author: Beooke, J.

text:
    RAND v. RODGERS.
    Fraudulent Conveyances — Bill in Aid of Execution — Evidence —Estate by Entireties.
    Evidence in a suit in aid of complainant’s execution against defendant’s homestead, which he had transferred to himself and wife by the entirety, held, to sustain the bill and warrant a decree in favor of complainant setting aside the conveyance, saving only defendant’s homestead rights.
    Appeal from Muskegon; Sullivan, J.
    Submitted April 12, 1916.
    (Docket No. 104.)
    Decided June 1, 1916.
    Bill in aid of execution by Esther Chrystal Rand, administratrix of the estate of William F. Chrystal, deceased, against Alexander Rodgers and another. From a decree for complainant, defendants appeal.
    Affirmed.

      Clink & Farmer, for complainant.

      William Carpenter (Charles B. Cross, of counsel), for defendants.
    The bill of complaint in this cause is filed in aid of execution. On May 18, 1914, plaintiff recovered a judgment against defendant Alexander Rodgers in the sum of $3,929.86. The amount of this judgment represented the balance due from said defendant Alexander Rodgers to the estate of William F. Chrystal upon the purchase price of 1,000 shares of stock of the Rodgers Iron Manufacturing Company of the par value of $10 each, which had been purchased by said defendant Alexander Rodgers from said estate on November 27, 1911. On April 4, 1913, defendant Alexander Rodgers was the owner of a certain house and lot in the city of Muskegon of the value of about $4,500. On that day he and his. wife executed a deed of said house and lot to one Louis E. Conroy, who, upon the same day, reconveyed the same to defendants Alexander Rodgers and Margaret A. Rodgers, as tenants by the entirety. The expressed consideration in both of these conveyances was the sum of $1. Prior to the 6th day of March, 1916, defendant Alexander Rodgers had been the owner of a large majority of the stock of the Rodgers Iron Manufacturing Company, the capitalization of which was the sum of $50,000. For some time prior to March, 1913, the business had been gradually declining, the plant was old, and defendant Alexander Rodgers himself seems to have become somewhat dissipated and inattentive to business. On the 6th day of March, 1913, in an effort to rehabilitate the business and secure further capital, a majority of the stock, 2,501 shares, was by defendant Alexander Rodgers assigned to one Lincoln Rodgers, apparently without consideration, except that Lincoln Rodgers was to raise $5,000 by indorsing the paper of the company for its "use. Other amounts of stock theretofore owned or standing in the name of Alexander Rodgers were assigned to others, so that after said date but a few hundred shares remained in the name of said Alexander Rodgers. The exact amount is difficult of determination from the record, and, in view of what occurred later, is of little importance. After the reorganization of March, 1913, the company continued to do business until the 6th day of August, 1913, when a voluntary petition in bankruptcy was filed and the business liquidated. The total assets, real and personal, of the company brought $7,600, which was disbursed by the trustee to the various creditors and was sufficient to pay only 37 2/5 per cent, of the debts of the corporation. It is asserted in the bill of complaint that the conveyance by Rodgers of the house and lot, which was occupied as a homestead, to himself and wife as tenants by the entirety was a fraud upon his creditors, it being claimed that upon the date of the transfer he was actually insolvent, and that the conveyances in question were made for the purpose, if possible, of saving from the creditors this remnant of his once considerable property. The learned circuit judge who heard the case made a decree setting aside the conveyances in question and subjecting the property described therein to the levy of the plaintiff except as to the homestead rights of the defendants. From this decree defendants have appealed.
   Beooke, J.

(after stating the facts). There is only one disputed question of fact in the case, and that is as to whether, at the time the conveyances in question were made, the defendant Alexander Rodgers was in fact possessed of sufficient property aside from that covered by the deeds to satisfy his obligations. It is strongly urged by counsel for defendants that at the time said conveyances were made defendant Alexander Rodgers not only believed himself to be possessed of sufficient property, aside from his homestead, to satisfy his creditors, but that in fact he was solvent. Upon the hearing defendants introduced two trial balances of the business of the corporation, one dated March 31,1913, and the other April 30,1913. They appeared to have been made under the direction of Louis E. Conroy, who was secretary of the corporation and had been connected with the business from November, 1912, and who was himself the conduit through which the title to the house and lot in question passed. These balance sheets both show assets of the corporation largely in excess of liabilities, and the witness Conroy testified that he believed the values placed upon the several assets to have been fair and conservative. The total assets as shown by the trial balance of April '30, 1913, were $61,645.33, and liabilities at that time, aside from the capital stock liability of $50,000, were only $11,645.33. From these figures it is argued by counsel for appellants that the interest of defendant Alexander Rodgers in the corporation on the 4th day of April, 1913, was sufficient to satisfy his creditors and that therefore he had a right, under the law, to settle the house and lot upon himself and wife. Pressed upon cross-examination, the witness Conroy, who seems to have had an intimate knowledge of all matters in connection with the controversy, would not say that in his opinion the defendant Alexander Rodgers, at the time the deeds were made, was solvent. In the course of his examination the following occurred:

“Q. Didn't you tell me that you were having a hard time — you were doing all you could to get Alex’s matters straightened out so that you could legally have this house transferred to Alex and his wife jointly?
“A. I don’t recollect it. I might have made some such statement as that to you, because I had that in mind. The only reason that I didn’t deed it before I did was because I didn’t want it to appear as though I was deeding something away that — or doing something that might appear as though it wasn’t right.
“Q. As though it was to defraud creditors?
“A. Yes, sir; and I purposely left that, and it was delayed.
“Q. Let me call your attention specifically. Sitting in the lobby of the Occidental Hotel one evening when we were talking this matter over, don’t you remember of talking with me in that place about it?
“A. I do; yes, sir.
“Q. Didn’t you tell me that you wanted more time— you wanted to do something; get a little more time — ■ and you were going to try to straighten out this whole matter and get Alex’s matters all straightened out so that you could deed, or have deeded, to Alex and his wife this house jointly? Have you no recollection of that at all?
“A. I don’t remember of — I can’t remember that I ever did make a statement of that kind to you, and yet I don’t doubt that I probably did, too, because I had it in mind, and it would have been the most natural thing in the world to have mentioned that to you. I wouldn’t say that I didn’t make a statement of that kind. I had it in mind, and I wanted to get everything; I wanted to deed that house at that time and had wanted to. I wanted to get things straightened out so that they would look all right on the face of them before doing anything of that kind. * * *
“Q. Didn’t you realize all the time that Alex Rodgers’ affairs were in a very bad way?
“A. I did; yes, sir.
“Q. And from the time you went there and looked into the business you knew that, didn’t you?
“A. Yes; I did. That is one of the thoughts that undoubtedly governed me in my ideas, my wish to have that redeeded. I probably had it—
“Q. That is what I thought.
“A. It probably had its weight.
“Q. You saw just as quick as you got into that business that it was only a question of what Alex could save out of the stock and save his home, wasn’t it?
“A. It was; yes, sir.
“Q. That is all there was to it?
“A. Yes, sir.”

While the fact that the entire assets, real and personal, of the corporation within five months of the date of the transfer sold for only $7,600 is not controlling, we are still of opinion that it is not without a legitimate bearing upon the fairness of the trial balance upon which so much stress is laid by counsel for appellants. That fact, taken in connection with the very frank testimony of the witness Conroy, convinces us that in the spring of 1913, when the transfer was made, the stock of the corporation had very little real value. It was held by defendant Alexander Rodgers himself to be of so little value that he gave $25,000 of it to Lincoln Rodgers for the purpose of securing an indorsement upon the corporation paper to the amount of $5,000, and this transaction was accomplished only about a month prior to the making of the deeds.

Upon the facts as disclosed by the record, we have no hesitation in agreeing with the finding of the learned circuit judge that at the time the deeds were made the defendant Alexander Rodgers was not possessed of property, aside from that in question, sufficient to pay his debts. Under such circumstances the deeds must be set aside. Fellows v. Smith, 40 Mich. 689; Matson v. Melchor, 42 Mich. 477 (4 N. W. 200) ; Felker v. Chubb, 90 Mich. 24 (51 N. W. 110); Hackett v. Kenning, 170 Mich. 583 (136 N. W. 349).

The decree is affirmed, with costs.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    SLOMAN v. CADY.
    Attorney and Client — Fees—Action—Trial.
    In a suit for compensation of a firm of attorneys, testimony that the defendant consulted plaintiffs professionally in relation to his right to cumulate his votes as a corporate stockholder, though contradicted in part by defendant, justified the trial court in submitting to the jury the controverted issue, whether or not defendant consulted plaintiff.
    Error to Wayne; Shepherd, J., presiding.
    Submitted April 6, 1916.
    (Docket No. 25.)
    Decided June 1, 1916.
    Assumpsit in justice’s court by Adolph Sloman and Edmund M. Sloman, copartners as Sloman & Sloman, against Guy B. Cady for legal services. From a judgment for plaintiffs defendant appealed to the circuit court. Judgment for defendant. Plaintiffs bring error.
    Affirmed.

      Leon H. Hamburger (Sloman & Sloman, of counsel), for ¿ppellants.

