text:
    PALMER WOODS CO. v. NELSON.
    1. Deeds — Buiuding Restrictions — Two Stories — Construction: '
    The restriction in a deed to a lot requiring all' buildings thereon to be at least two full stories in height, construed, and held, to be complied with where no portion of the sides and ceiling of the second story of a contemplated residence is cut off by the roof, although the floor space of the second story does not nearly equal in area that of the first floor.
    2. Same — Eighteen-eoot Studding — Compiiance.
    The requirement in a deed that 18-foot studding be used in the erection of two-story buildings, held, to be complied with where the two stories, when completed, will be equal in height to a house built with 18-foot studding, although there will be no 18-foot studding used in the outer walls.
    Appeal from Wayne; Hosmer (George S.), J.
    Submitted April 28, 1920.
    (Docket No. 97.)
    Decided July 20, 1920.

      Bill by the Palmer Woods Company and others 'against Walter M. Nelson to enjoin the violation of certain building restrictions. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Race, Haas & Allen, for plaintiffs.

      Walter M. Nelson (Harry L. Diehl, of counsel), in pro. per.

   Bird, J.

Walter M. Nelson, the defendant, purchased a lot in the Palmer Woods subdivision, in the city of Detroit, subject to many restrictions. Among them is the following:

“All buildings shall be of pressed, glazed or wire cut brick, stone or concrete over tile or metal lath for exterior construction with full basement, and shall be at least two full stories and not more than two and one-half stories in height with at least eighteen-foot studding. No buildings with flat roofs shall be erected on any lot in said subdivision.”

Another restriction provides that:

“The party of the second part agrees to submit to the party of the first part, for his approval, any and all detailed plans for construction and location of any residence or garage, and all such plans must be approved by the first party, in writing, before the construction of any of said buildings can be commenced.”

In pursuance of certain talk which defendant claims he had with the management of the Palmer Woods Company, he collected on the premises a considerable amount of building material preparatory to construct-' ing his dwelling. Later when he secured the plans he submitted them to that company for approval, after an examination of the same, they were disapproved on the grounds:

(a) That they do not provide for a house with two full stories.

(6) That they do not provide for 18-foot studding.

Defendant’s unwillingness to acquiesce in this conclusion moved the Palmer Woods Company and certain lot owners on the subdivision to file this bill to enjoin him from carrying his plans to completion. The chancellor refused the relief sought and they have appealed to this court.

The first story of the house which the defendant contemplates building is 64 feet long and 40 feet wide. The second story is 37 feet long and 16 feet wide. The accompanying pencil sketch shows the outline of the proposed construction.

It is the claim of plaintiffs that if the proposed house were built it would not be a two-story house because the second story is so grossly less in floor area than the first story, because none of the exterior walls of the house continue up to and support the roof of the second story, and because none of the exterior walls of the house are equal in height to the 18-foot studding.

The defendant contends that he gave the Palmer Woods Company a rough outline of the house which he proposed to build before purchasing, the lot, and that it gave assent thereto and, therefore, it is now estopped from raising this question. It is further contended by defendant that the proposed house is a substantial compliance with the restriction quoted.

It is gathered from a study of the restrictions that the idea back of them was to create a class of houses on the subdivision which would be as nearly uniform in price, size, and height as was reasonable or practicable. According to the restrictions nothing less than two full stories would suffice and anything in excess of two and one-half stories would be a violation thereof. The words "two full stories” were doubtless used in contradistinction to the one and one-half story house, in which some portion of the sides and ceiling of the

second story is cut off by the roof. This view is strengthened by the fact that the words “two full stories” are used in connection with the requirements as to height, and not in connection with the width or floor area, and this view is further strengthened by the fact that the wording of the restriction gives evidence that the framers thereof had in minds “half stories” as well as “full stories.”' It is quite evident from this view that the words “two full stories” have reference to the space between the joists and not the space between the studding. There is no claim that the second story is not a full story as to height, neither is there any claim that any portion of the sides or ceiling of the upper rooms are cut off by the roof. Such a house would, therefore, appear to be in substantial compliance with the restriction. But it is said that the studding are not 18 feet long. It is true that there are no 18-foot studding in the outer walls, but we apprehend that this means nothing more nor less than that the two stories, when completed, shall be equal in height to a house built with 18-foot studding. It nowhere appears that the exterior wall shall be 18 feet in height.

The point is made that the area of the second story is so grossly less than the floor of the first story that it is not a two-story house. We do not think we could say, as a matter of fact, that because the second story is not more nearly equal in floor area to the first floor, that it is not a two-story house. With nearly all houses, which are concededly two-story houses, some portion of them is only one story, and this appears to be true of some of the houses already constructed on this subdivision, and which have received the approval of plaintiff. The chancellor was of the opinion that the proposed plan was a substantial compliance with the restrictions, and we are, all of us, of the opinion that he was right in so holding. With this view it will be unnecessary to consider.the questions of waiver and estoppel which have been raised.

The decree will be affirmed, with costs of this court to the defendant.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    BOYCE v. McKENNA.
    1. Evidence — Annulment of Marriage — Documentary Evidence of Foreign Marriage — Admissibility.
    In proceedings by a wife for tbe annulment of her marriage to defendant on the ground that he had, at the time, a lawful wife living in Ireland, a certified copy of the , matrimonial register of the parish of the Catholic church showing said marriage to have been performed, held, admissible in evidence.
    2. Same — Identity.
    Evidence as to the identity of the parties, held, sufficient.
    3. Annulment of Marriage — Fraud—Voluntary Cohabitation— Statutes.
    Plaintiff’s. voluntary cohabitation with defendant, after hearing that he had a former lawful wife living, would not bar her relief, in annulment proceedings, under 3 Comp. Laws 1915, § 11425, where it appears she did so in reliance upon his assurance that it was untrue, and as soon as she became satisfied, after investigation,'that it was true, she left him.
    4. Same — Evidence—Admissions and Confessions — Statutes.
    The original statute having been amended by striking out the words referring to the annulment of a marriage, the provision in 3 Comp. Laws 1915, § 11428, that no decree of divorce shall be made solely oh the declarations, con-
    On presumption as to capacity flowing from marriage ceremony, see note in 16 L. R. A. (N. S.) 100. fessions, or admission of the parties does not apply in proceedings for the annulment of a marriage.
    5. Marriage — Authority of One Officiating Presumed.
    The authority of the officer or clergyman shown to have performed a marriage ceremony will he presumed, in the absence of any showing to the contrary.
    6. Same — Legality Presumed.
    Where a marriage ceremony is shown, every presumption will be indulged that it was legally performed.
    7. Same — Laws of Foreign State — Presumptions.
    There is no presumption that the marriage laws of another State or country are different from the laws obtaining in the forum.
    8. Evidence — Annulment of Marriage — Admissions of Spouse—
    Admissibility.
    In the absence of statutory exception, admissions of the spouse, who is alleged to have contracted the prior marriage, are admissible in evidence.
    9. Annulment of Marriage — Evidence—Sufficiency.
    .Evidence of prior marriage, held, sufficient to sustain decree of annulment.
    Appeal from Wayne; Webster (Arthur), J.
    Submitted June 10, 1920.
    (Docket No. 53.)
    Decided July 20, 1920.
    Petition by Hester Boyce against Joseph H. Mc-Kenna for the annulment of a marriage. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Jefferson G. Thurber, for plaintiff.

      Riggs & Baxter, for defendant.
   Stone, J.

The petition, in this case was filed by plaintiff to obtáin a decree for the annulment of the marriage between the plaintiff and defendant, because of the prior marriage of the defendant. From a decree granting plaintiff the relief prayed for, the defendant has appealed.

It appears undisputed that plaintiff and defendant were ceremonially married in the city of Jersey City, State of New Jersey, on September 8, 1915, the plaintiff being then 20 years of age and the defendant 42 years old. Soon after' this marriage the parties returned to Ireland, the place of their nativity, and took up their residence in the city of Belfast in September of that year. While living there together, and in the month of November following, a woman claiming the name of Anne Jane McKenna came, with an 11-year-old child, to their home, and claimed to be the lawful wife of the defendant, and proceeded to make a disturbance in the plaintiff’s home. The parties separated for a short time, but the plaintiff believing the statement of the defendant that the woman, Anne Jane, was not his wife, the parties resumed marital relations for a time. Later the woman appeared a second time, and after this occurrence, plaintiff went to the home of her parents in Garvah, Ireland, and in September, 1916, emigrated to this country and State. Plaintiff then made inquiry by letter to the parish priest of Magherafelt, Ireland, who forwarded to her what purported to be a copy of the matrimonial register of his parish, being a certified copy of the record of marriage of Joseph McKenna to Anne Jane Mc-Keown. Upon this evidence the plaintiff brought this proceeding to annul her marriage with the defendant. To sustain her petition the plaintiff offered two classes of evidence; the first consisting of admissions or statements by the defendant that he had been married to the woman Anne Jane; and, second, the certified copy ■of the record consisting of the matrimonial register of the parish of the Catholic church at Magherafelt, aforesaid. The testimony of the plaintiff relating to the admission of the defendant, after referring to the visit of the said Anne Jane, with the child, claiming that she was the lawful wife off the defendant, is as follows:

“He told me when she came to me the second time that he married her in the Catholic church, but at midnight, which was against the laws of the Catholic church. I don’t know whether it was or not, but that is what he told me. They were married at midnight and he was under the influence of drink then.
“Q. He was under the influence of what?
“A. Drink.
“Q. Drink when he married her?
“A. Yes, that is what he told me.
“Q. Did he specifically mention at that time that the name was Anne Jane McKenna?
“A. Yes, sir; McKeown he said it was.”

