author: Kuhn, J.

text:
    KRICINOVICH v. AMERICAN CAR & FOUNDRY CO.
    1. Master and Servant — Workmen’s Compensation Law — Surgical Operation.
    It was error for the Industrial Aceident Board to deny defendant’s petition for relief from further payments to an injured employee until he should submit to an operation, where the undisputed testimony of the physicians showed that the operation was a minor one, involving little dangei and little suffering, and was not an experiment.

    2. Same — Agreement for Compensation — Statutes.
    An agreement for compensation to an injured employee, signed only by himself and his attorney, and not filed with the Industrial Accident Board, as required by section 5, pt. 3, Act No. 10, Extra Session 1912, was not binding on the parties, and the board had a right to disregard it.
    Certiorari to the Industrial Accident Board.
    Submitted May 18, 1916.
    (Docket No. 119.)
    Decided September 26, 1916.
    Peter Kricinovich presented his claim against the American Car & Foundry Company for compensation for a broken leg while in defendant’s employ. Defendant petitioned for relief from further payments unless claimant should submit to a minor surgical operation. From an order denying the petition, defendant brings certiorari.
    Reversed.

      Alexander & Cotter (G. A. Orth, of counsel), for appellant.

      Ira J. Pettiford, for appellee.

      As to effect of refusal of injured workman to have operation performed as bar to compensation under the workmen’s compensation act, see note in L. R. A. 1916A, 381.

   Kuhn, J.

The claimant, while in the employ of the defendant, suffered a compound fracture of the right leg between the knee and ankle, as a result of which he was confined to the hospital from December 5,1912, to April 25, 1913, and was operated on twice by Dr. Palmerlee, the defendant’s surgeon. He was treated until August 25, 1913, when the physician reported him well and able to work. The bone was then firmly united, and the wound had entirely healed, but the claimant still complained of pain, of which there were no objective symptoms.

The medical expenses were all paid by the defendant, as well as compensation at the rate of $6.43 per week (half the average weekly wages) until September 27,1913, when the company stopped payment. On November 11, 1913, an award was secured from the Industrial Accident Board relieving it from further payments. The claimant made claim upon the company for further compensation some time later, on account of inability to work, and the parties agreed on compensation at the rate of $4.28, or two-thirds the rate for total disability. This was paid from September 27, 1913, to July 17, 1915. The claimant then returned to work at a wage of 10 cents an hour, receiving in addition $3 a week as compensation. He worked only a week, and after five weeks the company discontinued paymehts altogether, and petitioned the Accident Board for relief from further payments until claimant should submit to an operation. The petition was denied, and the defendant was ordered to pay the claimant compensation at the rate of $6.43 a week up to September 16,1915, less payments actually made up to that time, and to pay compensation from that date forward until the condition should change to one of partial disability, at the same rate, and during partial disability to pay one-half the difference between his earnings prior to the injury and his earnings during the partial disability. A review of this award is now sought by a writ of certiorari. Counsel for appellant contend:

“(1) That the Industrial Accident Board erred in awarding claimant compensation from such time as the said claimant refused to comply with the demand made on him to submit to an operation such as is described in the evidence, and under the conditions that are presented in the record.
“(2) That the Industrial Accident Board erred in requiring the American Car & Foundry Company to pay compensation as for total disability from the 27th day of September, 1913.”

In substance, the testimony is: The three physicians who testified, and who were witnesses for the defendant, agreed that the operations performed on the claimant were successful and the wound had healed perfectly. Thereafter-there were no objective symptoms of pain, and the pain complained of by the claimant, if there were any, in their opinions could be caused only by the entanglement of a nerve filament in the scar, or in the callous thrown out by the bone in the healing process. They all recommended what they termed a slight operation, to chisel out some of the callous and loosen up the tissue. As said by Dr. Charles Kennedy:

“There would be no assurance that after the operation that condition would not obtain [but] that is the only way to cure it. * * * No; it is not an experiment, because [in] the large majority of cases that cures the condition.”

There was nothing in the claimant's physical condition or in the nature of the operation to make it dangerous to life or health. The “deputy commissioner,” so-called, who was a member of the arbitration committee, advised it, but the claimant steadfastly refused for the given reason that he was afraid they would cut off his leg. The claimant walked about considerably, and for considerable distances, though he complained that his leg pained and swelled up after a walk of 10 or 15 blocks. He said it was swollen when he was giving his testimony, but Dr. J. B. Kennedy examined it and stated that it was not swollen.

It is a reasonable and salutary rule that:

“If the operation is not attended with danger to life or health, or extraordinary suffering, and if, according to the best medical or surgical opinion, the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him.”

See Donnelly v. Baird & Co., 45 Scottish Law Rep. 394, 1 B. W. C. C. 95; Warncken v. Moreland & Son, 100 Law Times, 12, 2 B. W. C. C. 350.

The rule was recognized by this court in Jendrus v. Steel Products Co., 178 Mich. 265 (144 N. W. 563, L. R. A. 1916A, 381, Am. & Eng. Ann. Cas. 1915D, 476), where the cases are reviewed by Justice Stone. In that case the refusal to submit to an operation was held not to be unreasonable. But the facts in that case distinguish it from this one. First, it was a major operation of a serious nature; second, the claimant was unable to speak or understand English, and was unacquainted with his surroundings; third, he was suffering great pain when the operation was advised; fourth, he did submit finally to the operation, and that within 15 or 16 hours after it was first found necessary, though it was too late to save his life. Justice Stone refers to cases where the operation was nothing more than a “minor operation for a trifling injury,” as “clearly distinguishable from the instant case, which involved a major operation of a serious nature.”

The most that can be said in favor of the claimant is brought out by this colloquy between his counsel and Dr. Palmerlee:

“Q. There is no assurance after the operation you speak of, is there, that when it was healed over the same condition would [not] be present?
“A. That is true. '
“Q. It might be the same condition?
“A. Might be the same.”

Presumably there is no absolute certainty as to the results of any operation. The apparent confusion in the testimony of the three surgeons seems to grow out of a suspicion that the claimant was malingering. They could not see anything wrong with his leg, and “could not imagine what was wrong with him,” but they were obliged to accept his statement as true, and recommended the only measure they knew of to. cure the trouble. Since, according to the testimony of the surgeons, who were of unquestioned standing in their profession, little, if any, danger' is involved in the operation, and little suffering, and their diagnosis is not disputed, and the operation, according to the testimony, is not an experiment, and the defendant stands ready to bear all the expense of the operation and treatment, and has acted at all times with extreme fairness and consideration for the claimant, it would seem that, if he were a reasonable person, he would submit to the operation. Disinterested parties were sufficiently impressed with the testimony to encourage the claimant to submit, and the only reason offered for not agreeing to the proposal is a groundless fear that he will lose his leg, and possibly his life. Before the defendant is to be charged, in law or morals, with the duty to compensate him, the claimant should first discharge the primary duty owing to himself and society to make use of every available and reasonable means to make himself whole. This, in our opinion, he has not done, and the defendant seems to have discharged the burden of proving that the claimant’s refusal to submit to the operation to relieve him is unreasonable.

From this it follows that the Accident Board erred in awarding compensation after July 26,1915, at which time the defendant filed its petition to stop compensation until the claimant should submit to the operation.

The Accident Board in its award disregarded the agreement entered into between the claimant and defendant on January 6, 1915, for the payment after September 27, 1913, of two-thirds the compensation for‘total disability, and ordered compensation paid in full from that date. It appears that the memorandum of this agreement, which was merely a statement by the claimant, signed by himself and his attorney, that such a payment would be just and equitable, was not filed with the board, as required by section 5, pt. 3, Act No. 10, Pub. Acts, Extra Session 1912 (2 Comp. Laws 1915, § 5458), which reads as follows:

“If the employer, of the insurance company carrying such risk, or commissioner of insurance, as the case may be, and the injured employee reach an agreement in regard to compensation under this act, a memorandum of such agreement shall' be filed with the industrial accident board, and, if approved by it, shall be deemed final and binding upon the parties thereto. Such agreements shall be approved by said board only when the terms conform to the provisions of this act.”

It was therefore not binding on the parties, and the board had a right to disregard it.

The order of the board denying the defendant’s petition is reversed, and claimant should not be allowed compensation after July 26, 1915, until he submits to the operation.

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    AMERICAN FIDELITY CO. v. R. L. GINSBURG SONS’ CO.
    1. Judgment — Equity—Vacating Judgment — Jurisdiction.
    Where plaintiff failed to secure the relief sought by means of a motion for a new trial, and no new facts are set up in a bill of complaint, a court of equity should not take jurisdiction for the purpose of determining questions already determined on the law side of the court.

      2. Same — New Trial — Amendment of Declaration — Newly-Discovered Evidence.
    The denial of plaintiff’s motion for a new trial, based upon so-called newly-discovered evidence, also disposed of its motion to amend the declaration, based upon the same facts.
    Appeal from Wayne; Van Zile, J.
    Submitted June 16, 1916.
    (Docket No. 140.)
    Decided September 26, 1916.
    Bill by the American Fidelity Company against R. L. Ginsburg Sons’ Company to set aside a judgment, to restrain an execution, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Oxtoby & Wilkinson, for complainant.

      Lucking, H elf man, Lucking & Hanlon, for defendant.
   Brooke, J.

On June 28, 1910, plaintiff issued and delivered to the defendant company its manufacturers’ employers’ liability policy No. E-7712, indemnifying said defendant company against loss occasioned by claims against it by injured employees. The policy contained the following statement:

“No company has canceled or refused to issue any liability, elevator, or boiler insurance to the insured during the past three years, except as follows: None.”

