text:
    A. KROLIK & CO. v. OSSOWSKI.
    1. Action — Pleading—Waiver—Open Account — Account Stated. Where, in an action by creditors in justice’s court on part of their claim, the defense was compromise and settlement of the claim, a defense equally applicable to a claim upon an open account and to a claim upon an account stated or entire demand, or to a claim for deficiency arising from the foreclosure of the chattel mortgage given as security, defendant did not thereby waive her right to the claim of account stated, presented as a defense in the second suit for the balance of the account, since she was not called upon to plead in the first suit that plaintiffs were not suing for the whole claim, they having the right to remit if they chose.
    2. Appeal and Error — Defense Raised in Court Below — Account Stated.
    There is no merit in plaintiffs’ contention that the defense of account stated is raised for the first time in the Supreme Court, where the plea made orally in justice’s court was sufficient to permit the defense that plaintiffs’ claim was on one account or demand and that an adjudication upon a part of it was necessarily an adjudication upon the whole, and defendant’s right so to defend was not questioned upon the trial.
    3. Action — Account Stated — Multiplicity of Suits — Res Adjudicata — Separate Actions.
    Where a chattel mortgage, given to secure an open account, the whole account being thereby declared due, was foreclosed, resulting in a deficiency, and the debtor in writing admitted the correctness of the final balance against her, the claim of the creditors thereafter was not an open account within 3 Comp. Laws 1915, § 14217, but constituted an entire demand, on which separate actions might not be brought, so that a former proceeding before the justice for part of the claim is a bar to the present action for the balance.

      On right to sue upon separate items of an account for goods sold upon stated periods of credit, see note in 13 L. R. A. (N. S.) 529.

      Error to Wayne; Marschner (Adolph F.), J.
    Submitted October 5, 1920.
    (Docket No. 20.)
    Decided December 21, 1920.
    Assumpsit in justice’s court by Dey Krolik and others, copartners as A. Krolik & Company, against Bernice Ossowski for goods sold and delivered. There was judgment for plaintiffs, and defendant appealed to the circuit court. Judgment for plaintiffs on a directed verdict. Defendant brings error.
    Reversed, and no new trial ordered.

      Leonard Kowalski (Clifton G. Dyer, of counsel), for appellant.

      Fixel & Fixel, for appellees.
   Clark, J.

In December, 1918, the defendant, then a retail merchant in Detroit, being indebted to plaintiffs, partners, wholesale dealers in dry goods, also of Detroit, in the sum of $2,981.63, on running or open account, was induced by plaintiffs, through Mr. Fixel, their credit man, in an effort to secure and collect their account, to execute and deliver to Mr. Fixel, as trustee for plaintiffs and other creditors, a chattel mortgage, in form somewhat of a bill of sale, covering defendant’s stock of merchandise, store fixtures and book accounts. The consideration named in the writing was $6,400.05, which included the amount due plaintiffs. Included in plaintiffs’ account were bills not due. These were made due by the writing, which also gave the trustee the right of immediate possession and the “right to foreclose without further notice.” The trustee took immediate possession and sold the stock. In this he had the approval of defendant and of the creditors. The proceeds in two installments were distributed by plaintiffs, it seems, their checks being used in the payment of the first installment at least. Plaintiffs credited to the account of defendant the amounts of these installments retained by them, as of February 18th and April 27, 1914, respectively. The debit balance remaining was transferred to a loss and gain ledger and the account closed as of December 31,1914.

By a computation it will appear that after crediting the avails of the sale under the mortgage there was a deficiency due plaintiffs from defendant of $967.54. On March 14, 1914, defendant signed, at Mr. Pixel's request, a ratification of the foreclosure sale and the distribution, which writing said in part:

“I have gone over the list of creditors as compiled by the said Adolph Fixel; that I find the same correct” ; and there was attached to the writing a list of the creditors, showing the .amounts of the accounts and of the installments paid, the part relating to plaintiffs being:
30% 37.55%
“A. Krolik & Co., Detroit, 2,981.63 894.49 1,119.60”

On February 8, 1919, plaintiffs commenced against the defendant in justice’s court in Wayne county two suits. In each they declared in assumpsit in the amount of $500. In one case the bill of particulars was an itemized statement of a part of defendant’s account :

"An itemized statement showing purchases from June 2d, 1913, to November 5th, 1913 (165 separate items) ............................$2,609.01
Credits
Itemized statement showing 16 small credits ........................... $112.43
1914
Feb. 18. Cash $894.49
Apr. 27 Cash 1,119.60 $2,126.52
Balance due $472.49”
(482.49)

Defendant pleaded “the general issue with notice of compromise and settlement” and, it is inferred, sought to show an agreement that by the mortgage the account was to be fully satisfied. The plaintiffs had judgment for $500 and costs, which the defendant paid June 5, 1919, and the amount was entered in plaintiffs’ loss and gain ledger.

In the other case in justice’s court plaintiffs filed a bill of particulars of a later part of defendant’s account as follows:

“An itemized statement showing purchases from November 5, 1913, to December 27, 1913 (60 separate items) ............................ $630.82
An itemized statement of credits from November 10, 1913, to November 30, 1913 (16 separate items) ................................ 158.08
Balance due ............................... $472.74”

Defendant pleaded the general issue with notice of “res adjudicata and compromise and settlement.” Plaintiffs had judgment. Defendant appealed. Upon trial in the circuit court defendant contended in part and in substance that the claim of plaintiffs was an entire demand, that plaintiffs could not split their demand into two separate causes of action, and that the judgment in the first case in justice’s court was a bar to recovery in the case in circuit court. When plaintiffs rested counsel for defendant made a motion that a verdict be directed in favor of defendant, urging in his argument in support of the motion the reasons aforesaid. The motion was denied. On motion of counsel for plaintiffs a verdict was directed for plaintiffs in the sum of $498.25, without costs, and judgment entered, which defendant reviews here on writ-of error. Counsel for plaintiffs raise two preliminary questions which we consider first:

“(1) Appellant waived any possible claim of account stated, if there ever was an account stated, through failure to plead account stated in plaintiffs’ previous suit on part of the same accounts.
“(2) The question of account stated cannot be raised for the first time in the Supreme Court, without intimation thereof in the lower court.”

As to waiver, counsel cite 1 C. J. p. 709, § 334, and cases collected in the foot-notes: Harrison v. Henderson, 67 Kan. 202 (72 Pac. 878); McCormick Harvesting-Machine Co. v. Wilson, 39 Minn. 467 (40 N. W. 571); Northern Line Packet Co. v. Platt, 22 Minn. 413; Rowell v. Marcy, 47 Vt. 627.

By none of these is plaintiffs’ contention sustained. They do hold that the advantage which a creditor is considered to have in having his account stated — the amount fixed or determined by agreement, expressed or implied — over having an open account where the items composing it must be proved, is waived by the creditor where his action is brought and defended upon his account as an open account. The plaintiffs in the first suit in justice’s court declared upon a part of the claim. The defense was, as we have said and inferred, that the defendant did not owe the plaintiffs because of settlement and compromise of the claim. This was not defending upon an open account as such and the record does not show that such defense was made. The defense sought to be made was equally applicable to a claim upon an open account and to a claim upon an account stated or entire demand, or to a claim for deficiency arising from the foreclosure of the mortgage. And defendant was not there called upon to plead that plaintiffs were not suing for the whole claim. They might remit if they chose. The defense made in the second suit, the case at bar, was not waived in the other suit in justice’s court.

