text:
    SHEPHERD v. SHEPHERD’S ESTATE.
    1. Appointment op Referees — Estoppel.
    A party who consents in open court to the appointment of two referees, instead of one or three, as provided for by the statute (2 How. Stat. § 7377), and who appears before them and submits the matters in controversy, is estopped from afterwards questioning the jurisdiction of the court to make such appointment.
    2. Same — Power op Administrator.
    An executor or administrator is within, the rule stated, the doctrine that such officer cannot waive any of the rights of the estate having no application to such a case.
    3. Trusts — Statute op Limitations.
    The statute of limitations does not begin to run as against an express and continuing trust until repudiation by the trustee, and knowledge thereof on the part of the cestui que trust.

      4. Same — Principal and Agent — Bills and Notes.
    Thus, where a general managing agent retains in his possession notes executed by him to his principal, with the understanding that they shall enter into the accounting between the parties, the statute of limitations does not begin to runas against the right to recover the amount represented by said notes until an accounting has been demanded.
    5. Same — Interest—Estates op Decedents.
    Interest on the claim of a principal against the estate of his deceased agent is properly awarded from the date when demand was made upon the administrator for payment of the account.

      6. Appeal prom Probate Court — Costs.
    2 How. Stat. § 5894, providing that, where a commission to hear claims against the estate of a deceased person is revived upon the application of a creditor who has failed to present his claim in season, “all costs and charges resulting from such application, and the proceedings thereon, had in the probate court, shall be paid” by the applicant, does not cover the costs on an appeal to the circuit, the same being governed by 2 How. Stat. § 8982, which provides that, “upon appeals from probate courts to a circuit court, * * * costs shall be paid by the appellant or respondent, as shall be directed ” by the appellate court.
    Error to Eaton; Smith, J.
    Submitted December 4, 1895.
    Decided December 30, 1895.
    James Shepherd presented a claim against the estate of Leroy' Shepherd, deceased. The commissioners allowed the claim in part, and an appeal was taken to the circuit court, where referees were appointed to hear and examine the issues involved. From a judgment confirming the report of the referees in part, both parties bring error.
    Affirmed.

      Garry C. Fox, for claimant.

      Huggett & Smith, for defendant.
   Long, J.

Leroy Shepherd died,|testate, April 23, 1889. Letters testamentary were issued, and claims filed against the estate, and on June 3, 1890, an order was made closing the hearing of such claims. December 21, 1891, the claimant made application to open the estate to hear his claim. The order was made, and a claim presented by claimant, amounting to some $30,000. Certain set-offs were proposed. The claim was heard before commissioners, and a finding made awarding the claimant $649.05. Appeal was taken to the circuit court. At the July term, 1892, a consent order was made that the case be referred to two referees, and they were duly appointed. These referees made a report in writing upon the various items of claimant’s claim and defendant’s set-off on November 28, 1893, to -which exceptions were taken by the defendant. A bill of exceptions was also settled before the referees. The referees found the claimant entitled to recover the sum of $2,315.81. The case was brought on for hearing before the circuit court, upon the exceptions taken, and the court confirmed the report of the referees in part, and disallowed certain items found by them, and entered judgment in favor of claimant for $1,149.71, with interest at 6 per cent, from November 28, 1893, the date of the report of the referees, with costs. The court also found the value of the services of the referees and their expenses, as follows: For expenses reported by them, $112; for services, each, $10 per day, for 46^ days each, $930, — total, $1,042. Both parties appeal.

The first question raised relates to the appointment of the referees. It is contended that the statute provides for the appointment of one or three referees, and that the court had no power to appoint two. Section 7377, 2 How. Stat., provides that— .

“Issues joined in any civil action at law, whether of fact or of law, may, upon the written consent of the parties filed with the clerk, or upon their oral consent in open court, be referred to such person or such three persons as may be agreed upon by the parties, or appointed by the court in case the parties fail to agree.”

It is further contended that, under the statute, only one instance is referred to where two referees may act, that being in section 7379, where it is provided that, when a vacancy occurs, the court or judge may make an order that the reference be completed without filling the vacancy.

We think that, if the statute should be so construed, defendant is not in a position to raise this question. The appointment of two referees was agreed upon, and the parties appeared before them, and submitted all their matters, and defendant for the first time raised the question when the order of confirmation was asked in the circuit court. Objections to the form of the order of reference or to the appointment of referees have been deemed to be waived by proceeding with the reference; and so the objection that the court had no jurisdiction to make the order of reference is waived in like manner. 20 Am. & Eng. Ene. Law, p. 683, and notes 4 and 5.

But counsel for defendant contend that, while this may be true in ordinary cases, yet, where the claim is brought against an estate, the administrator cannot waive any of the rights of the estate. Counsel cite several cases in support of this proposition; but all are cases where it was held that the administrator could not waive the statute of limitations, or that he could not admit the correctness of a claim, holding that it is his duty to defend, preserve, and protect the interests of the heirs. But that question is not so presented here. The circuit court had jurisdiction to hear and determine the controversy between the parties. The case was in that court to be determined, and, by consent of the parties, it was referred. The court had the power to appoint referees, with the consent of the parties; and inasmuch as they consented to the appointment of two instead of one or three, and submitted themselves to that jurisdiction, and appeared and tried the cause, they are now estopped from questioning the jurisdiction.

The referees found that from February 20, 1882, until the date of his death, Leroy Shepherd was acting in the capacity of general agent of claimant, in the control and management of his business at Charlotte, Mich., and that during that period there never was any settlement between them in relation to such matters. It appears that, at the time of the death of Leroy Shepherd, there were found among his papers certain notes signed by himself, and given to James Shepherd, — one dated August 16, 1881, for the sum* of $100, with interest at 9 per cent, per annum, due six months from date; one dated March 6, 1885, for $235.41, with interest at 7 per cent., due one day after date; one dated January 30, 1885, for $500, with interest at 7 per cent., due one day after date; and one dated August 2, 1884, for $37.67, with, use, on demand. When these notes were offered in evidence, they were objected to, on the ground that they were barred by the statute of limitations. This objection was overruled, and the referees took them into account in stating the account against the estate. The findings made by the referees with reference to the first note as the reason of its allowance against the estate, and why not barred by the statute of limitations, are, substantially, that the note was kept and treated by the deceased, during the period that he was acting as the general agent of the claimant, as a part of his account with claimant; and that claimant had no knowledge or notice at any time after the making of said note, and prior to the death of Leroy Shepherd, that Leroy Shepherd claimed that it had been paid; and that there was no evidence that Leroy Shepherd claimed that the'note had been paid; also, that Leroy Shepherd did not mark the note “Canceled” or “Paid in full,” as he was accustomed to do, and did do, with notes that were paid. And the referees further found:

“But, on the contrary, we find that he kept it among other notes and papers of James Shepherd, which convinces us that he intended to account for it in the final settlement of his trust; and that Leroy Shepherd did not render an account to James Shepherd, and that no demand was made for such an accounting or settlement by James Shepherd, at any time during the life of Leroy Shepherd; and that the reason, among others, that the statute of limitations did not begin to run upon this note is that Leroy Shepherd, as general agent of James Shepherd, had possession of said note at the date of his death; and that, from his mode of keeping his account with James Shepherd, his principal (there being no stated time for accounting), the relation of Leroy Shepherd with regard to this note was rather that of trustee than debtor.
“We further find that during the period from about February 20, 1882, to April 23, 1889, James Shepherd resided away from the city of Charlotte all of the time except about one year; that Leroy Shepherd had the control of the books of James Shepherd, showing his business at Charlotte, from February 20, 1882, until the date of his death; that he was acting as the general agent of James Shepherd during this entire period; that he gave notes for James Shepherd, and signed his name to them, and made settlements for James Shepherd, with all the apparent authority of a general agent without limitation; that James Shepherd had moved back to Mackinaw some time previous to the death of Leroy Shepherd, and resided there at the time of the decease of said Leroy.
1 ‘ In answer to the general request of the attorneys' for the estate, we would state that we do find from the evidence that, during the year 1884, settlements of some accounts were made by James Shepherd, as appears from his handwriting on the books, and that also, during the time that Leroy Shepherd was acting as agent, James Shepherd did look over the books of Leroy Shepherd with the deceased; but we find no evidence of a settlement, or an attempt to make a settlement, between them.
“We further find from the evidence that during all this time, viz., from February 20, 1882, to April 23, 1889, James Shepherd placed implicit confidence in Leroy Shepherd, and relied upon his judgment.”

As a conclusion of law, the referees found as follows:

“We find that the statute of limitations did not commence to run against any of the items that we have allowed against the estate of Leroy Shepherd, deceased, for the reason that the transactions out of which each and all of such items arose occurred during the time intervening between February 20, 1882, and the date of the death of said Leroy Shepherd, deceased, and while said Leroy Shepherd was acting and did act as a general agent of James Shepherd, during all of said period, and, as we find from the evidence, with no stated time for accounting; and that no account had been rendered by Leroy Shepherd, deceased, to said James Shepherd of his transactions as such general agent during this period; and that no demand for such accounting had been made by James Shepherd prior to the death of Leroy Shepherd; and for this reason we find, as a matter of law, that the statute of limitations did not run against any of such items so allowed by us.
“And we further find, as a conclusion of law, applicable to our finding number three, on item number one of claimant’s bill of particulars, that, for the reason that the note of Leroy Shepherd came to his possession as agent and trustee of James Shepherd, the statute of limitations could not operate as a bar to James Shepherd’s right of action on said note, and that there could be no such adverse holding of this note by Leroy Shepherd, deceased, until he, as such trustee of James Shepherd, had denuded himself of his said trust, either by delivering up said note, and claiming it was paid, or by assuming to hold it for himself as a paid note.”

