author: Blair, J.

text:
    MERRITT v. MERRITT.
    1. Reformation of Instruments — Deeds—Mistake—Cancellation — Life Estate.
    Where an aged woman deeded to her nephew a farm of 54 acres of land, both parties intending to reserve to her, support and maintenance during her life, and for that purpose executing a cotemporaneous writing which failed to provide for the grantor in case of the death of the grantee, before her decease, the finding of the lower court that no fraud or undue influence appeared, and correcting the deed so as to carry out the intent of both parties, was justified.
    2. Same.
    ' But instead of ordering that complainant should have a lease for life on the farm, the oourt should have decreed a lien upon the premises to secure the performance of defendant’s contract, and provided for the recording of the decree.
    Appeal from Calhoun; North, J.
    Submitted January 23, 1912.
    (Docket No. 150.)
    Decided March 12, 1912.
    Bill by Mary Jane Merritt against Frank L. Merritt and Nora J. Merritt for the cancellation of a deed. From a decree of reformation so as to carry out the mutual intention of the parties, complainant appeals.
    Modified and affirmed.

      Stewart & Jacobs, for complainant.

      Weeks & Cooper, for defendants.
   Blair, J.

The bill of complaint in this case is filed to cancel and annul a deed executed by complainant to the defendant Frank L. Merritt, on the ground that such deed was obtained by fraud and undue influence.

The defendant was a nephew of complainant’s deceased husband, and had lived in the family substantially as a son nearly all of his life. After his uncle’s death, he took charge of and conducted the farm, which contained 54.96 acres of land. The deed in question was executed June 24, 1907, at which time complainant was about 74 years of age. Cotemporaneous with the execution of the deed, the parties executed an agreement, which, after reciting the deed, provided as follows:

s‘ Now, therefore, it is mutually agreed by and between the aforesaid parties in consideration of the premises that said party of the first part shall continue to reside on said premises as long as she shall live and further that said party of the second part shall care for, support and maintain said party of the first part on said premises in health and sickness so long as she shall live, well and faithful, and furnish her with all the necessities of life, medical attention and care at all times and in case of her death to pay all funeral charges and expenses.”

On September 2, 1908, the defendants executed a mortgage upon the farm for $1,000, without complainant’s knowledge, and the defendant Frank listed the farm for sale with real estate men.

After hearing the proofs in open court, including the testimony of the parties, the circuit judge found that complainant was mentally competent to make the deed, and the same was not the result of fraud or undue influence.

He further found that the written agreement did not contain the whole agreement, and that complainant was entitled to one-third of the income or proceeds derived from the farm. A decree was entered in accordance with these findings and for the performance of the agreement as amended, and also enjoining the defendants from transferring or incumbering the title to said lands during complainant’s lifetime. From this decree, complainant appeals to this court.

We agree with the finding of the circuit judge that complainant was mentally competent to execute the deed, and that the same was not obtained from her by fraud or undue influence. We are also satisfied that the cotemporaneous agreement actually executed did not carry out the true intent of the parties thereto.

Complainant testified:

“The agreement was that if I deeded him the farm he was to give me a life lease of it. I was to draw one-third of the income. * * * I depended upon Frank to give me a life lease. I found out I did not have one after I came back from York State. * * * At the time I signed that, I thought it was a life lease. * * * We went to Judge Porter together. I told him we came down to make a little change; that I wanted a life lease of the place; then I would give it over to Frank. I didn’t know whether that meant deeding it or not. I already owned the place. I did not know how I expected to give it over to Frank. I was not supposed to know. I told Judge Porter that.”

Defendant Frank testified:

“Mother first suggested the making of this deed. I was in the eorncrib putting up some corn, and she came to the door and says: * I think the best thing I can do is to deed this farm to you, and I will not have to bother with it, and you pay the taxes, pay the insurance, and give me one-third and keep me.’ I says, ' All right,’ and let it drop at that. * * * After the deed was made, I told Mr. Porter, I says: ‘ Now, she has nothing to show for her keep in any way, shape, or manner. Would it not be best for you to draw up a writing in some way that will hold me for the farm, so she will have her support as long as she lives ?’ A paper to that effect was drawn. * # *
“Q. Did you suppose it was the same as a life lease ?
“A. I supposed that was the nature of it. That is what I took it for. * * *
“Q. Why did you want that contract drawn up ?
“A. Well, I thought like this: That I might be taken away, and might be some trouble in my mother’s getting her support out of that place.
“Q. Why didn’t you have him put a life lease in the deed?
“A. Simply because I didn’t understand it well enough to have it done. * * *
slQ. Did you intend to have the instrument drawn so that it would not provide for her support in ease of your death ?
“A. No.
“Q. Did you intend to have it drawn so it would ?
“A. Yes, sir.”

Judge Porter testified:

“It was all read over to her. It was fully comprehended and understood by both of them. I read over the other one too. I would have to read it to her. This other agreement was made — now, my recollection is they objected to putting that life estate, or what was equivalent to a life estate, in this deed, and in lieu of that I drew that memorandum of agreement between them.”

We are satisfied that it was the mutual intention of the parties that the cotemporaneous agreement should afford to complainant protection of her right to a home and support equivalent to that which would have been furnished by a life lease of the farm, and that by mutual mistake the agreement failed to accomplish their intention.

The bill sets up that complainant—

“Entered into a certain agreement with the said Frank L. Merritt, which arrangement was as follows: That she should deed said farm to the said Frank L. Merritt in consideration that he, the said Frank L. Merritt, should execute to your oratrix a life lease of the same, and in addition to said life lease being so made and executed the said Frank L. Merritt was to remain upon said farm and support, care for, and maintain, your oratrix, paying all the expenses of the farm and earing for the same, and should each year deliver to your oratrix one-third of the proceeds and income from the said farm, which said one-third your oratrix was to have over and above her living and maintenance by the said Frank L. Merritt.”

One of the prayers for relief is:

“That the said defendants be required by a decree of the court to make and execute a life lease of all of said property to the complainant herein, free and clear of and from all incumbrance, and that in case of the failure of the said defendants so to do that they be required by a decree of this honorable court to reconvey all of said property, both real and personal, to your oratrix, and in case of their failure to make and execute such conveyance that a decree of the court be recorded to retransfer said property from the said defendants to the said complainant.”

In view of this special prayer for relief and the general prayer, we think it would be competent for the court to reform the cotemporaneous agreement, so as to carry out the intention of the parties by making the performance thereof a lien upon the land conveyed. The decree may be modified in accordance with this opinion and providing for the recording thereof as evidence of complainant’s interest in the land.

The decree, as modified by this opinion, is affirmed, with costs to complainant.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    MINTHORN v. HAINES.
    1. Usury — Land Contracts — Vendor and Purohaser.
    Under the stipulations of a land contract whereby the vendors agreed to convey the premises described to the vendee, upon the payment of the consideration and seven per cent, interest, subject to another conveyance and to all taxes thereafter assessed against the land, or the contract, or interest created by the contract, no provision being expressed that the vendee should pay the taxes, usury was not shown.
    3. Same — Taxation—Lien.
    Taxes on the contract or the interest created by it would not become an incumbrance or lien on the land, and by paying the consideration and interest the vendee would receive a title unaffected by such taxes.
    3. Same — Partnership—Illegality oe Contracts.
    Since partners are not presumed to have authority to execute illegal agreements, a letter written to the purchaser of the land at the time the contract was executed, signed by one of the partners who executed the contract, but not authorized or ratified by the other, advising the purchaser that he would be required to pay all taxes assessed against it, could not be construed as a part of the written agreement.
    4. Same.
    Contracts are to be interpreted in such away as to render them legal rather than illegal.
    Appeal from Roscommon; Sharpe, J.
    Submitted January 23, 1912.
    (Docket No. 138.)
    Decided March 12, 1912.
    Bill by William A. Minthorn and George W. Wood against Edward D. Haines for the foreclosure of a land contract. From a decree for complainants, defendant appeals.
    Affirmed.

      Gaffney & Miltner, for complainants.

      Edward D. Haines (Turner '& Turner, of counsel), for defendant.
   Blair, J.

This is a suit to foreclose a land contract, and the sole question presented for our consideration is whether the contract is usurious.

After stating the consideration, terms of payment, rate of interest, etc., the contract provides that—

“ When said second party shall have complied with all of the above terms and conditions of this contract, said first party shall thereupon convey to said second party a good and unincumbered title in fee simple of the above-described premises, subject to the timber deed heretofore mentioned and also subject to all taxes hereafter assessed against the said lands or this contract or the interest in said lands created or represented by this contract.”

Taxes assessed against “this contract or the interest in said lands created or represented by this contract ” would not become a lien or incumbrance upon the land or in any wise constitute a burden thereon. Marquette v. Land Co., 132 Mich. 130 (92 N W. 934); Starkweather v. Chatfield, 149 Mich. 443 (112 N. W. 1071). Upon payment, therefore, of the consideration for the land, with 7 per cent, interest, as provided in the contract, and receiving the deed provided for therein, defendant would hold the land free from any burden or lien, so far as the taxes against the contract are concerned.