      Louis C. Wurzer, for appellee.
   Steere, J.

This case originated in the justices’ courts for the city of Detroit, where plaintiffs recovered a judgment for $50 and costs against defendant. The amount of that judgment represented a charge for professional services claimed to have been rendered by one of plaintiffs to the defendant with reference to cumulative voting at a stockholders’ meeting of a corporation in which defendant was interested. Mr. Adolph Sloman. testified that in the latter part of December and the early part of January the defendant consulted him on about three occasions, and that upon the first occasion defendant told him there was likely to be some difficulty in an endeavor to freeze him out of his holdings—

“and we just talked of the matter informally at the time, and I suggested to him the advisability of transferring some of his shares of stock to some friends of his, so as to have a number there when the meeting was finally held.”

Testifying further, this witness said:

“On one occasion he kept me there from 12 o’clock noon until 2 o’clock, in the afternoon, discussing that, and figuring out various combinations he could make under the cumulative voting law.”

Defendant testified that, having business in the Penobscott Building:

“As I was coming out of there, I happened to think I would ask the question if I wasn’t right, if there were five directors and he held ten shares of stock, if he could not vote five times that number of shares for any director, or split it up five different ways, ten apiece for five directors. I stepped into Mr. Sloman’s office — it was about 11 or 11:30 — and Mr. Adolph Sloman was in the office alone. I asked him if that was correct, I said, T thought I would stop in to ask you’ —he said, T am not sure, I will look it up,’ but, having had previous experience, I said: ‘Never mind. I think I am right.’ He said: ‘Wait a minute, I will get the book.’ I said, ‘It doesn’t make any difference.’ He got the book, and I went over where I was sure I could get advice, to Mr. James Oxtoby, and Mr. Oxtoby told me what I wanted to know.”

Defendant further testified that he did not remain fin plaintiff’s office to exceed five minutes.

A verdict having been rendered in favor of defendant, plaintiffs now review the case in this court. There are five assignments of error, all relating to the charge of the court. The charge is short and in the course of it the following occurs: •

“I charge you that if the defendant did consult Mr. Sloman in relation to his interest in the Acme Chemical Company, as stated, and you find for the plaintiff, your verdict will be for the sum of $50, with interest.”

Taken as a whole, we are of opinion that the charge fairly presented to the jury the one controverted question of fact, i. e., whether the defendant consulted plaintiffs, and as a result of such consultation received the advice for which the bill was rendered.

The judgment is affirmed.

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


author: Brooke, J.

text:
    BARRAS v. BARRAS.
    1. Deeds — Destroyed Instruments — Burden of Proof.
    Where complainaDit alleged the making of a deed from his mother to his father, which was destroyed after the father’s death, the burden of proving the making of a valid deed is upon complainant.
    2. Same — Void Deed — Delivery—Blank Deed.
    A printed blank conveyance, with neither grantor, grantee, conveyance, nor description, containing in writing only the signature of the grantor, is an absolute nullity and cannot be given life even where the grantor gave the grantee oral authority to fill it in.
    3. Same — Destroyed Document — Contents—Presumptions.
    The presumption that the contents of a deed destroyed by defendants were as alleged by complainant has no application where its contents are established by positive testimony.
    4. Same — Husband and Wife — Agency—Owner.
    Evidence that the husband dealt with the lands for ten years after the giving of the alleged deed as agent for his wife, held, to negative the allegation that he claimed to be the legal owner.
    5. Trusts — Deeds—Consideration—Statute.
    Where the husband paid the consideration for the land, and title was taken in the name of the wife, no trust in favor of the husband can result. 3 Comp. Laws, § 8835; 3 Comp. Laws 1915, § 11571.
    Appeal from Iron; Flannigan, J.
    Submitted April 18, 1916.
    (Docket No. 22.)
    Decided June 1, 1916.
    Bill by Alpha C. Barras against Frances E. Barras and others to establish a deed, for an accounting, and for other relief. From a decree for defendants,- complainant appeals.
    Affirmed.

      John Power (A. H. Ryall, of counsel), for complainant.

      N. C. Spencer (F. A. Bell, of counsel), for defendants.
    The plaintiff in this case is the son of defendant Frances E. Barras and a brother of John H. Barras and Sarah J. Barras. The bill charges that complainant’s father, Edwin P. Barras, died intestate in the year 1901; that at the time of his death he was seised of certain real estate interests in Iron county; further, that the title to said real estate was taken in the name of his wife, defendant Frances E. Barras. It is next charged that in the fall of 1891 the defendant Frances E. Barras, for a good and sufficient consideration, conveyed all of said real estate and real estate interests by quitclaim deed, duly executed, witnessed, and delivered, to said Edwin P. Barras, which deed remained in the possession and under the control of said Edwin P. Barras up to the time of his death. It is further charged that within BO days after the death of said Edwin P. Barras the defendant Frances E. Barras, his widow, on going through the papers of hér deceased husband, discovered said quitclaim deed and destroyed it, and that thereafter said defendant claimed to be the legal and equitable owner of all the real estate and real estate interests described in said deed. The bill further charges upon information and belief that the other defendants, John II. Barras and Sarah J. Barras, were cognizant of the destruction of said deed, and that they are now participating in the profits, earnings, rents, and royalties collected from said real” estate and real estate interests with their mother, defendant Frances E. Barras. It is further charged that, the consideration for the purchase of said lands and interests in lands having been furnished by said Edwin P. Barras and the title thereto taken in the name of Frances E. Barras without consideration moving from her, she thereupon became and was trustee for the estate of Edwin P. Barras and his heirs. The bill prays that the real estate in question be decreed to be a part of the estate of Edwin P. Barras, deceased, and the property of his heirs in the proportion provided by law; second, that it be decreed that said defendant Frances E. -Barras now holds title to said real estate and real estate interests and said money in trust for the estate of Edwin P. Barras; third, for an accounting. The defendants filed a joint and several answer denying all the material allegations of the bill. Upon the hearing the complainant placed his mother, Frances E. Barras, upon the stand and examined her under the statute. With reference to the deed in question she gave the following testimony:

      “A. Well, a few years ago Mr. Barras drew up a blank and got me to sign a blank, and he said I would be going into the city and riding after fast horses, and said it didn’t amount to anything; that I could destroy it at any time; that I could destroy it as soon as I returned home; but if anything happened to me, he wouldn’t have a dollar. That happened just before I went to Chicago. The children were small at the time. I don’t just remember the year. I signed it and I put it in the trunk; in the Barras trunk where we kept our papers jointly. I read it over. There wasn’t anything to read over; just the blank, no figures or any writing on it at all. He wanted to protect himself. I know what became of that paper. I burned it; there was nothing on it. I burned it the year Mr. Barras died. When I told Alpha of it he threatened me; he made my life unhappy just through burning that blank. I did not show him the blank before I burned it. Sadie saw it. John was the first one who saw it in the' trunk. He said: v ‘Mother, you had better destroy it. It don’t amount to anything.’ And my daughter, she says, ‘Let me see it.’ She took it and-read it and looked it all over carefully; there was nothing on it except my signature, and she says: ‘You can destroy it. It don’t amount to anything.’ I did not show it to Alpha; he was not there.

      “Q. A few minutes ago I understood you to say that all the children were there when you first looked these over?

      “A. They were, but that was not found. My son John looked through the trunk. That was just after my husband’s death. I don’t remember if that was after or before I got the letter from Mrs. Ross.

      “Q. Just tell us again what your husband said the paper was when he signed it.

      “A. The blank?

      “Q. The blank, or whatever it was.

      “A. Why, he said I was going into the city and would be driving-after fast horses, and if I would be killed, then he wouldn’t have anything to show; he wouldn’t have a dollar.

      “Q. It was intended to be filled out with descriptions of the land you speak of?

      “A. Well, I suppose—

      “Q. Do you remember about the age of the children?

      “A. My youngest daughter was a little girl; yes. There were no witnesses to this paper at all. He had been in the habit of writing out his own deeds. I think he had frequently wrote out the Whole deed in longhand. He was capable of drawing a legal instrument.

      “Q. Do you remember what kind of a sheet of paper that was? * * *

      “A. I think they call it legal cap. It was single length. Shortly after signing that, I went to Chicago or somewhere to visit. I left the paper with Mr. Barras.

      “Q. Can you tell us how much money you paid for any of these lands?

      “A. Well, I did a man’s work in the post office; I had a position there, and saved in various ways. I think the total amount was about $400, $300 or $400. When these lands were given to me there wasn’t any talk as to what was to be done with these lands upon Mr. Barras’ death. He wanted me to have them; he gave them to me. He never said a word about how the children should share. I worked in the post office 3 years during Cleveland’s first administration. Mr. Barras had located quite a few lands before that. I can’t tell now which of these particular descriptions; it is so long ago, Mr. Barras died in August, 1901.

      “Q. Can you tell us now any closer than you have as to the date you burned this piece of paper with your ñame on it?