Upon these four notes the referees computed interest to the date of making the report, November 28, 1893. The total of the four notes allowed, with interest added, after deducting payments indorsed thereon, is $1,139.60.

It is contended by the defendant that these notes, or any balance due upon them, could not be made a matter of account, and that the referees were in error in so treating them, and thus seeking to avoid the running of the statute of limitations against them. • It does not very clearly appear just how these notes came to be given, or whether James Shepherd knew of their existence at any time, except the first note. That note was given before the agency commenced. It was given by Leroy Shepherd to James Shepherd, and apparently continued in his hands, as did all the other notes. The course of dealing between the parties showed that James had intrusted the entire management of his business to Leroy; that he had placed all his papers in Leroy’s hands, including the notes which Leroy had given. They evidently represented money which from time to time Leroy had had from James, and which,, in a general accounting or settlement, they both expected would be considered and accounted for. The relation between the parties, under the finding of the referees, was that of principal and agent, and not that of debtor and creditor. It was a trust estate in the hands of Leroy, into which, it is quite apparent, James placed the first note, with the full expectation that it would be accounted for and paid. Leroy did not cancel it or mark it “Paid,” but carried it along, evidently as a part of the trust property in his hands. The other notes apparently were given for moneys which he held belonging to James, and which he intended to account for, and which moneys were represented by these notes.

The court below was of the opinion that a certain memorandum which was made by the deceased was sufficient to take the notes out of the operation of the statute. This memorandum was not upon the notes themselves, but appeared upon a separate paper. It was written as follows: “Memorandum of Leroy Shepherd’s notes, drawn to James Shepherd.” The interest was calculated upon the notes, and credits given for it, and a balance struck upon them of $904.24. This statement purports to have been made December 28, 1888. The referees did not admit this statement in evidence, but the circuit judge held that it should have been admitted, and based the ruling made by him upon it.

Whether the court below was or was not in error in that we need not consider. The finding of the referees, we think, must be sustained, that the amount represented by the notes was not barred by the statute. The referees found that Leroy had advanced no money to James, but that Leroy owed him for money he had taken out of the business. They further found that Leroy had demanded money from James to be used in the business, when in fact the books of James, and Leroy’s own private books, showed that he had sufficient money on hand. We think, under the circumstances, that the statute of limitations would not commence to run on the notes until there was an accounting demanded, and that the referees were not in error in saying that the relation of principal and agent was shown, and not that of debtor and creditor. The whole matter was in the hands of Leroy as a trust, and, as such trustee, he was bound to keep the trust fund, and account for it at any time when called upon. Kimball v. Kimball, 16 Mich. 219. As between trustee and cestui que trust, in the case of an express trust, the stat-Lite of limitations lias no application, and no length of time is a bar. As against an express and continuing trust, time does not run until repudiation or adverse possession by the trustee, and knowledge thereof on the part of the cestui. Such a trust is barred only on the doctrine of prescription by the lapse of 20 years, and, so long as the relation of trustee and cestui continues unbroken, the possession of the trustee is that of the cestui, and there can be no adverse possession for time to run upon. Perry, Trusts, § 863, and cases there cited. Under the facts found by the referees, this doctrine must be applied to the notes and the accounts, and we need not discuss this question further.

Complaint is made that the referees awarded interest from the date that the demand was made upon the administrators for the payment of the account. We think this was correct. Story, Ag. § 221; 4 Wait, Act. & Def. p. 138.

It is fui’ther contended that the court was in error in awarding costs against the estate, and compelling it to pay the fees of the referees. The statute (2 How. Stat. § 5894) provides:

“On the application of a creditor who has failed to present his claim, if made at any time before the estate is closed, the judge of probate may revive the commission, and allow further time, not exceeding three months, for the commissioners to examine such claim; in which case the commissioners shall cause personally to be notified the parties: * * * Provided, that all costs and charges resulting from such application, and the proceedings thereon, had in the probate court, shall be paid by the party making the application.”

It is contended that the words of this statute in the proviso “had in the probate.court” do not limit the costs to the proceedings there, but that, to whatever court it may be removed, the case is still as much in the probate court as when the proceedings were actually there, within the meaning of the statute as to costs. On the other hand, it is contended by counsel for claimant that he is not bound under this statute to pay the costs and expenses, except on the proceedings in the probate court; and that, when the cause was removed from there by appeal, the costs were then governed in the circuit court by other provisions of the statute.

In this we think counsel for claimant is correct. 2 How. Stat. § 8982, provides: “Npon appeals from probate courts to a circuit court, and from the circuit courts to the Supreme Court, costs shall be paid by the appellant or respondent, as shall be directed by the court to which the appeal is made,” etc. See, also, 2 How. Stat. §7385. We think the matter within the discretion of the circuit court, and we are unable to say that the amount awarded to the referees is too large.

Counsel for claimant, in his brief, says that, if the judgment of the circuit court is affirmed, he raises no questions on his appeal. The judgment of the circuit court must be affirmed, and the proceedings certified to the probate court for Eaton county, with costs of this court to claimant.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    ILLINOIS LEATHER CO. v. FLYNN.
    Sale — Fraud of Vendee — Insolvency.
    It is not a fraud per se for a dealer, though insolvent, to continue to purchase goods, if he buys in good faith, intending to pay for them, and makes no misrepresentation; nor will the fact of a subsequent failure make the purchase fraudulent by relation. What constitutes fraud in such a case is the presence of an actual intent on the part of the purchaser to obtain the goods without paying for them; and this cannot be inferred from the mere fact of insolvency, nor deduced from what some other buyer, less hopeful of success in his ventures, might have believed, under like circumstances, with reference to his ability to continue the business.
    Error to Wayne; Donovan, J.
    Submitted December 6, 1895.
    Decided December 30, 1895.
    Replevin by the Illinois Leather Company against William H. Elynn, receiver of W. A. Bourke & Company. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Willis G. Clarke, for appellant.

      John D. Conely and Frank D. Andrus, for appellee.
   Montgomery, J.

Defendant was appointed receiver of the property covered by a chattel mortgage given by W. A. Bourke & Co. to the City Savings Bank of Detroit. Plaintiff, by permission of the court, brought replevin against the receiver for 1,001 bales of hair ordered of plaintiff February 10, 1892, and shipped to Bourke & Co. April 15, 1892. On the trial, plaintiff contended that the goods were bought by Bourke & Co. under circumstances raising a presumption that they received the goods having formed the intention of not paying for them, or, at least, under circumstances that show that a man of ordinary prudence would have known that he could not continue the business until the maturity of plaintiff’s claim; and the chief contention, as made in this court, is that, under such circumstances, a purchase is to be deemed fraudulent in law.

We think the law is otherwise. It is not the law that, though a dealer is insolvent, he is guilty of fraud if he continues to purchase goods, if he buys in good faith, and in the expectation of continuing in the business. He is not bound to abandon hope. It is true, there is a class of cases in which it has been held that, where the natural effect of the acts of the party is to work a fraud against another, the absence of an intent to defraud is not a defense; but it is not a fraud peí’ se for a purchaser of goods to fail to make payment, nor is it a fraud per se for a dealer to purchase goods, though insolvent, in the absence of any misrepresentation, and with the intention of paying for them; nor does the fact of a subsequent failure make the purchase fraudulent by relation. What constitutes fraud in such a case is the purpose of the buyer not to pay for the goods. This is not determined by what purpose some other, less hopeful of success in his ventures, might, under like circumstances, have entertained; but, to constitute the purchase fraudulent on this ground, there must have been an actual intent on the part of the purchaser to obtain the goods without paying for them. Tied. Sales, § 170, and cases cited; Morris v. Talcott, 96 N. Y. 100; Doyle v. Mizner, 40 Mich. 160; Edson v. Hudson, 83 Mich. 450.

The circuit judge in the present case withdrew the question of fact from the jury. An examination of the testimony satisfies us that there was no error in this. While there was testimony which might be construed as showing the insolvency of Bourke & Co., as we have pointed out, this fact alone, if established, would not have justified a verdict for the plaintiff. There was no proof of any misrepresentation, nor, as we think, was there any testimony tending to show a preconceived purpose of obtaining these goods, and avoiding payment therefor.

The judgment will be affirmed.

Long, Grant, and Hooker, JJ., concurred. Me-. Grath, C. J., did not sit.


author: Long, J.

text:
    PLUMB v. PENN MUTUAL LIFE INSURANCE CO.
    1. Life Insurance — Conditions—“Good Health” of Applicant.
    The term, “good health,” as used in a policy of life insurance, or in an application therefor, means a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously, and not a mere temporary indisposition, which does not tend to weaken or undermine the constitution of the insured.
    3. Same.
    In an action upon a life-insurance policy conditioned that the insured should be in good health at the time of the delivery of the policy, it appeared that the policy was delivered to the insured on Tuesday; that she had done a hard day’s work on the Saturday preceding; that she took some medicine that night, and on Sunday was not feeling well; that on Monday, Tuesday, and Wednesday she had some disturbance of the bowels, but was about the house, doing her work, and resting occasionally; that inflammation of the bowels set in on Thursday; that on Saturday she became seriously ill, and died the following Tuesday. Held, that the question whether the insured was in good health at the time of the delivery of the policy was properly left to the jury.
    3. Same — Immaterial Variance.
    The insured stated in her application for insurance that she had been attended by a «physician for la grippe three years previously, when in fact she had been so attended two years and nine months before making such application. Held, that there was not such a variance as would invalidate the policy for breach of warranty.
    4. Same — Attendance of Physician.
    To have been “ attended by a physician,” or to have “ consulted one professionally,” within those terms as used in an application for life insurance, there must have been an attendance or consultation with reference to some disease or ailment of a serious character, affecting the person’s sound bodily health, and not in relation to a mere temporary indisposition, or an ailment trivial in its nature, such as all persons are liable to who are nevertheless considered to be in sound health generally.

