text:
    FILLINGHAM v. MICHIGAN UNITED RAILWAYS.
    1. Damages — Personal Injuries — Injury to Earning Capacity —Pleadings—Sueeioienoy—Plaintiee’s Occupation.
    In an action for damages for personal injuries, an averment in the declaration that plaintiff was a “machinist” is sufficient to permit recovery for decreased earning capacity as a “toolmaker,” the proofs showing that tool makers are machinists, and the word “machinist” being comprehensive enough to include not only ordinary machinists, but skillful machinists as well.
    2. Same — Assessment—Examination by Physicians — Discretion oe Court.
    Where plaintiff had already submitted to an examination by two physicians employed by defendant, who had testified in the case, there was no abuse of discretion in refusing to compel him to submit to an examination by a third physician, who was also a witness for defendant, and who testified to having treated plaintiff some years before.
    3. Trial — Argument oe Counsel — Comments on Evidence.
    Counsel had a right to say in argument that he did not see how the testimony of the doctors could bé reconciled, where it was in faot in direct conflict.
    4. Same — Cure by Court.
    A statement by counsel that plaintiff had offered in the presence of the jury to submit to an examination by a physician did not constitute reversible error, where the court suggested to counsel that he thought it would be better to avoid reference to it, and the court was not at that time or later requested to caution the jury further.
    5. Damages — Pre-existing Injuries — Instructions—Propriety.
    In an action for damages for personal injuries, instructions requested and given examined, and held, that those given were not uncertain or misleading as to plaintiff’s right to recover for suffering and disability arising from aggravation of existing injuries.
    Error to Ingham; Wiest, J.
    Submitted June 8, 1908.
    (Docket No. 36.)
    Decided September 15, 1908.
    Case by Charles H. Eillingham against the Michigan United Railways for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Sanford W. Ladd, for appellant.

      Thomas, Cummins & Nichols, for appellee.
   Moore, J.

The plaintiff recovered a judgment for injuries received while a passenger on one of defendant’s street cars. On the trial, and now, the defendant admitted its negligence. The declaration alleges that the plaintiff was a machinist. The proofs disclose that at the time of the accident he was employed making tools at $2.75 a day. It is the claim of counsel that the court erred in refusing the following request:

“ I charge you that in this case the plaintiff cannot recover any damages as a skilled workman, and for any decreased earning capacity as a skilled workman. He is only entitled to such damages, if any, as the proofs show he has sustained as an ordinary machinist following directly from this injury, and that under the evidence in the case the plaintiff is shown to be able to earn a sum greater than that of an ordinary machinist; and I therefore charge you that he cannot recover for any decrease in his earning capacity after July 8, 1907.”

It is also said that the court erred in saying to the jury:

“The 3d, day of last January the plaintiff in this case was a machinist employed at the New Way Motor Company, in North Lansing.”

Counsel say this is contrary to the testimony of the plaintiff himself, as already pointed out, as at that time he was not employed as an ordinary machinist, but as a tool maker. This contention, in effect, is stated several ways by counsel. We think in making this claim counsel is overcritical. The amended declaration did not describe the plaintiff as an ordinary machinist, but did describe him as a “machinist,” a word broad enough to include, not only an ordinary machinist, but a skillful machinist as well. The proofs show that tool makers are machinists.

Upon the trial the following occurred:

“Mr. Tuttle: Before we finish with the direct examination of this witness and at this time, I wish to ask for permission of Dr. Alvord — and to confine my requests now to this — that Dr. Alvord be permitted to examine Mr. Fillingham either in the presence of the jury and make these measurements and examination, or privately whichever way is most satisfactory to the court and counsel, but I ask that he be permitted, that Dr. Alford be permitted, to make an examination of Mr. Fillingham as to his condition and make measurements of his liver of the present condition that he is in, and that he then be allowed to state the result here as a part of his examination.
“The Court: I don’t hear any consent.
“Mr. Nichols: We consented yesterday to the examination of this plaintiff by a physician that was not here either in the employ of the plaintiff or the defendant— disinterested — which proposition our friends have refused to concede to. Therefore we think we have done all our duty requires under the circumstances.
“Mr. Tuttle: I ask this in the light, too, of the evidence that the doctors have had this opportunity.
“Mr. Cummins:■ So have yours.
“Mr. Tuttle: Have had this opportunity to examine him as he sees fit, and we are shut out from proof in regard to that matter, and I ask that Dr. Alvord, who is a competent man, be permitted to make that examination, and I don’t think that it is any answer to my request that Dr. Alvord be permitted to.
“Mr. Nichols: Dr. Shank and Dr. Haze, who, I submit, are competent to tell whether a man’s liver is large, and the condition of it, are probably just as competent as Dr. Alvord, have made an examination of this man, and we submit that that is enough.
“Mr. Tuttle: And that at no stage during the trial of this case did we find out about those previous injuries, and that we had no opportunity to examine him since we found out that there were previous injuries so as to know about the nature of it.
The Court: Do I understand for the purpose of the record the plaintiff submitted to an examination by a physician before the trial ?
“Mr. Cummins: By two, and more if they cared to produce them.
Mr. Ladd: Now, that was not the understanding.
The Court: Did he submit to an examination of two physicians selected by you ?
“Mr. Ladd: Yes; on October 35, 1907, as has been shown here at this time, but at a time we know nothing in reference to the—
“The Court: I shall decline at this time to order the plaintiff to submit to an examination at the hands of Dr. Alvord. I will, if you want it, select a physician myself, one satisfactory to both sides, to make an examination, a complete examination, and testify in this case. Go ahead.
“Mr. Tuttle: I take an exception to the court’s remarks. It is to the statement of this man upon a motion which don’t involve this question at all. It is embarrassing to the defendant in the case and prejudicial.
“The Court: Very well.”

The refusal to comply with the request of Mr. Tuttle and the remark of the court in relation thereto is said to be error. It was the claim of defendant that, before the injury involved in this suit in 1906, while in the employ of the Reo Motor Oar Company, and in 1900, while employed at Battle Creek in a steam pump company, plaintiff was injured in accidents, and that he had not recovered when he was hurt in the street railway accident. Dr. Alvord was a resident of Battle Creek, and testified that he treated plaintiff in 1893. His testimony was at very considerable length. He was on the witness stand when the colloquy occurred to which we have referred. It appears in the colloquy that Dr. Shank and Dr. Haze, who were in the employ of the defendant, and who were witnesses in its behalf, had examined the plaintiff. We think it very clear that under these circumstances the trial court did not abuse its discretion. See 16 Am. & Eng. Enc. Law (2d Ed.), pp. 813, 814, and the many cases cited in the notes.

Error is assigned as to the argument of counsel for plaintiff. He had a right to say that he did not see how the testimony of the doctors could be reconciled, for it was in direct conflict. As to. that part of his statement that plaintiff had offered in the presence of the jury to submit to an examination by a physician, the trial judge suggested to counsel that he thought it would be better to avoid any reference to it. An exception was taken, but the court was neither then nor by a request to charge requested to caution the jury further' as to the effect of what had been said by counsel. We think it clear that what was said and done did not constitute reversible error.

Counsel preferred a request reading as follows:

“I charge you that in this case if you find from the evidence in the case that the injury, which the plaintiff suffered from the accident in question, resulted in part from physical defects resulting from previous injuries or injury, coupled with the injury in question, so that his injury following the accident in question was greater in any degree than it would have been except for the previous physical defect or defects, then I charge you that in this case the plaintiff cannot recover anything for these injuries which you so find resulted partly from the previous physical defects.”

This request was not given except as covered in the general charge. Counsel say of this that the jury were told:

“In other words, the plaintiff can recover for all injuries now complained of, and which were occasioned by the accident of January 3, 1907, making no allowance for an aggravation of a pre-existing injury or a physical condition which is the result of a pre-existing injury augmented by the accident of January 3d. For this reason we contend that the case should be reversed.”