      “A. It was after we looked all through the trunk, and John went back afterwards to the trunk and found it; I knew it was there, but he found it. I intended to destroy it, but I neglected. Mr. Barras said I could burn it right after I came back, but I neglected it, and John found it there. I think that was about three or four weeks after his death; perhaps it might not have been so long as that; I can’t remember exactly.”
    Defendant Sarah J. Barras, also examined under the statute, corroborated the evidence of her mother as to the finding and destruction of the paper. She described the paper as follows:

      “There was nothing to read on the paper that was destroyed. It was nothing but a blank, a blank form of deed, no writing at all. No descriptions in it, or any writing, just her signature. There were no witnesses to it, nor any acknowledgment. I suppose it was in among the other papers. I don’t know where my brother found it. It was in the trunk. I didn’t see it when he found it in the trunk.”
    Defendant John H. Barras, called by complainant, testified in part as follows:
    “I was present at the time after father’s death and at the time mother and my sister looked over - these papers in the trunk. We did not find the blank that mother had signed until about a week after, or such a matter. I was looking through the papers to see if there was anything in the bottom of the trunk or what would be of any value, and I ran across this; and I knew that if it got into an outsider’s hands they might fill it out and make a little trouble, and I told her she had better burn it up; that she should not leave such things around. It was just a blank deed. I don’t remember whether it was a quitclaim deed or a warranty deed. It had no date on it, or any witnesses on its, no acknowledgment on it, just mother’s signature at the bottom, no other signatures at all. It was signed with mother’s name, ‘Frances E. Barras.’ I recognized her handwriting. I had- never heard of that deed before that time; I had never heard father mention it; had never heard of it talked about in the family. I did not know of its existence at all. I told mother to destroy it. She destroyed it; my sister saw her do it.”
    The complainant’s version of the making of the deed and its contents follows:
    “I remember of the execution of this paper that mother referred to, that she signed just before going away. * * * It occurred when I was about 18 years old.

      “A. Mother was going away on a trip, and my father told her that he wanted her .to sign the lands over to him, because if anything happened to her there might be trouble. His reason as to why he wanted her to sign was because she was going away and going to take some risk. As to where the property would go if she should die, he said that if mother should be killed, he would have trouble in getting it, because was in her name, and he wanted her to deed it to him. He made out the paper, on the kitchen table. I know that my father was a practical scrivener. He had been county clerk prior to that time; he made out all his legal papers. He always took the description from his head. He made out the tax receipts— * * * Well he made out the deed, and she signed it, and I signed it as a witness. After he died at Escanaba, my memory — I never thought anything more about it, until after he died, and I saw a letter from Mrs. John D. Ross in the kitchen. I was interested in family matters, and I picked it up and read it, and she said, ‘Burn the deeds/ I remember that well; than I thought of this. • I remembered the circumstances of her deeding to him, and immediately it occurred to me that it must have been that deed. So I accused mother, and she said she had, but when' I told her. it wasn’t right, she says: ‘What do you care?- You will get it anyway. I talked with her about this frequently. She admitted that she burned the deed. I talked with her about the contents of the deed. She knew that it covered these lands, and I did, too, in Iron county. I knew it covered these lands because he located those lands, and the other is — I thought those are the ones he was trying to have her deed to him at that time. I never heard of mother claiming that this was only a blank paper she signed before; that is, not until some time after, from something they had said about it. Prior to that time I had heard nothing about it. * * * When this deed was signed by my mother — he always kept his papers in the trunk upstairs. I don’t know where he kept this; I never saw it, but all his valuable papers were kept there. After mother signed the paper she gave it to him. It was put away the next day, as I remember it. As I remember, she went away. I think that was the evening of the day before she left. There was no such talk as mother says about her coming back. The deed was to be destroyed, when I was there.”
    On cross-examination, complainant testified:

      “I cannot say now from memory the descriptions that were in that deed that mother signed before she went to Chicago. I couldn’t tell the descriptions any more than from the conversations they had. Father wrote in some lands that stood in mother’s name. I don’t know that; I only signed as a witness. I know of some descriptions in this deed; I could see that. I wouldn’t remember which ones. Of the understanding there was between father and mother at the time she left, I only know as I heard their talk in the kitchen that night. That is all. As to an understanding that the instrument was to be of no effect whatever, if mother came back alive, I know nothing.”
    The record clearly shows that this transaction, whatever it was, occurred about the year 1891, and that Edwin P. Barras lived about 10 years thereafter. Various letters, leases, and options affecting the lands in question, or some of them, were introduced in evidence. These were all dated subsequent to the making of the alleged deed, and all were signed by defendant Frances E. Barras in person, or by Edwin P. Barras, as agent for her. Some correspondence was introduced between Edwin P. Barras and his son, the complainant, with reference to these lands, dated only a few months before the death of Edwin P. Barras. In one of these letters the writer referred to some of the lands in question as “my lands at Iron River,” and in others expressions are found indicating that Edwin P. Barras was exercising control over the interests, the legal title to which stood in the name of his wife, Frances E. Barras.
    The learned circuit judge who saw the witnesses upon the stand and heard them give their testimony, filed an opinion which concludes as follows:
    “John and Sarah, who were equally interested with the complainant, and who would profit equally with him if a deed from their mother to their father was established, both testified positively that the paper which the mother, at their suggestion, destroyed was a blank form of deed, with no writing whatever on it but the mother’s signature. But, to accept as truthful the mother’s statement that the paper she signed and destroyed was a mere blank, and was not the instrument claimed by the complainant, recourse to the corroborating testimony of John and Sarah, or to the many corroborating circumstances furnished by the testimony, is wholly unnecessary. It may be said of Mrs. Barras, if it may be said of any witness, that her appearance and manner on the witness stand made disbelief of her testimony impossible. On the other hand, the testimony of the son, who has asked the court to find that his mother, who, throughout his early life worked in the home and outside the home, that he might be comfortable and educated, and who gave him a mother’s love in abundance, deliberately destroyed a deed with the fraudulent and criminal purpose of defeating him out of an inheritance, and to further find she endeavored to make' her alleged fraudulent act effective by perjury, is wholly discredited.
    ' “A decree will be entered dismissing the bill of com-plant, with costs of the defendants to be taxed.”
   Brooke, J.

(after stating the facts). The burden of proof, in this cause is, of course, upon the plaintiff. Opposed to his testimony as to the contents of the paper which was destroyed is that of his mother, brother, and sister. Assuming the witnesses to be of equal credibility, it is plain that plaintiff has failed to establish his claim by a preponderance of the testimony. The learned circuit judge who saw and heard the witnesses was convinced by their manner and deportment that the defendants’ version of the matter was entitled to credence. Under such circumstances we have said:

“Much weight should ordinarily be given to the conclusion reached by the trial judge, who has had the opportunity of seeing and hearing the witnesses.” Grand Lodge A. O. U. W. v. Brown, 160 Mich. 437 (125 N. W. 400).

It is asserted by counsel for appellant that the destruction of documentary evidence, which in this case is admitted, raises a presumption that its contents were what is alleged by the other party. To this proposition appellant cites 1 Jones on Evidence, § 18, and 1 Wigmore on Evidence, § 291, and various authorities from other States. The trouble with the proposition advanced by appellant is not with the principle, but with its application to the facts in the case under consideration. If the evidence introduced on behalf of defendants is believed — and it was believed by the learned circuit judge — then the paper destroyed was an absolute nullity, a printed blank conveyance with neither grantor, grantee, consideration, nor description, containing in writing only the signature of defendant Frances E. Barras. Such a paper could not legally have been given life by Edwin P. Barras, even if Mrs. Frances E. Barras gave him oral authority to fill it in. Newton v. McKay, 29 Mich. 1; Lindsley v. Lamb, 34 Mich. 509; and Maynard v. Davis, 127 Mich. 571 (86 N. W. 1051).

According to the testimony of defendant Frances E. Barras it was agreed between her and her husband that the instrument, whatever it was, should or might be destroyed by her upon her return from Chicago. This testimony is not controverted, although complainant gave evidence to the effect that he heard no such agreement between his father and mother at the time the paper was signed.

It is urged on behalf of appellant that the course of dealing indulged in by Edwin P. Barras with reference to the lands in question as evidenced by his correspondence is convincing proof of the fact that he claimed to be the beneficial owner thereof, and exercised an owner’s dominion thereover. An examination of the entire record upon this point convinces us that Edwin P. Barras dealt with the lands after 1891 entirely as agent for his wife and for Mr. Ross, his brother-in-law, who owned an undivided interest in the same. During the 10 years which elapsed between the time when the paper was signed by his wife and his death, Edwin P. Barras doubtless could have secured from his wife a valid conveyance of said lands. He appears, however, to have been content to permit the legal title to rest in his wife, where it had been for upwards of a quarter of a century. •

The lands and interests therein involved in this cause appear to have been purchased with money furnished in part by Mr. Ross, a brother-in-law of Edwin P. Barras, and in a small part with money furnished by defendant Frances E. Barras. The lands were selected by Edwin P. Barras, and for his services an undivided interest was, at his request, deeded to his wife, defendant Frances E. Barras. Under such circumstances the consideration having been paid by him, and the title taken in her, no trust can result. The statute (section 8835, 3 Comp. Laws [3 Comp. Laws 1915, § 11571]) forbids it. See, also, Barnes v. Munro, 95 Mich. 612 (55 N. W. 431); Winans v. Winans’ Estate, 99 Mich. 74 (57 N. W. 1088); Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941).