      5. Same — Evidence.
    As tending to show that the insured had been treated by a physician for a certain disease, the defendant offered in evidence a prescription claimed to have been prepared for her by such physician; but the druggist who filled the prescription was unable to testify that it was brought to him by the insured. Held, that it was properly rejected.
    6. Same — Mistake oe Agent of Insurer.
    The fact that the agent of the defendant, in filling out the application, incorrectly stated the maiden name of the insured, did not affect the validity of the policy.

      7. Same — Proofs'of Death — Evidence.
    After proofs of death had been furnished by the plaintiff, the defendant, without plaintiff’s authority or knowledge, procured certain affidavits concerning matters that occurred before the death of the insured, and produced them upon the trial, with the request that they be introduced in connection with the proofs of death. Held, that the court did not err in refusing to compel plaintiff to introduce such affidavits in evidence.
    Error to Wayne; Frazer, J.
    Submitted December 5, 1895.
    Decided December 30, 1895.

      Assumpsit by Ida G. Plumb against the Penn Mutual ' Life Insurance Company on a life-insurance policy. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Fraser & Gates, for appellant:
    The evidence showed that the insured was not in good health at the time of the delivery of the policy, and the policy, therefore, never became a binding obligation. May, Ins. § 190; Cooke, Life Ins. p. 45; Insurance Co. v. Gilbert, 27 Mich. 429; Canning v. Farquhar, 16 Q. B. Div. 727; Whitley v. Insurance Co., 71 N. C. 480; Ormond v. Life Ass’n, 96 N. C. 158; Insurance Co. v. Kennedy, 6 Bush, 450; McClave v. Life Ass’n, 55 N. J. Law, 187; Insurance Co. v. Eiving, 92 U. S. 377.
    The insured having professionally consulted a physician within the period of three years, her warranty in that respect was broken, and plaintiff should not have been permitted to recover; it was immaterial whether the ailment for which. she was treated was temporary or permanent, slight or serious. Insurance Co. v. McTague, 49 N. J. Law, 587; Cobb v. Benefit Ass’n, 153 Mass. 176; Brady v. Insurance Ass’n, 60 Fed. 727.

      Alfred Lucking, for appellee :
    To support the judgment, counsel relied upon the authorities that are cited in the opinion herein.
   Long, J.

Plaintiff brings this suit upon an insurance policy issued by the defendant company upon the life of her mother, Samantha L. Plumb, of Detroit, in the sum of $1,000. Upon the trial, plaintiff had verdict and judgment. The application was made in writing, and taken by a Mr. Hodge, who had arranged with the defendant company to procure insurance for it. The application was written December 16, 1893, but the medical examination was not had until January 16, 1894, and the policy was dated January 19th. The receipt for the first premium was countersigned by the Michigan State agent of the defendant on January 22d, and left in the office of the company at Detroit until January 30th, when it was taken by Mr. Hodge, and handed to the insured. The insured died February 6th following.

To the declaration filed the defendant pleaded the general issue, and gave notice under its plea that it would show upon the trial that in and by said application the insured expressly warranted and agreed that she was then in good health, and ordinarily enjoyed good health, and that in the statements and answers in said application for insurance no circumstance or information had been withheld touching her past or present state of health and habits of life with which said defendant ought to be made acquainted, and that said statements and answers in said application, as well as those made to defendant’s medical examiner, should constitute the application, and be the basis of said policy; and that said insured in said application falsely and fraudulently stated and answered in substance, as follows: That she was in good health; that it had been three years since.she had been attended by a physician, or had professionally consulted one; that the disease for which such physician was so consulted was la grippe; that such physician was Dr. Mills, and his residence Port Huron, Mich.; that said Dr. Mills ..was her said medical adviser and family physician; that she had not had any illness or disease other than as stated in said application; and that all the statements contained in said application were warranted to be true, and that the same were offered to the defendant as a consideration for said contract of insurance. Defendant further gave notice 'that it would likewise insist that, at the time of the making of said application, the insured was not in good health; that on divers days and times within such three years, and from June, 1890, to October, 1893, she had been attended by and had professionally consulted divers physicians, especially O. M. Stephenson, of Port Huron, Mich., and that the disease for which said consultation and attendance were had was not la grippe, but another and different disease; that all the above-mentioned statements and answers were false and fraudulent, and that the defendant, being deceived and misled thereby, made and executed said policy of insurance. It was further claimed by the notice that the defendant would prove upon the trial that its liability, by the express terms and provisions of the policy, was upon the following among other conditions, to wit: That said insured should be in good health at the time of the delivery to her of said policy; but that before and at the time of the delivery thereof, to wit, January 30, 1894, the insured was not in good health, and that, on the contrary thereof, she was in bad health, and was ill and sick with divers diseases, to wit, with disease whereof she did afterwards die, viz,, peritonitis; and that said insured did not disclose the same to the defendant, but fraudulently and wrongfully obtained possession of said policy contrary to the terms and conditions thereof.

The policy provided that the $1,000 should be paid upon the following conditions, to wit: “* * * The insured to be in good health at the time of the delivery to her of this policy.” On the trial the plaintiff gave evidence tending to show that the insured was in good health on January 30th, being the date on which the policy was actually delivered to the insured. The defendant gave testimony tending to show that the insured was not in good health on that date; and the court, in its charge to the jury, left that question to them as follows:

“If Mrs. Plumb was not seriously ill on the 30th of January, 1894, then there is nothing in this claim or defense on the part of the defendant. The question as to whether this woman was seriously ill at the time when this policy was delivered to her is a matter for you to determine under the evidence. You will remember what the evidence was as to what was the cause of her sickness, what was the character of her sickness, and what condition she was in at the time when this policy was delivered; and I charge you that this policy was delivered, under the law of this case, at the time it was actually transferred to her, which was on the 30th day of January, 1894; not when the policy was made out, not when it was received at the office here in Detroit, but when it was delivered to her by the agent or solicitor of the defendant in this case, Mr. Hodge. If you shall find under the evidence in this case that, at that time, Samantha L. Plumb was afflicted with a serious illness that affected her sound bodily health, then that policy was delivered against its terms and conditions, and the delivery of that policy would be void; but if you shall find that she was not afflicted with a serious illness affecting her bodily health, then she was in such a condition that the delivery of this policy would be authorized under its terms, and would, therefore, be binding upon the defendant.”

It appeared from the testimony introduced by the plaintiff that the insured did a hard day’s work on Saturday, January 27th. She took some medicine that night, and on Sunday was not feeling well. She had some disturbance of the bowels Monday, Tuesday, and Wednesday, but was about the house, doing her work, and resting occasionally. On Thursday inflammation of the bowels set in, and her case became serious on Saturday. She died the next Tuesday. Dr. Judson, her attending physician, testified that on Tuesday — the day the policy was delivered to her — she had some pain in the bowels, but it was nothing serious; that he first regarded her as seriously sick on the Saturday following. Mr. Hodge, the defendant’s agent, who was a boarder in the house, testified that when he gave her the policy she was slightly indisposed, but that there was nothing but what would be commonly called good health, and that she was around the house as usual. The plaintiff testified that her mother was a little indisposed on the 30th, but was up and around the house, and got breakfast and dinner as usual, and that it was not until the Saturday following that she considered her seriously ill; and the husband of the deceased testified that she was not seriously ill until Saturday.

In Brown v. Insurance Co., 65 Mich. 306, the court instructed the jury that the “ sound health evidently meant in the application.is a state of health free from any disease or ailment that affects the general soundness and healthfulness of the system seriously; not a mere temporary indisposition, which does not tend to weaken or undermine the constitution of the assured.” That charge was approved by this court. See, also, upon this question: Pudritzky v. Supreme Lodge, 76 Mich. 428; Hann v. National Union, 97 Mich. 513. In the present case the court'properly left the question to the jury whether the insured was in good health at the time of the delivery to her of the policy.

In regard to the claimed untrue statements contained in the application, it appears that the medical examination was made by Dr. Lyster, of Detroit, who wrote down the applicant’s answers to the questions. The printed questions in the medical examination, and her answers, were as follows:

“ (1) How long since you were attended by a physician, or professionally consulted one ?
“A. Three years.
(2) For what disease ?
“A. La grippe.
‘ ‘ (3) Give the name and residence of such physician ?
“A. Dr. Mills, of Port Huron.”

In another portion of the examination she was asked whether she had ever had certain diseases therein named, and answered, “None, except enteric fever, when eighteen years of age;” and Dr. Lyster adds to his certificate of examination the following: “She is apparently of a very sound physique; has had psoriasis palmaris since menses disappeared in September, 1893. No enlarged glands, or any indications of syphilis, which denies.”

To show the falsity of these statements, defendant called several witnesses. One Donald McKay testified that he was bath-house attendant at Port Huron, and knew Mrs. Plumb in her lifetime; that he treated her by the Swedish treatment a dozen times in the spring and summer of 1892; that she was troubled with partial paralysis of the right side; and that he observed when treating her, as to her having been affected with syphilis. He then stated: “My observations were that she had some sores on the hand; they were syphilitic sores, — secondary syphilis.” On his cross-examination he testified that he was not a physician, but that he was in business with Dr. Stephenson. He further testified that he gave massage treatment to Mrs. Plumb. Defendant then introduced in evidence the deposition of Dr. Stephenson, taken on behalf of defendant. He resides at Elyria, Ohio, but formerly practiced medicine in Port Huron. He states that while there he was first called upon by Mrs. Plumb December 1,1889; that he treated her continuously from that time until October, 1893, in Port Huron and Detroit; that sometimes she would come to his office three or four times each week; that she was much run down physically, and that he treated her for the disease known as syphilis. On his cross-examination he was asked whether a Mrs. Becker was not present when Mrs. Plumb consulted him, and testified that she was not, and that he did not state to Mrs. Plumb, in the presence of Mrs. Becker, that Mrs. Plumb’s trouble came from coloring matter getting into her hands when washing a carpet.