But defendant argues that this language of the contract should be construed to create an agreement on his part to pay the taxes upon the contract, and that this meaning is made certain by complainants’ letter, which accompanied the contract, which was mailed to defendant for his signature. The portion of the letter referred to is as follows:

“We don’t want to pay taxes on this contract. And if you don’t record the contract it won’t be taxed. But if you do record it and we are assessed we will expect you to pay the tax. We are both responsible and you are just as safe if you don’t record it as though you did. G. W. W.”

This letter was written by Mr. Wood, and there is no evidence that Mr. Minthorn knew of its contents or approved of it. Neither is there any evidence that defendant agreed to carry out Mr. Wood’s expectation. Assuming that there was a partnership, the authority of a partner to make lawful contracts for the firm should not be held to authorize the making of unlawful contracts, without the knowledge of the other partner. The contract was signed by all three, Wood, Minthorn, and Haines, and the rights of the parties must be determined by its terms. Nowhere in the contract is there an express agreement on the part of defendant to pay these taxes; and to find such agreement we must infer it from the fact that the conveyance is subject to taxes, which could create no burden or incumbrance upon the title conveyed, and because, as argued by defendant, the inclusion of such taxes would be idle and meaningless, unless it should be held that “subject to all taxes assessed against the contract ” implied the further clause, “which said second party assumes and agrees to pay.”

It is a familiar rule of construction that contracts shall be so interpreted as to make them valid, rather than illegal. As said in Archibald v. Thomas, 3 Cow. (N. Y.) 284:

“If a contract is susceptible of two constructions, one of which will bring it within, and the other without, the statute of usury, the latter construction should be adopted.”

We think this contract is fairly susceptible of the construction that “subject” to the taxes on the contract has the same significance as subject to “the timber deed,” and that the contract will be fully satisfied by a deed containing the precise language of the clause in question.

In the case of Dingeldein v. Railroad Co., 37 N. Y. 575, relied upon by defendant, the property of a partnership, consisting of a railroad franchise, a road partly built, cars, horses, sleighs, etc., were transferred to a corporation “subject to the payment by the parties of the second part of all the money which the partnership are bound to pay on account of sewers.” This was held to constitute an agreement to pay the indebtedness. This is quite different from the present case, where the language relied upon relates to the character of the deed and its terms, to be delivered after the payment of the entire consideration for the deed, with the lawful interest expressly reserved.

The decree is affirmed.

Moore, C. J., and Steere, McAlvay, Brooke,. Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    HALE v. HARRIS.
    1. Judgments — Competency—Conclusiveness — Insane Persons —Res Judicata — Probate Courts — Estates of Incompetents.
    A decree of the probate court adjudging a party incompetent is not conclusive on a stranger to the proceedings, but is competent evidence.
    2. Deeds — Cancellation of Instruments — Undue Influence— Evidence.
    Where defendant to a bill to set aside her interest in a deed for fraud and undue influence on the ground of the grantor’s incompetency had complete domination over the alleged incompetent, who was mentally and physically weak, and where defendant swore that she paid half the consideration for the deed, the incompetent the other half, and the deed was executed to both jointly, but it appeared that the alleged incompetent at the same time drew from his bank an amount sufficient to cover the entire consideration, and that defendant, who was familiar with his affairs, could not account for his expenditure of the remaining half and also failed to produce satisfactory evidence that she had as much money as she claimed to have paid, the conclusion that she procured the insertion of her name in the deed by undue influence is justified.

      Appeal from Wayne; Donovan, J.
    Submitted January 25,1912.
    (Docket No. 32.)
    Decided March 12, 1912.
    Bill by Sanford Hale and William Hale against Mary E. Harris to set aside defendant’s interest as grantee in a deed conveying real property jointly to defendant and Richard Hale, deceased. From a decree for defendant, complainants appeal.
    Reversed.

      Bush & Bush (Harvey S. Durand and N. Galvin Bigelow, of counsel), for complainants.

      James H. Pound, for defendant.
   Blair, J.

Complainants, as heirs at law of Richard Hale, deceased, instituted this suit to set aside the interest of defendant in certain real estate conveyed, on August 16, 1906, by one Maria Murtagh, for an actual consideration of $1,400, to Baid Richard Hale and said defendant as joint tenants.

The grounds for relief alleged are, briefly, that said Richard Hale paid the entire consideration, and that defendant procured the insertion of her name as a grantee by fraud and undue influence, and because of the mental incompetency of said Richard Hale. Defendant’s answer denies the alleged mental incompetency, fraud, and undue influence, and—

“ Insists that she paid $700 of said consideration, she taking the money from - her shopping bag, and that the said Richard Hale paid but $700, so that each of the grantees were equal owners of said land, and so purposely and knowingly became, and that they purposely made the same a joint tenancy at the joint will and desire of each.”

In June, 1900, Richard Hale moved to Detroit from Shiawassee county and married one Caroline Cody as his second wife. At that time he was worth upwards of $2,500. May 27, 1905, he suffered a stroke of paralysis. Caroline Cody Hale, his wife, died in June, 1906, about one year after the stroke, and two days before her death Mary E. Harris, her sister, the defendant in this ease, came to the home of her sick sister and remained there until, she and Richard Hale took possession of the property which is the subject of this suit. On the 7th day of June, 1906, a petition for administration was filed, alleging that

“Said Richard Hale, husband of said deceased, is a paralytic and ah unsuitable and incompetent person to administer said estate.”

Indorsed upon this petition was the following:

“We hereby consent to and join in the foregoing petition. Mary E. Harris ” and others

Some time from the 15th to the 25th of June, 1906, defendant arranged with Mr. Eaman, a real estate man, to purchase the property in question, and Mr. Hale paid $25 “to bind the bargain.” They took possession about August 29th thereafter. On the 25th day of July, 1906, Sanford Hale filed a petition for the appointment of a guardian of the person and estate of said Richard Hale on the ground of mental incompetency. A citation was served on said Richard on the same day, in the presence of defendant, who fully understood its contents and purport. The hearing upon this petition was adjourned from time to time to December 10th, when defendant and said Richard were sworn, among other, witnesses, and thereupon Judge Durfee decreed that said Richard was mentally incompetent, and appointed a guardian as prayed.

On the hearing in this cause in the circuit court, there was the usual conflict of testimony upon the question of Mr. Hale’s mental competency. In his opinion for a decree, the circuit judge found:

“First. That Mr. Hale was fully competent to buy and deed and deal in such property; in fact, the purchase was in June, before any application for or guardianship papers had been mentioned.
“Second. That such a man, who had provided liberally for his well-to-do sons, and needed a home and care, did perfectly right to make the joint purchase, and insure his care and comfort thereby, at a time when money is a small compensation for attention.
“Third. The Supreme Court cases cited are neither one in direct point, and relate to immoral conduct in no way relating to this home purchase.
“Fourth. The care, nursing, and companionship would be left unrewarded, if the deed were set aside. That would, under the proofs, be an unreasonable act.”

In accordance with this opinion, a decree was entered dismissing the bill of complaint, and complainants have appealed therefrom to this court.

Counsel for complainants contend that the decree of the probate court was a final and conclusive adjudication that Mr. Hale was mentally incompetent, and that such decree relates back to the time of filing the petition. Defendant was a stranger to those proceedings and not concluded by them. As to strangers, the probate decree would only be evidence of the mental status of the alleged incompetent person in transactions had after its entry. The probate proceedings were only competent as part of the history of Mr. Hale, and as bearing upon the conduct of defendant towards him; she having had full knowledge of the proceedings from the outset.

We should hesitate to find upon this record that complainants had established the fact that Mr. Hale was mentally incompetent to agree with Mrs. Harris for the purchase of the property in question in joint tenancy. We are satisfied, however, that he was quite weak mentally as well as physically, easily susceptible to undue influence, if defendant chose to exercise it over him, and that he was under her influence to such an extent that he was afraid to express himself in her presence, and that her mind and will completely dominated his. With reference to the negotiations leading up to the purchase and the purchase itself, the weight of the testimony is that she was the moving party, and spoke for him as well as herself, and her testimony as to this transaction furnishes a test of her good faith.

It is not pretended that Mr. Hale intended to make defendant a present of a half interest in the real estate as joint tenant, or that he paid the entire purcnase price in consideration of her taking care of him and making a home for him. On the contrary, she claimed in her answer, and testified upon the hearing, that she actually paid one-half of the purchase price herself. Mr. Hale testified in probate court, in presence of defendant, that he bought the house and lot and paid $1,500 for it. It appears beyond dispute that on the 16th day of August, 1906, the day the deed was executed and the purchase price paid, Mr. Hale drew out of the State Savings Bank $800 and out of the Detroit Savings Bank $700. If, as Mrs. Harris testified, Mr. Hale was entirely competent to transact this business, it is somewhat strange that he should have testified that he paid $1,500 for the house and lot and have said nothing about her paying $700. It is also a strange coincidence that the books of the two banks should show that he drew out the precise sum mentioned. Whether the extra $100 over the consideration for the deed was for commissions, services, or expenses in connection with the transaction which he had agreed to pay, does not appear conclusively; but the record will support such an inference.