The answer “none” was inserted by the defendant company. On September 8, 1910, plaintiff issued a second policy, No. E-7717, to defendant, which policy contained a similar clause. Between December 28, 1910, and July 14, 1911, plaintiff paid out under this policy $899.97 in indemnities. It is the claim of plaintiff that on July 31, 1911, it learned for the first time that the defendant company had previously been insured by the London Guaranty & Accident Company, Limited, and that this company had canceled its policy with defendant, to take effect June 28, 1910. Plaintiff then notified defendant that it considered the company had committed a breach of warranty, and that the two policies issued by it to defendant were void and of no effect from the beginning, whereupon certain agreements were entered into between the parties, by the terms of which plaintiff paid one-half and defendant one-half of the existing claims against defendant; it .being further agreed that the rights and liabilities of the parties should thereafter be adjusted by consent or through litigation, the payments to be made without prejudice to the rights of either party under and by virtue of the policies. Under these agreements the plaintiff paid on account of claims against defendant the sum of $4,355, and the defendant paid the sum of $3,248.50. On June 7, 1912, the plaintiff brought a suit at law against defendant to recover the $4,355 paid by it, and in that suit the defendant set up a counterclaim for the $3,248.50 contributed by it in the settlement of said claims. The issue thus raised in the suit at law came on for trial in the Wayne county court, and after a full hearing thereon a verdict.was directed against the plaintiff on its claim, and in favor of the defendant on its counterclaim for $3,248.50, upon which verdict judgment was duly entered.

It is the claim of plaintiff herein that after said judgment had been rendered against it, it learned, on, to wit, November 6, 1913, that defendant had previously been insured by the Empire State Surety Company, which had canceled its policy on July 30, 1909, to take effect on August 4, 1909, at which time defendant took out the policy of the London Guaranty & Accident Company, Limited.

Based upon these alleged facts, it is contended by plaintiff that the representation contained in the two policies in question, to the effect that no company had ever canceled or refused to issue liability insurance to the defendant within three years from the date of said policies, was false and fraudulent. Having acquired said alleged information, plaintiff made a motion for a new trial in the law case, and likewise for leave to amend its declaration so as to permit the introduction of the new evidence regarding the alleged cancellation of the Empire Surety Company policy. The motion for a new trial, when brought on to be heard, was denied, was renewed, and again denied. Plaintiff then appealed to the Supreme Court from the judgment rendered against it in the circuit court, and this court affirmed said judgment (187 Mich. 264 [153 N. W. 709]), and later denied a motion for rehearing.

Having failed in its action at law, plaintiff now files its bill of complaint, setting out at large the proceedings in the action at law, its several motions for new trial, the denial thereof, and the fact that an execution has now been issued against it for the amount of the judgment in the action at law. It prays for a decree vacating and canceling said judgment, and that the defendant, as well as the sheriff of Wayne county, be restrained from levying said execution upon any property of said plaintiff, or otherwise attempting to enforce said judgment. It further prays for a decree canceling its two policies E-7712 and E-7717, and for an accounting of the moneys paid by it under said policies, and for judgment and execution against the defendant therefor. Upon the filing of said bill a temporary injunction was issued as prayed, plaintiff having given a bond in the penal sum of $7,000, as required by the court. Defendant then moved the court below for an order dissolving said injunction and dismissing the bill of complaint. The motion to dismiss was based upon the averment that all matters touching which relief was prayed in said bill of complaint had been fully litigated in the law action.

In entering a decree dismissing plaintiff’s bill of complaint, the court filed a very exhaustive opinion, going at large into the history of the law case, with reference particularly to the two motions for new trial based upon the alleged discovery of another breach of the contract with reference to the cancellation of prior insurance. The reason given by the court for the denial of the motion for new trial was that the plaintiff’s agent, Erringer, had knowledge of the fact that the defendant was insured in other companies, and in soliciting the insurance for plaintiff company, he must have had knowledge that in some manner such earlier insurance must be terminated. In denying said motion the court said in part:

“It seems to me that under these circumstances the plaintiff company must have known by its agents and those in charge of its business that the defendant company had carried other insurance, and was carrying other insurance at the time of the solicitation by plaintiff, and that this policy of the Empire State Surety Company had been carried by the Ginsburg Sons’ Company, and that by following up the facts through the agents who were here in the city, at least all of the facts that are presented by this motion might have been known.
“For these reasons, the second application for a new trial in this cause is denied.”

When the law case came up to this court error was assigned upon the action of the court below upon denying the several motions for new trial. An examination of plaintiff’s brief in the law case in this court shows that this alleged error was discussed and relied upon. In affirming the judgment of the court below this question was necessarily passed upon. Under such circumstances, plaintiff having failed to secure the relief sought by means of motion for new trial, and no new facts being set up in the bill of complaint, a court of equity should not take jurisdiction for the purpose of determining questions already determined on the law side of the. court. In Miller v. Morse, 23 Mich. 365, it is said:

“If complainants presented their equities fully on the motion for a new trial, there is no legal justification for presenting the same matters again in this form; if they did not make a full showing then, they give no excuse now for the failure to do so; and in either case this suit is not maintainable.”

In Gray v. Barton, 62 Mich. 186 (28 N. W. 813), this court said:

“It seems to us that the complainant cannot ask, in a court of equity, for a new trial upon the ground of the misconduct of the jury. That matter he has litigated once upon the merits before the proper tribunal, in a court of law, and the decision there made by Judge Montgomery must be considered res judicata as far as that question is concerned. It was a matter resting in the discretion of the judge who tried the case. If he abused that discretion, this court was open to the complainant upon proceedings by mandamus to review his action. The complainant did not apply here, and the decision is therefore final. It does not avail him that he was not able to procure at that time all the evidence of the intoxication -and unfairness of the jurors that he now possesses. If the question was gone into at all, he is precluded from opening the issue again, and his bill shows that affidavits were submitted, tending to show, and also tending to disprove, the bias and drunkenness alleged. * * * Equity will not relieve a party against a judgment at law on the ground of its being contrary to justice, unless the defendant was ignorant of his defense pending the suit, or facts could not be received as a defense at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident, or the act of the opposite party from availing himself of his defense.”

See, also, Kelleher v. Boden, 55 Mich. 295 (21 N. W. 346); Valley City Desk Co. v. Insurance Co., 143 Mich. 468 (106 N. W. 1125), and the case of Folsom v. Ballard, 70 Fed. 12 (16 C. C. A. 593). In that court, three judges sitting, it was said:

“The motion for a new trial was filed in a law court in apt time, and considered upon its merits and overruled by the court during the term at which it was filed. * * * We are very clear that a bill in equity for a new trial cannot be maintained in such a case. A court of equity possesses no appellate or supervisory power over courts of law. And it is well settled that where a motion for a new trial has been made in the trial court and refused, it cannot be successfully renewed in the form of a bill in equity in a chancery court, on the same grounds.”

See, also, Hendrickson v. Bradley, 85 Fed. 508 (29 C. C. A. 303).

It seems to be the contention of appellant that the trial court in the law action passed only upon plaintiff’s motion for a new trial, and, having denied that, he could not, and did not, pass upon plaintiff’s motion for leave to amend its declaration. The further contention is that the matter sought to be litigated in the chancery proceeding was therefore not an issue in the law case. Counsel for appellant admits that his fifth ground for the granting of a new trial was so-called newly discovered evidence of the cancellation of the. Empire policy. He asserts, however, that although the trial judge passed upon said ground in denying the motion, it was not a proper reason for the granting of a new trial. The objection is made by counsel for appellant that the trial court did not pass upon and consider its. motion to amend. As the amendment sought was simply to set out the facts with relation to the cancellation of the Empire policy, and as the fifth ground for a motion for new trial set up those facts as newly discovered evidence, we are unable to see why, in effect, the denial, of the motion for a new trial did not dispose of the application for leave to amend. We have examined with care the authorities cited in -support of the position taken by appellant. The general principles of law contended for are not questioned, but, in our opinion, are not applicable to the facts in the case at bar. There would seem to be no escape from a conclusion that every issue raised by the bill of complaint in this case was fully considered and finally determined against plaintiff’s contention in the action at law. i

The decree dismissing the bill is ¿ffirmed, with costs.

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


text:
      In re FOX’S ESTATE. MICHIGAN TRUST CO. v. FOX.
    2. Appeal and Ep.eoe — Finding by Covet — Evidence.
    The finding of the court, sitting without a jury, cannot he disturbed, on appeal, if there is any evidence to sustain it.

      2. Wills — Revocation of Part — Statutory Construction.
    Under section 9270, 3 Comp. Laws (3 Comp. Laws 1915, § 11825), a testator might, either by burning, tearing, canceling, or obliterating, revoke a part of bis will if the act was done intentione revocandi.

    3. Same — Revocation—Pencil.
    The fact that a pencil instead of a pen was used in canceling a section of a will is not significant; either instrumentality may be used.
    4. Same — Revocation of Part — Finding of Court — Intent.
    Where the will was in the possession of the testator up to the time of bis death, and it is conceded that the marks obliterating a section were made by him, held, sufficient to sustain the finding of the court below, that said section was obliterated with the intention of revoking it.
    Error to Kent; Perkins, J.
    Submitted June 14, 1916.
    (Docket No. 111.)
    Decided September 26, 1916.
    The Michigan Trust Company presented for probate the last will and testament of Charles Fox, deceased. The will was allowed in the probate court, and Corinne H. Fox appealed to the circuit court. The Masonic Temple Association intervened claiming interests. Judgment for contestant as to portion of said will. Intervener brings error.
    Affirmed.

      E. A. Maher, for appellant.

      Norris, McPherson, Harrington & Waer, for appellee Fox.
    In this case the contention arises between the Masonic Temple Association of Grand Rapids and Corinne EL Fox, contestant, and involves only one section (18) of the will of Charles Fox. The will was made by the testator on October 22, 1906, and consisted of 22 sections. The substance of the various sections was as follows:
    ‘T, 2, 3. A devise and bequest of all the estate to the Michigan Trust Company as trustee, to have the care and management of the estate subject to provisions of the will, to pay all debts and funeral expenses, and further:

      “4, 5. To pay the Union Benevolent Association and Butterworth Hospital of Grand Rapids $2,500 each.
    “6. Creating a trust fund of $6,000 for the care and maintenance of the cemetery on Grosse He, Mich.