She further testified that defendant said he “figured on getting a divorce when the war was over.”

In addition to this there was the testimony of the witness Joseph Houghton, who testified as follows:

“I live at 185 Midland avenue, Highland Park, have lived there for some time. I have known Joseph Mc-Kenna since last June. He has talked over his private matters with me, and at that conversation he told me he was married to Anne Jane McKeown while under the influence of liquor, and his people never recognized it.
“The Court: What?
“A. His people never recognized it.
“Plaintiff’s Counsel: I did not get all that.
“A. He told me he was married while under the influence of drink to Anne Jane McKeown, and his people never recognized it.”

The defendant was sworn in the case, and denied having made the statements above testified to, and he denied that he had evér been married to the woman, Anne Jane McKeown. The documentary evidence above referred to consisted of the following:

EXHIBIT C.
“Catholic Church, Magheraeelt.
(seal) “E Libro Matrimoniali
“Having examined the matrimonial register of this parish I find that Joseph McKenna' and Anne Jane McKeown, the witnesses being John Dysart and M. A. O’Hagan of Magherafelt, were married on 11th day of January, 1887.
(Signed) “John Canon Quinn, Parish Priest,
“Magherafelt, Ireland.”
EXHIBIT D.
“REGISTRATION OF ROMAN CATHOLIC MARRIAGES IN IRELAND.
“26° and 27° Victoria, Chapter 90,
“Certified Copy of Entry in the Marriage Register Book, Deposited in the Superintendent Registrar’s
Office — (See Endorsement).
No. When married. Name and surname. Age. Condition.
(1) (2) (3) (4) (5)
16 11th Jan., 1887 Joseph McKenna full age Bachelor
Anne Jane McKeown 20 yrs. Spinster
Residence at the time Father’s name and Rank or
Profession of marriage surname.
(6) (7) (8)
Seaman Magherafelt Charles McKenna
Housekeeper Magherafelt Thomas McKeown
(P. D.) Deceased
(P. D.)
Rank or Profession of Father.
(9)
Butter and Egg Merchant.
Butcher.
“Marriage No. 16, registered by me, this 31st day of January, 1887.
(Signed) “Agmab R. Vosey,
“Registrar.
“Married in the Roman Catholic chapel of Magherafelt, according to the rites and ceremonies of the Roman Catholic church, by me,
“P. Carbon Donnelly, P. P.
“This marriage was solemnized between us ( Joseph McKenna, 1 Anne Jane McKeown.
“In the presence of us ■( John Dysaet, Í Mabtanne- O’Hagan. ^
“I hereby certify that the foregoing is a true copy of the entry No. 16, in the marriage register book in my office.
“John A. Higgins,
“Superintendent Registrar of . Births, Deaths and Marriages For the District of Magherafelt.
“Office, Union, Magherafelt.
“Date: 5th October, 1918.
Canadian
(Endorsement) One Penny
Stamp.
“Registration of Roman Catholic Marriages in Ireland.
“26 & 27 Vic., Cap. 90.
“Sec. 18. — ‘Every Superintendent Registrar shall cause Indexes of the Register Books in his Office to be made and kept with the other records of his office. Every person shall be entitled, on such days and at such reasonable hours as shall be directed by the Registrar-General, to search the said. Indexes, and to have a certified copy of any entry or entries in the said Register Books, under the hand and seal of the Superintendent Registrar on payment of the fees hereinafter mentioned; that is to say, for every General Search the sum of Five Shillings, and for every Particular Search the sum of One Shilling, and for every certified copy the sum of Two Shillings and Sixpence, in addition to the Stamp Duty of One Penny imposed by an Act passed in the twenty-third year of Her Majesty, Chapter Fifteen.’*
“«This Duty is now payable under the 54 and 55 Vic., cap. 39 (Stamp Act, 1891).
“CONSULAR CERTIFICATE.
“United Kingdom of Great Britain & Ireland,
City & County of Londoderry ss.
“I, Philip O’Hagan, Consular Agent of the United States of America, at Londonderry, Ireland, do hereby certify and make known that John A. Higgins, whose true signature appears on the certificate of marriage on the other side hereof, written in the Register of Births, Deaths and Marriages, at Magherafelt, in the said County of Londonderry, Ireland. That the said certificate of the marriage solemnized between Joseph McKenna and Anne Jane McKeown, and so signed by the said John A. Higgins, as such Registrar as-aforesaid, is issued in accordance with the Statutes governing the issuance of such certificates in Ireland. And tliat the said certificate of marriage is worthy of all faith and credit in Judicature and thereout.
“In testimony whereof, I have hereunto set my hand and affixed my seal, this seventeenth day of December, in the year of our Lord One Thousand Nine Hundred and Eighteen.
(Seal) (Signed) “Phiup O’Hagan,
“American Consular Agent
“American at Londonderry, Ireland.
Consular Service $2
Fee Stamp
Act No. 171
Register Vol. 3
Page 155
“P. O’H.”

The defendant, in his testimony, stated that his father’s name was Charles McKenna; that he had been, and was at the time of the alleged marriage, a seaman, and that John Dysart, who purports to have been a witness to said first marriage, was an acquaintance and friend of his and that the witness “used to knock about with him.” He also testified that he had been connected with the Roman Catholic church in Magherafelt when he lived there, and that he was acquainted with Canon Donnelly, who purported to have performed the said marriage ceremony, and also with Canon Quinn, who made the certificate, Exhibit C. The testimony upon that subject was as follows:

“Q. Did you know Canon Donnelly when you lived there?
“A. Yes, sir.
“Q. You knew him very well, didn’t you?
“A. I knew him.
“Q. You knew Canon Quinn, didn’t you?
“A. Yes, he is there, I think.
“Q. He is there now?
“A. I think so.
“Q. Has, been for a number of years?
“A. Oh, no, only three or four years.
“Q. You knew him very well?
“A. I knew him to see him.”

There seemed to be no question about the identity of the woman Anne Jane. The defendant testified that he knew her well, and that she claimed he was the father of her child, and he testified to his affection for this child and his assistance in supporting it. He said: “I am looking after the child.” We refer to this simply as bearing upon the question of identity of the parties, which seems to be a point urged by counsel for the defendant.

The court admitted the documentary evidence against the objection of defendant’s counsel, who claimed that it was not admissible without further proof that the records were required by law, and that the registrar was such in fact, and that the registrar’s signature was genuine. It was also urged, as a further objection, that there was no evidence that the person who purports to have performed the marriage ceremony was authorized so to do. There was a further contention that, in the event that the certificate introduced by the plaintiff was admissible, such certificate was not sufficient to establish that this defendant was married without proof aliunde of the identity of the parties, and authorities in other jurisdictions are cited in support of this position.

As we have already said, we are of the opinion that there was sufficient evidence in the record showing the identity of the parties. The name of the father of the defendant, the occupation of the defendant, his acquaintance with one of the witnesses to the alleged marriage, his acquaintance with the parish priests, his acquaintance with this woman, and the fact that she charged him with being the father of her child, for which child he claimed to have great affection; these, we think, were all evidences of identity.

It was urged in the court below, but no point seems to have been made of it in the brief of appellant in this court, that under the provisions of section 11425, 8 Comp. Laws 1915, the marriage should not be annulled because of the voluntary cohabitation of the parties as husband and wife. We think the answer given in the opinion by the learned circuit judge,, herein quoted, is supported by the testimony, and fully sustains the position of the court.

Attention was also called to section 11428, 3 Comp. Laws 1915, which provides that no decree of divorce shall be made solely on the declarations, confessions or admissions of the partiés; but the court shall require other evidence of the facts alleged in the bill for that purpose. It will be borne in mind that this is not a bill for divorce, but is one for the annulment of this marriage. The section last referred to is the result of an amendment made in 1883. Prior to that time the statute had read: “No decree of divorce, or of the nullity of a marriage shall be made solely,” etc., and the words “or of the nullity of a marriage” were stricken out of the statute; so the prior decisions upon the subject are no longer pertinent, and this rule does not apply to a bill or petition for the annulment of a marriage. The concluding portion of the opinion of the court below is as follows:

“To my mind, the whole question of whether the former marriage of the defendant has been proved hinges upon the admissibility and force of the certified copy of the marriage records from the Roman Catholic chapel of Magherafelt, Ireland, and to my mind, the case of Hunt v. Order of Chosen Friends, 64 Mich. 671, decides this question in favor of its admissibility and evidentiary force.
“I am, therefore,- of opinion that the plaintiff, under the proofs introduced in this case, has proven a previously existing marriage.
“The defendant also cites section 11425 of the Compiled Laws providing that a marriage shall not be annulled on the grounds of force or fraud, when it appears that, at any time before the commencement of suit, there was a voluntary cohabitation of the parties as husband and wife.
“While it is true that the plaintiff continued to live with the defendant after the charges had been made by Anne Jane McKenna or McKeown, in Belfast, her testimony is that she did so because she had faith in the defendant, and relied upon his assurances that the woman was not his wife; and she further testified, in effect, that as soon as she secured the proofs to satisfy her that the defendant was misrepresenting the facts to her, from that time on she had nothing further to do with the defendant.
“Under those circumstances, I do not believe that the section of the statute cited will prevent the plaintiff from obtaining relief in the present case. It follows that the prayer of the plaintiff will be granted.”

