text:
    PILLEN v. ERICKSON.
    Sunday Contract — Limitation oe Actions — Arrest oe Statute.
    Defendant, who was indebted to plaintiff, agreed on Sunday to furnish a laborer on Monday to help the plaintiff’s son thresh, on plaintiff’s aocount, which he did, and the son paid plaintiff a sum, which the latter placed to defendant’s credit. Held, that the transaction Monday did not show the elements of a contract without relying on the Sunday transaction, which was illegal and void, and hence was not sufficient to arrest the running of the statute of limitations upon plaintiff’s claim.
    Error to Muskegon; Russell, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.

      Assumpsit by Lorenzo D. Pillen against Peter Erickson for goods sold and delivered and labor performed. From a judgment for plaintiff, defendant brings error.'
    Reversed.

      Sessions & Sutherland, for appellant.

      Arthur Jones, for appellee.
   Hooker, J.

Lorenzo Pillen, the plaintiff, sued in assumpsit for four items, amounting to $55. He recovered for all except the last item of $5, which was for money loaned upon a Sunday, in 1896. The court did not permit a recovery for that. The defendant has appealed.

It is conceded that the other items are barred by the statute of limitations, unless saved by an alleged payment of. one dollar under the following circumstances, testified to by George Pillen, plaintiff’s son: George Pillen, with the consent of the plaintiff, asked the defendant to furnish him a man to assist in threshing, upon his father’s account, which defendant promised to do, and the next day, being Monday, a man in his employ did assist George Pillen, without further arrangement, for which George Pillen paid his father subsequently. It is claimed that the promise to furnish such labor, being made on Sunday, was void, and that, although it was afterwards furnished, the defendant was not bound to permit its application upon plaintiff’s claim. We think the defendant’s contention sustained by the authorities. There was nothing in the transaction of Monday to authorize George Pillen to pay his father for labor furnished by the defendant. It is only by relation to the Sunday promise that the defendant can be bound to permit it. The" essential element of this alleged contract is wanting, by reason of the agreement upon which it rests being a Sunday transaction. The case is ruled by Aspell v. Hosbein, 98 Mich. 120 (57 N. W. 27), and cases cited; Tucker v. Mowrey, 12 Mich. 378; Winfield v. Dodge, 45 Mich. 355 (7 N. W. 906, 40 Am. Rep. 476).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    DARLING v. RUTHERFORD.
    Novation — Copartnership—Succession.
    A novation is not effected where a new firm agrees to pay the debts of an old firm, which it succeeds, except as to those creditors who accept the new firm as debtor in lieu of the old.
    Error to Newaygo; Palmer, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.

      Assumpsit by James H. Darling and Frank H. Smith, copartners as Darling & Smith, against Robert W. Rutherford and Ed. Misner, copartners as Rutherford & Misner, for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      A. F. Tibbitts, for appellants.

      W. D. Leonardson, for appellees.
   Hooker, J.

Darling and Smith, plaintiffs, recovered a judgment against Rutherford and Ed. Misner, defendants, in assumpsit. The case is here upon error, at the instance of the defendants. It seems to be conceded that the case hinges upon an item in the plaintiffs’ account for goods sent to Plowman & Tibbitts, the last item of which was furnished two years before the defendants began business, at a time when Rutherford and one Eugene Misner were doing business as copartners. At that time goods were furnished to Plowman & Tibbitts by the plaintiffs, upon request of the defendants, but the parties disagree as to the terms upon which they were furnished; plaintiffs claiming that they refused to give credit to Plowman & Tibbitts, and that it was agreed that the credit should be given to Rutherford & Misner, while defendants assert that the older firm of Rutherford & Misner agreed to pay for them only when they should receive payment from Plowman & Tibbitts. About two years after the last item was furnished, Ed. Misner bought the interest of Eugene Misner in the copartnership business, and entered into copartnership with Rutherford, and the new firm thenceforth conducted the business, and had dealings with the plaintiffs. Apparently there should be a balance in favor of the defendants, unless the Plowman & Tibbitts item is a proper charge against the new firm. The court left the question to the jury, who found a verdict for the plaintiffs.

It is beyond dispute that Ed. Misner was not a party to the original contract, and that the only theory upon which he can be held liable is that he assumed the liability of Eugene Misner for a valid consideration. But, even if he did so, he did not thereby become liable to these plaintiffs, who were in no way parties to that transaction. There is not a suspicion of evidence tending to show novation to be found in the record. See T. Pars. Partn. § 337, citing Ex parte Williams, Buck, 13, and other cases. A similar question was discussed by Chief Justice Campbell in Hayes v. Knox, 41 Mich. 531 (2 N. W. 670). He said: “The new firm were strangers to the old, and could not become debtors to Knox without his acceptance of the subrogation.” The same learned jurist used similar language in the case of Ayres v. Gallup, 44 Mich. 14 (5 N. W. 1072). He said:

“But the present plaintiffs are not the persons to whom Gallup paid his money, and the fact that they purchased the partnership assets, and became responsible to the outgoing partners, does not bring them into contract relations with the creditors of that firm, and no dealings were ever had whereby Gallup accepted the new firm as his debtor in lieu of the old.”

In this view of the case, it was error for the court to instruct the jury that, “in order to find for the defendants, they must find that the new firm did not accept the obligations of the old firm.” Something more than an agreement between the old and the new firms was necessary to create a liability in favor of plaintiffs.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    HAMILTON v. PARK & McKAY CO.
    1. Patent Rights — Rejection of Application — Contract for Manufacture — Want of Subject-Matter.
    A contract which provided for the payment of yearly royalties to an inventor for the exclusive right to manufacture a device for which a patent was expected to be issued was void for want of subject-matter, where, at the time of its execution, the application for a patent had been rejected by the officers of the patent department because third persons had previously patented the same device.

      2. Same — Evidence.
    In an action for royalties under a contract for the sale of patent rights under application No. 443,930, it was proper to exclude a patent based on application No. 468,971, as not within the pleadings.
    Error to Wayne; Carpenter, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.

      Assumpsit by John H. Hamilton against the Park & McKay Company to recover royalties under a contract for the manufacture and sale of a certain device. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Bowen, Douglas & Whiting, for appellant.

      Alex. D. Fowler, for appellee.
   Moore, J.

This case has been here once before, and is reported in 112 Mich. 138 (70 N. W. 436). A reference to the case as reported will aid in the understanding of the case as now presented. A fuller statement of the condition of the pleadings is necessary to a proper understanding of the case. It was averred in the declaration that the water-closet was modeled and ready to be put in the market October 31, 1892, and that defendant has put it in use and sold it in the market from that time up to and including the commencement of the suit. A demand was made for a bill of particulars. The bill of particulars was furnished. It stated, “This action is brought to recover the royalties provided for by the contract mentioned in the plaintiff’s declaration, at the rate of one thousand dollars (SI,000) per year from and after the 31st day of October, 1892.” A notice was given under the plea of the general issue that plaintiff was not the inventor of the water-closet described in his declaration, and did not obtain a patent for it, and did not have the lawful right to give- the defendant the exclusive right to make and sell it. After the testimony was all in, upon motion of counsel for defendant the circuit judge directed a verdict for the defendant. In doing so he used the following language:

“It appears from the testimony that in February, 1893, the parties to this suit entered into a written contract whereby the defendant became the sole and exclusive licensee to manufacture and sell under a certain invention which is described in that agreement as follows: ‘A certain new and useful improved syphon jet water-closet, for which he [John H. Hamilton] has filed an application for letters patent in the United States, serial No. 443,930.’ That is the only description of the invention. At least, there is nothing in that contract which is. a better description than that, or nothing inconsistent with it. Now, it appears that, at the time this contract was made, there had not only been an application of the number and character described, but that application had been considered by the officers of the patent department, and a decision had been made upon that application rejecting both claims that Mr. Hamilton made under it. That decision had the force of an adjudication, just as binding as though it had been decided by a court. * * •' * Subsequently, under that application, Mr. Hamilton did obtain a patent, not for the claims, or any part of the claims, made in the original application, but for minor matters, and a matter which it seems to me was not contemplated by the parties at the time this contract was entered into. A few days after that contract was made, Mr, Hamilton filed another application, and on that application he obtained another patent. I think he got that patent some time in the year 1895. * * *
“It seems to me, from the argument, and I so decide, that that second patent, issued some time in 1895, did not cover the invention described in the contract, and in the application which was therein described. So, then, this is the necessary result: That, at the time this contract was made, there was an adjudication in the patent office against the plaintiff’s ownership in his invention. That adjudication stands today. Nothing has happened during the entire time since that contract was made to vary or in any way change the effect of that adjudication. In other words, there has been, it seems to me, what amounts to a judgment that the plaintiff was not, and never has been during that time, the owner of the invention described in this contract. Now, the question is, What is the rule of law which governs facts of this character ? It is a well-established principle of the common law that when a contract is made, for instance, to sell a piece of property which is supposed to be in existence, when as a matter of fact that property is not in existence, that contract has no binding force. * * * It seems to me that that principle of law is decisive of this controversy. The principal thing bargained for, as I construe this contract, was not in existence then. The facts which are conceded and brought out by Jhe record in this case show that it was not in existence, and it never has been in existence since. Counsel have urged that by virtue of this contract the defendant did get the right to manufacture under the patent covering a small detail. Perhaps it did, but that is not the thing which, according to the contract, and according to what seems to me to be the only construction that can be given to it, was what was intended it was going to get. That was not described by plaintiff in his claims at the-time this contract was made, and was something entirely different from what was described, and from what the parties had in mind. This principle to which I have referred has been held applicable where parties were seeking to buy a leasehold, when it was supposed by both parties it was a leasehold of eight years, when as a matter of fact it turns out to be a leasehold of six years. I am not sure that that was a proper application of the principle, but it is clear to me that it would be applicable to a case of this character, where the contract refers to the application, and the application refers to certain claims, and there has been an adjudication already, which has stood from that time to the present, deciding adversely t» the plaintiff’s ownership in that invention. So, as I said before, it seems to me very clear that that principle is applicable, — that the defendant got nothing, and that the contract is therefore void.”

