mortgage, which please execute and return to us with the old papers, and we will remit for the same.”

Defendant complied with that request on December 5, 1891.

On December 5, 1891, the company wrote defendant to send the Staley papers, and that it would foreclose that mortgage for her. On December 7, 1891, defendant complied with that request, and they commenced the foreclosure.

On December 28, 1891, defendant wrote in reference to the Saunders and Staley mortgages, and added: “There are seven other mortgages that have expired. Tell these parties to either pay up, or we must foreclose at once. They are as follows.” And the list included the Wilson mortgage, in question. She also added, “Please attend to this, and let me hear from you at once. ” Replying to that letter, the company wrote: “Replying to yours^ of the 28th, would say that we have not forgotten your matters.. We are giving them careful attention, and will report payment of the same as fast as they are ready.”

On January 19, 1892, defendant wrote the company in reference to certain mortgages, and added, “Let us know what the prospects are, for we are getting very tired of waiting for money which is long due.” Replying thereto on January 31, 1893, the company wrote, among other things, “We are looking after your matters to the best of our ability.”

On January 31, 1893, the company wrote the defendant in reference to the Brown mortgage, and advised her that it had been paid, and added :

“We are glad to inclose discharge thereof, which please have executed, and returri to us with the canceled papers, and we will remit at once, by return mail.”

Defendant complied with this request on January 33d, and two days later draft was sent to cover that money.

On January 33, 1893, the company wrote defendant:

“We hand you discharge of the Charles A. Butler mortgage, which please have executed, and return to us with the old papers, and we will remit therefor.”

Defendant complied with this request on January 37th, and two days later a draft was sent her to cover th.e money.

On February 4, 1893, the company wrote defendant:

“Inclosed we hand you discharge of mortgage, Thomas W. Robinson, which please execute and return to us with the old papers, and we will remit therefor.”

The request was complied with, and on February 9, 1893, a draft was sent her in payment therefor.

On April 13, 1893, the company wrote the defendant, in reply to a letter which does not appear in the record:

“As we have done in the past, we shall continue to get your matters cleaned up as fast as possible. Ohadderton and Wilson will be arranged for at an early date.”

On June 13, 1893, defendant wrote the company:

“Please inform me what prospect there is for a settlement of the other mortgages of Miss La Tour’s. She needs the money, and is getting impatient by the slow course these parties are taking.”

On October 17, 1892, the company wrote defendant as follows:

“Some few days ago we wrote you concerning the William Ohadderton mortgage, past due. Mr. Chadderton has arranged this matter with us, and we now hold the funds to pay the same, subject to your order. Will you kindly send the papers for collection, and execute the inclosed discharge? Upon receipt of the same, we will remit you for principal and accrued interest.”

On November 5, 1892, the company sent defendant a draft of $937.10 in payment of the Ohadderton mortgage and interest.

On March 23, 1893, the company wrote defendant:

“Inclosed we hand you discharge of the O. B. Wilson mortgage, 'which please execute and return with the canceled papers, and we will remit for the same.”

The record shows some correspondence between the defendant and the company after this time, but for some reason she appears never to have replied to that letter. It is conceded by her counsel that she received it, and the record shows that, of the principals of the 13 mortgages collected for her before that time, she had been notified in substantially the same manner, had complied with the request of the company to forward the papers and an executed discharge in each case, and in each case had received her money.

We have thought best to quote this testimony somewhat at length, as counsel claimed this case is governed by Joy v. Vance, 104 Mich. 97, and Trowbridge v. Ross and Ross v. Trowbridge, 105 Mich. 598. We think this case is not governed by those, for the reason that it is difficult to escape the conclusion, from the ’ testimony, that the defendant instructed the Michigan Mortgage Company, Limited, to notify the mortgagors that these mortgages must be paid, and authorized it to receive payments, and knew that from time to time payments were made to the company on these mortgages, and approved of its receiving the money, and, at its request, forwarded the notes and mortgages, with a proper discharge. The trial judge found from the testimony that the Michigan Mortgage Company, Limited, was authorized to receive payment of the Wilson mortgage. We agree with the trial court.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    EMLAW v. TRAVELERS’ INSURANCE CO.