As to raising the defense of account stated, there is no merit in this contention. The plea in the case at bar, made orally, it seems, in justice’s court, as above stated, was sufficient to permit the defense that plaintiffs’ claim was on one account or demand and that an adjudication upon a part of it was necessarily an adjudication upon the whole. Defendant’s right so to defend was not questioned upon the trial. The files in the former case in justice’s court were received in evidence without objection. All other evidence of importance was brought in by plaintiffs. Defendant’s counsel may argue the legal effect of. such evidence. Saying that plaintiffs’ claim was an account stated is to say that it was not an open account, that it was one account, an entire demand, an indivisible claim, or that by an adjudication upon a part the whole was adjudicated, and this was the substance of the argument of counsel for defendant in support of the motion for a directed verdict.

We come to the main question in the case. Counsel for plaintiffs here contend that the action is upon open account, that separate suits may be brought upon the claims embraced in a,n open account, subject, under section 14217, 3 Comp. Laws 1915, to the penalty of loss of costs in subsequent suits where the whole of the claim upon such an account is not included in one action. On this point counsel for defendant renews his contention made in support of his motion for a directed verdict. The statute (section 14217, 3 Comp. Laws 1915) provides:

“Plaintiffs, in action founded on open accounts, shall embrace all claims then due on account, or failing so to do, shall not recover costs in any subsequent suit on claims not so embraced.”

The right to bring separate suits upon claims embraced in an open account has been recognized. See Phelps v. Abbott, 116 Mich. 624, and Stickel v. Steel, 41 Mich. 350. But it is said in Kruce v. Lakeside Biscuit Co., 198 Mich. 736, at page 739, that the authorities are not entirely harmonious. The law abhors multiplicity of suits. Attempts to split a claim into separate causes of action have often met with disfavor. See Kruece v. Lakeside Biscuit Co., supra; Kimmerle v. Lowitz, 203 Mich. 482; Jensen v. Gamble, 191 Mich. 233; Vincent v. Moore, 51 Mich. 618; Milroy v. Mining Co., 43 Mich. 231; Dutton v. Shaw, 35 Mich. 431; Town v. Smith, 14 Mich. 348; Williams-Abbott Electric Co. v. Model Electric Co., 13 L. R. A. (N. S.) 529 (134 Iowa, 665, 112 N. W. 181).

Open account is defined:

“An open account is one which consists of a series of transactions and is continuous or current, and not closed or stated. However, all accounts which are not stated or reduced to writing are not necessarily open accounts. Thus, cases of bailment, or express contract defining the liabilities of the parties, whether evidenced by writings or not, are not as a general rule open accounts; nor is an admission of indebtedness in a precise ascertained sum, or a claim for money paid on the request of another.” 1 C. J. p. 601.

See, also, 6 Words & Phrases, p. 4985; 1 Am. & Eng. Enc. Law (2d Ed.), p. 431.

The term “stated account” is used in opposition to the term “open account” and is defined:

“An account stated means a balance struck between the parties on a settlement; and where a plaintiff is able to show that the mutual dealings which have occurred between the parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance.” Watkins v. Ford, 69 Mich. 357 (quoting from syllabus).
“An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance.” 1 C. J. p. 678.

And it is said correctly:

“The term ‘stated account’ is but an expression to convey the idea of a contract having an account for its consideration, and is no more an account than is a promissory note or contract, having a like consideration for its support. Auzerais v. Naglee, 74 Cal. 60 (15 Pac. 371).” 1 C. J. p. 679, note.

By the agreement of December 30, 1913, the whole account was declared to be due. The correct balance was struck and agreed upon and the amount was carried into the chattel mortgage which defendant gave and which plaintiffs accepted as security for payment of the amount. And following the sale of the mortgaged property defendant, in a writing given to Mr. Fixel, admitted the correctness of the amount claimed by plaintiffs and of the amounts received by them from the said sale, and thus also admitted the amount of the deficiency. This writing above mentioned,' though argued by counsel to be for the personal benefit of the trustee, was put in evidence by plaintiffs as a part of their case and which Mr. Fixel testified — “* * * is the acknowledgment by the defendant here as to the correctness of these accounts * * *,” the accounts as set out in the writing.

That plaintiffs’ claim was, strictly speaking, an account stated (see Middleditch v. Ellis, 2 Exch. 623; 1 C. J. p. 683) it is not necessary to determine. The term, however, is commonly applied to similar claims in opposition to the term, open account. See 13 L. R. A. (N. S.) 529; 1 C. J. p. 679. Plaintiffs’ claim was not an open account. It constituted an entire demand. Separate actions could not be brought upon it. The former proceeding before the justice is a bar to the present suit. Defendant’s motion that a verdict be directed in her favor should have been granted.

The judgment is reversed without a'new trial.

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


source: Caselaw Access Project

author: Clark, J.

license: Public Domain

text:
    CASTLE v. CASTLE.
    1. Executors and Administrators — Final Accounting — Release —Fraud—Notice—Estoppel.
    Where plaintiffs, heirs of an estate, with knowledge of all the facts, signed a release of the administrator and consented to the final decree and adjudication of the cause in the prohate court, they are estopped to allege fraud in the administration of the estate and to ask for an accounting thereof.
    2. Same — Evidence—Sueotciency.
    Allegations in plaintiffs’ bill that the administrator of their father’s estate promised and agreed to compensate them by will for defrauding them in administering said estate if they would sign his release as said administrator, but that he failed so to do, held, not sustained by the proofs.
    Appeal from Ottawa; Cross (Orien S.), J.
    Submitted October 8, 1920.
    (Docket No. 59.)
    Decided December 21, 1920.
    'Bill by Heaman Castle and others against Amanda F. Castle and another to set aside the sale of land, and for an accounting. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Visscher & Robinson (Arthur Van Duren, of counsel), for plaintiffs.

      Cross, Foote & Sessions, for defendant Castle.
   Clark, J.

Truman S. Castle died intestate in 1868 and in that year letters of administration of his estate were issued by the probate court of Ottawa county to John Castle, a brother. The heirs at law were the plaintiffs, sons, then aged 7, 6 and 5 years, respectively. The inventory showed personal property appraised at the sum of $567.55 and two parcels of real estate appraised at the sum of $2,040. In 1875 the administrator, having obtained from the probate court license to sell, the price named being $1,200, sold one parcel of the real estate, receiving therefor $270, the difference seemingly being due to the fact that the property was mortgaged. John Wagner, the purchaser, and wife later in that year conveyed this property to Chester Needham, brother-in-law of the administrator, for a named consideration of $500, and in 1900 the heirs at law of Chester Needham conveyed the same to Amanda F. Castle, the wife of John Castle, and in 1905 John and Amanda F. Castle conveyed to one Zuiderbeld. John Castle was in possession of this tract for nearly 30 years prior to 1905.

In June, 1916, John Castle, as administrator, filed his final account and with it a release signed by plaintiffs in part as follows:

“We, Heaman Castle, Walter and Hiram Castle, being children and sole heirs at law of said deceased, * * * do hereby acknowledge due notice of the hearing on the final account and petition of John Castle, administrator of said estate, hereto attached and waive further notice thereof; and do consent to the allowance of said account and to the granting of said petition forthwith and to the assignment and distribution of the residue of said estate forthwith.
“And we do each hereby acknowledge that we have each received our respective shares of said estate in full and do hereby consent to the discharge of said administrator forthwith.”