In support of the ruling of the court admitting the record in evidence, we also cite the case of Hutchins v. Kimmell, 31 Mich. 126. In that case, after referring to the certificates, this court, speaking through Justice Cooley, said:

“All these certificates were objected to when offered, on various grounds, which in the argument in this court, are narrowed down to the following: first, because they were not accompanied by any proof of the foreign law regulating marriages in Wurtemberg; and, second, because it is not sufficient that a ceremony was performed purporting to be a marriage, unless it is also shown that such ceremony was recognized by, and in accordance with the law of the country where it took place. * * *
“And in the case of People v. Calder, 30 Mich., at page 90, it was said of a marriage contracted in another State:
“ ‘Where the evidence shows that the parties appeared at a church, and that the officiating minister then publicly and in the presence of other persons in attendance, performed a ceremony of marriage between such parties, and further, that the parties appeared to regard themselves as then married, it is fairly to be presumed, in the absence of anything to the contrary, that the ceremony was regular and legal, although the evidence fails to show what words were used by the. parties or the minister, or the particulars of the ceremony, or what specific kind of ceremony was or would be according to the forms, usages or customs of such church.’
“This is likewise the doctrine of Steadman v. Powell, 1 Add. 58, where the proof of an Irish marriage did not go beyond that which was made in this case, and did not negative the fact that the celebration might have been by a Popish priest, which, by the local law, would have rendered it invalid. It has been held in this State that -the common law as it exists among us, will be presumed to prevail in a foreign country in the absence of proof to the contrary,— High, Appellant, 2 Doug. 515; Crane v. Hardy, 1 Mich. 56; and though it may be questionable if this doctrine is to be applied universally, it cannot be disputed that the reason of it is applicable to all marriages celebrated in Christian countries, in which it may properly be assumed that a general common law on the subject of marriage still prevails. Whart. Confl. L. § 171. And as has been well said, the inconvenience of adhering to more rigid rules in the proof of foreign marriages, would in a country so largely populated by immigrants as is ours, be peculiarly great, and put courts and litigants to useless trouble and expense in every instance. Bish. Mar. & Div. (4th Ed.) § 528.”

It has been held that the authority of the officer or clergyman shown to have performed a marriage ceremony will be presumed in the absence of any showing to the contrary. This is in accordance with the rule, that where a marriage ceremony is shown every presumption will be indulged that it was legally performed. 18 R. C. L., title “Marriage,” § 21, and cases there cited; also §§ 39, 51, 55, 56.

The law and public policy favor matrimony, and when the celebration of a marriage is shown, the contract of marriage, the capacity of the parties, and in fact everything necessary to the validity of the marriage, in the absence of proof to the contrary, will be presumed. It will be presumed that the person assuming to officiate at the ceremony was authorized to perform it. Smith v. Fuller, 138 Iowa, 91 (115 N. W. 912, 16 L. R. A. [N. S.] 100).

If a marriage ceremony is proved, it is presumed that the celebrant was duly authorized. Franklin v. Lee, 30 Ind. App. 31; Hutchins v. Kimmell, supra.

In Lanctot v. State, 98 Wis. 136 (73 N. W. 575), it is said:

“The law relating to proof of foreign marriages seems to be that where a formal ceremony of marriage solemnized in a church by a person assuming the office of a priest or minister is shown, it will be presumed, in favor of the marriage, that it is in accordance with the law of the country, and valid.” Citing many cases, including Hutchins v. Kimmell, supra, and People v. Loomis, 106 Mich. 250.

In 26 Cyc. p. 878, the following language is used:

“There is no presumption that the marriage laws of another State or country are different from the laws obtaining in the forum.”

It is also there stated, at page 896 of the saíne volume, as a general rule, that where there is no statutory exception, admissions of the spouse who is alleged to have contracted the prior marriage are admissible in evidence.

In our opinion there was before the court in the admissions, supported by the record of marriage, sufficient evidence of the fact of the prior marriage of the defendant, and the decree of the court below is therefore affirmed, with costs to the plaintiff.

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


text:
    BLICKLE v. KENT PROBATE JUDGE.
    1. Mandamus — Issues Framed by Pleadings — Statutes.
    Under the judicature act (3 Comp. Laws 1915, §§ 13437, 13440) issues of fact in mandamus proceedings are no .longer framed by the court, as formerly, but may be said to be automatically framed by the return and the specific denials df the plea thereto.
    2. Same — Return to be Taken as True Unless Traversed.
    Under 3 Comp., Laws 1915, § 13440, on mandamus against a probate judge, the return of the judge, unless traversed, must be taken as true.
    3. Judgment — Effective When Made — Entry on Record a Ministerial Act.
    An order of the probate judge, committing a child to the juvenile home, made on October 31, 1919, but not actually entered on the record by the clerk until December 11, 1919, was nevertheless in force and effect on the date made, since the entry upon the record by the clerk was purely a ministerial act.
    Certiorari to Kent; McDonald (John S.), J.
    Submitted June 22, 1920.
    (Calendar No. 29,168.)
    Decided July 20, 1920.
    Mandamus by Beatrice G. Blickle, an infant, by her next friend, to compel Clark E. Higbee, probate judge of Kent county, to expunge an order from the record of said court. From an order denying the writ, plaintiff brings certiorari.
    Affirmed.

      Shelby B. Schurtz, for appellant,

      Stuart E. Knappen and Ganson Taggart, for appellee.
   Stone, J.

This is certiorari to review an order of the circuit court for the county of Kent, denying petition to issue a mandamus to the judge of probate of said county requiring him to expunge from the record of the probate court a certain order actually written, signed and filed December 11, 1919, but which' defendant claims was in accordance with an order actually made on October 31, 1919. The purported order was in the words and figures following:

“Order Committing Child to Juvenile Home. “State op Michigan — In the Probate Court for the
County of Kent, Juvenile Division.
“At a session of said court, held at the probate office in the city of Grand Rapids in said county, on the 31st day of October, A. D. 1919.
“Present: Hon. Clark E. Higbee, judge of probate.
“In the matter of Beatrice Galligan, neglected child.
“Lilly Galligan, having filed in said court her petition, alleging that said named child is a neglected child, and said child having voluntarily appeared before said court, together with the sister, and after taking testimony, it appearing to the cóurt that the( best interests of the public and said child will be sub-] served thereby, the said child having heretofore, to wit, on the 27th day of January, 1916, been declared and found to be a neglected child and having at that time been released temporarily to the mother and stepfather, and it now appearing that said child is again neglected by said custodians in that she is not attending school regularly, and that a petition has been filed, alleging that she is a delinquent child ;
“It is ordered: That said child be and is hereby committed to the care of the Kent County Juvenile Home, to be there kept until Monday, November 3, 1919.
“It is further ordered: That Maude Swanson is hereby directed to take said child to the Kent County Juvenile Home, as aforesaid, pending the final disposition of said case, or until the further order of said court.
“Clark E. Higbee,
■ “Judge of Probate.”

The petition for the writ of certiorari shows that said petition for mandamus alleged that on November 29, 1919, the plaintiff by her next friend instituted a suit in the superior court of Grand Rapids against Maude A. Swanson and Kate L. Baldwin for false imprisonment in the Kent County Juvenile Home, from October 31, 1919, until November 3, 1919, when she was released by habeas corpus proceedings in said superior court. That on December 11, 1919, the said judge of probate had written, signed and filed said purported “Order Committing Child to Juvenile Home,” without any notice to plaintiff or her attorney, which purported to have been written, signed and filed on October 31, 1919, with nothing in the record to show that it was in fact written, signed and filed on December 11, 1919. That the said purported order of October 31, 1919, if in fact it had been actually written, signed and filed, and.in the possession of said Maude A. Swanson, on said October 31,' 1919, would have constituted a valid defense, but that it was neither written, signed nor filed, nor in Maude A. Swanson’s possession on October 31, 1919, and in fact was not in existence until December 11, 1919. That the attorneys for said Swanson and Baldwin, on December 12, 1919, filed a plea and answer to the false imprisonment action which specifically defended upon said purported and false written order of October 31, 1919. That said purported order was not a true and correct record, was not a proceeding and act that ever took place, was a fraud upon plaintiff in that it was in fact neither written, signed nor filed on October 31, 1919, nor did Maude A. Swanson see it or have it in her possession on said October 31, 1919. That said • petition for mandamus shows that the probate court was twice asked to correct this record, but without avail, in spite of the admission of defendant that said order was not written, signed or filed until December 11, 1919. The petition for certiorari further shows that on January 10, 1920, the defendant filed his answer to the order to show cause granted in the mandamus proceeding. Reference will later be made to said answer. The petition for certiorari further shows that the circuit court heard the mandamus proceedings on January 12, 1920, at which time plaintiff’s attorney filed a request that issues of fact be framed, and also filed the following instrument, properly entitled in the court and cause:

“Plea of Relator to Answer of Respondent.
“Now comes the relator, by Shelby B. Schurtz, her attorney, and denies the statements of fact and conclusions of law stated in respondent’s answer, controverts the denials in respondent’s answer to the statements of fact and conclusions of law stated in relator’s petition, states that notwithstanding the answer of respondent she is entitled to the relief prayed for in her petition,'and asks the court to frame issues of fact that the facts in dispute may be determined.
“Shelby B. Schurtz,
“Attorney for Relator.”