Counsel say the court erred in directing a verdict, and that it overlooked what this court decided when the case was here before. They urge that, even if there was no patent issued, the defendant profited by the ideas of Mr. Hamilton; that the latter was deprived of the right to make use of them for himself, or for any person other than defendant; and that there was consideration enough for the promise made in the contract to pay royalties, — citing, also, in addition to the case of Hamilton v. Park & McKay Co., 112 Mich. 138 (70 N. W. 436), the cases of Marston v. Swett, 66 N. Y. 212 (23 Am. Rep. 43); Hyatt v. Manufacturing Co., 106 N. Y. 651 (12 N. E. 705); Burton v. Stock-Car Co., 171 Mass. 439 (50 N. E. 1029); Bezer v. Signal Co., 48 N. Y. Supp. 203; and other cases.

The case of Hamilton v. Park & McKay Co., supra, presented a very different record from the one made by this record, and was decided by the record as then presented. It then appeared that a patent was issued later upon the application mentioned in the contract, and that defendant had manufactured closets under the contract, while this record discloses that neither of these conditions existed. Without stopping to analyze the other cases cited by counsel, it may be said of them that, upon examination, they are very readily distinguished from the case under discussion.

It is apparent from a reading of the contract made February 21, 1893, that Mr. Hamilton represented he was the inventor and sole owner of a new and useful water-closet, for which he had made an application for a patent, which application was numbered 443,930, and that defendant desired to acquire the right to manufacture and sell that particular water-closet, and was willing to pay a royalty upon all of said closets it should manufacture. It was to acquire this right that it made the contract. In his application for a patent, Mr. Hamilton made two claims. The first of these claims was rejected by the patent office because, some time prior to the application, a patent had been issued for the same thing to Col. Waring. The second claim was rejected because a patent had been before then issued to one Howell. We think it very clear, then, that not only was defendant not getting the right to make and sell a closet of which the plaintiff was the owner and inventor, and for which a patent should afterwards be issued, but it was getting no right to manufacture any closet without being subjected to the risk of being prosecuted by the owners of prior patents. The defendant was not getting what it expected to get, and what the contract provided it should, in order to create an obligation upon its part. See Hargraves v. Machinery Co., 19 R. I. 426 (34 Atl. 738).

It is undoubtedly true that the inventor of a new and useful improvement is invested by law with an inchoate right to its exclusive use, which right he may make absolute by afterwards obtaining a patent upon it. Gayler v. Wilder, 10 How. 477. We think it equally true that he gets no such right, and can confer none, where he is not the inventor of the article, and for that reason his application is rejected by the patent office. See Kirk v. U. S., 163 U. S. 49 (16 Sup. Ct. 911). This is not a case where a patent was issued which was apparently valid, under which patent both parties acted, which patent was after-wards made invalid by reason of a prior outstanding patent, in which case it has been held that if, by reason of said prior patent, the licensee has been deprived of the exclusive use to manufacture and sell for which he has contracted,- he may defend for that reason in an action for royalties. Angier v. Eaton, Cole & Burnham Co., 98 Pa. St. 594; Edison, General Electric Co. v. Thackara Manfg. Co., 167 Pa. St. 530 (31 Atl. 856); Marston v. Swett, 82 N. Y. 526. This is a case where no patent in fact was issued, because prior patents bad been issued upon the same claims. See Harlow v. Putman, 124 Mass. 553.

It is said that the court erred in excluding patent No. 534,689, and the application upon which it was issued. This application was filed April 4, 1893, and was serial No. 468,971. We think the court was right in excluding this testimony, for two reasons: First, because this patent was not based upon the application mentioned in the contract; and, second, because it was not admissible under the pleadings.

A careful consideration of the record leads us to the conclusion that the circuit judge made a proper disposition of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    CONRAD v. MANNING’S ESTATE.
    Gifts — Promissory Note — Validity—Consideration.
    Where a father gives a note to his son as the share of the latter in the father’s estate, and after the death of the father the son negotiates it to a person who knows the facts, the latter cannot enforce the note against the estate of the father, the note being but a promise to make a gift in the future, and being without consideration.
    Error to Calhoun; Smith, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.
    William E. Conrad and William Conrad, copartners as Conrad Bros., presented a claim against the estate of Eranklin M. Manning, deceased, upon a promissory note. The claim was allowed by the commissioners, and Sarah E. Manning and Belle Constantine, legatees under the will of decedent, appealed to the circuit court. From a judgment for claimants, contestants bring error.
    Reversed.

      E. R. Loud and A. M. Culver, for appellant Manning.

      S. M. Constantine and W. G. Howard, for appellant Constantine.

      Herbert E. Winsor (Poiuers & Stine, of counsel), for appellees.
   Moore, J.

Franklin M. Manning died in March, 1897, leaving a widow, Sarah E. Manning, a daughter, Belle Constantine, a son, William H. Manning, and an estate, as shown by the inventory and appraisal, of the value of about $10,000. The claimants presented a note as a claim against his estate, reading as follows:

“$8,500. Albion, Michigan, November 3, 1896.
‘ ‘ On or before one year after date I promise to pay to the order of William H. Manning, of Albion, Michigan, eighty-five hundred dollars, at Albion, Michigan, value received, with interest at eight per cent, per annum.
“F. M. Manning.”

The commissioners on claims allowed the claim in full. An appeal was taken to the circuit court, where a jury found a verdict in favor of claimants. The son, William H. Manning, is the administrator of the estate. He declined to appeal. The widow and daughter have brought the case here by writ of error.

The claimants are .wholesale tanners and curriers at Milwaukee. William H. Manning is a dealer in harnesses and saddlery at Albion. It is their claim that on October 35, 1897, Mr. Manning was indebted to Conrad Bros, in a large amount, and desired further credit; that his financial standing was not such as to justify giving him further credit, while the claimants had learned the financial standing of Franklin M. Manning was good. They contend that on October 35, 1897, they bought the note in controversy of William H. Manning; that a short time afterwards it was sent to them, and was received by them on the 1st day of November; that the consideration they paid for the note was the cancellation of the debt of William H. Manning, the shipment of a large quantity of goods, and the payment to him of about $3,000 in cash. They insist they are bona fide holders of the note. It is the claim of the widow and daughter that Franklin M. Manning did not execute the note, that claimants did not purchase it, and that they are not bona fide holders.

There are a large number of assignments of error, but as we think, under the case as made by the claimants, they are not entitled to enforce the claim, we shall not discuss them. As before stated, Franklin M. Manning died in March, 1897. The note is dated November 3, 1896. It was due in one year after date. The claimants say it was delivered to them November 1,1897. Among other things testified to by Mr. Conrad, he said when he was negotiating for the note he was1 informed by William H. Manning his father had an estate, and had given his stepmother and sister part of their share, and that he gave him this note for his share. He also testified that he knew at the time this conversation occurred that Franklin M. Manning was dead. It is very clear that the Conrads knew fully what was claimed by William H. Manning as to how he became possessed of this note, and that any defense which could be made against it in his hands could be mad8 against it after this knowledge came to them. See Goodrich v. McDonald, 77 Mich. 486 (43 N. W. 1019); Hunt v. Rumsey, 83 Mich. 136 (47 N. W. 105, 9 L. R. A. 674); French v. Paving Co., 100 Mich. 443 (59 N. W. 166). It is pertinent, then, to inquire what defense, if any, could have been made had William H. Manning presented the note against the estate of his father. The rule in such a case has been stated as follows:

“ A promissory note is but the promise to pay money in the future, and, if made and delivered purely as a gift, is without consideration, and cannot be enforced at law or equity, either against the maker or against his estate after his death, except in the hands of a bona fide holder for value, without notice of the want of consideration. Such a note is but a promise to make a gift in the future, and the gift is not completed till the note is paid. -It can be revoked any time before payment, and death will revoke it.” 8 Am. & Eng. Enc. Law ( 1st Ed,), 1320, and cases therein cited.

See, also, Copp v. Sawyer, 6 N. H. 386; Raymond v. Sellick, 10 Conn. 180; Holley v. Adams, 16 Vt. 206 (12 Am. Dec. 508); Parish v. Stone, 14 Pick. 203 (25 Am. Dec. 378); Fink v. Cox, 18 Johns. 145 (9 Am. Dec. 191); Phelps v. Phelps, 28 Barb. 121; Arnold v. Franklin, 3 Ill. App. 141; Pope v. Dodson, 58 Ill. 360; Blanchard v. Williamson, 70 Ill. 647; Williams v. Forbes, 114 Ill. 167 (28 N. E. 163); Smith v. Smith’s Adm’r, 30 N. J. Eq. 564; Voorhees v. Combs, 33 N. J. Law, 191; Johnston v. Griest, 85 Ind. 503.

Inasmuch as, from their own showing, claimants are not entitled to maintain the action, a judgment will be entered in this court in favor of defendants, with costs of both courts.

'The other Justices concurred.


author: Grant, J.

text:
    GREGIVERE v. CHALKER.
    Sheriffs — -Action on Bond — Failure to Return Execution.

       In a suit upon a sheriff’s bond for failure to return execution, under section 890, 1 Comp. Laws 1897, the return was duly made by the officer, but the justice failed to enter that fact upon his docket. Upon the trial the justice produced the execution, which had been in his possession since its return. Held, that the failure of the justice to minute the return upon his docket did not bind the officer, and it was competent to show in defense a return duly made.