The final account showed the remaining parcel of real estate on hand for assignment and that the residue of the estate, after payment of debts, had been turned over to the heirs at law.

On June 30, 1916, the probate court assigned the said real estate to the plaintiffs, and on July 7, 1916, the following order was entered in the cause by said probate court:

“Whereas, it appears by the records and proceedings of said court that you have in all things faithfully and justly performed and discharged all and singular the duties and obligations which by law and the orders of said court were required, and enjoined upon you as administrator of said estate, and that you have duly and fully accounted for and administered all of said estate which has come into your .possession, in the manner provided by law:
“Now, therefore, you are hereby discharged, exonerated and acquitted from any and all liabilities concerning your said trust, and your doings and proceedings are forever quieted, your official bond cancelled, and your letters of administration heretofore granted are hereby revoked and annulled.”

No appeal was taken. John Castle died in 1916, leaving no estate. His widow, the defendant Amanda F. Castle, owns a small home and $2,000 in money and bonds which she received from her husband many years before his death.

In January, 1919, plaintiffs’ bill of complaint was filed alleging that the sale of the real estate in 1875 was fraudulent in that John Castle, the administrator, was the actual purchaser and that John Wagner and Chester Needham were his instruments used to pass title to himself and that the plaintiffs had been induced to give the said release to John Castle, administrator, and to permit closing the estate, by his promise to pay and compensate them by his will to the extent of their respective interests in the estate of their father, and praying an accounting and that the funds in the hands of defendants Amanda F. Castle and Clayton Needham, seemingly her banker, be declared trust funds for the use and benefit of plaintiffs to the amount claimed to be due. Decree was entered dismissing the bill of complaint. Plaintiffs have appealed.

With knowledge of the facts plaintiffs signed the release and consented to the final decree and adjudication of the cause in the probate court. They are estopped to allege fraud in the administration of the estate and to ask accounting thereof. Bond v. Markstrum, 102 Mich. 11; Jacobson v. Miller, 41 Mich. 90; Burgess v. Stribling, 134 Mich. 33; Calhoun v. Cracknell, 202 Mich. 430; Barker v. Cleveland, 19 Mich. 230; Hazen v. Reed, 30 Mich. 331; Lawrence v. Hathaway, 128 Mich, at page 123; Fingleton v. Kent Circuit Judge, 116 Mich. 211; Byrne v. Hume, 84 Mich. 185; Campan v. VanDyke, 15 Mich. 371; Corby v. Trombley, 110 Mich. 292.

We think the record is barren of competent evidence that John Castle promised and agreed that by will he would pay or compensate plaintiffs, and we agree with the trial court that the material allegations of the bill of complaint are not sustained by the proofs.

The decree is affirmed, with costs to the defendants.

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


text:
    PEOPLE v. OPRITA.
    1. Criminal Law — Appeal and Error — New Trial — Assignment op Error — Waiver.
    An assignment of error based on the denial of a motion for a new trial, held, waived where there is no discussion of the same in the brief, and the alleged error is not pointed out.
    2. Same — Murder — Trial — Self-Defense — Instructions — Reasonable Doubt.
    In a prosecution charging murder, a requested instruction that murder could not be made out unless the testimony excluded the idea of self-defense beyond a reasonable doubt, and that the people must show such facts and circumstances as would convince the jury that the killing was not in self-defense, held, sufficiently covered by the charge as a whole.
    3. Same — Assignment of Error — Miscarriage of Justice.
    A portion of the charge which is criticized by defendant, but upon which no error is assigned, will not be considered, where it does not affirmatively appear that there has been a miscarriage of justice.
    4. Same — Trial — Instructions — Self-Defense — Reasonable Doubt.
    Requested instructions that killing in self-defense when accused had reason to believe, and did believe, from previous knowledge, that .it was necessary, was excusable; and that, although the jury might not be satisfied that defendant acted in self-defense, still if the testimony created in their minds a reasonable doubt on that point the defendant was entitled to the benefit of the doubt, and they should acquit, held, sufficiently covered in the charge as given.
    Error to recorder’s court of Detroit; Jeffries (Edward, J.), J.
    Submitted October 14, 1920.
    (Docket No. 108.)
    Decided December 21, 1920.
    On instruction in homicide cases upon rule of reasonable doubt with reference to cause of death, see note in 49 L. R. A. (N. S.) 913.

      Nick Oprita was convicted of manslaughter, and sentenced to imprisonment for not less than 2% nor more than 15 years in the State prison at Jackson.
    Affirmed.

      Ben. O. Shepherd, (Thomas L. Dalton, of counsel), for appellant.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, Herman II. Greenberg and Collins B. Scott, Assistants Prosecuting Attorney, for the people.
   Clark, J.

Defendant was charged with murder and convicted of manslaughter. Of the assignments of error reference is made in his brief to four, that there was error in denying the motion for a new trial and in refusing to give his first, second and ninth requests to charge.

Motion for new trial. The motion was based upon the grounds that the verdict was against the weight of evidence and that defendant’s nine requests to charge should have been given. Of the first there is no discussion in the brief. Wherein there was error in refusing the requests is not under .this assignment pointed out or discussed. The assignment was waived. See People v. Cole, 139 Mich. 312; Ferguson v. Wilson, 122 Mich. 97 (80 Am. St. Rep. 543).

First request. This request was:

“I charge you that murder cannot be made out unless the testimony excludes the idea of self-defense beyond a reasonable doubt. And that the people must show such facts and circumstances as will convince the jury that the killing was not in self-defense.”

The court charged that the people must prove defendant’s guilt beyond a reasonable doubt, and stating the theory and claim of the defense, that the shooting was justified, done in self-defense, proceeded to review the elements of such defense and to point out the duty of the jury in regard thereto. We think the substance of the request was sufficiently covered by the charge as a whole. In this connection a portion of the charge is criticized, but error is not assigned upon it and for this reason (see Cox v. Klein, 149 Mich. 162; Dresser v. Blair, 28 Mich. 501), and for the further reason that it does not appear affirmatively that in this case there has been a miscarriage of justice, the question will not be considered.

Second and ninth requests. These requests were:

“I charge you that killing in self-defense when the accused has a reason to believe and did believe from the previous and present language, threats conveyed to his knowledge, and made directly to him, what he knew and believes of the vicious and dangerous reputation of the deceased, and also the manner and actions of the deceased, that it was necessary to do so to save his own life or to protect himself from danger of great bodily harm is excusable.
“I charge you that, although you may not be satisfied that the defendant, in killing the deceased, acted in self-defense, still, if the testimony in this case created in your mind a reasonable doubt as to whether or not the killing was done in self-defense, the defendant is entitled to the benefit of the doubt, and it will be your duty to acquit him.”

