text:
    SHURTE v. FLETCHER.
    1. Estates of Decedents—Settlement—Validity.
    A conveyance and agreement by which the interests of the several heirs in an estate are conveyed to a trustee in order that he may make conveyances for the partition of the estate among the heirs according to allotments agreed upon, the effect of which is to cut off the interest of one of the heirs, will be set aside, where it appears that the latter, when the papers were executed, was so nearly blind as to be unable to read them, that he was misinformed as to their effect, and that he notified the trustee, before the latter had acted in the matter, that he should insist upon the same interest to which he would have been entitled had the alleged agreement not been made.
    2. Same—Probate Courts—Refusal to Appoint Administrator —Res Judicata.
    Refusal of the probate court to appoint an administrator on the ground that the estate has been settled by an agreement of the heirs is not res judicata as to the validity of such agreement, as the court could not decree specific performance of the agreement if valid, or cancel it if invalid.
    Appeal from Cass; Coolidge, J.
    Submitted June 12, 1896.
    Decided December 9, 1896.

      Bill by William Sbtirte against Sarepta Fletcher and others to set aside certain conveyances made in settlement •of an estate, for a partition of the real estate, and for other relief. From a decree for complainant, defendants appeal.
    Affirmed.

      Edioard Bacon and Spafford Tryon, for complainant.

      Harsen D. Smith, for defendants.
   Moore, J.

The complainant filed a bill in chancery, alleging that his father, Isaac Shurte, at the time of his death, held the legal title to 546 acres of land, worth $30,-000; that he died March 2, 1886, intestate, leaving a widow, five children, and several grandchildren by a deceased child; that the widow, Mary Shurte, died in January, 1892, intestate, and that each of the children of Isaac Shurte became seised in fee of one-sixth of said real estate; that, at the time of the death of the widow of Isaac Shurte, there were two great grandchildren, Bertha Van Riper and Flora Van Riper, who were under the age of 21 years; that all of the heirs of said Isaac Shurte, except the two great grandchildren, were more than 21 years of age, and that, soon after the death of said Mary Shurte, they became desirous of making an amicable arrangement for the partition of said real estate among the heirs at law, and for that purpose there were negotiations in which various plans were mentioned; that the real estate to be partitioned was not of uniform value, and that the conditions were such that the various values and improvements must be considered in ascertaining the allotments to be made; and that in said negotiations it was determined that a deed should be made of the real estate to Elbridg’e Jewell, such deed to be executed by all of said heirs except the two minors, and that there should be a guardian’s sale of the interests of the two minors in said real estate, and that said Jewell should become the purchaser, so that the legal title of said real estate should be vested in him for one purpose only, namely, that he should make proper conveyances for the partition of said real estate among said heirs, the allotments or shares to be agreed upon subsequently among said heirs.

That it was agreed there should be a writing, declaring the purpose of the deed, and that the shares and boundaries as aforesaid were to depend on subsequent agreement; that said deed and other writing were duly prepared and executed, and that the negotiations were reduced to writing and expressed in said deed, a copy'of which is hereto annexed, and marked “Exhibit A,” and in said.other writing, which was to be annexed to said deed, and a copy of which is hereto attached, and marked “Exhibit B; ” that said Elbridge J ewell was well informed of said negotiations, and knew the contents of all writings pertaining to the transaction aforesaid; that he accepted the deed aforesaid, knowing that said Exhibit B was to be annexed thereto and treated as a part thereof; that he received said deed without any consideration moving from him, and that said deed was made without any consideration, except as expressed in said Exhibit B, namely, that said Elbridge Jewell was to be used as an instrument to make conveyances of allotments to be agreed upon as aforesaid; that by reason of defective eyesight the complainant was unable to read the writings set forth by said exhibits; that his son signed his name wherever it is signed on said writings, complainant depending on information from others present for his knowledge of the contents of said writings; that never after the death of his father, Isaac Shurte, did he cease to have his interest by inheritance in one equal, undivided sixth of all real estate owned by said Isaac Shurte at the time of his death, and not sold; that complainant caused his name to be signed to the aforesaid writings in reliance upon representations then made to him by other heirs of said Isaac Shurte, and in reliance upon the express terms of said Exhibit B, causing complainant to believe that there would be no conveyances made by said Elbridge Jewell for any partition aforesaid, except on proper agreement among the heirs aforesaid as to what premises should be conveyed as allotments; that there never has been any such agreement or dictation as is in said Exhibit B provided, and there is no probability that there ever will be.

That during the lifetime of said Isaac Shurte, and many years before his death, the complainant purchased from his father, Isaac Shurte, a certain part of the Isaac Shurte land aforesaid, consisting of about 80 acres, at the agreed price of $2,440; that afterwards he fully paid for said land; that, about 10 years after said purchase, complainant made an exchange with said Isaac Shurte, by which he surrendered 25 acres of land, and took in place thereof about 28 acres of land belonging to said Isaac Shurte; that complainant took immediate possession of the land first purchased as aforesaid, about 80 acres, and had exclusive possession thereof until said exchange, and that after said exchange he constructed a house upon said 28 acres, and ever after continued in exclusive possession of said 28-acre tract and the remaining part of said 80 acres, such possession continuing for more than 20 years last past; that he has made extensive improvements on said lands; that said land has been regularly assessed to him, and he has regularly paid the taxes thereon, claiming said land as his own, his father making no claim thereto; that through inadvertence the said Isaac Shurte never made any conveyance of said purchased land to complainant, and that, at about the time of said negotiations, resulting in said writings, the other heirs, except said two minors, being well informed as to complainant’s purchase and rights to the purchased land, he had conversations with them concerning the neglect of his fathers to make the proper conveyance to him, and that the other heirs engaged in said negotiations admitted complainant’s rights to said purchased land, and agreed that he was entitled to a conveyance thereof; that he prepared a deed for said heirs to execute to him, and they were willing to execute it, but it was suggested that, by reason of the minority of Mora Yan Riper and Bertha Yan Riper aforesaid, it would be better for complainant’s interests that his purchased land should be included with the other Isaac Shurte land in the deed to said Jewell, and that, after said Jewell should obtain, on guardian’s sale, the interest of said Flora and Bertha Yan Riper, then he would make to complainant a deed of said purchased land, which would give him a perfect title thereto; and that complainant, believing what was suggested to him, agreed that his purchased land should be included in said deed to Jewell, it being expressly agreed that Jewell should promptly convey said purchased land to complainant as soon after the guardian’s sale as might be, and thereupon his purchased land was included in said deed to Elbridge Jewell for the sole purpose of enabling complainant to obtain a good conveyance thereof, and for no other purpose; that it was never intimated to complainant that said premises were claimed to be a part of his father’s estate left for distribution; that no administrator was ever appointed to administer the estate of said Isaac Shurte, and, further,' that complainant has never been familiar with business transactions and dealings in land, and that in none of the transactions aforesaid did he have the aid of counsel; that, in relation to the writings aforesaid, he relied wholly upon representations of other heirs aforesaid, and never intended to prejudice his interests in said estate by any writings, negotiations, or agreements aforesaid, and he insists that his rights in his father’s estate are unaffected, and are by no means impaired.

That, soon after the making of said writings as aforesaid, and before said Jewell had made any conveyance of any real estate aforesaid, complainant expressly notified said Jewell that he would insist on all his rights, and that no conveyance must be made by said Jewell of any of the real estate aforesaid without his consent thereto, and that he must have his sixth of all real estate which belonged to said Isaac Shurte at the time of his death; that afterwards, and in fraud of complainant’s rights, and contrary to the terms of said writing, Sarepta Fletcher obtained from said Jewell a conveyance of a part of said Isaac Shurte land, owned by said heirs as tenants in common; that such conveyance was duly recorded in the office of the register of deeds for said county of Cass; and that said deed of conveyance is entirely void, and is in fraud of complainant’s just and lawful rights, and was made without any sufficient authority by said Jewell, and contrary to the plain terms of said Exhibit B; that said Jewell, contrary to the terms of Exhibit B, and in fraud of complainant’s rights, has by some kind of conveyances conveyed or attempted to convey other parts of said real estate owned by said Isaac Shurte at the time of his death, and thereafter owned in common by said heirs, to certain heirs of said Isaac Shurte, so as to make a pretended partition, excluding complainant; that complainant has never agreed to or dictated any conveyance which said Jewell has made, and, further, that every conveyance made by Jewell has been made without any such agreement and dictation as is required by Exhibit B, and in disregard of complainant’s objections; that the conveyance to Sarepta Fletcher is of nearly one-fourth of the entire land owned by Isaac Shurte at the time of his death, excepting the lands purchased by complainant as aforesaid, and was made on a plan of excluding him from all interests in the lands aforesaid, excepting, only, his purchased land aforesaid; that Sarepta Fletcher, claiming title under said conveyancó from Jewell, has commenced a suit in ejectment against complainant to recover possession of the said lands conveyed to her by the said Jewell; that said suit has been noticed for trial at the September term of court, and that, unless the prosecution of said suit is restrained by the order of the court, the suit will come to trial speedily, and will wrong complainant in his equitable rights; that the Isaac Shurte land is so situated that partition of all the land can readily be made under the direction of the court, and that complainant is desirous that such partition be made, and that he may have set off and duly conveyed to him in severalty all that he is entitled to.