    1. Appeal — Leading Questions.
    A judgment will not be reversed for the reason that leading questions were permitted in the introduction of testimony, where it appears that they were without substantial prejudice to the appellant.'
    3. Trial — Secondary Evidence — Harmless Error.
    Any error in the admission of secondary evidence of the contents of a writing is cured by the subsequent production of the original paper by the adverse party.
    3. Accident Insurance — Breach oe Warranty — Estoppel.
    An accident insurance company cannot question the validity of either of two policies issued by it, because of a printed statement in the last application to the effect that the insured had no other insurance in the company, where it knew at the time of the issuance of the second policy that such statement was untrue.
    4. Same — Classieication oe Risk.
    An accident insurance policy is not invalidated by the fact that the insured was erroneously classed as “preferred,” instead of “medium,” in accordance with a request contained in his application, where, at the time of issuing the policy, the company had before it all the facts essential to enable it to make a proper classification.
    Error to Ottawa; Padgham, J.
    Submitted January 16, 1896.
    Decided March 11, 1896.

      Assumpsit by Andrew J. Emlaw against the Travelers’ Insurance Company upon certain accident insurance policies. Prom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Walter I. Lillie, for appellant.

      McBride & Danhbf, for appellee.

       Rehearing denied July 8, 1896.

   Moore, J.

The plaintiff held two accident policies of insurance in defendant company. In April, 1894, he received an injury that, he claims, totally disabled him, and entitled him to $50 a week for four weeks. His claim was disputed by the company. He brought suit, and obtained judgment for $200, and the case is appealed here. The plaintiff declared under Circuit, Court Pule No. 104. The defendant pleaded the general issue, and gave notice that the plaintiff was not entitled to any indemnity ; that he was insured in the preferred class, and his application called for only $25 per week when totally disabled; that he was not totally disabled; that, when he was injured, he was not acting as manager or proprietor of the gas works, but as a machinist, and voluntarily exposed himself to unnecessary danger; that in his application of November 9, 1892, he agreed tó be classed as “preferred,” and that, as a machinist, he would be classed as “medium,” and would be entitled to no more than the premium he actually paid would purchase in that class in which he was actually injured, if entitled to anything. In said notice a copy of the application upon which one of the policies was issued was set 'up in full, and then the statement followed that the work of a machinist is classed as more hazardous than that of the “preferred.”

Objections were made to some of the questions upon the ground that they were leading. The plaintiff was called as a witness, and after describing the accident, and its effect upon him, he was asked, “How long were you confined in the house, as a result of that accident? ” and allowed to answer. After describing the character of his work, and the manner in which it was done, in detail, he was asked, “Will you state if part of your duties as proprietor of the gas works called you to do more or less manual labor in and about it,” and he was allowed to answer. In view of the examination which immediately preceded these questions, and the cross-examination that followed, we do not think it was so prejudicial to allow these answers as to require a reversal of the case.

It is assigned as error that copies of the application furnished by the agent of the defendant company were allowed to be read in evidence. As defendant had set out in its notice of defense a copy of the application, and afterwards offered the original in evidence, the error, if any, was cured.

The last application made by the plaintiff had a printed clause reading, “I,have no other insurance in this company.” It is claimed that, as there was a prior policy, this statement was a fraud, and voided the second policy. Both applications were taken by the same agent. Both policies were issued by the defendant company. The printed statement was undoubtedly an inadvertence. The insured, the insurance agent, and the defendant company all knew it to be untrue. It deceived no one. The company, knowing the facts, acted upon both applications, received the premiums, and issued both policies, and it cannot now be heard to question the validity of either of them. Copeland v. Insurance Co., 77 Mich. 554.

It is urged that as the insured asked, in'his application, to be classed as “preferred,” when he should have been classed as “medium,” lie cannot recover. It is sufficient reply to that to say the agent of the company had known Mr. Emlaw and his business for 25 years. Mr. Emlaw, in his application, truthfully described his calling as proprietor of gas works. If he was not properly classified, it was not his fault. The company had the facts before it when the classification was made. O'Brien v. Insurance Co., 52 Mich. 131.

Mr. Emlaw was injured while assisting in uncoupling a gas pipe with a wrench. It is insisted that this was not proper work for a proprietor of gas works to be engaged in. The questions growing out of that feature of the case were properly and guardedly submitted to the jury. The other questions involved in the case were properly disposed of by the trial judge.

The judgment is affirmed, with costs.

The other Justices concurred.


text:
    AETNA INSURANCE CO. v. FOWLER.
    Principal and Surety — Bond of Agent — Release of Surety.
    A surety upon a bond conditioned for tbe payment by an agent to bis principal of all tbe moneys collected by him on tbe latter’s account is not discharged from liability for future defalcations of the agent by tbe failure of the principal to notify him that the agent has failed to remit as required by his instructions; but failure to impart its knowledge of an actual defalcation by the agent will have such effect.
    Error to Saginaw; Wilber,'J.
    Submitted January 15, 1896.
    Decided March 11, 1896.