Defendant testified that she got the money to pay her half of the purchase price from her daughter and her husband, who were indebted to her:

SiQ. When did you first loan her any money ?
“A. I loaned her money when they bought their fast horse.
“Q. When was that ?
“A. About four years ago; I guess over four years ago. * * *
,(Q. How did you know he had the money to buy this property ?
tcA. I suppose he knew he had the money himself.
UQ. And he bought it, did he not ?
“A. I told him I could get the money I loaned Mrs. Morris; that I could get the money I loaned Mr. Morris’ folks to pay for my half.
(‘Q. What did he say ?
“A, He said he would pay for his half.
“Q. Did he say where he would get it ?
“A. He said he would go to the bank and get it. * * ”:
“Q. After that day that you bought the property, did you know of his spending any money after that of any great size ?
“A. No,sir; I do not know what he did with his money; he went to different places around.
“Q. You never heard of him buying anything that cost an item of $700 or $800 ?
“A. No, sir; he said different persons wanted to hire money before she died.”

Defendant’s daughter, Mrs. Morris, testified:

“Q. Did your mother at that time have some means of her own?
“A. Yes, sir.
“Q. And what besides; had you and your husband any money of hers ?
“A. Yes, sir.”

The son-in-law, Morris, testified:

I also know that I had borrowed $250 of Mrs. Harris on one occasion and another time $200 and another time $150 or $200. I told my wife to give it to her when this property was bought. * * * Mrs. Harris sold a couple of farms, and I think this money I had was a part of what she received in pay, and she worked. I owe Mrs. Harris no money now. I gave her the money just before she moved there on Harrison avenue.”

This vague and conflicting testimony, unsupported by any written evidence whatever, and not in accordance with the usual practice in such transactions, in connection with the fact that Richard Hale drew the entire amount necessary out of the bank on the very day of the payment, that defendant, who, in our opinion, knew all about Richard Hale’s transactions, and what he did with his money, was unable to account for his use of the extra $800, satisfies us that her testimony that she paid $700 of the purchase price should not be accepted as true. Defendant’s fraudulent conduct in attempting to sustain this transaction as a joint and equal purchase justifies the inference that she was not acting in good faith, and procured the insertion of her name in the deed by fraud and undue influence.

The fourth and most important reason assigned by the court for the decree is based upon a mistake of fact. Defendant was liberally paid for everything she did for Richard Hale.

The decree is reversed, and a decree may be entered in accordance with this opinion.

Moore, C. J., and Steere, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    GOLD v. DETROIT UNITED RAILWAY.
    1. Appeal and Error — Assignments—Directing Verdict — Specific Nature of Objection — Saving Questions for Review. An assignment of error that the court erred in not directing a verdict for defendant is too general.
    2. Trial — Postponement—Witnbsses—Discretion. Except in extreme cases, the exercise of the discretion of the trial court in refusing to delay a trial to enable defendant to procure additional witnesses will not be reviewed.
    3., Negligence — Street Railways — Listening at Grossing. Upon undisputed evidence that plaintiff stopped, looked, and listened before attempting to drive across street car tracks in a city where the view was partly obstructed, there was no prejudicial error in advising the jury in the court’s charge that he was not obliged to stop.
    4. Trial — View—Unauthorized Visit of Juror to Premises. Where one of the jury, during the trial of a negligence case, visited the scene of the accident during recess and viewed the premises, and, on the court being informed of such' misconduct, instructed the jury that knowledge so obtained should not be used, and that it was an improper proceeding, the appellate court will not grant a new trial which the trial judge denied, finding that defendant was not prejudiced.
    Error to Wayne; Murfin, J.
    Submitted January 24, 1912.
    (Docket No. 7.)
    Decided March 12, 1912.
    Case by Barnett Gold against the Detroit United Railway for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn and Benjamin S. Pagel, for appellant.

      Friedman, SmilansJcy & Blumrosen, for appellee.
   Blair, J.

Plaintiff is a huckster, and at the time of the accident had been engaged in the business of selling vegetables in Detroit for several years. He used in his business a horse and wagon to transport his stock. On the morning of July 22,1909, he had been to the commission houses to buy his stock, and was starting on his rounds, when the accident which gives rise to this suit occurred. St. Antoine street is a well-known thoroughfare in Detroit, which runs in a northerly and southerly direction. Clinton street, another public thoroughfare, intersects St. Antoine at right angles. A car track on which defendant operates cars traverses the middle of Clinton street. The cars run in a westerly direction. Plaintiff was driving north close to the easterly curb on St. Antoine street, and his view towards the east along Clinton street (the direction from which the cars came) was obstructed by a three-story brick building, located on the southeasterly corner of the intersecting streets. Plaintiff testified that he knew of the existence of the car track on Clinton street, and that as he approached it he took the precaution to stop his horse and look for a car. When he stopped, his horse’s head was S' feet from the track. He further says that he saw no car coming, but, on account of the location of the said brick building, he could only see easterly 75 feet; that because he could see no car he thereupon proceeded to cross the tracks; and that as his horse got onto the track he first saw the car a few feet away, and coming very fast and without any warning signal. The car struck the rear of the horse and the front wheels of the wagon, injuring the driver and horse, and damaging the wagon. Plaintiff having secured a verdict and judgment, defendant seeks a reversal of the judgment.

The first assignment of error, “for that the court erred in not directing a verdict for the defendant,” is too general to require its consideration. Jackson Bridge & Iron Co. v. Insurance Co., 122 Mich. 433 (81 N. W. 265); Wolfe v. Stack, 153 Mich. 445 (116 N. W. 1010); Canerdy v. Railway Co., 156 Mich. 211 (120 N. W. 582).

The third and fourth assignments of error are based upon the refusal of the court to grant defendant time to obtain its principal witnesses. The application was made orally, after plaintiff had rested and defendant had taken the testimony of one witness. The matter of delaying a trial to enable a party to get his witnesses is one so peculiarly within the discretion of the trial judge, that we should not feel warranted in reviewing such discretion, except in a very extreme case, and we do not consider this to be such a case.

The fifth assignment alleges that the court erred in charging the jury as follows:

“ He [plaintiff] is not bound, gentlemen of the jury, in the case of a street car crossing, to exercise the same care that we are compelled to exercise when approaching a steam railroad crossing. The rule in steam railroad cases generally is, not universally, but generally, that you must stop, look, and listen. Obviously that rule has no application to street cars. He is not obliged to stop, gentlemen, before he crosses the tracks; but he is obliged to bring to bear his faculties and his senses, as an ordinarily careful and. prudent person would before he crosses a track, to ascertain and determine to his satisfaction whether or not it is safe to cross. If he neglects to do that, then he is guilty of such negligence on the subject as will preclude his recovery. If, however, he does that, then he is not guilty of such negligence as will preclude him from recovery.”

The sixth assignment alleges error in the following portion of the charge:

“After all, gentlemen, I think you know as well, possibly, as the court, having been here as long as you have, what is meant by these conflicting terms, the exact definition — negligence and contributory negligence.”

The undisputed evidence showed that the plaintiff did stop, look, and listen when his horse’s head was 5 feet from the track; that he looked up the track 75 feet, which was as far as he could look; and that he saw no car and heard no signal. Assuming that the court erred in holding that the rule did not require plaintiff to stop, this error could not have prejudiced defendant. The excerpts quoted are only a portion of the charge, and, considering the entire charge, we are not satisfied that there was such prejudicial error as to require a reversal of the case.

The seventh assignment of error alleges—

“That the court erred in not discharging the jury from further consideration of the case when it appeared that one of the jurors had made a private investigation of the premises where the accident had occurred, and had reported his findings during the consideration of the case by the jury.”

After the jury had retired to consider their verdict, they returned into court and presented a written question to the court, whereupon the following occurred:

The Court: No, Mr. Foreman; that is very improper. If any juror has done that, he has done that which he should not have, done. I think, Mr. Donaldson, the record should show this. The question that is asked of me by the foreman is, * Can a juror use knowledge that he has acquired during the noon recess, relative to surround» ings, in his argument in the jury room ? ’ The jurors, of course, will bring to bear in the trial of an issue of fact their general knowledge; but it is improper for a juror, during the progress of a trial, to go out and make an individual, detailed study of the surroundings, in the absence of the other jurors or of the court or of the lawyers. If a juror has done that, he has done that which he should not have done, and, having done that, it would be improper for him to use that as a basis for argument. I am not sure, gentlemen, what the effect of the verdict will be in the light of this disclosure; nevertheless, you may retire and consider the case. That is a matter for subsequent determination.”