      “7. To permit the contestant, Corinne H. Fox, the use of his homestead, during her lifetime, or at her option to have another homestead purchased at the cost of $25,000 and conveyed to her.
    “8. To permit the contestant to have the use of the household furnishings, etc., during her lifetime.
    “9. To pay the contestant $35,000, in sums of $5,000 each year, with provisions in favor of Louise Rucker, Sarah Eliza Whitall, and Julie M. Hinsdill, in the event of the death of contestant before all of the payments should be made.
    “10. To pay the testator’s cousin, John Anthony D. Rucker, $25,000, in sums of $5,000 each.
    “11. To pay to the contestant’ the income of the residue of the estate during her natural life, this being in lieu of dower and of any interest that she might have in the estate:
    “12, 13, 14, 15. After the decease of the contestant to pay to Louise Rucker, Sallie Rucker, Sarah Eliza Whitall, and Julie M. Hinsdill $600 per annum each during their respective lives.
    “16. After the death of the contestant to pay the net income of the residuum of the estate to John Anthony D. Rucker during his natural life.
    “17. Upon the decease of John Anthony Rucker the entire residuum of the estate should go to said Ruck-er’s child or children.
    “18(1). In case the said John Anthony D. Rucker should die without leaving any child or children surviving, the executor was directed to convey certain real estate on South Ionia street in Grand Rapids to certain persons as trustees for the several Masonic bodies of the city of Grand Rapids.
    “18(2). Tn case the said John Anthony D. Rucker shall die without issue him surviving, and after the death of my said wife, Corinne H. Fox, I direct my said executor to transfer, assign and deliver to the University of the State of Michigan, my father’s picture.’
    “19. Tn case the said John Anthony D. Rucker, shall die' without issue him surviving, and after the death of my wife, Corinne H. Fox, I direct my said executor to transfer, assign and deliver to the board of library commissioners of the city of Grand Rapids, Michigan, and their successors, forever, all my books, pictures, paintings, engravings, and works of art.’
    “20. Tn ease the ’said John Anthony D. Rucker shall die without any child or children him surviving, and after the decease of my said wife, I direct my said executor to transfer, assign, and convey all the rest, residue and remainder of my estate, both real and personal in equal shares and proportions to the Union Benevolent Association of the city of Grand Rapids, Michigan, and to Butterworth Hospital of the said city of Grand Rapids, for the uses and purposes of those hospitals forever.’
    “21. Tn case I shall die leaving a child, or children me surviving, then and in that case, none of the paragraphs of this my will except paragraphs 1 to 9 inclusive, and paragraph 22 shall take effect.’
    “22. ‘I hereby nominate and appoint the Michigan Trust Company of the said city of Grand Rapids, Michigan, as executor of this my last will and testament, hereby revoking all other wills by me made.’ ”
    The testator died on April 16, 1915, at Cincinnati while on his way from Augusta, Ga., to Grand Rapids, his home. In his lifetime deceased had a private safety deposit box in the Michigan Trust Company. This box was examined after his death, but no will was found, although he was in the habit of placing all valuable papers therein. Later an examination was made by his widow, the contestant, of a trunk which he and his wife had had with them in Augusta. There the alleged will was found among other papers of no particular value, such as bills, receipts, and memorandums. At the time of its discovery, and as it was presented in the probate court, it bore many evidences of obliteration and interlineation. Among the principal changes and obliterations are the following:
    Section 4, though still legible, was entirely obliterated by drawing with a heavy black pencil a line through each line of said section.
    Section 5. The words “twenty-five hundred” are changed to “five thousand,” and the words “to be invested by” are inserted, and the words “one year” changed to “two years.”
    Section 6. The word “six” is changed to “seven” in front of the word “thousand.”
    Section 7. The word “five” after the word “twenty” and before the word “thousand” is obliterated.
    Section 8 is unchanged.
    Section 9. The words “five thousand dollars” are obliterated and “$2,500” in figures written above in the second line of said section and again in the third line, and the succeeding twelve lines of said section are wholly obliterated, though still legible, by drawing heavy lines through the typewriting.
    Section 10 is likewise wholly obliterated in the same manner.
    Section 11. After-the words “net income” there is inserted the words, “except as hereinafter mentioned.”
    ' Sections 12 and 13 are wholly obliterated by scribbling over them with heavy black pencil marks.
    Section 14. The sum of “six hundred” is stricken out and “one thousand” written in place thereof, and the last line of said section, “from the decease of my said wife to the death of the said Sarah Eliza Whitall.”
    Section 15. The words “six hundred” are stricken out and “one thousand” written in; the word “semiannual” stricken out and “monthly” written in.
    Sections 16, 17, 18(1), and 18(2) are wholly obliterated by the use*of heavy black pencil lines.
    Section 19. The first two lines are obliterated. They read as follows:
    • “In case the said John Anthony D. Rucker shall die without issue him surviving, and after the death of my wife, Corinne H. Fox.”
    Sections 20, 21, and 22 were not tampered with.
    The signature of the testator and the attestation clause, with the signatures of the witnesses, were free from any marks or interlineations. It is beyond question that all of the interlineations and obliterating marks placed upon the original instrument were made by the testator in his lifetime.
    In order that the profession may have a knowledge of the obliterating marks we reproduce herewith a copy of the fourth page of said will containing clauses 15, 16, and 17 and the first portion of clause 18.
    It will be borne in mind that clause 18 is the one over which the controversy arises in this case. Upon presentation to the probate court the will was admitted to probate in its entirety, and as if it bore no obliterating marks or interlineations. Upon appeal to the circuit court the court, without a jury, held that all the unmarked clauses and all the clauses which were merely modified in phraseology or in amount should stand as the will of the testator; the interlined clauses to stand as originally written. With reference to clause 18 the court said:
    “Clause 18 appears to have been more thoroughly obliterated than any of the others. It appears, also, that the purpose, plans, and place of meeting of the various Masonic bodies mentioned in this clause were

      changed after the execution of this will; that a new building has since been erected by these bodies which they are now occupying; that they have vacated the building mentioned in this clause, and that they contemplated such vacation from the time the plans for a new Masonic temple were conceived. Had the testator knowledge of these plans there is every reason to believe that he would desire to revoke this clause. There can be no doubt of such knowledge. The marks on this clause indicate it. They also indicate a clear intent to revoke it.”
    The record discloses that prior to the hearing in the circuit court the Butterworth Hospital, the Union Benevolent Association Hospital, and John Anthony D. Rucker, together with his wife, had assigned any interest which they or either of them had or might have under the will to Corinne H. Fox, widow and contestant. From the order establishing the will in part, the contestant does not appeal.
    The intervener, the Masonic Temple Association, reviews the determination of the court below, as its interests are affected by the ruling of the court to the effect that section 18 was revoked by the testator by obliteration with the intention of revocation.

      Upon the question of revocation of part of will by mutilation, destruction, cancelation, etc., see notes in 38 L. R. A. (N. S.) 797; 51 L. R. A. (N. S.) 169.

   Brooke, J.

(after stating the facts). The statute covering the question involved (3 Comp. Laws, § 9270 [3 Comp. Laws 1915, § 11825]) follows:

“No will nor any part thereof shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution oí a will; excepting only that nothing contained in" this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”

Under this statute it is the assertion of the intervening appellant that the burden of proof rests upon the party asserting a revocation to establish by competent evidence, not only an intent to revoke, but an appropriate act to work a revocation. It is said:

“An intention to revoke cannot be presumed from acts that are in themselves incomplete and inconclusive, and are as readily accounted for in some other way” (citing Safe Deposit & Trust Co. v. Thom, 117 Md. 154-163 [83 Atl. 45]; 30 Am. & Eng. Enc. Law [2d Ed.], p. 633).

And it is argued that, even admitting the interlineations and obliterating marks were made by the testator in his lifetime while mentally competent, the deduction that the obliterating marks were made with the intention of revoking the sections obliterated cannot properly be drawn. Counsel says:

“The instrument with the markings upon it is too loose and incongruous to be considered as expressing his intention, and such parts of the instrument as were entered in the judgment of the court below, as the will of the deceased, do not, by themselves, afford sufficient data for a determination of what the testator meant.”

In considering this appeal we must again point out that the propriety of the judgment of the court below in establishing certain portions of the will is not before us for consideration. We are only concerned in determining whether the court was correct in holding that section 18 was obliterated by the testator with the intention of revoking it. Assuming that the burden rested upon the contestant to show that section 18 was revoked by the testator in his lifetime, counsel for contestant assert that that burden has been met.

In considering the matter in this court we are dealing with the finding of a court without a jury — a finding of fact to the effect that section 18 was obliterated by the testator with the intention of revoking it. Under our authorities, if there is any evidence to sustain such finding, it cannot be disturbed in this court.

While we have no case in Michigan involving a partial revocation controlling of the case at bar, there is an abundance of authority in other States under statutes identical, either in language or principle, with our own. A few of them follow: In re Wikman, 148 Cal. 642 (84 Pac. 212); Varnon v. Varnon, 67 Mo. App. 534, where the court states:

“This statute means that there may be a partial revocation of a will; the balance remaining intact. This is announced as the law in jurisdictions governed by similar statutes” (citing Bigelow v. Gillott, 123 Mass. 102 [25 Am. Rep. 32]; Schouler on Wills, §§ 389, 397; Tomlinson’s Estate, 133 Pa. 245 [19 Atl. 482, 19 Am. St. Rep. 637]).

The Massachusetts statute (Gen. Stat. 1860, chap. 92, § 11), covering the question, is as follows:

“No will shall be revoked, unless by burning, tearing, canceling, or obliterating, the same with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction.”

It will be noticed that this statute omits the words, “nor any part thereof,” or “any clause thereof,” yet under this statute the court in Bigelow v. Gillott, supra, held a partial revocation might be accomplished, saying:

“The power to revoke a will includes the power to revoke any part of it.”