      Error to Crawford; Sharpe, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.

      Assumpsit by Lewis Gregivere against William S. Ohalker and others. From a judgment for defendants, plaintiff brings error.
    Affirmed.
    This suit is brought against defendant Ohalker, late sheriff of Crawford county, and the other defendants as his bondsmen, to recover damages for the failure to return an execution in accordance with section 890, 1 Oomp. Laws 1897. Plaintiff introduced as a witness the justice of the peace, proved his docket and the entries thereon, and introduced it in evidence. The last entry upon the docket was, “Execution issued May 11, 1898, and delivered to Wm. S. Ohalker, sheriff of said county of Crawford, Michigan.” The justice then testified, upon direct examination, that the execution was never returned to him. • On cross-examination he testified that, after the time for the return of the execution had expired, he found a paper in one of his drawers which looked like the execution, but that he never opened it. At the request of counsel for the defendants, the justice retired to his office, and produced the paper, and identified it as the execution issued in the case, with the return of the officer indorsed thereon, showing that it was returned within the time required by law. The return was nulla bona. Defendant Ohalker was then permitted to testify that he made diligent search to find property belonging to the defendant, but was unable to do so, and that he made due return of the execution. Judgment and verdict were for the defendants;

      Joseph Patterson, for appellant.

      George'L. Alexander, for appellees.

       Head-note by Grant, J.

   Grant, J.

(after stating the facts). Appellant’s-counsel contends that the proffered testimony impeached or contradicted the justice’s docket, and was therefore inadmissible, under Stolte, Dangel & Foss Co. v. Cochran, 111 Mich. 193 (69 N. W. 347), and authorities there cited. The cases referred to, as well as others, are cases where it was sought to contradict the record made by the justice, or to supply the statutory requirements to his jurisdiction. They do not apply to a suit brought against a sheriff under the above statute, where he has performed his duty. This case is rather within the rule of Grand Rapids Chair Co. v. Runnels, 77 Mich. 104, 117 (43 N. W. 1006), where it was contended that the execution was void because the justice’s record did not contain an entry that the justice ever issued it, and the court held that this failure did not vitiate an execution actually and properly issued. The law does not punish an officer for the neglect of a justice. The execution being found in the justice’s office, with a proper return thereon, made within the prescribed time, renders it unnecessary to determine whether the officer could testify to what he did under the execution.

Judgment affirmed.

The other Justices concurred.


text:
    MILLER v. DUNHAM.
    Fraudulent Conveyances — Bill to Set Aside — Evidence.

      The question in this case was one entirely of fact, and the decree of the court below affirmed.
    Appeal from Clinton; Daboll, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.
    Bill by Theodore Miller and William H. Fernwood against Paul E. Dunham, Alice A. Dunham, William L. B. Dunham, and others, in aid of execution. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Richard Price, for complainants.

      Russell G. Ostrander, for defendants.

       Head-note by Grant, J.

   Grant, J.

On December 11, 1896, complainants recovered a judgment against the defendant Paul E. Dun-ham for $953.90, being for merchandise sold by them to said Dunham between September 1 and November 27, 1888, and interest thereon. An execution was issued to the sheriff on May 25, 1898, and levy made upon two parcels of farming land, containing 40 acres each. One of these pieces was deeded by Paul to his wife, defendant Alice, on. August 23, 1888, and the deed was recorded November 27th of the same year. On September 12, 1891, he deeded the other 40 acres to his father, W. L. B. Dunham, defendant. Subsequently the bill in this case was filed in aid of the execution, to declare that the original conveyances and others, including deeds and mortgages which have since been made, were made with the intent to defraud creditors. One of these 40 acres was, at the date of the deed, the homestead of Paul, and was occupied as such homestead for four years. In 1888, Paul was engaged in the hardware business in Lansing. He became involved, and gave a chattel mortgage to one of his creditors. Others obtained judgments against him, and levied upon the stock. He finally transferred the stock to the mortgagee, who assumed and paid the judgment lienors. Ten years elapsed between the date of the first deed and the commencement of this suit, and about seven years between the date of the second deed and the commencement of suit. Defendant William L., the father of Paul, purchased the stock, and afterwards took in a partner by the name of Price, under a written contract which appears in the record. It is now urged that Paul was the real party in interest in that business. The entire business transactions of Paul and William L. and others for those years appear in the record, and the transfers of property, the considerations for which were testified to by the various witnesses.

The question is one entirely of fact. Testimony was taken in open court. The learned circuit judge found that there was no fraud on the part of the defendants; that one 40 was a homestead at the time; and dismissed complainants’ bill. It would serve no good purpose to give a résumé of the testimony, which is very lengthy, and the reasons for sustaining the decree. We are of the opinion that the circuit judge reached the correct conclusion.

The decree is therefore affirmed, with costs.

The other Justices concurred.


text:
    CLARK v. NEEDHAM.
    Contracts — Restraint of Trade — Validity.

       One manufacturer agreed with another engaged in the same business, in consideration of $1,500, to cease manufacturing certain articles for one year; the latter having the privilege of renewing the contract foj; four years more. The agreement was held void as against public policy.
    Error to Wayne; Hosmer, J.
    Submitted October 5, 1900.
    Decided October 31, 1900.

      Assumpsit by George D. Clark and William L. Cowles, copartners as Clark & Cowles, against Alvin W. Need-ham, John A. Gray, and William A. Gray, copartners as the Crescent Machine Company, for rent. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Affirmed.

      Plaintiffs are copartners carrying on a manufacturing business in Connecticut. One portion of their business was the manufacture of chaplets, which consist of pieces of wúre and a plate riveted to the ends to support cores in castings. Double-headed chaplets are used in making cast-iron boilers and heavier castings. The defendants are copartners carrying on a like business in Michigan, at Detroit. Negotiations were entered into between the parties to induce plaintiffs to cease the manufacture of these chaplets. These negotiations culminated on November 4, 1897, in making the following leases, so called:
    “This agreement, entered into this 4th day of November, 1897, between Clark & Cowles, of Plainville, Connecticut, as parties of the first part, and the Empire Wire Nail Company, of Detroit, Michigan, as parties of the second part, witnesseth: The first parties, in consideration of the payments to be made to them as hereinafter stated by the second parties, do hereby lease and let to the said second parties^ their heirs, executors, and assigns, all of the machinery of every name and nature now used or belonging to the parties of the first part, in their buildings at Plainville, Conn., or elsewhere, used by them or others for the manufacture of chaplets or anchors, for the term of one year from and after date hereof, with the right in second parties to extend said time one year at a time until the expiration of five years, if the second parties give to first parties thirty days’ notice of their intention to extend the time for another year, before the expiration of the current year.
    “In consideration of the above and the agreement hereinafter set forth, the second parties agree to pay to the first parties the sum of fifteen hundred dollars per year, payable three hundred dollars in cash, and one hundred dollars each month in advance.
    “As a part consideration of the above, and the payment of the sum aforesaid by the second parties, the first parties agree and do hereby bind themselves not to manufacture or sell, or in any way engage in the manufacture or sale of, said chaplets or anchors during the continuance of this lease, except that they may sell to and manufacture for the A. A. Griffing Iron Co. of Jersey City, N. J., double-headed chaplets for their own use. * * * ”

      The balance of this agreement is immaterial.
    “This agreement, entered into this 4th day of November, 1897, between the Empire Wire Nail Co., of Detroit, Michigan, party of the first part, and Clark & Cowles, of Plainville, Conn., parties of the second part, witnesseth: The first party, in consideration of one dollar, receipt of which is hereby acknowledged, and other valuable considerations, received to its full satisfaction of the parties of the second part, does hereby lease and let to-the said second parties, their heirs, executors, and assigns, all the machinery of every name and nature now controlled by or belonging to the party of the first, part by virtue of a lease from the parties of the second' part of even date herewith, situated in the buildings of the parties of the second part at Plainville, Conn., or elsewhere, used by them or others for the manufacture of chaplets or anchors, for the term of one year from and after date hereof, with, the right in the second parties to extend said lease for one year at a time until the expiration of five years, for the purpose of manufacturing anything whatever, except chaplets or anchors; it being the intention hereof to permit the parties of the second part, their heirs, executors, or assigns, to use said machinery for any purpose, except the manufacture of said chaplets or anchors.”
    Defendants paid for one year. It is claimed by the plaintiffs that the agreement was extended for the second year. Defendants claim that it was not. Plaintiffs sued to recover for the cash payment due under the lease, and for the rent for the months of May and June, 1899. The court directed a verdict for the defendants on the ground that the agreement was void as against public policy.

      Anderson & Backham, for appellants.

      Thomas T. Beete, Jr., for appellees.

       Head-note by Grant, J.

   Grant, J.

(after stating the. facts). These two in- • struments constitute but one instrument, and must be construed together. Briefly stated, the agreement is this: Plaintiffs, in consideration of $1,500, to be paid to them annually, agreed for a period of five years not to manufacture or sell chaplets, except for only one party. Plaintiffs’ sales were not limited to the place of manufacture, but extended into other States. The plain object of the agreement was to substantially close this part of plaintiffs’ business, and to give defendants a monopoly of it. The parties evidently recognized the invalidity of such a contract, put in plain and unequivocal language, and sought to evade it by these two so-called leases. The arrangement was a bare subterfuge to evade the law. Defendants did not buy out plaintiffs’ business, machinery, and plant, or lease them for the purpose of continuing their (plaintiffs’) business. The result intended and accomplished was td close that part of plaintiffs’ business, to throw their eifiployés' out of employment, and to deprive the public of any benefit from the continuance of their business. This is not the case of Beal v. Chase, 31 Mich. 490, where Beal purchased the entire plant, business, and good will of Chase for the purpose of continuing the same business. In that case both the employes and the public derived the same benefit as though the business were to be continued by Chase.'