What was said upon that subject was as follows:

“ If you find the plaintiff was suffering on January 3, 1907, at the time of the accident, from a disease of his nervous system, known as ‘neurosis,’ and that disease and injuries received on January 3d account for some portion of the condition he complains was caused -by the defendant, that alone will not bar his recovery of all damages in this case, but does bear upon and affect the question of the amount of damages he has sustained on account of injuries he claims to have received at the hands of the defendant. In case plaintiff was suffering from an existing nervous disease when injured on January 3,1907, and such disease with the injuries so received have caused him pain, suffering, and disability, then defendant can only be held for the pain, suffering, and disability to plaintiff arising and resulting from the injuries actually received by plaintiff, and established by the evidence as having occurred on January 3d. And it is your duty in case of existing nervous disease in plaintiff at that time to determine from all of the evidence what pain and suffering and disability if any the plaintiff has and will suffer from the injuries if any to his liver, spleen, ribs, stomach, and bowels, and only allow him damages for such portion of his pain and suffering and disability due to the injuries in question, but will allow reasonable compensation for such pain and suffering and disability and medical expense traceable to the injuries of January 3d, and not due to his’ nervous disease, if any existed, when he was so injured. Plaintiff does not ask for damages for an aggravation of an existing disease. He does ask damages for pain and suffering and disability caused by injuries to his liver, spleen, ribs, stomach, and bowels, and he cannot be permitted to recover damages for an aggravation of an existing disease because he denies the existence of such disease, and he does not ask you for damages on any such theory. He does ask for damages for pain and suffering and disability arising from the injuries to his liver, spleen, ribs, stomach, and bowels, and, if he gets damages, it must be for the injuries so alleged, and not for disease, if any existed, when he was injured, or for an aggravation of such existing disease, if any.”

We do not think this language has an uncertain sound, nor that it could have been misunderstood by the jury.' We have referred to the important questions raised by the assignments of error. The others we have examined, but it is-unnecessary to discuss them.

Judgment is affirmed.

Grant, C. J., and Blair, Hooker, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    TEFFT v. TEFFT.
    1. Landlord and Tenant — Recovery of Possession — Summary Proceedings — Jurisdiction—Question of Title — How Raised.
    In summary proceedings to recover possession of land, under section 11164, subd. 1, 3 Comp. Laws, though it is true that a question of title cannot be tried, the question must be necessarily involved under the evidence in the case, and a mere averment in the plea, not supported by evidence, is insufficient to oust the commissioner of jurisdiction.
    3. Same — Existence of Relation — Evidence—Sufficiency.
    Where the record showed that a lease was made between complainants and defendant, and that according to its terms the lease had ended and complainants were entitled to possession, and no evidence was offered by defendant, it was error to direct a verdict for defendant, though by a notice attached to his plea he alleged that his wife was entitled to the land and that it was a homestead, and the proofs failed to show that complainants represented the entire interest.
    Error to Saginaw; Gage (William G.), J.
    Submitted June 11, 1908.
    (Docket No. 77.)
    Decided September 15, 1908.

      Summary proceedings by John G. Tefft and others against Charles B. Tefft for the possession of certain real estate. There was judgment for defendant on a verdict directed by the court, and complainants bring error.
    Reversed.

      T. P. Zander (James H. Davitt, of counsel), for appellants.

      Crane & Crane, for appellee.
   Moore, J.

This is an action brought under subdivision 1, § 11164, 3 Comp. Laws. The complaint was made in due form, the complainants being John G. Tefft, Sarah J. Tefft, Arethusa C. Faucett, and Tacitus P. Zander, by Tacitus P. Zander on his own behalf and as agent for the other complainants. A summons was issued in the name of complainants. Upon motion made before the commissioner, the name of Arethusa C. Faucett was stricken from the complaint and summons. Just when this was done does not appear in the record. The defendant pleaded not guilty, and gave notice of special defense, which was, in effect, that the wife of defendant was entitled to the property, and that the question of title was involved. The case found its way to the circuit court, where it was tried before a jury.

The complainants introduced in evidence a lease dated April 21, 1905, made by John G. Tefft, Henry C. Tefft, and T. P. Zander, running to Charles B. Tefft, of the premises involved in the controversy, the lease expiring in one year from the date thereof; also a land contract from Lucy B. Tefft, owner, to Charles B. Tefft, purchaser. Also a paper reading as follows:

“St. Charles, Mich., 4-21-1905.
“I hereby acknowledge receipt in full of all claims against any of the owners of E. % of 8. E. J, Sec. 20, Town 11 N., R. 3 E., and attorn to them as their tenant by virtue of a lease of said premises executed this day, and which is the consideration herefor.
[Signed] “Charles B. Tefet.”

It was conceded that, after the making of the lease and before the commencement of this suit, Henry C. Tefft, one of the lessors, conveyed all of his interest in the property described in the lease to Sarah J. Tefft, one of the, complainants in this case. It was conceded that Arethusa Faucett, whose name originally appeared in the complaint and summons, was dead before they were made and before this suit was begun. It also appeared from the proofs that Arethusa Faucett at the time the lease was made was the owner in common with the other lessors of the lands in question; that her interest therein at that time was an undivided one-third; that after the execution' of the lease she conveyed one-half of her interest to complainant Zander; and that at the time of her death she was still the owner of the remaining one-sixth. Neither her heirs nor legal representatives were made parties to this suit by amendment or otherwise. It was conceded that the defendant was married, and that he and his wife were living upon the farm in question. No proof was made upon the part of the defendant. His counsel moved the court to direct a verdict in his favor; the counsel insisting the farm had been a homestead for Mrs. Tefft a good many years. The judge was of the opinion that the proofs failed to show that the complainants represented the entire interest, and that the case was governed by the case of Moody v. Seaman, 46 Mich. 74, and directed a' verdict in favor of defendant. The case is brought here by writ of error.

The only question involved is whether, under the proofs and concessions which appear in the record, a verdict should have been directed. It has already been stated that the complaint was in proper form. The record discloses that a lease was made between complainants and defendant; that according to its terms the lease had ended, and complainants were entitled to possession. While there was a notice attached to the plea that the wife of defendant was entitled to the land and that it was a homestead, there was no proof offered upon the part of defendant. In the case of Butler v. Bertrand, 97 Mich. 59, which was a summary proceeding case, it is said:

“A summons being served, the defendant may plead ‘not guilty,’ or, if he fails to do so, the magistrate will enter such plea for him. If he fails to appear, the complainant must still make proof of his claim.
“A number of Michigan cases are cited to sustain the proposition that title to land cannot be tried in such proceedings. About this there can be no dispute, under the authorities of this State, or any other State to which our attention has been called; and, when it appears that title is necessarily involved, the magistrate should dismiss the proceedings, as beyond his jurisdiction, and this is as true of the circuit court upon appeal as of the magistrate before whom the proceedings are instituted. See cases cited by defendant: Bennett v. Robinson, 27 Mich. 31; Foss v. Van Driele, 47 Mich. 204; Riggs v. Sterling, 51 Mich. 159; Mulder v. Corlett, 54 Mich. 82; Hoffman v. Clark, 63 Mich. 175. In none of these cases' did the question turn upon the plea, and it is clear that the point may be raised upon the trial under the statutory plea. Not only do we find no authority in these Michigan cases to warrant the conclusion that jurisdiction may be affected by the plea, but the decisions of Nebraska and Wisconsin are against it. Pettit v. Black, 13 Neb. 142; Lipp v. Hunt, 25 Neb. 91; Newton v. Leary, 64 Wis. 190; Menominee River Lumber Co. v. Philbrook, 78 Wis. 142. The case of Newton v. Leary holds not only that the question of title does not arise, but that it cannot be put in issue by the pleadings. It is a question of whether there is a wrongful withholding of the premises from the complainant. When this can be shown to depend upon a controverted question of title, it is the end of the case. Any other rule would produce the absurd- result mentioned, of making a plea conclusive of the jurisdiction.”

