author: Ostrander, C. J.

text:
    WILLETT v. KING.
    1. Carriers — Trespasser—Refusal to Pat Pare — Ejection from Train.
    A person who enters a train and refuses to pay his fare when lawfully demanded is a trespasser and not a passenger, and at common law the carrier is not required to put him out at one place rather than another, provided he is not wantonly exposed to peril or to serious personal injury; but if left in a place of special and peculiar danger when he is manifestly incapacitated for looking out for himself, and is injured, there may be liability.

      See notes in '26 Ii. R. .A. 129; L. R. A. 1915C, 140.

      2. Pleading — Proofs—Variance—Carriers.
    Where plaintiff’s declaration alleges that he was a passenger on defendants’ train, but his proofs show that he was a trespasser, there is a variance between pleadings and proofs.
    3. Appeal and Error — Variance—Waiver.
    Where a variance between pleadings and proofs, in a cause that had twice been tried, was first raised in defendants’ requests to charge, the objection came too late, since if raised at the proper time the question of plaintiff’s right to amend would then have been presented.
    4. Carriers — Trespasser—Ejection from: Train — Opposite Dwelling House — Statutes.
    Where plaintiff, who had refused to pay his fare upon defendants’ train, was ejected a short distance from a highway on which there was a house about 55 rods from the crossing, he was put off opposite a dwelling house within the meaning of the statute (2 Comp. Laws 1915, § 8297).
    5. Same — Personal Injuries — Negligence—Directed Verdict.
    In an action for personal injuries to plaintiff who was ejected from defendants’ train on his refusal to pay fare, where plaintiff walked off the train, and, beyond the fact that he was somewhat intoxicated, there was nothing to excite the belief that he could not take care of himself, and there was no evidence of a wilful disregard of his personal safety, and he was not put in peril by the trainmen, the court should have directed a verdict for defendants.
    Error to Montcalm; Davis, J.
    Submitted June 4, 1918.
    (Docket No. 21.)
    Decided September 28, 1918.
    Case by Richard Willett against Paul King and another, receivers of the Pere Marquette Railroad Company, for personal injuries. Judgment for plaintiff. Defendants bring error.
    Reversed.

      Parker, Shields & Brown (Hawley & Eldred, of counsel), for appellants.

      L. G. Palmer and George E. Nichols, for appellee.
   Ostrander, C. J.

Plaintiff, 48 years old, a small farmer, owning 20 acres of land and working that and another 20 acres, on Saturday, March 15, 1913, drove his team of horses to Stanton, Montcalm county, put them in a barn, and by way of the Pere Marquette railroad journeyed to Lowell, in Kent county, arriving there at about 4 o’clock in the afternoon. His principal purpose in making the journey seems to have been to get drunk and to purchase liquor to take home with him, liquor not being procurable by purchase in Montcalm county. He became intoxicated, and, with a package containing a gallon of whisky, he left Lowell at about 7:10 in the afternoon by the Pere Marquette north-bound train. He had sufficient money to pay his fare, and more, but bought a ticket only to Greenville, a station intermediate Lowell and Stanton. When the ticket was taken up and he said he was bound for Stanton, he was told that he must pay fare beyond Greenville or leave the train there. As he did not pay his fare beyond Greenville, when it was demanded he was put off of the train, which was stopped for that purpose at the Taylor or Abbey crossing, about 41/2 miles from Greenville and 3% miles from Sydney, the next station. The train was stopped upon the highway. The point where he alighted was a short distance south of the highway between which and himself was the usual cattleguard. Having alighted, he told the conductor that he had left his package in the car, who got it and gave it to him. This was shortly after 8 o’clock. In the neighborhood of the Abbey crossing, the country is well settled. The nearest house, Mr. Abbey’s, is about 55 rods from the crossing on the south side of the highway. It was lighted, the light being visible from the right of way. At some time between 10 and 12 o’clock, two men, who had walked from Greenville to the crossing, saw and talked with plaintiff, who was .sitting on the ground near the rail. To these men plaintiff told his name,, where he lived, that he had been to Lowell and had been put off of the train because he would not pay his fare, that he was resting and would go on when rested. He inquired, and was told, the distance to Sydney. He was invited by one of the men to go with him and remain the night, and plaintiff told him to mind his own business, he could take care of himself. On Sunday morning, one of these men, going to Mr. Abbey’s house, went down the track, finding plaintiff asleep by the fence and some 40 feet from the place where he was the night before. He awakened plaintiff. Going down- to the Abbey house, Mr. Abbey and this witness returned to where plaintiff was, and after some talk plaintiff went with them to the Abbey house. The jug of whisky was then from one-half to two-thirds full. Plaintiff carried it, and on the way drank from it. At the house, he had coffee, but ate no food, remained three or four hours in a warm room, complained some of a headache and pain in his stomach. About 1 o’clock in the afternoon, Mr. Abbey told plaintiff that if he was going to walk to Sydney he ought to be on his way. At plaintiff’s request, the three men walked to a neighbor’s house, a mile away, where was a telephone, by which a message was sent to a friend of plaintiff at Sydney. During this trip, it was contrived to tip over plaintiff’s, jug and lose some whisky, the remainder, about a quart, being put into a bottle, and given to him. The three men then went to the railroad at Hansen’s crossing, where, at about 2 o’clock, they separated, plaintiff going up the track in the direction of Sydney. He did not proceed far. During the night, or on Monday morning, he went to an outhouse in a field, remained there, or about there, all day Monday, and in the evening walked to Sydney and there took the train for Stanton. At some time during this outing, his feet were frozen. In May, following, one foot and part of the other were amputated. The temperature during Saturday night and Sunday, at Grand Rapids, was, at its coldest, 18 degrees, at midnight, Saturday. It was 9 degrees between 5 and 7 o’clock the morning of the 17th, Monday morning.