The learned counsel for plaintiffs concede the invalidity of those contracts which are entered into for the express purpose of, and result in, closing one’s business for the benefit of a rival business, in throwing employés out of employment, and in depriving the public of the benefit of such business. Such contracts tend to destroy competition and create monopolies, and are void. Plaintiffs, however, seek to avoid the result of this contract on the ground that it is not in general restraint of trade, but is limited as. to time and subject-matter: They concede that it is unlimited as to territory, and that the contract, if binding, covers the entire United States. They cite, among other cases, Maxim-Nordenfelt Guns & Ammunition Co. v. Nordenfelt, 52 Ch. Div. 630, and Mitchel v. Reynolds, 1 P. Wms. 181. Those cases are, in their facts, the parallel of those in Beal v. Chase; and Mitchel v. Reynolds is cited in the learned opinion of Justice Christiancy in Beal v. Chase (page 519), to which we refer for a statement and analysis of that case.

Any such contract is invalid, whether the restraint he for one year or any number of years, or is unlimited as to time. The agreement to close one part of a business is as much against the policy of the law as a contract to close the entire. The one is as reprehensible as the other. They only differ in degree. Under this contention a party might agree with one person to close one part of his manufactory, and then agree with a second person to close the other part; the two constituting his entire business.

In United States v. E. C. Knight Co., 156 U. S. 1, 16 (15 Sup. Ct. 249), it is said:

“All the authorities agree that, in order to vitiate a contract or combination, it is not essential that its result should be. a complete monopoly. It is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition. ”

See, also, Wright v. Ryder, 36 Cal. 342 (95 Am. Dec. 186); McMullen v. Hoffman, 174 U. S. 639 (19 Sup. Ct. 839).

This contract is clearly within the inhibition of the laws of the United States (26 U. S. Stat. 209, chap. 647) and the laws of this State (3 Comp. Laws 1897, § 11377). We settled the principle governing contracts of this character in Western Wooden-Ware Ass’n v. Starkey, 84 Mich. 76 (47 N. W. 604, 22 Am. St. Rep. 686), and further discussion is unnecessary.

Judgment affirmed.

The other Justices concurred.


text:
    JENKINSON v. WYSNER.
    Voluntary Associations — Actions Against Members — Res Judicata.

       1. The statute (sections 10025, 10026, 3 Comp. Laws 1897) providing for the bringing of suits against unincorporated voluntary associations does not abrogate the right to sue members of the association, under Clark v. O’Rourke, 111 Mich. 108.
    2. In a suit to recover rent due upon a lease, questions litigated in a former suit upon the same lease are res adjudicata.

    Error to St. Clair; Atkinson, J.
    Submitted October 5, 1900.
    Decided October 31, 1900.

      Assumpsit by John Jenkinson against John E. Wysner and others for rent. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.
    The defendants were members and officers of Temple Lodge, No. 121, of the Ancient Order of United Workmen, a fraternal beneficiary association, unincorporated. Plaintiff executed a lease to the sociéty of a hall for a period of five years. The society vacated the hall in October, 1898, on the ground of the failure of the plaintiff to comply with the lease. Plaintiff sued these defendants in December following for the rent for October, November, and December, and recovered a judgment, which was paid. This suit was commenced in justice’s court for the rent for the first four months of 1899. The plea and notice are the same as they were in the former suit. The •declaration sets up the former suit, and alleges that “it is res adjudicata as to the .defendants’ liability upon the performance of the covenants and conditions of said lease.” The rent for the four months amounted to $50, for which plaintiff obtained judgment.

      Law & Moore, for appellants.

      John B. Mcllwain, for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The defendants are liable, under the rule of Clark v. O’Rourke, 111 Mich. 108 (69 N. W. 147, 66 Am. St. Rep. 389), unless the right to maintain such action is abrogated by sections 10025, 10026, 3 Comp. Laws 1897. That statute provides for the bringing of suits against unincorporated voluntary associations, and provides for service of process upon certain of its officers. Without this statute the association could not be sued, because it has no legal existence. The remedy provided is merely cumulative; it does not take away the right to sue members of the association, under the case above cited.

The court held that all the defenses set up in this case were litigated in the former suit, from which no appeal was taken, and that, therefore, all such questions were res adjudicata. The ruling was correct. Jacobson v. Miller, 41 Mich. 90 (1 N. W. 1013). Defendants’ plea and notice were the same in this suit as in the former suit, and defendants’ liability for the rent depended upon the questions then litigated.

It is urged that the defendants are not liable, because there was no evidence that Wysner and Johnson were trustees, or that Dixon, Sheldon, and Eichorn were officers and members of the society, at the time the lease was made. The declaration contains a copy of the lease, signed by Wysner and Johnson as trustees, and alleges that its execution was known to, and ratified by, the other defendants. The evidence shows that Dixon was treasurer; that Eichorn and Sheldon issued and signed orders as officers of the association, upon which plaintiff obtained the rent until the time the association vacated the building. The association was a secret one. The execution of the lease was admitted. The issuance of orders by Eichorn and Sheldon to plaintiff on the treasurer, Dixon, and the payment by him, are sufficient evidence that they were officers of the association, and ratified the lease.

Judgment affirmed.

The other Justices concurred.


text:
    TEICHNER v. POPE MANUFACTURING CO.

    Master and Servant — Wrongful Discharge — Contract—Construction.
    Plaintiff was engaged by defendant to manage a branch of its business for a year under a contract reserving to defendant the right to terminate such employment at any time “for conduct unsatisfactory to the officers of the company, or for other cause.” Plaintiff was afterwards discharged, not because of any fault found with him or with his management, but because the company had abandoned another branch business, and its manager there had had much more experience • than plaintiff, and it was thought advantageous to place him in charge. Held, that the discharge for the purpose of employing a man with more experience was within the terms of the contract.
    Error to Wayne; Lillibridge, J.
    Submitted October 5, 1900.
    Decided October 31, 1900.

      Assumpsit by Jacob F. Teicbner against the Pope Manufacturing Company upon a contract of employment. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Sloman & Groesbeck, for appellant.

      Fred H. Warren, for appellee.

       Rehearing denied February 27, 1901.

   Hooker, J.

The plaintiff was employed as manager of the defendant’s bicycle business at Detroit, upon a salary of $1,500 a year, commencing the 1st of January, 1898. His contract contained the following provision, upon which the defendant rests its right to discharge him, viz.: “We reserve, however, the right to terminate your employment at any time during the year for conduct unsatisfactory to the officers of the company, or for other cause.” After working 22 days, he received notice that his services would be no longer required, from a Mr. Cox, who was defendant’s manager of the sales department. At the same time he offered him the privilege of remaining in the capacity of salesman, a position that he had previously held, at his former salary of $100 a month, which offer the plaintiff accepted, and he continued in that capacity for a time. He was succeeded as manager by Mr. Poole, who had previously had charge of defendant’s business at Milwaukee, which had been closed out. Some correspondence occurred, which was as follows:

“Detroit, Mich., Jan. 21st, 1898.
“Mr. Albert L. Pope,
“Secretary Pope Manufacturing Company,
“Hartford, Conn.
“My Dear Mr. Pope: I wired you yesterday; also replied to your telegram advising you of my decision. Mr. Day’s diagnosis was absolutely correct, and delay in the matter would be unwise in that, to say the least. Poole has been arranged with temporarily, and the other party will be subject to your decision after I reach Hartford. He is acting in the capacity of salesman during that time. I am writing this in great haste so as to catch the morning’s mail. Yours very truly,
“Chas. B. Cox.
“ I have to be vague at present in writing.”
Telegram: “Detroit, Mich., January20th, 1898.
“To A. L. Pope, Secretary: Should make change at once. Man is honest, however. Suggest Poole temporarily.
“Chas. B. Cox.”
Telegram: “January 20, 1898.
“ Chas. B. Cox,
“ Pope Manufacturing Company,
“Detroit, Mich.:
“Do as you think best. Poole’s address, Milwaukee. Wire decision.
“Albert A. Pope.”
Letter: “Hartford, January 20, 1898.
“ Mr. Chas. B. Cox,
“ Detroit, Mich.
Dear Mr. Cox: P. * * * P. * * * Your telegram letter has also been received, reading: ‘Should make change at once. Man is honest, however. Suggest Poole temporarily.’ We have wired you: ‘Do as you think best. Poole’s address, Milwaukee. Wire decision.’ Signed‘Albert A. Pope.’
“I think, without doubt, that it is necessary that we should make a change there, from what little I know about it, as it does not seem to me that Teichner is the man to meet the class of people we sell in Detroit. I hope that you are able to arrange matters and get hold of Poole as soon as possible; so as to leave some one in charge to run the place. Poole was expecting to get through in Milwaukee Saturday, so as to be able to report here on Monday; so that I think you will be able to get hold of him without delay. You are evidently ahead of your route, as you are scheduled to be in Cincinnati today. It would seem to me necessary for you to stay there until you had Poole established, but that I will leave to your own judgment, as you are on the ground, and know better than we do. We also found that Teichner had raised one of the salesmen’s pay from $15.00 to $18.00 per week. We have already written about this, and I think without doubt you will find the letter there. I know of no authorization giving him permission to do this. Kindly investigate that matter, and, if you find it is a fact that his pay has been raised without authority, I would recommend reducing it, if you think best. As far as I can see now, it would seem to me that possibly Poole might be considered for the permanent manager there, but we can decide this on your return. We shall at once begin to make othei arrangements for the territory we had already assigned to Poole, P. * * * p. * * *
“Trusting that you will get everything straightened out in good shape in Detroit, I remain,
“Yours truly,
“A. L. Pope.”
“Detroit, Mich., Jan. 22, 1898.
“Mr. Albert L. Pope,
“Secretary Pope Manufacturing Company,-
“Hartford, Conn.
“My Dear Mr. Pope: I have your letter of the 20th, and note its contents carefully. The action suggested by you regarding this branch has been taken, and I have this morning placed Mr. Poole in charge temporarily, retaining Mr. Teichner as salesman at his -former salary, which is to begin next Tuesday, which is the end of the week, at his new rate. I deemed it expedient that I remain here in Detroit until this whole matter was cleared up, so will not go to Buffalo until tomorrow night, spending Monday in Buffalo, Tuesday in Pittsburg; then come back to Buffalo, and from there go to Hartford. I do not think it necessary to make any extended stay in Rochester, inasmuch as I carefully went over everything there last August, when Mr. Lisle took charge.
“Your remarks regarding the Metropolitan did not surprise me in the least, as I have seen from the start what the finish would be; and your father and Mr. Day will probably recollect the opinion I expressed last summer regarding conditions, just before Mr. Joyce took temporary charge.
“Respectfully,
“Chas. B. Cox.”