In Gage v. Sanborn, 106 Mich. 269, it is said:

“We have discussed both propositions, but the further claim is made that these claims raise a question of title, which cannot be tried in this proceeding. It is true that questions of title cannot be tried in summary proceedings; and, when it appears that the decision must turn upon a question of adverse title, the case must be dismissed. Butler v. Bertrand, 97 Mich. 59, and cases cited. But this must be understood to mean a question of legal title, and it must be raised by the evidence offered in the case. If this were otherwise, a mortgagor could always defeat summary proceedings by denying the validity of the foreclosure or asserting that the premises had been redeemed.”

In the case at bar no evidence whatever was offered upon the part of defendant. In Lindsey v. Leighton, 150 Mass. 285, it is said:

“ It was a question of fact whether the relation of landlord and tenant existed between the parties. The actual ownership of the premises is only one element to be considered in determining this question. One may be a landlord who is not the owner. The tenant cannot escape from his obligations by shewing that his landlord had no legal title; nor can the landlord escape from his obligations by showing the same thing. The obligations of the tenant to his landlord, and of the landlord to his tenant, are reciprocal; and they depend upon the existence of that relation, and not upon the validity of the landlord’s title. And the same rule is applicable in case of a tenancy at will. Cobb v. Arnold, 8 Metc. (Mass.) 398, 402; Hilbourn v. Fogg, 99 Mass. 11; Holbrook v. Young, 108 Mass. 83, 85.”

We think the record showed the relationship of landlord and tenant, and that the court erred in directing a verdict for defendant.

Judgment is reversed, and new trial ordered.

Grant, C. J., and Blair, Montgomery, and McAlyay, JJ., concurred.


author: Ostrander, J.

text:
    ROBINSON v. STIMER.

    .1. Assault and Battery — CrviL Action — Evidence—Admissibil- : ity.
    In an action for assault and battery it appeared that plaintiff, in possession of certain land on a contract of purchase, and being unable to pay an installment of the price, assigned his rights to one of the defendants, who advanced the necessary amount. Defendants raised a crop of potatoes upon the land, which plaintiff, after tendering the amount advanced, attempted to dig and remove, being resisted by defendants. Held, that whether the assignment of the land contract was absolute, as claimed by defendants, or as security, as claimed by plaintiff, was material, and that testimony to show its actual character was properly admitted.
    2. Same.
    If the assignment was intended as security merely, it was not error to admit testimony tending to prove that the assignee was to have, for the use of his money, the use of the land, except certain portions thereof, until the loan matured, as showing the precise consideration for the assignment.
    3. Same.
    The defendant advancing the money being a minor, and his father, another defendant, having done the business for him, proof of a tender, in his presence, to his father; of the amount advanced, was properly admitted, as bearing upon what the parties knew and understood at the time the assault was committed.
    4. Same — Trial—Instructions—Damages—Punitive Damages.
    An instruction that if the attack was malicious, not suddenly provoked by plaintiff, and was wanton, malicious, and wilful, damages should include compensation for injury to the feelings resulting from that kind of attack, is not open to the objection that it permits recovery of punitory damages.
    5. Same — Exemplary Damages.
    Where, though the declaration did not allege a wanton assault it did allege an assault and battery made without cause, provocation, or excuse, and plaintiff’s testimony, if believed, made a case of grievous maltreatment of liim by defendants, and damages were not allowed by the jury beyond a moderate compensation for the injuries sustained, no reversible error appears from a refusal to charge that exemplary damages were not recoverable, the charge, as given, being unobjectionable. '
    Error to Jackson; Parkinson, J.
    Submitted June 15, 1908.
    (Docket No. 103.)
    Decided September 15, 1908.
    Trespass vi et armis by Ulysses S. Robinson against William Stimer and others. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Dwight D. Boot and Grove H. Wolcott, for appellants.

      James J. Noon, for appellee.
    The undisputed facts are that plaintiff was vendee of certain lands, holding an executory contract for the purchase thereof. Unable to make a payment of principal and interest, due in April, 1906, he arranged with defendant William Stimer for the money. The vendor consented to an assignment of the contract, and it was, on April 5, 1906, duly assigned to defendant Roy Stimer, son of William, a minor, who furnished the money. Plaintiff did not live on the land. Defendants William and Roy planted crops on the land, including a crop of potatoes. Plaintiff later on proposed to return to William Stimer the money secured by him in the preceding April. He declined to receive it. On October 7, 1906, which was Sunday, plaintiff, with two others, drove to the land, and began to dig potatoes, and to load them into his wagon, with the design of carrying them away. Pie testified that he understood that, if he did this, defendant Roy Stimer would be obliged, in order to determine his rights, to bring replevin for the potatoes. He was interrupted in this by Roy, and later by the other defendants. As a result of what occurred, defendant William Stimer was wounded in the face by plaintiff with a fork, plaintiff was struck, bruised, and had an arm broken, the potatoes were unloaded and left on the field, and this suit for damages was instituted. At the trial two principal issues of fact were made. Plaintiff claimed, and offered testimony to prove, that the assignment of the land contract, though in form an absolute one, was given to secure repayment, in the following October, of the $83 received from Roy through his father, William. Defendants claimed, and testimony was offered to prove, that the assignment was in fact absolute, and that the land was worth no more than the purchase price remaining unpaid at the time the assignment was made. The witnesses are not agreed concerning what was said and done in the potato field, testimony for the plaintiff tending to show that he was defending his person from unprovoked assault and injury, and that for defendants tending to prove that they were engaged in a reasonable effort to secure their property from the possession of a trespasser, who proposed to take it away. This suit was begun in December, 1906, was tried in the following May, and the bill of exceptions was settled February 29, 1908.

       Rehearing denied November 30, 1908.

   Ostrander, J.

(after stating the facts). Whether the assignment of the land contract was absolute or was given as security for a loan was a material fact. Testimony offered to show its actual character was properly admitted, and the question was* one for the jury. If intended as security merely, it was not error to admit the testimony which tended to prove that defendant Roy Stimer was to have, for the use of his money, the use of the land, except certain portions thereof, until the loan matured. Assuming there was a loan, it was proper to permit the precise consideration to be proved. Although now in dispute, the mutual agreement and understanding of the parties as to possession of the land, if capable of ascertainment, interpreted the motives and explained the conduct of each of them at the time the assault was committed. The assignment of the conract, if intended as security merely, did not necessarily carry with it the right of possession. Defendants planted potatoes upon two acres, which plaintiff claimed were reserved, and it was the potatoes growing thereon that plaintiff was digging, and which he proposed to carry away.

Plaintiff’s proof of a tender of the money borrowed (before the assault was committed) was of a tender to William Stimer. Over objection, the court admitted it, saying that as a tender it would perhaps amount to nothing, but that, as bearing upon what the parties knew and understood at the time the assault was committed, it was material. According to the testimony for plaintiff, William said, when the tender was made, in the presence of Roy, “I might as well tell you now, Robinson, to get your things out of the house.” That Roy, although only 20 years of age, consented to the use by his father of his money, and claims the benefit of the assignment, is not disputed. And failure to pay the mortgage, if the assignment was intended as such, would not necessarily operate as a strict foreclosure. The testimony for defendants is that Roy was consulted about what was proposed to be done, and knew that his father intended, with his consent, to use $88 of his money. The jury were warranted in finding that, if it was in fact á loan of his money, he so understood it, and consented to it. It was proper to admit the testimony tending to prove a tender of the money in the presence of Roy. An infant 19 years of age is not excused his actual trespasses; and, whatever his legal rights may be respecting the land contract and the assignment thereof, this infant and the other defendants, charged in the declaration to be joint tort-feasors, gave notice with their plea that they would give in evidence, in their defense, that plaintiff was, at the time of the alleged assault and battery, a trespasser upon the lands and premises of defendants, and that if any assault and battery was committed, it was while they were defending themselves and their property. We find no merit -in the errors assigned upon rulings admitting and rejecting testimony.