      Assumpsit by the Aetna Insurance Company against Charles G. Fowler, Chester Brown, and Gustavus H. Fuerbringer upon an indemnity bond. From a judgment for plaintiff on verdict directed by the court, defendants Brown and Fuerbringer bring error.
    Reversed.

      Woocl[& Joslin, for appellants.

      Weadock & Purcell, for appellee.
   Montgomery, J.

Action on the bond of an insurance agent. Defendant Fowler was employed as the agent of the company at Saginaw, and in December, 1883, executed a bond, with his codefendants as sureties, the conditions being as follows:

“The condition of this obligation is such that whereas the above-named Charles G. Fowler has been appointed agent of the Aetna Insurance Company in Saginaw, Saginaw county, State of Michigan, who will receive as such agent sums of money for premiums, payments of losses, salvages, collections, or otherwise, for goods, chattels, or other property of the said insurance company, and is to keep true and correct accounts of the same, pay over such money correctly, and make regular reports of the business transacted by him, to the said Aetna Insurance Company, and in every way faithfully perform the duties as agent, in compliance with the instructions of the company through its proper officers, and at the end of the agency, by any cause whatever, shall deliver up to the authorized agent of said company all its money, books, and property^, due from or in possession. Now, then, if the aforesaid agent shall faithfully perform all and singular the duties of the agent of the Aetna Insurance Company, then this obligation shall be null and void.”

The instructions to agents were to send statements of all business transacted during the previous month as early as the 12th of each/month. The testimony shows that for three months prior to September 1, 1893, the defendant Fowler failed to send remittances, and it was shown that it was not the custom of the company to insist upon absolute promptness in remittance, but that after three months’' delay it was the custom of the company to discharge the delinquent agent. The testimony further shows that in the latter part of July or the first of August, 1893, the special agent of the company, a Mr. Neal, visited Saginaw, and, as he described it, found the agency in a “rocky condition; ” and, while counsel were disagreed as to the effect of his testimony, we think it is at least open to the construction that he then learned that Fowler had misappropriated the funds of the company, and invested them in realty. The circuit judge directed a verdict for the plaintiff. The recovery included a shortage in accounts before August 1st, and a shortage of $344.16 arising from the August business. '

Two contentions are made: First, that it was the duty of the company to notify the sureties of any delay in the remittance, at once, and that the continuance of the agent after failure to remit in accordance with the instructions of the company to agents released the sureties as to future transactions; and, second, that the company, on the discovery of the misappropriation of funds, August 1st, was bound to discharge the agent, or, at least, the sureties were not bound to respond for his future defalcations, unless, after being informed of his previous acts of dishonesty, they consented to his retention.