The decree will stand affirmed, with costs to appellees.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Person, JJ., concurred. Bird, J., did not sit.


text:
    HUTCHINSON v. WESTBROOK.
    1. Fraud — Charge—Appeal and Error — Harmless Error.
    On the trial of an action for fraudulent representations made in exchanging certain real property, the trial court did not commit error in charging the jury that there were two remedies for fraud, one hy rescinding the transaction and recovering any consideration received hy the other party, the other by retaining what had been received and suing for the fraud; that it sometimes becomes impossible or impracticable to bring an action to rescind a contract for fraud, because the property has changed hands, etc.; and, while the charge did not state the law in a correct manner, and plaintiff could have brought his action for rescission even though defendant had disposed of the property, the statement did not harm the appellant, and merely amounted to an instruction that the plaintiff was properly in court in a sufficient form of suit or proceeding.
    2. Same — Charge—Measure of Damages.
    But the court committed prejudicial error in charging that the measure of damages is the difference between the ' actual value of the land and the value that plaintiff thought it had because of the false representations: the correct measure of damages being the difference between the value as it had been represented and what it was actually worth.

    3. Same — Laches—Limitations.
    No delay within the statute of limitations was sufficient to defeat the plaintiff’s right of action for fraud and deceit.
    4. Evidence.
    Evidence tending to vary the terms of a written contract should be excluded.
    Error to Emmet; Shepherd, J.
    Submitted April 19, 1916.
    (Docket No. 50.)
    Decided June 1, 1916.

      Case by Andrew H. Hutchinson and another against D. Frank Westbrook for fraud and deceit in the exchange of certain real estate. Judgment for plaintiffs. Defendant brings error.
    Reversed.

      Halstead & Halstead, for appellant.

      C. J. Pailthorp, for appellees.
    On March 5, 1914, plaintiffs, who resided in or near the city of Detroit, entered into a contract with the defendant, who resided in Emmet county, Mich., by the terms of which the plaintiffs agreed to assign to defendant their interest under certain land contracts covering several lots in the vicinity of Detroit. They further agreed to pay to the defendant $500 on or before January 1, 1916, $1,000 on January 1, 1917, $1,000 January 1, 1918, and $1,000 January 1, 1919, with interest at the rate of 6 per cent, per annum to be paid January 1, 1915, and annually thereafter. In consideration of which defendant agreed to convey to the plaintiffs 120 acres of land lying in the township of Emmet. A supplemental agreement of the same date entered into between Hutchinson and Westbrook provided for the transfer to defendant Westbrook of two other lots, said West-brook upon obtaining possession thereof to apply the value thereof, $850, after paying the incumbrance thereon and any expense borne by Westbrook to obtain possession, upon the last payment of the contract for the sale of the farm. Shortly after the execution of the contracts in question, plaintiffs followed defendant north to Emmet county and entered into possession of the farm. They continued in possession during the year 1914, and on February 18, 1915, brought their suit against defendant. In the meantime defendant had disposed of all the lots, except one assigned to him by plaintiffs as a part of the purchase price for the farm. In this suit the contract between the parties is affirmed and plaintiffs seek to recover damages from defendant by reason of alleged false and fraudulent representations made by defendant to them touching the character of the soil, the timber, the conditions as to water, and the value of the farm sold to them by defendant. Defendant filed a plea of the general issue with notice of set-off. The case was submitted to the jury after a rather protracted trial, and a verdict was rendered in favor of plaintiffs over and above the set-off claimed by the defendant, in the sum of $1,450.70.

       For authorities passing upon the question of measure of damages for fraudulent representations in sale or exchange of real property, see notes in 8 L. R. A. (N. S.) 804; 16 L. R. A. (N. S.) 818.

   Brooke, J.

(after stating the facts). In his charge to the jury the court used the following language:

“Now, when a person has been defrauded in the purchase of either real or personal property, or in trading for it, he has two courses before him. In other words, as it has been stated, he has an election as to his remedy at law for the same. He may rescind the contract absolutely and restore the property to the party guilty of such fraud, and then sue for the consideration paid, or he may retain what he has received and bring an action to recover the damages occasioned by the fraud; but he cannot do both. He cannot take proceedings both in affirmance of the contract and also in rescission of the contract. In this case the plaintiffs affirm the contract and bring suit for damages alleged to have been sustained by them because of the alleged fraud.
“They had a right to do this, just as much right to bring an action in affirmance of the contract as they had a right to bring an action in rescission of the contract. Sometimes it becomes impossible or impracticable to bring an action to rescind a contract because of fraud, because the property may have changed hands, changed ownership. For instance in this case, if either party had disposed of any of the property and had disposed of it to people who were innocent, and acquired any of the property for a valuable consideration, knowing nothing of any claim of fraud, they could not be disturbed, and it would be impossible, therefore, to put the parties in the shape they were originally in. So in such a case it would be impossible to rescind the contract, and the only alternative the plaintiffs would have left would be to bring the action that has been brought in this case; that is, a suit for the damages sustained by reason of the alleged fraudulent representations.”

Error is assigned upon the latter portion of this excerpt commencing with the words “sometimes it becomes impossible.’ While it may be true that the portion of the charge of which complaint is made is not strictly a proper statement of the law, and that plaintiff may bring an action in rescission of the contract, even though defendant has disposed of the property received by him, in which event the value of the property so disposed of could be recovered (9 Cyc. p. 433; 20 Cyc. p. 87), we are of opinion that the section of the charge quoted, taken as a whole, is not erroneous, for the reason that, after all, it amounts only to the statement that the plaintiffs were properly in court under the form of action selected by them.

Error is next assigned upon the charge of the court with relation to the measure of damages. Upon this point the court charged:

“The amount of damages that plaintiffs will be entitled to recover, if they are entitled to recover anything, is the difference between the value of the property purchased, had it answered the representations relied on by plaintiffs, and its value as it actually was.
“I will use figures altogether foreign to the figures used here, merely for the purpose of illustration. I fear that if I used the figures here you might think I intended to have you adopt them as correct. For instance, if I buy a piece of property in the city of Petoskey, and I, relying upon the representations of the vendor, believe that it is worth $20,000, when, as a matter of fact, it is worth only $10,000, then I am entitled to recover in an action brought of this kind, if I prove my facts in accordance with the rule laid down, the difference between $20,000 and $10,000, which would be $10,000, which I would be entitled to recover.”

After the conclusion of the charge, questions weré asked by certain of the jurors with reference to the measure of damages, in the course of his answers to which the court said:

“Now, it is a settled rule of law, in cases like this, the damages allowed the plaintiffs, if they are entitled to recover, is what, from the representations made, they believed the farm to be worth, and then subtract from that what the farm was actually worth, and there we have the damages.”

Several assignments of error are based upon these instructions to the jury. The first statement of the court with reference to the measure of damages was correct. The illustration following that statement and the later statement contained in his answer to the jury are erroneous. In the late case of Haener v. McKenzie 188 Mich. 27 (154 N. W. 59), we said:

“The measure of damages in such a case, where there is no rescission, is the difference between the value of the premises had they been as represented and what they were actually worth. Wegner v. Herkimer, 167 Mich. 593 (133 N. W. 623).”

We are of opinion that the statement of the court that the measure of damages would be the amount of difference between what plaintiffs believed, from the alleged representations made, the farm to be worth, and what it actually was worth, was not only erroneous, but prejudicial.

Assignments 5 and 6 are based upon the refusal of the court to charge as requested by defendant. We are of opinion that neither request as tendered should have been given. While it is true that a party defrauded is bound to make complaint of the fraud without unreasonable delay, we are of opinion that plaintiffs in the case at bar are not to be charged with laches.

“We do not think that any delay within the statute of limitations can be urged in such a case as this. Dayton v. Monroe, 47 Mich. 193 (10 N. W. 196).” Wegner v. Herkimer, 167 Mich. 587 (133 N. W. 623).

The remaining assignments of error refer to the rulings of the court with reference to the admission or exclusion of testimony. It is unnecessary to consider them seriatim. It is sufficient to say that, so far as the witness Kelly was permitted to give testimony tending to vary the terms of the written contract, it should have been excluded. Upon a new trial these questions are not likely to arise.

For the error in.the charge with reference to the measure of damages, the case is reversed, and a new-trial ordered, with costs, to appellant.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Person, JJ., concurred. Bird, J., did not sit.


text:
    THOMAS v. NICOLLS.
    1. Parties — Cancellation of Instruments — Equity—Estates of Decedents — Cross-Bill.
    A cross-bill by tbe former administrator of a decedent’s estate who bad been discharged from bis official position may be sustained in a suit to cancel certain deeds made to bim by tbe persons having an interest in tbe estate, all of tbe heirs being represented in tbe case, though tbe estate was not one of tbe parties to tbe bill of complaint and was not brought in by tbe cross-bill.