Defendants requested the court to instruct the jury that exemplary damages could not be recovered. The ground of this request, as we understand the brief, is that the declaration does not, in terms, allege malicious conduct. Batterson v. Railway Co., 49 Mich. 184, is relied upon. The refusal to so charge is assigned as error, and it appears to be contended that the charge given was, in effect, one permitting punitory damages to be recovered. The charge is not open to such an interpretation. The language which was employed by the learned trial judge is:

“But if their attack was malicious, not suddenly provoked by Robinson, and was wanton, malicióus, and wilful, damages should include compensation for injury to the feelings resulting from that kind of attack. If you find under the circumstances that he has suffered injury to his feelings, his sense of being outraged — now, I mean on account of malice on their part, not excited or caused by prior unnecessary and unwarranted attack by himself —you should include damages for that by way of compensation, as I have before stated.”

The declaration does not allege a wanton assault, but does allege an assault and battery made without cause, provocation, or excuse. It is evident that the principle of the case relied upon has no application here. If plaintiff’s testimony was believed, the defendants made the occasion one for grievously maltreating the plaintiff. It does not appear that damages beyond a moderate compensation for the injuries sustained were allowed by the jury.

No reversible error is found, and the judgment is affirmed.

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


text:
    CLARK v. TOWNSHIP OF WEST BLOOMFIELD.
    Townships — Implied Contracts — Attorneys—Services—Recovery.
    Attorneys were not entitled to recover against a township for services, as upon an implied contract, where, notwithstanding the services were successfully directed to maintaining the township’s position in certain litigation in which the citizens had an interest, and were rendered in the belief in good faith that an express contract existed with the township, no contract in fact existed, and the township, neither by the body of its citizens, nor by its officers, had knowledge that the attorneys looked to the township for their pay.
    Error to Oakland; Smith, J.
    Submitted June 16, 1908.
    (Docket No. 23.)
    Decided September 15, 1908.
    Assumpsit by Joseph H. Clark, Arthur Jones, and William G-. Bryant, copartners as Clark, Jones & Bryant, against the township of West Bloomfield for services rendered. There was judgment for defendant,.and plaintiffs bring error.
    Affirmed.

      Clark, Jones & Bryant, for appellants.

      Arthur B. Tripp, for appellee.
   Ostrander, J.

Defendant instituted litigation to enforce against a successor or assignee of the grantee, certain provisions of a franchise granted by the township to an electric railway company. These provisions related to fares and to the condition of the cars. The real parties m interest were those citizens of the township affected by the alleged failures of the company to comply with the franchise requirements. A committee of citizens acted with the town board in the investigation, and one or more meetings of citizens with the town board preceded the filing, in the circuit court, of a petition for the writ of mandamus. Plaintiffs were consulted by some of the interested citizens of the township, and gave an opinion, addressed to one of those citizens. Later, they were called upon by the township clerk, one other member of the township board, and by Mr. Lillis, afterwards the attorney of record in the proceedings, and an afternoon was spent in going over the facts. To this party the terms of employment of plaintiffs were given. Whether the proceeding would be begun had not been determined. Plaintiffs were to be informed whether their services would be required. Learning that it had been determined to institute proceedings, one of the plaintiffs inquired of Mr. Lillis whether they (plaintiffs) were retained in the matter. For plaintiffs the testimony is that Mr. Lillis replied, in substance, that they were retained — that he was authorized to employ them, and would send the paper or papers over for inspection. He did, within a day or two, send over a petition for a writ of mandamus, which was examined and revised by plaintiffs, and returned to Mr. Lillis. The petition was indorsed by Lillis with his - own name and the names of plaintiffs before filing. Thereafter, and this is undisputed, plaintiffs and Mr. Lillis I worked together in the case, Mr. Jones, of plaintiffs’ firm, framing the issues of fact, which were approved and tried by jury, examining witnesses, and arguing the case upon the facts and the law. The testimony of Mr. Lillis is that his reply to the inquiry was that he supposed they (plaintiffs) were in the case. If Mr. Lillis had authority to employ counsel, it would seem that the differences in the testimony upon this matter were not enough to make an issue of fact. No complaint, however, is made of the charge upon this subject. Mr. Lillis says he did suppose plaintiffs had been employed, but he denies having employed them, or having received authority to employ them. Plaintiffs’ bill was presented to the township board. Payment was refused, upon the ground that the township had not employed them or authorized their employment. This suit is brought to recover for the services rendered.

It is the theory of the plaintiffs that Mr. Lillis was expressly authorized by the township board to employ counsel to assist him, and that he employed them upon the terms made known to him; that, in any event, the township, with knowledge, received and appropriated their services in a successful litigation, and are bound to pay the reasonable value of such services. There was testimony to support a finding that Mr. Lillis had authority to employ counsel. Whether he had such authority, and whether he did, in fact, employ plaintiffs, were questions submitted to the jury, as was also the question of ratification of the employment by the township. Upon this last question the charge was favorable to plaintiffs, the court saying to the jury: >

“ If all the members of that board did in truth and in fact know that somebody had employed them, or that Mr. Lillis had employed them, supposing he had authority, and that they knew that these plaintiffs expected to hold the township liable, and took no action whatever to disabuse the minds of the plaintiffs, then perhaps the township might be liable, and, while I am not so very clear about that, I give the plaintiffs the benefit of it.”

Whether reversible error is assigned depends upon whether the township can be held liable as upon an implied contract to pay plaintiffs the reasonable value of their services. It is the contention of plaintiffs that the case made is within the rule of Central Bitulithic Paving Co. v. City of Mt. Clemens, 143 Mich. 259. Plaintiffs’ services were, in fact, in the interest of the township, because they were successfully directed to maintaining its position in the litigation. That they were rendered in good faith, in the beliefs on the part of plaintiffs, that they were performing an express contract with the township, is, upon this record, a conclusion supported by competent testimony and not denied. Assuming, as the jury has found, that no such contract existed, the testimony entirely fails to show that the township, either by its officers or by the body of its citizens, was chargeable with notice that plaintiffs looked to the township for their pay. It is made entirely clear that citizens had an interest, and were urging that action be begun by the township. Some of these citizens had recommended the employment of plaintiffs. The township board employed Mr. Lillis and Mr. F. A. Baker. It appears that not all of the members of the township board knew that plaintiffs were taking any part in the court proceedings, and no considerable number of citizens were cognizant of that fact. An implication binding the municipality cannot be raised upon mere conduct of the plaintiffs of which the municipal officers had no knowledge, although it turned out that such conduct was in the interest of, and, in fact, of value to, the township and its citizens. The facts do not bring the case within the rule of the decision relied upon.

The judgment is affirmed.

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


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    MORRIS v. VYSE.