The plaintiff then called witnesses who testified upon the subject of Mrs. Plumb’s health during the three years just previous to her death. The daughter testified that her mother had salt-rheum the last three or four years of her life, which affected her in the palms of her hands, and nowhere else. She says: “I knew all about it. We occupied the same sleeping apartment a good portion of the time, and I know there was nothing on any part of her body. I have seen all parts of her body during the last four or five years before her death.” She further testified that she remembered her mother’s being sick with la grippe; that it was about three years before her death, and that Dr. Mills attended her; that she knew her mother was taking some blood medicine, given her by Dr. Stephenson, as he had a reputation for treating skin diseases; that her mother’s hands would crack and bleed; and that Dr. Mills also prescribed for her hands. Dr. Mills testified that he was the^amily physician, and saw a good deal of the deceased; that he knew of her having some sores or indications of trouble with her hands, and that he called it salt-rheum; that he never saw anything that indicated syphilis in the least. Mrs. Becker testified that she went with the deceased to Dr. Stephenson’s office' three or four times, and was in the room all the time they were there; that she heard Dr. Stephenson say, in reference to the sores upon Mrs. Plumb’s hands, that there was no use being alarmed about them; it was a simple disease, — nothing but salt-rheum; and that, when he asked her what she had done to irritate them, she told him she had washed a carpet, and they stayed colored three or four days, and he said that was the first cause of it. The witness further stated that she was at Mrs. Plumb’s house for about two weeks, and when Mr. Plumb was away she occupied the same room with Mrs. Plumb, and that there was no spot or blemish upon her body, except on the hands. A Mrs. Parish testified that she was attendant at the bath house at Port Huron, and knew the witness McKay; that he never treated Mrs. Plumb with the massage treatment. She further said: “I saw her from the time she came until she went away. I assisted her on every occasion but twice, when my eyes were bad with gas, and she took her own baths. I rubbed every portion of her body. I never saw a spot on her body in any way, shape, or manner, except a little spot in her hands. She first took baths in 1891, a few in 1892, and two in 1893. I had to attend the lady bathers until they were dressed, and ready to go out.” The husband of Mrs. Plumb also testified that there was no indication of any eruption on any portion of her body; that he knew of her having no other skin disease than that in her hands, which the doctor pronounced salt-rheum. The plaintiff also gave testimony by several witnesses from Port Huron that they knew Dr. Stephenson, had known him for years, and that his reputation for truth and veracit^in that neighborhood was bad.

Speaking of these statements in the application which defendant claimed to have been false, the court stated to the jury:

“There were no misrepresentations as to the disease la grippe, which Mrs. Plumb stated she was troubled with; and two years and nine months, when she stated three years, is not such a substantial variation from the time as would make this statement a breach of the warranty, and void this policy.”

In this, we think, the court was not in error. Dr. Mills had treated her for la grippe two years and nine months before, and the fact that she stated three months short of the time she was actually treated by him was not a material variation.

Upon the subject of the disease with which it was claimed Mrs. Plumb was afflicted, and" for which she was treated by Dr. Stephenson, the court charged the jury:

“If you shall find that, within the three years, she was attended by or consulted with another physician for any serious disorder other than the consultation with Dr. Mills, which I have charged you already about, that would be a breach of the conditions of this application, and a breach of the warranty, and would make this policy void, and the plaintiff in this case could not recover; but I charge it to be the law, as laid down .by the Supreme Court of this State in the case of Brown v. Insurance Co. [65 Mich. 306], that a mere calling at a doctor’s office for medicine to relieve a mere temporary indisposition, not serious in its nature, or his calling at the applicant’s home for the same purpose, could not be considered an attendance within the meaning of this question; but that such attendance must be for some disease or ailment of importance, and not 'for any indisposition for a day or so, trivial in its nature, such as all persons are liable -to, and yet are considered to be in sound health generally. * * * It is the law of this State that she must have had a physician in'attendance upon her, or have been in consultation with a physician, concerning some matter which affected her sound bodily health; and I charge you that ‘sound health,’ as used in this application, means a state of health free from any disease or ailment that affects the general soundness or healthfulness of the system seriously, and not a mere indisposition, that does not tend to weaken or undermine the constitution of the insured. * * * If you find that the disease for which she consulted any physician during all these three years, except, of course, la grippe, of which I charged you before, was of a serious character, affecting her bodily health, that would be a breach of the warranty, and the plaintiff could not recover. It is for you to say from the evidence in this case whether this trouble with her hands was of such a serious character that it affected her general bodily health. If you shall find that this was a symptom of or the consequence of her being afflicted at any time during her life with the disease known as syphilis, I charge you that that would be a breach of the warranty; that syphilis is of such a serious character, and known to be of such a seri-' ous character, that it does affect the soundness or bodily health of the applicant, and that if any. person who has had syphilis at the time of the application, constitutionally or otherwise, represents herself to be of sound bodily health, or, in answer to the question whether she has had syphilis, in this case, denies having had it, and you shall find that to be the fact, it will be a breach of the warranty in this case, and she could not recover.”

This charge correctly stated the law. Brown v. Insurance Co., 65 Mich. 306; Hann v. National Union, 97 Mich. 513; Pudritzky v. Supreme Lodge, 76 Mich. 428; Bliss, Ins. §§ 105, 109.

It is claimed that the court was in error in not permitting the defendant to introduce in evidence certain prescriptions which it is claimed Dr. Stephenson prepared for Mrs. Plumb. They appeared to be in Dr. Stephenson’s handwriting, but the druggist who was called was unable to state that Mrs. Plumb brought them to his drug store to be filled; and we think the court properly rejected them.

Some claim is made that the maiden name of Mrs. Plumb was not correctly stated in the application. The agent of the defendant company filled out the application himself, and incorrectly stated her maiden name. Fearing the error might lead to contention, the policy was handed back to the agent for the purpose of correction, and was not returned until after the death of Mrs. Plumb, when it was produced upon the trial by the defendant. This mistake would not affect the rights of the plaintiff to recover. Temmink v. Insurance Co., 72 Mich. 388. The fault, if any, in giving the wrong name, was with the agent of the defendant in writing the application, and the company could not take advantage of it. McGraw v. Insurance Co., 54 Mich. 145; Ahlberg v. Insurance Co., 94 Mich. 259.

After the death of Mrs'. Plumb, proofs of death were furnished by the plaintiff, and thereafter the company procured certain affidavits concerning matters that occurred before her death. The defendant produced these affidavits on the trial, and asked that they be introduced in connection with the proofs of death. The court held that, as they were not furnished by the plaintiff, nor by her authority, and as she knew nothing of them, and they did not relate to the death of Mrs. Plumb, plaintiff would not be required to introduce them in evidence. We think the court was not in error in refusing to receive the affidavits; but, even if the court had been in error in not receiving them, they were used upon the trial, and witnesses were cross-examined fully in regard to them. No proofs could be required except those called for by the policy. Bliss, Ins. §§ 250, 251.

We have carefully examined the record upon all the points made by defendant’s counsel, and are unable to find any error committed upon the trial.

The judgment will be affirmed.

McGrath, C. J., Grant and Hooker, JJ., concurred. Montgomery, J., did not sit.


text:
    LADD v. BROWN.
    1. Estoppel — Inconsistent Defenses.
    A defendant is not precluded from denying the existence of an agreement relied upon by the plaintiff by the fact that, upon a former trial, he defended solely upon the ground that the plaintiff was estopped to assert such agreement, which defense, upon appeal, was held to be ineffectual.
    2. Evidence — Matters Within Knowledge of Decedent.
    Plaintiff, as heir-at-law of defendant’s deceased landlord, brought replevin for certain wheat that had been harvested by defendant after the expiration of his term. Upon the trial plaintiff testified that, by the terms of the original agreement, a crop of wheat was to be left upon the ground when defendant should leave the place. This testimony was contradicted by witnesses for the defendant. The parties were also in conflict with reference to what was said between them after the death of the landlord, defendant contending that plaintiff told him that, if he sowed the wheat, he might reenter and harvest it. Held, that it was not error to permit the defendant further to state what he said to the plaintiff, in the course of their conversations, as to the terms of the arrangement with the deceased landlord.
    Error to Jackson; Peck, J.
    Submitted December 6, 1895.
    Decided December 30, 1895.
    Replevin by Harry A. Ladd against David Brown. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Wilson & Cobb, for appellant:
    A party cannot change front after prosecuting his case through the courts upon one theory. Thompson v. Hoioard, 31 Mich. 309; Wetmore v. McDougall, 32 Mich. 276; Henry v. Quackenbush, 48 Mich. 415; Nield v. Burton, 49 Mich. 53; Berringer v. Cobb, 58 Mich. 557; Hamilton v. Frothingham, 71 Mich. 616; Hood v. Olin, 80 Mich. 296.
    Defendant was erroneously permitted to show, by his own testimony, the terms of his original agreement with the deceased; the statute prohibits not only direct testimony by the survivor regarding a transaction, but also every attempt by indirection to prove the same thing. Kimball v. Kimball, 16 Mich. 211; Dubois v. Baker, 40 Barb. 562; Grey v. Grey, 47 N. Y. 554; Koehler v. Adler, 91 N. Y. 657; Clift v. Moses, 112 N. Y. 426.