      2. Samet-Amendment — Equity.
    The trial court improperly permitted the filing of an amended answer setting up a counterclaim, for services rendered hy the defendant administrator, to the estate, as the Question of services was distinct from the issues made hy the hill of complaint.
    Appeal from St. Joseph; Knowlen, J.
    Submitted
    April 11, 1916.
    (Docket No. 81.)
    Decided June 1, 1916.
    Bill by Caroline Thomas and others against George Nicolls and another for the cancellation of certain deeds. From an order overruling a demurrer to the amended answer and cross-bill, complainants appeal.
    Reversed.

      Charles H. Farrell, for complainants.

      Edtoard L. Yaple (George L. Yaple, of counsel), for defendants.
    On March 3, 1912, Lydia M. Beard died, leaving as her only heirs at law complainant Caroline Thomas, a sister, Mary J. Robinson, a sister, William H. Nicolls, a brother, George Nicolls, defendant, a brother, and Fred J. Phillips, complainant, a nephew. At the time of her death Mrs. Beard was seised of a farm of 120 acres, of the value of $6,000, and a house and lot in the village of Mendon of the value of $500. In addition to the real estate she left certain growing crops upon the farm and a small amount of personal property. On April 8, 1912, defendant George Nicolls was appointed as administrator of the estate of his sister Lydia M. Beard. Prior to, or soon after; his appointment as such administrator, he secured from his brother, his two sisters, and his nephew quitclaim deeds, by which they conveyed to him their several interests in the estate of Lydia M. Beard. He likewise secured from each a receipt for his or her respective share in the personal property belonging to said estate. Commissioners upon claims were appointed and' defendant George Nicolls paid such claims as were allowed. On August 20,1912, the probate court made a final order, closing the estate and discharging defendant from further duties as administrator, at the same time making an order assigning said real estate to the five heirs at law. Thereafter defendant George Nicolls and his wife, Lotta Nicolls, claimed to be the sole owners of the real estate in question, and they were such of record. The following month, September, 1912, complainant Caroline Thomas filed her bill of complaint against defendants, in which she charged that the quitclaim deed executed by her to defendañts was procured by her brother, defendant George Nicolls, through the exercise of fraud and misrepresentation, and prayed that said deed be set aside and for an accounting. Later the other sister and brother and the nephew of Lydia M. Beard filed similar bills, making the same or similar charges and praying for the same relief. To these several bills of complaint defendants' filed an answer denying all charges of fraud and misrepresentation, but prayed for no affirmative relief. Defendant adjusted the claim of his brother William H. Nicolls, and his sister Mary J. Robinson, out of court, and their suits were discontinued. The remaining suits, that of Caroline Thomas, sister of deceased, and Fred J. Phillips, nephew of deceased, were consolidated, and were heard as one cause in the circuit court. After a full hearing upon the merits the learned circuit j’udge filed an opinion, in which he found that defendant George. Nicolls, in the procuring of the quitclaim deeds in question, had been guilty of fraud and misrepresentation, and determined that for that reason said deeds should be set aside. He, however, found further that the defendant George Nicolls had rendered valuable services to Lydia M. Beard in her lifetime, and that he had paid certain sums as administrator of her estate, all of which he should be, by rights, permitted to recover out of the estate, he at the same time to be charged with the value of all personal property coming into his possession as administrator of his sister’s estate, together with the rents, issues, and profits of the real estate since it came into his possession. The court, therefore, directed that the defendant be then permitted to file an amended answer in the nature of a cross-bill, in which he might set up his claim for disbursements in connection with the estate of Lydia M. Beard, as well as his claim for ser-" vices rendered to said Lydia M. Beard in her lifetime. He further provided that complainants might file to such amended answer and cross-bill such exception, objection, answer, or other plea as they desired, and asserted that he would then, if necessary, direct the framing of such issues as might appear to be necessary, and that either party might notice the matter for hearing. His opinion closes with the following paragraph:
    “If upon a full accounting, the court shall find no equitable balance in defendant’s favor, the court will make its final decree accordingly, and will therein set aside said deeds unconditionally and unqualifiedly; but if the court shall find and adjudicate any equitable balance in defendant’s favor, the court will, by its final decree, make such order and decree as shall equitably determine and dispose of the rights and interests of the parties, either by the setting aside of said deeds, subject to a lien thereon in favor of defendant, or by such other provision, order, and decree as the court may then determine to be in accord with the just and equitable rights and interests of the parties.”
    Under the permission so granted defendant George Micolls immediately filed an answer by way of a cross-bill, setting out his dealings with Lydia M. Beard in her lifetime, as well as those with her estate after her death, and subjoined thereto a statement of account showing a balance in his favor of $5,584.03, an amount nearly equal to the value of the estate as found by the circuit judge. Upon the filing of said answer and cross-bill complainants interposed a demurrer, based upon the following reasons:

      “First, because there is no equity in the same; second, because a court of chancery has no jurisdiction to hear and determine claims against the estates of decedents; third, because a court of chancery has no jurisdiction to hear and determine such claims as the ones set forth therein; fourth, because defendants asked no affirmative relief in their original-answer; fifth, because defendants asked for no other or further relief in their amended answer than the allowance of a certain claim against the estate of Lydia M. Beard, deceased; sixth, because the estate of the said Lydia M. Beard, deceased, is not a party to the present suit; seventh, because all of the matters set forth in defendants’ amended answer, whereof relief is prayed, are matters which may be tried and determined in a suit at law, and with respect to which defendants are not entitled to any relief in a court of equity.”
    The learned circuit judge having overruled said demurrer, complainants seek a review in this court, urging the same grounds stated and urged in the court below.
   Brooke, J.

(after stating the facts). On behalf of appellants it is urged: First, that the proper parties are not in court. It is their contention that the issues sought to be raised by the cross-bill is one between the defendants and the estate of Lydia M. Beard, and that the estate is not before the court. While technically this is true, all the parties interested in the estate are in court, the defendants owning three-fifths of the real estate and the complainants owning two-fifths thereof. We think this contention without force.

It is next urged that, inasmuch as defendants in their original answer prayed for no affirmative relief, the court is without any authority to grant such relief under the amended answer and cross-bill. In the authorities cited by appellant in support of this contention, among which are Village of Trenton v. Rucker, 162 Mich. 19 (127 N. W. 39, 34 L. R. A. [N. S.] 569), McManus v. City of Petoskey, 164 Mich. 390 (129 N. W. 681), and Barras v. Youngs, 185 Mich. 496 (152 N. W. 219), it will be noted that under the several records presented for consideration in this court, there was no prayer for affirmative relief on the part of the defendants. In the case at bar there is such a prayer in the amended answer and cross-bill, so that, if it was proper for the court to permit the filing óf that pleading, the authorities cited by appellants upon this point are without force.

Appellants next claim that a court of equity is without jurisdiction to allow a claim against the estate of a decedent. Many authorities are cited by appellant to the proposition that estates of decedents are not settled in courts of chancery, but must be settled through proper proceedings in the probate court. Among the cases cited are the following: Brooks v. Hargrave, 179 Mich. 136 (146 N. W. 325), Powell v. Pennock, 181 Mich. 588 (148 N. W. 430), and cases there cited. The general rule is not questioned by appellees, but they assert that in a case in which the court of chancery has undoubted jurisdiction upon other grounds, it may, as an incident to the exercise of that jurisdiction, allow or disallow a claim against an estate. We find it unnecessary to pass upon this contention.

The question whether there is any equity in defendants’ cross-bill still remain^. We have no doubt that in the exercise of a sound discretion, and under our liberal statute relative to amendments, a circuit court may, even at the stage of the proceedings when such action was taken in the case at bar, permit an amendment germane to the issue raised by the original bill in the furtherance of justice. We are, however, unable to see how the question of defendant George Nicolls’ services to Lydia M. Beard in her lifetime, his services as administrator, or his disbursements as such administrator have the remotest bearing upon the issue raised by the original bill and answer, which was whether or not he had secured the execution of the quitclaim deeds in question through the exercise of fraud and misrepresentation. The learned circuit judge who heard the- case seems to have been of the opinion that because Nicolls relied upon the fraudulent deeds, and because of such reliance failed seasonably to present his claims against the estate, he should now be permitted to urge these claims in a court of equity. We can see no reason for so holding. By fraud and misrepresentation, as found by the trial court, Nicolls sought to and did overreach his brother, his sisters, and his nephew. Resting upon his rights acquired under the instruments so obtained by fraud, he refrained from presenting the several claims against his sister’s estate in due season. Complainants are in no sense responsible for this failure to act on his part. Having failed in his efforts to sustain his acts, and thereby being deprived of the fruits of his fraudulent conduct, there is no equitable consideration which should move a court of equity to grant him any assistance to regain that which he has apparently lost through his own wrong.

The order of the court below, overruling the demurrer, is reversed, the demurrer is sustained, and the case is remanded for further proceedings, with costs to appellants.

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


text:
    AUDITOR GENERAL v. WOODARD.
    . Municipal Corporations — Special Assessment — Estoppel.
    The owner of property does not estop herself from, making objections to the sale of her property for a pavement tax by signing the petition for the improvement, where a majority of the owners of frontage did not sign the petition: the property owner is entitled to a valid or sufficient assessment and to lawful proceedings to effect it.
    Appeal from Shiawassee; Miner, J.
    Submitted April 10, 1916.
    (Docket No. 60.)
    Decided June 1, 1916.
    Petition by Oramel B. Fuller against Sadie Woodard for the sale of certain lands for taxes thereon. From a decree for defendant, petitioner appeals.
    Affirmed.