It is further stated in the petition for certiorari that the circuit court refused to frame issues of fact, and later entered an order dismissing the plaintiff’s petition for mandamus. The petition for certiorari states that unless the record of the probate court, juvenile division, is corrected, as demanded, so as to show the commitment order of October 31, 1919, was actually not written, signed and filed until December 11, 1919, plaintiff will be defrauded out of her action in the false imprisonment case against - Maude A, Swanson and Kate L. Baldwin by the use of said false order. Error is assigned:

(1) Because no issues of fact were framed as twice requested in writing;

(2) , Because taking all the material facts stated in the defendant’s affidavit as true, defendant has not shown legal cause why a peremptory writ of mandamus should not issue;

(3) Because by the fact admitted relator is entitled to the writ of mandamus.

The answer of defendant in the mandamus proceeding is too lengthy to be here inserted in full. We quote, however, from the same the following:

“Respondent admits that on December 11, 1919, he, as judge of the juvenile division of the probate court of the county of Kent, signed and filed an order substantially as set forth in paragraph 7 of said petition, and that said order was actually written on said December 11, 1919; but respondent avers that the said order was actually indicated, and directions given for writing and entering the same on the date which it bears, namely, October 31, 1919; and respondent further avers that the said order was in force and effect on said October 31, 1919, and at all times thereafter, by reason of the fact that respondent made said order on said October 31st, directed the same to be written up for his signature as judge of the probate court, juvenile division, as aforesaid.” * * *

Answering paragraph 11:

“Respondent admits that the order of October 31, 1919, was written and signed upon December 11, 1919, and that on that date the same was handed to Walter F. Clinton, deputy probate register, for filing, as a valid order of the court.. Respondent admits that the said Walter F. Clinton, deputy probate register, did make the said order as filed October 31, A. D. 1919, and respondent denies, all other matters in said paragraph 11. Respondent further answering said paragraph, avers that the said order was properly filed as of date October 31, 1919, for the reason that said order was actually made on said October 31, 1919, although not then written up; and that respondent on said October 31, 1919, directed the writing up of the order as indicated by respondent; that through press of business of respondent’s, stenographer, the said order was not actually written up on said October 31, 1919, and was overlooked for some days thereafter, respondent having in mind that the said order had actually been written up, signed and filed. That when respondent in looking through the files in said cause first noticed that the said order had not actually been written up, signed and filed, he forthwith gave instructions that the said order should be so written up, and that he did thereupon sign the same and file the same as hereinabove stated. Respondent further avers that the actual writing out and signing of orders indicated and directed is, under the practice of the probate court of the county of Kent, and the juvenile division thereof, ordinarily and in a large number of instances done on a day subsequent to the actual indication and direction for such orders, for the reason that a very large number of orders are made daily in the said probate court, and it is many times impossible to have said orders actually written up and signed on the day the same were made; that such orders are always, under the practice of the probate court, filed as of the date they bear respectively, which is the date when said orders are indicated and directions given for writing up the same. * * *
“And respondent avers that the said orders, including the order of October 31, 1919, hereinabove referred to, are, when actually written up, signed and filed, valid orders as of the date when the same are indicated and directions given for writing up the same; that the order of October 31, 1919, was actually made on said October 31, 1919, being the date when respondent, as judge of the probate court, juvenile division, did in fact act upon the petition filed in said cause under which said order was made, and that when the said order was actually embodied in writing, signed and filed as aforesaid, the same was merely a ceremonial act and related back to the actual order of the court made on October 31,1919.”

The record shows that defendant, by his attorneys, in the circuit court, moved to dismiss and strike from the files the motion that certain issues of fact be framed in said cause.

We think we have shown enough of the proceedings to make it clear that counsel for the plaintiff and appellant has mistaken the practice in mandamus proceedings since the amendments which appear in the judicature act. There is no question but that under the statute prior to the judicature act, on the filing of an answer or return, issues of fact, if desired, could be framed. Section 9969 of the Compiled Laws of 1897 referred to the writ of mandamus only. That section was amended in the judicature act so that it now reads:

“Whenever any alternative writ of mandamus, or order to show cause shall be issued out of the Supreme Court, or by any circuit court of this State, the person, body, tribunal or officer to whom the same shall be directed or delivered shall make returns to said writ or order to show cause,” etc. 3 Comp. Laws 1915, § 13437.

This section is followed by section 13440, which reads as follows:

“Whenever a return shall be made to any such writ, the person prosecuting the same may plead to all, or any of the material facts contained in said return; and such issue of fact thus joined shall be determined as in other cases: Provided, That all material facts stated in said return, that are not specifically denied by plea, shall be taken as admitted to be true. In case no plea is filed to such return, the same shall stand for hearing upon the petition and return. Such issue of fact shall be tried in the county within which the material facts are alleged to have taken place.”

Enough appears in what we have set forth to show that the answer of defendant to the order to show cause contained many material facts that are not specifically denied by plea in this case. In the absence of a plea specifically denying such material facts, the return must be taken as admitted to be true. An inspection of the record shows that the statute was not complied with in this instance by any such plea as is there indicated. The instrument or paper called “plea of relator to answer of respondent” is, general in its terms, and seems to be in the nature of a general replication. There is in the present statute express provision that all statements not specifically denied by plea shall be admitted as true, and requiring a plea if the answer is to be controverted. We repeat that there is no specific denial of any allegation in the return in plaintiff’s plea. This seems to be conceded by counsel, but he claims that section 13440 is limited to the alternative writ of mandamus, and does not apply to an order to show cause. We are of opinion, and we have so construed these statutes, that this section (13440) refers back to section 13437, and applies to the situation there stated, being an alternative writ, or an order to show cause. As we have heretofore held, issues of fact are no longer framed by the court. They may be said to be automatically framed by the return and the specific denials of the plea thereto. It will be noted that in that portion of defendant’s answer which we have quoted appears the following ma-, terial fact:

“But respondent avers that the said order was actually indicated and directions given for writing and entering the same on the date which it bears, namely, October 31, 1919; and respondent further avers that the said order was in force and effect on said October 31, 1919, and at all times thereafter, by reason of the fact that respondent made said order on said October 31, 1919, and directed the same to be written up for his signature as judge of the probate court, juvenile division, as aforesaid.”

In the absence of a plea specifically denying this allegation, the same must be taken as true. This has been the construction heretofore placed upon these provisions of the statute, and we see no reason to depart from such construction. We refer to the following recent cases upon this matter of practice: Haire v. Charlevoix Circuit Judge, 201 Mich. 224; Kentucky Wagon Manfg. Co. v. Kalamazoo Circuit Judge, 208 Mich. 267; Thiedemann v. Board of Dental Examiners, 208 Mich. 552.

In the last cited case we said:

“Under the present practice this issue is now framed by the filing of the plea under the modified statute above set forth; and hence we held that in the instant case there was no occasion for framing issues, as the issues are already presented by the plea of the petitioner.”

We must adhere to this view of the case. We think the circuit court did not err in refusing to frame issues in the case, and the ruling upon that subject was correct, and there was no issue presented to the court. The plea filed specified no issues of fact to be passed upon; it was a mere general denial from which no specific issues of fact could be determined.

The plaintiff, however, urges that regardless of the question whether this practice was erroneous or not, or whether an issue should or should not have been framed, the writ of mandamus should have issued. Under this head the real point in difference is the effect of the order made by the probate court (the same being a court of record) in open court on October 31, 1919, in the presence of the parties by the judge of probate, in obedience to which it is claimed Maude A. Swanson took the plaintiff to the juvenile home.

From the return before us, it appears that this order was made October 31, 1919, the plaintiff and Miss Swanson then being before the court and plaintiff having been theretofore adjudged as under the jurisdiction of the court. This order was not entered in the records in writing at the time, but was thereafter, and on the 11th day of December, actually written out, signed and entered of record. What effect should be given to this action of the court on October 31, 1919? The answer shows that the order was actually made October 31, 1919, in open court. The entry of the order as of that date was in accordance with the fact. It should not, upon this record, be set aside or expunged^

Quoting from volume 18, Enc. PI. & Pr., at page 430, appears the following language:

• “The rendition and the entry of a judgment are entirely different things. The first is a purely judicial act of the court alone, and must be first in the order of time, while the entry is merely evidence that a judgment has been rendered and is purely a ministerial act.”

And on page 437:

“The decisions of all courts must be preserved in writing in some record provided for that purpose. The reason for this does not lie in the fact that the entry is necessary to the completion of the judgment, for a judgment is as final when pronounced by the court as when rendered and recorded by the clerk, and an entire failure to make up the record will not necessarily affect the parties interested.”

That the clerks cannot as a rule keep judgment entries up to date is recognized on page 446, where it is said:

“Since, as has been seen, the act of the clerk in entering a judgment upon the record, is purely ministerial, a judgment properly rendered may be entered by the clerk in vacation. In fact, during the term of court, clerks can as a rule, make only short minutes from which they must make out their more formal record out of term time, and they are at liberty then to put all orders and judgments in proper form.”