We think that the court below correctly ruled that the mere fact that the company had knowledge that the agent had failed to remit did not impose upon it the duty to notify the sureties or discharge the agent. Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85 (41 Am. Rep. 196); Atlantic, etc., Tel. Co. v. Barnes, 64 N. Y. 385 (21 Am. Rep. 621). The duty which the company owed to the sureties was not a duty of active vigilance, to ascertain whether the agent had been guilty of fraud (the sureties’ undertaking was a guaranty- of his fidelity), but what was due from the employer was good faith to the sureties. Just as it would have been a fraud ■to withhold knowledge of previous dishonesty of the agent presumably not known to the sureties, but possessed by the company, so it would be a breach of good faith for the company to continue the agent in a place of trust after discovering his dishonesty or defalcation, which is presumptively and in fact unknown to the sureties, and without notifying the sureties of the facts, and giving them an opportunity to elect as to whether they will continue the risk. This is the doctrine of the leading case of Phillips v. Foxall, L. R. 7 Q. B. 666. The cases of Watertown Fire Ins. Co. v. Simmons and Atlantic, etc., Tel. Co. v. Barnes are not inconsistent with this. The substance of the holding in each of these cases is that the mere failure of remittance does not necessarily amount to notice of dishonesty on his part, and that applies to the present case as regards the charges occurring before August. There is no evidence that prior to August the company had actual notice that Fowler had converted any of the funds to his own use, or was more than negligent in remitting or collecting the premiums;' but as to the transactions in August the case is different. Under section 9191, 2 How. Stat., it is made an offense for an insurance agent to receive and invest money of the company without its assent; and, as we before stated, we-think there was testimony tending to show notice to the company about the 1st of August that Fowler had invested the funds of the company in realty. If the company, through its special agent, then knew this fact, it cannot be said not to have had notice of the dishonesty of the agent; and, if it had such notice, it was the duty of the company not to longer trust its funds with the agent until the sureties had consented, with knowledge of the facts, to be held responsible for the acts of a dishonest agent. See, further, 2 Brandt, Sur. § 423; Connecticut Mut. Life Ins. Co. v. Scott, 81 Ky. 540.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    FLOOD v. STRONG.
    1. Estates op Deoedents — Purchase prom Heirs — Liability for Debts op Estate.
    Purchasers of land from the heirs of an estate, before administration has been had and closed, take the land subject to debts and expenses of administration.
    2. Same — Presentation op Claims — Laches.
    The mere failure of a creditor of a decedent’s estate, upon which no administration has been had, to assert his claim for a period of five years after the death of the deceased, does not constitute such laches as will preclude him from enforcing the claim against land of the decedent in the possession of a • purchaser from the sole heir, where the personal property of the decedent was in the possession of the surviving member of a firm to which he belonged, 'and the interest on the claim continued to be paid until a defalcation by the survivor, and the creditor had no knowledge that the ^property was being misused by the latter.
    Appeal from Shiawassee; Wisiier, J., presiding.
    Submitted January 17, 1896.
    Decided March 11, 1896.
    Bill by John Flood against Walter D. O. Strong and Newton Baldwin to enjoin an administrator’s sale. From a decree for complainant, defendants appeal.
    Reversed.
    One Isaac M. Strong and his son, Walter M. Strong, were bankers in Bancroft, Mich., under the firm name of I. M. Strong & Son. While so in business, on September 1, 1883, they executed a note for$l,000 to defendant Walter D. 0. Strong, and on December 3d, same year, another note for $505. Interest was paid upon these notes until the death of I. M. Strong, March 12, 1888. Defendant Strong is and was a resident of the State of New York. He attended his brother’s funeral at Bancroft, and has never'been in the State since. Walter continued to carry on the banking business, and to pay the interest on this note, until 1893, when he failed and absconded. Isaac, at his death, was possessed of the lot and building thereon in Bancroft, the subject of this suit, unincumbered, and some land in Charlotte which was heavily mortgaged. After Walter’s failure, defendant Strong caused letters of administration to be taken out upon the estate of Isaac, deceased, and defendant Baldwin was appointed administrator. These two notes were allowed against the estate. The administrator found no personal property except a safe, and no real estate except the two pieces above mentioned. The administrator filed his petition in the probate court for a sale of this land to pay the debts and expenses of administration, which petition was granted. Complainant thereupon filed this bill of complaint to enjoin the sale, upon the ground that defendant Strong was guilty of such laches, by the delay in asserting his claim against the estate of Isaac, as to render it inequitable as against complainant’s rights. Isaac died intestate, leaving his widow and Walter his sole heirs at law. September 9, 1889, the widow deeded to Walter her interest in the store and lot in controversy, and he deeded to her his interest in the Charlotte property. In April, 1890, Walter and his wife conveyed the Bancroft property to the complainant for a consideration of $1,000. Complainant took possession, and spent some money in improvements and repairs. The court entered a decree for complainant.

      James M. Goodell and M. V. B. Wixom, for complainant.

      8. S. Miner and Lyon & Hadsall, for defendants.
   Grant, J.

(after stating the facts). We think the conclusion of the learned circuit judge that defendant Strong was guilty of laches cannot be sustained. Walter, as surviving partner, was entitled to the possession of the partnership assets, and to continue the business for the purpose of winding it up. Whether there were personal assets at any time to pay the defendant’s notes does not appear. There is nothing to show what the personal assets were, or what was their value, or that Walter misappropriated any of such assets. Defendant Strong was under no legal obligation to take steps to secure an administration, nor did he lose any of his rights by his failure to do so. Purchasers of land from heirs of an estate, before administration has been had and closed, take it subject to debts and expenses of administration. Armstrong v. Loomis, 97 Mich. 577, and authorities there cited Complainant was chargeable with notice that no administration had been had. He took no steps to protect himself by bond or otherwise. Neither defendant Strong nor Walter said anything or made any representations by which he was misled. Briefly stated, the situation, then, is this: Complainant purchased, knowing that the land was subject to the payment of debts, if any existed, and knowing that there had been no administration, without making any inquiries, and without taking any measures to protect himself. Defendant Strong knew that Walter, as surviving partner, was entitled to the possession of the partnership funds. His interest was paid up to 1893. The property of the partnership was in lawful hands. He had no knowledge that it was being misused. He owed no duty to any supposed purchaser of the real estate of the deceased. He was, therefore, guilty of no [wrong in resting so long as his interest was paid, the very purpose he had in investing his money. He had neither done nor said anything to mislead complainant. Complainant purchased at his risk, and must suffer the consequences.