That, concerning the legality or validity of claims set up by some of the heirs aforesaid in negotiations resulting in the deed to Jewell, and the agreement set forth in Exhibit B, complainant was in ignorance and without advice or counsel concerning his legal rights; that complainant never received from his father, Isaac Shurte, any property or money by way of an advancement, or otherwise, so that the same ought to reduce his sixth of any real estate aforesaid owned by said Isaac Shurte at the time of his death; that said Bertha and Flora Yan Riper, hereinbefore mentioned, are minors, and can come to no agreement and make no conveyance that will be legal and binding; that complainant is informed and believes that the guardian’s sale mentioned in Exhibit B was had, but the legality and validity thereof may be successfully contested by said minors; that complainant has never received, from any heir or heirs of said Isaac Shurte, deceased, other than himself, any manner of consideration for any transfer or surrender of any of his rights in any real estate aforesaid; that, when complainant warned said Jewell as aforesaid, prior to said guardian’s sale, said Jewell agreed with him to make no partition conveyances until he should be perfectly satisfied with the conveyances to be made, and, repeating his assurance, said, “I will make no deeds until you are all perfectly satisfied;” that, when the writings' set forth by Exhibits A and B were, on or about May 5, 1898, presented to complainant for signature, it was represented to him by other heirs of the said Isaac Shurte that the writing, of which Exhibit B is a copy, might properly and lawfully provide, as it does, that said Jewell should, at the guardian’s sale therein mentioned, become the purchaser of the interests of the aforesaid minors; and that complainant, being without experience or legal knowledge or advice on the subject, believed such representations to be true, but is now advised and alleges that such provision was illegal and void, and would in law be a fraud against said minors; and complainant is informed and believes that at the alleged guardian’s sale aforesaid there was no payment on the money bid.

The prayer of the bill was that a decree be made declaring complainant to be the owner in fee simple of the •82 acres before mentioned, and that he is entitled to have, free and clear of. all incumbrances and claims, one equal, undivided sixth of all other lands aforesaid, designated as the “Isaac Shurte Land,” and that the deeds from Jewell to any heir or heirs aforesaid of Isaac Shurte, deceased, other than complainant, may be set aside and held for naught, and that said deed to Jewell may be set aside, if necessary for adequate relief to complainant under his bill, and that due partition may be made of all the lands aforesaid, other than the land belonging to complainant as purchaser as aforesaid, and that all proper conveyances may be decreed, with a general prayer for relief.

The defendants answered in the cause, and alleged that, in addition to the real estate mentioned in complainant’s bill, -the estate consisted of a large amount of indebtedness from the heirs to the estate; that the complainant owed the estate upwards of $10,000; that other heirs owed large sums of money, some in excess of their interest in the estate; and that the heirs got together, and made a compromise, and a final agreement was reached that would settle the whole estate; that “that agreement was that all the heirs should execute and deliver a warranty deed of all the lands Isaac Shurte died seised of to Elbridge Jewell, and said Jewell should acquire the whole title to all of said lands. Then all of said lands, except a certain piece that .was agreed should be deeded to complainant, William Shurte, should be appraised at its cash value, by Joseph Lybrook and George Crawford, and the value they fixed upon said lands should be the value of said lands for partition and division. * * * It was further agreed that the lands described in Exhibit C in complainant’s bill should be deeded to the complainant, William Shurte, and that the claim of said estate, amounting to $10,889.22, against said William Shurte, should be surrendered to him, and that said land and said claim should be in full of all said William Shurte’s interest in said estate. The deed (Exhibit A) and the contract (Exhibit B) of complainant’s bill were prepared as set forth in complainant’s bill, but were not signed, and the heirs and parties thereto refused to sign either of said exhibits, until the exact amount of land, and a description thereof, which each heir was entitled to and was to receive, was agreed upon and made a part of Exhibit B; and then and there, on the 5th day of May, 1892, the said heirs did, by mutual agreement, divide to each of said heirs the exact amount and parcel of land each was entitled to, and the exact description of each of said parcels that each of said heirs was entitled to and was to receive by deed from said Jewell, and the said partition, division, and description then and there became a part of said Exhibits A and B before either of said instruments were executed. ”

That Jewell made his deeds of said lands as by said contract he was directed to do, and that the complainant signed said contract, well knowing by its terms that all the lands mentioned in Exhibit A of his bill of complaint were partitioned and divided by agreement, and just what lands he was to have, and ‘ ‘ that he was to have no more or other lands than what was contained in said contract, and which has since been deeded to him by Jewell;” and that all claims that said partition of lands “was without his consent, and was a fraud upon his rights, are false and untrue.”

That, “after the estate had been fully settled, and all the lands described in Exhibit A of complainant’s said bill had been deeded by said Jewell as the parties had contracted and agreed', and all the notes held and owned by said estate against each of the heirs of said estate had been offered, tendered, or surrendered to each 'of said heirs, as had been agreed, the complainant herein, said William Shurte, filed his petition in the probate court, * * * praying that an administrator be appointed for the estate of said Isaac Shurte; that this petition was made and filed in said probate court August 15, 1892; that the other heirs of said Isaac Shurte appeared and opposed the granting of letters of administration, on the ground that said estate had been fully settled by the agreement of all the heirs; and the probate court so adjudicated and decided. * * * And these defendants insist that the matter attempted to be litigated in this suit, to wit, whether said estate has been legally settled, by the agreement of all the heirs and parties interested therein, is res judicata ”

At the hearing about 400 pages of printed testimony was taken. The trial judge found the averments of the bill of complaint to be true, and made a decree as prayed for therein. The defendants appeal. The testimony has all been carefully read; but it will be necessary to refer to it but briefly. The record establishes conclusively that, as to 82 acres of the land, the complainant bought it of his father years before the father’s death, and had paid for it; that it was considered by all the family as his. The brothers and sisters were surprised to learn, after the death of their mother, that William did not have the legal title to this 82 acres of land. He had the equitable title, and was entitled to the legal title. As to the 82 acres of land, it was no part of the estate of Isaac Shurte, and, unless an agreement was made .between William and the other heirs which would change his situation, he was entitled, not only to a deed to this 82 acres of land, but also to an undivided one-sixth interest in the estate left by his father. It is the claim of the defendants that such an arrangement was made. They concede he should have title to 82 acres, but insist that, because of a compromise and settlement between the heirs at law, in which William participated, he has no interest in the estate beyond the 82 acres. The record discloses that there belonged to the estate notes, given by the heirs to tlie father and mother, amounting, with the interest added, to upwards of $35,000. Many of these notes were given upwards of 25 years ago, and were outlawed. It is the claim of the defendants that there was due on the notes of F. M. Shurte $11,500, on the notes of William $10,500, of Mrs. Hardenbrooke $7,000, and smaller amounts from the other heirs, and that these amounts were agreed upon, and that, when the amounts of the notes were added to the appraised value of the real estate, and divided by the number of heirs, and the amount due each was deducted from the indebtedness of F. M. Shurte and William Shurte, there was nothing coming to either of them. It is also claimed that, in view of that fact, the following papers were drawn and executed:

Exhibit A.

“This indenture, made this fifth day of May, in.the year of our Lord one thousand eight hundred and ninety-two, between William Shurte and Elizabeth, his wife, * * * and Elbridge Jewell, of Cassopolis, Michigan, of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of one dollar, to them in hand paid by the said party of the second part, the receipt whereof is hereby confessed and acknowledged, do by these presents grant, bargain, sell, remise, release, alien, and confirm unto -the said party of the second part, and his heirs and assigns forever, all those certain pieces or parcels of land situate and being in the township of Lagrange, county of Cass, and State of Michigan, and described as follows: * * * [Signed by William Shurte and the other heirs.]”

Exhibit B.

“Be it known that the annexed deed from the heirs of Isaac Shurte, deceased, to Elbridge Jewell, is made on the following conditions and for the following reasons, to which we severally agree: Whereas," Sarah Van Riper, daughter of Elizabeth Ritter, both deceased, said Elizabeth Ritter being heir at law of Isaac Shurte, deceased,—said Sarah Van Riper died, leaving two children, as follows: Bertha and Flora; said children being minors and heirs to the estate of Isaac Shurte, deceased: Therefore, it is the intent of this deed to said Elbridge Jewell, that he, at guardian’s sale of the interest of the minor heirs aforesaid, shall become the purchaser of said interest, thus investing the whole title to said estate in him, for the purpose of deeding to the several heirs such shares as they may agree upon and dictate, and for no other purpose, and said deed hereto attached shall not be delivered until said sale, and then for no other purpose than as above stated. [Signed by William Shurte and the other heirs.]

“ Witness our hands this 5th day of May, A. D. 1892.

“Henry C. Harmon.”

“Description of lands awarded to Isaac Henry Shurté: East half of southeast quarter of section 16, except fourteen acres off of the west half. * * * Description of Mary Wolfe’s, Lewis I. Ritter, Cynthia Ritter, Emily Ritter, Ida Ritter, and D. A. Ritter: * * * Sarepta Fletcher’s description of land: * * * Description of I. Henry Shurte, Margajet Hardenbrooke, Mary Wolfe, Lewis I. Ritter, Emily Ritter, Cynthia Ritter, Ida Ritter, and D. A. Ritter land: The south half of northwest quarter of section No. 32. Description of William Shurte land: The southeast quarter of the northeast quarter and 14 acres off from the north end of the east half of the southeast quarter, both in section 16. Also, commencing at the southwest corner of southeast quarter section 15, in said township of Lagrange; thence north 70 rods; thence east 26 rods; thence south 70 rods; thence west 26 rods to beginning,—containing Ilf acres. Also, commencing at the center of section 15 in said township of Lagrange; thence south, 38 minutes west, 22 chains and 68 links; thence east 6 chains and 68 links; thence north, 38 minutes east, 22 chains and 67 links; thence west 6 chains and 68 links to beginning,'—containin'g 15 acres. All said land being in town 6 south, range 15 west, Cass county. Grantors being all the heirs of Isaac Shurte, deceased, except two minor children of Sarah Van Riper, deceased, daughter of said Elizabeth Ritter, deceased.