      Blair, Wilson & Blair, for appellee.
   Long, J.

This case was in this court upon appeal by the plaintiff at the October, 1892, term, and is reported in 94 Mich. 136. It was reversed, and remanded for a new trial. The facts are stated in that opinion. The cause has been retried, and verdict and judgment again found in favor of the defendant, and plaintiff again appeals. It was said in the former opinion:

“If the testimony offered by the plaintiff, tending to show that there was an agreement on the part of defendant to leave crops upon the ground corresponding to those which were growing at the time he took possession, is true, there was no consideration for the engagement alleged to have been made by the plaintiff [that defendant might harvest such crops after the expiration of the tenancy], and the jury should have been so instructed.”

The court below gave such instruction on the present trial, and the jury found in defendant’s favor upon that issue.

1. It is now contended by the plaintiff that the defendant changed his theory upon the present trial. We think this cannot be said. On the prior trial the plaintiff’s testimony tended to show that, when the defendant took possession, it was agreed upon his part, with George Ladd, that the defendant would, at the end of his term, leave on the ground the same quantity of wheat as was then growing, — about 25 acres. The trial court ignored that question upon the first trial, and directed the jury, substantially, that the whole question depended on the agreement made between the parties in reference to the crops for which the replevin suit was brought; and this court directed that upon the new trial the question should be submitted whether there was an agreement upon the part of the defendant, made with George Ladd, deceased, to leave this 25 acres of wheat on the ground, and, if so, there was no consideration for the agreement made with the plaintiff in this case, that defendant might harvest the crop in controversy. We think the question was fairly submitted to the jury in this last trial, and that, in insisting upon meeting thpt contention, the defendant’s theory was not changed.

2. It appears that, while the defendant was upon the witness stand as a witness in his own behalf, he was asked concerning a conversation which he had with the plaintiff relative to his contract with George Ladd, deceased. He was permitted to testify: “I told him that I was to have the use of the farm at five per cent, on the valuation of it. I was to have the wheat when I left the farm, if there was any on the ground, and either come back and harvest it myself, or sell it to Mr. Ladd. I was to sell it to no third party.” It was objected that this testimony was incompetent under section 7545, 3 How. Stat., as it appeared that George Ladd was then deceased, and that it was a matter equally within the knowledge of the deceased.

It appears that the plaintiff, while on the stand as a witness, testified that it was arranged that the defendant should occupy the farm, and, when he left it, should leave all crops growing on the farm; that, after George Ladd died, he had a conversation with the defendant, in which defendant said that he had an arrangement with George Ladd under which he had been occupying the farm, and that he expected to pay the same amount he had been paying, — that is, $320 per year; that he stated his term would expire with the year ending April 1, 1888. He denied that he had a talk with defendant in which he said that, if defendant sowed wheat in the fall, he might come back in the spring and harvest it.

On the direct examination of the defendant, who was called as a witness in his own behalf, he was asked to state the conversations he had with plaintiff in reference to sowing this wheat:

Q. You heard the testimony of Mr. Ladd [plaintiff] as to your sowing wheat in the fall of 1888?
“A. Yes, sir.
Q. Now, before you sowed that wheat, did you have any conversation with him in regard to the sowing of it ?
A. I did. It was in August, 1888. I told him that I did not know as I would put in any wheat, unless I was assured that I could take it off the ground. He said that he already owned one-half the farm, and intended to purchase the other half, and I could go on and put in the wheat, and he thought there would be no trouble about it. I first knew that he claimed title to the wheat in June, 1889.”

Witness also introduced two other conversations with plaintiff about the wheat. It was in reference to these conversations that defendant was permitted to state what was said to plaintiff of the arrangement under which the wheat was put in.

We think the court, under the circumstances, was not in error in permitting the testimony to be given. It was in answer to the plaintiff’s claim that defendant was to leave the wheat on the ground, and in support of defendant’s contention that the plaintiff himself had promised that defendant might take it off, if he went on and sowed it.

The judgment must be affirmed.

The other Justices concurred.


text:
    MACOMBER v. WRIGHT.

    1. Execution — Correction of Return — Parol Evidence.
    Where the return of a sheriff to an execution is dated on Sunday, but the clerk’s indorsement on the execution and his entry on the calendar show the return to have been made on Saturday, parol evidence is admissible to show that the execution was actually returned on the latter date.

      9. Corporations — Labor Debts — Stockholders’ Liability.
    Where, in an action against a stockholder to recover the amount of the damages and costs awarded to the plaintiff in a suit against the corporation for personal labor, judgment is taken for the amount of the damages only, an objection that the return to the execution issued against the corporation failed to show that the sheriff could not collect the costs is without force.

      9. Same.
    On the trial of an action against a stockholder to collect a judgment rendered against the corporation, the plaintiff proved by the files and records in the original case that the action was for a labor claim, that judgment was.obtained upon said'claim, and that an execution issued on said judgment had been returned unsatisfied. He then introduced in evidence, a stipulation, signed by defendant’s attorneys, admitting that the defendant was a stockholder in the corporation at the time the labor sued for was performed. Held, that the evidence was sufficient to warrant a judgment against the stockholder.
    Error to Kent; Grove, J.
    .Submitted December 4, 1895.
    Decided December 30, 1895.

      Assumpsit by Frank C. Macomber against Edwin B. Wrigbt to enforce the individual liability of defendant for labor performed for a corporation in which he was a stockholder. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin and H L. Delano, for appellant.

      Taggart, Knappen & Denison, for appellee.

       Rehearing denied January 14, 1896.

   Long, J.

This case was tried before the court without a jury, and judgment entered in favor of the plaintiff for $586. It appears from the facts found that the Muskegon Car Company is a corporation organized under the laws of this State for the purpose of manufacturing freight cars; that June 16, 1893, the. plaintiff began suit in the circuit court for Muskegon county against this company, for the purpose of recovering on a labor claim for personal labor performed for the company; that the declaration, together with the plaintiff’s bill of particulars, claimed a' recovery only for personal labor; that the defendant in that suit appeared, and pleaded the general issue; and on the trial the plaintiff recovered a judgment against the company for $555.68, with costs; that the costs were taxed at $67.60; that execution was thereafter issued upon such judgment, and delivered ¡to the sheriff of Muskegon county; that the sheriff made an indorsement upon the execution, as follows:

“Eleven dollars and sixty-five cents, the amount of an execution issued out of this court in favor of the Muskegon Car Company, and against Frank Macomber, is applied upon within execution at request of defendant’s attorney.
“Dated July 13, 1894.”

That, on the next day the sheriff returned the execution with the following indorsement:

‘ ‘ I hereby certify that the within-named defendant has no goods or chattels, lands or tenements, in my county, whereof I can cause to be made the damages within mentioned, according to the exigencies of this writ, except the foregoing indorsement on execution for $11.65 in favor of the Muskegon Car Company and against Frank Macomber, hereunto indorsed.
“Dated July 15, 1894.”

The court found further that July 15th was Sunday, and that the sheriff did not make such return, or file the execution with the clerk, on July 15th, but made the indorsement July 14th, and filed the same with the clerk of the court on that date, and that the dating of the return as July 15th was a clerical error. The court further found as follows:

“The defendant offered no testimony showing, or tending to show, that the labor on account of which said plaintiff recovered said judgment against said Muskegon Car Company was not labor for which the defendant, as a stockholder of said corporation, is individually liable, by virtue of the act under which said corporation is organized, and offered no evidence tending in any way to impeach the amount or validity of said judgment so recovered by said plaintiff against the said Muskegon Car Company, and offered no evidence showing or tending to show that plaintiff did not actually perform for said Muskegon Car Company the labor alleged by him to have been performed in his said declaration and bill of particulars so filed against said Muskegon Car Company.”

This suit was brought against the defendant, as a stockholder in the Muskegon Car Company, to recover from him the amount of the damages and costs as shown by the judgment against the corporation. Judgment was entered upon the above findings in favor of the plaintiff, ana the defendant thereafter asked, and was permitted, to amend the last-named finding as follows: “The plaintiff did not offer any testimony tending to show the time when the work and labor was performed, or the nature or character thereof, other than what was contained in the stipulation.” The stipulation recites, among other things, that for the purpose of saving expense to the parties, and to avoid the necessity of bringing witnesses and proofs from Muskegon to be used herein, it is stipulated and agreed as follows: That on or about June 16, 1893, plaintiff began suit in the circuit court for Muskegon county against the Muskegon Car Company, a manufacturing corporation organized and existing under the laws of this State, for the purpose of recovering against said corporation on certain labor claims alleged to have been created in favor of plaintiff and against said corporation; that judgment was entered against the corporation, and execution issued thereon and returned unsatisfied; that defendant in this suit, at the time said labor was performed, was, and now is, a stockholder in said corporation.

Two questions are raised upon this record by the defendant:

(1) That the court erred in admitting in evidence the return of the sheriff to the execution, for the reasons (a) that the return was made on Sunday, and the court admitted oral testimony to show that the execution was actually returned on the day prior; (6) that the return showed he could not cause to be made the damages therein mentioned, whereas the execution directed him to cause to be made damages and costs.
(2) That the mere introduction of the files in the original case, including the judgment entry, together with the execution'returned unsatisfied, was not affirmative proof of the character of the claim made, either as to the time when the labor was performed or the nature and character thereof, so as to show that the defendant, as a stockholder, would be liable therefor, and, therefore, that the plaintiff did not make such a case as entitled him to recover.