Plaintiff received wages at $100 a month until March 1st. On January 28th the defendant’s secretary wrote Mr. Poole to notify the plaintiff that his services would not be required after February 7th, suggesting payment of his salary to that date, and to permit him to spend his time in finding a situation elsewhere. This was communicated to the plaintiff on January 31st. The plaintiff wrote Mr. Cox on the same day, asking that he intercede with the company to have him retained as salesman at $100 a month. The following is the letter:

“Detroit, Jan’y 31st,'1898.
“Mr. Chas. B. Cox,
“ Pope Manfg. Co.,
“Hartford, Conn.
Dear Sir: Was more than surprised this morning at receiving notice from Mr. Poole that by orders of the secretary my services at this branch be dispensed with after February 7th. To a man of my years and standing in the community, such a peremptory dismissal comes a good deal like a fatal blow. At least the reason for such a discharge is my due. I supposed your offer to remain here as a salesman was made in good faith, and I wish to state that as such I would work conscientiously to the best of my ability to help Mr. Poole to make a success in the coming season, and I believe I could earn my salary. Will you have the kindness to intercede in my behalf? At this season of the year contracts have been made, and I would be at a great disadvantage in looking elsewhere.
“ Hoping to hear from you very soon,
“I am, respectfully,
“ J. F. Teichner.”

On the same day Mr. Poole wrote the company, making a request that plaintiff be retained as salesman, at his former salary:

“Detroit, Mich., Jan. 31, 1898.
“Mr. Albert L. Pope,
“ Secretary Pope Manufacturing Co.,
“Hartford, Conn.
Dear Sir: Your favor of Jan. 28th received. In reference to Mr. Werbeck’s salary, will state that, when Mr. Clark made arrangements with him, he was employed in a bank, and Mr. Clark agreed to raise his salary on January 1st to $1,000 a year. On January 1st, as we understand it, Mr. Teichner wrote Mr. Cox regarding it, and seems made a personal letter of the matter, and no doubt but what this letter followed Mr. Cox around on his trip West. Mr. Teichner, receiving no answer from Mr. Cox, came to the conclusion that there was no objection to the matter, and therefore raised Mr. Werbeck’s salary to $18.00 per week, with the promise of, when business picked up, it would be increased to the rate of $1,000 per year, as per agreement between him and Mr. Clark when he came here to work. We think Mr. Werbeck’s services are worth this amount, and we respectfully request that you will reconsider the matter, as we desire to keep him in our employ.
“We have notified Mr. Teichner, as per your request, today, that his services will not be needed after Feb. 7th. We understand that Mr. Cox had some talk with Mr. Teichner on this matter, and the understanding when Mr. Cox left was that he should remain here as salesman. Mr. Teichner has quite an extensive acquaintance here in Detroit, and possibly, if you have no objections, it might be well to keep him for the present. This is only a suggestion on our part, and, if you have any objections to our making any proposition of this kind, we shall not open up the matter with him.
“ Yours truly,
“Pope Manufacturing Co.,
“John L. Poole, Local Manager.”

On February 7th, Cqx saw the plaintiff in Detroit, and he took the responsibility of asking plaintiff to remain as he had done, and said that he (Cox) would communicate with the company at Hartford, and endeavor to have him retained; and at that time both Cox and Poole suggested to the plaintiff that he write Col. Pope, the treasurer, about the matter, and he did so. He sent the following letter:

“Detroit, Mich., Feb. 13, 1898.
“Col. Geo. Pope,
“Treasurer Pope Manufacturing Co.,
“Hartford, Conn.
“Dear Sir: At the suggestion of Mr. Poole, I take the liberty of addressing you with a letter pertaining entirely to myself; and in explanation thereof the matters which have been brought to your notice of the condition of affairs at the Detroit branch must be my excuse. Inasmuch as Mr. Poole is desirous of retaining me as salesman here, I bring the following to your notice, with the hope that it may count for something: Having been a resident of Detroit for 38 years, I naturally have a large acquaintance; and as for 17 years I was with the large jewelry house of M. S. Smith & Co., later F. G. Smith, Sons & Co., my acquaintance includes many of our best and influential people. I traveled 14 years for the Middletown Plate Company, Middletown, Conn., resuming at the jewelry house on the desire of my wife that I ‘ quit the road.’ When the firm failed, I secured a position with the Michigan Bell Telephone Company, and was with them at the time Mr. Clark enlisted my services for your company. Although new to the business, my sales for the season of ’97 ¿mounted to trifle over $14,000; not a poor record, with every transaction clean and straight. I worked in the position of manager for a little less than five months, and during that time heard no complaints of any kind from the factory. In fact, after four months of what might be called probation, I received my appointment as manager, to date from January 1st. You are familiar with what has occurred at the branch since then, and of my summary dismissal. You can understand that such treatment in a community where I am so well known must do me an irreparable injury, and I would therefore respectfully request my reinstatement, feeling confident that I can make myself worth my salary to the company. From Mr. Cox you will learn that I am in no way to blame for the condition found by him existing here, and I therefore beg of you to give this communication your kindly consideration, and trust that I may hear favorably from you. Very respectfully,
“J. F. Teichner.”

Col. Pope responded as follows:

“Hartford, Conn., February 16, 1898.
“Mr. J. F. Teichner,
“Pope Manufacturing Company,
“Detroit, Michigan.
“Dear Sir: Your favor of the 12th inst. to our treasurer came duly to hand, giving u’s an interesting statement of your experience in business previous to the coming into enrploy of this company; also of the share you had in the business during the last year at the branch in Detroit. A letter written you by the secretary will, we think, cover the point to which you request our attention, and we trust will be satisfactory to you.
“Yours truly,
“Pope Manufacturing Company,
“Geo. Pope, Treasurer.”

A few days later he was shown the following letter by Mr. Poole:

“Hartford, Conn., Feb. 15, ’98.
“Mr. J. L. Poole,
“Local Manager Pope Manufacturing Company,
“Detroit, Mich.
“Dear Sir: The secretary directs us to advise you that you are authorized to continue Mr. Teichner in your service as long as he discharges his duties satisfactorily and his sales are in accordance with what we deem a man of his ability should make. The salary that you will be allowed to pay Mr. Teichner will be $1,000 per annum, and his term of employment is terminable at the option of either himself or this company at any time.
“Yours truly,
“Pope Manufacturing Company,
“Chas. B. Cox,
“Manager General Sales Dep.”

After consulting counsel, he declined the offer, and told Mr. Poole that he had been advised that he could hold the company upon the original contract. He testified that in his letter to Col. Pope he had reference to his position as salesman. On February 17th, Poole wrote as follows:

“Detroit, Mich., Feb. 17, 1898.
“Pope Manufacturing Company,
Hartford, Conn.
Gentlemen: Your favor in reference to Mr. Teichner’s salary received today, and we immediately informed him that the company would pay him at the rate of $1,000 per year, and, in order that there might not be any misunderstanding, we allowed him to read the letter; and greatly to our surprise he informed the writer this evening that he had taken counsel, and states that his attorney informs him that, under the contract which he received as branch house manager in January, all he has to do is to present himself for duty each morning, and perform his regular duties to the best of his ability, and receive the regular salary mentioned in his contract; and that he proposes to stand on these grounds firmly, and, if necessary, sue you for the amount. We endeavored to talk him out of this position he has taken by telling him that his counsel must certainly have misinformed him. We are especially sorry over this, after doing what we have to persuade you to retain him in your employ, but in the future the writer will not try to help persuade you to retain any one in your employ, no matter how good a man he may be. We demanded his key, which he has turned over to us, and shall await further information from you. Trusting that you will advise us promptly in reference to the necessary steps to take in this matter, we remain,
“Yours truly,
“Pope Manufacturing Company,
“John L. Poole, Local Manager.”