“It is hereby expressly agreed and understood that each of the above descriptions of land herein made are subject to correction if, when a survey of the premises is made, they shall be found erroneous, and each of those interested in said lands deed the same with the understanding that such corrections may and shall be made if found necessary. It is hereby further agreed and understood between the parties hereto, whose names are subscribed, that one-third of all the grain and hay now growing on the land of the estate of Isaac Shurte, deceased, shall belong to the several heirs of said estate, except what grain and hay may be growing on the lands to be deeded to "William Shurte, and also the hay now growing on the southeast quarter of the southwest quarter of section 15. All spring crops belong to the parties to whom the several lands may be.deeded. And it is further understood that the house now occupied by William Shurte must be vacated by the first day of September, A. D. 1893. [Signed by William Shurte and the other heirs.] ”

It is urged that the execution of these papers resulted in a complete settlement of the interests of the respective heirs in the estate, and that what Mr. Jewell did after-wards in executing deeds was simply carrying into effect the settlement so agreed upon. It is the claim of complainant’s solicitors that, conceding that the heirs at law understood the contents of these papers when they were signed, even then they do not accomplish what is claimed for them by the defendants; that they do not convey the interést of the complainant in the real estate left by his father; that they do not affect the title of the minor grandchildren, and, so far as they attempt to do so, are illegal. It is further claimed that the only title Mr. Jewell gets to the real estate is by virtue of Exhibits A and B, and for the purpose therein stated; and that these papers are so indefinite as not to convey any title to him which he could either retain or convey. It is further claimed by complainant that, long before Mr. Jewell had done any act indicating that he had accepted the trust created, if any had been created, Mr. Jewell was informed that he must not make' any conveyances; that William Shurte and E. M. Shurte would insist upon their right to an undivided one sixth of their father’s estate. It is the claim of the complainant that he did not admit that he was liable on these notes, but, on the contrary, protested that they were not right, and that some of them were outlawed; that he insisted that, if he was to be charged with them, he should be credited with improvements he had put upon his father’s farm, amounting to $3,000 and interest, and that the improvements and interest would amount to nearly as much as he ought to be charged upon the notes. It is the complainant’s claim that, at the time the negotiations were pending, he was so nearly blind that he was unable to see or read writing; that he was informed as to the contents of Exhibits A and B, and was a,dvised that, if he signed them, Mr. Jewell would have no right to make any conveyances of any of the real estate until some subsequent agreement had been made; and that, relying upon that statement, he authorized his son to sign those two papers for him. It is his claim that, as to the other exhibit, he never had any knowledge that it contained descriptions of land that were to be conveyed to the other heirs, leaving him out except as to the 82 acres, and that he never intended to convey away his interest in his father’s estate by his signature to these papers, and, when he learned the defendants were putting that construction upon the papers, he at once notified Mr. Jewell that he should insist upon the same interest in his father’s estate that he would have been entitled to had not the papers been signed.

I do not think it necessary for us to construe the legal . effect of these three papers. If the evidence were uncontradicted as to their execution, or if it were made to appear that complainant understood their contents when he signed them, it, of course, would be our duty to construe the papers. The testimony, however, is very contradictory; the complainant and his witnesses swearing positively to one state of facts, and the defendants contradicting them. The record does disclose, however, that at the first meeting of the heirs the complainant presented a deed, already filled out, conveying to him the 82 acres bought of his father, and asked the heirs to sign it. It also discloses that, when the subject of the notes was discussed, he insisted that the interest ought not to be figured at more than 3 per cent.; that some of the notes were outlawed; and that, if he was charged with the notes, he ought to be credited with the improvements. It also appears that, when the papers were executed, complainant was so nearly blind as to be unable to read the writings. It also appears very clearly that, before Mr. Jewell acted at.all in the matter, he was notified by both William Shurte and F. M. Shurte that they would not be bound by any act of his. These facts, which were clearly established, taken in connection with the value of the interest William Shurte had in the estate, and the contradictory testimony in relation to whether William understood the contents of the last paper signed by him, and that its provisions neutralized the provisions in Exhibit B, lead me to the conclusion that William did not understand that the effect of signing these papers would be to cut off his interest in the estate left by his father, and that he never intended to relin- • quish that interest, and never received any consideration for so doing.

It is urged that the court in chancery ought not to take jurisdiction of this case because it is res judicata. This claim is based upon the fact that, subsequent to the execution of Exhibits A and B, the complainant petitioned the probate judge for the appointment of an administrator; that a hearing was had, one witness sworn, and Exhibits A, B, and C offered in evidence; that, upon the hearing, the probate judge refused to appoint an administrator for want of jurisdiction, and because the estate had been settled. We do not think the claim of res judicata can be sustained. There was nothing in the pleadings to indicate that the probate judge was called upon to construe the effect of the alleged settlement. The probate court would not have power to decree a specific performance of the agreement made by the parties, if it was a valid one, and they refused to carry it out; neither would it have the power to set aside the agreement and cancel it, if it was invalid. See Perkins v. Oliver, 110 Mich. 402; also, Bush v. Merriman, 87 Mich. 260.

The decree of the court below is affirmed, with costs.

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


source: Caselaw Access Project

author: Montgomery, J. Grant, J.

license: Public Domain

text:
    SCHMITT v. COMMON COUNCIL OF VILLAGE OF CLINTON.
    Liquor Bonds—Approval—Surety Companies.
    Act No. 266, Pub. Acts 1895, declaring that any bond required by law to be given with surety or sureties may be executed by a surety company, and that such execution shall be in all respects a full and complete compliance with every requirement as to the execution of such bond by sureties, and that in those cases where, by the laws of the State, more than one surety is required, it shall be lawful to approve and accept a bond with but one surety, provided the surety is a corporation duly qualified, and that the certificate of the insurance commissioner shall be conclusive proof of the solvency and credit of such company for all purposes, and of its right to be accepted as sole surety, and of its sufficiency as such, does not operate to compel those charged with the duty of accepting and approving bonds of saloon keepers under Act No. 313, Pub. Acts 1887, to accept a bond with a foreign corporation as sole surety, where their refusal is based on an honest doubt as to the sufficiency of the surety proposed.

      Certiorari to Lenawee; Lane, J.
    Submitted July 21, 1896.
    Decided December 9, 1896.

      Mandamus by Christopher Schmitt and another to compel the common council of the village of Clinton to accept their liquor bond with a foreign corporation as sole surety. From an order granting the writ, respondent brings certiorari.

    Reversed.

      Brennan, Donnelly & Van De Mark, for relators.

      John E. Bird, for respondent.
   Montgomery, J.

The relators presented to the respondent a bond in the form required to be given by saloon keepers by Act No. 313, Pub. Acts 1887, except that it was executed by themselves as principals and the Fidelity & Deposit Company, of Baltimore, Md., as sole surety. The council refused to accept the bond, whereupon the relators filed a petition in the circuit court for the county of Lenawee, praying mandamus to compel the council to accept the bond filed. The petition for the mandamus, addressed to the circuit court, alleged that the respondent refused to approve the bond, without giv-. ing any valid reason therefor. It is not alleged- whether any reason was given and entered of record, and, if so, what reason. It is further alleged in the petition that the council acted arbitrarily in the matter, and has no valid reason for its refusal to approve the bond. The answer denies that the council acted without any valid reason, denies that it acted arbitrarily in the matter, and denies that it had no valid reason for disapproving the bond; and the respondent shows that the bond was disapproved because the surety was a foreign corporation, and that it had no knowledge of said corporation, and that, with its limited means for investigation of the financial condition of said surety, it could learn little or nothing concerning it; that it therefore decided, in its judgment, that said surety was not a sufficient surety, and that it was not in the interest of the public safety to approve the bond, and that it was advised that it was not obliged to accept said bond unless it was satisfied that said surety was sufficient. The circuit judge granted the mandamus as prayed, and thé respondent seeks to have this order reviewed.

The authority upon which the circuit judge proceeded was Act No. 266 of the Public Acts of 1895, entitled-—•

“An act relative to bonds and other obligations with surety or sureties, and the acceptance as surety thereon of companies qualified to act as such, and the release of such surety, and the safe depositing of assets for. which such surety may be liable, and to the charging by fiduciaries of the expense of procuring sureties, and repealing all laws in conflict therewith.”

Section 1 of the act provides as follows:

“Whenever any bond, undertaking, recognizance, or other obligation is by the law of the State, or by the charter, ordinances, rules, or regulations of any municipality, board, body, organization, or public officer, or in any judicial or other proceeding, required or permitted to be made, given, tendered, or filed with surety or sureties, and whenever the performance of any act, duty, or obligation, or the refraining from any act, is required or permitted to be. guaranteed, such bond, undertaking, obligation, recognizance, or guarantee may be executed by a surety company qualified to act as surety or guarantor, as hereinafter provided, and such execution by such company of such bond, undertaking, recognizance, obligation, or guarantee shall be in all respects a full and complete compliance with every requirement of every law, charter, ordinance, rule, regulation, or order that such bond, undertaking, obligation, recognizance, or guarantee shall be executed by one surety, or by one or more sureties, or that such sureties shall be residents or householders or freeholders, or either or both, or possess any other qualification.”

Section 2 is as follows:

“In any cause, matter, or proceeding where, by the laws of this State, the giving of any bond is required or permitted, and more than one surety is required, it shall be lawful for the court, officer, or person who is authorized or required by law to approve and accept such bond, to accept and approve a bond with but one surety, provided the surety thereto is a corporation qualified to act as surety or guarantor as hereinafter provided.”

Section 4 provides for the issuing of a certificate by the insurance commissioner upon certain proof being adduced before him, “which said certificate shall be conclusive proof of the solvency and credit of such company for all purposes, and of its right to be so accepted as such sole surety, and its sufficiency as such.”