These requests were covered by the charge from which we quote:

“On the other hand, gentlemen of the jury, if you believe from the testimony, that the quarrel arose as has been outlined and testified by the people’s witnesses, as their theory — or the defendant’s theory in this case, that the deceased picked up a hatchet and with words or acts which indicated that he would use it and was about to use it upon the person of the defendant, then — gentlemen of the jury, if you believe that to be true, you have a right — if that is true, gentlemen of the jury, if you believe that to be true, and the defendant shot him, you have a right, and I am inclined to think it is your duty to find the defendant not guilty, because from the description of this weapon and the character of it, it meant at least the infliction of great bodily harm, if not the taking of the defendant’s life; and I am sure that any man if he could not escape and he was about to be struck, or thought he was to be struck, with the weapon that has been introduced in this case, that he would have a right to shoot, a perfect right to shoot in defense of his life or the infliction of great bodily harm.
“The whole question in my mind, gentlemen of the jury, largely revolves around this issue. That is the defense. Did the deceased take up this hatchet; did he use such words; did his attitude indicate to this defendant that he was about to be struck by that hatchet or that axe?
“If he did, and you believe that he did, and that he was in fear of his life or in fear of the infliction of great bodily harm, then, as I say, your duty is to acquit him of the charge in this information.
“Now in that matter, in reference to that, it is your duty to take into consideration what this defendant knew of the deceased, of his reputation, of his temperament, of his probabilities to violence, and you may take into consideration the fact that, if you believe it to be true, that he heard of the reputation and of the temperament of the deceased, take that into consideration in arriving at what was the probable state of mind of the defendant at the time of the shooting. * * *
“Now the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. A reasonable doubt is not a vain, possible imaginary or captious doubt, but a fair doubt founded on reason and common sense, growing out of the evidence, or lack of evidence, in the case. It is such a doubt that after a careful review of all the testimony you cannot say you have an abiding conviction to a moral certainty of the defendant’s guilt. If you have, give him the benefit of it, and acquit him.” * * *

The charge taken as a whole protected the rights of the defendant. He has had a fair trial.

The judgment is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Bird, and Sharpe, 33., concurred.


text:
    EAST LANSING STATE BANK v. KEIL.
    1. Bills and Notes — Checks—Negotiable Instruments.
    Under 2 Comp. Laws 1915, § 6226, a check possessing the requirements of negotiability provided by 2 Comp. Laws 1915, § 6042, is a negotiable paper.
    2. Same — Holder in Due Course — Fraud—Notice.
    In an action by a bank upon a check given for payment of a horse sold at auction, defended on the ground of breach of warranty, defendant’s contention that knowledge of the cashier of plaintiff, who acted as clerk at the auction, that said horse was warranted sound was imputable to plaintiff and therefore it was not a holder in due course, cannot he sustained, since knowledge of the warranty is not' equivalent to knowledge and notice of fraud in the warranty or of breach of the same.
    3. Same.

      Held, that, under 2 Comp. Laws 1915, § 6093, plaintiff was a holder in due course.
    On effect of exchange of check to constitute one a holder in due course, see note in 17 L. R. A. (N. S.) 747.
    Error to Ingham; Wiest (Howard), J.
    Submitted October 7, 1920.
    (Docket No. 42.)
    Decided December 21, 1920.
    Assumpsit in justice’s court by the East Lansing State Bank against Edward A. Keil for the amount of a check. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Francis J. Shields and Thomas, Shields & Silsbee, for appellant.

      C. W. & W. S. Foster, for appellee.
   Clark, J.

G. E. Chivington of Ohio sold several horses at a public auction in Lansing. He was assisted by an auctioneer and by Mr. Nash, cashier of the plaintiff bank, who acted as clerk of the auction and who was paid by Chivington for the service. Both Chivington and the auctioneer made general and public statements warranting the horses to be sound. These statements were heard by the cashier. Defendant purchased a horse at the sale for which he gave his personal check payable to' Chivington and drawn on the Farmers State Bank of Webberville, Mich. Two days later defendant’s check with others arising from the auction were negotiated by Chivington to the plaintiff, from whom Chivington received therefor a certificate of deposit for the full amount of the checks. Chivington promptly cashed the certificate. Defendant learning, as he claims, that the horse purchased by him was not sound and not knowing the whereabouts of Chivington, stopped payment on his check. Plaintiff sent the check through the regular channels for collection and payment was refused and plaintiff was then, and not until then, informed of defendant’s claim. The check was then sent directly to the Webberville bank for collection and payment was again refused. Suit was commenced in justice’s court by plaintiff against the defendant to recover the amount due on the check. Plaintiff had judgment. Defendant appealed. Upon trial without a jury plaintiff had judgment in the circuit court, which judgment defendant reviews here upon writ of error.

Defendant contends

“(1) That the check drawn by defendant was not negotiable paper.
“(2) That if said check was negotiable, the fact that Mr. Nash, the plaintiff bank’s cashier, was clerk and agent of Mr. Chivington' at the auction sale, ¡places the plaintiff in a position on account of Nash’s relationship as clerk and agent where it cannot claim the rights of a bona fide purchaser of the check.”

Claiming that the check was not negotiable paper defendant’s counsel cite section 6230, 2 Comp. Laws 1915:

“A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.”

Of this section the' trial court correctly said:

“The section quoted would have some applicability if the suit here had been brought against the bank upon which the check was drawn instead of against the defendant, the drawer of the check.”

Section 6226, 2 Comp. Laws 1915, defines a check:

“A checkTs a bill of exchange drawn on a bank payable on demand.”

The check in question was negotiable, possessing requirements of negotiability provided by section 6042, 2 Comp. Laws 1915:

“An instrument, to be negotiable, must conform to the following requirements:
“First, It must be in writing and signed by the maker or drawer;
“Second, It must contain an unconditional promise or order to pay a certain sum of money;
“Third, It must be payable on demand or a fixed or determinable future time;
“Fourth, It must be payable to order or to bearer; and
“Fifth, Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.”

To support the second contention counsel for defendant say that the cashier having knowledge of the warranty and having acted at Chivington’s request as his agent as clerk of the auction the plaintiff because of such knowledge and because of such agency must be held to have had constructive notice of the claimed fraud and breach, of warranty. With this we do not agree. Assuming that a fraud was perpetrated upon the defendant by Chivington, the cashier of plaintiff bank was not a party thereto or cognizant thereof. Nor is the position of plaintiff in this case in any way affected by the mere fact that its cashier performed the simple duties of a clerk of the auction. The cashier had knowledge of the warranty, but mere knowledge and notice of a warranty are not equivalent to knowledge and notice of fraud in the warranty or of breach of same.

“A span of mares were sold at auction under a warranty that they were with foal. The purchaser gave his promissory note in payment, and it was purchased by a person who acted as clerk at the sale, in good faith and before maturity and for value, with, knowledge of the warranty, but without notice or knowledge of its breach; and it is held that such breach could not be set up as a defense in a suit by such purchaser on the note.” Miller v. Ottaway, 81 Mich. 196 (quoting from syllabus).
“It has often been said that a negotiable promissory note is a courier without luggage whose face is its own passport. To such extent do notes of this character enter into and form a substantial part of the very life of the commercial world that the law has always been solicitous to exclude any rules calculated to hinder their free circulation and exchange. By the act of executing such an instrument, the maker is held to have intended that it may enter the channels of trade and pass from hand to hand unincumbered by any defense not known to exist when the transfer is made. The rule is concisely stated in 3 Ruling Case Law, p. 1067, as follows:
“ ‘The courts universally hold that knowledge that a note was given in consideration of the executory agreement or contract of the payee which has not been performed will not deprive the indorsee of the character of a holder in due course, unless he also has notice of the breach of that agreement or contract. So knowledge of a warranty on a sale in which a note was given is held not to affect the rights of a purchaser of the note for value before maturity, if be bad no knowledge of the breach of the warranty.’ Miller v. Ottaway, 81 Mich. 196 (8 L. R. A. 428, 21 Am. St., Rep. 513); Jennings v. Todd, 118 Mo. 296 (24 S. W. 148, 40 Am. St. Rep. 373); Rublee v. Davis, 33 Neb. 779 (51 N. W. 135, 29 Am. St. Rep. 509); Siegel, Cooper & Co. v. Savings Bank, 131 Ill. 569 (23 N. E. 417, 7 L. R. A. 537, 19 Am. St. Rep. 51); United States Nat. Bank v. Floss, 38 Or. 68 (62 Pac. 751, 84 Am. St. Rep. 752); 8 Corpus Juris, p. 509.”