In outline, these are the facts appearing upon the trial and are not disputed. Aside from the question of the amount of damages plaintiff should recover, there were three questions of fact 'submitted to the jury. One was whether, in fact, plaintiff was discharged from the train opposite a dwelling house, within the meaning of the statute, 2 Comp. Laws 1915, § 8297, which reads :•

“If any person shall refuse to pay his fare, or refuse to obey such regulations as may be established for the convenience and safety of passengers, it shall be lawful for the conductor of the train and servants of the company to put him off the train at any usual stopping place, of opposite any dwelling house the conductor may select.”

Another question was whether plaintiff’s feet were frozen before Sunday morning, when he went to the Abbey home, or were frozen afterwards. The third question involved, as the charge was given, determination of plaintiff’s condition when he was put off of the train, and not only his actual, but his apparent, condition, and his discoverable condition.

The form of the action is trespass on. the case. Allegations therein proceed upon the premise, or after statement of the premise, that, having been accepted as a passenger upon the train, various duties were owed to plaintiff by the trainmen. Among the duties alleged, generally, is the duty not to eject him or put him off of the train at any point except at a usual stopping place or opposite to some dwelling house, and the further duty to see to it that he was not exposed, in his alleged condition, to unusual hazards, to weather or other conditions which might cause him injury. Performance of these duties is negatived. The declaration does not count upon the statute, nor refer to it, nor does it refer to the fact that plaintiff was put off of the train because he did not pay his fare.

There was a substantial verdict for plaintiff, upon which judgment was entered. There are 41 assignments of error discussed in the brief for appellants, under the headings, Admission of Demonstrative Evidence, Plaintiff’s Poverty, Opinion of Witnesses, Argument of Counsel, The Court Should Have Directed a Verdict for the Defendant, Errors in the Charge as Given.

The verdict being general, with no special finding, it is not possible to know what action of the trainmen the jury condemned. The jury was advised that, having refused to pay his fare when it was demanded, the plaintiff was a trespasser, liable to be ejected from the train, the right to eject him being limited by the statute provision above quoted. That nominal damages, at any rate, were recoverable if the ejection was at a place not within the statute designation. And whether the place was opposite to a dwelling house was to be determined by them. It is assumed that they observed and followed the instructions given them by the court. These required them to find that plaintiff’s feet were frozen during Saturday night before plaintiff was in a safe place in the Abbey home. They required them to find either that plaintiff was ejected from the train at a point not opposite to a dwelling house, or whether opposite to a dwelling house or not, that he was ejected when his evident, or apparent, or discoverable, condition forbade that he be ejected at all except at a place where he would be looked after, as at a station. As a general summary of the instructions upon the point, the court said:

“So you see much rests, gentlemen, upon the question whether under all of those conditions the conductor had reason to believe, or ought to have believed from his observations, or should have discovered whether the man was able to take care of himself at that particular time and place.”

The defendants requested the court to charge that:

“Under the testimony in this case the plaintiff was a trespasser and not a passenger upon the train in question at the time he was ejected therefrom by defendants’ conductor. Under those circumstances the conductor had the right and it was his duty to eject him from said train at any usual stopping place of said train or opposite to or near a dwelling house unless said defendant (plaintiff?) was so drunk that he did not know or comprehend what he was doing, and could not care for himself, and unless the conductor had full knowledge of his helpless condition, and notwithstanding such knowledge, grossly and wantonly put him off the train under such circumstances as might be naturally and reasonably expected to result in injury and damage to said plaintiff, and with reckless disregard of plaintiff’s safety.”