In my opinion, the language of the act as a whole is not such as to evidence an intent that those charged with the duty of accepting and approving bonds under Act No. '313, Pub. Acts 1887, are bound to accept such a bond. Section 1 was evidently designed to permit the substitution of one surety, in case it should be a corporation organized under the act, in place of two, required' by other provisions of the law; and, where no act of acceptance is required, but the giving of such bond is required by law, such bond, as executed, is declared sufficient. It is true that by the provisions of section 4 the certificate of the commissioner is made conclusive proof of the solvency and credit of such company for all purposes, and of its right to be so accepted as sole surety, and its sufficiency as such. While this language is broad, it must be construed in connection with other provisions of the statute, and, so construed, we think it does not preclude the board or officer from exercising a discretion. We think this means no more than that the company is authorized, by reason of compliance with the statute, to become sole surety. Recurring to section 2, we find the provisions of the section permissive merely. It is there enacted that it shall be lawful for the court, officer, or person who is authorized or required by law to approve such bond, to accept and approve a bond with but one surety. It is obviously absurd to require a board or officer to approve a bond which it is bound to accept. It is a mere idle ceremony. These views are reinforced by the consideration that, if the construction contended for by relators should prevail, a court or officer would be. bound to accept a bond signed by such surety, without regard to the amount involved in the undertaking, and even if such bond be in a penalty many times the capital stock of the corporation, as might occur in the case of the state treasurer’s bond, or in the case of a bond required of a receiver, and this also without regard to the amount of liability which such company may have previously incurred on other bonds or undertakings. We think it should be held that it was not the intention to make the receipt of such bond by officers compulsory, and that, as the return does not show that the respondent acted captiously, and as there is no averment that it failed to state its reasons upon the record, the writ of mandamus should have been denied.

The order will be reversed, with costs.

Long, C. J., Hooker and Moore, JJ., concurred with Montgomery, J.

Grant, J.

Under the police power inherent in the legislature, Act No. 313, Pub. Acts 1887, was passed. It was a general act, covering the entire business of the liquor traffic in Michigan, and providing. the conditions under which it might be carried on. Under that act the saloon keepers áre required to give a bond, signed by two sureties, in the sum of not less than $3,000 nor more than $6,000. The sufficiency of the bond is to be determined by the township board, board of trustees, or common council of townships, villages, and cities. The bondsmen are required to be male residents and freeholders, residing within the corporate limits of the municipality, and possessed of the requisite real estate, situated in the county, and required to justify thereto. That law expressly provides that the bond shall not be received by the county treasurer without the approval of the board or council. In 1895 the legislature passed Act No. 266, Pub. Acts 1895. The title, and sections 1, 2, and 4, are quoted in the opinion of Mr. Justice Montgomery. The other provisions of the act are not essential to a decision of the point raised. The relators have been saloon keepers in the village of Clinton. They presented to the common council of that village a bond executed by themselves as principals, and the Fidelity & Deposit Company, of Baltimore, Md., as sole surety. The council refused to accept the bond, whereupon the relators filed a petition in the circuit court for the county of Lenawee for a mandamus compelling the acceptance of the bond, which was granted by the circuit court, and the respondent appeals.

The title to this act contains nothing to indicate any purpose to supplant or annul the provisions of the law of 1887, or to. compel courts and officers in criminal cases to accept recognizances signed by those charged with crime. It is, however, insisted on behalf of the relators that the title is a general one in reference to bonds and other obligations, and that, therefore, it covers-these extraordinary provisions. We cannot so hold. While it may not be strictly true to say that the act of 1895 repeals the above provisions of the act of ,1887, and the provisions of many other acts, still the effect is to annul them, and render them of no force or effect, at the'option of any person desiring to give a bond under the liquor statute, or a recognizance in a criminal case. Repeals by implication are not favored, and there is nothing in the innocent title of this act to show any intent to render these provisions nugatory, or to deprive the local authorities of the right to perform the duties imposed upon them by the liquor statute under the police power. The judgment of one man—the insurance commissioner—is by this act substituted for the judgment of the local authorities, to whom the laws of this State have uniformly given control in such matters, and of courts and officers in criminal cases. The object of a recognizance in a criminal case is not to obtain the amount of the money nominated in the bond, but to secure the attendance of the accused at the trial. The theory is that persons in his vicinity, acquainted with the accused, having some confidence in his innocence, and believing that he will appear for trial, are willing to enter into a recognizance for his appearance in court. The bondsman who is secured by depositing with him the amount of the recognizance to satisfy the amount in case of default has no interest in producing the accused for trial. It is, in my judgment, contrary to public policy to permit a corporation for hire to become surety on criminal recognizances. Yet the logic of relators’ contention is that courts and officers are deprived of their discretion in the matter, and are bound to accept as sole surety a foreign corporation which is authorized to do business in this State. The title to the act is not, in my judgment, broad enough to include such sweeping changes in the law, and to set aside a policy which has been pursued in this State for so long a time.

The judgment of the court below should be reversed, and the writ dismissed, with costs of both courts to the respondent.


author: Hooker, J.

text:
    BOARD OF SUPERVISORS OF BAY COUNTY v. BOARD OF SUPERVISORS OF ARENAC COUNTY.
    Counties—Taxes—Mandamus.

      Mandamus will not lie to compel a county organized from the territory of another county to refund the amount of State taxes paid by the latter to the use of the former in consequence of an erroneous apportionment, where the amount of the claim is in dispute, since other adequate legal or equitable remedies exist.

      Certiorari to Arenac; Sharpe, J.
    Submitted October 6, 1896.
    Decided December 9, 1896.
    Application by the board of supervisors of Bay county for mandamus to compel the board of supervisors of Arenac county to refund certain taxes erroneously ap-portioned to, and paid to the State by, the former county. From an order dismissing the petition upon demurrer, relator brings certiorari.

    Affirmed.

      Isaac A. Gilbert and C. L. Collins, for relator.

      Sanford E. Hayes and Gordon & Reardon (Hanchett & Hanchett, of counsel), for respondent.
   Hooker, J.

The county of Bay filed its petition in the circuit court for the county of Arenac, praying that the board of supervisors of the latter county be required to raise, by tax upon the property subject to taxation within its borders, the amounts which should have been paid by Arenac county for State taxes for the years 1883, 1884, and 1885, with interest, a portion, at least, of which amount was paid by the county of Bay in 1896, as required by this court in the case of Auditor General v. Supervisors of Bay Co., 106 Mich. 662. A demurrer was interposed, and the cause is here upon certiorari, the circuit court having sustained the demurrer upon .the ground that assumpsit, and not mandamus, is the proper remedy.

The respondent asserts that the claim of the relator, or at least a part of it, is barred by the statute of limitations, and that this appears from the opinion of this court in the case cited, which the petition refers to, and prays that it be treated as a part .thereof. It also denies liability, asserting that, if Bay county chose to raise and pay more than its proportion of the State tax, it cannot compel the repayment of such excess by Arenac county, to which it has never been apportioned. The circumstances under which this tax was apportioned to Bay are, briefly, that the territory now within the limits of the county of Arenac was at one time a part of Bay county, and after the State equalization of 1881, and in the year 1883, the new county was organized by the legislature. This county was not mentioned in the apportionment of the State tax for the years 1883, 1884, and 1885, and, as a result, the tax for the whole territory was apportioned to Bay county, on the basis of the equalization of 1881, and was collected and paid, as stated above.

This case is similar to that of Supervisors of Ontonagon Co. v. Supervisors of Gogebic Co., 74 Mich. 721. It was there held that the auditor general should have taken notice of the law organizing Gogebic county, and apportioned a proper proportion of the State tax to said county thereafter, using the assessment rolls of 1886 as a basis. But the court said:

“By [1 How. Stat.] section 463 it is provided that counties may implead each other at law or in equity, on any matters of variance, and get relief in that way. If this new question of apportionment requires and admits of an enforced formal adjustment, there seems to be no difficulty in resorting to the proper judicial tribunals. If Ontonagon county has paid money to the use of Gogebic, it can be recovered back. * * * So far as the assessments of 1887 and 1888 are concerned, there is no apparent way now for the auditor general, without special legislation, to correct the error, and the relators, if no amicable settlement can be made, can resort to the usual judicial remedies.”

It does not appear that a demurrer was interposed in this case, or that there were disputed questions of fact, as the court refused to send down for trial the only one mentioned; and it would therefore seem that the court disposed of the case upon the single proposition that there was another adequate remedy, according to the general rule, discussed and recognized in Eyke v. Lange, 104 Mich. 28, and authorities there cited, for otherwise there was apparently no impediment to an adjustment of the amounts theretofore paid in the proceeding. Again, unless we are to hold that the statute of limitations- does not run against the county of Bay, there is a possibility of a dispute as to the amount due from Arenac. It is claimed that' the entire amount collected before December 31, 1884, was paid over to the State before January 1, 1885, and that this of necessity included the tax of 1883. Without attempting to determine or speculate upon the facts, we may say that we can see that this claim might be sustained, if, indeed, the petition does not show it to be true.

It is urged that the county is but an agency of the State, and that the statute of limitations does not apply to claims against it. It is claimed by counsel for the relator that the statute of limitations cannot be interposed by way of defense in mandamus cases, and, if this is so, it is a sufficient reason for requiring relator to bring an action or suit; but, whether counsel are right in this or not, mandamus is not to be resorted to when legal or equitable remedies are adequate, in a case where the amount of the claim is in dispute.

■ We are of the opinion that the order of the circuit court should be affirmed, and it is therefore so ordered.