This conduct of one of the jurors is also made a ground for the motion for a new trial, in denying which the court held that, since there was no conflicting testimony as to the surroundings, and all of the jurymen concurred in the verdict for plaintiff, the defendant could not have been prejudiced by the view of the premises by the individual juror. Defendant contends that, under the rule in this State, the court must presume prejudicial error, and this undoubtedly is the general rule. Churchill v. Alpena Circuit Judge, 56 Mich. 536 (23 N. W. 211.); Detroit, etc., R. Co. v. Campbell, 140 Mich. 384 (103 N. W. 856). Where, however, the only misconduct complained of is, as in this case, that a juryman has viewed the location of an accident on a public street necessarily familiar to many citizens, where the testimony is all one way as to the location and its surroundings, where the court cautions the jury against using such information, and where we can see that it is extremely improbable that such occurrence could have prejudiced the defendant, we adopt the reasonable rule announced by the Supreme Court of Minnesota:

“Not every unauthorized view of the locus in quo will require the setting aside of the verdict. Considerations of practical justice forbid it. It would be an injustice to deprive an innocent party of his verdict simply because there was a casual inspection of the premises by some of the jurors, or because they were familiar with them. If verdicts were set aside for such reasons, there would be no reasonable limits to litigation, especially in cities where the opportunities are great for jurors personally to view the locality of an accident under consideration.” Rush v. Railway Co., 70 Minn. 8 (72 N. W. 734).

See, also, Lyons v. Dee, 88 Minn. 490 (93 N. W. 901).

The judgment is affirmed.

Moore, O. J., and Steere, Mo Alva y, Brooke, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Stone, J.

text:
    GRINNELL v. CABLE-NELSON PIANO CO.
    1. Libel and Slander — Publication—Joint Defendants.
    All persons who have been engaged in, or have been connected with, the publication of a libel, are responsible for the results.
    2. Same.
    Though no direct testimony established the agency of defendants in circulating a libelous letter, evidence that one of the defendants procured the jurat of the writer of the letter, that he forwarded it to the other defendant by whom he was employed, that it was for such employer’s interest in competition with plaintiff to publish the statements, and that the writer was afterwards taken into its employ after having certain conferences with its officers, in one of which it appeared that the use of such letter was discussed, that the writing of the same' was done at the instance of the other defendant and one of its employés took it and made use of the letter, furnished evidence sufficient to require the submission of the question to the jury.
    Error to Washtenaw; Kinn8, J.
    Submitted January 23, 1912.
    (Docket No. 93.)
    Decided March 12, 1912.

      Case by Ira Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros., against the Cable-Nelson Piano Company and William H. Proctor for libel. A judgment for defendants on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      William, L. January (A. J. Sawyer, Jr., and Geer, Williams, Martin & Butler, of counsel), for appellants.

      John P. Kirk and Arthur Brown (M. J. Cavanaugh, of counsel), for appellees.
   Stone, J.

This is an action on the case for publishing an alleged libel.

The plaintiffs are, and were in 1909, engaged in the business of dealing in musical instruments generally, and in the manufacture and sale of pianos, and are known to the trade as “Grinnell Bros.,” and have their principal store at Detroit, and between 30 and 40 branch stores at different places in Michigan. The defendant the Cable-Nelson Piano Company is, and in 1909 was, a corporation engaged in the manufacture and sale of pianos, with its factory at South Haven, Mich., and its principal business office in Chicago. In 1909, and at the time of the trial, Fay S. Cable was its president. In 1909, the defendant Proctor was the agent or traveling salesman of the defendant corporation for the territory comprising Indiana, Ohio, and the lower peninsula of Michigan, residing at Ypsilanti. The defendant corporation had at least 30 or 40 dealers in pianos of its manufacture in this State. Part of Proctor’s duties as traveling salesman was to visit dealers, and whenever he learned of anything on these visits which he thought would be of interest to the defendant corporation he would make a report of it. There was keen competition between the plaintiffs and the defendant corporation, and in April, 1909, this competition was “waxing warm,” as Mr. Cable expressed it. At Ypsilanti, there was a music dealer by the name of Theodore C. Smoke, who had at one time been in the employ of the plaintiffs, but who had, some time prior to April, 1909, engaged in business on his own account, and was handling at that time the Starr & Baldwin line of pianos, the Henderson line, and the Cable-Nelson pianos, manufactured by the defendant corporation.

Mr. Smoke, under date of April 24, 1909, wrote and addressed to Mr. Proctor the following letter:

“Ypsilanti, 4/24/1909.
“Mr. H. D. Proctor,
“ City.
Dear Sir:
“You was speaking to me about the Stile E. Cable Nelson. I guess I had better not order that Stile that is the Stile that the Grinnell Bros, got when they bought out Wolcott at Hillsdale and they took it in the back room and sand-papered the hammers off so as to make it sound tinny. Also let now and then a string down, and took it down to the depot and shipped it to Kalamazoo. Now they are just mean enough to ship one right out here to Ypsilanti. I am not at all afraid of them but I know all their dirty tricks. They fixed a Capin that way in Kazoo once. We sold Mrs. Herb Gilson at Scotts, Mich., a sterling Stile 79 for $65 and this Capin piano. It was at the time Schwankovsky had such a great run on the Capin. And I know they have done the same to the Cable Nelson for I was instructed to help to do it. I am pressing them hard and they’ll not be square so I wouldn’t be surprised at anything.
“ Yours respectfully,
“Theo. Smoke.”

Proctor was at this time acquainted with Smoke, and had made a “consignment” contract with him to handle the Cable-Nelson pianos before this letter was written.

Relative to this letter, defendant Proctor testified as follows:

“I called there to solicit an order for some pianos, and Mr. Smoke told me this story from A to Z unsolicited, without any solicitation on my part whatever. I did not ask him for it. He told me this story. I was asking him to buy style E, and he gave this as a reason for not wanting to buy it. I said: ‘ Mr. Smoke, I am very busy this morning. You don’t mean to tell me they did anything like that?’ He said, ‘That is the truth.’ I said: ‘ I am very sorry to hear anything like that, even against our competitors, I am busy this morning. If you know anything like that I think you ought to write us about it.’ I supposed he would write to the company; but in a few days I received this letter at Ypsilanti. I was away a good deal; but I was living at Ypsilanti. It was several days after he told me this before he wrote me, and I had almost forgotten about it, and this letter came in and called my attention to it. There was no other letter besides that to me in which that was contained. He just mailed that to me. It is addressed to H. T. Proctor. He was not familiar with my initials at that time, and he was very little acquainted with me. He made a mistake in my given name. He afterwards told me that he made a mistake. When I received that, I either turned it in to the Cable-Nelson Piano Company at Chicago personally, or sent it to them, as I felt that I had a right to do; that is what I did.”

Mr. Cable, the company’s president, testified that this letter was received, and that after he had read it he turned it over to his correspondence clerk, Mr. Turnes, who had charge of the correspondence of the office. Cable and Turnes talked over the advisability of having the letter sworn to by Smoke, in order that the defendant corporation could use it in its fight against the plaintiffs. Upon that subject, Mr. Cable testified as follows:

“Q. What was the object, if you had any, of having the first letter sworn to by Mr. Smoke ?
“A. That was something I presume Mr. Turnes thought advisable to have.
(‘Q. Did you and Mr. Turnes talk it over, about having it sworn to ?
“A. I think he asked me if it was a good plan to have that sworn to. I think I said, ‘ I think it would be,’ or something of that kind, I don’t just recollect what he said to me or what I said to him in relation to it.
“Q. But you do think that you told him that you thought you would better have the letter sworn to, is that right ?
“A. I think there was something said in relation to securing an affidavit in regard to the letter. * * *
“Q. If you did not care so much about it, what was the object in retaining the original, and have Mr. Smoke sign it before he returned it to you, and swear to' it ?
“A. I think, if Mr. Turnes called my attention to it, I said to him it would be well to have that, in order to protect our interests.
“Q. What interests do you mean ?
“A. Where we are selling goods.
(‘Q. In competition with Grinnell Bros.?
“A. Yes, sir.
“Q. So you wanted this affidavit really for your salesmen in the different localities where you and Grinnell Bros, were in competition ?
“A. In case we needed it.
“Q. And you wanted it for that purpose ? That was the object, was it not, in having it sworn to, so as to have it a little stronger ?
“A. To be sure it was correct.”