Further requests emphasized the defendants’ contention, as, for example, the request that:

“It is not sufficient to entitle the plaintiff to recover in this case for him to establish that in ejecting him from the train the conductor did not exercise ordinary and reasonable care under the circumstances of the occasion; but it is incumbent upon him to go further and establish the fact by a preponderance of the evidence that the conductor in ejecting him from the train on that occasion knew that he was in a condition in which he was unable to help and care for himself and was guilty of gross and wanton disregard of his rights and safety in expelling him from the train.
“Unless you find in this case that the conductor ejected the plaintiff from the train on the night in question when plaintiff was in a helpless condition and when the conductor knew of said helpless condition and' under such circumstances as indicated a gross and wanton disregard of plaintiff’s rights and of the injurious consequences which might reasonably be expected to result to him the plaintiff cannot recover.”

Other requests preferred by defendants ask for a peremptory instruction in their favor, one because there is a variance in pleadings and proofs in that the declaration alleges that plaintiff was a passenger and had the rights of a passenger, while the proofs show he was a trespasser, to whom defendants owed none of the alleged duties owed to a passenger; another because plaintiff’s own negligent acts and conduct contributed to whatever injury he sustained; another that having been discovered and invited to a place of safety after he was ejected and before he received injury defendants were then and there relieved of any further duty or obligation in the premises ; another that there is no proof showing that plaintiff had received injury before the time when he was admitted to the house of Mr. Abbey on Sunday morning ; and still another to the effect that there is no evidence that the conductor in ejecting plaintiff acted with gross or wanton disregard of plaintiff’s rights, and that the jury might' not speculate with regard to whether plaintiff received his injuries on Saturday or on Sunday night.

It has been many times decided that if a person enters a train and refuses to pay his fare when lawfully demanded, he is a trespasser and not a passenger, and at common law the carrier is not required to put him out at one place rather than another, provided he is not wantonly exposed to peril or to serious personal injury. 3 Elliott on Railroads, '§ 1255; 4 Elliott on Railroads, §§ 1583, 1637; Wyman v. Railroad Co., 34 Minn. 210 (25 N. W. 349); Podespik v. Railway Co., 216 Mass. 213 (103 N. E. 638). Of course, if such a person is, in any case, left in a place of special and peculiar danger when he is manifestly incapacitated for looking out for himself, and is injured, there may be liability for the injuries. Black v. Railroad Co., 193 Mass. 448 (79 N. E. 797, 7 L. R. A. [N. S.] 148, 9 Ann. Cas. 485). In Gaukler v. Railway Co., 130 Mich. 666, plaintiff was put off of a train, having refused to pay his fare. The negligence complained of was (1) that he was left in a place of danger, (2) abandoning him to look out for himself when he was incapable of doing so by reason of his intoxication. Plaintiff was afterwards injured by a passing engine, which struck him while he was walking between two tracks on the railroad right of way. In reversing the judgment for plaintiff, this court said:

“The testimony of these two officers is all that shows that the man was put off near Farnsworth street, instead of at the Lake Shore junction, and they agree that he - left the track, and went with them to the flagman’s shanty, 25 or 30 feet east of the tracks. We may treat the case, then, as though he had been left at that point, and taken 25 or 30 feet from the tracks, in a public and well-frequented street in the city, and left in the presence of two citizens, and the question of the fitness of the place where the train stopped is eliminated. In this respect the case is like that of Hamilton v. Railroad Co., 183 Pa. St. 638 (38 Atl. 1085), where one walked back to a station after being carried by, and was there injured. The court said it was as though he had gotten off at the station.
“Plaintiff’s counsel insist that it must be left tó the jury to say how drunk the man was, and whether, under the circumstances, it was negligence to put him off. We should add to that, ‘And leave him 25 feet east from the tracks on a public highway, in the presence of two officers, who were conservators of the .peace.’ The evidence in this case is practically undisputed. Every witness who testified said that the man could walk and could talk. He knew that fare was required of him, and he insisted that the conductor should carry him for the same fare that the electric line charged; and, when he was informed that he could not do so, he refused to pay more, and at ‘once acquiesced in the conductor’s demand that he leave the train. He alighted unaided. He then left the track to go to Detroit, found some citizens and inquired the way, but declined to go with them. All knew that he had been drinking — perhaps considered him drunk — but the testimony of no one indicates that he was unable to care for himself. All, from the saloon keeper — who testified that he was in the habit of keeping track of his patrons’ trains, that they might not miss them, so that they might freely drink all that they were disposed to buy, and who obligingly assisted them to their respective trains — to the last man to talk to him, agree that he was able to care for himself, though drunk. There is nothing on this record to make it incumbent on this conductor to do more than to see that this man, in his apparent condition, left the railway premises, and was talking with citizens 25 feet away from a point of danger. If there was any negligence at any stage of the proceeding— which we do not intend to intimate — it ceased as a factor in this case when the plaintiff left the premises and reached a place of safety.”