See, also, Home of the Aged v. Bantz, 107 Md. 543 (69 Atl. 376); In re Kirkpatrick, 22 N. J. Eq. 463; Hilyard v. Wood, 71 N. J. Eq. 214 (63 Atl. 7); Brown v. Brown, 91 S. C. 101 (74 S. E. 135); Brown’s Will, 1 B. Mon. (40 Ky.) 56 (35 Am. Dec. 174); Well’s Will, 4 T. B. Mon. (20 Ky.) 152 (16 Am. Dec. 150); Linnard’s Appeal, 93 Pa. 313 (39 Am. Rep. 753); Tudor v. Tudor, 17 B. Mon. (56 Ky.) 383; Safe Deposit & Trust Co. v. Thom, supra; Barfield v. Carr, 169 N. C. 574 (86 S. E. 498).

Counsel for appellant contends that a history of the legislation indicates an intention on the part of the legislature to permit revocation of a will only as a whole, and that the act of revocation to become operative must be such as to destroy the effect of the entire instrument. Counsel indulge in a considerable discussion upon statutory construction which we do not deem it necessary to follow. The plain language of the statute itself is sufficient to answer the contention of the appellant, “No will, nor any part thereof.” The opening words of the section are píain, unambiguous, and easy of comprehension; they mean just what they say; and, in the absence of all authority, it would be necessary to hold that the legislative intent, as expressed in the language used, was that a testator might, either by burning, tearing, canceling, or obliterating, revoke a part of his will if the act was done intentione revocandi.

The fact that a pencil, instead of a pen, was used in canceling or obliterating section 18 is not significant. Either instrumentality may be used. Hilyard v. Wood, supra; Tomlinson’s Estate, supra; McIntyre v. McIntyre, 120 Ga. 67 (47 S. E. 501, 102 Am. St. Rep. 71, 1 Am. & Eng. Ann. Cas. 606).

Was there evidence to sustain the finding of the court that section 18 was obliterated with the intention of revoking it? A long line of authorities in various States hold that, where the will is found among the testator’s papers with lines drawn through or across certain phrases or clauses, a presumption arises that the cancellation was made by the testator with the intent to revoke. In the case at bar recourse need not be had to the presumption as to who made the obliterating marks upon section 18. It is conceded they were made by the testator. The question of intention still remains. A similar question arose in the case of In re Wikman, supra. There the court said:

“The only remaining question is whether the evidence sustains the finding, under No. 4, that the cancellation was done by the testator with the intent and' purpose of revoking that part of the will by which appellant was appointed executrix. This is a finding of fact, and must be sustained if there is any reasonable amount of evidence supporting it. It appears in this case, as before stated, that the will was in the possession of the testator from the time of its execution until his death; that immediately after his death it was found among his effects in his trunk; and that when so found the ink lines were over and through the words as above described. These circumstances were sufficient to warrant the court in making the finding, and it was substantially so held by this court in Estate of Olmsted, 122 Cal. 224 (54 Pac. 745).”

See, also, In re White, 25 N. J. Eq. 501; Home of the Aged v. Bantz, supra; In re Hopkins’ Will, 172 N. Y. 360 (65 N. E. 173, 65 L. R. A. 95, 92 Am. St. Rep. 746); Hilyard v. Wood, supra; Tomlinson’s Estate, supra; McIntyre v. McIntyre, supra; Safe Deposit & Trust Co. v. Thom, supra; 1 Jarman on Wills, p. 119; 1 Williams on Executors, p. 85; 1 Redfield on Wills, p. 307; Burton v. Wylde, 261 Ill. 397 (103 N. E. 976).

Whatever may be said as to the propriety of probating a portion of this instrument as the will of the testator, we have no hesitation whatever in agreeing with the finding of the circuit judge that section 18 was obliterated by the testator with the intention of revoking it. Error is assigned upon the admission of certain testimony. As the case must be disposed of on the fundamental question discussed, it is unnecessary to examine those assignments.

The judgment is affirmed.

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


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    JONES v. CITY OF BATTLE CREEK.
    Municipal Corporations — Cities—Public Oeeicer.
    Where, previous to the adoption of a charter under the new Constitution, a stockkeeper was appointed by the mayor of a city and held office at a weekly salary, and later a new charter was adopted providing that all appointive officers having indefinite tenure should continue in office under the charter until successors were appointed, and where the official took an oath of office and his duties consisted in having charge of the brickyard where tools and implements were located and a key of the brickyard and building therein, he was an employee and did not belong to the class of appointive officers.
    Error to Calhoun; Weimer, J., presiding.
    Submitted June 20, 1916.
    (Docket No. 92.)
    Decided September 26, 1916.
    Assumpsit by M. J. Jones against the city of Battle Creek for salary as city stockkeeper. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed, and no new trial ordered.

      Howard W. Cavanagh (Stevenson, Carpenter, Butzel & Backus, of counsel), for appellant.

      N. A. Cobb, for appellee.
    On June 19, 1911, the common council of the defendant city passed the following resolution:
    “Resolved by the common council of Battle Creek that, in accordance with the recommendation of the mayor, a stockkeeper be appointed to look after the properties at the city shed at a salary of $12 a week.”

      On the same date the mayor appointed the plaintiff, M. J. Jones, stockkeeper, and asked the council to confirm the appointment, which was done.
    On April 15, 1912, the mayor appointed certain officers and employees to various positions for the ensuing year, and among them the plaintiff. This appointment by its terms expired on April 15, 1913.
    On April 10, 1913, a new charter was adopted by the city of Battle Creek, which went into effect on that date, chapter 9, § 1, of which provides in part:
    “And provided, that all appointive officers heretofore appointed by the mayor and common council, the board of public works or police commission, whose appointment was made for a definite or indefinite term of office, and whose term of office shall not have expired when this charter shall go into effect, they and each of them may and shall continue in office under this charter until their successors are appointed by the commission, at which time their term of office shall expire.”
    On the 20th day of April, 1912, plaintiff took an oath of office to the effect that he would support the Constitution of the United States and the State of Michigan, and faithfully discharge the duties of the office of stockkeeper for the city of Battle Creek to the best of his ability.
    After the expiration of the year for which plaintiff was appointed he continued to perform the duties of his position until April 21st, upon which. date one Shoupe was appointed street commissioner, and at the same time was appointed stockkeeper to act without pay, and his appointment was confirmed by the unanimous vote of the common council.
    On the morning of April 22, 1913, plaintiff reported for duty, and found Mr. Shoupe in possession of the office, with the doors unlocked and the desk open. He remarked to Mr. Shoupe, “I guess you got my job,” left his key on the desk, and departed. From that day until the decision in the case of North v. City of Battle Creek, 185 Mich. 592 (152 N. W. 194), plaintiff made no demand upon the defendant city for wages, nor did he at any time tender his services to the defendant city.
    It is the claim of defendant that plaintiff was not an appointive officer within the meaning of the new charter relied upon, which was successfully invoked in North v. City of Battle Creek, supra. The defendant asserts that plaintiff was a mere employee. It is further claimed in behalf of defendant that, even if it be held that plaintiff was an officer, within the meaning of the charter provision, he, by his conduct at the time his successor was appointed and assumed the duties of the office, has estopped himself from now claiming pay for work which he neither performed nor offered to perform, and in this behalf it is the further claim of defendant that his conduct amounted to an abandonment of his office.
    In the court below a verdict was directed in favor of the plaintiff for the amount of his wages from the date of the appointment of Shoupe to the date of the rendition of the opinion in the North Case some two years later; the latter date being adopted by the court with consent of plaintiff’s counsel. ■
   Brooke, J.

(after stating the facts). The record fails to disclose that under either the new or the old charter of the city of Battle Creek is there any office provided for under the name of “stockkeeper.” It will be noticed, too, that the resolution providing for the plaintiff’s appointment recites simply that:

“A stockkeeper be appointed to look after the properties at the city shed at a salary of $12.00 a week.”

It seems to us that the contention that one, even though appointed by the mayor and common council, who performs duties such as were performed by the plaintiff in this case, is a public officer, is wholly untenable.

The mayor, defining the duties of plaintiff, in his testimony, said:

“He had some sort of charge of the city yard where the tools, the road scrapers, plows and tools, brick, and all material are located and fenced in and big gates where the teams drove in. I also found that he had a key to that yard and the little building. There was a little building there in which some of the stuff was kept under cover, and that he let the city employees in with material and out taking material and tools out and that he kept the globes for the street lights in that building and that they were delivered to him by the man who took care of the lights.”

We have lately (Blynn v. City of Pontiac, 185 Mich. 35 [151 N. W. 681]) had occasion to inquire with care into the distinction between a public officer and an employee, and the various authorities bearing upon the question will be found there collected. For the purpose of determining the issue in this case it is unnecessary to go further than to cite the case of Throop v. Langdon, 40 Mich. 673. There Justice Cooley said:

“In this case the facts are stipulated, and are given in the margin. We find among them no evidence that an office known as chief clerk in the office of the assessor of Detroit has ever been created. A person has been appointed and has acted under the designation of chief clerk, but no statute or ordinance has given him that title, and if he were now to be called and to style himself in the discharge of his duties head clerk, or leading clerk, or assistant to the assessor, or assessor’s amanuensis, it would, for aught we can discover, be equally well; for nothing whatever depends upon the name. Indeed, we can discover no necessity for his making use of the title at all, except perhaps to indicate to those with whom he was transacting business that he was not an intruder in the assessor’s office. Nor do we find in the facts stipulated or in any law or ordinance the requirement of an official oath. It is said that the usual oath of office has sometimes and perhaps always been administered, but why administered we do not understand. The fact of its being taken cannot prove that the clerk is an officer; at most, it could only evidence his belief that he was one, or perhaps his caution to observe all forms that possibly might turn out to be essential. It was, we think, a needless ceremony.
“Nor do the duties usually performed by the chief clerk indicate an office rather than an employment. Nothing but custom has defined them, and custom has certainly not been very specific, except in excluding him from all ‘the official functions, power, and authority appertaining to the office of assessor,’ and from ‘representing the assessor in any official act or duty.’ * * * Nor is there anything significant in the fact that the chief clerk is independent of the assessor in the tenure of his position. The common council might give the assessor a janitor equally independent in that particular, but the janitor would not be an officer.”