      Seth Q. Pulver, for petitioner.

      Elbern Parsons, for defendant.
   Brooke, J.

In this case the plaintiff seeks to sell defendant’s property for the nonpayment of a paving tax. The petition under 1 Comp. Laws, § 3304, as amended by Act No. 136, Pub. Acts 1899 (1 Comp. Laws 1915, § 3326) (which authorizes the construction of improvements when a majority of the owners of the frontage request it), was presented to the common council of the city of Owosso. Taking this as a basis for the jurisdiction for the construction of a pavement, the common council proceeded to make the improvement and levy the tax in question in this case.

Upon the filing of the petition of the auditor general for the sale of the lands of defendant for this special assessment, the defendant filed certain objections. Among them is one that the council never acquired jurisdiction to make the improvement by reason of the fact that a majority of the property owners had not signed the petition. It was conceded in the court below, and it is conceded in this court, that the petition which is the basis of all the subsequent proceedings is not .signed by a majority of the owners of property fronting upon said improvement. It was, however, signed by Frank Greenman, who was at that time the owner of the property affected by the assessment in this case, and who afterwards conveyed it to the defendant herein. It is conceded on behalf of the plaintiff and appellant, against whom a decree was rendered in the court below, that the decree was right, unless the fact that the petition for the improvement was signed by Greenman, defendant’s grantor, operates as an estoppel.

Both parties to the proceeding cite Motz v. City of Detroit, 18 Mich. 495, and Steckert v. City of East Saginaw, 22 Mich. 104. In the first case, in an opinion by Justice Cooley, it was held that the signer of a petition for an improvement is estopped from denying the validity of the charter and ordinance under which the proceedings were had.

In the second case the same justice, in distinguishing it from the Motz Case, said:

“The case before us, however, is of a different character. The complainants do not claim that the charter under which'the assessment was made is void, but they complain that its provisions have not been followed. Three of the complainants admit asking that the improvement be made in accordance with the law, but they aver that the attempt has been made to construct it-in disregard of the law, and that their interests are injuriously affected by the failure of the council to follow the statutory provisions. If they are correct in their facts, we do not see how they can be estopped from claiming relief.”

Later cases touching the question are: Taylor v. Burnap, 39 Mich. 739, Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583), Auditor General v. Stoddard, 147 Mich. 329 (110 N. W. 944), and the late case of Auditor General v. Johns, 190 Mich. 610 (157 N. W. 76).

The general principle governing the question is stated in Hamilton Law of Special Assessments:

Section 338:

“One who signs a petition for a public improvement is justified in the presumption that the corporate authorities will proceed in accordance with law. He does not petition for an illegal assessment, and is not estopped by his signing the petition from challenging the validity of the assessment upon which it is based, or the lack of jurisdiction.”

Section 725:

“But the courts are quite widely at variance as to how far the petitioner is actually estopped, although by both weight and number of authority it is generally held that the petitioner is not estopped to challenge the validity of the assessment, or the certificate issued to pay for it. There is no presumption that by asking for the improvement he desired it done other than according to law, or that he intended to bind his property for more than his share of a legal assessment.”

The decree is affirmed, with costs.

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


author: BROOKE, J.

text:
      In re ROCKETT’S ESTATE. BUTLER v. ROCKETT.
    1. Constitutional Law — Probate Courts — Original Jurisdiction —Amendment—Statutes.
    Under sections 10 and 13, Art. vii, of the Constitution, conferring original jurisdiction on the probate courts and on the circuit courts, together with appellate jurisdiction in certain cases, it was not beyond the legislative power .to make provision for the certification to the circuit court of contests in relation to wills upon the application of an interested party, as authorized by Act No. 238, Pub. Acts 1911; 3 Comp. Laws 1915, § 14145.
    2. Same — Amendment—Re-enactment.
    Nor did the amending statute violate the constitutional requirement, in that the amending enactment related to section 650, 1 Comp. Laws, -rather than section 669, which governed appeals, and which was the one re-enacted: the particular section selected was properly enough published in full as required by the constitutional provisions.
    3. Wills — Insanity—Degree as Aeeecting Testament.
    No error was committed by the trial court, on the issue of insanity of the testator, in instructing the jury that, if one was under the influence of an insane delusion which' was in existence at the time of execution, and operative, the will was vitiated, for thereby that will if not wholly is at least partially the product of such insane delusion, but if such person harbors insane delusions and these delusions enter into his execution of the will, then it is evidence that the will is in some degree the product of the delusion and, if it be, it cannot stand as a valid will, that even though one have insane delusions, if they do not enter into the execution of the will, if they have no effect or influence upon it, the will is valid, the requisite degree of mental capacity being present.

      4. Same.
    An instruction, that an insane delusion which became operative in the will was such a delusion as would vitiate it, was correct.
    5. Same — New Trial — Weight op Evidence.
    The trial court also was warranted by the evidence, which tended to show mental incapacity, in submitting to the jury that issue, and in the denial of a new trial, on the ground of the weight of the evidence. Held, also, that affidavits setting up newly discovered testimony did not appear likely to change the result.
    Error to Isabella; Murphy, J., presiding.
    Submitted April 7, 1916.
    (Docket No. 39.)
    Decided June 1, 1916.
    William G. Butler presented for probate the last will of Alice T. Rockett, deceased, which was contested by Harvey Rockett. The probate court certified the case to the circuit court pursuant to the provisions of section 14145, 3 Comp. Laws 1915. • Judgment for contestant, Proponent brings error.
    Affirmed.

      F. Ii. Dodds, H. A. Sanford, and R. J. Hyde, for appellant.

      F. H. Dnsenbury and F. McNamara, for appellee.
    This proceeding involves a contest over the will of Alice T. Rockett. The will is dated January 16, 1913, and the testatrix died on February 19, 1913. The contestant, Harvey Rockett, was the husband of the testatrix, and they had lived together about 26 years. No children were born of the union. The will in question disposed of certain personal property of insignificant value, and then bequeathed to her husband, the contestant, a life estate in a house, barn, and lot in the city of Coleman, with remainder over to Lauretta Rockett. The farm of 80 acres, worth about $6,000, which had been occupied by the testatrix and her husband for many years, and the title to which stood in the name of the testatrix, was by the will devised to the Independent Order of Odd Fellows’ Home at Jackson. The will closes with the following assertion:
    “I do not owe my husband, Harvey Rockett, and he cannot justly present a claim against my estate for anything arising before this date.”
    The instrument was executed with all necessary legal formalities. It was contested upon the ground: First, that at the time of its execution the testatrix was not possessed of sufficient testamentary capacity to make the will; and, second, that the execution of said will was procured through fraud, duress, and undue influence. After the will was filed for probate in the probate court for the county of Isabella the contestant filed a petition under Act No. 238, Pub. Acts 1911 (3 Comp. Laws 1915, § 14145), praying for the certification of said cause to the circuit court of said county for trial. Objection was interposed upon the hearing of said motion in the probate court, and an exception was taken to the making of the order certifying the matter to the circuit court, before the probate court had either admitted or refused to admit the will to probate. In the circuit court proponent moved that the certification of the contest over the will in question from the probate court to the circuit court for said county be held for naught, assigning various reasons for said motion. This motion being denied, the contest was heard in the circuit court, and resulted in a verdict disallowing the will.
    The learned circuit judge who tried the case withdrew from the consideration of the jury questions of fraud and undue influence, holding that there was no evidence that the will in question had been executed through the exercise of either. The question of the testamentary capacity of the testatrix, however, was submitted to the jury under very exhaustive instructions, which occupy some 15 pages of the record. The contest having resulted adversely to the contention of the proponent, a motion was made to set aside and vacate the verdict, based upon 23 separate grounds, the last* of which was that newly discovered evidence would be available upon another trial.
    In this court counsel for appellant present their argument under five different heads:
    (1) The constitutionality of Act No. 238, Pub. Acts 1911.
    (2) (3) Alleged errors in the instructions of the court to the jury.
    (4) Was the verdict, and afterwards the finding of the trial judge, warranted by the evidence.
    (5) Newly discovered evidence.

       Upon the question of effect of insane delusions as proof of incapacity of testator to make will, see note in 27 L. R. A. (N. S.) 62. And as to circumstances under which cumulative evidence has or has not been held to render a different outcome probable, see note in 46 L. R. A. (N. S.) 911.

   BROOKE, J.

(after stating the facts). The first question discussed by appellants relates to the constitutionality of Act No. 238, Pub. Acts 1911. The act purports to amend section 25 of chapter 33, compiler’^ section 669, 1 Comp. Laws. The section originally read as follows:

“In all cases not otherwise provided for, any person aggrieved by any order, sentence, decree or denial of a judge of probate, may appeal therefrom to the circuit court for the same county, by filing a notice thereof with the judge of probate within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section.”