In considering a similar case in which a Canadian statute was relied upon, this court said, in The Great Western Railway Co. v. Miller, 19 Mich. 305, 313:

“The liability for putting a person off from the cars at a distance from any dwelling, or station, is purely statutory, and no damages can be recovered for that specific grievance, unless the statutory provision is set out and a case made out under it by the pleadings. A carrier is not required by the common law to put out a trespasser at one place rather than in another, and while the law will not permit a person to be-exposed wantonly to peril, there is no rule which requires any consideration to be shown for the mere convenience of a.wrong-doer.”

The variance of pleadings and proofs is clear. The declaration alleges that plaintiff was a passenger and alleges, by intendment, at least, various positive contract duties arising out of the relation of carrier and passenger. The case made by plaintiff upon the testimony negatives the existe'nce of any contract or of any positive duty owed to plaintiff.

The statute aside, the plaintiff’s case upon the testimony is the case of one not a passenger, but a trespasser, with whom the carrier had no contract relations, to whom no positive duty was owed, but only the non-positive duty not to wilfully do him injury. This point was not raised during the trial — at least, we are referred to no ruling and no exception which presents it — nor until the testimony was concluded and defendants’ requests to charge were preferred. If it had been made when plaintiff’s testimony showed that he was not a passenger, or perhaps upon a motion to strike out all of the testimony for plaintiff, with a ruling favorable to defendants, the question of plaintiff’s right to amend would then have been presented. This cause has twice been tried. We think the objection came too late, and that the judgment ought not to be reversed for this reason.

So far as the statute is involved, the contention may be disposed of by the facts. The court should have instructed the jury that the point at which plaintiff alighted was opposite a dwelling house, within the meaning of the statute. As used in the statute, the word means: Placed over against; standing or situated over against or in front; facing; often with to; as, a house opposite to the Exchange. Webster’s Inter. Diet. Since 1855, this provision has been in the statutes. It is a limitation upon a common-law right. Applicable to nearly all railroads in the State, in all portions of the State, it must have been intended as a humane provision to secure a rejected or ejected passenger reasonable means of communicating with his fellows. The house in question was little more than one-eighth of a mile distant, and was in view. In a city like Lansing, the distance was a little more than the length of two city blocks and the intervening street.

Plaintiff went to the station at Lowell, purchased a ticket and boarded the train. After leaving Green-ville, he tried to borrow money to pay his fare, the conductor waiting his success in that behalf. He walked off of the train. He demanded his jug, and it was given to him. Beyond the fact that he was somewhat intoxicated, there was nothing to excite the belief that,he could not take care of himself. There is no evidence of a wilful disregard of his personal safety. He was not put in peril by the trainmen. His only peril was from the elements, and that was inconsiderable unless he was for a long time exposed to them and was himself inactive. He was offered and refused shelter for the night, after learning where he was. But, he says, he immediately, addressed himself to the jug and its contents. When he was found, in the morning, asleep, and apparently safe and sound, the jug was from one-half to two-thirds full. Plaintiff is to be pitied, but it would be plain injustice to require defendants to repair, so far as money can repair, the consequences of his own folly.

We are of opinion that the court should have directed a verdict for defendants. In this view, it is unnecessary to discuss other assignments.of error.

Bird, Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    COHN-GOODMAN CO. v. PEOPLE’S SAVINGS BANK OF GRAND HAVEN.
    1. Bills and Notes — Negotiable Instruments — Contracts—Assignments.
    A certificate of deposit containing the stipulation that it was payable “o¿ the return of this certificate properly indorsed,” was a, contract, the title to which would pass by assignment, and the assignee could recover in a suit thereon to the same extent that his assignor could, and the question of its negotiability is not controlling.
    2. Banks and Banking — Certificate of Deposit — Payment—Liability of Bank.
    Where a bank paid the amount represented by a certificate of deposit to the person depositing same,, without requiring the return of the certificate duly indorsed, which it was not required to do by the terms of the instrument, it acted at its peril in so doing.
    3. Same.
    The mere fact that a person deposited money payable to • another, receiving a certificate of deposit therefor, gave him no right to receive the money nor the bank the right to pay him without the return of the instrument duly indorsed.
    4. Appeal and Error — Trial—Special Questions.
    The refusal of the court below to submit special questions, none of which was controlling, was not erroneous.
    5. Pleading — Bill of Particulars — Variance.
    In an action on a certificate of deposit, where plaintiff was allowed to trace the money and to show whose money was deposited and the circumstances of the transaction, there is no merit in the contention that plaintiff was allowed to ignore its bill of particulars which stated the cause of action consisted of a certificate of deposit, a copy of which was set forth in the declaration, since there was no effort to change the terms of the certificate which did not state that the money belonged to the one depositing it, or that it was payable to him in any contingency.
    ' 6. Depositions — Objections—Waiver—Statutes.
    Objections to depositions not made within ten days under 3 Comp. Laws 1915, §§ 12494, 12497, and not noticed for hearing under Circuit Court Rule No. 37, will be regarded as waived.
    7. Appeal and Error — Depositions—Directed Verdict.
    Where plaintiff’s evidence warranted a directed verdict in its favor without receiving in evidence a deposition of its president, any error in its reception becomes unimportant.
    Error to Ottawa; Cross, J.
    Submitted June 7,1918.
    (Docket No. 65.)
    Decided September 28, 1918.
    Assumpsit by the Cohn-Goodman Company against the People’s Savings Bank of Grand Haven on a certificate of deposit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles E. Soule (Charles E. Misner, of counsel), for appellant.