1. The cases of Michels v. Stork, 52 Mich. 266, and Ripley v. Evans, 87 Mich. 217, hold that the sheriff’s return is conclusive as to the facts therein stated concerning the action of the sheriff during the time the writ was in his hands, in executing or attempting to execute it, and that it cannot be contradicted by evidence dehors the record. But in the present case no attempt was made to contradict any of the facts set out in the return. It appeared that the date attached to the return was Sunday, and the clerk’s entry upon his calendar, and the indorsement of filing on the writ, showed the return to have been made on Saturday, the 14th. We think it was proper to show that fact. It is an exception to the rule where some other portion of the record in the same case contradicts the return, as the record in the clerk’s office did in the present case. In the correction of dates to a sheriff’s return, the courts of some of the States have held that parol evidence is admissible. Welch v. Butler, 24 Ga. 445; Worthy v. Warner, 119 Mass. 550; King v. Russell, 40 Tex. 125; Ellison v. Wilson. 36 Vt. 60; Hunter v. Stoneburner, 92 Ill. 79. The objection, therefore, we think, has no force.

As to the point that the return does not show that the sheriff could not collect the costs, it is clear that the judgment in the present case was not taken against the defendant for the amount of the costs in the case against the corporation, and therefore the defendant has no right to complain.

2. The statute provides (3 How. Stat. § 4161c8) that ■“the amount due on such execution shall be prima facie evidence of the amount recoverable.” It is claimed that the “amount recoverable” refers to the amount of the judgment, and is to be construed in the light that the plaintiff has introduced proper testimony to show the time when the labor was performed, and the nature and char.acter thereof, before attempting to establish the amount due for such labor by the introduction of an unsatisfied execution. If the judgment entry and the files in the case against the corporation, together with the execution returned unsatisfied, did not make a prima facie case against the defendant, as contended by counsel, — a point which we need not now discuss or determine, — yet the introduction of the stipulation in evidence, together with the other evidence, did make a case. By the terms of the stipulation, it was agreed that the defendant was a stockholder in the corporation at the time the labor was performed. There was then proved by the files and records that the action was for a labor claim against the corporation; that a judgment was obtained upon a labor claim, and an execution was issued thereon and returned unsatisfied; and by the stipulation it was agreed that defendant was a stockholder at the time the labor was performed. Under Voight v. Dregge, 97 Mich. 322, the defendant, being a stockholder at the time the labor was performed, would be liable. There was sufficient evidence to warrant the judgment.

Judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    FIRST NATIONAL BANK OF MANISTEE v. MARSHALL & ILSLEY BANK OF MILWAUKEE.
    1. Chattel Mortgages — Priorities—Ownership op Property Mortgaged.
    Where, in replevin by a mortgagee, the defendant claims under a later mortgage executed by a corporation which had succeeded to the business of the first mortgagor, and there is a fair dispute in the testimony as to whether or not the first mortgagor transferred the property in question to the corporation, a request by the defendant that a verdict be directed in its favor on the ground that plaintiff’s mortgage was not upon file when defendant extended credit to its mortgagor is properly refused, the question as to the title to the property being for the jury.
    0. Same — Estoppel.
    Statements made by a mortgagor of chattels for the purpose of obtaining credit for a corporation of which he was a member, to the effect that he had sold the mortgaged property to such corporation, are not conclusive upon the mortgagee, unless he knew of them at the time, and kept silent; nor is he estopped to claim under his mortgage merely because the property was permitted to remain in the apparent control of the corporation.
    3. Estoppel — What Constitutes.
    In order to create an estoppel in pais, it must appear that the party making the representations knew or was informed that the party to whom they were made intended to rely upon them.
    4. Same — Banks and Banking.
    A bank is not estopped to assert a chattel-mortgage lien on the property of one of its debtors by the fact that, in reply to a letter from another bank inquiring as to the character and financial standing of the debtor, but containing no intimation that a loan was contemplated, it merely commended the debtor’s business reputation and personal habits, and gave the amount of his assets above- liabilities, without disclosing the existence of such mortgage or the indebtedness represented thereby.
    5. Bill of Sale — Sufficiency as Security.
    An objection that a bill of sale is too indefinite and uncertain to have effect as security, in that it fails to state the amount secured thereby, cannot be raised by one who has acquired no valid lien on the property.
    6. Evidence — Admissions.
    Statements made by a mortgagor of chattels, inimical to the interests of the mortgagee, are properly excluded in an action between the latter and a third person, in the absence of testimony tending to connect the mortgagee therewith.
    Error to Benzie ¡ Aldrich, J.
    Submitted December 6, 1895.
    Decided December 30, 1895.
    Replevin. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Plaintiff claims the right of possession of the property here in controversy by virtue of a bill of sale executed by one Leo F. Hale, September 2, 1893, and filed in the office of the township clerk June 7, 1894. It is absolute in form, but in fact was given as security for a debt due from Hale to the plaintiff, as evidenced by promissory notes amounting to about $20,000. The property described in the bill of sale was “all the cedar, cedar shingle timber, consisting of logs and bolts now in my mill boom, and in and around Lower Herring Lake, in the county of Benzie, State of Michigan, bearing stamp mark thus, ‘H’ or ‘HD’ or ‘(H)’, belonging to me, and now in my possession, at the place herein described.” The defendant bank claims the right of possession of this same property by virtue of a chattel mortgage executed July 9, 1894, by the Watervale Manufacturing Company, of Benzie county, a corporation, to it, to secure an indebtedness of $23,000, loaned by said bank to said company. This mortgage covers all personal property of every kind, nature, and description belonging to the Watervale Manufacturing Company, situate in the county of Benzie or elsewhere, and described as “consisting principally of hardwood, hemlock, and cedar saw logs, cordwood, and stovewood, shingle bolts, tan bark, cedar posts, railroad ties, lumber, shingles, horses,” etc. Soon after the execution of this mortgage, the defendant bank took possession of all the personal property of the company, and also that here in dispute.
    For some 10 years prior to the formation of the Water-vale Manufacturing Company, Mr. Hale had been engaged in the lumbering business at Watervale, Benzie county, doing his banking business with the plaintiff. He had been a borrower from it, varying at different times from $10,000 to $30,000, and was always required to give security. During the year 1893 he had secured the plaintiff by assigning to it his contracts for the purchase of certain real estate, and also by an assignment of stock of the South Arm Lumber Company, valued at $7,500. He gave this bill of sale as additional security, and at the same time the plaintiff released to him the stock of the South Arm Lumber Company, and it was in consideration of such release that this bill of sale was given. In December, 1893, Mr. Hale desired to borrow more money, and made efforts to get other parties interested with him. This, Mr. Bamsdell, the president of the bank, knew. Mr. Hale negotiated with two gentlemen, named Williams and Mansfield, to take an interest in the business. This negotiation resulted in the formation of the Watervale Manufacturing Company, on a basis of a capital stock of $75,000, of which they reported as paid in $60,000. Mr. Hale took $30,000, and Messrs. Williams and Mansfield, $15,000 each, for which they gave their notes to Mr. Hale. The $60,000 paid-up capital represented the mill plant and property transferred to the corporation by Mr. Hale. The property covered by the bill of sale was worth between $0,000 and $7,000.
    While negotiations were pending between Hale, Williams, and Mansfield, Hale made out and submitted to them two statements of the amount of his property, the first of which was a statement of his live stock and logging outfit, amounting to $1,550. The other was a statement of his mill plant, logs, etc. In this latter statement was an item as follows: “Cedar stock in boom, $6,000.” Neither of these statements was ever shown to the defendant bank prior to making the loans to the Watervale Manufacturing Company. Mr. Hale testified that he informed Mr. Williams during the negotiations of his indebtedness to the plaintiff, and how it was secured. Mr. Hale’s testimony as to whether the property covered by the bill of sale was included in his statement made to Williams and Mansfield is conflicting. At one time he testified that it was not, and at another he testified that he thought the “above item was a memorandum of his First National Bank stock.” This is of but little importance, except as it may affect the credibility to be given to Mr. Hale’s testimony, inasmuch as this statement formed no basis for the loans made by the defendant. The corporation was formed December 28, 1893, and, in the bill of sale executed by Hale to it of the personal property, he transferred it all, “excepting cedar stock heretofore conveyed by bill of sale to the First National Bank of Manistee.”
    One Ellis had been acting as salesman for Mr. Hale in Milwaukee in selling his lumber. At the time the company was organized, a conversation took place between Hale, Williams, and Ellis about obtaining a loan from the defendant. This loan was negotiated by Mr. Ellis, and, for the purpose of furnishing information as to the financial condition of the Watervale Manufacturing Company, Hale, on December 28, 1893, prepared a statement of the assets and liabilities of the company. This statement showed assets to the amount of $66,880, and an indebtedness of $6,880. Among the assets in this statement was the following item: ‘ ‘ Lumber, logs, hay, grain, feed, timber, bills of sale, etc., $9,000.” This statement was shown to defendant bank by Mr. Ellis. Mr. Ilsley testified that he said to Mr. Ellis: “ If our correspondent, the First National Bank of Manistee, would corroborate what he said as to the standing and responsibility of Mr. Hale, as to his character and trustworthiness, I thought that we would make the loan.” On the same day, Mr. Ilsley wrote to Mr. Dunham, the cashier of the plaintiff, as follows: “ Will you be kind enough to give us what in. formation you can in regard to the character and financial standing of Leo F. Hale, of Watervale, which will be regarded as entirely confidential.” On the same day, Williams, who was then in Milwaukee, telegraphed to Hale, who was at Watervale: “Think O. K. See letter bank wrote to Ramsdell.” On receipt of this, December 30th, Mr. Hale wrote to Mr. Williams as follows:
    “Your telegram of 29th inst.: ‘Think O. K. See letter bank wrote to Ramsdell.’ On receipt of same this a. m., I wrote Mr. Ramsdell fully, stating what we had done to organize company, etc., etc., and went over everything, and asked him to put no cold water on the matter, and I take that letter to Frankfort with me this a. m. I will mail it same time I do this, so that it goes out this afternoon. I wrote you this morning, mailing papers^ you left, etc. Now, I hope money matters will be all right, and that I shall know soon, as you know my position, I think, fully, and do not wish to get embarrassed on the start. I gave Ramsdell the same statement I gave you in detail, etc., so that he would act understandingly. Now, should you send telegram in the morning before 10 o’clock, send it to Pierport, Mich. If after that time, 'bend it to Frankfort, Mich.”
    On January 2d Mr. Dunham replied to Ilsley’s letter, as follows:
    “In reply to yours of the 29th ult., would say, Mr. Hale has a fine reputation as a competent, careful, and industrious business man. He has no bad or expensive habits, but always gives his business the closest attention, and is very careful in his expenses. As near as I can judge, he has invested in his business about $40,000 above his indebtedness. Had lumber held up as well as it opened in the spring, I understand he would have cleaned up nearly all of his indebtedness.”
    The loan was then made by the defendant to the Water-vale Company. The property in dispute was left in the same place as when the bill of sale was given, and was also there when defendant’s chattel mortgage was given.
    The court gave the following instructions to the jury:
    “Before the plaintiff in this case can recover at all, you must find from the evidence that the property or cedar logs described in its declaration is the identical property or cedar covered by its bill of sale; and, if any of this stock taken upon the writ in this case was put in the boom by the Watervale Company after the giving of said bill of sale, as to such part there can be no recovery on the part of the plaintiff.
    ‘ ‘ The burden of proof in this case is upon the plaintiff to satisfy you, by a fair preponderance of all of the evidence, of the elements and facts necessary to entitle it to recover in this case; and,.unless it does so satisfy you, it will be your duty to find a verdict of not guilty.
    “The bill of sale under which this plaintiff claims the right to recover its property is in its hands a mere security or mortgage, if valid for any purpose; and, no change of the possession of the property covered by it having taken place, it was the duty of the plaintiff, under the statute, to have filed it in the office of the township clerk, which it is admitted was not done for more than nine months after its execution. It bears date September 2, 1893, and was not filed until the 7th day of June, 1894.
    “In this case the defendant bank is a creditor of both Leo F. Hale and the Watervale Company; and under the circumstances of this case, and the fact that the plaintiff’s bill of sale was not filed as required, the good faith or in-1 tention of the parties to the bill of sale cannot affect the rights of the defendant bank, if it extended credit to these parties without notice or knowledge of such bill of sale, and during the time it was withheld from record. Under these conditions and circumstances, the statute makes the bill of sale absolutely void as to the defendant bank.
    “ If the representations contained in the plaintiff’s reply to the defendant bank’s letter of inquiry were false or intentionally misleading, and the fact of the existence of the bill of sale was concealed or withheld to induce credit on the part of the defendant bank to Hale or his company, then the credit given in reliance upon this letter is entitled to preference, and the plaintiff cannot recover.
    ‘ ‘ There is no evidence in this case tending to show that the defendant bank had any notice or knowledge of either Hale’s indebtedness to the plaintiff or the bill of sale held by it; and I therefore charge you that the defendant bank loaned its money without such notice or knowledge, and its good faith in extending its credit cannot be questioned, and that the amount thereof now due is $17,726.20, with interest.
    “In this case the defendant bank had the right at the time it took its mortgage, on the 9th day of July, 1894, to take the same, notwithstanding the fact that the plaintiff’s bill of sale may then have been on file, as the evidence discloses that the indebtedness was incurred during the time the bill of sale was withheld from record.
    “ Now, this bill of sale cannot be held to cover any of the indebtedness of Hale’s to the plaintiff bank, incurred subsequent to its date.
    “ The bill of sale in this case not disclosing the actual consideration for which it was given, or the indebtedness secured by it, that information could only be given by the plaintiff or by Hale; and, if the plaintiff knew that the defendant bank was loaning money to Hale and the Watervale Company, it was the duty of the plaintiff bank to inform the Marshall & Ilsley Bank what security it held, its nature and amount.
    “It is not material in this case that the Marshall & Ilsley Bank had security on other property than that in dispute in this case, because it has a right to insist upon all of its security until all of its debts are paid in full. * * *
    ‘ ‘ If you find from the evidence in this case that the plaintiff’s bill of sale was withheld from record for the purpose of allowing Hale to hold himself out to the world as the owner of the property described in it, your verdict will be in favor of the defendant bank.
    “ If you find that, prior to the time that plaintiff wrote defendant bank in reply to its letter of inquiry, the plaintiff received a letter from Hale informing it of the application to defendant bank for a loan, and asking plaintiff to throw no cold water on such application, and plaintiff, in compliance with such request from Hale, Avrote its letter of January 2d to defendant bank, concealing its claim and securities against Hale, your verdict will be in favor of defendant bank.
    “Now, the mortgage to the Marshall & Ilsley Bank does not appear to have been taken subject to the bill of-sale or claim of the plaintiff; and I charge you that it is not subject to the same in case that you should find, under all of the evidence, that it covers that property at all.
    “ I further charge you on request of the plaintiff, that the plaintiff is not and cannot be bound by any statements made by Leo F. Hale in his letters of December 30, 1893, to William M. Williams, and on January 1, 1894, to C. H. Ellis, unless it is also shown that the letter therein stated to have been written to Eamsdell was actually written by Hale to Eamsdell, and received by Eamsdell. And if you should find that the letter written by Dunham, cashier of the First National Bank, was written merely as one bank correspondent to another, without any purpose to influence them in loaning money, and that he wrote as to his best knowledge as to the facts therein stated, and made a fair statement of the facts in the case, then you could not consider that as any evidence of bad faith on the part of the First National Bank.
    ‘ ‘ Now, I will charge you further, gentlemen, on some of these matters, — -some that I have already touched upon in these requests, and some that I have not. On September 2, 1893, Leo F. Hale made a bill of sale to the plaintiff in this case of certain cedar timber described therein, and which is the property in dispute in this case. This bill of sale was absolute on its face, but it is claimed it was given as security for certain indebtedness from the said Hale to the plaintiff, in which case it will operate as a chattel mortgage upon the property therein mentioned. This bill of sale was not recorded until the 7th day of June, 1894, and for that reason was void as to any of the creditors of the said Leo F. Hale, whose claims arose between the making and the filing of said bill of sale. It would also be void as to any subsequent purchaser or incumbrancer of the property described therein, without notice of its existence.
    “One of the Jurat questions in dispute in this case is whether this property was ever sold by Leo F. Hale to the Watervale Manufacturing Company. If it was sold to the Watervale Manufacturing Company, and they took it without notice to the other members of the company, besides Mr. Hale, of this bill of sale, between the making and the- filing of the bill of sale, then it would have been void as to the creditors of the said Watervale Manufacturing Company; and, if you should so find, the plaintiff cannot recover. If you should find that the property mentioned ixx this bill of sale was sold by Leo F. Hale to the Watervale Manufacturing Company subject to this bill of sale, then this company would stand in the same relation to said bill of sale as Hale himself stood, and the bill of sale would have been void as to the creditors of said company who had no actual knowledge of its existence ; and if you should so find, and also find that the defendant bank loaned the moxxey which it claims to have loaned to the Watervale Manufacturing Company, and that they loaned this money without knowledge of this bill of sale, then the plaintiff in the case cannot recover. If, on the other hand, you find from the evidence in this case that the property described in this bill of sale was xxever sold by said Hale to the Watervale Manufacturing Company, and that he never sold his interest in said property subject to said bill of sale to the Watervale Manufacturing Company, but retained whatever interest he had in said property in himself, axxd that the plaintiff in this case, or its agents, did no act to lead the defendant bank to believe that said property belonged to Hale or the said Watervale Manufacturing Company, then, in that case, the creditors of the Watervale Manufacturing Company would have no interest in such property as such creditors; but in that case the bill of sale would have been void as to the creditors of Hale. But the general creditors of Hale could not attack the bill of sale; only those creditors who have gained some lien upon the property, given by Mr. Hale. In that case the Watervale Manufacturing Company could not mortgage this property, and a mortgage given by the Watervale Manufacturing Company upon all of its property would not cover the property in question, or give the mortgagee thereto the right to its possession. Therefore, if you should so find, and should also find that the bill of sale was good as between the plaintiff and Leo. F. Hale, then the plaintiff would be entitled to recover in this case (unless you should find that said Hale voluntarily turned over this property to the Marshall & Ilsley Bank upon his indebtedness to it); and, if you should so find, your verdict would be guilty as against the defendant, the Marshall & Ilsley Bank.”

      Dovel & Smith and Frank M. Hoyt, for appellant.

      George L. Hilliker (Pratt & Davis and Hanchett & Hanchett, of counsel), for appellee.
   Grant, J.