The same rule is given in 15 R. C. L. p. 571, where it is said:

“Although it has been said on high authority that a judgment is a solemn record, the entry or record of the judgment should not be confused with the judgment itself. The judgment is a judicial act of the court; the entry is the ministerial act of the clerk. The judgment is as final and complete when pronounced by the court as when it is entered and recorded by the clerk. Although such entry may be necessary to give full force to the judgment as affecting the rights of third parties, the entry or recording of a judgment is not essential as between the parties themselves. The judgment therefore is considered as having been rendered when the court has pronounced the decree which finally determines the rights of the parties and nothing remains to be done but for the clerk to record the entry of the judgment. The judgment itself is not what may be entered but is that which is considered and delivered by the court. Even if the judgment may be proven only by the record, yet it derives its force not from its entry on the record, but from its rendition by the court.”

See, also, section 11, page 578, and cases there Cited.

In Comstock v. Boyle, 134 Wis. 613 (114 N. W. 1110, 1111), the court said:

“The principle is also well settled in this State that if the court pronounces judgment from the bench, and all that remains to be done is the clerical duty of reducing the judgment to writing, or entering the same, or both, the judicial act is complete. So far as the court is concerned, judgment has been rendered, notwithstanding the fact that the clerical acts necessary to preserve the evidence of the judgment have not been performed.” Citing Baker v. Baker, 51 Wis. 538 (8 N. W. 289); Fulton v. State, 103 Wis. 238 (79 N. W. 234); Findlay v. Knickerbocker Ice Co., 104 Wis. 375 (80 N. W. 436); Allen v. Voje, 114 Wis. 1 (89 N. W. 924) ; German-American Bank v. Powell, 121 Wis. 575 (99 N. W. 222); Zahorka v. Geith 129 Wis. 498 (109 N. W. 552).

In the Allen Case it was said:

“An order or judgment is the decision of the court. It may be formulated in writing by the judge, or declared by him orally. In the latter event.the duty rests upon the clerk to write the substance upon his records.”

See, also, In re Cook’s Estate, 77 Cal. 220 (17 Pac. 923, 19 Pac. 431, 1 L. R. A. 567).

This is in accord with the decisions of this court in adjudicated cases. In the late case of Kent County v. Krakowski, 207 Mich. 640, this court says:

“The trial court in submitting* the case plainly instructed the jury that no recovery could be had upon any item of plaintiff’s claim unless it was shown that the money was paid to the clerk pursuant to some mandate of the court, but held that under the circumstances of the ease it was not imperative for recovery that it be proven that the order was recorded in the court journal, saying in explanation that while it was for the jury to determine from the admitted testimony whether or not each item claimed was paid to the clerk under an order of the court, yet:
“ ‘If a respondent were before this court at the present time and the court should, upon a plea of guilty of that respondent, say to him, “You are 'fined $100 fine and $10 costs, and upon ycmr failure to pay that sum immediately, you will be confined in the Kent county jail for ninety days,” and if the respondent should step up immediately to the clerk and pay him $110, the full amount of the fine and costs imposed, he could be discharged. * * * Under the verbal, spoken order of the court, if the money was paid to the clerk, it would be paid officially and it would be as essentially and finally the money of the county as though the respondent were required to wait until the next day and have a written order duly placed upon the journal and signed by the court.’”

In Re Richards, 150 Mich. 426, this court recognizes the right of the judge to orally remand a person to prison, and says:

“Under the circumstances we should not discharge the petitioner merely for the want of a valid written commitment, when it appears from his own showing that he was remanded after sentence, to the custody of the jailer, probably by an oral order made in open court, that his punishment might be inflicted.”

Reference is made to the order of the court in question. The effect of making the arrest without having possession of the written order is a question not before us. ' •

We find no reversible error in the record, and the judgment of the circuit court is affirmed.

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


text:
    NATIONAL BUILDING SUPPLY CO. v. SPENCER.
    1. Contracts — Construction — Intent Under Existing Circumstances.
    A contract must be construed so as to effectuate the intent of the parties when it was made; and to ascertain the intent of the parties, a contract should be construed in the light of the circumstances existing at the time it was made.

      ?t. Guaranty — Intent—Construction—Directed Verdict.
    In an action on a contract of guaranty, where a firm in which defendant’s son was interested was buying building materials from plaintiff on credit, and defendant wrote plaintiff that he expected to see plaintiff within the next two weeks to make arrangements to guarantee the account, and “in the meantime” would guarantee the payment of any material furnished, but did not see plaintiff, as expected, and plaintiff continued to furnish material, relying on defendant’s guaranty, of which he was informed, and which he never repudiated, the trial court’s interpretation that the guaranty was limited to two weeks, held, too narrow, under the circumstances.
    Error to Wayne; Goff (John H.), J.
    Submitted June 15, 1920.
    (Docket No 21.)
    Decided July 20, 1920.
    Assumpsit by the National Building Supply Com-, pany against Samuel B. Spencer on a contract of guaranty. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Donnelly, Hally, Lyster & Munro, for appellant.

      E. W. Mulford, for appellee.
   Stone, J.

This is an action of assumpsit on-a written contract of guaranty. The plaintiff is a Maryland corporation engaged in the business of selling building material and supplies, at the city of Baltimore. In February, 1916, Harry Levin, Jacob Cohen and Kenneth A. Spencer were engaged as copartners, under the firm name of the New York & Maryland Company, in the erection of an apartment building on the southeast corner of Linden avenue and Brooks lane in the city of Baltimore. The Kenneth A. Spencer above named is a son of the defendant. The New York & Maryland Company being unknown in Baltimore, and desiring to obtain building supplies from the plaintiff and establish a line of credit, gave the • name of the defendant to the plaintiff, as a person who would vouch for their financial responsibility. A Mr. Joseph, representing the New York & Maryland Company, called upon the plaintiff and stated that the defendant,, who was the president of the Spencer Lumber Company of Rochester, N. Y., would guarantee the, account. So far as the record shows, the only interest the defendant had in the enterprise undertaken was the connection of his son, Kenneth A. Spencer, with the New York & Maryland Company, as one of the copartners. Accordingly, the defendant was written to by the plaintiff, regarding the financial standing of the New York & Maryland Company, to which an answer was received. This reply, which was signed “Spencer Lumber Company,” written on the typewriter, was not satisfactory to the plaintiff, so on February 26,1916, another letter was written by plaintiff to the defendant, as follows:

“Exhibit- 10.
“February 26, 1916.
“Mr. s. B. Spencer, President,
“Spencer Lumber Company,
“691 Exchange Street,
“Rochester, New York.
. “Dear Sir: We are in receipt of a letter from your company dated the 2Sd inst. in reply to ours, of the 21st in connection with, the financial standing of the New York & Maryland Company.
“The letter was signed in typewriting and did not bear the signature of any of the officers of your company, and did not fully cover the subject.
“A Mr. Joseph of your city called on us in reference to our company furnishing supplies to the New York & Maryland Company, and also as to what terms could be arranged in settling the accounts. He further stated that your son had an interest in the business. The following proposition was submitted to Mr. Joseph for your approval:
“The terms are to be a two months’ note on the 10th of the month for the previous month’s deliveries, with interest. As each note falls due we are to receive 50% in cash, and a renewal note at two months with interest for the balance. The notes to be indorsed by you personally.
“We have made one delivery of cement to the building, and as we are negotiating with them for front bricks, which would have to be ordered from the factories, we would highly appreciate an early reply, in order to enable us to make prompt deliveries.
“Very truly yours,
“The National Bldg. Supply Co.,
(Sgd.) “Philip Link,
“Treasurer.”

In response to this letter the defendant, on February 28th, wrote the plaintiff the following letter:

“Exhibit 11.
“Spencer Lumber Company,
“Rochester, New York. .
“February 28, 1916.
“National Building Supply Company,
“Baltimore, Md.
“Gentlemen: Answering your letter of the 26th regarding the New York & Maryland Company, and the talk you had with Mr. Joseph, regarding the payment of their account. ■
“The writer expects to be in Baltimore within the next two weeks, and will be glad to take the matter up with you while there.
“In the meantime, any material you let the New York & Maryland Company have, for their present job, I will see that you get your money.
“Trusting this will be satisfactory, I remain,
“Yours very truly,
(Sgd.) “S. B. Spencer.”

Accordingly, on receipt of this last letter, the plaintiff supplied the New York & Maryland Company with various materials and building supplies, which were used in the erection of the aforesaid apartment house. On March 23, 1916, the defendant, not having come to Baltimore within the two weeks as he said he expected to do, plaintiff wrote another letter calling attention to his letter of February 28th, and notified him that they were still making deliveries to the New York & Maryland Company and would continue to do so, as per his instructions. That letter was as follows:

“Exhibit 12.
“March 23, 1916.
“Mr. S. B. Spencer,
“691 Exchange Street,
“Rochester, N. Y.
“Dear Sir: Referring to your letter of February 28th, in which you stated that you expected to be in Baltimore in about two weeks to take up -the matter of guaranteeing the account of the New York & Maryland Company, we are making deliveries to the above, and will continue to do so, as per your instructions.
“Up to the present writing, this month’s purchases amount to five hundred dollars ($500.00) and we have a standing order to deliver 100 bags of cement per day.
“We have also booked their order for 80,000 front brick, which will be delivered as soon as received frorii the factory.
“May we ask you kindly to either call on us in person according to promise, or write us so as to enable us to have a definite understanding. _
_ “Your prompt attention to this will be appreciated.
'“Yours very truly,
“The National Building Supply Co.,
(Sgd.) “Philip Link,
“Treasurer.”