      'Lillie, Lillie & Lillie, for appellee.
   Stone, J.

Action to recover the amount claimed to be due plaintiff upon a certificate of deposit issued by defendant. In April and May, 1917, the plaintiff, an Ohio corporation, was engaged in the business of merchandising at Cleveland, Ohio. Charles P. Jacobs was one of plaintiff’s traveling salesmen, and as such visited the city of Grand Haven on April 30, 1917. He was arrested on that day on a warrant issued by Isaac N. Tubbs, a justice of the peace, charged with having made a felonious assault on a little girl, and while in custody of the sheriff in the jail he employed Charles E. Misner, an attorney, to defend him, and Misner saw Jacobs at the jail and they both communicated with the plaintiff by telephone. The precise conversation' between Misner and the plaintiff was a disputed matter. It was undisputed that Misner arranged with the justice that the security for Jacobs’ appearance in the circuit court should be the sum of $500 in cash in lieu of a bond. It was the claim of the plaintiff, and there was evidence tending to support the claim, that Misner informed the plaintiff that if $500 was put up as security, and Jacobs appeared in the circuit court for trial, the money would be refunded to the plaintiff.

Upon the trial of the instant case Jacobs testified that when Misner was talking with Mr. Cohn over the telephone, before the money was sent, that Misner said:

“I can’t do it; I am not able to do it; I must have $500 cash bond to put up; the money will be returned to you on the termination of the trial.”
This was denied by Misner. All agree that plaintiff wired $500 to Jacobs, and also telegraphed Mis-, ner on May 1st:
“Telegraphed Jacobs by Western Union Telegraph Company this morning at 8 o’clock, five hundred, care of sheriff.”

The sheriff went with Jacobs and got the telegraph company’s check for $500 on the State Bank, went to the said State Bank and got the currency, the sheriff there identifying Jacobs. They then went to the People’s Savings-Bank of Grand Haven, the defendant here, where they met Misner and Tubbs, the justice. Jacobs gave the money to Misner, either in the street or in the last named bank. Misner had been to the bank and had dictated the form of a certificate of deposit. Either the justice or Misner handed the money to the assistant cashier, and the latter handed to the justice the certificate of deposit, which was in the form following:

“People’s Savings Bank of Grand Haven, Michigan.
“No. 12743. Grand Haven, Michigan, May 1,1917.
“Charles E. Misner has deposited in this bank five hundred dollars ($500) payable to the order of Isaac N. Tubbs in case of default of the bond given in the case of the People vs. Jacobs on the return of this certificate properly indorsed.
“A. E. Gale,
“Assistant Cashier.”

The justice made due .return to the county clerk in the case, and to his return he attached the certificate of deposit, indorsed by him. Jacobs subsequently, and in August, 1917, duly appeared at the circuit court, was tried upon the charge against him, and was acquitted. Misner remained the attorney of Jacobs for a short time, when he was discharged by Jacobs, who employed other counsel. Within a day or two after Jacobs was acquitted Misner demanded the certificate of deposit of the county clerk. In the meantime the plaintiff had sent an order by its Cleveland attorney (who was in attendance at the trial) to the county clerk asking the clerk to send them a draft for the amount of the money. The county clerk refused to deliver the certificate of deposit to Misner, and he at first refused to deliver the certificate on the order of the plaintiff. But upon a bond of indemnity in the sum of $1,000 having been given to the county clerk to save him harmless, he delivered the certificate to the attorney for the plaintiff.

By consent of counsel on the trial in the instant case, the following statement of the prosecuting attorney was read in evidence:

“On .the back of certificate of deposit in dispute in the case, above the name of Isaac N. Tubbs, J. P., I wrote the words 'Pay to Ottawa Co. Clerk/ so that the county clerk should have control of the same, as if it were a proper recognizance filed in the case.”