Accordingly a letter was prepared, under date of April 28, 1909, which was signed in the corporate name by Mr. Cable, and was addressed and sent to Smoke at Ypsilanti. The original letter to Proctor was returned to him, and he kept it in his files at the First National Bank at Ypsilanti until after the commencement of this suit, when it was produced by Proctor and turned over to defendants’ attorney. The letter of April 28th, omitting the part which is not material here, was as follows:

“F. S. Cable, Pres’t and Treas.
“Geo. W. Schultz, Sec’y.
“ M. A. Myers, Vice Pres’t.
“Cable-Nelson Piano Company,
“ Manufacturers of Fine Pianos.
“ Fourth Floor, 209 State St., Corner Adams Republic Bldg. Factory, South Haven, Michigan.
“Chicago, April 28, 1909.
“Mr. Theodore Smoke,
“ Ypsilanti, Mich.
“ Dear Sir: * * * By the way, Mr. Proctor recently sent us your letter of the 24th which you wrote him at Ypsilanti and we have read the same with much interest. This is in regard to a style ‘ E ’ that Grinnell Bros., of Detroit, Mich., bought from C. S. Wolcott, of Hills-dale, Mich., which you assisted in making imperfect at their request. We would like an affidavit from you to the effect that you did this, so that we can use it in our fight against Grinnell Bros., which is waxing warm in different places throughout Michigan. We are sending you a copy of the letter which you wrote Mr. Proctor so that you may know what it contains and if you will rewrite this, embodying these facts in the affidavit that you make, it will do us a great deal of good as well as yourself. If you will favor us as requested, we will be very glad to have you do so. * * *
“ Very truly yours,
“Cable-Nelson Piano Co.
[Signed] “F. S. Cable.”

It will be noted that it is stated in this letter that “a copy of the letter ” which Smoke wrote to Proctor was being sent to Smoke, and he is requested to rewrite the letter and embody the same in an affidavit. Proctor testified that he was at Smoke’s house on May 2d, and that Smoke showed him the letter which he had received from the defendant corporation, and also showed him a copy of the letter of April 24th (save that it had been considerably changed in phraseology, grammatical construction and spelling), rewritten on Smoke’s business stationery, evidently copied by him from “copy” sent him in the letter of April 28th. It appears that on May 3d Smoke and Proctor met at the First National Bank in Ypsilanti. A jurat was put on the letter in the bank, and Frederic L. Gallup, a notary public for Washtenaw county, swore Smoke to the letter, and subscribed his certificate to that effect at the bottom of the letter. Smoke then gave the letter with the jurat attached to Proctor, who turned it over to the defendant corporation, either sending it by mail or handing it over personally. Mr. Cable admitted the receipt of the letter which had been sworn to before Gallup. This letter was rewritten and sworn to as follows:

“ Player Pianos. “ Cable-Nelson.
Music Cabinets. “ Lakeside.
* ‘ Grand Pianos. ‘ ‘ Henderson.
“ Prom Factory to Your Home.
“Theodore Smoke,
Ypsilanti’s Leading Music Dealer.
“Piano Rooms, 11 S. Hamilton St.
“ Bell phone 5731. Home phone 252 Black.
“Ypsilanti, Mich., 4/24/ 1909.
“Mr. Wm. Proctor, City. — Dear Sir: You were speaking to me about ordering a style E Cable-Nelson and I guess I had better not order it as it is the same style that the Grinnell Bros, got when they bought out Mr. C. S. Wolcott at Hillsdale, Mich., about a year ago. They took that piano in their back room and sand-papered the hammers off so as to make it sound tinny; also let down a string now and then, and then boxed it up and shipped it to their store at Kalamazoo, where your company has a branch store.
“ Now, they are just mean enough to ship one of that same style here if they can get it. I am not a bit afraid to put a Cable-Nelson in beside them if they are only fare but, after being with them 7 years, I almost know all their, dirty tricks as they fixed a ‘ Capon ’ that way once. We had sold a Mr. Gilson at Scotts, Mich., a Sterling style 79 walnut, new, for this old Capin and $65 in money. The Capin at that time was handled by F. J. Schwankovsky, of Detroit, Mich. He also had a store at Kalamazoo. They got this Capin piano for no other purpose only to make it imperfect to use against Mr. Schwankovsky, I know they did the same with the style ‘ E ’ Cable-Nelson, for I was instructed to help do it. I am pressing them hard here and they know they cannot compete with me fare, so I would not be surprised at anything they do.
“Very truly yours, Theodore C. Smoke.
[Seal] “Frederic L. Gallup,
“ Notary Public, Washtenaw County, Mich.
“Subscribed and sworn to before me this 3d day of May, A. D. 1909.
“ Frederic L. Gallup, Notary Public.
“ Commission expires Jan. 3, 1912."

Mr. Cable testified that, when this letter came back sworn to, ‘f Mr. Turnes took it and used it;” that he did not know what Mr. Turnes did with it after he took it and filed it away. After this suit was begun, the letter was produced by the defendant corporation and turned over to its attorney.

On June 9th and 10th, there were mailed in Chicago, in plain white envelopes, with no return address, to divers dealers in musical instruments, typewritten, substantial copies of said letter of April 24th, with the jurat attached. Such letters were received by divers persons who were dealers; one being addressed to Grinnell Bros., Flint, Mich. After these letters had been put in circulation, the plaintiffs commenced to investigate their source. On. or about February 24, 1910, plaintiffs’ attorney had some talk withMr. Smoke and Mr. Proctor at Ypsilanti. The latter testified that he ‘ ‘ had a pretty hot talk with Mr. January at that time in relation to the publication of those letters. I thought some things Mr. January asked me were none of his business, and I told him so.” Proctor further testified that, either that evening or the next day, he called up Mr. Cable at Chicago by long distance telephone, and told him about the talk he had had with Mr. January, and that as a result of that talk Mr. Cable came to Ypsilanti about three days thereafter; that Messrs. Cable, Proctor, and Smoke had dinner together at the hotel, and it was arranged that Mr. Smoke should enter the employ of the defendant corporation, which arrangement was carried out, and Smoke has since been in the employ of said defendant.

We have stated in a general way the substance of the case as made by the plaintiffs at the trial. Upon the close of the plaintiffs’ case, the defendants moved for a directed verdict, upon the ground that no evidence had been introduced showing that the defendants, or either of them, had anything to do with publishing or circulating the alleged libelous letters. The circuit judge granted this motion, assigning the following reasons for his action:

“ I shall say and direct the jury that, in my opinion, under the evidence submitted, there is no proof nor competent evidence that the defendants here are guilty, of either publishing or circulating this libel. There is no proof of publication or of any circulation whatever on their part. Therefore the defendants are entitled to a direction from me of a verdict of no cause of action.”

Verdict and judgment for the defendants followed, and the plaintiffs have brought the case here for review on writ of error.

It is the claim of the plaintiffs that the trial court erred in thus directing a verdict, and that sufficient evidence was introduced to warrant the jury in finding that both defendants were responsible for the publication of the libelous letter in question to the several persons to whom the evidence showed that the “copies” were mailed. We have no doubt that the evidence showed a publication. The important question is, Are the defendants, or is either of them, liable for the publication thus shown ?

The rule is well settled that all persons who have been engaged in, or have been in any way connected with, the publication of a libel aré responsible therefor. Pollasky v. Minchener, 81 Mich. 280-291 (46 N. W. 5, 9 L. R. A. 102, 21 Am. St. Rep. 516); Cooley on Torts, p. 194.

Did the plaintiffs make such a prima facie case as entitled them to have the same submitted to the jury ? Taking into consideration the relations of the parties, the fact that they were competitors in business, and that such competition was keen, that the goods of both parties were handled in this State in competition, that the alleged libelous letter was written at the suggestion of the defendants, that defendant Proctor met Smoke and conferred with him about making the affidavit, and went with him to the notary, and received the letter with the jurat attached, and forwarded it to the defendant corporation, that, in so far as appears, the defendant corporation alone had the letter in its possession, that the president of the defendant corporation, when litigation was likely to follow, took Smoke into its employment, that defendants alone would be likely to be benefited by the publication, all of these facts taken together lead us to the conclusion that the trial court should have submitted the case to the jury, under proper instructions. Haney Manfg. Co. v. Perkins, 78 Mich. 1 (43 N. W. 1073). In that case the court said:

“Certain facts being proven, the natural inferences to be drawn from these facts were for the jury, and the court was in error in holding that there was nothing to go to the jury.”

We think that this language is applicable to the instant case.

In the case of Bent & Cottrell v. Mink, 46 Iowa, 576, where a similar question was presented, the court said:

“There is great similarity between this question and that of a threat made, and the thing threatened is after-wards done. For instance, suppose one threatens to take another’s life, and within three days the latter is found dead, and the former is being tried for the crime. Now, some one has committed this offense, the body of which is that the party has been murdered, and the point to be solved is, Who did it? Certainly.the threats made would be admissible for this purpose. In the present case, the body of the offense is the publication. The fact that they have threatened to write such a paper is sufficient evidence, prima facie, when unexplained, that they, or rather the writer, did so. We desire to be understood it made a sufficient prima facie case to have made it the duty of the court to have submitted the question to the jury. The publication may be proved by direct or indirect evidence. 1 Hilliard on Torts, 336. As to the latter, no general rule can be laid down. It is, and of necessity must be, as varied as are the circumstances and conditions of human affairs, and each case must form a rule unto itself.”