Subsequently Poole received the following letter:

“Hartford, Conn., Feb. 23, 1898.
“Mr. John L. Poole,
“Local Manager Pope Manfg. Co.,
“Detroit, Mich.
“Dear Sir: Your favor of the 17th inst. is- duly received, relating to the position taken by Mr. Teichner. From the correspondence and reports in our possession regarding the Detroit branch, we find that, under date of January 21st, Mr. Cox, who was then in Detroit, wrote to this office, after recommending the removal of Teichner, and who, having been given authority to do as he thought best, says, ‘ Teichner will act in capacity of - salesman until final decision.’ Under the same date Mr. Cox also writes, ‘Teichner is to remain as salesman at former salary, to begin January 25th, the end of the present week.’ In a report of his visit to Detroit, dated January 28th, and probably made immediately after his return from your city, Mr. Cox says, ‘On leaving Detroit, I directed Poole to dispense with the services of Mr. Teichner.’ The rest of the correspondence regularly reinstating him at his former salary does not specially bear on the present situation. From all that we can gather, I judge that Teichner accepted the situation laid down for him on January 21st by Mr. Cox, and made no protests; also that he did accept the position of salesman at his former salary of $1,000 a year. Apparently, there was no correspondence or written agreements on this matter. If so, they are with your office; but we presume that, it was all verbal, and, if it is as we understand it, — that is, Mr. Teichner did accept the position offered him as salesman at his old salary, — then he accepted his discharge as local manager.
“We notice that you have demanded his key, and, if he has not already notified you of his intention to resign his old position, you are hereby authorized to give him written notice that his services are no longer required by this company, for after his present action we cannot retain him. If he presents himself, as he states it is his intention to do, each day, you should notify him that he is not considered in our employ. In all probability it would be well for us to write him a letter from here, giving him the reasons why he was removed as manager. His agreement with the company, or rather his letter from the company, as local manager, is precisely the same as yours, word for word, except the amount of salary. Just how your local city laws are on this matter we do not know here, but, if any serious trouble comes from this, it will, of course, be necessary to have an attorney to represent us in Detroit. Therefore we wish you to immediately consult one there, and advise us his opinion, and what course of action he advises you to take.
“Your letter of the 21st inst. in relation to the store is just received, and we will reply to it some time during the day. Yours truly,
“Geo. Pope, Treasurer.”

The defendant offered testimony tending to show that the vice-president of the company visited Detroit early in January, and was not satisfied with the condition of the business, and that upon his report Cox visited the plaintiff, and investigated his affairs; that, while no question was raised affecting his honesty, his business was not satisfactory, and it was thought that he had not sufficient experience to conduct a successful business. His stock was in bad shape as to classification and arrangement; he had not taken an inventory when goods were turned over by his predecessor; a number of wheels were without accouterments, the same having been disposed of by Clark, his predecessor. Clark had made promises to exchange wheels upon terms which he had afterwards repudiated, and which the defendant would not have sanctioned, and there was much feeling among the patrons; and, although the plaintiff knew this, he had concealed, or at least not reported, it, although he had been asked for a report of the condition of the business, and for a plan of his business for the ensuing year, to be sent in by January 15th, which was not done. From this investigation Cox made the change. The plaintiff admitted some of the foregoing on cross-examination, though upon direct he testified that his stock and business were in good condition, and the discharge of his duties faithful. His version of the transaction with Cox is as follows:

“I saw Mr. Cox on the morning of the 20th of January for the first time. "When he discharged me, he called me into the office, and Mr. Poole had arrived there that morning from Milwaukee, and he said that he regretted excessively to do what he was about to do, but that he was going to put Mr. Poole in charge of the branch. I was very much surprised, and asked him, ‘For what cause?’ and he said: ‘For none whatever. Your services are perfectly satisfactory. Everything has been all right. There has been no fault found with your actions or management of the business. But Mr. Poole has had a great deal more experience than you have had, and we have been obliged to close up the Milwaukee branch, and, as Mr. Poole has had greater experience, we have found it to our advantage to put him in charge of this branch.’ I said: ‘That is peculiar treatment for me to receive here, who have been living in the city all my life. An act of that kind will reflect on me; it will hurt me. ’ ‘ Well, ’ he said, ‘ I am very sorry, but that is the only thing we can do.’ I said: ‘This is most summary treatment, and I shall surely expect to hold you to the letter of your contract. I shall not release you under these circumstances.’ He said, ‘You can remain here as salesman;’ and, knowing that I was obliged to find some avocation, or something to do, I accepted the position. I made the best that I could of it. I might as well accept a position there as go elsewhere, which I told him at the time. I accepted a position with the company after my discharge as manager, at a salary of 11,200. I would have to go somewhere for a position, and I might as well accept it of him as go anywhere else. I did not in any manner release the Pope Manufacturing Company of its obligations to me under that contract. I remained with them up to the 29th of February, when I was discharged by Mr. Poole. Mr. Poole conducted the management of the business after my discharge. My claim is for the difference between $100 and $125 per month for a week in January, and February, and the month of March. I had received three weeks’ salary in January at the rate of $125 per month. The items were $25 for February, and $6.25 for January, and $125 for March. After I was finally discharged, I sought employment in several establishments where I was acquainted. Everything was filled. It was late in the season. I was unable to find any employment during the month of March.”

Plaintiff’s counsel concede that, if the conduct of the plaintiff was actually unsatisfactory to the defendant, it had a right to terminate the contract, and they admit that the reasonableness of the defendant’s opinion of plaintiff’s conduct cannot be considered. They claim, however, that they have a right to the exercise of good faith by the defendant, and they maintain that the defendant was not dissatisfied with the conduct of the plaintiff, and that he was not removed for that, or “for any other cause,” but that the pretense that he lacked experience was a 'subterfuge, and that his removal was to make a place for Poole; and they claim that this was a question which should have been left to the jury. Plaintiff’s contention is that defendant’s right to terminate this contract is limited, and cannot be exercised in the absence of some conduct or cause proceeding from or growing out of his conduct or administration of his office; and his counsel insist that a desire to favor another is not a cause contemplated by the contract.

The learned circuit judge was apparently of that opinion, but held that there was no evidence tending to show that this was defendant’s motive. All that can be claimed to show it is the testimony of the plaintiff, which we have quoted, as the other testimony indicates the contrary. Cox is alleged to have given the reason when he said: “Everything is perfectly satisfactory. Mr. Poole has had more experience than you have had. We are obliged to close up the Milwaukee branch, and, owing to his greater experience, we are going to put him in place of you.” Instead of indicating that defendant’s object was merely to make a place for Poole, it indicates that it was thought better for the business to have Poole manage it, and that, and not a desire to find a place for Poole, led defendant to act. There is no testimony tending to show that it was merely to favor Poole.

Had the defendant a right to substitute a more experienced man? Clearly, it had if it was dissatisfied with the conduct of the plaintiff. It has offered proof that it was. But this is met by testimony in the nature of an admission by Cox, made at the time of the removal, which tends to .show that it was not dissatisfied with plaintiff’s conduct, though the admission plainly shows that the defendant preferred a man of more experience. The most that can be said of this removal in plaintiff’s behalf is that it is a case of “ not loving Csesar less, but of loving Rome more;” in short, defendant’s interests would be better subserved by substituting a more experienced man. If this was cause for terminating the contract within its terms, the court was right in directing a verdict; but, if not, the case should have been left to the jury to determine, not whether the plaintiff was reasonably qualified for the business, but whether the defendant discharged him by reason of dissatisfaction with his conduct of the business, or merely because it wished to favor another. It can hardly be said that the right to discharge when dissatisfied with conduct is limited to a case of immoral conduct on the part of the plaintiff. It certainly extends to the general conduct of the business as well. It covers incompetency, incapacity, and neglect. What is meant, then, by the words, “or for other cause?” We are of the opinion that a desire to discontinue or sell its business would be a sufficient cause; so would a desire to extend it beyond the capacity of the plaintiff to conduct; and it could hardly be said to be satisfied with the conduct of the business in such á case.

It may be said that this does not imply any misconduct or failure on the part of the plaintiff, or dissatisfaction with an existing business on the part of the defendant, but a mere desire to benefit itself by seeking to make better conditions already satisfactory, and that this is not' a cause within the terms of the contract. But does not this necessarily imply dissatisfaction with existing conditions, when we eliminate from the case the idea that the .action of the defendant was based wholly upon a desire to favor another ? Is it not a paradox to say that the defendant may remove plaintiff when dissatisfied with the business, but that it is not dissatisfied with the business done by plaintiff when it thinks another man can better it, while it believes the plaintiff cannot ?

We are convinced that it was the intention of the parties that the right to terminate this contract when its interests required it should be given to the defendant, and that the evidence shows that its action was in good faith.

The judgment is affirmed.

The other Justices concurred.


text:
    SULLIVAN v. BAILEY.
    Municipal Corporations — Water and Light — Grant op Franchise — Duration.

       1. Under a city charter conferring power upon the oommon council to contract to supply its inhabitants with water and light, and to grant the use of the streets, etc., for those puiTposes* for a period not exceeding 10 years, the common council cannot grant a franchise for the use of the streets, etc., for a longer period than 10 years for those purposes.
    2. The proviso to section 5, chap. 9, Act No. 437, Local Acts 1899, is limited to the section to which it is attached, and does not cover the whole act.

      Mandamus by William Sullivan to compel Matthew G. Bailey, mayor of the city of Mackinac Island., to execute certain contracts.
    Submitted October 9, 1900.
    Writ denied October 31, 1900.