Upon the delivery of the certificate by the county clerk he indorsed the same. The certificate of deposit was by its attorney delivered to the plaintiff at Cleveland. It appears that Jacobs also indorsed the certificate. The plaintiff indorsed, and deposited it in its bank in Cleveland, and it went forward to defendant through various banks for collection, and was presented to the defendant for payment. Payment was refused and the certificate of deposit was protested for nonpayment. on August 21, 1917. It appeared on the trial that in the meantime the defendant, upon the demand of Misner, had paid the amount of the certificate to him, upon his furnishing evidence of the appearance and acquittal of Jacobs, although he (Misner) did not have possession of, or return the certificate in question.

There was evidence on behalf of plaintiff upon the trial that the money represented by the certificate of deposit belonged to, and was the money of the plaintiff and not of Jacobs.

It was the claim of the defendant that the money belonged to Jacobs, and that' he authorized Misner to draw the, money and deduct an amount due him for services, and that the defendant was justified in paying over the money to Misner, as the certificate showed that he deposited it, and it appeared that Jacobs had not made default.

The trial court submitted the case to the jury upon the following statement of the claims of the parties:-

“It is the claim of the plaintiff that it sent $500 here to secure the appearance of Mr. Jacobs for trial; that the money was deposited with the defendant bank and a certificate of deposit issued; that Mr. Jacobs appeared as required, and that afterwards the certificate of deposit was delivered to the plaintiff, and demand for return of the money .made upon the bank; that the bank refused to pay the money to the plaintiff, and thereupon the plaintiff commenced this suit to recover the sum of $500 and the interest thereon at 3 per cent, from the first day of May, 1917, and the protest fees on the certificate of deposit. * * *
“The defendant claims that the money was deposited by Charles E. Misner, and that the money belonged to Charles Jacobs, and that Mr. Jacobs appeared for trial as required, and that afterwards the money was paid to Charles E. Misner on his demand; that Mr. Jacobs authorized Mr. Misner to draw the money and deduct his fees from the same, and return the balance to him. Those are the claims of the parties.”

The jury were also charged as follows:

“In order to render a verdict for the plaintiff for the amount due on the aforesaid certificate of deposit and the protest fees, you must find by a preponderance of the evidence in this case that the plaintiff, the CohnGoodman Company, was the owner of this money represented by said certificate at the time this suit was commenced; that the said plaintiff, the Cohn-Goodman Company, sent to Charles P. Jacobs, through the Western Union Telegraph Company, $500, and that Mr. Jacobs received that money, and that the same was deposited in the People’s Savings Bank of Grand Haven, and the above certificate of deposit issued therefor; that the above certificate was indorsed by Isaac N. Tubbs, Orrie J. Sluitér, and Mr. Jacobs, and then went through the regular course of proceedings, and was finally received by the People’s Savings Bank of Grand Haven through the regular course of business, the payment refused thereon and protest made by said bank when the bank received said certificate of deposit for payment through the regular course of business aforesaid; and that the money represented by said certificate of deposit was not the money of Charles E. Misner, although it is represented by said certificate that Charles E. Misner deposited said money. And if you do so find by a preponderance of the evidence, then your verdict will be for the plaintiff for said $500 and interest thereon at 3 per cent, from May 1, 1917, to date, and the protest -fees as shown you by the evidence given herein. And if you fail to so find, your verdict will be for the defendant.”

The trial resulted in a verdict and judgment for the plaintiff for the amount of the certificate and protest fees. The defendant has brought the case here, and there are 43 assignments of error. These are not discussed by appellant, but the brief presents and discusses certain propositions, some of which appear to be covered by assignments of error.

It is first argued,that the instrument sued upon is not a negotiable instrument and is not 'subject to the incidents of negotiable paper. We do not think that question a controlling one in the case. It is at least a contract and contained the stipulation that it was payable “on the return of this certificate properly indorsed.” The title to it would pass by assignment, and the assignee could recover in a suit thereon to the same extent that his assignor could. First National Bank v. Carson, 60 Mich. 432.

In order to . reach the conclusion which they did, the jury must have found under their instructions that the money represented by the certificate belonged to the plaintiff. The defendant saw fit to pay over to Misner the money represented by this paper, and without requiring its return or surrender duly indorsed, and in doing so it acted at its peril. It was not required so to do by the terms of the instrument. It has been held:

“The condition that the certificate be surrendered at the time of its payment is no more than the law would require without a provision to that effect.” Zander v. Trust Co., 178 N. Y. 208 (70 N. E. 449, 102 Am. St. Rep. 492).