The defendant answered this letter March 25th as follows:

“Exhibit 13.
“Spencer Lumber Company,
“Rochester, N. Y.
“March 25, 1916.
“National Building Supply Co.,
“North Avenue & Oak Street,
“Baltimore, Md.
“Gentlemen: We are just in receipt of your letter of the 23d regarding the New York & Maryland Company.
“I have intended going to Baltimore for the past month, but some way, I am pretty well tied up here for the time being, and cannot say just when I will be down there.
“I would suggest that the New York & Maryland Company see you, and make an arrangement for paying you so much a month, so as to keep their account on the proper basis.
“Trusting these matters can be arranged so everything will be satisfactory to you, until I can come to Baltimore, I remain,
“Yours very truly,
SBS/K ' “S. B. Spencer.”

As matter of fact defendant never went to Baltimore. Plaintiff continued supplying material until July 28, 1916, when the New York & Maryland Company became financially embarrassed, and operations ceased, at which time they owed the plaintiff $1,-920.89.

It afterwards developed that Kenneth A. Spencer, defendant’s son, left the firm of the New York & Maryland Company, some time in April, 1916. Demand was made by letter on defendant August 23, 1916, to pay the amount due plaintiff for materials furnished the New York & Maryland Company in the construction of the said apartment house. On August 26th defendant answered this letter expressing surprise at the amount claimed, and stated that he had nothing further to do with the account since his son left the New York & Maryland Company.

There appears to be very little dispute about the facts in the case. At the close of the testimony both parties moved for a directed verdict.. It is said by counsel upon both sides that the case turns upon the meaning of the words: “In the meantime,” contained in Exhibit 11. It was the defendant’s contention, and in this he was sustained by the trial court, that these words refer to a distinct period of time, viz., two weeks, and it having appeared that all of the material supplied within the two weeks after the date of the letter (February 28th) was more than paid for by April 13th, by the New York & Maryland Company, there was consequently nothing due plaintiff.

On the other hand, it was and is the plaintiff’s contention that these words, “In the meantime,’’ do not refer to a fixed period of time of two weeks, but refer to the arrival of defendant in Baltimore, or until some other arrangement satisfactory to plaintiff was made, which might take place in two weeks, or a later date, and in support of this theory, plaintiff relies, not only on the letter itself, but upon the other letters set forth, and the acts and conduct of the defendant in relation thereto.

It was and is the plaintiff’s contention that any ambiguity that may have existed in the meaning of these words, standing alone, was cleared away by the uncontradicted evidence in the case, and that they are therefore capable of but one interpretation, and that is as contended for by plaintiff, and that hence a verdict should have been directed for plaintiff, there being no dispute as to the facts.

In directing a verdict for the defendant the learned circuit judge charged the jury as follows:

“This case resolves itself largely into a question of law, and you are directed to find a verdict, of no cause. of action, for the defendant, for the following reasons: It is undisputed that the plaintiff treated its account against the New York & Maryland Company as an open and running account, and that, on March 14, 1916, the date to which the defendant’s guaranty ran, the debits against the latter company were $346.88, and, if these were not paid, that sum, with accumulated interest, would be due from the defendant. From March lltli to April 13, 1916, however, there was credited on this account by the plaintiff $755.08, partly returned material, partly cash, $619.94. There being no evidence of how payments should be applied, they apply upon the debts in order of the dates; accordingly it appears that the guaranteed portion of the New York & Maryland Company’s indebtedness has been paid. The extent to which the defendant guaranteed the payment of the account in favor of the plaintiff against the New York & Maryland Company is set forth in the letter of February 28, 1916, from the defendant to the plaintiff. That guaranty cannot be enlarged from the facts deduced, or changed without the act or consent of the defendant; the guaranty in question covers such indebtedness as may have been incurred by the New York & Maryland Company to the plaintiff within the two weeks’ period, beginning with February 28, 1916, and does not cover any indebtedness contracted after the end of that two weeks’ period. The guaranty of the defendant did not warrant the plaintiff continuing the supplying of material to the Baltimore job on order of the New York & Maryland Company after March 14, 1916, and looking to the defendant for the payment of the same, if the company did not pay. The guaranty of the defendant being an obligation of the defendant to pay the debt of another, must receive such interpretation and construction as is disclosed from the intention of the parties expressed in their letters, and especially in that of the defendant under date of February 28, 1916. Therefore, the clerk will take the verdict of the jury — of no cause of action.”

Verdict and judgment were duly entered for defendant. The plaintiff has brought error, and error is assigned upon the refusal of the court to direct a verdict for plaintiff; on directing a verdict for defendant, and upon specific portions of the charge.

It is urged in argument by plaintiff that candor and good faith demanded that defendant explicitly declare the guaranty terminated if that was his construction of it, when he saw that plaintiff was acting upon a different understanding of his letters, and that by his silence he tacitly accepted the construction which plaintiff submitted to him. It is urged by counsel for plaintiff that when read in connection with the previous letter (Exhibit 10) the answer (Exhibit 11) plainly indicates the following arrangement:

Plaintiff had written defendant that a Mr. Joseph had called on them, explaining that defendant’s son had an interest in the New York & Maryland Company. Certain terms were agreed upon, subject, however, to the approval of defendant. Defendant, in answering this letter, instead of accepting these terms which included indorsements of notes, among other things, stated that he expected to be in Baltimore within the next two weeks, when he would be glad to take the matter up with them, but in the meantime, any material plaintiff let the New York & Maryland Company have for the present job, he would see that they got their money for; that it is very apparent that what he meant was that when he got down to Baltimore, where he expected to be very shortly, say in two weeks, he would take up with plaintiff while there the terms which were suggested in plaintiff’s letter of February 26th, but in the meanwhile, until he could make some satisfactory arrangement with plaintiff, it was not to hold up the building, but go ahead and order the front bricks; and anything that plaintiff supplied the New York & Maryland Company with for their present job he would see that plaintiff was paid for. That this was the construction that was put upon the guaranty by plaintiff, and upon which it acted, and it was upon this construction that defendant permitted plaintiff to act.

It is further urged by plaintiff that its construction of the meaning of the words “in the meantime,” is found not only in the letter itself (Exhibit 11), but also in plaintiff’s letter of March 23d, that it was still making deliveries and would continue to do so as per defendant’s instructions, although this letter was written ten days after the expiration of the two weeks’ period. In the further fact that defendant did not enlighten plaintiff in his answer of March 25th, if his understanding of the words “in the meantime” had some other meaning than that apparently understood by plaintiff, and in his suggestion in that letter that some arrangement be made with the New York & Maryland Company so as to keep the account on a proper basis, which suggestion was for defendant’s protection. Also in the fact that the order for front bricks which first called for the guaranteeing of the account, could not, under the evidence, be ordered, manufactured and delivered within the two weeks rer ferred to in the letter of February 28th. Also that nowhere in the correspondence, evidence or pleadings, was there a suggestion that the guaranty was limited to two weeks. Plaintiff cites the following authorities in support of its position: American Steel & Wire Co. v. Richardson, 191 Mich. 549; 1 Brandt on Surety-ship & Guaranty (3d Ed.), §§ 174 to 178 inclusive; R. L. Polk Printing Co. v. Smedley, 155 Mich. 249.

It is the claim of the plaintiff that the guaranty was a qualified continuing one, for the reason that defendant did not, in clear and unequivocal language which could not reasonably be misunderstood, limit his liability to two weeks.

The defendant, in support of his contention, and as sustaining the holding of the court below, cites the general rule as to guaranty, and application of payments as stated in Gard v. Stevens, 12 Mich. 292, and in Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385, 391, to the effect that a guarantor is not liable beyond' the express terms of his contract.

It is undoubtedly the rule that a contract is to be read and construed in the light of the circumstances' attending its execution. We have said:

“It is elementary that a contract must be construed so as to effectuate the intent of the parties when it was made; and to ascertain the intent of the parties, a contract should be construed in the light of the circumstances existing at the time it was made.” Kunzie v. Nibbelink, 199 Mich. 308.

The position occupied by the parties when they used the words expressed in the contract should be considered. Ferris v. Wilcox, 51 Mich. 105; Ardis v. Railway Co., 200 Mich. 400, 411. Applying the above rules to the undisputed facts in this case, we are of the opinion that the trial court took too narrow a. view as to the legal effect of the guaranty, when it held that by its terms the liability of defendant was; limited to two weeks only. We think that the position of plaintiff, as stated above, is the correct one, and that under the undisputed facts found in this record a verdict and judgment should have been directed for the plaintiff for the amount of its claim.

The judgment is therefore reversed, with costs to the plaintiff, and a new trial granted.

Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred. Moore, G. J., did not sit.


text:
    STOUT v. STOUT.
    1. Divorce — Grounds Stated in Bill — “Public Policy.”
    Where a decree of divorce was granted the husband upon motion of his counsel, it should be treated as granted upon the grounds stated in the bill, although language used by the court would indicate that it was granted on the grounds of “public policy.”
    2. Same — Extreme Cruelty — Evidence—Sueetcienoy.
    In proceedings for a divorce by a husband on the ground of extreme cruelty, where defendant filed a cross-bill on the same grounds, evidence held, sufficient to sustain a decree for plaintiff, although he was also guilty of acts of cruelty while irresponsible.
    3. Same.
    Defendant’s claim that plaintiff had surrendered his interest in a land contract to 60 acres of land, held, not supported by the record.
    4. Same — Alimony—Division oe Property.
    On appeal, the decree of the court below dividing the property and awarding to plaintiff husband a small amount of the household goods is affirmed, except as to the household goods awarded to plaintiff, which, being too vague to be enforced, will be eliminated.
    Appeal from Ionia; Moinet (Edward J.), J., presiding.
    Submitted June 9, 1920.
    (Docket No. 27.)
    Decided July 20, 1920.
    Bill by Charles J. Stout against Jennie Stout for. a divorce. From a decree for plaintiff, defendant appeals.
    Modified, and affirmed.

      Watt & Colwell, for plaintiff.

      Fred L. Warner, for defendant.
   Stone, J.

The parties to this cause were married on January 2, 1900, and they lived together as husband and wife until the month of July, 1918, except as the plaintiff was absent from home on a number of occasions, as will be hereinafter stated. On March 2, 1903, the plaintiff purchased by land contract a farm of 60 acres, from one Lovely. This land was in the township of Maple Valley, county of Montcalm. The actual consideration for this purchase was $1,-525. The plaintiff paid at the time the contract was signed $300, and the contract provided for the payment of the remaining $1,225 within five years with interest at 6 per cent, per annum. The parties moved onto the farm soon after its purchase and lived there until 1910, when they moved to Belding, Ionia county, where the defendant has since resided.

The plaintiff, by reason of some injury which he received prior 'to his marriage, became totally deaf. He also became insane on at least three occasions, the first time being before his marriage. In 1909 he was sent to the asylum at Traverse City, where he remained for about four months; and again in July, 1915, he was sent by the proper authorities to the samé asylum, where he remained until May, 1917, when he left that institution of his own accord and returned to the farm in Montcalm county.

The plaintiff, on November 14, 1918, filed the bill herein in Ionia county where the defendant then resided, he having been previously, by the probate court of Ionia county, declared to be restored to soundness of mind. In his bill of complaint plaintiff charged the defendant with various acts of personal violence amounting to extreme cruelty, and also with having attempted, in July, 1918, while the plaintiff was perfectly sane, to cause him to be returned to the asylum at Traverse City.

The defendant answered denying all of the acts of cruelty charged by plaintiff, and by cross-bill charged plaintiff with being guilty of extreme cruelty, and prayed for a decree of divorce, and for other afiirmative relief. The plaintiff answered the cross-bill denying its allegations of extreme cruelty.

It appears that the parties have five living children —three of whom are under 14 years of age, to wit: Georgia aged 13 years, Durward aged 11 years, and Imogene .aged 7 years. Durward is living with the plaintiff, and the other two are with the defendant. At the hearing there was much conflict in the testimony of the parties. Each party was by the other charged with personal violence and assault, and also with acts of extreme cruelty to the children.

Unfortunately the children of the parties, have taken sides in the controversy, some testifying for one party and' some for the other. There is no doubt that the plaintiff, by reason of his extreme deafness, is a person of irritable disposition. In fact the learned circuit judge who heard the testimony, in his opinion, said:

“Some of the alleged cruelty upon both sides, has, in a measure, been due to the condition of the plaintiff. However, his appearance upon the stand indicates that, even though he is mentally responsible, he has a very irritable disposition, probably due in part to his defective hearing.”

We have carefully read this record, but shall not quote from the testimony. There was ample testimony on behalf of plaintiff to sustain the charge of extreme cruelty of the defendant. Some of the acts of defendant were committed when the plaintiff was irresponsible. Some, and we think, most of the acts of the plaintiff, which are complained of by the defendant, were committed at a time when he was insane, and therefore irresponsible. In our opinion the plaintiff is entitled to a decree upon the ground of extreme cruelty of the defendant. This, as we understood the opinion and decree, is what the court below granted. There is some language used by the court in its opinion and decree that would indicate that the decree was granted on the grounds of “public policy.” This expression, we think, was used to indicate that, in the opinion of the court, the parties have become so estranged that it will be impossible for them to properly resume their relations of husband and wife. A similar expression was used by this court in Utley v. Utley, 155 Mich. 258, and in Tiffin v. Tiffin, 209 Mich., at page 237.

In the instant case the decree of divorce was granted on motion of counsel for the plaintiff, upon the evidence at the hearing, and should, we think, be treated by us as a decree for the plaintiff upon the grounds stated in the bill of complaint.

Counsel for both parties seem to agree that a divorce should be granted in the case. The counsel for defendant says in his brief: “The..parties are so irreconcilably separated that they can never live together”; he claims, however, that the divorce should be granted to the defendant. In this latter claim we do not agree with counsel. The principal controversy is with reference to the disposition' of the property, and that subject remains to be considered. There is no question that the land contract of March 2, 1903, was given to the plaintiff as purchaser, and this contract does not appear to have been surrendered, according to the claim of the plaintiff. He made the first payment of $300, and seems to have paid at least $200 afterwards, and the payment of $427.50 of October 12, 1912, was. received as insurance on the barn on the farm, which was burned. The defendant denied that the plaintiff had at the time of the hearing any interest in the farm, her claim being that in 1911 the plaintiff surrendered his contract and gave her whatever interest he had in the land, and that later, and in April, 1912, Lovely executed a new contract running to her, and that she had made payments thereon reducing the amount unpaid to $272, which, appeared to be the sum due at the hearing. Most of the payments made by defendant were the proceeds of crops raised on the farm.

Upon this subject the testimony of the parties cannot be reconciled. After reading and considering all of the testimony upon the subject, we are of the opinion that the plaintiff never surrendered his contract; that the defendant got possession of the papers without the consent of plaintiff, and that his equities in the land are superior to those of defendant. The circuit judge seems to have had some doubt as to the claim of the defendant upon this question. In his opinion he said:

“As to the sixty acres of land, which defendant claims to own entirely, the court is considerably in doubt as to her claims in that respect, although some evidence is given that she made a number of payments upon the contract, and the court is of the opinion that in order to arrive at an equitable adjustment of their property matters, the farm will be sold at a price agreed upon by the parties, and the proceeds, less the balance due on the contract, shall be equally divided between the parties; if the parties are unable to agree upon a price for said farm, the sale thereof may be made by a circuit court commissioner at public sale, and the expense thereof paid from the proceeds of such sale,”

- — and the decree so provides.

The decree, after dissolving the marriage, gave the custody of the boy Durward to the plaintiff, and making it the duty of the plaintiff to provide a suitable home for the child, other than in a hotel or other public place. It gave the custody and control of the girls, Georgia and Imogene, to the defendant, and provided that if at any time the mother's pension, awarded the defendant by the probate court of Ionia county, should be discontinued, then and in such case the plaintiff shall pay to the clerk of said court, for the use and benefit of the defendant, to enable her to support, maintain and educate the- two minor children above mentioned $2,50 per week for each child until they shall respectively attain the age of 14 years, which sum shall be paid every two weeks by the plaintiff, and that after said children arrive at the age of 14 years, the court will determine the amount of support to be awarded said minor children.

In disposing of certain moneys, the proceeds of crops raised on the farm, it was decreed that defendant should be entitled to retain the sum of $194.65 then in her hands, and should also receive from the moneys then deposited with the clerk of the court the further sum of $80.35, and that the balance of the moneys in the hands of the clerk should be paid over to the plaintiff, to wit, $173.99. The decree further provided that the plaintiff should receive from the household goods of the parties such a small amount as would be necessary for his use; and made provision that either of the parties should have the right to visit the children in the custody of the other party, at any reasonable time or place, and that defendant should have the right to have the child Durward with her, in her home, a reasonable period of time. No costs were awarded to either party.

Since the case was appealed, this court, upon petition of the defendant, has allowed her to draw from the $254.34 in the hands of the clerk the sum of $180.35, leaving $73.99, which, on petition of plaintiff, has been paid to him. The order of this court provided that the amount so paid to the defendant should be taken into consideration in determining the rights of the parties upon the final decree of this court. Aside from the provision relating to the awarding to plaintiff a small amount of the household goods of the parties, we think the decree is a just and equitable one. In our opinion the defendant should have all of the household goods and furniture.

The plaintiff has not appealed, and the order relating to his right to a part of the household goods is too vague to be enforced, and it will be eliminated from the decree. •

In all other matters, and as thus modified, the decree below will stand affirmed. In view of the amount awarded to defendant by order of this court, no costs will be awarded to either party.

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


author: Sharpe, J.

text:
    AUDITOR GENERAL v. AYER.
    1. Schools and School Districts — Taxation—Finding of Court.
    On objection to the validity of certain school taxes, the finding of the court below that an estimate of the necessary expenses for the ensuing year, as required by 2 Comp. Laws 1915, § 5903, was read at the annual meeting of the school district, held, justified by the record.
    2. Same — Estimate of Expense Read at Annual Meeting — Failure to Place on Record.
    The purpose of requiring a statement and estimate to be made, entered in the record, and read at the annual meeting of a school district (2 Comp. Laws 1915, § 5903) being to advise the voters there present of the condition of the school and its finances, where a detailed statement was read at the annual meeting, the omission to enter same upon the record was properly held by the court below not to avoid the tax.