    1. Trusts — Constructive Trust — What Constitutes.
    In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, undue influence, duress, taking advantage of one’s weakness or necessities, or any other similar means, or under any other similar circumstances, which render it unconscionable for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may perhaps never have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser in' good faith and without notice acquires a higher right, and takes the property relieved from the trust.
    2. Same — Bill to Impress Trust — Supeioienoy.
    A bill alleging that defendant V. paid for certain real estate with money she obtained fraudulently from complainant’s intestate, and caused the title to be placed in the names of the other defendants, her mother and sister, and that they have no actual interest in tho real estate, but are holding it for the use and benefit of V., in furtherance of her scheme of fraud, sufficiently avers fraud to confer jurisdiction upon equity, though there is no averment of the insolvency of V.
    3. Same — Jurisdiction—Nonresidents.
    The real estate being situated in this State, our courts have jurisdiction (section 434, 1 Comp. Laws), though the fraudulent procurement of the money occurred in another State, in which complainant’s intestate resided at the time of his death, and complainant and defendant V. are resident there.
    4. Executors and Administrators —Action —Bill to Impress Trust — Capacity to Sue.
    A bill to impress a trust upon real estate purchased with money fraudulently obtained from a person since deceased is properly brought by the defrauded person’s administrator.
    Appeal from Wayne; Hosmer, J.
    Submitted June Yl, 1908.
    (Docket No. 38.)
    Decided September 15, 1908.

      Bill by Joseph C. Morris, administrator de bonis non of the estate of Charles L. Fish, deceased, against Tillie Yyse, Maud A. Kuhn, and Mary A. Richards to impress a trust upon certain real estate, and for an accounting. From an order, sustaining the demurrer of defendants Kuhn and Richards, complainant appeals.
    Reversed and remanded.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for complainant.

      Wilkinson & Younglove, for defendants.

       Rehearing denied November 30, 1908.

   Moore, J.

The defendants Kuhn and Richards demurred to complainant’s bill of complaint. The court sustained the demurrer, and dismissed the bill as to them. The case is brought here by appeal.

The bill of complaint avers, in substance, that Charles L. Fish, á resident of Cleveland, upwards of 84 years of age, died in March, 1903, and the appointment of complainant as administrator by the probate court for the county of Wayne, Mich. It avers that in November, 1902, the defendant Tillie Yyse, by fraud, artifice, and the exercise of undue influence, obtained from Charles L. Fish the sum of $11,000. The bill details the representations that it is claimed were falsely made. It avers that thereafter Tillie Yyse brought the money to Detroit, and bought therewith real estate, the title to one piece of which she caused to be placed in the name of her sister, and the title to another piece in the name of her mother. It also avers that said Tillie Yyse, by means of fraud and artifice, obtained from Charles L. Fish the further sum of $5,000, which she brought to Detroit, and deposited in her own name in the bank, the name or names of which the complainant is unable to give. The bill further states as follows:

“(10) That the said Mary A. Richards and Maud A. Kuhn have no actual interest in said real estate, but, as your orator is informed and believes, and therefore alleges, are holding the same for the use and benefit of the said Tillie Vyse, and in furtherance of the perpetuation of the fraud practiced by the said Tillie Vyse upon said Charles Charles L. Fish, by means of which she obtained the money aforesaid.
“ (11) That your orator is without adequate remedy, except in this court of equity, and he therefore prays' that the said Tillie Vyse, Mary A. Richards,-and Maud A. Kuhn be made parties defendant to this his bill of complaint, and required to appear and answer the same without oath,, their answer on oath being hereby expressly waived, and that your orator may be granted relief herein as follows:
(a) That the said Tillie Vyse may be decreed by this court to hold such moneys fraudulently obtained, as have not been used in the purchase of said real estate, in trust for your orator as administrator of said estate, and that said Tillie Vyse be decreed to be trustee thereof for the use and benefit of your orator; and that said Tillie Vyse may be required, by a decree of this court, to pay such money, with interest thereon, to your orator as administrator of said estate.
(b) That the title to the real estate hereinbefore described be impressed with a trust in favor of your orator, as administrator of the estate of the said Charles L. Fish, deceased, and that the said defendants Mary A. Richards and Maud A. Kuhn may be adjudged and decreed to hold said real estate in trust for your orator, as administrator of said estate, to the extent of the money fraudulently received by the said Tillie Vyse from the said Charles L. Fish, deceased, and invested in the purchase thereof, and that such real estate, so purchased by said Tillie Vyse in the name of Mary A. Richards and Maud A. Kuhn, may be sold, and out of the proceeds of the sale your orator paid the amount of money belonging to the said Charles L. Fish so invested in said property.
“ (c) That your orator may have such other and further relief in the premises as shall be agreeable to equity and good conscience.”

The only averment of fraud as to defendants Richards and Kuhn is as above stated. The bill of complaint does not aver that Tillie Vyse is pecuniarily irresponsible. The defendants Kuhn and Richards demurred to the bill for the following reasons:

“(1) That the act charged in the bill of complaint, and on which said bill is based, occurred without the State of Michigan, and that complainant’s intestate was a resident of Cleveland, Ohio, at the time of his death, and that his administrator is a resident of Cleveland, Ohio; that the said Tillie Vyse, against whom all of the wrongs in said bill complained of are charged, is a resident of Cleveland, Ohio, and that the courts of this State have no jurisdiction in the matter.
“(2) That there is no wrong charged against these defendants, nor any such relief sought, as a court of equity should grant.
“(3) That complainant has an adequate remedy in a court of law.
"(4:) That said bill does not set forth sufficient facts to entitle complainant to the relief prayed for against them in a court of equity.
“(5) That the complainant is not a proper person to complain of the facts alleged in said bill.”

A demurrer having been interposed to the bill of complaint, its averments must be taken as true.

Reasons 1 and 3 may be considered together, as they are so argued by the solicitors for defendants. (1) Have the courts in this State no jurisdiction in the matter ? (3) Has the complainant an adequate remedy at law ? It is insisted by the solicitors for the defendants that, as to defendants Kuhn and Richards, there is no charge that the money was procured by fraud, or that they knew at the time, or have known at any time since, that duress, fraud, or undue influence were exerted upon said Fish for the purpose of procuring the property, or that the said Yyse, having, as it is claimed by complainant, procured the property, did anything other than purchase the property in the name of these defendants, she (the said Tillie Yyse), and not the defendants herein, having, by the allegations of the bill, purchased the property; and that, as there is no averment of insolvency of Tillie Yyse, that the complainant has an adequate remedy at law, and that the remedy of complainant, if he has any, is peculiarly within the province of the law side of the court. Quotations are freely made from the decisions of this court, which, it is claimed, sustain the contention. The trouble with this contention, we think, grows out of the assumption that fraud is not brought home to the defendants Kuhn and Richards. It is true they are not charged with being parties to the fraud in procuring the money from Mr. Fish, but it is charged in the bill that Tillie Vyse paid for the real estate with the money she had obtained fraudulently, and caused the title to be placed in the name of her mother and sister, and that they have no actual interest in the real estate, but “are holding the same for the use and benefit of the said Tillie Vyse, and in furtherance of the perpetuation of the fraud practiced by the said Tillie Vyse upon the said Charles L. Fish, by means of which, she obtained the money aforesaid.” We think this a sufficient averment of fraud to confer upon the equity court jurisdiction.

The bill charges fraud and undue influence, and seeks to trace and recover specific property held in perpetuation of the fraud.

“In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means, or under any other similar circumstances, which render it unconscionable for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are terms * ex maleficio ’ or ‘ ex delicto,’ are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrongdoer. ” 3 Pomeroy on Equity Jurisprudence (3d Ed.), § 1053.

See, also, Tompkins v. Hollister, 60 Mich. 479; Edwards v. Investment Co., 132 Mich. 1, and the many cases there cited; Fred Macey Co. v. Macey, 143 Mich. 138 (5 L. R. A. [N. S.] 1036).

It is the claim of the bill that the fund illegally obtained is traced directly to the real estate situate in Wayne county, and the prayer is that the title thereto may be impressed with a trust in favor of co'mplainant. Section 434, 1 Comp. Laws, provides:

“Every suit in chancery shall be commenced in the circuit court for the county in which the property in dispute is situated, if the subject-matter is local, and if it is not local, in the county where one of the parties in interest resides, if either is a resident of the State; but if the subject-matter is not local, and neither party resides in the State, the suit may be brought in any county; and where it is necessary to file an information or bill in chancery, either to compel the specific performance of contract, cancellation of patents from the State, quiet title, or otherwise to affect real estate,” etc.