Baker Stale Bank v. Grant, 54 Mont. 9 (166 Pac. 28).

In Hakes v. Thayer, 165 Mich. 487, Justice Stone cited several instructive cases and, delivering the opinion of the court, said:

“A failure of the consideration in whole or in part after a bona fide transfer does not affect the character of the purchaser, although he had full knowledge of the original consideration for which the note was given. There is no evidence of notice, or knowledge of the breach of this contract, in so far as the failure of the horse to comply with the warranty is concerned, before the transfer of these notes. The purchaser of notes may have knowledge of a collateral agreement, but is not obliged to inquire whether the seller has performed his agreement, or will be able to perform the agreement into which he has entered.”

Of the check the plaintiff was a holder in due course. See 2 Comp. Laws 1915, § 6098.

The judgment is affirmed.

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


author: Steere, J.

text:
    DELAND v. MICHIGAN RAILWAY CO.
    1. Street Railways — Crossing Accident — Personal Injuries— Contributory Negligence — Degree oe Care — Question eor Jury.
    In an action against a street railway company for injuries caused by a collision on a highway crossing between defendant’s interurban car and the automobile in which plaintiff was riding, where the driver of the automobile had waited for the passing of one car and was struck by the second one going in the same direction, the question as to whether he had taken such precautions as a reasonably prudent and careful man would do, under like circumstances, held, under the testimony, one of fact for the jury.
    2. Same — Trial—Instructions—Jury.
    In said action, an instruction that the driver of the automobile was held to a lesser degree of care and precaution because a car had just passed, going in the same direction, held, to invade the province of the jury, and to amount to reversible error.
    On care required of driver of automobile at railroad crossing, see notes in 21 L. R. A. (N. S.) 794; 29 L. R. A. (N. S.) 294; 46 L. R. A. (N. S.) 702.
    Error to Genesee; Black (Edward D.), J.
    Submitted October 12, 1920.
    (Docket No. 76.)
    Decided December 22, 1920.
    Case by Helen E. Deland against the Michigan Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Weadock & Weadock (Carton, Roberts & Stewart, of counsel), for appellant.

      George W. Cook, for appellee.
   Steere, J.

On Sunday, August 12, 1917, in the village of Mount Morris, Genesee county, plaintiff received serious injuries in a crossing collision between an automobile in which, she was riding and one of defendant’s interurban cars. The áccident occurred at a point where defendant’s line between Flint and Saginaw crosses at grade Morris street, which is the principal thoroughfare east and west through the village. At that point defendant’s line runs in a northwesterly and southeasterly direction, making a slight curve to the west about 300 feet north of Morris street. Plaintiff resided with her family on a farm near Flushing, some 9 miles west of Mount Morris. On the afternoon of that Sunday she went riding in their automobile with her husband and son Ralph, a young man about 27 years of age, who sat in the front seat and drove the auto, she and her husband occupying the back seat. They had driven east from their home to and through the village of .Mount Morris, along Morris street and some distance beyond. The accident occurred about 3 o’clock in the afternoon as they were driving back on Morris street towards their home. On the east side of defendant’s track and north side of Morris street at this crossing is located the residence of Mr. John Eagan, called by witnesses the “Eagan house,” which is 17 feet east of defendant’s track and with its surrounding trees largely obscures the view of defendant’s line on the north, to one driving west on Morris street, for a distance of approximately 80 feet easterly from the track — how completely is a matter much in dispute in this case.

As they approached the crossing from the east they saw on their right a south-bound interurban car of defendant coming when they were about 140 feet east of the track from where their view to the north was unobstructed. Ralph slowed down and stopped their automobile opposite the Eagan house at a point about 80 feet east of the crossing and waited until it passed, allowing his engine to run out of gear until he started up again. As soon as the interurban had passed the crossing and he noticed an automobile bound east which had waited west of the track start up and cross, he also started on, slowly at first, and had attained a speed of from 5 to 7 miles an hour when he reached the track, the interurban which had just passed being yet in sight to the south. He testified that as he approached the crossing .he looked both ways and listened, his automobile made no noise to prevent hearing, that his view to the north was obscured by the Eagan house and trees to the west of it, he heard no whistle, bell or sound of a coming car and saw no indication of another car following the one which had just passed. He had shifted to second gear and just as he drove upon the track another south-bound interurban suddenly appeared close by, as though emerging from amongst the trees, as he and his mother describe its appearance to them, so near and running so fast that, before he could clear the track, it struck the rear of the automobile, wrecking it, seriously injuring plaintiff and killing her husband. Though thrown out, dazed and bruised the son was not seriously injured.

It is conceded this was a dangerous crossing, particularly for those approaching it from the east, that no special safeguard was provided there to warn of approaching cars, and no warning bell or gong was sounded by the interurban as it approached. The motorman testified that he whistled for the crossing at the whistling post, located 1,000 feet north of the crossing, which was disputed by the testimony of those in the highway on each side of the track, who testified that they listened for an approaching car from the north and heard no whistle or bell. Mr. Hitchcock, who lived in Mount Morris and was familiar with the crossing, drove the automobile coming from the west, which waited on that side for the first car to pass, testified he heard it whistle, had a clear view to the north from his side and could and did see it about 15 rods north of the crossing as he approached the track and checked down; that he knew another car was soon coming, as the second section of that train, and out of precaution looked to the north again and listened for it before he went across, but neither saw nor heard it whistle, had crossed the track, speeded up to about 10 miles an hour and gone but a short distance on the way when he heard the collision, stopped his auto and walked back, getting there just as they were carrying plaintiff into the Eagan house. It was shown that the interurban which struck the automobile was the second section of defendant’s south-bound limited train No. 160 between Saginaw and Flint, which at that time ran in two sections of one car each about a mile apart between stations, at a speed of about 45 miles an hour.

Neither plaintiff nor those with her were familiar with this crossing or had any knowledge of defendant’s trains being run in sections, or of when or how its cars were run. Mount Morris was not their market town. Ralph had not been over that highway or crossed defendant’s track before that day or ever traveled as a passenger on its line. A map and photographs of the crossing and its environments were introduced, with testimony more or less conflicting as to whether a view of the track north of the crossing was entirely obscured between it and the Eagan house to one driving west on Morris street.

Plaintiff’s alleged grounds of negligence are, in brief, absence of proper notice of the approach of the car at that point, failure of defendant to maintain there any gates, flagman, electric bell, or in any wise safeguard the crossing, negligence in speed and operation of a second car following so closely after another, at the place and under the circumstances shown.