The other Justices concurred.


author: Grant, J.

text:
    CLARK v. O’ROURKE.
    1. Unincorporated Societies—Liability oe Members —Contracts.
    Members of a church organization having no legal existence, who are directly instrumental in incurring liabilities for it, or who authorize or ratify transactions made in its name, are personally liable, while those members who do not in any way participate in such transactions are exempt from liability. v
    2. Same—Building Committee.
    The members of a building committee of such an organization, who have charge of the work of constructing a church building, are personally liable for materials furnished to them for such purpose, although the account was charged in the name of the society, and although the seller was informed that the church intended to raise the necessary funds by a church fair and by individual subscriptions.
    3. Assumpsit—Common Counts—Opening of Counsel—Issue.
    A judgment, on verdict directed by the court, against members of an unincorporated church society on obligations incurred therefor, will not be reversed because counsel, in his opening statement, relied on the liability of defendants as agents of a principal having no legal existence, although this ground was not conclusively established, where the declaration was on the common counts, and the defendants were clearly liable by reason of their relationship to the society itself; the latter ground of liability being equally within the declaration.
    4. Appeal—Non-Joinder Of Dependants—Objections.
    The objection that others, not made parties, are jointly liable with defendant, cannot be raised for the first time on appeal.
    Error to Ontonagon; Hubbell, J., presiding.
    Submitted October 7, 1896.
    Decided December 9, 1896.

      Assumpsit by Orange M. Clark and others, copartners as Clark, Farnham & Company, against Charles O’Rourke and James Norton, for goods sold and delivered^ From a judgment for plaintiffs on verdict directed by the court, defendants bring error.
    Affirmed.
    In 1892 an unincorporated Catholic society was formed in Ewen, Ontonagon county, and erected an edifice. Plaintiffs were dealers in lumber, and furnished the lumber with which the building was erected. Defendants were trustees for the society, and members of the building committee, having entire charge of the work. The plaintiffs contended in the court below that the defendants represented no legally organized society, and, in the eye of the law, must therefore be held to have contracted in their own right. At the conclusion of the testimony, the court below directed a verdict for the plaintiffs. The learned counsel for the defendants concede the rule, but insist that it is a rule of presumption only, and does not obtain where the parties have otherwise agreed. They insist that there was testimony from which the jury might properly infer that the plaintiffs did not look to the liability of the defendants, but agreed to look to other sources, or, in other words, that the credit was not extended to the defendants. This presents the sole question in the case. The testimony on the part of the plaintiffs tended to show that the defendants belonged to the society; that they were trustees and members of the building committee; that defendant Norton went with the priest to the plaintiffs’, and ordered the goods, and agreed to see that the bill was paid; that the account upon their books was styled “Catholic Church;” that Mr. O’Rourke was instrumental in making payments upon the account, and that he at one time ordered some material of the plaintiffs, and told them to •furnish lumber to the contractor who was building the church, and that it would be all right, that it' would be paid; that, after the lumber was furnished, a dispute arose as to the amount, and the defendants wanted a reduction; that they said they were to take care of the bill, and wanted to make arrangements to pay it. The defendants denied the express promise to pay. Norton testified that he introduced the priest to the plaintiffs, and left them. Mr. O’Rourke testified that he had nothing to do with the-original order; that he at one time went with the carpenter to the plaintiffs’ yard, and selected material for the building. The priest, a witness for the defendants, gave the following testimony:
    “I am a Catholic priest. I remember the time when the Catholic church was built at Ewen. It was in October, 1892. Prior to the building of the church, I went to buy some lumber. I made out a list, and gave it to the lumber dealer. I made the plans and specifications myself, and figured out the lumber bill. The lumber and other materials for the erection of that church were purchased through the building committee, which consisted of Mr. Shilling, Mr. Norton, and Mr. O’Rourke, and Mr. Tredau,—I believe his name is. I asked Mr. Norton to come along with me to buy the lumber, or something to that effect. I asked him where we could get the best and the cheapest, and he said Clark, Farnham & Co. would deal as fair as anyone. So I went and ordered the bill. Mr.- Norton went with me into the store, and introduced me to Mr. Hatfield, He had told me before that he had no time to stay, and so he left immediately. I read to Mr. Hatfield the bill, and he made out the lumber bill.”
    Cross-examination:
    “I went to the plaintiffs’ store on behalf of the congregation. I represented the congregation in spiritual affairs, but in regard to the temporal affairs they had a building committee. I was supposed to be superintending the building, and was working for the congregation. James- Norton and Charles O’Rourke were members of the congregation. James Norton knew what I was going to the store for, and Charles O’Rourke must have known of my ordering the lumber the same day or the day after. Charles O’Rourke and James Norton were members of the building committee, and the building committee superintended the building of the church, in connection with my aid. They managed the building affairs, and let the contract for the erection of the building; that is, contracted for the labor. The congregation furnished the material, under the superintendency of the building committee.”
    One of the plaintiffs said on cross-examination:
    “In our talk with the priest, we had a pretty fair understanding how the money was to be raised to pay for the lumber. The church would get up subscriptions, and hold a fair, and raise the money. It is not a fact that we extended the credit to the Catholic church on the statements which were made to us by the priest at that time. * * * I did not know who the' Catholic congregation was. I knew there were Catholics there, and that they were congregated for the purpose of forming an organization, and intended to build a house of worship; and I knew we were dealing with them at that time, whoever they might be, through Mr. Norton. We extended the credit as it is charged in these books, to the Catholic society, vouched for by Mr. Norton.”
    From this testimony it is urged that defendants were entitled to have the case submitted to the jury, upon the theory that the credit was extended to the congregation as such, and not to defendants personally, and that plaintiffs agreed to look to certain funds to be raised by voluntary subscriptions, donations, and proceeds of fairs.

      Thomas B. Wilson (Julius J. Patek and Floyd B. Mechem, of counsel), for appellants.

      Hill & Bood, for appellees.
   Grant, J.

(after stating the facts). The church organization had no legal existence. It could neither sue nor be sued. The members of the society were not partners. Those of the society who were actually instrumental in' incurring the liabilities for it are liable as either principals, or agents having no legal principal behind them. Members of the society who either authorized or ratified the transactions are liable, while those who did not are exempt from liability. 1 Bates, Partn. § 75; Ash v. Guie, 97 Pa. St. 493 (39 Am. Rep. 818); Fredendall v. Taylor, 26 Wis. 286. Many other authorities might be cited, but we refrain from doing so, since defendants concede the law.

The testimony does not justify the conclusion that the plaintiffs agreed to trust to the proceeds of fairs, etc., for their pay. Plaintiffs knew that the society as a society was irresponsible. It was entirely natural that they should inquire the methods by which the money should be raised, but no inference can be drawn from it that they agreed to look to this source alone. Should A. loan B. $100, and B. promise to raise wheat on his farm with which to pay it, B. would not be relieved from payment because he raised no wheat.

Neither can we accede to the proposition that there was evidence tending legitimately to show that the credit was given to this unincorporated and irresponsible society. It was natural that plaintiffs should enter the account upon their books as they did, but a jury would not be justified in drawing the conclusion from this alone that they agreed to look to such members of this society as they might be able to show authorized or ratified the purchase from them. In both reason and authority, this is of no particular significance. The alleged principal was a myth, and the entry means no more than that the credit was given to those forming the association, or to those who stood sponsors for it, and were conducting its business and obtaining the credit. Lewis v. Tilton, 64 Iowa, 220 (52 Am. Rep. 436); Winona Lumber Co. v. Church, 6 S. Dak. 498; Davison v. Holden, 55 Conn. 103. These defendants were the active managers, and, with the other two members of the committee, were in sole charge of the work, and, under the law and the facts, were properly held responsible. The law does not, under such circumstances, leave the creditors to search out the individual members of the society who have authorized the transaction, but holds those liable who have dealt with the creditors in the capacity of agents or principals.

The declaration is upon the common counts, and the plea is the general issue. The declaration, therefore, includes the liability of the defendants as members of the society, and their liability as agents of a principal having no legal existence. While counsel, in their opening statement to the jury, appear to have relied upon the latter liability, still we should not feel disposed, under the facts of this case, to reverse the judgment, even if defendants were not liable upon this theory. There is no doubt of their liability upon the former theory, and it would be technical and unjust to reverse the judgment, and put the plaintiffs to the expense of a new trial, for no other reason than that counsel did not state their case as broadly as they might.

Defendants cannot now raise the question that others, not made parties defendant, are jointly liable with them. If they desired to raise this question, they should have interposed a plea in abatement. Robinson v. Robinson, 10 Me. 240.

The judgment is affirmed.

The other Justices concurred.


author: Moore, J.

text:
    JOHNSON v. WILSON.

    1. Land Contract—Mistake—Evidence.
    A vendor’s claim that the word “heretofore,” in a land contract providing for releases to the vendee on account of payments “heretofore” made, was a clerical error, and that “hereafter” was intended, is sustained by the testimony of the vendee and his agent that neither of them expected, at the time of the transaction, that the release clause would cover the down payment, taken in connection with other clauses in the contract indicating clearly that the parties had in mind releases for future payments only.
    2. Same—Reformation—Equity Jurisdiction.
    In a suit for the rescission of such contract based on the failure of the vendor to release for the down payment, a decree correcting the mistake is properly entered under the prayer of the defendant for affirmative relief.
    Appeal from Wayne; Haire, J., presiding.
    Submitted October 8, 1896.
    Decided December 9, 1896.
    Bill by William 0. Johnson against Mary Wilson for the rescission of a land contract, and for the repayment of money paid thereon. From a decree for complainant, defendant appeals.
    Reversed.

      Otto Kirehner, for complainant.

      Walker & Spalding (C. A. Kent, of counsel), for defendant.

       Rehearing denied January 16, 1897.

   Moore, J.