It is very evident that a decree according to the prayer of the bill cannot be made without its affecting the real estate described in the bill.

What we have said applies also to reasons 2 and 4 of the demurrer.

5. That the complainant is not a proper person to complain of the facts alleged in said bill. It is argued that at the common law the title to real estate of a deceased vested at his death directly in the heir, and the administrator had no right of possession to it. The statutes of Michigan subsequently gave the administrator a qualified right of such possession for a particular purpose; and that this qualified right is given because it may become necessary to exercise it in the settlement of the estate for the purpose of paying claims against the estate, and, there being no claim in the bill that there are debts, the administrator may not bring this case. One of the troubles with this argument is that it does not take cognizance of the fact that the property which the bill avers was fraudulently obtained was personal property, and remained so, long after the death of Mr. Fish. Until settlement and distribution of an intestate estate, the personal property would rightly be in the custody of the administrator. See Cullen v. O'Hara, 4 Mich. 132; Hollowell v. Cole, 25 Mich. 345; Albright v. Cobb, 30 Mich. 355; Parks v. Norris, 101 Mich. 71. At the time of the death of Mr. Fish, under these authorities, the only person who could have brought an action for the recovery of this money was the administrator. It was not only his right, but it was his duty, to institute an action to obtain it. The fact that the personal property has been used to purchase real property does not do away with that right.

The decree is reversed, with costs. The defendants will be given the usual time in which to answer the bill of complaint.

Montgomery, Ostrander, Hooker, and McAlvay, JJ., concurred.


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    GERMAN v. CAMBURN.
    Specific Performance — Contract to Execute Mutual Wills —Evidence—Sufficiency.
    On a bill to enforce specific performance of an alleged agreement between husband and wife to dispose of their property in accordance with the terms of wills prepared for mutual execution at the time of the execution by the wife of the one prepared for her, evidence examined, and held, not to show that the husband’s will was the consideration for the execution by the wife of her will, but rather was a will which he prepared for execution to stand as his will in case she survived him.
    Case made from Lenawee; Chester, J.
    Submitted June 18, 1908.
    (Docket No. 83.)
    Decided September 15, 1908.
    Bill by Willard B. German and Ernest L. German against Thomas A. Camburn, executor of the last will and testament of Albert Camburn, deceased, and others, to enforce the specific performance of a contract. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Smith, Baldwin & Alexander, for complainants.

      Bird & Sampson, for defendants.
   Moore, J.

The complainants are cousins of the first wife of Albert Camburn, deceased. Her maiden name was German. Margaret J. Stout was a sister of Albert Camburn. The defendants William and Alma S. Cam-burn were his nephew and niece. This bill was filed to enforce specific performance of a contract which, it is claimed by complainants, was entered into between Albert Camburn and his wife, Alvira, on the 25th day of April, 1883, when they made mutual wills.' It is the claim of complainants that, at the time the wills were made,

personal property passed, and Mrs. Camburn delivered the deed to 20 acres of land referred to later to Mr. Camburn; that an irrevocable agreement was made which brings the case within Carmichael v. Carmichael, 72 Mich. 76 (1 L. R. A. 596). It is the claim of defendants that what was done did not make an irrevocable agreement, that the deed was delivered in 1870, and that what was done did not bring the case within the Carmichael Case. After a hearing in open court before the circuit judge, he dismissed the bill of complaint. The case is here upon appeal.

We agree with the solicitors for the respective parties that the pivotal question is one of fact, and not of law. There are certain important facts that are well established which are as follows: Prior to 1851 Albert Camburn married Alvira German, the daughter of William R. German. She had a brother whose name was Hubbard German, who, all parties are agreed, was a spendthrift, and who gave his father and relatives a good deal of trouble before his death. Albert Camburn and his wife settled upon a piece of comparatively wild land owned by William B. German. There were 80 acres in the parcel where they lived, and 20 acres in another parcel. This land is variously estimated by the witnesses as worth at that time from $5 to $12 an acre. Albert Camburn sold 40 acres of land, for what price does not appear, which he received from his father, and put the proceeds into a house upon the 80 acres. He and his wife proceeded to clear the farm, and made their home thereon until after the death of the wife. In April, 1851, William B. German made a will containing the following provisions:

“First. I give to my daughter, Alvira Camburn, and to the heirs of her body, all and singular that certain tract or parcel of land situate in the town of Franklin aforesaid, and known as the east half of the'southeast quarter of section thirty, in town five south, of range three east, containing eighty acres of land, more or less; and in case of her death without issue of her body then living, then I give and bequeath the same to her husband, Albert Cam-burn, his heirs and assigns forever.
“Second. I further give, devise and bequeath to my daughter, Alvira Camburn, twenty acres of land situate in Franklin, aforesaid, and described as follows,” etc.

Hubbard R. German was named in the will as residuary legatee. William B. German died, and his will was duly probated in December, 1864. In September, 1870, Alvira Camburn made a deed of the 20 acres to her husband. It was acknowledged before the judge of probate September 16, 1870, and, following the seal and signature of Mrs. Camburn, appeared the following :

“ Signed, sealed and delivered in the presence of
“ R. R: Beecher, “C.D. Hanks.”

This deed was recorded May 3, 1883, and was found among the papers of Albert Camburn after his death. Mr. Camburn had a talk with Mr. Miller, a lawyer at Adrian, about drawing wills for himself and his wife. Mr. Miller drew two wills, one for Mrs. Camburn to execute, and the other for Mr. Camburn to execute. They were not executed before Mr. Miller. They were taken away by Mr. Camburn. Mrs. Camburn was not present when the wills were drawn, nor when they were taken away. Mr. Miller’s recollection is that the only difference in the wills was that one was drawn to be executed by Mr. Camburn, and the other by his wife. The reasons for drawing the papers, he says, were:

“Well, the reasons he gave, I remember, whether it was that time or at some previous talk I don’t remember, but I know in the talks with him about it he said that the property, which was largely a farm in the town of Franklin, came through his wife’s father, Mr. German, old Deacon German, I guess they used to call him, and in case he and his wife should dié without any children, as they probably would, that, unless something was done now to have the property go where they wanted it to, it would go largely or entirely, perhaps, I don’t remember which, to a brother of hers, named Hubbard German, whom I knew very well, and he said the reason of it was because he was a ne’er-do-well, an intemperate man, who has squandered his property, all he had got, and all he could get, and they didn’t want him to have that, any of it.
“Mr. Camburn at this time said something to me about Dr. Maclean’s treating his wife, or operating upon her. He gave that as a reason why he wanted these wills made. Said his wife’s health was very uncertain, and she might have to undergo an operation; that was why he wanted it done, and she, too, wanted it done now.”

Mr. Miller’s testimony does not disclose that anything was said about the 20 acres of land. April 25, 1883, the night before submitting to an operation, Alvira Camburn executed a will to which Robert Carnes and his wife were witnesses. Mr. Camburn at the same time executed a will before them. It is supposed that Mr. Camburn after-wards destroyed the will executed by him, as it could not be found. Mrs. Carnes was a witness and testified to the due execution of the wills. She did not read them, nor hear them read. Mr. Miller identified the will executed by Mrs. Camburn as one of those drawn by him and taken away by Mr. Camburn. At the time these wills were made Mr. and Mrs. Camburn had no children. William B. German had a brother by the name of Smith German, who lived in the same neighborhood, and who was the father of these complainants, Willard B. and Ernest L. German and of Frances Alvira German. After the death of the child of Albert and Alvira Camburn, the proof shows they both had a great deal of affection for these complainants, and their sister Frances Alvira. The families and children were friendly.