      The charter of the city of Mackinac Island contains the following provision:
    ‘ ‘ The council may contract from year to year, or for a period of time not exceeding ten years, with any person or persons, or with any duly-authorized corporation, for the supplying of such city and the inhabitants thereof with water upon such terms and conditions as may be agreed, and may grant to such person, persons, or corporation the right to the use of the streets, alleys, wharves, and public grounds of such city as shall be necessary to enable such person, persons, or corporation to construct and operate proper works for the supply of water for the use of such city and the inhabitants thereof upon such terms and conditions as shall be specified in such contracts.” Act No. 437, Local Acts 1899, chap. 24, § 11. '
    The provision for lighting the city is in terms precisely the same as the above. Id. chap. 25, § 8.
    The charter also provides that the common council shall have authority to grant a franchise to a street railway. The section conferring this power contains the following proviso:
    “That no franchise for the use or occupancy of any street for any purpose shall be granted to an individual, company, or corporation except by a two-thirds vote of all the aldermen elect, nor shall any such franchise be granted' for a period exceeding thirty years.” Id. chap. 9, § 5.
    The common council of the city adopted the following resolution:
    “1. That it is and it is hereby declared to be expedient to have works constructed for the purpose of supplying said*city and the inhabitants thereof with electric light.
    “2. That it is and it is hereby declared to be inexpedient for said city to build said works under the power granted in its charter.
    “3. That the existing conditions demand that a franchise for thirty years be granted to some person, corporation, or association to supply said city and the inhabitants thereof with electric light and power, upon such terms and conditions as may be agreed upon.
    ‘ ‘ 4. That it is necessary to grant to some person, corporation, or association the right’ to the use of the streets, alleys, and public grounds of said city for a period of thirty years, to enable such person, corporation, or association to construct and operate an electric-light plant for the supply of light and power for the use of the city and the inhabitants thereof.”
    A similar resolution was passed in regard to the construction of a waterworks. At the same meeting resolutions were passed authorizing two contracts to be made with the relator, — one for the erection of waterworks, and the other for an electric-lighting plant. The resolutions and the contracts provide for the granting of a franchise for 30 years. ' This contract contains the following:
    “ Whereas, second party proposes to install, equip, and maintain within the corporate limits of first party a system of waterworks, and a system of sewers to be used in connection therewith, upon the condition and in consideration that first party shall grant a thirty years’ franchise therefor, and shall rent a fixed number of hydrants at a fixed rental per annum: Now, therefore,” etc.
    Following this recital is an agreement on the part of the city to take 52 hydrants for 10 years, at a rental of $2,500 per year. The second clause of the contract is as follows:
    “First party also agrees to forthwith enact an ordinance to enable and empower the second party to carry this contract into effect, granting unto second party or his assigns a franchise for the term of thirty years for the purposes herein set forth, which ordinance when enacted shall be and become a part of this contract, and also such other and further ordinances as may be requisite to protect the rights of second party in.the premises.”
    The contract then prescribes the charges to be made by relator for private consumption and sewers. A similar contract was agreed upon for an electric-lighting plant; and the respondent, the mayor of the city, refused to sign this contract, upon the ground that the common council is not authorized to grant the use of the streets to a person or corporation for a period of 30 years to furnish light and water. The relator seeks the writ of mandamus to compel the execution of the contract.

      John W. Beaumont (Russell C. Ostrander, of counsel), for relator.

      James McNamara, for respondent.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The learned counsel for the relator contend that the city authorities may grant a franchise for 30 years, while they can make a contract only for 10 years. The pertinent queries at once arise: (1) What was the purpose of the 10-year limit? (2) What rights will relator have in the streets at the end of the 10 years, under a 30-year franchise with a 10-year contract ?

It is manifest that the legislature recognized the evils that had come to municipal corporations by granting the use of the streets for so long a period. The evident purpose, therefore, in granting this charter was to leave the control of the streets, at the expiration of the 10 years, entirely within the power of the common council. It is urged that neither persons nor corporations will make so large an investment if all their rights to the use of the streets cease at the end of 10 years. , It would follow that the purpose of this action of the common council is to give the relator and his assigns some rights in the streets which they would not possess under a grant of 10 years only. The charter confers upon the common council all control over the streets, and the sole right to grant their use for furnishing water and light. Under the relator’s theory, he, at the expiration of 10 years, would have vested rights in the streets upon and in which he has placed his property. If he could make no agreement with the city by which the city and its inhabitants could be furnished with light and water, he would still have the right to keep his poles, etc., in the streets, and make contracts with private individuals for furnishing light and water for their business places and residences. Again, under his theory, the only power of the common council would be to regulate the prices to be charged for light, water, and sewerage. Such regulations must be reasonable, or they would be void. The sole advantage, then, to be obtained by the city under this construction of the charter, would be the right to refuse to make further contracts with him for lighting and furnishing water for the streets and other public places of the city. It is clear to me that this would practically render nugatory the 10-year limit. Unless the relator would, by this franchise, obtain this vested right to maintain his plant in the streets, the franchise beyond 10 years would be of no benefit to him. Of what practical value would the limitation be to the municipality under his contention.? The only power left in the city would be to refuse to enter into further contracts with him, and either to let contracts to other parties or erect works itself. If it should see fit to let contracts to other parties, there would be another set of poles and another system of pipes for water and sewerage. At the end of a second 10 years such a contract might be let to another party, and there would then be three sets of poles, and three different systems of water and sewerage, in the streets of the city. It seems to me that such result could not have been contemplated by the legislature, and that the language of sections 8 and 11 is .a clear limitation upon the power of the common council to grant any franchise for furnishing light and water beyond the 10 years.

If the relator were a corporation instead of an individual, such corporation would be organized under the laws of the State, and, by its terms of incorporation, could fix its period of existence, not exceeding 30 years. The State, and not the municipality, therefore, fixes the franchise. The terms under which such franchise may be exercised are lodged in the municipal authorities, and, when their power to contract is limited to a period of 10 years, they cannot extend that beyond the period of limitation. The word “contract,”, as used in the charter, in my judgment, means the same as the word “franchise.” When a franchise is proposed, it defines the terms of its existence, and its acceptance completes the franchise or contract. Until the action of the council is accepted, there is no franchise or contract. The proviso to section 5 must be limited to the section to which it is attached, and does not cover the whole act. End. Interp. Stat. § 186.

Under the rule so often approved by this court, that municipal authorities possess only the powers expressly conferred or necessarily implied, I cannot escape the conclusion that the contract proposed is void, and that the writ must be denied.

The other Justices concurred.


text:
    DERHAM v. DERHAM.
    1. Husband and Wife — Alienation of Affections — Evidence —Privileged Communications.
    Under 8 Comp. Laws 1897, § 10213, which provides that a husband or wife shall not, without the consent of both, be examined, during the marriage or afterwards, as to any communication made by one to the other during marriage, a divorced wife cannot testify, in an action against her husband’s father for alienating his affections, as to the contents of a lost letter written to'her by the husband during the continuance of the marriage relation.
    2. Same — Hearsay.
    Where, in an action by a divorced wife against her husband’s father for alienating his affections, the plaintiff was asked why the husband left her at a certain time, it was error to refuse to strike out an answer that the husband had told her that his father had paid him to leave.
    3. Same — Relations of Parties.
    In an action by a divorced wife against her husband’s father for alienating his affections, the plaintiff’s mother was permitted to testify that the husband came to her house on one occasion, when the plaintiff was ill, to ask the witness to attend her, and that he gave it as his reason for coming at an early hour that he could not get a horse after defendant arose. Held, that, while the evidence might be admissible as tending to show the husband’s feelings towards his wife, the jury should have been clearly instructed that it could not be used as substantive proof of defendant’s relation to the parties.
    4. Same — Hearsay.
    And evidence that the husband also said that his father did not want him to take the horse should have been excluded as hearsay.
    5. Same — Privileged Communications — Rebuttal.
    Error in permitting a divorced wife to testify, in an action against her husband’s father for alienating his affections, to communications during coverture, in substance that her husband refused to get a doctor for her when she was ill, was emphasized where the husband’s testimony that he thought a doctor unnecessary, proper to rebut the inference that the refusal was due to the fact that his affections had been alienated, was stricken out by the court as incompetent.
    6. Same — Statements of Plaintiff — Damages.
    In an action by a divorced wife against her husband’s father for alienating his affections, statements by the wife that she married the husband because she supposed he had more money than he did have, and that she was ashamed of her husband, are admissible, as bearing on the question of damages.
    7. Same — Cause of Separation — Cross-Examination.
    Where, in an action by a divorced wife against her husband’s father for alienating his affections, she has testified that she would not live on the defendant’s farm, she may be asked if her husband would not have continued to live with her if she would have remained on such farm; and the husband may be permitted to answer the same question.
    8. Same — Friendly Relations.
    In an action by a divorced wife against her husband’s father for alienating his affections, it was error to refuse to permit defendant to show that he gave certain provisions and other things to the son and his family, on the ground that they • were gratuities to the son, since such testimony would have tended to show the relations existing between the parties.
    9. Same — Reputed Wealth of Defendant.
    Evidence of the reputed wealth of defendant is inadmissible in an action by a divorced wife against her husband’s father for alienating his affections.

      10. Same — Commencement of„ Suit — Attending Circumstances.
    Where a divorced wife sues her husband’s father for alienating his affections, she may be asked when she commenced' her divorce suit and a slander suit against the defendant, and their attending circumstances, since they may throw light on her reason for leaving the husband; as well as on the subject of damages.
    11. Trial — Argumentative Remarks of Court.
    It is not proper for the court to suggest in the presence of the jury, in an argumentative way, the inferences that may be drawn from the testimony.
    12. Same — Requests to Charge — Ambiguity.
    A request to charge beginning, “If you should find from all the evidence in the case, and the circumstances surrounding the same,” is open to the criticism that, in the absence of explanation, it implies that the jury may base their findings oh something outside of the evidence.
    13. Same — Instructions.
    A charge made up solely from requests is ordinarily so disjointed as to be objectionable.
    Error to Shiawassee; Smith, J.
    Submitted October 10, 1900.
    Decided October 31, 1900.
    Case by May Rosa. Ada Derham against William Derham for alienating the affections of plaintiff’s husband. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Albert L. Chandler (George B. Gold, of counsel), for appellant.

      John T. McCurdy and Edtvin H. Lyon, for appellee.
   Hooker, J.

The plaintiff recovered a verdict and judgment against her husband’s father in an action brought to recover damages for the alienation of her husband’s affections from her. The defendant has brought the case here by writ of error. There are many assignments of error, most of which relate to the introduction of testimony. We cannot consider each, and will dispose of the case upon its main points.