While various errors are assigned with right of review preserved by motions, request for directed verdiet, etc., it is said in the briefs of both plaintiff’s and defendant’s counsel that there are but two controlling questions in the case which are stated in defendant’s brief and repeated in plaintiff’s as follows:

“First. Should verdict have been directed by the court for the defendant on the ground that the plaintiff and her driver were guilty of contributory negligence in the manner in which they approached the crossing on the day in question?
“Second. Did the court err in charging the jury that there was a lesser duty on the part of the plaintiff’s driver of protecting himself against a second car upon the defendant’s road because a car had just passed over the crossing from the same direction?”

Upon the first proposition defendant’s counsel contend the undisputed testimony shows that plaintiff’s driver did not stop, look and listen at a time and place where stopping, looking and listening would prove effective, in violation of the rule applied by. this court as stated in Cardinal v. Railway Co., 165 Mich. 155; Measel v. Railway, 166 Mich. 688; Manos v. Railway, 168 Mich. 155 (L. R. A. 1917C, 689); Colborne v. Railway, 177 Mich. 139; Champaign v. Railway, 181 Mich. 672; and other analogous cases. That such is the general rule there can be no question, and it is also well recognized that there are exceptions recognized in certain cases where the exculpating testimony nevertheless carries the question of contributory negligence to the jury as an issue of fact under proper instructions, some of which are as follows: Guggenheim v. Railway Co., 66 Mich. 150; Breckenfelder v. Railway Co., 79 Mich. 560; Richmond v. Railway Co., 87 Mich. 374; Coffee v. Railroad Co., 139 Mich. 378; Hintz v. Railroad Co., 140 Mich. 565; Barnum v. Railway Co., 148 Mich. 370; Beck v. Railroad Co., 156 Mich. 252; Morgan v. Railroad Co., 162 Mich. 573; Rouse v. Blair, 185 Mich. 632; Halloram v. Railway Co., 197 Mich. 308; Nichols v. Railway Co., 203 Mich. 372; Fillingham v. Railway Co., 207 Mich. 644.

According to plaintiffs testimony the driver did look and listen and saw a car coming when approaching the track, stopped for if to pass, and, discovering no indications of another car coming, proceeded listening and observing as best he could, until he was upon the track. Whether as the situation presented itself to him he made such observations and took such precautions as a reasonably prudent and careful, man would do under like circumstances was, we think, made by the testimony a question of fact for the jury. As we are of the impression this case must be retried for the second reason urged, it is not deemed necessary or advisable to enter into further discussion of the testimony upon that issue of fact.

The court in overruling defendant’s motion for a directed verdict said in the presence of the jury:

“The court thinks — it is his opinion, as a matter of law, that there is a little different rule of law would apply to plaintiff in driving his car after the'other car had passed, not that plaintiff was to be excused from diligence on his part of protecting himself against cars upon defendant’s road, but the court thinks there is a less duty, of a second train followiiig, that way or a second car, than there would be had there not a car just passed.”

In instructing the jury upon the question of negligence the court charged as follows in modifying one of defendant’s requests:

“I add — the greater knowledge he had of the crossing the more care should be exercised, and particularly, if he knows, or has good reason to know that there are other trains approaching — ‘and whether or not just prior to his crossing such track there shall have passed a car on the same.’ ”

In modifying another request properly stating the applicable rule:

“I further charge you, as a matter of law, that under the facts of this case the driver of the car was held to — I have put in the word ‘practically’ — the same degree of care in approaching and going upon the track of defendant company as though no car had passed over that track and across said highway two or three minutes before the car that struck plaintiff reached it. In these days of rapid transportation the driver of the car had no right to assume that the first car he saw crossing said highway south-bound would not be followed closely by another going in the same direction— I add, ‘but with lesser degree of care and precaution on his part.’ ”

In this added qualification the court invaded the province of the jury. While all the facts and circumstances attending the accident, including the fact that the driver had seen and waited for another car to pass, were proper matters for the jury to give such weight to as in their judgment seemed right in determining the question of negligence, an instruction that the recent passage of a car changed the rule as to the degree of care and vigilance required of one about to cross a railroad track was, we think, prejudicial error, particularly in a case of this nature where the issue upon the facts was close. The jury should have been instructed, in substance as requested, upon the unquestioned rule of law which they should apply to the facts found by them without the modification complained of.

For this reason the case must be reversed and a new trial granted, with costs to defendant.

Moore, C. J., and Brooke, Fellows, Stone, Clark, Bird, and Sharpe, JJ., concurred.


author: Pee Curiam.

text:
    BLACK v. SPEARS.
    1. Abuse op Process — Attachment—Trover—Valid Writ a Defense.
    In an action for the wrongful seizure of a stock of merchandise, the trial court properly directed a verdict for defendants on the first count, which is a simple count in trover alleging the unlawful and wrongful conversion of plaintiff’s stock of goods to defendants’ use, where it appears that the seizure was made under a valid writ of attachment.
    2. Same — Non-participation in Oppressive Acts — Directed Verdict.
    On rehearing, the opinion in 209 Mich. 1, reversing the judgment of the trial court on a directed verdict in favor of defendants, is modified, and, as to defendant wife, is affirmed, there being no evidence that she participated in any of the alleged oppressive acts of which complaint is made.
    Error to Tuscola; Beach (Watson), J,
    Submitted October 9, 1919.
    (Docket No. 16.)
    Decided February 27, 1920.
    Re-argued October 22, 1920.
    Modified January 5, 1921.
    Case by George V. Black against William J. Spears and Anna H. Spears for a wrongful seizure of a stock of merchandise under a writ of attachment. Judgment for defendants on a directed verdict. Plaintiff brings error.
    Affirmed as to defendant Anna H. Spears, and reversed as to defendant William J. Spears.

      Kinnane, Black & Leibrand, for appellant.

      Walter S. Wixson, for appellees.
    For former opinion, see 209 Mich. 1.
   On Rehearing.

Pee Curiam.

Further consideration of this case, following a re-argument, convinces the court that the opinion as filed should be modified in two particulars. A perusal of that opinion shows that the writer indicated that there were two questions for determination : First, whether the court was in error in holding that recovery under the first count was barred by reason of the adjudication in the case of Spears v. Black, 190 Mich. 693; and, second, whether the court was in error in holding that recovery under the second and third counts was barred by the statute of limitations.

In the opinion filed the court proceeds to the discussion of the second question and holds that the statute of limitations is not a bar to recovery under these counts, but (apparently through inadvertence) failed to determine whether the court erred in directing a verdict for defendants under the first count. We conclude that the court properly directed a verdict for defendants under the first count because of the fact that the seizure was made under a valid writ of attachment, as indicated in the opinion in Spears v. Black, supra.

In defendants’ brief upon rehearing and in oral argument it is strenuously urged that at all events the action of the court in directing a verdict in favor of defendant Anna H. Spears should be affirmed. A re-examination of the record convinces us that this should be done. The case of Spears v. Black, supra, which is the foundation for the case at bar, was brought by William J. Spears in his own name as assignee of his wife for rent due. This, record is entirely barren of any evidence indicating that defendant Anna H. Spears participated in any way in the alleged oppressive acts of which complaint is made.

We find no occasion to disturb our former opinion upon the question of the statute of limitations. The judgment of the circuit court will stand affirmed as to defendant Anna H. Spears, who will recover her costs against plaintiff Black, and will be reversed as to defendant William J. Spears, who will become liable for costs to plaintiff Black. A new trial is ordered against defendant William J. Spears.