25 Cyc. pp. 503, 504, and cases cited; People v. Ritchie, 12 Utah, 180 (42 Pac. 209).

We are of opinion that the trial court erred in directing a verdict for the defendants, and the judgment below is reversed, and a new trial granted.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Steers, J.

text:
    NORRIS v. RYNO.
    1. Mortgages — Payment—Foreclosure.
    Conflicting testimony, in a suit to enjoin defendant from foreclosing a mortgage by advertisement, considered, and held, to show that complainant was entitled to an additional credit for a payment made by him.
    3. Same — Tender—Costs.
    Where complainant had negotiated a loan at a bank, and offered defendant to pay the sum due on the mortgage, but did not have the money or pay it into court, he was not entitled to an allowance for interest or to the costs of the lower court.
    8. Same — Cross-Bill.
    Nor was defendant, who, knowing there was a controversy over the amount due, proceeded to foreclose by advertisement, claiming an excessive amount, entitled to costs on bis cross-bill for foreclosure.
    Appeal from Allegan; Padgham, J.
    Submitted January 19, 1913.
    (Docket No. 136.)
    Decided March 12, 1912.
    Bill by John Norris against Clarence A. Ryno, executor of the estate of Ephraim W. Ryno, deceased, to enjoin defendant from foreclosing a mortgage by advertisement. Prom a decree for defendant, complainant appeals.
    Modified and affirmed.

      Smedley, Linsey & Lillie, for appellant.
    . John B. Stochdale and Alfred J. Mills, for appellee.
   Steers, J.

This bill of complaint is filed to restrain foreclosure by advertisement of a mortgage given by complainant to defendant’s father, and to obtain an accounting as to the amount unpaid thereon. Complainant alleges that certain payments made on said mortgage were not credited, and that the sum stated as due in the published notice of foreclosure is excessive. Defendant in his answer denies that any payments which were made were not credited, avers the amount due at the date of the published notice was correctly stated, prays the benefit of a cross-bill by his answer, and asks for an accounting and decree of foreclosure on the amount found due by the court. A replication was filed, and the case heard in the circuit court of Allegan county on January 13, 1910, on pleadings and proofs taken in open court. On April 25, 1911, a decree was rendered dismissing complainant’s bill, and granting defendant a decree of foreclosure on his cross-bill, in default of the payment of fl^O-SO within 60 days; that being the amount found by the court to be due and unpaid on the mortgage. From said decree complainant appealed.

It was found by the trial court that the defendant had figured an excessive rate of interest in computing the amount due, and thereby the sum set forth and claimed in his published notice of foreclosure was excessive. The proceeding to foreclose by advertisement was begun on March 20, 1909, and the-court found there was then due $1,542.65, and that the complainant had tendered in payment of the mortgage the sum of $1,388.05, which was not a sufficient tender. The court also found that an alleged payment by complainant to defendant’s father on May 13,1903, of $125, was not proven by a preponderance of the evidence.

By their briefs, counsel for the contending parties narrow the issue before us to the one question of whether complainant paid defendant’s testate this $125 in part payment of the mortgage. The mortgage in question covered complainant’s farm on which he resided, consisting of 120 acres located in Allegan county, about five miles from Wayland, where Ephraim W. Ryno, now deceased, resided. This mortgage was given April 13, 1899, was for $1,200, ran for three years, interest at 6 per-cent. It was a renewal, at a lower rate of interest, of a former mortgage which had existed on the same property between the same parties for about 12 years. Ephraim W. Ryno, deceased, had resided in Wayland for many years, was a man of some means, and at times loaned money. The complainant had resided for many years on his farm, which was covered by this mortgage, devoting himself to farming, and at times increasing his income by digging ditches for his neighbors. He was illiterate and kept no accounts, depending on his memory in business matters, and the integrity of those with whom he dealt. He had been a borrower from the elder Ryno for many years, not only owing him on the mortgage on the farm, but at times borrowing other sums of money and giving notes. The notes were all subsequently paid, except the one given in connection with the mortgage in question. No serious question or trouble ever seems to have arisen between these parties over payments, until the present one, which developed after the elder Ryno became ill, and his son, the defendant, took charge of his business. The defendant and complainant had been in litigation over some ditching which complainant had done for him, and their relations do not seem to have been friendly. The mortgage in question had been allowed to run for years after it fell due, complainant making annual payments which about kept up the interest. The elder Ryno never gave him receipts for payments, but was supposed to indorse them on the paper he held. After the elder Ryno became ill and defendant was in charge of his business, a settlement of the mortgage was demanded by defendant. When the parties came together finally in an endeavor to reach an adjustment, complainant, in going over the accounts with defendant, found, as he claimed, that a payment of $125 which he had previously made was not credited .to him. He had an interview with the elder Ryno while he was sick and shortly before he died, but all his testimony in relation to what occurred between them is inadmissible, being ’ equally within the knowledge of the deceased.

Lena Fish,-a witness, who was present, testifies that the matter of this $125 payment was discussed between complainant and deceased, complainant insisting that he had made such payment, the deceased, who was quite ill at the time, denying the same, and stating that he did not remember of that amount being paid to him. In conclusion, the witness testified:

“ I don’t recollect anything more than that he didn’t remember that he had ever paid the $125. * * * I didn’t listen to any of the conversation because I wasn’t interested in it. I was only in the room from time to time.”

The testimony was taken in open court. Incompetent as well as competent testimony was introduced and spread upon the record, it being a chancery case, and the court not at liberty to pass upon the evidence as it was given.

Complainant testified in detail as to all the facts and circumstances touching the payment of this $125. Much of this was inadmissible, being equally within the knowledge of the deceased.' That which is competent was so intermingled with the incompetent as to confuse and give the impression that all should be rejected. A careful examination, however, of the printed record, shows that there is, running through such record, much competent testimony bearing upon the question of this payment. The evidence shows that this contention was consistently urged before the death of the party to whom it is claimed payment was made. Complainant insisted upon the payment strenuously to the elder Ryno as well as others. He testifies that in the fall of 1908, when the elder Ryno was taken sick, he was requested by defendant to come and settle up this mortgage; that he had a talk with defendant in regard to it about the 1st of November, 1908, in which he claimed this payment of $125 was made, stating to him the time and circumstances; that, with nothing but his memory to go by, he informed defendant of having paid the money to the bank, which issued a certificate of deposit in his father’s name on May 13, 1903; that in a discussion between complainant and defendant and his brother the brother said, “ If you gave father a certificate, I should think you could find it;” that he thereupon went to the bank, made inquiry, giving them the date and amount, and ascertained that a certificate for that amount had been issued on the date he claimed. Mr. Pickett, manager of the bank, testifies that some time in the fall of 1908 Mr. Norris came to the bank, and asked him to look up a certificate of deposit:

“He came into the bank, into the back room where I was at work, and asked me if I remembered his getting a certificate of deposit for Mr. Éyno in May, 1903. I think he gave me the exact date. I think it was May 13th, as I remember it, and I says, ‘No; I don’t remember anything about it at all.’ He said the amount was $125. I told him I would look it up and let him know; and I asked Duell, and we hunted up the old Eegister of 1903, which had been put away, and we found there was a certificate issued to E. N. Eyno for $125 on May 13, 1903. I have it with me.”

This certificate was stamped, “Paid May 18, 1903,” just five days later. Complainant testifies that this money was obtained from the sale of some cattle. This is verified by the testimony of his wife, who gives the circumstances, stating the approximate date and amount for which the cattle were sold.

We think that complainant’s talk with Pickett relative to the certificate of deposit, giving him the date and amount, is competent; that the testimony of Pickett touching the circumstances of how and where he found it is competent; that the testimony of complainant as toconversations.with defendant is competent, as also his conversation with defendant’s brother; that the testimony of Lena Fish of complainant’s talk with the elder Eyno and defendant about the claim of payment is competent; that the testimony of complainant’s wife as to the sale of the stock to raise money to make the payment on the mortgage is competent. None of these facts were equally within the knowledge of the deceased. This certificate was cashed only five days after it was dated. In the usual course of business it would hardly be thought that a party taking out a certificate of deposit which he had himself purchased for himself would turn round and cash it so soon thereafter. If complainant purchased this certificate of deposit to make a payment to the elder Eyno, its being cashed within so short a time would be more consistent. We think this certificate of deposit, offered in evidence, in connection with the competent testimony as to the circumstances surrounding its issue, together with the fact that it was so soon paid to the elder Eyno, made out a prima facie case, which it was incumbent upon the defendant to meet, by showing that the money did not come from the complainant. The complainant, when this controversy arose, after stating the circumstances of the payment to the defendant, went directly to the bank, asked the banker if he remembered issuing the certificate, and gave the exact date and exact amount. We think this, in the light of the other undisputed testimony, is convincing evidence of the fact that he did buy the certificate for the elder Eyno on that date, and for the payment claimed. The indorsement thereon is evidence that the money was received. The amount due on this mortgage should be recomputed, giving complainant credit for the $125 paid on May 13, 1903.