See, also, U. S. v. Maurice, 26 Fed. Cas. p. 1211, where Chief Justice Marshall said:

“Although an office is ‘an employment,’ it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to do an act, or perform a service, without becoming an officer.”

And see City of Ellsworth v. Rossiter, 46 Kan. 237 (26 Pac. 674).

Judgment is reversed, and there will be no new trial.

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


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    THOMPSON v. ADDISON FLOURING MILL CO.
    1. Waters and Watercourses — Water Rights — Parties.
    In a chancery proceeding to compel a mill company to maintain a low water level, where other proprietors of riparian rights interested in the water level being maintained at a lower point were not parties, the court could not by its decree foreclose their rights.
    2. Same.

      Held, on review of all the evidence in said cause, that a decree which established defendant’s prescriptive right to raise the waters of the lake above a fixed point on the sill of the flume was not justified, and complainants’ bill should be dismissed.
    Appeal from Lenawee; O’Mealey, J.
    Submitted June 22, 1916.
    (Docket No. 94.)
    Decided September 26, 1916.
    Bill by Gamaliel I. Thompson and others against the Addison Flouring Mill Company to restrain the lowering of the waters in Devils Lake. From a decree for defendant, complainants appeal. Decree entered dismissing the bill.

      John A. Riley and Fellows & Chandler, for complainants.

      Baldwin, Alexander & Russell, for defendant.
    Plaintiffs in this action are all owners of property bordering Devils Lake, which is a small inland lake in Lenawee county. These plaintiffs have erected cottages upon their property which they occupy dur? ing the summer months, and many own launches and smaller boats, and have built docks and boathouses for their convenience.

      Defendant, the Addison Flouring Mill Company, owns and operates a mill in the village of Addison., This mill is situated on the bank of Bean creek, or Tiffin river, which is the outlet of Devils Lake. A flume was put in at the natural outlet of Devils Lake about 1848. It is 4 feet wide, and the gate is about 40 inches high. Since 1848 the defendant company has used this flume by right of prescription and through grant. Defendant acquired this mill property from Azariel Smith and wife in 1906, together with rights in a certain contract which said Smith had made with the village of Addison to furnish power for an electric light plant in the village.
    It is claimed by plaintiffs that said Smith dredged out and lowered Bean creek, or Tiffin river, from the outlet at Devils Lake to a depth of 3 feet for the purpose of securing power for the lighting plant in Addison, thereby allowing a greater quantity of water to pass through the outlet. Plaintiffs further claim that previous to the summer of 1910 the gates at the head of the flume were never raised sufficiently to permit the water of Devils Lake to run out to a much lower level than they would by nature, but that in 1910 the gates were raised, and the water was allowed to run through the channel to such an extent that the lake- in front of the cottages of the plaintiffs was lowered about a foot and a half, so that they could not use their launches, making their docks and boathouses useless, and leaving great stretches of dry lake bottom in front of their cottages. Plaintiffs further claim that defendant has acquired the right by prescription to flood plaintiffs’ land to an artificial highwater mark, claimed to be 40 to 42 inches above the bottom of the flume-in the ordinary year, and to withdraw water to an artificial ordinary low-water point about 20 inches above the bottom of the flume, which plaintiffs claim defendant had previously maintained.

      Defendant denies that the bed of Bean creek was ever dug lower than the bottom of the flume, stating that it was its custom to clean out the muck and weeds from the channel between the flume and the lake every few years, but that it had never believed it had a right to lower this channel, and had never attempted to do so.
    Defendant denies that an artificial low-water mark was ever established or maintained, claiming that it has always lowered and raised the flume gate to suit its requirements as regards water supply at the mill, and that practically every year in the late summer and fall the gate has been raised entirely above the water, allowing the water to pass freely through the flume, thus taking its natural course; and defendant further claims that it has not used any more water since furnishing power for the electric plant than previously, as it has always used all the water it could possibly get during the dry seasons for over 40 years, and if it could have got any more it would not have installed an auxiliary steam plant at its mill. Defendant produced evidence tending to show that the summer of 1910 was an exceptionally dry one, and that the lake became low, not by reason of anything done by defendant, but by reason of evaporation, slight rainfall, etc. Defendant claims that it has no intention of varying or changing the riparian rights of the plaintiffs, but simply intends to use and exercise the rights of the flume as it has in the past, taking the seasons into consideration, and that it is entitled to do so by prescription and by deed.
    It was held in the court below that the allegations in the plaintiffs’ bill of complaint were not sustained by proof and the bill was dismissed.
   Brooke, J.

(after stating the facts). A careful perusal of the very voluminous record in this cause convinces us that the following facts are established by an overwhelming preponderance of the proofs:

(1) The defendant has not lowered the channel through which the water of Devils Lake entered the flume maintained by defendant in such manner as to cause the waters of the lake to flow therefrom to a greater degree than they would have flowed in a state of nature.

(2) The sill of the flume through which the excess waters of Devils Lake must flow has been maintained at its present level for upwards of 40 years.

(3) Defendant has acquired by prescription the right to impound the waters of Devils Lake .by the insertion of flashboards or a gate in said flume.

(4) For a period of upwards of 40 years defendant and its predecessors in title have claimed and exercised the right to draw the impounded waters from said lake as they were required for the purpose of producing power.

(5) In seasons of low water this right has been consistently exercised to the extent that defendant and its predecessors in title would remove all the flash-boards or lift the gate so that the water flowed without restraint over the sill.

(6) In one, possibly two, exceptionally arid seasons, either by reason of diminished precipitation or excessive evaporation, the level of the lake has been lowered to a point where no water flowed over the sill of the flume. To afford power during periods of extraordinary low water, defendant’s predecessors in title installed an auxiliary steam plant which has been operated as occasion required for many years.

(7) Lower riparian owners have acquired a prescriptive right to the continued use and flowage of the waters of Devils Lake unimpeded by a permanent barrier above the sill of the flume.

(8) During the year 1910 and the first half of 1911 the amount of precipitation was 17 inches below normal. Plaintiffs complained of the low state of the water during this period. The condition should be ascribed rather to decreased rainfall than to excessive use of the water by defendant, who in those years manipulated the gate in the flume in the same manner as it had been manipulated through a long series of years.

(9) The claim of plaintiffs that an artificial low level at a point between 17 and 23 inches above the sill of the flume has been maintained by the defendant and its predecessors in title, and that plaintiffs have acquired a prescriptive right to have the water maintained at such level, is not sustained by the proofs in the case.

The record discloses that, while the plaintiffs are interested in maintaining a high level of the waters of Devils Lake, farmers in its vicinity are equally interested each season in an early lowering of said level in order that the lands affected may be rendered fit for husbandry. Parties so interested in the lowering of the waters of the lake, and from a perusal of the record there appear to be many of them, are not parties to this record, and their rights, whatever they may be, should not be concluded by any decree herein. Inasmuch, therefore, as plaintiffs’ contention involves only the right of defendant to lower the lake to the point of taking all the water therein that will flow over the sill of the flume, and as plaintiffs’ proofs failed to show them to be entitled to the relief prayed, we agree with the decree of the court below in dismissing the bill of complaint. We disagree with that portion of the decree which establishes in defendant a prescriptive right to raise the waters of the lake to a certain fixed point above the sill of the flume.' We reach this conclusion not because defendant may not be entitled to such a prescriptive right, but because the question whether it was so entitled was not properly an issue in the case, and the rights of the interested persons not parties to the record should not be foreclosed by such a decree.

In this court a decree will be entered simply dismissing plaintiffs’ bill, with costs.

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


text:
    W. C. STERLING & SON CO. v. WATSON & BENNETT CO.
    Contracts — Evidence—Acceptance.
    The question being whether or not a contract exists and the evidence conflicting, a question for the jury is presented: and plaintiff, who forwarded to defendant a contract calling for a quantity of poles, which defendant signed, but added after the quantity indicated the words “more or less,” which contract plaintiff later signed, striking out the word “less,” did not thereby accept the proposal or do more than make a series of offers.
    Error to Chippewa; O’Brien, J., presiding.
    Submitted June 26, 1916.
    (Docket No. 133.)
    Decided September 26, 1916.
    Assumpsit by W. C. Sterling & Son Company against Watson & Bennett Company for money had and received. Judgment for plaintiff on á directed verdict. Defendant brings error.
    Affirmed.

      Davidson & Hudson, for appellant.

      Warner & Sullivan, for appellee.
    W. C. Sterling & Son Company, plaintiff, does business at Monroe, Mich. Watson & Bennett Company, the defendant, does business at De Tour, Mich. Both companies are in the lumber business.
    In 1914 Mr. Sayers, an agent of plaintiff, had a conversation with Mr. Watson, representing the defendant, regarding a proposed contract with defendant, and later Mr. Johnson, also an agent of plaintiff, sent Mr. Sayers a draft of a contract to be signed by defendant which called for 20 M. cedar ties or more and 4 M. or more poles. Mr. Watson, acting for defendant, changed this to 1 M. poles, signed it, and returned it. Mr. Sayers then sent back another contract calling for 20 M. ties and 4 M. poles, which contract, in the presence of Mr. Sayers, Mr. Watson changed to read: “4 M. poles, more or less.” This contract Mr. Sayers agreed to submit to his company for signature. Later Mr. Watson saw this contract after he had signed it, but the word “less” had been stricken out and the word “more” left in. It was, however, never delivered to Mr. Watson' in its corrected form, and he never did, and, according to his testimony, never would have agreed to it with the word “less” stricken out. While the parties were thus seeking to agree upon the details of the contract, plaintiffs advanced the defendants the sum of $6,000, and defendants delivered to plaintiffs a cargo of forest products worth $455.51 less than the amount advanced. Plaintiffs are now seeking to recover the sum advanced by them in excess of the value of the cargo which they received.
    It is the contention of plaintiff that, as the contract was sent back and forth between the parties with changes made every time which were not assented to, the whole transaction amounts to no more than a series of offers, none of which were accepted in terms, and that no contract was, in fact, ever entered into between the parties, although both parties acted under the assumption that a valid contract subsisted; the plaintiff believing that it was entitled to receive 4 M. or more poles, whereas the defendant believed that it was to furnish 4 M. more or less.
    Defendant set up a claim for recoupment upon the theory that there was a subsisting contract, and that plaintiff had breached it by refusal to receive the balance of the timber provided for in the various drafts thereof, and that the defendant had been consequently injured in an amount upwards of $3,000.
    The trial court directed a verdict for the plaintiff for the sum of $455.51, and interest, and held that defendant’s claim for recoupment was abortive, for the reason that there was no evidence tending to show that a valid contract had been entered into between the parties.
   Brooke, J.