Brooke and Clark, JJ„ took no part in this decision.


author: Brooke, J. Sharpe, J.

text:
    GIBSON v. GIBSON.
    1. Appeal and Error — Wills—Construction—Appeal from Probate Court.
    The question as to whether a beneficiary under a will takes an estate in fee in that portion of the estate given and devised to her, or whether she takes a life estate only, before the Supreme Court on appeal from the decree of the court below on a bill for the construction of the will, fully argued and briefed, will be determined, where no good purpose would be served by delaying a determination until it could be brought up on appeal from an order of the probate court making a final distribution of the estate.
    2. Wills — Construction—Estate Devised — Test.
    In determining whether a will devises an estate in fee or only a life estate, the test to be applied is whether it gives an unlimited or only a modified power of disposition in the first taker.

      For authorities passing on the question of effect of subsequent gift over after ahsolute devise, are collated in a note in 5 L. R. A. (N. S.) 323.

      3. Same — Granting Words — Estate in Pee.
    The granting words of the will, “I give, devise, and bequeath to R.,” held, entirely adequate to convey an estate in fee.
    4. Same — Construction — Estate Devised — Intent — Estate in Pee.
    The granting words of a will, “I give, devise and bequeath to R.,” certain real and personal property, followed by the language “the said gifts, bequests, and devises to be by the said R. used, enjoyed, and appropriated during her natural lifetime, with full and complete powers of alienation without limitation or restriction,” devised an estate in fee.
    5. Same — Estate Devised — Limitation on Pee.
    Where an estate in fee is devised, a subsequent provision attempting to control the disposition of such uncertain portion of the devised estate as might remain after the death of the original devisee is void for repugnance to the devise in fee.
    Clark and Sharpe, JJ., dissenting.
    Appeal from Montcalm; Davis (Frank D. M.), J.
    Submitted October 5, 1920.
    (Docket No. 17.)
    Decided February 3, 1921.
    Bill by Frank S. Gibson and William H. Browne, executors of the last will of William D. Johnson, deceased, against Charles J. Gibson, William H. Browne and Laura S. Richardson for a construction of said will. From a decree for plaintiffs, defendant Richardson appeals.
    Reversed, and decree entered.

      E. J. Bowman and Hawley & Eldred, for plaintiffs.

      Nichols & Locke, Jewell & Smith and C. Sophus Johnson, for appellant.
    The bill in this case was filed to obtain a construction of the last will and testament of William D. Johnson, who died at his home in Greenville, Michigan, on November 19, 1914. Under the terms of the instrument, Frank S. Gibson and William H. Browne, plaintiffs herein, were appointed executors, and authorized to carry out, among others, the following two provisions :

      “Second: I give, devise and bequeath to Laura S. Richardson of the said city of Greenville, if she shall survive me, the proceeds of two certain life insurance policies, the same being policies numbered 89071 and 359951 of the Mutual Life Insurance Company of New York, also 695 shares of the common stock of the Skinner-Steenman Company, a Michigan corporation, located at the said city of Greenville, also my residence and homestead in said city, together with the household^ furniture and furnishings therein contained, including the piano, said real estate being described as follows, to wit: The south two-thirds of lot number twenty-nine of Greens plat of the village (now city) of Greenville, Montcalm county, Michigan. The said gifts, bequests and devises to be by the said Laura S. Richardson used, enjoyed and appropriated during her natural lifetime, with full and complete powers of alienation without limitation or restriction, and upon the decease of the said Laura S. Richardson without issue, after the payment of her just debts and funeral expenses, whatever of said property or estate herein bequeathed and devised as shall remain unused by the said Laura S. Richardson shall revert back to my estate and be distributed in accordance with the provisions of the paragraph of this will disposing of the residue and remainder of my estate, provided nevertheless that in the event the said Laura S. Richardson dies leaving issue, then in such event said issue have and hold forever the said unused remainder.

      “Ninth — I give, devise and bequeath, all the rest, residue and remainder of my estate, of every name, nature and kind whatsoever, wheresoever the same may be situated, to William H. Browne, Charles J. Gibson and Laura S. Richardson, to be divided between them as follows, to wit: The one-half thereof to the said William H. Browne, one-fourth to the said Charles J. Gibson, and one-fourth to the said Laura S. Richardson to have and to hold the same forever, excepting however that the share of the said Laura S. Richardson is subject to the same conditions and limitations as are provided in paragraph second of this will, and said residue and remainder unused by the said Laura S. Richardson at her decease to go first to her issue to have and to hold forever; second, if she should die without issue, then said unused remainder shall be divided pro rata between the surviving residuary legatees, the above and foregoing residuary devise and Bequest is conditioned upon the said residuary legatees surviving me, and in the event of the decease of any of the said residuary legatees before the decease o£ myself then in that event the share of such .legatee shall go to the said William H. Browne, if living, if not then to the surviving children of the said William II. Browne.”
    On December 29,1914, the will was admitted to probate in the probate court for the county of Montcalm, and the plaintiffs qualified as executors. The inventory showed that the appraised value of the real and personal property within the State of Michigan amounted to $81,151.67, and that there was in addition real estate of the value of $5,000 located in Denver, Colorado, and real estate of the approximate value of $20,000 in the city of Chicago.
    Petition having been filed for a partial distribution, an order was issued out of the probate court on March 31, 1915, authorizing the payment to the various beneficiaries entitled to the same of $40,000 of the estate. About three years later, and on the 28th day of September, 1918 (during which time plaintiffs had continued to manage the estate), the executors filed their so-called final account. It appears from the bill in this case that at that time there was left in the estate about $3,500 in cash and the properties in Denver and Chicago, and that the only specific bequest which had not been executed was a $500 trust fund, which would have to be taken from the remaining money.
    Before the date fixed by the probate judge for the hearing, however, a dispute arose between one of the executors, Mr. Browne (also a residuary legatee), and Charles J. Gibson and Laura S. Richardson over the construction of the will, the material disagreement involved relating to the character of the estate bequeathed and devised to the last-mentioned distributee under the paragraphs quoted above. Accordingly, the bill of complaint in this case was filed by the executors in the. circuit court for the county of Montcalm, in chancery. The bill states that it was not the testator’s intention to give Miss Richardson the fee in the property willed to her, but merely to vest in her a life estate with the right to the use of the property and the power of alienation annexed. There was a prayer for a construction of the will and that a trustee be appointed, if it was deemed advisable, to carry out the terms of the will, with the power to take over the remaining property and hold it for the heirs subject to the rights of Laura S. Richardson. On the day the bill was filed an order was entered by the circuit judge staying all further proceedings in the probate court.
    Defendant Richardson answered, admitting that she has never had a child and that she is not married, but denying that her interest in the property was merely a life estate. She claimed that she was entitled to “the sole and absolute title in and to all the real estate and personal property devised and bequeathed to her, either specifically or as a residuary devisee or legatee under the will,” and moved that the bill be dismissed for want of jurisdiction and because the matter was res adjudicxda. There was also attached to the answer a motion to rescind and set aside the order staying the proceedings in .the probate court. Both of these motions were denied.