The decree must be reversed, with costs of both courts, and bill dismissed.

The other Justices concurred.


text:
    FARROW v. BRESLER.
    Contract — What Constitutes — Meeting oe Minds.
    Pending negotiations between plaintiff and defendant’s son for the formation of a partnership, defendant agreed with the plaintiff that, if certain suggestions made by him were acquiesced in, he would contribute his son’s share of the cash capital. Plaintiff agreed to these suggestions, and articles of co-partnership were drawn and executed by the parties. After-wards defendant sent to the plaintiff a modified contract of partnership, which plaintiff signed and returned as requested, at the same time suggesting a further modification of the contract by increasing the capital stock. In reply, defendant expressed his willingness to increase the capital, but no provision of the kind was inserted in the partnership articles. Neither defendant nor his son did anything towards carrying out the partnership agreement. Held, that the minds of the parties met when the modified contract was signed, and that the plaintiff was entitled to recover the damages sustained by him by reason of defendant’s failure to perform his agreement.
    Error to "Wayne; Donovan, J.
    Submitted January 17, 1896.
    Decided March 11, 1896.

      Assumpsit by Edward S. Farrow against Charles E. Bresler for the breach of a special contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    Bowen, Douglas & Whiting, for appellant.

      Peter E. Park, for appellee.
   Long, C. J.

The plaintiff in 1891 was interested in certain lands at Barnegat Park, N. J., and Arthur L. Bresler, the son of the defendant, was the owner of a military academy at Portsmouth, Ohio, which he was then managing. Negotiations were had between Arthur and the plaintiff with reference to establishing the academy in New Jersey, which, led the plaintiff to forward to the defendant a map of Barnegat Park, on which was marked the land which was intended to be donated to the institution. The arrangement between Arthur and the plaintiff seems to have been that the plaintiff should contribute the land at Barnegat Park for the purposes of a military academy, and that Arthur should contribute the academy at Portsmouth, and that each should pay, in equal proportions, the necessary cash for the erection of the institution and the conduct of the same. These facts were written by the plaintiff to the defendant, but the cash capital was not fixed in this letter. In answer to this proposition, defendant wrote a letter to the plaintiff, in which he acknowledged the receipt of the letter and map, but objected to the terms offered by the plaintiff, as not fair, and, after some further remarks, made a proposition that the plaintiff should donate the necessary land ■ to the institution, and that the cost of the buildings, which might be $28,000, should be equally divided between the plaintiff and Arthur; the plaintiff paying his half in cash, and Arthur applying upon his half what his institution at Portsmouth and its good will was reasonably worth, and the plaintiff to manage the financial matters entirely. The letter closes as follows: “When you agree on this suggestion, the balance then due from my son will be paid by me.”

Soon after this, and about September 8, 1891, the plaintiff, at the request of defendant and his son, came' to Detroit, and there an agreement in writing was made between plaintiff and Arthur. This agreement appears to have been dictated by the defendant, and written out by Arthur, and is as follows:

“Edward S. Farrow and Arthur L. Bresler make the following agreement: That they will both form an equal copartnership to establish and maintain a naval academy at Barnegat Park, N. J., at a cash basis or capital stock of $25,000; that each will furnish half of the capital. Edward. S. Earrow to pay $12,500 in cash. Arthur L. Bresler to give half of his plant and good will of the Ohio Military Academy, now established and maintained at Portsmouth, Ohio, in lieu of $6,000, and to pay $6,500 in cash. The expenses of the removal of the Ohio Military Academy from Portsmouth, O., to Barnegat Park, N. J., to be paid equally between both parties.
' “This copartnership is to exist for ten years, unless sooner dissolved by mutual consent. Both parties, by mutual consent, to be at liberty to take any steps towards furthering the interests of the copartnership and the naval academy.
“Edward S. Farrow.
“Arthur L. Bresler.”

Plaintiff contends that, at this meeting in Detroit, defendant again promised him, orally, to pay Arthur’s share of the cash capital.