The amendatory act added the following proviso to this section (3 Comp. Laws 1915, § 14145):

“Provided, however, that any probate judge shall have power in all contests over the allowance or dis-allowance of wills, before the hearing thereof in probate court, to certify the same to the circuit court for the same county for hearing, upon application of any interested party in said contest, in the same way and subject to the same provisions as are now provided for in appeals from the probate court to the circuit court mentioned in this section.”

The Constitution (section 13, art. 7) provides:

“In each county organized for judicial purposes, there shall be a probate court. The jurisdiction, powers and duties of such courts and of the judges thereof shall be prescribed by law, and they shall also have original jurisdiction in all cases of juvenile delinquents and dependents.”

Section 10 of article 7 follows:

“Circuit courts shall have original jurisdiction in all matters civil and criminal not excepted in this Constitution and not prohibited by law, and appellate jurisdiction from all inferior courts and tribunals and a supervisory control of the same.”

It appears to be the contention of the appellants that under the constitutional provisions above set forth the legislature is without power to grant to the circuit courts original jurisdiction in the matter of probating wills in cases where a contest arises. Many cases are cited from this court to the eifect that probate courts have exclusive jurisdiction over the settlement of estates of deceased persons, except where their remedies are inadequate, or the interposition of equity is necessary for some auxiliary purpose.

The general principle announced is not questioned, but it is not applicable when a specific statutory enabling act is under consideration. The circuit court under its appellate jurisdiction has at all times exercised the right to allow or disallow wills for probate. We can see no reason upon principle why the legislature may not clothe that'court with original jurisdiction covering the identical controversy. Nor can we see how the appellant is in any wise injured in the premises. Had the will originally been admitted to probate, the contestant by appeal could have taken the matter to the circuit court, where the case would have been heard exactly as it was heard.

Again, it is urged that the act in question (Act No. 288, Pub. Acts 1911) offends the Constitution (section 21, art. 5):

“ * * No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.”

The argument under this contention is that the section really sought to be amended — i. e., section 650, 1 Comp. Laws (8 Comp. Laws 1915, § 18764) — was not re-enacted and published at length, because section 650 relates to the jurisdiction of probate courts, whereas section 669, the one amended, relates to appeals. We are of opinion that the point made is without merit. The purpose of the legislation is plain, and we think the amendment could as well be made to section 669 as to section 650.

The second and third sections of the main brief for appellant are devoted to the discussion of exceptions to the charge of the court, and mainly to the proposition that the court erred in his instructions to the jury with reference to the question of insane delusions. Excerpts are taken from the charge, and from them it is argued that the court permitted the jury to deny the probate of the will in question if they found that the testatrix was possessed of insane delusions, even though these insane delusions did not exist “to that extent that they completely dominated the mind in making the will.” The court did charge the jury as follows:

“For, gentlemen of the jury, if one be under the influence of an insane delusion, and that insane delusion is in existence at the time of the execution of the proposed will, and operative in it, the will is vitiated; for thereby that will, if not wholly, is at least partially, the product of such insane delusion. * * * But if, in other words, that person harbors insane delusions, and these delusions enter into his execution of the will, then, gentlemen of the jury, it.is evidence that the will is in some degree the product of the delusion, and, if it be, it cannot stand as a valid will. But, gentlemen of the jury,- it follows from what I have just said that, even though one have insane delusions, if these insane delusions dp not enter into the execution of the will, if they have no effect or influence upon it, if they are not operative in it, then, gentlemen of the jury, notwithstanding the delusions, the will would be a valid instrument if it complies in general with what I directed a moment ago was the necessary degree of mental capacity required in the making' of a will.”

Upon this point appellant cites and relies upon In re Shanahan’s Estate, 176 Mich. 137 (142 N. W. 573). While a part of the charge in that case was quoted in the opinion, and while the trial judge in that case instructed the jury that they must find that the insane delusion “completely dominated” the mind of the testator, an examination of the case will show that the important question involved was whether the court erred in not submitting the question of undue influence to the jury. Under the facts of that case that charge was proper. We are of opinion, however, that, taken as a whole, the charge in the case at bar carefully covered every proper request preferred by the proponent, and that the instruction that an insane delusion which became operative in the will was such a delusion as would vitiate the will was proper. In passing upon the sufficiency of a charge the entire charge must be examined and taken as a whole. Rouse v. Railways Co., 158 Mich. 109 (122 N. W. 532).

The fourth contention of appellant is based upon the assertion that the court should have directed a verdict in favor of the proponent, or, after verdict, should have disallowed the same and entered a judgment in favor of proponent. The assignments of error under this head go to the whole case and involve a consideration of all the testimony in the record bearing upon the question of the testamentary capacity of the testatrix. Much evidence was introduced on both sides of this question, which it would be unprofitable to examine. It is, we think, clear that sufficient evidence was introduced by the contestant bearing upon the question of the mental capacity, of the testatrix to warrant the court in taking the verdict of the jury upon that question, and we are unable to say that, the denial of a new trial on the ground that the verdict was against the weight of evidence was such an abuse of discretion as would warrant a reversal in this court upon that ground.

An examination of the application for a new trial and the affidavits as to newly discovered evidence upon which, in part, the motion was based, convinces us that no error was committed by the trial judge in refusing a new trial upon that ground. It is, we think, not likely that a different result would be reached upon another trial, even were the proposed new evidence in the case. Under such circumstances the court should not award a new trial. National Surety Co. v. Grant, 177 Mich. 348 (143 N. W. 5).

The judgment is affirmed.

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


text:
    SOUTH BRANCH CHEESE CO. v. AMERICAN BUTTER & CHEESE CO.
    1. Sales — Contracts—Offer and Acceptance.
    Correspondence between plaintiff and defendant in relation to a shipment of cheese, showing, after preliminary negotiations, an offer of 200 boxes at 13% cents, a response from defendant to try 50 .boxes and, if satisfactory, to purchase more, and telegram and letter stating that the fifty-box shipment was satisfactory, and plaintiff’s offer accepted for 200 boxes at the price stated, held, to constitute an offer and acceptance and create a binding contract.
    2. Same — Mail—Letters.
    An offer made by mail on Friday of one week received the following day, when the buyer acknowledged receipt and replied that it would accept as soon as the sample shipment arrived, which in fact did arrive on Monday thereafter, when defendant forwarded an unconditional acceptance by wire, was sufficiently prompt to effect. a sale, and was an acceptance of the continuing offer, that contained no express limit as to time.
    Error to Wayne; Codd, J.
    Submitted April 12,1916.
    (Docket No. 7.)
    Decided June 1, 1916.
    ■Assumpsit on the common counts in justice’s court by the South Branch Cheese Company, a corporation, against the American Butter & Cheese Company, a corporation. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Reversed.

      Beaumont, Smith & Harris, for appellant.

      Andrew C. Paterson (William C. Stuart, of counsel), for appellee.

      The controversy between the parties to this suit arose out of the following correspondence:
    “Brant, Mich., Aug. 27, 1912. “American Butter & Cheese Co.,
    “Detroit.

      “Gentlemen:

    “We received a letter from you some time ago wishing us to state the amount of cheese we were making, also if we would have some, and also asking our price. We have some Michigan flats, soft cheese, which we offer for sale, have just some today for 15 f. o. b. cars Chesaning. If you are in the market for cheese, we wish to hear from you.
    “South Branch Cheese Co.,
    “Brant, Mich.”
    “Detroit, Mich., Aug. 29, 1912. “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    “Your letter of the 27th inst. received, and in reply would say that we are not interested in cheese at 15c unless the quality was extra fancy. Not knowing your cheese, we would hesitate to order any large quantity, but would like to have you make us a shipment of ten or fifteen boxes so that wé can see what it is like. If it proves to be fancy cheese, we can probably do more business with you. Let us know when you will make this sample shipment, and oblige,
    “Yours truly,
    “American Butter & Cheese Co.,
    “KGS/T Per”
    “Brant, Mich., Sept. 5, 1912. “The American Butter & Cheese Co.

      “Gentlemen:

    “We received your letter of the Aug. 29, and will say we will ship you ten boxes of cheese for a sample and trust that you will do the best you can by them. Will make shipment about Sept. 6,1912.
    “Yours truly,
    “South Branch Cheese Co.,
    “Brant, Mich.
    “Charles Rich, Sec.”

      “Brant, Mich., Sept. 6, 1912.
    “American Butter & Cheese Co.,

      “Gentlemen:

    “We are today shipping you 15 boxes of cheese in place of the 10 boxes which I have written you we would send. I have invoiced the cheese at 14c and I will expect you to do the best you can. If the cheese are satisfactory please let us know. We have some more that are ready to ship at any time.
    “Yours,
    “South Branch Cheese Co.,
    “Brant, Mich.”
    “Detroit, Michigan, September 9, 1912.
    “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    “Your letter and invoice for fifteen boxes received. As soon as the cheese arrive, we will examine them and if O. K. we will be glad to do more business with you. Yours truly,
    “American Butter & Cheese Co.,
    “KGS/T Per”
    “Detroit, Michigan, September 17,1912.
    “South Branch Cheese Co.,
    “Brant, Mich.