(after stating the facts). Defendant has brought the case to this court by writ of error, claiming that the court erred in failing to submit the same to the jury for the determination of the following questions:

(a) Was a contract made?

(b) If so, what was the contract?

(e) Was the contract broken by plaintiff?

(d) If so, what damage did defendant suffer as a result of such breach?

While it is admitted that a meeting of minds upon all essential points is necessary to constitute a valid contract, and, further, that it is the province of the court to construe a document and determine whether or not a valid contract exists, it is still contended by appellant that, where the question is whether or not a contract exists, and where the evidence is conflicting, it is a question for the determination of the jury, and not of the court. Many authorities are cited supporting this proposition, and.there can be no doubt of its soundness. The question still remains, however, whether the court erred in determining that under the undisputed testimony no valid contract was shown.

The evidence of Thomas H. Watson, the president of the defendant company, it seems to us, should set at rest the claim of defendant that a valid contract subsisted between the parties. We quote a portion of his testimony upon cross-examinátion as follows:

“Q. After you made your first communications with Mr. Sayers, the written contract was submitted to you for your signature, wasn’t it?
“A. Yes, sir.
“Q. That written contr'act calls for 20,000 ties and 4,000 poles?
“A. Yes, sir.
“Q. That was the first one?
“A. That is the first one.
“Q. You didn’t want to agree to sell 4,000 poles; so you changed the 4,000 to 1,000 ?
“A. Yes, sir.
“Q. And returned the contract with that change in it to whom?
“A. To Mr. Sayers.
“Q. Then that came back to you afterwards with the 1,000 changed back to 4,000 ?
“A. No, sir; it didn’t come back. It was a new one came back.
“Q. Well, that one never came back, then?
“A. No.
“Q. So that was not a contract; that is, the first contract that you had changed never came back to you afterward?
“A. No; it was supposed to be canceled.
“Q. It was supposed to be canceled? Well, I guess that is right. I guess it was canceled by the subsequent proceedings, anyway. So another contract came back to you with 20,000 ties and 4,000 poles again?
“A. Yes, sir.
“Q. Now, that was the contract about'which-youj and Mr. Sayers had the conversation which you detail) in which you told him you didn’t have 4,000 poles and couldn’t agree to deliver 4,000 poles?
“A. I told Mr. Sayers it was getting late in the sea-, son, and I might not be able to get 4,000 poles.
“Q. And then you and Mr. Sayers, in the presence of the bookkeeper, changed the contract again? .
“A. At least the bookkeeper did, in the presence of Mr. Sayers and myself.
“Q. At any rate, it was changed and at your suggestion?
“A. At Mr. Sayers’ suggestion.
“Q. Well, it was upon your refusal to enter into a contract for 4,000 poles?
“A. Yes, sir.
“Q. So the contract was then changed to read ‘4,000 more or less’?
“A. Yes, sir.
“Q. And Mr. Sayers took both copies?
“A. Yes, sir.
“Q. You had signed both copies?
“A. Yes, sir.
“Q.' And he at last said that he would send them in to the company for approval?
“A. Yes, sir.
“Q. They didn’t bear the company’s signature at that time?
“A. No, sir.
“Q. Well, now, did you afterwards see those same contracts again?
“A. Yes, sir.
“Q. And they had been changed again?
“A. Yes, sir.
“Q. And ‘more or less’ been stricken out and just ‘more’ left in?
“A. ‘More’ left in.
“Q. But this last contract was not delivered to you, as I understood, that is, the one where ‘less’ had been stricken out?
“A. No.
“Q. That change had been made after you had signed it?
“A. Yes, sir.
“Q. And without your consent?
“A. Yes, sir.
“Q. You never consented to that change?
“A. Not that I know of.
“Q. You didn’t intend to consent to it, anyway, and you haven’t consented to it yet?
“A. I think not.
“Q. Well, you haven’t done it knowingly, anyway?
“A. No, sir.
“Q. And you say that you never received any contract signed by the Sterling & Son Company, and by yourself, in which you agreed to furnish 4,000 or more poles?
“A. No.
“Q. You would not agree to that?
“A. No, sir.
“Q. And if you had received a contract which had been changed after you signed it in that way, you would not have accepted it?
“A. No, sir.”

This testimony was uncontradicted, and, based upon it, the court’s determination as to the matter of defendant’s set-off and recoupment was correct.

“A court cannot * * * submit to a jury, facts on which the testimony is all one way.” McGrath v. Railroad, 57 Mich. 555 (24 N. W. 854); Hunt v. Order of Chosen Friends, 64 Mich. 671 (31 N. W. 576, 8 Am. St. Rep. 855).

The case of Johnson v. Surety Co., 187 Mich. 454 (153 N. W. 788), is easily distinguishable from the case at bar. There we held there was a “grumbling assent” to the first offer of contribution, and that all requests to modify or change the offer did not have the effect of rejecting the offer. There is no claim in the case at bar that there was a subsequent acceptance. Defendant’s president, Mr. Watson, states that he never agreed to sell 4 M. poles, that he never would agree to sell 4 M., and that, if he had received a contract calling for 4 M., he would not have accepted it.

It is clear that plaintiff believed the defendant intended to sell it 4M. poles, and sent a contract calling for 4 M., at the same time having advanced $4,000 in money upon the basis of a contract for 4 M. poles, and that under such circumstances it would not accept a contract for 1 M. poles.

We agree with the contention of the plaintiff that the conduct of the parties in the premises amounted to no more than a series of offers, no one of which was assented to in its essential terms by the other party.

There appears to have been no dispute between the parties as to the amount of money advanced by the plaintiff and the value of the timber furnished by defendant to plaintiff, and that, so far as performed, the dealings between the parties left a balance due the plaintiff from defendant in the amount represented in the instructed verdict.

The judgment is affirmed.

Stone, C. J., and Kuhn, Osteandee, Bied, Mooee, Steeee, and Peeson, JJ., concurred.


text:
    PEOPLE v. LAY.
    1. Criminal Law —Grand Juror — Prosecutor — Objections — Statute.
    No objection, can be made to a grand jury, or to any member thereof, except for reasons specified in the statute. 3 Comp. Laws, § 11881, 3 Comp. Laws 1915, § 15708.
    2. Same — Accusation.
    A prosecutor is one who prefers an accusation against a party whom he suspects to be guilty.

      3. Same.
    Where a plea to an indictment in a criminal case charged that one of the grand jurors was disqualified from sitting on the jury' because he had been a Federal official in a prosecution in which respondent was indicted, and which involved the same state of facts, and that he acted as a stenographer in taking testimony before the referee in bankruptcy in a related cause, and that the testimony so taken was read from the juror’s minutes before the grand jury which returned the indictment, the averment was duplicitous in so far as the pleader may have intended to charge that the indictment was founded upon incompetent testimony, and the mere fact that incompetent testimony was received and considered was not fatal, unless it was the only testimony considered: the juror was not a prosecutor in the sense which would disqualify him to sit.
    4. Same — Indictment—Quashing Indictment.
    A matter urged as an objection to the validity of the action of such grand jury in returning an indictment, aside from the provisions relating to the competency of grand jurors, cannot be considered on a motion to quash.
    5. Same — Evidence—Embezzlement.
    Upon reviewing . the testimony claimed by respondent to have been insufficient, the verdict of the jury, in a prosecution for embezzlement from a private corporation of which respondent was vice president and a director, is held to have been justified by evidence tending to show an offense, though denied by the accused,
    6. Same — Evidence — Constitutional Privilege — Grand Jury —Witnesses.
    That the respondent was summoned by the grand jury to give testimony before it, appeared and testified, and, lacking advice of counsel, did not know what questions he was privileged to refuse to answer, was not a ground to quash the indictment; the evidence was given by him without objection, and hence might properly be considered by the jury.
    7. Same — Bankruptcy Act — Privilege.
    But no testimony given in bankruptcy proceedings by the respondent should have been received in the trial of the prosecution against him, officers of a bankrupt corporation being witbin tbe privilege of 30 U. S. Stat. 548, U. S. Comp. Stat. 1913, § 9591.'
    8. Same — Argument—Conduct of Trial.
    Improper argument of counsel for tbe prosecution that tbe respondent and other witnesses bad failed to testify, was a proper subject of criticism, and constituted reversible error. See 3 Comp. Laws, § 10211, 3 Comp. Laws 1915, § 12552.
    Exceptions before sentence from Kalamazoo; Weimer, J.
    Submitted April 14, 1916.
    (Docket No. 129.)
    Decided September 26, 1916.
    Frank B. Lay, Jr., was convicted of embezzlement.
    Reversed.

      Grant Fellows, Attorney General, and Frank F. Ford, Prosecuting Attorney (Charles W. Nichols, of counsel), for the people.