It is further contended by complainant that, crediting the $125 on the mortgage as of the date it was paid, his alleged tender of March 20,1909, was sufficient in amount to then pay the mortgage in full, therefore no subsequent interest should be allowed and the decree should be for only $1,388.05, with costs of both courts in his favor. With this contention we cannot agree. Complainant had negotiated with a bank to loan him money to pay the mortgage; he did not have it himself. Accompanied by the manager of the bank, he offered to pay this amount to the defendant in settlement of the mortgage. It was not accepted and his negotiations for a loan from the bank were not consummated. He never had the money, so far as shown, had assumed no other obligation for it, and did not keep his alleged tender good by paying it into court. Had his offer been subsequently accepted, he would have been obliged to borrow the money to meet it. Even though it was within his power to borrow and make the offer good he would simply have shifted his indebtedness and paid interest to another. He is no worse off in that particular.

Defendant, in his answer in the nature of a cross-bill, asks for affirmative relief by decree of foreclosure for the amount found due on the mortgage. To this he is entitled. The testimony shows that defendant, knowing there was a controversy over the amount due on the mortgage, instead of taking time to investigate, and, in case of settlement not being reached, foreclosing in chancery, where the matter could be legally investigated and an equitable accounting had, proceeded at once to foreclose by advertisement for the full amount claimed to be due, including not only the items in controversy but also interest on interest after the mortgage fell due. Such being the situation, he is not considered entitled to recover any costs heretofore incurred.

The decree of the court below will be modified in accordance with this opinion, and otherwise affirmed, with costs óf this court only in favor of complainant.

Moore, C. J., and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    ROTHSCHILD v. DICKINSON.
    1. Trusts — Construction—Conveyances.
    A declaration prepared by a trustee, stating the terms on which he holds real property in trust, will be construed most strongly against him.
    2. Same — Passive Trusts — Statutes.
    Under a bare declaration of trust, mentioning no duties of the trustee, and containing no qualifications or limitations, title passes to the beneficiary by virtue of 2 Comp. Laws, §§ 8829-8831, abolishing passive trusts.
    3. Same — Remedies—Quieting Title — Real Property.
    A conveyance of realty so held will be decreed at the request of the beneficiaries, because the nominal trust beclouds the title and embarrasses the rights of alienation of the owner.
    4. Same — Parol Evidence — Deeds.
    Oral testimony may not be used to create a trust in real property. 3 Comp. Laws, § 9509.
    5. Same — Accounting—Compensation op Trustee.
    Upon the termination of a passive trust by decree of the court, an accounting of receipts and disbursements, and an allowance of reasonable compensation for services rendered by the trustee should be ordered.
    Appeal from Wayne; Donovan, J.
    Submitted January 17, 1912.
    (Docket No. 20.)
    Decided March 12, 1912.
    Rehearing denied June 1, 1912.
    Bill by Bertha Rothschild, Harry S. Rothschild, and Louis Rothschild, individually and as executors of the estate of Sigmund Rothschild, deceased, and William Weber, against Don M. Dickinson and others for an accounting and other relief: said Dickinson filed a cross-bill which was dismissed. From a decree for defendants, complainants appeal.
    Reversed, except as to the dismissal of the cross-bill.

      Keena, Lightner & Oxtoby, for appellants.

      Thomas A. E. Weadock, for appellee Dickinson.

      William Look„ for appellee Shaw.
   Stone, J.

In the month of April, 1881, there was conveyed by quitclaim deeds to the defendant Don M. Dickinson certain property in Marquette county known as the “Edwards Mine,” consisting of eleven 40-acre parcels situated in sections 2, 3, and 10, in town 47 north, range 29 west. On the 16th of April, 1881, Mr. Dickinson executed, acknowledged, and delivered, to Sigmund Rothschild, now deceased, a paper writing as follows:

“These presents are to certify that in the purchase of an undivided two-thirds of the property known as the Edwards Mine property in the county of Marquette, and more particularly described as follows, to wit: The southwest quarter of the southeast quarter and the southwest quarter, and the north half of the southeast quarter, and the southwest quarter of the northwest quarter of section two (2). Also the southeast quarter of the northeast quarter of section three (3), and the east half of the northeast quarter of section ten (10), all in township forty-seven (47) north of range twenty-nine west, all of said lands being located in the county of Marquette and State of Michigan, with all personal property thereon and all interest connected therewith, I have used the means of and have acted for the benefit of Alexander H. Dey, David R. Shaw, Sigmund Rothschild and myself.
“ And I therefore declare that I hold an undivided one-quarter of said purchase, or one-sixth of the entire property in trust for the said Sigmund Rothschild.
“ In witness whereof I have hereunto set my hand and seal this sixteenth day of April, A. D. 1881.
[Signed] “ Don M. Dickinson. [L. S.]
“In presence of:
“ F. L. Dickinson.
“P. M. Coffin.”

This instrument was duly acknowledged on the same day of its execution before a notary public in Wayne county. Similar, if not identical, papers were given by Mr. Dickinson also to David R. Shaw, one of the defendants herein, and to Alexander H. Dey. At the date of this transaction, and for some time prior thereto, Mr. Dickinson had been engaged in the practice of the law at Detroit. Mr. Shaw had dealt in mining and other lands in Michigan. Mr. Dey was a well-known banker in Detroit, and Mr. Rothschild was a prominent tobacco merchant in Detroit. Mr. Dickinson had been attorney in various matters for Mr. Rothschild and acted as legal adviser in the matter of these lands. Sigmund Rothschild died testate in July, 1907, being a resident of Wayne county, and the Rothschild complainants represent, by devise and by purchase, all of the interest that Sigmund Rothschild had in the lands at the time of his death. The complainant William C. Weber’s interest in the matter is by reason of a deed made in September, 1907, from the Rothschilds to him, the purpose of which was to secure to the said Weber the payment of certain indebtedness due from the Rothschilds. Alexander H. Dey died at Detroit in August, 1889, and the defendants Hamilton Dey and Herman Dey, by inheritance, represent all of the interests in the property in question which Alexander H. Dey had at the time of his death.

On the 10th day of May, 1881, Mr. Dickinson, at the request of the other parties interested in the Edwards Mine, conveyed to the Argyle Mining Company, a corporation which was organized about that time, two of the eleven forties included in the deed to Mr. Dickinson, being the southwest quarter of the southeast quarter, and the southeast quarter of the southwest quarter, of said section two. This deed was acknowledged on the 16th day of July, 1881, before a notary public for Wayne county. Of the remaining nine 40-acre parcels, only two forties have been leased by the owners. These two forties are described as the east half of the northeast quarter of section 10. A lease of these two forties was signed by the several parties in interest to Daniel E. Wadsworth, on April 9, 1890; and on January 1, 1894, a lease of the same two forties was given by all of the parties in interest to the Foxdale Iron Mining Company; and on the 2d day of January, 1902, Mr. Dickinson, describing and signing himself as ‘6 Trustee,” leased the same lands to the Bird Iron Company. The other seven forties have never been developed or under lease. During some years Mr. Dickinson’s public duties called him away from Detroit, and Mr. James H. Cullen acted as his representative in matters connected with this property. No opportunity for a desirable sale of the property presented itself, and, except for the leases referred to, nothing was done in the matter of realizing upon the investment. The Argyle two forties were, as above stated, eliminated during the first year; and, by the terms of the mining lease to the Bird Iron Company, the lessee was required to pay the taxes upon the two forties embraced in that lease. As to the undeveloped seven forties, the taxes were usually paid through Mr. Rothschild’s office, and, upon his request, the other parties in interest in the lands reimbursed him for the disbursements thus made. For the year 1896 a tax title on a portion of the lands was purchased by defendant Shaw. This purchase was made for the benefit of the other parties interested in the property, and he claims no interest thereby adverse to the other parties to this suit.

As rentals or royalties under the mining leases were paid to Mr. Dickinson, these moneys were disbursed to the parties interested in the lands. No charge appears to have been made by Mr. Dickinson, in whom the title was placed, or by any of the other parties interested in the lands, for services rendered in their joint enterprise until 1905. In February of that year Mr. Dickinson, who had received two quarterly installments of rental from the Bird Iron Company, aggregating $1,250, distributed to the several parties interested a total of $250, and the balance of $1,000 was accounted for by the receipt of Mr. Cullen for that amount for his services in matters connected with the property. The portion coming to Mr. Rothschild was remitted to him, with an explanation as to Mr. Cullen’s charge. Soon after this time — possibly occasioned by this charge — we find correspondence in the record between Mr. Dickinson and Mr. Rothschild which shows that the latter was requesting a conveyance of his interest. Questions arose as to the form of the deed, and before any deed was signed Mr. Rothschild died. In the course of this correspondence, and in March, 1906, Mr. Cullen, representing Mr. Dickinson, discovered among papers in his possession a deed from Sigmund Rothschild to Henry T. Thurber covering a interest in the property. Mr. Thurber had died in 1904, and had formerly been a law partner of Mr. Dickinson. The existence of this deed is set forth in the answer of Mr. Dickinson, hereinafter referred to. After Mr. Rothschild’s death, some efforts were made by the parties in interest to secure a conveyance from Mr. Dickinson, but without success.