(after stating the facts). 1. The defendant requested the court to direct a verdict for the defendant upon the ground that the bill of • sale was in effect a chattel mortgage; that it was not upon file when the defendant extended credit to the Watervale Company, and was therefore void as to it. If this bill of sale had been given by the Watervale Company to the plaintiff, or if said company had succeeded to the rights of Mr. Hale in the disputed property, and it conclusively appeared that it had done so, then the defendant would, undoubtedly, be right in its contention. The disputed question of fact was whether Mr. Hale had so transferred it. Neither he-nor his associates nor the Watervale Company contend that it was. The bill of sale by Hale to the company expressly excepted it. Mr. Hale testified that it was not included. The plaintiff never assented to the possession, control, or ownership of the corporation in this property. The fact that it was left there by the mutual consent and knowledge of all the parties does not estop the plaintiff to assert its rights under its bill of sale. It was perfectly competent for plaintiff and Mr. Hale to make this arrangement. If it be a fact that Mr. Williams and Mr. Hale did include this in the statements they made to the defendant bank, this would not conclude the plaintiff, unless it had knowledge at the time that it was included, and kept silent. There was a fair dispute in the testimony as to the title of this property, and it was properly, and under a careful charge, submitted to the jury. So, also, was the question whether the plaintiff withheld its bill of sale from ecord for the purpose of enabling the Watervale Company to obtain a loan from the defendant.

2. It is insisted that it was the duty of the plaintiff, in reply to the letter of the defendant inquiring as to the character and financial standing of Mr. Hale, to state the indebtedness of Mr. Hale to it. There might be circumstances where this would be required. This letter, however, contained no intimation that the defendant bank was intending a loan to Mr. Hale. In fact, it contemplated a loan to the corporation, and made the loan to it; but no intimation of this purpose is found in the letter.

In order to create an estoppel in pais, it must appear that the party making the representations knew or was informed that the party to whom they were made intended to rely upon them. The rule applicable to this case cannot be better stated than it was by Lord Campbell, in Howard v. Hudson, 2 El. & Bl. 10:

“If a party willfully makes a representation to another, meaning it to be acted upon, and it is so acted upon, that gives rise to what is called an ‘estoppel.’ It is not quite properly so called; but it operates as a bar to receiving evidence contrary to that representation, as between those parties. Like the ancient estoppel, this conclusion shuts out the truth, and is odious, and must be strictly made out. The party setting up such a bar to the reception of the truth must show both that there was a willful intent to make him act on the faith of the representation, and that he did so act.”

See, also, Andrews v. Lyon, 11 Allen, 349; Hyde v. Powell, 47 Mich. 156; Heyn v. O'Hagen, 60 Mich. 150; Pearson v. Hardin, 95 Mich. 369; Pierce v. Andrews, 6 Cush. 4 (52 Am. Dec. 748); Freeny v. Hall, 93 Ga. 706; Meisel v. Welles, 107 Mich. 453, where the meaning of the term “willful” is discussed.

No statement of liabilities was called for, but only his character and financial standing as a business man. Banks, as well as individuals, frequently write for information of this character. Business men of the highest standing and credit often obtain loans at banks for carrying on their business. When an inquiry comes to such bank asking simply for the character and financial standing of the merchant, the bank is not bound at its peril to report any loans which such merchant may have at its bank. Banks, too, often make such inquiries, not for themselves, but for their local customers. The plaintiff was not therefore, as a matter of law, estopped by its letter in this case. The entire question was submitted to the jury, under instructions very favorable to the defendant.

3. Error is assigned upon that portion of the instructions above stated in regard to the statements found in the letter of Mr. Hale of December 30, 1893, to Mr. Williams, and to the letter of Mr. Dunham, the cashier, to Mr. Ilsley. The proof was not conclusive that Mr. Hale wrote the letter to Mr. Ramsdell. He is not positive that he wrote it, and he stated that he found no copy of such letter in his letter book, in which it was his custom to keep copies of his letters. Mr. Ramsdell was a witness, and was not asked by either party in regard to this letter. Under the evidence, the question was one of fact for the determination of the jury.

4. It is claimed that the bill of sale upon its face is too indefinite and uncertain to have effect as security. This might become important if Hale had conveyed the title to his company, and if it were conclusively established that the defendant bank had obtained a valid lien upon the property as that of the Watervale Company. As between the vendor and the vendee, of the mortgagor and the mortgagee, the bill of sale could not be held indefinite and uncertain for failure to state the amount secured thereby. Under the instructions, the jury must have found that the title was not conveyed by Hale to the company. Therefore the defendant is not in position to raise this question.

5. Complaint is made of the rejection of certain testimony offered in regard to statements claimed to have been made by Mr. Hale after the defendant had obtained its mortgage. There was no offer to connect the plaintiff with these statements, and therefore they could not be binding upon it. The testimony was properly rejected.

We find no error upon the record, and the judgment is affirmed.

Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.


text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE CO. v. HILL’S ESTATE.
    Estates oe Decedents — Contingent Claims — Limitations.
    A claim against the estate of a deceased surety on a bond, in favor of the obligee named therein, accrues at the time when suit might be brought against the surety if living, and not at the time of the rendition of judgment against the principal and a surviving surety, within the meaning of 2 How. Stat. § 5936, providing that, if the claim of any person shall accrue or become absolute after the expiration of the time limited for creditors to present their claims, such claim may be presented to the probate court for allowance at any time within one year after it shall have so accrued or become absolute.

      Error to "Wayne; Donovan, J.
    Submitted December 5, 1895.
    Decided December 30, 1895.
    The John Hancock Mutual Life Insurance Company had judgment upon a contingent claim against the estate of William R. Hill, deceased, and Clara K. Hanna, an heir of the deceased, brings error.
    Reversed.
    In 1881 one Henry Empey became agent for the claimant company, and executed a bond, with himself as principal and William R. Hill and Henry E. Rose as sureties, conditioned upon the faithful performance of his duties as agent, and accounting and paying over all sums of money which he might receive for said company. Mr. Hill died in 1882. His estate was settled in 1883, his property distributed among his heirs, the administrator discharged, and the estate closed. October 5, 1891, said company commenced suit on said bond against Empey and Rose, the surviving surety. Empey and Rose appeared, and defended the suit, denying any indebtedness, and pleading a set-off. Judgment was entered December 28, 1892, for $1,732.47 and $37.10 costs, upon which execution was issued, and returned nulla bona. March 22, 1893, the company presented a petition to the probate court for the county of Wayne, setting forth the above facts, and praying for the “ appointment of a time and place for the examination and adjustment of the claim, as a contingent claim which has become absolute within the past year.” The probate court dismissed the petition, whereupon the company appealed to the circuit court, where a trial was had before the court without a jury, and judgment rendered against the estate.
    In the finding of facts by the court is the following:
    ‘ ‘ I find that there was an account stated between the company and.Empey June 1, 1890, by which about $2,400 was agreed to be due the company; and that no work was done by said Empey under said bond thereafter. I find that Empey upon the trial claimed an offset to said sum, and the amount due the company was sharply contested in the jury trial.”
    One of the heirs appeals.

      A. H. Wilkinson, for appellant.

      Alfred Hussell, for appellee.
   Grant, J.

(after stating the facts). Two questions are raised:

1. Could such claim be filed and prosecuted before said court when there was no administrator to represent the estate and defend against said claim?
2. Had the claim accrued or become absolute more than a year prior to March 22, 1893, the day of filing the petition in the probate court ?

We need only consider the second question, as it is conclusive of the case.

The statute under which this claim was presented is as follows:

“If the claim of any person shall accrue or become absolute at any time after the time limited for creditors to present their claims, the person having such claim may present it to the probate court, and prove the same, at any time within one year after it shall accrue or become absolute, and, if established in the manner provided in this chapter, the executor or administrator shall be required to pay it, if he shall have sufficient assets for that purpose, and shall be required to pay such part as he shall have assets to pay; and if real or personal estate shall afterwards come to his possession, he shall be required to pay such claim, or such part as he may have assets sufficient to pay, not exceeding the proportion of the other creditors, in such time as the probate court may prescribe.” 2 How. Stat. § 5936.

The following nine sections make provision for the collection of such claims, and for the bringing of suits against the administrator or heirs or devisees to enforce them.

The plain purpose of this statute was to give creditors a year after their claims accrued or became absolute within which to present them against the estate. The time for such a claim to accrue or to become absolute does not depend upon the rendition of a judgment against the principal. When a right of action accrued upon the bond, the right to present and prove the claim against the estate arose. Suit could have been brought upon this claim against the principal and surviving surety at any time before it was barred by the statute of limitations; but the above statute limits the right to present such claim against the estate of a deceased surety to a year from the time when suit might be brought against the surety if living. The claimant could have presented its claim at any time after Empey had left its employ, which was at the time the amount he owed was agreed to. This agreement did not, of course, bind the sureties, but the claim accrued at that time within the meaning of this statute, and the year had expired within which it might be presented against this estate.

Judgment must be reversed, and no new trial ordered.

The other Justices concurred.


text:
    JOHN HANCOCK MUTUAL LIFE INSURANCE CO. v. HILL’S ESTATE.
    Certiorari — When Lies.

      Certiorari will not lie to review a judgment of the circuit court allowing a contingent claim 'against the estate of a deceased person upon an appeal taken from the probate court, writ of error being the proper remedy.

      Certiorari to Wayne; Donovan, J.
    Submitted December 5, 1895.
    Decided December 30, 1895.

      The John Hancock Mutual Life Insurance Company had judgment upon a contingent claim against the estate of William R. Hill, deceased, and Elmira Bement, an heir of the deceased, brings certiorari.

    Writ dismissed.

      T. M. Crocker, for plaintiff in certiorari.

      Alfred Bussell, for defendant in certiorari.

   Grant, J.

This involves the same facts and the same questions as the preceding case. It is brought into this court by the writ of certiorari by another heir appellant.

We held in John Hancock, etc., Ins. Co. v. Durfee, 97 Mich. 613, that a writ of error was the proper remedy. The writ must therefore be dismissed, with costs.

The other Justices concurred.