      E. M. Irish and Charles H. Farrell (Allan H. Frazer, of counsel), for respondent.
    Respondent in this case was indicted by a grand jury, and in said indictment was charged, together with one Victor L. Palmer and George T. Lay, with having embezzled from the Michigan Buggy Company,' a corporation of which respondent was vice president and a director, the sum of $42,446.52. To the information respondent interposed several pleas in abatement, the substance of which was as follows:
    (1) That Joseph W. Stockwell, one of the grand jurors of the jury which found the indictment, was disqualified frota acting for the reason that said Stock-well was the United States commissioner for the western district of Michigan before and at the time he was drawn on said grand jury, acting as such in the western district of Michigan during all of the time he sat on said grand jury, and that “before said grand jury was impaneled, said Stockwell had before him as such commissioner the minutes of the testimony upon which respondent was indicted, given by respondent in the bankruptcy proceeding, with a view of issuing a warrant against this respondent under the statutes of the United States of America, and from his investigations, which included a consultation with the United States district attorney, said Stockwell became a part of the prosecuting force of the government of the United States of America, to prosecute this respondent upon the same state of facts upon which he was afterwards indicted by said grand jury, and that said Stockwell had power in his discretion to have started a criminal proceeding upon said state of facts against respondent, and that said Stockwell was one of the prosecutors against him on said state of facts before he was drawn on said grand jury, and was disqualified from acting as a grand juror for that reason.
    It is further alleged that said Stockwell acted as a stenographer in the taking of testimony before the referee in bankruptcy in the matter of the Michigan Buggy Company, a bankrupt; that in said proceeding said Stockwell took the testimony of the respondent, and that the minutes of said testimony were used in said contemplated proceeding before said United States commissioner.
    It is further alleged that the testimony so taken by Stockwell in the bankruptcy proceeding was by him read before the grand jury as evidence against respondent.
    (2) That the books and writings of the Michigan Buggy Company and the testimony of the bookkeepers and clerks having the same in charge were used to secure the indictment of the respondent, and that such use was illegal under the Federal Bankruptcy Act (Act July 1, 1898, chap. 541, 30 U. S. Stat. 544).
    (3, 4, 5) These pleas set up that various members of the grand jury were disqualified to act as said jurors, for the reason that they were stockholders in various banks, which banks were creditors of the bankrupt Michigan Buggy Company.
    (6) It is charged that the respondent was summoned by the grand jury to give testimony before it, and that he appeared in obedience to said summons and gave such testimony; that, being without the advice of counsel, he did not know what questions he was privileged to refuse to answer, and he avers that, without his testimony so obtained, no indictment would have been found against him.
    (7) It is charged that the name of Stockwell was not among those in the grand jury box, although an attempt had been made by those in charge of the grand jury to have his name placed upon the list by the supervisors. It is further charged that one Pomeroy, a juror, having been excused, Stockwell, who at the time was seated at his desk in the courtroom, acting as official stenographer of the ninth judicial circuit, was called as a talesman, and immediately ceased to perform his duties as such stenographer, and proceeded to act as a member of the said grand jury, participating in all of its deliberations and voting for the indictment of the respondent.
    The people filed a demurrer to said several pleas of abatement, contending that the same were insufficient in law to bar the people from prosecuting the said indictment. Respondent thereupon demanded a bill of particulars of the charges upon which the indictment in the cause was based. Such bill was presented by the people, and in it, it was charged that upon 15 separate dates between January 2, 1913, and July 1, 1913, the defendant had embezzled certain sums of money, ranging from $100 to $3,900, and amounting in the aggregate to upwards of $40,000.
    A brief history of the facts leading up to the indictment of the respondent, together with his brother George T. Lav and Victor L. Palmer, is as follows: The Michigan Buggy Company was incorporated in 1883, and reincorporated in 1893. In 1909 it had a capital stock of $300,000, all common stock, and that year $200,000 of preferred stock was issued, and the company, which theretofore seems to have attained a fair degree of prosperity as a manufacturer of buggies, embarked upon the manufacture of automobiles. This business was continued by the company until its bankruptcy in the summer of 1913. Up to 1912 M. H. Lane, F. B. Lay, Sr., and Victor L. Palmer were the owners of all the common stock of the concern. They constituted the board of directors, and were for many years the officers of the corporation; M. H. Lane being president, Frank B. Lay, Sr., treasurer, and Victor L. Palmer, secretary. Some time in the year 1912 (probably April 20th) 100 shares of the common stock of the company were given to each of the sons of F¿ B. Lay, Sr., viz., George T. Lay and respondent, Frank B. Lay, Jr. The board of directors was increased from three to five, and George T. and Frank B. Lay, Jr., were made vice presidents. The respondent commenced to work for the company when he was 18 years of age, in 1905, at a salary of $25 per month. This salary was increased from time to time until during the last year of the existence of the corporation, he drew, according to the books of the company, as assistant sales manager, the sum of $300 per month. This salary was paid by two separate checks of the company each month of $150 each. For some reason they were charged to two separate accounts upon the books. Prior to the year 1912 respondent’s salary had never exceeded $1,800 a year. On April 20, 1912, a meeting of the board of directors was held at which all of the directors were present. At this meeting Mr. Lane was deposed as president, and Frank B. Lay, Sr., was elected in his place. Mr. Lane was made chairman of the board, and Mr. Palmer was elected secretary and treasurer. On February 8, 1912, at a meeting of the board of directors, the salaries of the officers of* the company for the year 1912 were fixed as follows:
    “Mr. Lane ................................... $6,000 00
    Mr. Lay .................................... 6,000 00
    Mr. Palmer ................................. 6,000 00”
    —with further compensation of $6,000 to Mr. Palmer, to be continued at the discretion of the board. In June, 1912, respondent and his brother having in the meantime been elected directors of the company, a meeting of four of the directors of the board, Mr. Lay, Sr., Mr. Palmer, George T. Lay, and the respondent, was held at the Burdick House in Kalamazoo. The fifth director, Mr. Lane, had no notice of this meeting. It was there talked over and agreed between the four directors attending that Mr. Lay, Sr., should draw a larger amount out of the business than he was then drawing according to the resolution of February 8, 1912, that Mr. Palmer’s salary should be $25,000 per year, and that the salary of George T. Lay and respondent should be $12,000 per year each. The record does not disclose that any formal action was taken by the four members of the board at this meeting, or that any record thereof was made in the corporate books. Following this meeting, and commencing on July 1, 1912, respondent continued to receive, as before, his salary of $300 per month in two checks ($150 each) which were usually drawn and signed by himself, one of which was charged to “office and selling expense,” the other to “personal account.” In addition to this sum of $300 respondent received in cash from Palmer each month the sum of $700, which brought his salary up to $12,000 per annum, the amount agreed upon at the Burdick House meeting. Commencing January i, 1913, respondent received cash payments from Mr. Palmer each month in an amount sufficient to make his salary from January 1, to July 1, 1913, $25,000 per annum. No warrant for the payment of these sums by Palmer to respondent seems to have existed prior to March 29, 1913, upon which date the respondent, his brother, George T. Lay, and Palmer held a so-called meeting of the board of directors. Neither Mr. Lay, Sr., nor Mr. Lane were present. At this meeting the following business was transacted:
    “Mr. George T. Lay moved that the following salaries paid to the officials of the company for the year ending January 31st, 1913, be hereby ratified and approved as follows:
    M. H. Lane ................................ 38,000 00
    F. B. Lay, Sr., for salary paid and dividends paid upon both common and preferred stock,
    an amount less than ...................... 35,000 00
    George T. Lay an amount not exceeding...... 25,000 00
    F. B. Lay, Jr., an amount not exceeding...... 25,000 00
    V. L. Palmer, an amount not exceeding...... 25,000 00
    “Mr. Palmer supported the motion, and it was put to vote and carried.
    “Geo. T. Lay moved that the following officials salary list be approved for the year ending January 31; 1914, unless otherwise ordered by this board:
    M. H. Lane ................................ ?6,000 00
    F. B. Lay, Jr................................ 25,000 00
    V. L. Palmer ............................... 25,000 00
    George T. Lay ............................... 25,000 00
    “Mr. Palmer supported the motion, which, being put to vote, was carried.
    “Mr. George T. Lay moved that the salary of President Mr. F. B. Lay, Sr., for the year ending January 31,1914, be fixed at an amount of $35,000.00, provided, however, that the dividends paid Mr. Lay, Sr., upon both his common and preferred stock be construed as to apply against this authorization of salary so that the combination of salary and common and preferred dividends do not exceed the amount stated, $35,000.00. Mr. Palmer supported the motion, and it, being put to vote, was carried.
    “Mr. Geo. T. Lay moved that: Whereas, the salary paid the chief engineer, Mr. W. H. Cameron, for the past year was $10,000.00, and that while this salary was originally agreed upon to continue for a three-year period, for business reasons and commercial circumstances, he moved that for the second year the salary be fixed at $16,000.00. Mr. Palmer supported the motion, which was put to vote and carried.
    “There being no further business, the meeting closed in due form.”
    In order to possess himself of the necessary cash with which to satisfy the “salaries” thus provided for, Mr. Palmer caused checks to be drawn, payable to cash. These cheeks were, by Mr. Palmer, cashed and the money distributed to the various officers, including respondent. For each payment of cash received by respondent from Mr. Palmer, respondent gave a receipt, a sample of which is as follows:
    “$1,783.33. February 1, 1913.
    “Received of the Michigan Buggy Company $1,-783.33, balance January salary.
    “F. B. Lay, Jr.”
    Most, if not all, of the checks drawn payable to cash and cashed by Palmer were charged upon the books of the company to “J. Roach & Co.,” and appeared on said books as an asset of the corporation. It is fairly inferable from the record that the “J. Roach & Co.” account was a fictitious account, invented for the purpose of concealing the withdrawal of the funds represented by it.
    The jury returned a general verdict of “guilty,” and the case is now before us upon exceptions before sentence.
   Brooke, J.