The complainants filed this bill in the circuit court of Marquette county, in chancery, asking to have the rights of the several parties in the nine forties, above referred to, determined, and to have the legal title to a one-sixth interest in the property, which represents the Rothschilds’ interest, vested in complainants; and praying that the defendant Dickinson may come to an accounting with the complainants as to the amounts which he may have received from rentals or royalties or otherwise in said premises, which have not been paid over to complainants; and that the court may determine the amount thereof, and asking for a personal decree against Mr. Dickinson for the amount. The bill also prays that defendant Dickinson may be ordered to convey to complainants their undivided one-sixth interest in said premises. The answer of defendant Dickinson admits the conveyance of the property to him as stated in the bill of complaint, and that the title to the property has remained in him, excepting as to the two forties conveyed to the Argyle Mining Company; admits the making of the lease to the Bird Iron Company; claims that the services of James H. Cullen rendered in connection with the trust were rendered at the request of the parties interested in said property, and were authorized by the defendant, that they were necessary services, and that the charges were reasonable. He denies the allegation in the bill that during the lifetime of said Rothschild he (Rothschild) did not convey away any part of his said interest, but avers the conveyance to Henry T. Thurber by Rothschild of the interest of his interest in said land by deed, which has been duly recorded. He alleges that said Rothschild agreed to protect said Thurber’s interest in said lands; that said Thurber notified defendant of the sale to him; and that the defendant has retained in his possession certain royalties received in November, 1909, because of the interest of said Thurber in said matter. The defendant denies that the title in him was a passive or naked trust, but claims that it was an active trust for the protection of the interests of all the parties interested therein, including himself; that his duty as trustee had at all times been duly performed; and that it was the intention of the parties that his trusteeship should continue until the final sale of the property. Both Mr. Dickinson and Mr. Shaw object to a conveyance of the Rothschild interest, because they claim that the property should be held as one parcel. By his answer Mr. Dickinson denies that complainants are entitled to any relief, and by way of cross-bill asks that his compensation may be determined, claiming that he should be paid a reasonable sum for services as attorney and trustee for said property. By a cross-bill later filed by Mr. Dickinson he prayed, for reasons therein set forth, that the mine lease to said Bird Iron Company be canceled and declared forfeited and terminated. The cause was by stipulation transferred to the circuit court of Wayne county, in chancery. A good deal of testimony in this record relates to this issue raised by cross-bill. But that issue was subsequently settled, and the cross-bill of Dickinson was dismissed, without costs, by consent, in and by the decree of the court below.

We have spent considerable time in perusing the unnecessarily large record in this case, and have reached the conclusion that upon the main question in the case the equities are with the complainants.

This “ declaration of trust,” so-called, was prepared by defendant Dickinson, and it is a familiar rule that it should be most strongly construed against the party using the language. Whether this transaction is to be considered as one between principal and agent, or as a joint venture, or with reference to the statutes of this State upon the subject of “Uses and Trusts,” we are of opinion that in equity and good conscience the complainants are entitled to a conveyance of their remaining interest in these lands from the defendant Dickinson. There is no other paper evidencing any different trust upon which Mr. Dickinson took the title, except that shown in the instrument above set forth.

“ Trusts,” in the broadest sense of the definition, embrace, not only technical trusts, but also obligations arising from numerous fiduciary relationships, such as agents, partners, bailees, etc.

The defendant Dickinson has for upwards of 30 years retained legal record title to the land in question. We are strongly impressed with the position of the complainants that, if Mr. Dickinson can be said to occupy the relation of a trustee, the nature of that trust can only be determined by the instrument in writing already set forth, and that such trust is at most a passive or simple trust. In Bispham’s Principles of Equity (7th Ed.), at section 54, that author describes a “ passive trust ” as follows:

“A passive (or, as it is sometimes called, simple) trust has been defined to be a trust in which the property is vested in one person upon trust for another, and the nature of the trust, not being qualified by the settlor, is left to the construction of the law. In this case the cestui que trust has jus habendi, or right to be put in actual possession of the property, and jus disponendi, or the right to call upon the trustee to execute conveyances of the legal estate as the cestui que trust directs. ”

It is difficult to conceive of a title which is more clearly within the definition of a passive trust than is the title asserted in the instrument above set forth. There is nothing indicating the terms of the trust; no duties whatever given to the alleged trustee. Our statute relating to uses and trusts, in section 8829, 3 Oomp. Laws, provides that:

“ Uses and trusts, except as authorized and modified in this chapter, are abolished, and every estate and interest in lands shall be deemed a legal right, cognizable as such in the courts of law, except when otherwise provided in this title.”

Section 8831 provides as follows:

“Every person who, by virtue of any grant, assignment or devise, now is, or hereafter shall be entitled to the actual possession of lands, and the receipt of the rents and profits thereof, in law or in equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions as his beneficial interest.”

It will thus be seen that in this State passive trusts have been entirely abolished, and where a deed creates them the title passes at once to the beneficiary. Burdeno v. Amperse, 14 Mich. 91 (90 Am. Dec. 225); Everts v. Everts, 80 Mich. 222 (45 N. W. 88). In every case of a naked trust the statute itself executes the trust and places the legal estate in cestui que trust. Ready v. Kearsley, 14 Mich. 215. The statute places the entire interest, both legal and equitable, in the one beneficially entitled, or, as the expression goes, executes the use. 28 Am. & Eng. Enc. Law (2d Ed.), p. 919. Upon this subject an interesting case is that of Loring v. Palmer, 118 U. S. 321 (6 Sup. Ct. 1073). See, also, Blake v. O’Neal, 63 W. Va. 483 (61 S. E. 410, 16 L. R. A. [N. S.] 1147), and notes, making reference to the statutes of the several States; Woodgate v. Fleet, 64 N. Y. 566. In the case last cited, 64 N. Y., at page 573, referring to a certain trust deed providing, among other things, for after-born children, the court said:

“No power to receive or apply rents is given, nor are the former trusts referred to in any manner, nor is it even said that the parties of the second part shall continue to hold as before, but simply that the shares shall be held in trust; no trust being specified. Such language is, we think, insufficient to create any active trust authorized by the statute, or any but a mere passive, naked trust, to hold, under which the title would pass legally to the beneficiary.”

Syracuse Sav. Bank v. Holden, 105 N. Y. 415 (11 N. E. 950). In that case, the instrument contained much broader language than the instrument we are considering, and the court said:

“A mere formal passive trust was attempted to be created which the statute executes by vesting the title in the beneficiaries.”

See Dyett v. Trust Co., 19 N. Y. Supp. 19 (affirmed in 140 N. Y. 54 [35 N. E. 341]); Gueuthal v. Gueuthal, 113 App. Div. (N. Y.) 310 (98 N. Y. Supp. 1002); Hannig v. Mueller, 82 Wis. 235 (52 N. W. 98).

A conveyance will in such a case be decreed because the nominal trust beclouds the title, and embarrasses the rights of alienation which belong to the true owner. Bispham, Principles of Equity (7th Ed.), p. 90, § 55.

We do not think that oral testimony can be resorted to, to create a trust in real estate. See section 9509, 3 Comp. Laws, and cases cited in note; Renz v. Stoll, 94 Mich. 377 (54 N. W. 276, 34 Am. St. Rep. 358); Pierson v. Conley, 95 Mich. 619 (55 N. W. 387); Sanborn v. Loud, 150 Mich. 154 (113 N. W. 309, 121 Am. St. Rep. 614). The deeds to Mr. Dickinson are quitclaim deeds. We are of opinion that the complainants are entitled to receive from Mr. Dickinson a quitclaim deed of the nine forties remaining unconveyed, subject to the terms of the lease to the Bird Iron Company, and also subject to the deed of Mr. Rothschild to Henry T. Thurber. We notice that by letter of October 24, 1906, written by Mr. Schott in behalf of Mr. Rothschild to Mr. Cullen, Mr. Rothschild was ready to accept such a deed'.

We have spent some time endeavoring to ascertain the true condition of the account between Mr. Dickinson and the Rothschilds’ interest. We have reached the conclusion that, as the trust relation is now to be terminated, the case should be remanded to the Wayne circuit court, to the end that an accounting be had between the parties —complainants and defendant Dickinson — relating to the receipts and disbursements by Mr. Dickinson of royalties, etc., and relating to the value and extent of his services in purchasing, looking after, and caring for the property. We are satisfied that Mr. Dickinson’s claim for reasonable compensation for services rendered for the benefit of this property should be ascertained and determined, and we are unable to determine the same from this record.

The cross-bill of defendant Dickinson against the Bird Iron Company will be dismissed, without costs, as"directed by the decree of the lower court. In other respects the decree of the circuit court will be reversed, and a decree entered in this court in accordance with the terms of this opinion, with costs to the complainants against the defendant Dickinson.

Moore, C. J., and Steere, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.