      “Gentlemen:

    “Your shipment of 15 boxes received, and we regret to say that it is not at all fancy cheese. It is full of small pin holes and has a very sharp taste. We like a nice waxy body, perfectly mild clean flavor. Have you anything better to oifer?
    “Yours truly,
    “American Butter & Cheese Co..
    “KGS/T Per”
    “South Branch Cheese Co.,
    “Brant, Mich., Sept. 23, 1912.
    “American Butter & Cheese Co.,

      “Mr. Karl G. Sakewitz:

    “Was sorry to hear that those 15 boxes of cheese was not all fancy cheese for you, but the cause of the sharp taste was because they were cured too long in the hot weather, but will make you a better shipment of 25 or 50 at 13%c if you say so. I consider this cheese at the very same as the Frankenmuth cheese because I made their for two years, and I remember we gave you quite a few shipments. Kindly let me hear soon. ' Yours truly,
    “Max Rogner, Salesman.
    “Charley Rich, Sec.”
    “Detroit, Michigan, September 24, 1912.
    “South Branch Cheese Co.,
    .“Brant, Michigan.

      “Gentlemen:

    “Your letter of the 23d inst. received, and note what you say about the hot weather being responsible for the poor quality of your sample lot, and also that you are now in position to ship us 25 or 50 boxes that will be fancy. Please ship us 50 boxes at once at the price quoted, and if they are fancy quality cheese, we hope to do further business with you, but, if they are like the last lot, we will not be able to use them. Since you have had experience with the Frankenmuth cheese factories, you know what a fancy quality cheese is like and would be much pleased to see you successful in making as good cheese as they do. Make prompt shipment of the above lot, and oblige.
    “Yours truly,
    “American Butter & Cheese Co.,
    “KGS/T Per”
    “Detroit, Michigan, October 2, 1912.
    “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    “We have your invoice for 50 boxes cheese shipped us October 1st. We sincerely trust that these will show up fancy mild cheese, good body and clean flavor. If they are, we will at once be in the market for more, and wish, therefore, that you would let us know by return mail how many more you have ready for shipment and your lowest price, and oblige.
    “Yours truly,
    “American Butter & Cheese Co., Per” “KGS/T,

      “Brant, Mich., Oct. 4, 1912. “American Butter & Cheese Co.,

      “Gentlemen:

    “Your letter of the 2d rec’d., and will say we have 200 cheese ready for shipment at any time and will take 13% cents f. o. b. Depot at Chesaning, Mich. “Yours resp.,
    “South Branch Cheese Co., “Brant, Mich.
    “Charles Rich, Sec.”
    “Detroit, Michigan, October 5, 1912. “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    . “Your letter of the 4th inst. received, and note your offer. We will reply to same just as soon as the 50-box shipment arrives and we can examine the quality. This shipment is due and ought to be in most any day. “Yours truly,
    “American Butter & Cheese Co., “KGS/T Per”
    “[Written in ink:]
    “Shipment is at depot now and we will get it Monday.”
    “Western Union Telegraph Company.
    “Detroit, 10/7/1912. “To South Branch Cheese Co.,
    “Brant, Mich.:
    “Fifty-box lot received and satisfactory. Accept your offer two hundred boxes same quality and price. Ship at once.
    “American Butter & Cheese Co.,
    “Paid.”
    “Detroit, Michigan, October 7th, 1912. “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    “Your 50-box lot received this morning, and we examined same and found them all right. We therefore wired you as follows:
    “ ‘Fifty-box lot received and satisfactory. Accept your offer two hundred boxes same quality and price. Ship at once’ — which we hereby confirm.
    “Yours truly,
    “American Butter & Cheese Co., “KGS/T Per”
    “Detroit, Michigan, October 14, 1912. “South Branch Cheese Co.,
    “Brant Michigan.

      “Gentlemen:

    “Since accepting your order a week ago today we have not received invoice or B/L from you for the shipment of Cheese. If you shipped it last week, please send us the Invoice and B/L. If not yet shipped, please let us know by return mail when you will ship it, and oblige. ,
    “Yours truly,
    “American Butter & Cheese Co., “KGS/T Per”
    “Detroit, Michigan, October 17, 1912. “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    “Not hearing from you regarding that 200-box lot we called you by phone today and were surprised to learn that you were not going to ship us. You knocked a hole in our calculations because if we had not bought this 200-box lot from you we would have bought it elsewhere. We are now at once obliged to buy 200 boxes Michigan thirty lb. Flats to replace these, and, as the market has been advancing, it is doubtful if we can now replace them for less than 16%c to 17c. At any rate, we are sending out inquiries today to replace this lot and whatever it costs us above the price that you sold us the 200 boxes for, we will have to charge to your account. We will therefore withhold remittance for the 50-box lot until we can determine how much extra these cheese are going to cost us.
    “Yours truly,
    “American Butter & Cheese Co., Per” “KGS/T

      “Detroit, Mich., Nov. 7, 1912. “South Branch Cheese Co.,
    “Brant, Michigan.

      “Gentlemen:

    “We inclose herewith a statement showing from whom we bought the two hundred boxes of cheese to replace the purchase we made from you which you declined to ship. We sent out inquiries immediately upon receiving notice from you that you would not ship the cheese and bought them as cheaply as possible. The statement shows quantities and prices, also extra cost amounting to $188.85. This amount we deduct from your invoice of October 1st, and inclose check to balance $22.05.
    “Yours truly,
    “American Butter & Cheese Co., “KGS/T Per”
    The defendant had paid for the 15-box sample order, but refused to pay for the 50 boxes constituting the second shipment until it had determined how much it would cost to purchase 200 boxes in the open market to take the place of the 200-box shipment which had been refused by the plaintiff. The oral evidence in the case offered by the parties has no important bearing upon the question involved. Only $22.05 having been paid to the plaintiff on account of the purchase of the 50 boxes, suit was brought for the balance, amounting to $195.43. Defendant filed a claim of set-off and recoupment by reason of the failure of the plaintiff to ship the 200 boxes, for which it alleged it had a valid contract. A verdict was directed in favor of plaintiff for the amount claimed by the learned circuit judge, he being of the opinion that the correspondence with reference to the purchase and sale of the 200 boxes did not constitute a valid contract, and therefore that the claim of the defendant for set-off and recoupment was not valid. Defendant now reviews the case in this court.
   Brooke, J.

(after stating the facts). But two questions are involved:

(1) Was there a valid offer on the part of the plaintiff to sell to the defendant 200 boxes of cheese?
(2) Was there a valid acceptance of that offer by the defendant?

We have no hesitation in holding that the letter of October 4, 1912, is a distinct offer on the part of the plaintiff to sell the defendant 200 boxes of cheese at 13% cents per pound, f. O. b. Chesaning, Mich. The letter was written in response to an inquiry of date October 2, 1912, and as a result of two previous transactions between the same parties, one for 15 boxes, and one for 50 boxes. It was an offer which upon acceptance would ripen into a contract (Johnson v. Stephenson, 26 Mich. 63), and was not merely an invitation to make an offer, as claimed by counsel for appellee.

2. The offer was made on Friday, October 4th, and it was received in Detroit on Saturday, October 5th. Upon receipt thereof the defendant at once wrote plaintiff acknowledging its receipt and stating that a reply would be made “just as soon as the 50-box shipment arrives and we can examine the quality.” A postscript to this letter is added:

“Shipment is at depot now, and we will get it Monday.”

On Monday, the 7th, the 50-box shipment having arrived, been examined, and found satisfactory, an unqualified acceptance by wire was forwarded to plaintiff. It is probable that the acceptance by wire was received by plaintiff prior to its receipt of the letter of Saturday. Plaintiff’s secretary was unable to state which reached him first. There is no dispute that after the making of the offer on Friday it was not withdrawn by the plaintiff before the receipt of defendant’s telegram on Monday.

The law in this State touching the question is set out in Cooper v. Wheel Co., 94 Mich. 272 (54 N. W. 39, 34 Am. St. Rep. 341), where it is said:

“If a proposition.be made, to be accepted within a given time, it constitutes a continuing offer, which, however, may be retracted at any time. But if, at any time before it is retracted, it is accepted, such offer and acceptance constitute a valid contract.”

This statement of the law has been twice recently quoted with approval. Adams v. Hotel Co., 154 Mich. 198 (117 N. W. 551, 19 L. R. A. [N. S.] 919) ; Hollingshead v. Morris, 172 Mich. 126 (137 N. W. 527, 41 L. R. A. [N. S.] 310).

In the light of the correspondence antedating the offer, we think it is fair to assume that the plaintiff expected the defendant to examine the shipment of 50 boxes before accepting or refusing the offer. But in any event we are of opinion that a delay from Saturday to Monday in accepting an offer of sale-which was in no wise limited as to time, and, being made by letter instead of telegram, indicating no desire for haste upon the part of the vendor, is not an unreasonable time.

We are of opinion that the learned circuit judge was-, in error in holding that the correspondence did not constitute a binding contract between the parties for-the sale of 200 boxes of cheese, and as a consequence; that defendant was not entitled to his claimed set-off and recoupment.

The judgment is reversed, and a new trial ordered, with costs to appellant.

Stoné, C. J., and Kuhn, Ostrander, Bird, Moore,. Steere, and Person, JJ., concurred.