The essential provisions of the will Mrs. Camburn executed are as follows:

“First. After my debts are paid, if any shall be owed by me at my death, and my funeral expenses are liquidated, I give and bequeath to my beloved husband, Albert Camburn, all my estate, both real and personal, to have and to hold the same and full control thereof so long as he shall live; and if it shall be needed or become necessary for the comfortable support of my said husband, Albert Camburn, to use and dispose of any part of my said estate beyond the use and income thereof, then I hereby authorize him to sell, dispose of, and convey any part of my said estate that may be necessary to his support as aforesaid. The lands of which I am seised, and which are bequeathed in this my last will, are situated in said township of Franklin, and known and described as the east half of the southeast quarter of section thirty, in town five south, of range three east, being eighty acres, more or less.
Second. I give, devise and bequeath, all the residue and remainder of my estate, after the death of my said husband, both real and personal, to Frances Alvira German, Willard B. German, and Ernest German, being the children of Smith German, Esq., of Franklin, and to their heirs forever, to be shared and divided among them as follows: First. To said Frances Alvira German all my wearing apparel; jewelry and household furniture, and the land hereinbefore described. Second. To said Willard B. and Ernest the remainder and residue of my personal estate not given and devised to said Frances Alvira, share and share alike. Third,. In case said Frances Alvira shall die before my said husband, then the property devised to her shall be given to said Willard B. and Ernest, or to the survivors of them, if either said Ernest or said Willard B. shall also die before my said husband. Fourth. In case either said Willard B. or Ernest shall die before my said husband, then the survivor of the two shall take all that is devised to both of them.”

It will be observed that the real estate mentioned in this will is the 80 acres of land, a life interest in which had been given to Mrs. Camburn, and the title in fee upon her death to Mr. Camburn by the will of William B. G-erman, the father of Mrs. Camburn. No mention is made in the will of the 20 acres. Frances Alvira German died in 1889. Mrs. Camburn died in November, 1883, and her will was duly probated. Some years thereafter Mr. Camburn married again. There were no children the issue of this marriage, and the second wife died in November, 1889. Mr. Camburn’s death occurred in 1902. Before his death he made a will, the material parts of which are as follows:

“ First. I give, devise, and bequeath to Willard B. German twenty acres of land, described as. follows: Bounded north by road, east by land of W. N. Perkins, south by Albert Vanderpool, and west by John Tyson, on section number thirty in the township of Franklin, Lenawee county, Mich.
“Second. I give., devise, and bequeath to Mrs. Margaret Stout two hundred and fifty dollars, if she survives me.
Third. I give, devise, and bequeath to my nephew and niece William E. Camburn and Alma S. Camburn, all the residue of my estate, both real and personal, of every name and nature whatsoever, including the sum bequeathed to Margaret J. Stout, should she die before I do.”

This was duly probated.

The principal witness upon the part of the complainants was their mother. Her testimony covered a large field. She claimed to have had a talk with Mr. and Mrs. Cam-burn as to why the wills were made and the consideration therefor. After the proofs were all in, the court in deciding the case said:

“ In the case of Willard B. German and others against Thomas M. Camburn, I think I would suggest that the only contract relation between Albert Camburn and Alvira Camburn, as I view the evidence here, was, first, that the survivor of them should have the life use and enjoyment of the other’s property; second, that in no event should the property of either go to the person spoken of as Hub German. I do not think there was any contract between Mr. and Mrs. Camburn whereby this property should go to the children of Smith German, and that these are not mutual wills depriving either from giving the property as he or she saw fit, after the life estate had ceased. Some question was raised on the trial as to the mental competency of Mr. Camburn. I think ha was mentally competent to make such a disposition of his property as he'saw fit by will. With these views of the facts —of course, there are many other facts in the case — but with these views, I think that a decree should be entered here dismissing the bill.”

We think the record at this time fully justified the conclusion then reached by the judge. In November, 1905, upon the application of the complainants, the case was reopened, and further proof was taken. In deciding the case the second time the judge recalled what he had said before, and added:

ic What I said at that time I think is very applicable at this time. In addition to what I then said, I must say that I am not persuaded Mr. Camburn’s will was made as a consideration for the making of Mrs. Camburn’s will, nor to evidence, nor in acknowledgment of an indebtedness owing by him to Mrs. Camburn. I think his will just such a will as any husband might well make, to be carried out in case his wife outlives him, but, if she does not, then he can do with his life’s earnings as he sees fit.”

After a careful.reading of the very remarkable testimony offered after the case was reopened, we are not surprised that the trial judge refused to change his mind about the case.

The decree is affirmed, with costs.

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


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    PIERSON & HOUGH CO. v. NORET.
    1. Fraudulent Conveyances — Innocent Purchaser — Corporate Property — Sale by Opeioer — Protection—Statute.
    Where the managing officer of a corporation sold, as his own, and received pay for, a stock of goods belonging to the corporation, there was, legally, no sale, and the purchaser was not a purchaser for a valuable consideration protected by section 9537, 3 Comp. Laws, though he acted in good faith and paid a valuable consideration.
    2. Same — Acquiescence of Owner — Rights op Creditors.
    The transfer being ineffective as to the rights of the creditors of the corporation, their rights were not affected by a subsequent discovery and acquiescence in the transaction by the stockholders of the corporation.
    3. Same — Sales in Bulk Law — Violation—Effect.
    The sale being of a stock of goods in bulk without compliance with the provisions of Act No. 223, Pub. Acts 1905, it was invalid as to the creditors of the corporation, assuming that there was an effective transfer of the title notwithstanding the manner of the sale.
    Case made from Muskegon; Sessions, J.
    Submitted June 19, 1908.
    (Docket No. 122.)
    Decided September 15, 1908.
    Garnishment proceedings by the Pierson & Hough Company against Edwin A. Noret as garnishee of the A. Alberts Hardware Company. There was judgment for plaintiff, and defendant appeals.
    Affirmed.

      C. B. Stevens, for appellant.

      G. J. Chaddock and Alex. Sutherland, for appellee.
   Ostrander, J.

The court below found, as matter of fact, that plaintiff is a judgment creditor of the A. Alberts Hardware Company, a mercantile corporation, and that defendant, Noret had in his possession, at the time of service of the writ, property belonging to said corporation of the value of $1,000, and cash, arising from the disposition of other property of said corporation by Noret, to the amount of $225. He found that the stockholders and directors of the corporation were Abner Alberts, its secretary and the manager of its business, his wife, Catherine, president of the company, and John Murdock, who was employed in and about the business. Without action of the stockholders or directors, with the knowledge of all of them, without objection from any of them, and without compliance with Act No. 223, Pub. Acts 1905, a bargain, entered into in good faith by defendant, Noret, and evidenced by, the writings here set out, was made and completed :

“Muskegon, Mich., August 17, 1906. “To A. Alberts Hardware Co., Dr.
“ Dealers in all kinds of Shelf Hardware,
“ Farm Implements and Harness Goods.
“ Citizens’ Phone 475. 46 Pine Street.
“For the consideration of twenty-four hundred and sixty and dollars, to me paid on delivery of this instrument of writing, I do hereby sell, and assign and deliver to E. A. Noret my hardware stock, consisting of all merchandise and fixtures, except the iron safe, situated on Pine street, Muskegon, Mich. This stock and fixtures is unincumbered.
“A. Alberts.”
“ Muskegon, Mich., August 17,1906. “To A. Alberts Hardware Co., Dr.
“ Dealers in all kinds of Shelf Hardware,
“ Farm Implements and Harness Goods.
“ Citizens’ Phone 475. 46 Pine Street.
* ‘ This is to certify that I have this day bought A. Alberts’ hardware in Muskegon, on Pine street. Consideration twenty-four hundred and sixty dollars of which fourteen hundred and seventy-seven dollars is paid in consideration of one livery stock this day turned over to A. Alberts, and six hundred dollars cash this day paid; the balance, three hundred sixty-one -fflv A. Alberts agrees to take in town lots situated in Noret’s addition in the village of Hart, Michigan, at a fair valuation; A. Alberts to come to Hart and decide on the lots he will take by September 15, 1906. The price of said lots shall be from 60.00 to 400 dollars, owing to location.
[Signed] “E. A. Nobet, “A. Albebts.”