February 4, 1893, a contract was made between the parties to this litigation for the sale by Mrs. Wilson to Mr. Johnson of the undivided eight-thirteenths of 13 acres of land for the sum of $13,950, payable $4,000 down, $2,000 on or before July 1, 1894, $2,000 on or before July 1, 1895, and the remainder within five years, with interest at 6 per cent. The land contract, which was signed by the parties, contained the following provisions:

“ In case the party of the second part or his assigns shall plat the said premises, and shall cause Springwells and Casper avenues to be opened in a northerly and southerly direction through the same, with a row of lots fronting on the south side of ‘Dix Avenue,’ so called, said party of the second part or his assigns, from time to time, shall become entitled to conveyances of such portions of the said premises as he or they may select, which would be paid for in full by the payments heretofore made on account of the principal of such purchase price according to the following valuations: For frontage on Dix avenue at the rate of one hundred and fifty ($150) dollars for each lot of thirty (30) feet in width; for frontage on said Springwells and Casper avenues at the rate of one hundred ($100) dollars per lot of thirty (30) feet front. In case said land is platted by said second party or his assigns in any other manner than the one above specified, said second party or his assigns shall have the right to have lots released upon payment of proportionate amounts of said principal sum due on this contract: Provided, that not less than five hundred ($500) dollars of principal shall be paid at any one time.”

After the contract was made, complainant platted the land, and placed his plat upon record; the plat showing 13 lots on Dix avenue, and 111 on the other streets. A controversy arose in relation to the release clause in the contract, the complainant insisting that by the use of the words “payments heretofore made” in the contract he was entitled to releases on account of the down payment of $4,000. The defendant claimed that the word “heretofore” should have been written “hereafter,” and that the writing of it was a clerical error, and that releases were to be made only because of subsequent payments. July 5, 1895, complainant demanded a release of a number of lots on account of the down payment. .Defendant refused to release them. The complainant then made a written demand for the money paid by him on the contract, with interest, and tendered a release of his rights under the contract. His demand was refused. He then filed this bill, praying for a rescission of the contract, a repayment of the moneys paid by him, and for a sale of the lots to satisfy his lien. The defendant filed an answer in the nature of a cross-bill, averring that the down payment of $4,000 was not to entitle the complainant to the benefit of the release clause, but that releases were to be made only for subsequent payments; also averring that because of a clerical error the word “heretofore” was written where it was intended to write the word “hereafter.” The cross-bill prayed for a decree reforming the contract by substituting the word “hereafter” for the word “heretofore,” and that the complainant might be decreed to pay the amount due upon the contract, and that the contract be foreclosed according to the course of procedure in the foreclosure of mortgages. A replication was filed, and after a hearing in open court a decree was entered in accordance with the prayer of the bill.

A great many questions are raised in the very cai’efully prepared briefs of counsel. In our view of the case, there are but two questions that need be discussed here: First. Was a mistake made in writing the word “heretofore” where it was intended to write the word “hereafter?” Second. If a mistake was made, can it be corrected ? A careful examination of the record leads us to the conclusion that a mistake was made. If releases were to be made, in case the land was platted, in the manner and at the prices stated in the contract, the land would all be released before it would be paid for,—a result that it is very evident the parties did not contemplate. If the land was not platted in the manner provided for in the contract, the provision is:

“Said second party or his assigns shall have the right to have lots released upon payment of .proportionate amounts of said principal sum due on this contract: Provided, that not less than five hundred dollars of principal shall be paid at any one time.”

This language indicates very clearly that the payments the parties had in mind were payments to be made in the future, and did not apply to the $4,000 payment made the day the contract was signed. On cross-examination the complainant testified in answer to the question, “ Had you any expectation, until you read the contract, that the release clause would give you the right to have lots released for the-down payment of $4,000?” Answer: “I can’t say that I did.” The testimony of Mr. Harrah, who appeared in the transaction for Mr. Johnson, and who was a real-estate agent of long experience, and who looked over the contract with Mr. J ohnson before it was signed, is that he never knew a contract that entitled a party to have lots released for the down payment, and that he did not advise Mr. Johnson that the release clause he was to look for should cover the down payment’ as well as the subsequent payments. He also testified that he and Mr. Johnson talked over, in connection with the release clause, the number of lots the land would make, and the cost of the lots to Mr. Johnson. He also .testified that, from his talk with Mr. Johnson, he did not expect to find in the contract a provision that the release clause should cover the down payment. It will not be necessary to refer to more of the testimony. It is sufficient to say that we have no doubt the parties understood that the release clause was expected to refer to subsequent payments.

The next question is, can the mistake be corrected, and the contract be reformed ? In the case of Bush v. Merriman, 87 Mich. 260, it was held:

“In this State the distinction between law and equity, as applied to remedies, has been kept up. The courts of law have no jurisdiction to reform written agreements. This jurisdiction is exclusively vested in courts of equity, and it has long been settled that if, by reason of fraud, mistake, accident, or surprise, an instrument does not express the true intent and meaning of the parties, equity will, upon satisfactory evidence,■ reform it.”

See, also, Conlin v. Masecar, 80 Mich. 139; De Riemer v. Cantillon, 4 Johns. Ch. 85; Albany City Savings Inst. v. Burdick, 87 N. Y. 40. We have no doubt of the authority of this court to correct the mistake.

. The decree of the court below is reversed, and a decree should be entered correcting the mistake in the contract; also giving the complainant an opportunity to perform his part of the contract, and, in default thereof, that the land contract be foreclosed according to the practice in the foreclosure of mortgages.

The other Justices concurred.


text:
    YOUNG BROS. MACHINE CO. v. YOUNG.
    Sale—Condition Precedent—Waiver—Recoupment.
    The purchaser of a machine under a contract which provided that the seller should furnish a bond, satisfactory to the purchaser, to indemnify the latter against litigation with another manufacturer on account of an alleged infringement of patent, who accepted the machine, used it for several months, and refused to return it when the seller offered to take it back, cannot avoid payment because the seller did not furnish a satisfactory bond, but is limited to the right to recoup the damages sustained because of the seller’s failure to perform rnat pare of the contract.

      Error to Bay; Maxwell, J.
    Submitted October 20, 1896.
    Decided December 9, 1896.

      Assumpsit by tbe Young Brothers Machine Company against Walter D. Young and another for goods sold and° delivered. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      J. L. Stoclclarcl, for appellant.

      T. A. E. & J. C. Weadock, for appellees.
   Hooker, J.

The plaintiff furnished to the defendants a machine called a “sander,” upon defendants’ promise to pay |350 in money and an old sander, which had been in use in their factory. In the action which was brought for the money consideration, the defense is made that plaintiff, as part of the contract, agreed to indemnify the defendants against litigation with another manufacturer, by a letter or bond which should be satisfactory to the defendants. The contract consisted of correspondence. The defendants wrote on June l?th, as follows, viz.:

“But the Berlin Machine Co., of Beloit, Wis., represented by Mr. Forbes, one of their company, informs us that you were infringing on their patents, and that it would only be a question of time before we would be liable, if we bought one of your machines. Now, if you can furnish us with satisfactory letter or bonds that yoü will protect us in any such case, we will give you the order for the sander, and would like to have you ship it as quickly as possible.”

Plaintiff replied as follows, viz.:

“If you can wait about two weeks, we will furnish you machine, and will indemnify you fully against all interference from Berlin Machine Co.”

To this the defendants answered, as follows, viz.:'

“Please rush the sander as quickly as possible, as per our former coi'respondence.”

On November 19th, plaintiff sent a statement of account, with a bond for $1,000, signed by the plaintiff company. On November 23d, the receipt of this letter was acknowledged, and plaintiff was informed that Mr. W. D. Young was absent, and expected home the first of the next week, and that the matter would be placed before him as soon as he should return. On November 30th plaintiff wrote, asking remittance. No attention was paid to this letter, and on December 5th plaintiff drew on the defendants, notifying them by letter. On December 7th the defendants wrote that they could not pay the draft, as they had not had opportunity to go over the bond question with their attorney, signifying willingness to settle as soon as they could see their attorney, and have the bond question fixed satisfactorily to them, and asking a recall of draft. On December 10th they returned the $1,000 bond, asking a bond for $5,000, signed by two satisfactory sureties, who should have a proper rating. On December 14th plaintiff declined to furnish this, saying that the request was unreasonable, and asking a return of the machine. This the defendants refused, claiming a right to the benefit of their contract. Thereupon this action was brought.

The judge directed a verdict for the defendants, on the ground that, before the plaintiff could recover, it must prove that the bond was sufficient in amount, and the sureties good; and he did this notwithstanding the fact that counsel for the plaintiff offered to prove such facts, and also to prove other items of account against the defendants.

We are of the opinion that the court erred. If it be conceded that the defendants were entitled to demand a bond as a condition precedent to the acceptance of the machine, it is too late to insist upon such condition after taking and using the machine for several months, and they should be limited to the right to recoup such damages as they have sustained by reason of the failure of the plaintiff to perform that part of the contract. They have deliberately elected to keep the machine, have used it for a long period of time, and refused to return it when plaintiff offered to take it back. It is not stated that the defendants have experienced any difficulty, and apparently they were willing to accept and keep the machine in silence, until asked to pay for it, and then seek to avoid payment upon the ground that a condition— very hard, if not unreasonable—was not complied with. Mr. Beach says:

“But to permit a party under all circumstances to refuse to pay because dissatisfied, and at the same time to retain the fruits of the agreement, is an unwarrantable extension of the doctrine applied to machines or articles of manufacture which can be rejected. Therefore in all cases, if the party relies upon dissatisfaction as a defense, he must rescind the agreement and restore the status quo.” 1 Beach, Cont. ■§ 106.

Such cases were those cited by counsel for the defendants; i. e., cases where acceptance was refused.