That language was used in speaking of a nonnegotiable instrument. There was no claim that it was a lost instrument. The party who, according to the finding of the jury, actually owned it, after it had performed its function, had possession of it, and presented it for payment properly indorsed. Payment was refused by defendant on the ground that it had paid the money to Misner because he had deposited it. Both officers of the defendant who testified stated that the certificate came back to the bank in the regular course of business for collection.

It is next urged that the indorsements did not show title to the certificate, in the plaintiff, the last indorsement being “Pay to the order of any bank or banker,” etc. We think there is no merit in this point, as the declaration stated that the plaintiff was the owner' of the certificate and there was evidence tending to support the allegation.

It is next urged that the defendant refunded the money deposited to Misner, the depositor, before it had any notice that it belonged to plaintiff. What we have already said covers this point. The . contract was to pay “on the return of this certificate properly indorsed.” The defendant instead of standing upon its contract rights, saw fit to pay money to Misner, because he had deposited it. The mere fact that he had deposited money payable to another, gave him no right to receive the money, nor the defendant any right to pay him, without the return of the instrument duly indorsed. It should be borne in mind that the instrument did not state that the defendant would pay the money to Misner if Jacobs did not make default. There was no contingency stated in which the certificate was to be payable to Misner. We think the defendant could, and should, have protected itself by not paying the money, until the certificate was returned properly indorsed. It had it in its power to protect itself, but seems to have negligently paid the money to Misner, and now claims that the plaintiff should suffer because of such course. In our opinion the defendant is in no position to complain.

It is next urged by appellant that certain special questions which it presented should have been submitted to the jury and answered. We have examined the questions, and, without setting them forth here, it is sufficient to say that none of them was controlling, and, within our decisions, there was no error in refusing to submit them.

The declaration set out the transaction leading up to, and the deposit of the money, and the giving of the certificate, which was also set forth in full. The defendant demanded a bill of particulars, which was furnished. It stated that the cause of action consisted of the certificate of deposit, a copy of which was set forth in the declaration, and the interest thereon and the protest fees. It is urged by appellant that the plaintiff was permitted to ignore its bill of particulars and prove many things not mentioned therein, and that it was error to permit the plaintiff to trace the money, but it was sought to show that the money was deposited, and to show the circumstances of the transaction. We think there is no merit in this contention. There was no effort made to change the terms of the certificate. Nobody denied that the certificate properly stated that Misner deposited the money, but it was sought to show that the money belonged to the plaintiff, and the certificate did not state that the money was Misner’s. The contract of the defendant did not provide for the payment of the money to Misner in any contingency.

Lastly, it is urged that the court erred in admitting the testimony by deposition of Albert A. Cohn, the president of the plaintiff company. The notice of the taking of this deposition did not state the name of the official before whom it was to be- taken, but stated that it would be taken “at the office of Nathan Loesser, Engineers’ Bldg., in the city of Cleveland, in the State of Ohio, a notary public,” etc. The deposition was taken and returned by one E. A. Reilander, a notary public. It appeared to have been taken at the Engineers’ building, city of Cleveland, and that Nathan Loesser appeared as the attorney for plaintiff, and no one appeared for the defendant. When this deposition was offered there was a motion by defendant’s counsel to strike out the deposition and withdraw it from the jury for the reason:

“That the name of the notary public before whom it was taken as appeared by the notice was Nathan Loesser, and that the notary who took and returned it was E. A. Reilander, another and different person, and that the notary before whom it was to be taken appears in the deposition as attorney for the plaintiff — that is, that the notice was given to take the deposition in this manner before the attorney for plaintiff as notary public, who was not a disinterested person, and who was attorney and counsel in the case.
“The Court: You had notice that this deposition was returned, didn’t you?
“Mr. Soule: Yes, your honor.
“The Court: You did not make any written objections to it after its return?
“Mr. Sbule: No.
“The Court: All right, your motion will be denied.
“Mr. Soule: We claim it is jurisdictional.”

Our attention is called to the provisions of sections 12494 and 12497, 3 Comp. Laws 1915. Objections to notices, and to the manner of taking, certifying and returning depositions, will be waived unless made within the statutory time, and noticed for hearing, as provided by Circuit Court Rule No. 37. We think that, no objection having been made within the ten days required by the statute last, cited, the same should be regarded as waived, and there was no error in the ruling here complained of. Simonds v. Cash, 136 Mich. 558, 564.

We are also of the opinion that, it being undisputed that the plaintiff furnished the money here in question, and there being no evidence that it belonged either to Jacobs or Misner, the trial court might properly have directed a verdict for the plaintiff, without receiving in evidence the deposition of Cohn. The assignments of error upon that subject therefore become unimportant. Thomas v. Bush, 200 Mich. 224, 227:

We find no reversible error in the record, and as none of the errors complained of have resulted in a miscarriage of justice, the judgment below is affirmed.