The eleventh finding of fact, which appellant contends is not supported by any testimony, is:

“ That the Alberts Hardware Company received none of the consideration given by Edwin A. Noret to A. Alberts for said property of the Alberts Hardware Company.”

The conclusions of law are that the attempted sale was without authority, was never ratified by the corporation, was illegal and void as to creditors of the corporation; that Noret is liable in garnishment to the plaintiff. It is doubtful if this court can say that the necessary inference from the testimony is not the one stated in the eleventh finding. The corporation never had a meeting. It does not appear that the corporation did not get the money which was paid. It does appear that Abner Alberts acquired title to the real estate, and engaged in the new business for which the corporate property was exchanged. The fact is, in any event, one to be affirmatively shown by defendant if he relies upon it .to support his title. .If we correctly understand the position of appellant, he is asserting ownership of the property formerly belonging to the corporation, the principal defendant. He bases his title upon the paper writing herein set out, and estoppel of all of the stockholders, and so of the corporation, to dispute his right. It appears to be admitted that he could not acquire title, good in this action, from the corporation itself unless there was a compliance with the provisions of Act No. 338, Pub. Acts 1905. Musselman Grocer Co. v. Kidd, Dater & Price Co., 151 Mich. 478; 3 Comp. Laws, § 10633.

Two propositions are laid down in argument. The first proposition is that, because he is an innocent purchaser for value, defendant is protected in his title, as against creditors, both by common-law principles and by the express provisions of 3 Comp. Laws, § 9537. The second proposition is that the act of 1905, already referred to, has no application to such a sale as was made, or attempted. If there was, in fact, no sale of the goods by the corporation (the owner), defendant was not, in fact, a purchaser for a valuable consideration within the meaning of 3 Comp. Laws, § 9537. Property is not sold when one, not its owner, transfers it, as his own, to an innocent party, who pays a consideration. Neither the real owner nor his creditors are affected by such a transfer. And discovery of, and acquiescence in, the attempted sale by the owner will not take away rights of his creditors. In admitting, as he does, that the attempted sale was illegal, defendant admits that as to creditors he obtained no title to the property; admits the right of creditors of the owner of the property to attack and set aside the sale. When and how this right was lost, when and how his title became, as to creditors, a good title, is not made to appear, and is not evident. If there was, notwithstanding the manner of the sale, an effective transfer of the title of the property to defendant (and he contends that there was, affirms it, and asserts title to the property), it was a sale of a stock of hardware in bulk, void, as to creditors of the real vendor, because of noncompliance with the act of 1905.

The adoption of either of these theories requires affirmance of the judgment, and it is affirmed.

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


author: Per Curiam.

text:
    CHASE v. KALAMAZOO CIRCUIT JUDGE.
    1. Witnesses — Criminal Cases — Subfcenas —Service—Fees — Witness Fees — Payment.
    In criminal cases the fees of officers for serving subpoenas and the fees and mileage of witnesses subpoenaed for the people are not required to be paid in advance, but only after trial upon due proof of attendance.
    3. Same — Subfcenas—Issuance—Duty—Form.
    Upon the prosecution of an information for violation of the food law (section 5013, 3 Comp. Laws), upon a complaint made by a deputy dairy and food commissioner, it is the duty of the prosecuting attorney to instruct the clerk of the circuit court t.o issue subpoenas for the people’s witnesses in the ordinary form and in the ordinary way; and, the matter being brought to the attention of the court, it is his duty to instruct the clerk to issue subpoenas in the usual form, without any indorsement to the effect that fees and expenses are not to be paid by the county.
    Mandamus by Henry E. Chase, deputy attorney general, to compel John W. Adams, circuit judge of Kalamazoo county, to order the issuance of subpoenas in the usual form in criminal cases.
    Submitted June 37, 1908.
    (Calendar No. 22,899.)
    Writ granted September 15, 1908.

      John E. Bird, Attorney General, Henry E. Chase, Deputy Attorney General, and Charles W. McGill, Assistant Attorney General, for relator.

      Alfred J. Mills, for respondent.
   Per Curiam.

Certain complaints were made by one of the deputy dairy and food inspectors of the State against certain persons in the county of Kalamazoo for violation of section 3, Act No. 193, Pub. Acts 1895 (3 Comp. Laws, § 5013). Examinations were had before an examining magistrate. The magistrate found reasonable cause to believe the defendants guilty, and bound them over to the circuit court for the county of Kalamazoo for trial. Informations were filed to which the respondents pleaded not guilty. One was against one Philip Bresson. The case was set for trial. The prosecuting attorney appeared in the cases, and was assisted by a duly accredited representative of the attorney general’s department. A controversy arose between the prosecuting attorney and the representative of the attorney general’s office over the question of fees, the prosecuting attorney contending that under the pure food act the expenses of the witnesses and officers should be paid by the State; the attorney general’s department contending that they should be paid by the county the same as other criminal cases. The representative of the attorney general appeared before the circuit court of Kalamazoo county, and made a motion for an order to compel the issuance of subpoenas for witnesses. The prosecuting attorney feared that the issuing of the subpoenas by his authority without protest would estop the county from raising the question of its liability. An unnecessarily acrimonious discussion occurred before the circuit judge upon the question. After patiently hearing the discussion, the court made the following order:

“ It is ordered that the clerk of this county issue subpoenas for all witnesses in this cause which the prosecuting attorney may ask for. Said clerk shall indorse on the face of each subpoena, namely:
“ ‘ Officer’s fees and expenses in serving this subpoena and fees and mileage of witnesses named herein are not to be paid by the county of Kalamazoo. The question whether the State of Michigan or the dairy and food department of the State of Michigan or Kalamazoo county shall eventually pay the officer’s and witness fees in connection with such subpoenas so issued is left for future adjustment and determination, and is not intended by this order to be predetermined by this court.’
“ If the prosecuting attorney has a list of the witnesses, if the same has been furnished him by the State, the dairy and food commissioner, or the attorney general’s department, he should at once furnish that list to the clerk and have those subpoenas issued. I think the same had better be sent to the dairy and food commissioner.”

Subpoenas were issued, and across their faces was written in red ink:

“Officer’s fees and expenses in serving this subpoena, and fees and mileage of witnesses named herein are not to be paid by the county of Kalamazoo.

Thereupon the relator, the deputy attorney general, petitioned for the writ of mandamus to compel the circuit judge to order the issuance of these subpoenas in the usual form in criminal cases. As printed in the petition, a part of the language required by the respondent’s order to be indorsed on the face of the subpoena was omitted, viz., that part reserving the determination of whether such fees and expenses should be paid by the county or the State.

Fees in criminal cases are not required to be paid in advance. They are only paid after the trial upon due proof of attendance. The statute makes it “the duty of all prosecuting officers of this State to prosecute to completion all suits brought under the provisions of this act upon the complaint of the commissioner or of any citizen.” Section 20, Act No. 193, Pub. Acts 1895. We find nothing in the statute to authorize the issuing of a subpoena in any other than in the ordinary form. The proper time to raise the question of liability is after the expenses have been incurred, and by some proper proceeding to determine whether the State or the county is liable. Criminal trials should not be delayed by raising questions of this character. It was the duty of the prosecuting attorney to instruct the clerk to issue subpoenas in the ordinary form and in the customary way. The court, when the matter was brought to its attention, should have instructed its clerk to issue the usual subpoenas in criminal cases.

The writ will issue, but without costs.