But we do not find it necessary to go to the extent of saying that defendants should be deprived of the benefit, of their contract, as appears to have been held in the case of Campbell Printing-Press Co. v. Thorp, 36 Fed. 414, which was apparently a Michigan contract. It is sufficient to say that the contract has been performed in a substantial part by the plaintiff, and the defendants have accepted and had the benefit of part performance, and they should not be permitted to rely upon the performance of the residue as a condition precedent to liability. Upon this point the author says:

1 ‘ Conditions precedent must be performed in order to make the conditional promise absolute. But, after the one party has performed the contract in a substantial part, and the other party has accepted and had the benefit of the part performance, the latter may thereby be precluded from relying upon the performance of the residue as a condition precedent to his liability. In such case he must perform the contract on his part, and must rely upon his claim for damages in respect of the defective performance. ‘ It is remarkable that according to this rule the construction of the instrument may be varied by matter ex post factoj and that which is a condition precedent when the deed is executed may cease to be so by the subsequent conduct of the covenantee in accepting less. This is no objection to the soundness of the rule, which has been much acted upon. But there is often a difficulty in its applications to particular cases, and it cannot be intended to apply to every case in which a covenant by the plaintiff forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract.’” 1 Beach, Cont. § 107.

And see cases cited in note. See, also, Clark, Cont. 676, and note.

The judgment of the circuit court is reversed, and a new trial ordered.

The other Justices concurred.

        Ellen v. Topp, 6 Exch. 424.


text:
    CONELY v. DUDLEY.
    1. Replevin—Prima Facie Case—Proof of Title.
    Where the plaintiff in an action of replevin makes a prima facie case by proof of possession under a claim of purchase from the true owner, and of the forcible taking of the property without consent, it devolves upon the defendant to justify his taking by showing a superior right, and the defense that the assignment to the plaintiff was defective is not available to him until he has shown that, by a valid writ or otherwise, he has acquired an interest in the property entitling him to question the plaintiff’s title.
    2. Appeal—Assignments of Error—Sufficiency.
    An assignment of error “that the court erred in directing a verdict for the defendant” is not too general to preclude its consideration, where'it is apparent from the record that the error relied on is that there were facts in the case upon which a jury might find the. plaintiff entitled to recover.

      3. Same—Rules op Court—Failure to Comply with Recent Amendment.
    The court refused to affirm a judgment because the' bill of exceptions did not include the assignments of error, as required by a recently amended rule, where error was manifest, and nothing would be gained by remanding the record for correction at appellant’s expense.
    Error to Wayne; Erazer, J.
    Submitted October 20, 1896.
    Decided December 9, 1896.
    Replevin by Clarence Conely and another against Harlan J. Dudley and another. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Haug & Yerkes (John D. Conely, of counsel), for appellants.

      Keena & Lightner, for appellees.
   Hooker, J.

The plaintiffs were in possession of certain lumber, claiming title, when it was taken by the defendants upon an attachment against the Mascotte Lumber Company. Plaintiffs brought replevin, and, after proof of the above facts and the value of the property, the court directed a verdict for the defendants, and the plaintiffs removed the cause to this court by writ of error.

Plaintiffs’ proof of possession under a claim of purchase from the true owner, and the forcible taking of the lumber without consent, made out a prima facie case. Van Baalen v. Dean, 27 Mich. 104; Rose v. Eaton, 77 Mich. 255. Upham v. Caldwell, 100 Mich. 269, cited by counsel, is readily distinguishable. It then became necessary for the defendants to justify their taking by showing a right or authority superior to that of the plaintiffs. On the contrary, although prima facie wrong-doers, they offered no testimony, but chose to rely on -the claim that the transfer by assignment to the plaintiffs was defective, and induced the court to exclude it. But, if they were wrong-doers, they had no interest in this question. It was necessary to show that, by a valid writ or otherwise, they stood in the shoes of the true owner, or other person having an interest in the property, and had the right to question the plaintiffs’ title. It was, therefore, error to instruct the jury that the plaintiffs could not recover.

It is contended that the assignment of error, i. e., “that the court erred in directing a verdict for the defendants,” is not special under Sup. Ct. Rule No. 12. Upon this record this assignment was equivalent to saying that there were facts in the case upon which a jury might find plaintiffs entitled to recover,—a radically different case from one where the court is said to have committed error in directing a verdict for the plaintiffs, or in refusing to direct one for the defendants. In those cases there may be uncertainty as to what the error relied on or point raised is. See Alberts v. Village of Vernon, 96 Mich. 549; Johnson v. Ballou, 25 Mich. 460.

It is claimed that the judgment should be affirmed for the reason that the bill of exceptions does not include the assignments of error, as required by Rule 12 as recently amended. Under the circumstances of this case we are not disposed to subject the plaintiffs to a final judgment in the face of manifest error, and the record is such that nothing would be gained by remanding it for correction at plaintiffs’ expense. The rule is a new one, and we are disposed to enforce it with leniency at the present term. Hostetter v. Elevator Co., 4 N. Dak. 357.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    MARX v. SMITH.
    Equity—Mortgage Foreclosure—When Set Aside.
    A mortgage foreclosure will not be set aside as against a purchaser who has paid approximately the full value of the property, where there is no evidence of fraud, upon the mere showing that the mortgagee’s attorney was mistaken as to the lot lines, and had permitted the two lots covered by the mortgage to be bid in for the same amount, supposing that a store building was upon both lots, whereas it stood entirely upon one.
    Appeal from Wayne; Carpenter, J.
    Submitted October 9, 1896.
    Decided December 9, 1896.
    Bill by Maria Marx against William Smith and others to set aside the foreclosure of a mortgage and to reforeclose the same. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      George W. Coomer and W. F. Atlcinson, for complainant.

      Charles O. Stewart, for defendants Earth and Smith.
   Moore, J.

September 29, 1892, James W. Wright and. wife gave complainant a mortgage of $1,300 on two lots in Wyandotte owned by them. The lots were lots 13 and 14 in block 85, on the northeast corner of Elm and Third streets; Elm running east and west, and Third north and south. February 21, 1893, Wright and wife mortgaged the same lots to defendant Smith for $150. August' 18, 1894, the complainant’s mortgage was foreclosed by advertisement. Each lot was sold for $764.24. James W. Wright died after the sale, and Mrs. Wright, as survivor, became sole owner of the equity of redemption. Mr. Wright was present at the sale1, but took no part in the bidding, and told his wife, on his return home, how much each lot sold for. August 17, 1895, Mrs. Wright sold to C. Stewart her equity in lot 14 for $50 cash, she retaining the right to occupy the dwelling portion of the building thereon, until April 1, 1896. The deed was made to Charles W. H. Potter. On the same day $817.78 was paid to the register of deeds to redeem lot 14, and the complainant was notified of that fact. August 33, 1895, the defendant Frank Karth purchased lot 14, paying therefor $1,135, and the Smith mortgage was discharged of record. Lot 13 was not redeemed. When Earth purchased he was in possession of a hardware store on the lot. After his purchase he made repairs to the amount of nearly $300.

October 34, 1895, complainant filed a bill for the purpose of setting aside the prior foreclosure proceedings, and to foreclose her mortgage over again. It is her claim that the valuable buildings are all on one lot, and that one lot is much more valuable than the other; that, prior to the foreclosure, she thought that the lot lines ran at right angles from what they do in fact; that she put the mortgage in the hands of Judge Look for foreclosure, and supposed he would so conduct the foreclosure proceedings as to protect her interests; that she had no knowledge that the law required the lots covered by the mortgage to be sold separately; that her attorney had no knowledge as to the line of the lots, and supposed the store building was on both lots; that she had no knowledge of the manner of sale until the time for redemption had expired; that a mistake had been made in the manner of sale, which would result in a loss to her if it was allowed to stand; and charging full knowledge on the part of the defendants of the mistake, and charging them with a conspiracy to profit by her mistake, and praying for a decree as above stated. The answer denied the averments of the bill. The case was heard in open court by Judge Carpenter, and the bill was dismissed.

The complainant relies upon the case of Root v. King, 91 Mich. 188, in support of her claim for relief. This record does not disclose such a case as the one cited by counsel. There is nothing in the record to disclose any fraud on the part of defendants, or any want of good faith on the part of Mr. Karth. The property has cost him approximately what it is worth; and the circuit judge very properly dismissed the bill.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    REIS v. ARBEITER UNTERSTUETZUNG VEREIN NO. 2.
    Mutual Benefit Associations—Identity—Question for Jury.
    The question whether or not a member of a mutual benefit society' was over the eligible age at the time he became a member is for the jury, upon evidence which either involves the question of the identity of the member with the person whose age it tends to show, or which is not necessarily inconsistent with his having been of eligible age.
    Error to Wayne; Frazer, J.
    Submitted October 22, 1896.
    Decided December 9, 1896.

      Assumpsit by Frank Reis and others, heirs at law of George J. Reis, deceased, against the Arbeiter Unterstuetzung Verein No. 2, for death benefits. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      John Q-. Haioley, for appellant.

      Haug & Yerkes, for appellees.
   Hooker, J.

The defendant is a mutual benefit society, and the plaintiffs are heirs of George J. Reis, who was a member of said society at the time of his death. Under the charge of the court the case turned upon the question of his age at the time he joined the order, it being claimed by the defendant that he was more than 45 years of age at that time, and therefore not eligible to membership. He joined in July, 1881, and it is claimed that he was then 49 years of age. The court instructed the jury that, if they should find that he was then over 45 years of age, their verdict should be for the defendant, and a verdict was returned for the plaintiffs.