{after stating the facts). The first matter requiring consideration is the assignment of error based upon the action of the court in sustaining the demurrer to the several pleas in abatement. The statute involved (section 11881, 3 Comp. Laws [3 Comp. Laws 1915, § 15708]) provides:

“A person held to answer to any criminal charge, may object to the competency of any one summoned to serve as a grand juror, on the ground that he is the prosecutor or complainant upon any charge against such person; and if such objection be established, the person so summoned shall be set aside.”

Section 11882 (15709) provides:

“No challenge to the array of grand jurors, or to any person summoned as a grand juror, shall be allowed in any other case than that specified in the preceding section.”

This court has frequently held that no objection can be made to a grand jury or to any member thereof except for reasons specified in the statute. People v. Reigel, 120 Mich. 79 (78 N. W. 1017); People v. Salsbury, 134 Mich. 537 (96 N. W. 936). The question, therefore, under the first part of the first plea in abatement, is whether Mr. Stockwell, at the time he was placed upon the grand jury, was a “prosecutor or complainant upon any charge against such person” within the meaning of the statute. It is strenuously urged on behalf of respondent that because Stockwell, before he was called to the grand jury, had the minutes of the testimony taken by him in the bankruptcy proceeding and as a United States commissioner had made an investigation which included a consultation with the United States district attorney with a view to issuing a Federal warrant against the respondent upon the same state of facts relied upon in the case at bar, he should therefore be held to be a “prosecutor” within the meaning of the excluding statute. It should be observed that the plea does not allege that any warrant against respondent was issued by Stockwell, but only alleges that Stockwell considered the testimony taken in the bankruptcy proceeding “with a view of issuing a warrant.” A “prosecutor” is said to be “one who instigates the prosecution upon which the accused is arrested.” State v. Cohn, 9 Nev. 179, 191; Phillips v. Bevans, 23 N. J. Law, 373; United States v. Sandford, 27 Fed. Cas. p. 952. As defined by Bouvier, a “prosecutor” is “one who prefers an accusation against a party whom he suspects to be guilty.” A prosecutor cannot exist unless there is a prosecution, and a prosecution involves the idea of a formal complaint, information, or indictment filed against the criminal. People v. Garnett, 129 Cal. 364 (61 Pac. 1114); Day v. Inhabitants of Otis, 8 Allen (90 Mass.), 477. We think it clear that Stockwell was neither “prosecutor or complainant” within the meaning of the statute.

The second part of the first plea avers, upon information and belief, that the minutes of the testimony taken before Stockwell in the bankruptcy proceeding were used and read before the grand jury as evidence against respondent by Stockwell. Assuming that this averment is intended by the pleader to strengthen the claim that Stockwell was a “prosecutor” within the meaning of the statute, it requires no further discussion; if, however, the pleader intended, by including this averment in the first plea, to charge that the indictment was founded upon incompetent testimony, the plea would fail for duplicity. Findley v. People, 1 Mich. 234, where it is held that a plea which states several distinct facts having no relation or dependence upon each other is bad for duplicity.

The mere fact that incompetent, improper, and irrelevant testimony was received and considered by the grand jury is not fatal to the indictment, unless such testimony is the only testimony considered by them. People v. Lauder, 82 Mich. 109 (46 N. W. 956), and cases there cited and discussed.

The second, third, fourth and fifth pleas in abatement are not discussed by counsel for respondent.

The sixth plea in abatement is argued by counsel for respondent, but the argument refers rather to the use of the testimony given' by respondent in the bankruptcy proceeding before the grand jury than to the fact that respondent himself was required to give testimony before the grand jury which is the gravamen of the plea. The same point was raised in the case of People v. Lauder, supra, and was there passed upon contrary to the contention of the respondent.

With reference to the seventh plea in abatement, it is sufficient to say that the matter urged as an objection to the validity of the action of the grand jury is outside the provisions of the statute, and cannot be considered on a motion to quash the indictment.

It is argued on behalf of respondent that the court erroneously refused to direct a verdict for defendant at the close of the people’s case upon the ground that there was no evidence upon which the jury could properly predicate a verdict of “guilty.” Of course if there was any evidence of respondent’s guilt, its weight and sufficiency were for the jury. People v. Eaton, 59 Mich. 559 (26 N. W. 702). The statute under which respondent was indicted (section 11565, 3 Comp. Laws [3 Comp. Laws 1915, § 15310]) provides:

“If any officer, agent, clerk, or servant of any incorporated company, or of any city, township, incorporated town, or village, school district, or other public or municipal corporation, or if any clerk, agent, or servant of any private persons, or of a copartnership, except apprentices and other persons under the age of sixteen years, shall embezzle or fraudulently dispose of or convert to his own use, or shall take or secrete with intent to embezzle and convert to his own use, without consent of his employer or master, any money or other property of another, which shall have come to his possession, or shall be under his charge by virtue of such office or employment, he shall be deemed by so doing, to have committed the crime of larceny.”

After a careful examination of the record in this case we are unable to agree with the contention of counsel for respondent that it contains no evidence tending to prove that the moneys taken and received by the respondent from the Michigan Buggy Company under the guise of “salary” were so taken knowingly and wilfully, and with the deliberate intention of embezzling them. It would avail nothing to point out the evidential matter which in our opinion justifies this conclusion.

Reference is made to the preceding statement of facts. It should be said in this connection, however, that some of the facts stated may rest upon the admission of incompetent testimony, which will be hereinafter discussed, but with the elimination of these there still remains sufficient, in our opinion, to carry the case to the jury.

Section 7, par. 9, chap. 3, of the bankruptcy act (Act July 1,1898, chap. 541, 30 U. S. Stat. 548, 1 Fed. Stat. Annotated, p. 560) provides that it is the duty of the bankrupt to—

“submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding

It will be remembered that in the bankruptcy proceeding involving the affairs of the Michigan Buggy Company the respondent was examined, and that during the period covered by his examination he was vice president and a director of the bankrupt corporation. Upon his trial in the case at bar the people offered in evidence his testimony given in the bankruptcy proceeding. Strenuous objection was made on behalf of the respondent to its reception, but it was received, and much of it was read to the jury. To this action by the court respondent duly excepted.

On behalf of the people it is argued that respondent is not the bankrupt, and therefore that the provision of the statute does not apply to his testimony. On the other hand, counsel for respondent insist that, as corporations can act only through their officers who are natural persons, a reasonable interpretation of the statute would include officers of bankrupt corporations within the term “bankrupt.” With this view of the statute we are inclined to agree. The purpose of the statute would seem to be to secure from the bankrupt all information with reference to the bankrupt estate which would facilitate its orderly and economic administration. If the testimony of officers of bankrupt corporations may afterwards be used against them in criminal proceedings growing out of facts involved in the bankruptcy, they will be found reluctant to testify, and probably relying upon their constitutional privileges in refusing to testify. Under this view it follows that the admission of the testimony given by respondent in the bankruptcy case was erroneous, and we are unable to say that such error was without prejudice, although without the use of such testimony the jury might have reached the same result. Upon the trial Frank B. Lay, Sr., and Victor L. Palmer were both called as witnesses by the people. Both declined to testify as to facts within their knowledge concerning the charge against respondent, claiming constitutional privilege. Respondent himself did' not take the stand, but, as before pointed out, his testimony, taken in the bankruptcy proceeding, was read.

During the argument of the prosecuting attorney to the jury the following occurred. He said.-

“I have not a word to say about this respondent or Mr. Palmer testifying here, but I do have a word to say about this. * * *
“Mr. Irish: I except to that part of the argument.
“The Court: I will say that the prosecuting attorney has no right to comment upon the failure of the accused to testify, and he should refrain from making any comment or any suggestion of any sort relative to the failure of the respondent to testify, and the jury will disregard the same absolutely.
“And, again, if this salary proposition that is here in question was operated only (openly), legally, and above board, why haven’t the facts been put on here by those witnesses who refused to testify, who knew considerable about it.
“Mr. Irish: We except to that, we are not responsible for that.
“The Court: That is true, the respondent is not responsible for his father’s failure to testify, or Mr. Palmer’s either.
“Mr. Frazer: We ask the court to instruct the prosecuting attorney that he has no right to talk about that to the jury.
“The Court: The refusal of Mr. Palmer or F. B. Lay, Sr., to testify, in and of itself, can raise no presumption against the respondent.
“Mr. Frazer: Give me an exception.
“And again: After we have brought all this before you, are you .going out and say that this respondent is not guilty of improperly and illegally taking the funds of this company?
“Mr. Irish: I would like to save the point as to the remarks of the prosecuting attorney giving his opinion.”

Other remarks of the prosecuting attorney or his assistant were made in the course of the argument, referring to the fact that two of the witnesses; Lay, Sr., and Palmer had stood on their constitutional privilege. The statute (section 10211, 3 Comp. Laws [3 Comp. Laws 1915, § 12552]) provides:

“That a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.”

This statute and alleged breaches of it have been under consideration by this court in the following cases: People v. Evans, 72 Mich. 367 (40 N. W. 473); People v. Payne, 131 Mich. 474 (91 N. W. 739); People v. Hammond, 132 Mich. 422 (93 N. W. 1084); People v. Cahill, 147 Mich. 201 (110 N. W. 520); People v. Mitchell, 164 Mich. 583 (129 N. W. 698); People v. Peterson, 166 Mich. 10 (131 N. W. 153). In all these cases remarks of the prosecuting attorney with reference to the failure of the accused to take the stand were held to constitute reversible error. In the case at bar the record discloses no remarks on the part of counsel for respondent which would tend to excuse or justify the criticism of the prosecuting attorney. The statute does not prohibit reference to the fact that witnesses other than the accused have failed to testify, though in our opinion such reference might well have been omitted. Many assignments of error are based upon the charge of the court. Certain isolated sentences, taken alone, may be subject to criticism, but, as a whole, the charge is full, fair, and, in our opinion, carefully preserved every substantial right of the respondent.

Because of the errors pointed out, the judgment is reversed, and a new trial ordered.

Stone, C. J., and Kuhn, Osteandeb, Mooee, Steeee, and Peeson, JJ., concurred. Bied, J., did' not sit.