      The answer of defendants Gibson and Browne was in the nature of a cross-bill, and admitted the allegations in the bill of complaint and that plaintiffs were entitled to the relief prayed. In the cross-bill these defendants allege certain facts as against defendant Laura S. Richardson and prayed certain affirmative relief in respect thereto.
    Upon the hearing of the cause on the merits, the court, after consideration of the evidence (which consisted mainly of records and documents from the probate court of Montcalm county), filed on January 31, 1920, a decree construing the will whereby the rights of the respective parties were determined as follows:

      “(a) The said defendant Laura S. Richardson is not the owner in fee simple or absolutely of any of the property mentioned and described in the second paragraph of said will or in her share of the residue as devised or bequeathed in the ninth paragraph of said last will and testament of said deceased, but under the terms of the said last will and testament and in the provisions of the second and ninth paragraphs thereof particularly, the said defendant Laura S. Richardson is entitled to and holds only a life estate in each and all of the property whether real or personal,_ mentioned in said second and ninth paragraphs of said last will and testament,.- with a vested remainder in fee over to her issue, if any, and, if she should die without issue, then such remainder as should be unused by her shall be divided pro rata between the said defendants William H. Browne and Charles J. Gibson and their heirs and assigns; that under the termst of said last will and testament the said defendant Laura S. Richardson, when said estate is finally closed and is ready for final distribution, will be entitled to the possession of the property or portion thereof devised or bequeathed to her in and by the said second and ninth paragraphs of said last will andi testament and the_ income and profits, thereof during her natural lifetime with the right and power also to sell and dispose of the same and.with the right also to appropriate the corpus or body of said estate to her own benefit, use, comfort and enjoyment during her natural lifetime, but that in the exercise of her said right and authority to have possession of said property and to sell and dispose of the same and to convert the same to her own use, benefit and enjoyment, it is and shall be her duty to act in good faith in so> doing toward the remainder-man or remaindermen mentioned in said last will and testament; and that she has not the right or authority to waste, dissipate or squander said estate nor the right to give away said property or any part thereof, either by gift inter vivos or by testamentary disposition, nor in any other manner to defeat the purpose and intention of said testator, in respect to said remainderman or remaindermen mentioned in said will; and that if she exceeds the bonds of good faith in either or any of said matters, she shall be subject to being deprived of such possession and power of disposition or shall be required to give security for the preservation of the said estate; that said defendants William H. Browne and Charles J. Gibson are and shall be at liberty at any time to make application for an order depriving said defendant Laura S. Richardson of the possession of said property, the life use of which is devised and bequeathed to her by and under the terms of said last will and testament and of the power of selling and disposing thereof or requiring her to give security for the preservation of said estate; and that whether such relief shall be or shall not be granted will depend upon the showing that is made therefor upon the hearing of said application according to the course and practice of this court.

      “(b) It is hereby ordered, adjudged and decreed that the provisions in said will as follows:
    “ ‘And I hereby authorize and empower my said executors and the survivors of them, to sell and convey any part of said estate, except such part as has been hereinbefore specifically devised or bequeathed, either at public or private sale, as fully and completely as I might or could.’
    “shall not be construed to be limited, interfered with or modified in any way by the terms of this decree.”
   Brooke, J.

(after stating the facts). It is the first contention of the appellant that the bill of complaint should have been dismissed in the court below upon the ground that there is an adequate remedy at law and that the probate court had full and complete juris.diction; and upon the further ground that the question involved is res adjudieata by reason of the order of the probate court (from which no appeal was taken) making a partial distribution of the estate. Inasmuch as the question is now before this court on appeal from a decree duly entered in the court below and as counsel for both parties have fully argued and briefed the controlling question — that of the construction of the language of the will — we are of the opinion that no good purpose would be served by delaying a determination of the basic question until it could be brought here on appeal from an order of the probate court making a. final distribution of the estate.

The simple question involved is whether the language used in the will here under consideration brings it within that class of cases where the legatee and devisee has been held to take a fee or within that class where the legatee and devisee takes a life estate only. In the first class will be found the following: Jones v. Jones, 25 Mich. 401; Smith v. Smith, 71 Mich. 633; Dills v. LaTour, 136 Mich. 243; Moran v. Moran, 143 Mich. 322 (5 L. R. A. [N. S.] 323, 114 Am. St. Rep. 648); Killefer v. Bassett, 146 Mich. 1; Turnbull v. Johnson, 153 Mich. 228; White v. Railway Co., 190 Mich. 1; Crisp v. Anderson, 204 Mich. 35; In re Davis’ Estate, 205 Mich. 129. And in the second class we find Glover v. Reid, 80 Mich. 228; Gadd v. Stoner, 113 Mich. 689; Jones v. Deming, 91 Mich. 481; Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584); Hull v. Hull, 122 Mich. 338; In re Mallary’s Estate, 127 Mich. 119; Heilwig v. Nybeck, 179 Mich. 292; Farlin v. Sanborn, 161 Mich. 615 (137 Am. St. Rep. 525); Laberteaux v. Gale, 196 Mich. 150; Drier v. Gracey, 203 Mich. 399; Woolfitt v. Preston, 203 Mich. 502; Clark v. Mack, 161 Mich. 545; In re Moor’s Estate, 163 Mich. 353; Bateman v. Case, 170 Mich. 617; Sellick v. Sellick, 207 Mich. 194.

It was said in effect in Gadd v. Stoner and Killefer v. Bassett, supra, that the test to be applied is,

“Does the will give an unlimited or only a modified power of disposition in the first taker? If the former, it is treated as a conveyance in fee; if the latter, a life estate.”

No service of value to the profession will be performed by, a review of the cases cited. It seems to us sufficient to say that, applying the test just mentioned, the language of this will conveys to Laura Richardson an estate coupled with an unlimited power of disposition. The granting words of the will — “I give, devise and bequeath to Laura S. Richardson” — are entirely adequate to convey an estate in fee. They are qualified, if at all, by the following language:

“The said gifts, bequests and devises to be by the said Laura S. Richardson used, enjoyed and appropriated during her natural lifetime, with full and complete powers of alienation without limitation or restriction.”

Giving the natural meaning to the words used in this excerpt from the will, it is seen that Laura S. Richardson may not only use and enjoy, but that she may appropriate the devised portion of the estate and that she had complete power of alienation “without limitation or restriction.” Under all the authorities, we are disposed to the view that this language cannot be construed as limiting the estate in her theretofore created.

The subsequent portion of the will is an attempt “after making an absolute devise with full power of alienation and consumption * * * to control the disposition of such uncertain portion of the devised estate as might remain after the death of the original devisee” (In re Moor’s Estate, 163 Mich. 353), which we have held many times may not be done. As was said in Killefer v. Bassett, supra, quoting from Law v. Douglass, 107 Iowa, 608 (78 N. W. 212):

“There are some things, however, which even a testator may not do, and which the courts are powerless to aid him in doing, however clearly his intentions may be expressed. He cannot create a fee with absolute power of disposal, and at the same time clog that power of alienation by limitations over to another. In other words, he cannot include provisions which are absolutely inconsistent in terms and meaning and have all given force and effect.”

We conclude that the decree of the court below must be reversed and one here entered by the terms of which Laura S. Richardson will take an estate in fee in that portion of the estate given and devised to her in the will.

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

Sharpe, J.

I am unable to concur. I think this case is controlled by Robinson v. Finch, 116 Mich. 182, and Cary v. Toles, 210 Mich. 30.

Clark, J., concurred with Sharpe, J.