The plaintiff was a witness, and testified to conversations in which the defendant asked her husband to leave her, and made threats of disinheriting him if he did not. Other witnesses gave testimony tending to corroborate her, and establish her claim.

The plaintiff testified that in 1895 her husband left her, and was away five days,' and that during his absence the defendant told her that her husband was not coming back to live with her. Two days later, John, her husband, came home, after which they continued to live, apparently amicably, together. A day or so before his return, she received a letter from him, which she had searched for, but was unable to find, and thought she must have destroyed. She was permitted to testify regarding it:

“ He wrote me, and asked me if I would forgive him. He says, ‘I will never do it again.’ He says, ‘I wouldn’t have done it this time if it hadn’t been for my father.’ He says, ‘You know father was mad because I took the horse and went after your mother.’ He says, ‘I won’t listen to them again.’ He says, ‘I will bring you a ring, umbrella, and clock if you will forgive me; ’ and when he came he brought those articles.”

This testimony was objected to on several grounds:

1. Because the writing was not shown to be that of her husband.
3. It was a confidential communication, and was.therefore inadmissible, under the statute.
3. It was hearsay as to the statements concerning the defendant.

We are of the opinion that this testimony should not have been- admitted. It was a communication to the wife by the husband, and it was not competent for her to state it without his consent. 3 Comp. Laws 1897, § 10213, and cases cited. See Maynard v. Vinton, 59 Mich. 152 (26 N. W. 407, 60 Am. Rep. 276), where, in speaking of such a statement, Mr. Justice Champlin said:

“This, according to the statement of the witness, was a communication of the most confidential nature made by his wife to him during the marriage, and under circumstances which brought it within the prohibition of the statute. It was one which, after her death, he could never be permitted to testify to, because it could not then be done with the consent of both. In this respect it stands on the same plane as those communications which are made to a person’s confidential adviser, — an attorney, priest, or physician, — who, after the death of the party, is not permitted to disclose such communications. The • privilege is the privilege of the person making the communication, and can only be waived by him personally; and the personal representative has no right to waive it, even in the interest of the estate. * * * This statute rests upon public policy, and the seal which the law has fixed upon communications between husband and wife during marriage remains forever, unless removed by the consent of both. The death of one cannot remove the seal of secrecy. If it could, the policy of the law would be defeated.”-

The letters referred to in McKenzie v. Lautenschlager, 113 Mich. 171 (71 N. W. 489), were from the wife to a friend, and not to her husband, and their introduction does not, therefore, furnish a precedent justifying this testimony.

The plaintiff had testified to the fact of her husband leaving home on one occasion, and she said that the defendant had hired him to go. On cross-examination she was asked this question:

“Q. At that time, instead of his being hired to go away, it was understood between you and him that he was going to look up a location, wasn’t it ?
“A. He told me he had been hired to go away.”

Counsel moved to strike out the answer as not responsive. The statement was one which the law forbids. It was not admissible, and should have been stricken out.

A witness — one Joseph Frank — was asked, “Did you have a conversation, during the time you were working there, with John, about his father wishing he had married some other girl?” He answered: “Yes. He said his folks did not really like Rose. He had a chance to marry others, and he wished he had.”

Henry Parkhurst, plaintiff’s father, testified that John came to his place early one morning, after his wife, on the occasion of the birth of plaintiff’s first child. He was asked by plaintiff’s counsel:

“Q. Was there anything said by John in reference as to why he came so early ?
“A. He -said he couldn’t get the horse any other time,only before the old gentleman got up. And he said he didn’t put the bells on; he put them under the seat, and did not put them on until he got past Jim Kirby’s.”

His wife, Henrietta Parkhurst, was permitted to testify to the same, and that he said, “ the old gentleman did not want me to have the horse.” This last statement was hearsay, and. inadmissible. See Edgell v. Francis, 66 Mich. 305 (33 N. W. 501). The former may have been admissible as tending to show his feelings towards the plaintiff. Edgell v. Francis, supra. The jury should have been instructed to discriminate between its value for such a purpose and its use as substantive proof of defendant’s relation to the parties. As to that it was hearsay, and, in the absence of specific and emphatic instructions to disregard it, dangerous to the defendant to an extreme degree. The same may be said of the statements in relation to the letter.

The plaintiff testified that on one occasion she was sick with “lung trouble,” and John refused to get a doctor. This, too, was a communication that she should not have been permitted to repeat, but is mentioned here in another connection. The parties having been divorced, John was a witness for the defendant, and was asked about the matter. He testified that he had not thought a doctor necessary. The court ordered his answer stricken out, with the remark, “He isn’t a doctor.” This testimony tended to rebut the inference that his refusal was because his affections had been alienated, and was admissible.

The plaintiff denied that her marriage was from mercenary motives, and her attention was called to an occasion when she was alleged to have stated that she married John Derham because she supposed he had more money than he did have. She denied making such statement. The court refused to permit proof that she made it. Such a fact was admissible as bearing upon the question of damages.

Proof that plaintiff had been heard to say that she was ashamed of John was excluded. It should have been received, both as bearing upon the question of damages and as throwing light upon the cause of his loss of affection. It was excluded upon the ground that it was leading, and on that account we might not be justified in reversing the case upon that ground.

Plaintiff was asked on cross-examination whether, if she had stayed and lived there on the farm, John would have lived with her. It was competent to ask her opinion upon this subject. She doubtless knew whether he would or not. But the court excluded the answer upon the ground that she could not know what he would have done in such a case. She had already testified that she' left him, and soon after sued for divorce, because she would not live longer upon the premises of defendant, and he would not provide another home.

The court refused to permit counsel to show that the defendant gave his son and his family provisions and other things, in which she and her children shared, “because they were gratuities to John.” We think this testimony was competent to show the existing relations and feeling of the‘defendant towards the family. The court said: ‘ ‘ The question is whether, by showing good feelings, you can overbalance the other feelings,” etc. And he proceeds by saying in the presence of the jury:

“It may be possible while he was living with the family —but I don’t express any opinion about that now — that he might be treating his son with extraordinary care and kindness for further purposes. I don’t think it is proper evidence to show the gratuities by the father, William Derham, to his son, John,” etc.

These remarks would have been more appropriate from plaintiff’s counsel.

John was asked whether he would have continued to live with plaintiff if she had not left him. The answer was erroneously excluded. Some dispute arises over the question, but, if the word “not” was omitted, as claimed, it was doubtless a clerical error. The case does not turn on this, however.

Testimony was given tending to show the reputed wealth of the defendant. In actions of slander and libel the reputed wealth is the important consideration, because it is the reputed, and. not the actual, wealth that affects the question of the slanderer’s credibility; and this court has held that testimony tending to show the actual pecuniary condition of a defendant is inadmissible. Farrand v. Aldrich, 85 Mich. 600 (48 N. W. 628); Brown v. Barnes, 39 Mich. 214 (33 Am. Rep. 375). In Randall v. Evening News Ass’n, 97 Mich. 138 (56 N. W. 362), it was said:

“Evidence of this character has been held competent by this court upon the sole ground that the defendant’s reputation in this respect is an element of social rank and influence, and may therefore tend to show the extent of the injury suffered.”

It was the actual, and not the reputed, wealth of the defendant, if either, that affected the question of damages; and therefore reputation, being hearsay, was inadmissible.

Counsel should have been permitted to ask the plaintiff when she began her divorce suit and her slander suit against the defendant, and their attendant circumstances. They might throw light on her reasons for leaving her husband, as well as upon the subject of damages.

The charge consisted mainly of requests to charge offered by the respective counsel. Several of those offered by plaintiff’s counsel began with the following language: “I charge you, if you should find from all the evidence in the case, and the circumstances surrounding the same,” etc. Just what was meant is not clear. It is true that a transaction is to be viewed in the light of surrounding circumstances shown by the evidence; but surrounding circumstances appear to be mentiohed and reiterated as though affording some light in addition to the evidence. It may or may not have been misunderstood, but the judge might prudently have explained what was meant by this language, or omitted it, giving an explanation of the rule in a general way. We think that the jury would have been aided by a connected charge, in which such requests as the court thought to be proper, and desired to give, might have been included in the proper connection. A charge made up solely from requests, given verbatim or with slight alterations, can rarely fail to be disjointed, and not comprehensive, and such are not infrequently confusing to the jury. A judge hardly discharges his full responsibility if he does not make plain to a jury thé nature of the questions they have to decide, and their bearing upon the case under consideration.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Per Curiam.

text:
    BROWN v. NAPPER.
    Tax Sales — Premature Decree.
    A decree of sale in a tax proceeding, entered on the fifth day after the day fixed for hearing the auditor general’s petition, the court having been in continuous session in the meantime, is not premature, within section 66 of the tax law of 1893, giving landowners five days after such day of hearing within which to appear and ask leave to file objections to the tax.
    Appeal from Alpena; Kelley, J.
    Submitted October 4, 1900.
    Decided October 31, 1900.
    Petition by George F. Brown and A. B. Cullen against Robert Napper and John E. Fitzpatrick for a writ of assistance. From an order granting the writ, respondents appeal.
    Affirmed.

      Black & Brown, for petitioners.

      J. D. Turnbull, for respondents.
   Per Curiam.

The only question involved in this case is the validity of a decree made for the delinquent taxes of 1893. The time fixed for the hearing of the petition of the auditor general was Monday, November 11, 1895. The court remained in session each day successively, up to and including Saturday, November 16th, at which time the decree was taken. Neither of the respondents appeared or objected to the entry of the decree. They now insist the decree was taken one day too soon. We think the recent cases of Gates v. Johnson, 121 Mich. 663 (80 N. W. 709), and Brown v. Mining Co., 123 Mich. 117 (81 N. W. 969), are controlling against the claim of respondents.

The decree of the court below is affirmed.