After this agreement was made, plaintiff returned to New Jersey, and, in a few days thereafter, received a letter from defendant calling attention to an error in the contract, and inclosing a contract in duplicate to correct this error; requesting the plaintiff to sign one, and return the same to him, and keep the other himself. This plaintiff did. The letter from defendant which accompanied this second contract states:

“In the contract, the way it was made out, only one-half of Arthur’s school is ceded into the copartnership, so that he retains one-half unaccounted for. Now, I would suggest a capital of $30,000, when Arthur puts in his whole plant, as agreed, for $12,000, and pays $3,000 cash as his half, and you put in the equal amount of $15,000 in cash, which would balance correctly. * * * By reading over the old contract, you will readily perceive the mistake.”

The second contract signed by the plaintiff is as follows:

“Edward S. Farrow and Arthur L. Bresler make the following agreement: That they will both form an equal copartnership to establish and maintain a naval academy at Barnegat Park, N. J., at a capital basis at present of $30,000; that each will furnish half of the capital. Arthur L. Bresler to give his- whole plant and good will of the Ohio Military Academy, as now established and maintained at Portsmouth, Ohio, in lieu of $12,000, and to pay $3,000 in cash. Edw. S. Farrow to pay $15,000 in cash. The expenses of the removal of the Ohio Military Academy from Portsmouth to Barnegat Park to be paid equally by both parties. The necessary lands for the academy at Barnegat Park to be donated by Edward S. Farrow, and to be owned equally by both parties.
“ This copartnership is to exist for ten years, unless dissolved sooner by mutual consent. Both parties, by mutual consent, to be at liberty to take any steps towards furthering the interests of the copartnership and the naval academy.
“Arthur L. Bresler.
“Edward S. Farrow.”

Plaintiff, in returning this contract, wrote to defendant that he would go ahead with the erection of the barracks, and that the defendant might remit on account of Arthur’s contribution. In the same letter, plaintiff suggested that the capital stock be increased to $37,000, so that the cash contribution on the part of the defendant might be more than $3,000, as plaintiff wished to erect a more expensive institution. In reply to this letter, defendant wrote the plaintiff, signifying his willingness to increase the capital stock to $37,000. It was also suggested that it might be turned into a stock company. He then stated, “ I will always be ready to contribute, when necessary, the colonel’s share, — aye, and even more, when it shall appear to me for the benefit of the copartnership.” This suggestion to increase the capital stock was never carried out, and the second articles of copartnership were never modified in any way.

The plaintiff proceeded to erect the barracks, and to make the necessary arrangements to construct a military academy. He expended some $900 in grading the grounds, procuring materials, paying salaries and traveling expenses, etc. He procured a deed for the necessary lands to be donated to the copartnership, leaving only the name of the second party blank until it should be agreed in what name the title should stand, and claims that he stood ready and willing to contribute the $15,000 in cash, or as much as was necessary to advance the copartnership interests, and to contribute one-half the necessary moneys to remove the Ohio academy to Barnegat Park.' Before the proposed removal took place, the Portsmouth academy burned down, and after that time nothing was done by Arthur or the defendant in carrying out the terms of the contract with the plaintiff. This action is brought against the defendant, upon his promise to pay Arthur L. Bresler’s proportion of the cash capital to the copartnership; and it is claimed that, by reason of such failure, the partnership collapsed, and plaintiff lost by it the advances made by him.

The court below directed a verdict in favor of the defendant, upon the ground that the minds of the parties never met; that the propositions made by the respective parties never culminated in an agreement between the plaintiff and the defendant as to what amount, or .under what circumstances or conditions, the defendant was to pay for Arthur’s share in the enterprise. The court below apparently placed his ruling upon the ground that the plaintiff, in his letter returning the corrected contract, suggested that the capital be increased to $37,000. Itwillbe noted that this was simply a suggestion, which was never acted upon; but, upon the contrary, the plaintiff, in the same letter, stated, “I acquiesce in the suggestion in the contract.” He signed and returned the contract as requested by Mr. Bresler, and asked him to remit on account of Arthur’s share. We think the minds of the parties met when this second contract was signed; that is, that the agreement was then fully consummated upon which Mr. Bresler, the defendant, was to pay the share of his son Arthur in the contract. This he had agreed to do in his letters, as before stated-. The court below was in error in holding that the minds of the parties did not meet. The proposition was in writing, and duly accepted by the plaintiff. The terms were clear and explicit, and there is no part of the agreement left in doubt. The judgment should have been for the plaintiff.

Judgment is reversed, and a new trial granted.

The other Justices concurred.