      3. Same — Tax Voted by Sub districts Valid.
    Where a school district was divided into two subdistricts under 2 Comp. Laws 1915, § 5892, there heing.no provision therein for a joint meeting for the voting of taxes, a tax spread only for the amounts voted by a majority of the voters at each subdistrict, helé, valid.
    4. Same — Taxation—Objection to Tax Not Piled Not Available.
    An objection to a school tax not filed in compliance with 1 Comp. Laws 1915, § 4063, cannot be considered by this court.
    Appeal from Houghton; O’Brien (Patrick H.), J.
    Submitted June 15, 1920.
    (Docket No. 30.)
    Decided July 20, 1920.
    Petition by Oramel B. Fuller, auditor general, for the sale of land delinquent for taxes: 'On objection of Frederick F. Ayer, trustee of the estate of James O. Ayer, deceased. „ From an order overruling the objections, said trustee appeals.
    Affirmed.

      Anthony Lucas, Prosecuting Attorney, and Walter G. Van Slyck (John J. Walsh, of counsel), for plaintiff.

      A. E. Miller (Ralph R. Eldredge, of counsel), for appellant.
   Sharpe, J.

The township of Duncan in Houghton county was organized as a township school district in 1915, under the provisions of Act No. 176, Public Acts of 1891, and the acts amendatory thereto (2 Comp. Laws 1915, § 5892 et seq.). In 1916, the district was divided into two subdistriets, number one known as the Kenton district, and number two as the Sidnaw district.

At the hearing of the auditor general’s petition for the sale of lands delinquent for the taxes assessed thereon for the. year 1916 in said county, the following objections were filed to the validity of the school taxes in that township:

“The said school taxes are void for the following" additional reasons:
“(a) The said school district was organized as a township school district under Act No. 176 of the Public Acts of 1891, and the acts amendatory thereof but the board of education of said school district did not, prior to the annual meeting of said school district, make the detailed statement and estimate required by section 12 of said act, nor was any such statement or estimate entered in the record of said board or publicly read to the voters at the said annual meeting, as required by said section 12.
“(b) The questions as to raising money by taxation, acted upon at said annual school meeting in the two precincts into which said township was divided, were not previously reported to the township board, and were not by them reported to the board of inspectors of election of each precinct on the morning of election, or at any other time prior to said election, as required by section 3649 of the Compiled Laws of 1915.
“(e) The motions voted upon in the two precincts were entirely different both as to purpose and amount, with the result that none of said motions was lawfully carried.”

The appeal here pending is from a decree overruling these objections.

Section 5903 (section 12 of the act) requires the board of education, prior to the annual meeting to be held on the second Monday in July, to make a detailed statement of the number of schools, the number of teachers, the number of pupils and the expenditures during the preceding year and—

“also an estimate of the necessary expenses for the ensuing year, exclusive of the income from the primary school interest fund and one mill tax, which report or statement shall be entered at length in the record of said board and shall be publicly read * * . * to the voters * * * at their annual meeting.”

The records of the district contain no such statement or estimate. In the opinion filed by the trial judge he says:

“With reference to this point it is sufficient to say that the evidence in this case shows that' a detailed statement of expenditures was read at the annual meeting of said school district in both precincts. That an estimate was read at both meetings.”

We have examined the record and are of the opinion that this finding was justified by - the proofs. But counsel urge that parol evidence, was not admissible to establish such facts; that as section 12 above quoted provides that the statement and estimate shall be entered at length on the record, the absence of such record conclusively negatives any claim that such action was had. If the taxes were legally voted by the proper authorities, we fail to see how a taxpayer can be said to be injured by such omission. The purpose of requiring a statement and estimate to be made, entered in the record and read at the annual meeting, is to advise the voters there present of the condition of the school and its finances and to give them the benefit of the judgment of the board as to the taxes necessary to be voted to maintain the school for the succeeding year. In the absence of such information, the voters might well decline to vote any taxes until the same was presented. But when this'information is furnished them from a detailed statement and estimate read to them, we think the trial judge rightly concluded that the omission to enter such writing in the record should not be held to avoid the tax.

and Section 5892 (section 1 of the act) provides that the board of education may divide the township into subdistricts, and it is conceded that such action was taken. There is no provision for a joint meeting for the voting of taxes. The board apparently were of the opinion that the law providing for voting township taxes in such cases would govern. Without considering the necessity for legislation authorizing such action, it is sufficient to say that a tax was spread only for the amounts voted by a majority of the voters at each subdistrict. Other taxes were, however, voted by the board.

Counsel for the objector urged that the action of the board in voting taxes without reciting in the resolution that the voters had neglected or refused to authorize the same, rendered the tax void under our decisions in Harding v. Bader, 75 Mich. 316, and Auditor General v. Railway Co., 116 Mich. 122.

Counsel for the petitioner insist that no such objection was filed and that it cannot now be considered. The provision of the tax law as to such objection is very specific. In section 66 thereof (1 Comp. Laws 1915, § 4063), it is provided:

“Any person having any interest in the lands * * * desiring to contest the validity of any tax shall file in writing his objections thereto * * * and shall not be allowed to make any objections not therein specified.”

We have set out the objections in full as they appear in the printed record and do not find that they include any such claim. We therefore cannot consider this objection. Auditor General v. Sloman, 84 Mich. 118.

We feel constrained to conclude, as did the trial judge, that “the objections to the school taxes are without merit and should be dismissed.”

The decree is affirmed, with costs against the objector.

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


text:
    SAYERS v. McKEEVER.
    Specific Performance — Land Contracts — Who to Pat Taxes— Tender of Deed — Abandonment.
    On a bill by tbe veydee for tbe specific performance of a land contract, where there was no provision in the contract that defendants should pay the taxes on the premises, which would not become a lien thereon until the day after a tender of the deed, duly executed, was made, which plaintiff refused to accept unless defendants would agree to pay the taxes, the defendants were justified in treating the contract as abandoned by plaintiff.
    Appeal.from Wayne; Mandell (Henry A.), J.
    Submitted June 10, 1920,
    (Docket No. 33.)
    Decided July 20, 1920.
    Bill by Jennie L. Sayers against Frank A. McKeever and another for the specific performance of a land contract. From a decree for plaintiff, defendants appeal.
    Reversed, and bill dismissed.

      Barbour, Field & Martin, for plaintiff.

      William Henry Gallagher and Francis T. McGann, for defendants.
   Sharpe, J.

Defendants, on June 20, 1919, contracted to sell certain real estate in Detroit to plaintiff. The deal was tó be closed within five days after abstracts were furnished. Five hundred dollars was paid thereon. Julius L. Baker, of the real estate firm of J. Lee Baker & Company, represented both parties during the negotiations. On July 14th, the defendants went to Mr. Baker’s' office to close the transaction. The plaintiff was not present, in fact she and the defendants had never met. Computations were made as to rent, insurance, etc., as provided in the contract, and an agreement reached thereon. The necessary conveyances were then prepared and executed by the defendants. The question as to who should pay the city taxes, which would become a lien on the property on July 15th, was then raised by Mr. Baker. Defendants declined to do so. Baker telephoned to plaintiff, and she also refused. Defendants then tendered the conveyances and other writings to Baker for plaintiff, who refused to accept them, and the parties separated. Later, on the same day, Baker told McKeever by telephone that plaintiff would not pay the taxes, but was otherwise ready to perform the contract. McKeever then told him he would not pay the taxes, and declined to further carry out the contract. Later, and in the early part of August, plaintiff, through her attorney, made a tender to McKeever of the amount due and demanded a warranty deed of the premises as provided for in the contract. McKeever refused to accept, whereupon plaintiff, on August 22d, filed the bill of complaint herein, praying for a specific performance of the contract. On October 7th, defendants tendered to plaintiff the $500 down payment they had received. From a decree in plaintiff’s favor, defendants appeal.

Both parties were apparently ready to perform the contract at the meeting in Mr. Baker’s office on July 14th and, had not the question of payment of taxes then arisen, the deal would no doubt have been closed. The taxes, would become a lien on the property on the following day. The contract was silent as to who should pay them. Had the warranty deed provided for in the contract been executed on the 14th, defendants would have been under no legal obligation to pay the taxes as they were not then a lien on the property, whereas, had the deed been made later, they would have been chargeable with their payment under the ■usual warranty clause against incumbrances in order to relieve the property from the lien created thereby.

We think, under the terms of the contract, that when the parties had agreed on all things necessary to full performance on July 14th defendants had a right to insist that the deed to plaintiff should be executed as of that day. It was apparently well within the understanding of the parties when the contract was made on June 20th that it would be performed as early as July 14th. Plaintiff might have protected herself against payment of taxes by a provision in the contract that defendants should pay them. Not having done so, her refusal to perform unless defendants agreed to pay such taxes justified defendants, ■ after making tender as was done on the 14th, in treating the contract as abandoned by plaintiff and in refusing to further perform. The conclusion reached renders it unnecessary to consider the other questions discussed by counsel.

The decree will be reversed, and one entered here dismissing plaintiff’s bill of complaint, with costs to defendants.

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