Defendant’s counsel says that the evidence conclusively shows that he was then over 45 years of age! The testimony in the case is as follows: One of the plaintiffs testified that her father was born at a village in Bavaria, called Jockgrim. A record, duly certified, shows the birth of one George Jacobus Reis at that place on August 15, 1832. The plaintiffs’ father, George J. Reis, was an attendant upon St. Joseph’s Church. This was á Catholic church, which was built to relieve St. Mary’s Catholic Church, which was inadequate to the accommodation of its parishioners. The matrimonial register of St. Mary’s Church shows that on May 18, 1858, one Mr. George James Reis, aged 25 years, was married to Mary Ettinsberger. One of the plaintiffs testified that her father was married twice, and that his first wife’s name was Sophia Matilda Ettinsberger; that she never heard of any other George J. Reis in Detroit, and that she did not know his age; that at the time of his death she had stated it, for publication of an obituary notice, as between 56 and 58 years of age, which was a guess. One Schultz testified that, many years before the time that Reis joined the defendant society, he compared ages with Reis, and that he was older than the witness, and that when he joined the society the witness thought he was over 45 years of age, and that after the meeting was over he told some of the members that he thought so. This testimony was not contradicted, though an effort was made to impeach the witness by showing that he had subsequently stated that this was known to the society when Eeis was admitted.

All of the testimony, except that of Schultz and the daughter, involves the question of the identity of George J. Eeis, which would be for the jury. The fact that the daughter gave his age as 56 or 58 is not conclusive of the question, because she said it was a guess, and that she did not know how old he was. But it is claimed that Schultz’ testimony is positive in character, and should be conclusive of the question. We find that the most that Schultz would say was that he knew that Eeis was older than himself, and that he thought that he was over 45 when he joined the order. Schultz was 50 at the time of the trial, and Eeis might have been several years older than he, and yet have been under 45 when he became a member of the association in 1881. It was, therefore, right to leave the question to the jury.

The judgment is affirmed.

The other Justices concurred.


author: Long, O. J.

text:
    BORCK v. MICHIGAN BOLT & NUT WORKS.
    1. Master and Servant—Uncovered Machinery—Assumption of Risk.
    An employer cannot be held liable for injuries to a boy 12 years old, resulting from his falling against uncovered cogwheels during a scuffle with a companion, on the ground that he was too young to be placed at work in the vicinity of uncovered machinery, where it appears from his own testimony that he was familiar with the construction of the machines, and was fully aware of the danger.
    2. Same—Proximate Cause—Employment of Minors.
    The fact that the boy was employed without the written permission of his parents or guardian, contrary to the provisions of 3 How. Stat. § 199703, was not the proximate cause of the injuries so received.
    3. Same—Dangerous Machinery—Notice.
    The notice contemplated by 3 How. Stat. § 1997c7, providing that “if * * * belting, shafting, gearing, elevators, drums, and machinery in the shops and factories are located so as to be dangerous to employés, and not sufficiently guarded, * * * after due notice of such defect, said proprietors or agents shall be deemed guilty of violating the provisions of this act,” is notice by the inspector mentioned in the preceding section of the act, and, until this notice is given, the statutory liability does not exist.
    Error to Wayne; Lillibridge, J.
    Submitted October 23, 1896.
    Decided December 9, 1896.
    Case by Anthony Borck, an infant, by Andrew Borck, his next friend, against the Michigan Bolt & Nut Works, for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      W. H. Turner and Moore & Moore, for appellant.

      Gray & Gray, for appellee.
   Long, O. J.

Plaintiff was injured by falling into the cogwheels in a machine used by the defendant in its shop. He was about 12£ years old at the time he entered defendant’s employ, and had worked in the shop about 3 months when the accident happened. The defendant’s shop is about 50 feet wide and some 250 feet long. It is well lighted, and the accident occurred in the daytime. The machines are arranged in the shop in three rows, the space between the rows being about six feet. The machines are about four feet square, and some consist of cogwheels, and others of twisted blades. The cogwheels aré about one foot in diameter, three at the bottom and four at the top of the machine. They were uncovered, and plain to the view. Plaintiff’s work was at one end of the shop, and his duty was to place nuts on the bolts. On the day of the injury he had passed through the center space, got a pail of the nuts, and was returning to his place. He testifies in relation to the injury as follows:

“The machine I was hurt on was next to the last towards the river in the middle row. I went to the machine to get the pail of nuts. They were standing alongside of the machine. I picked up the pail, and had it in my hand. Then Frank Lempke came up. He is a boy about my size and age. He said, ‘ Give me those nuts;’ and I said: ‘No, sir; I will not. I use them as well as you do. I need them more than you do, because I am further behind;’ and then he jerked, and said he wanted them, and I said I wouldn’t let him have them. He was trying to get them away from me. I resisted, and we both pulled on the pail. Then he jerked it, and gave me a shove, * * * and I fell backward right into the cogwheels. He struck me at the time with his hand like that, and he let go of the pail at the same time. At the time he let go' I fell. We were both pulling then. 1 fell into the cogwheels, and my hand got into the cogwheel, and I fell onto the box.”

On cross-examination he testified that he went up and down between these machines every day for three months; that he was familiar with the construction of machines, knew how they ran, had seen the cogwheels in motion before, but never saw anybody hurt there; that he knew if any one got his fingers between the cogs his fingers would-be smashed; that he knew enough to keep away from the machines while they.were in motion; that they were in plain sight as he went up and down the passageway; and that it was light. It was shown that both the father and mother of the plaintiff knew of his employment there, and never objected to it, though no written consent was given by either of the parents.

It is contended that the defendant was negligent in employing the plaintiff without the written consent of his parents. Section 1997c3 of 3 How. Stat. provides:

“It shall be unlawful for any factory, manufacturing or mercantile establishment, to hir.e or employ any child under the age of fourteen years without first receiving the permission in writing by the parent or guardian, stating the name and age of said child.”

The next section provides that no place where less than 10 persons or children are employed shall be deemed a manufacturing or mercantile establishment.

It may be said as to this claim that there is nothing in the record showing how many persons or children were employed in defendant’s factory; but counsel for plaintiff insist that it is plain that more than 10 persons were employed when the number of machines are considered, and that they are all in motion. There is some force in this contention, and, if the case rested upon this question alone, we should hesitate to hold that the statute had been complied with. The question must be determined, therefore, upon other grounds. The act itself, by section 8, provides a penalty for its violation. It is apparent that the noncompliance with the terms of the statute was not the proximate cause of the injury. The failure to comply with the statute by obtaining the written consent of the parents had nothing to do with the injury, as it was not one of the natural results of such failure to obtain the consent. There is no count in the declaration for negligence in employing the plaintiff, and it counts only upon the failure of the defendant to obtain the consent of the parents. The damages claimed are for the loss of the plaintiff’s thumb and three fingers. The direct and proximate cause of the injury from which the damages flowed was either the scuffle between the plaintiff and Lempke, by which the plaintiff fell or was thrown into the cogwheels, or the uncovered condition of the wheels. How can it be said that the failure to obtain the parents’ written consent to his working in the shop in any manner caused the injury, or was in any way connected with it?

In Poland v. Earhart, 70 Iowa, 285, the defendant, in violation of the statute, sold a revolver to plaintiff’s minor son, wherewith he by accident shot himself. Plaintiff sued for loss of services, and for expense incurred in nursing him. It was held that, in the absence of a showing that there was something in the minor’s disposition or want of experience from which defendant might reasonably have anticipated that such an accident would happen, plaintiff could not recover. The court said:

“The immediate cause of these injuries was not the sale of the weapon by defendant, but the accident which subsequently occurred while the boy was handling it, whereby he was wounded.”

The damages to be recovered in an action must always be the natural and proximate consequences of the wrongful act complained of. If a new force or power has intervened, of itself sufficient to stand as the cause of the mischief or injury, the first must be considered as too remote. Schmidt v. Mitchell, 84 Ill. 195 (25 Am. Rep. 448). See, also, Swinfin v. Lowry, 37 Minn. 345. As to proximate cause, see Lewis v. Railway Co., 54 Mich. 55 (52 Am. Rep. 790), where the cases are collected and discussed by Mr. Justice Cooley.

It is also contended that the defendant had failed to comply with section 1997c6, 3 How. Stat., which provides that—

“All gearing and belting shall be provided with proper safeguards.”

It is contended by counsel for defendant that this was no violation of the statute, inasmuch as it is provided by section 6 of that act, being section 1997c7, 3 How. Stat., that—

If * * * the belting, shafting, gearing, elevators, drums, and machinery in the shops and factories are located so as to be dangerous to employés, and not sufficiently guarded, * * * after due notice of such defect, said proprietors or agents shall be deemed guilty of violating the provisions of this act.”

It is claimed that “after due notice of such defect” means the notice to be given by the inspector mentioned in section 5 of the act. We think this was the notice required. There is no pretense that any such notice was given. The statute is very different from the one cited in Ashman v. Railroad Co., 90 Mich. 567.

Counsel for plaintiff further contend that the defendant was guilty of negligence is not furnishing the plaintiff a safe place to work; that the plaintiff was too immature in intellect to appreciate the dangers of the place, and in putting him there, and not instructing him in regard to the danger, the defendant was guilty of negligence. The court below was of the opinion that the plaintiff, when he entered the defendant’s employ, saw and knew the danger of getting into the cogwheels, and therefore assumed the risks of the employment. In this, we think, the court was correct. The testimony of the plaintiff shows conclusively that he knew and apprehended the danger. It cannot, therefore, be said upon this record that he was too immature to know the danger he was in. The accident apparently was the result of the contention of the plaintiff and Lempke over the pail, for which the defendant was in no wise responsible. The open cogwheels were to be seen by them, and the plaintiff testified that he knew, ‘ ‘ if anybody got their fingers in between the cogs, they would be smashed.”

We think the court below properly directed the verdict in favor of defendant. The judgment must be affirmed.

The other Justices concurred.