Ostrander, C. J., and Bird, Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.


author: Brooke, J.

text:
    SMITHMAN v. GRAY.
    1. Judgments — Foreign Judgments — Jurisdiction—Impeachment.
    In a suit upon a foreign judgment, that judgment may be impeached for lack of jurisdiction in the foreign court, irrespective of the recital of jurisdiction contained in the record of judgment.
    2. Same — Warrant of Attorney to Confess Judgment.
    A warrant of attorney to confess judgment contained in a promissory note must be strictly construed.
    3. Same — Assignments.
    Under the later decisions of the Pennsylvania courts, a warrant of attorney to confess judgment couched in unlimited terms may be exercised in favor of the assignee.
    4. Bills and Notes — Pleading—Payment—Issues.
    In an action upon a foreign judgment upon a note, where' defendant’s plea set up that at the time said note was taken up and paid, instead of having it canceled the payee caused it to be assigned to plaintiff, and during the trial offered to prove same, the question of payment was in issue.
    5. Same — Judgment—Defenses.
    In such action, the defense that the note was paid, and instead of being canceled was fraudulently assigned, is available.
    Error to Wayne; Gage, J., presiding.
    Submitted June 18, 1918.
    (Docket No. 18.)
    Decided September 28, 1918.
    Assumpsit by John B. Smithman against Edward Gray on a foreign judgment. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Lucking, Helfman, Lucking & Hanlon, for appellant.

      Robert M. Brownson (Frederick S. Baker, of counsel), for appellee.
    Plaintiff herein obtained a judgment against defendant in the sum of $9,346.54 upon a directed verdict. His action was based upon a Pennsylvania judgment for $8,390 dated July 3, 1915. The exemplification of record of said judgment shows that the same was procured in the Pennsylvania court upon the following note and warrant of attorney:
    “$6,000.00. Due Dec. 21, Oil City, Pa. Oct. 22, 1909.
    “Sixty days after date for value received I promise to pay to the order of the Riverside Engine Co. Six Thousand Dollars without defalcation, at the Citizens Banking Company of Oil City, Pennsylvania, and hereby empower any attorney of reóord to confess judgment against us for said sum, together with five per cent, attorney’s fees for collection and all costs, waiving all exemption laws and stay of execution; and if levy be made on real estate, do waive the right of inquisition, and agree to the condemnation thereof, with authority to sell the same on fi. fa. with release of all errors. We further agree to any extension of this note without notice.
    “60 Shares Stock. Edwaed Geay (Seal)
    ^Address
    “Riverside Engine Co. (Seal)”

      This paper bore the following indorsements:
    “Oil City, Pa., Oct. 22, 1909.
    “For value received, Riverside Engine Co. assign this note to the Citizens’ Banking Company, or order, and agree to pay the same if not paid at maturity by the maker hereby waiving exemption of property, the right of inquisition, demand, notice of nonpayment, protest, etc., and do hereby confess judgment for the amount of the within note, with interest, cost of suit and 5 per cent, for collection of same, and without stay of execution.
    “Riverside Engine Co.,
    “A. F. Smithman, Treas.”
    “Oil City, Pa., Jan. 21, 1910.
    “For value received the within note is hereby assigned without recourse to Jno. B. Smithman.
    “Citizens’ Banking Company,
    “Fred C. McGill, Cashier.”
    Under plea of general issue defendant gave notice of the following defenses:
    “1. The defendant will show that the note and obligation upon which judgment mentioned in plaintiff’s declaration was obtained, if signed by defendant, is a note payable to the Riverside Engine Company, executed by defendant and delivered to said payee for the accommodation of plaintiff and said payee and without payment of any consideration whatsoever to defendant therefor; that it was given by defendant and received by said payee upon the express understanding and condition that said Riverside Engine Company and plaintiff would protect defendant against the enforcement of any liability on the part of defendant to pay said note, and that whenever payment of same should be demanded by any holder thereof, it, the payee or said plaintiff, would take up, pay and cause said note and obligation to be canceled, of all of which facts and circumstances the plaintiff herein at and before his acquisition of said note had actual knowledge; that defendant was induced to sign same by the fraud of the plaintiff and said payee in representing to defendant that plaintiff and said payee then had no intention of enforcing payment of said note against defendant, which said representations were false to the knowledge of plaintiff and said payee in that they then intended to enforce payment of said note by defendant; that at the time said note was taken up and paid instead of having said note canceled said payee and plaintiff caused the same to be assigned and transferred to plaintiff herein and thereafter said plaintiff, without notice to defendant, and with knowledge that said note was no longer the valid obligation of defendant, fraudulently caused the judgment in plaintiff’s declaration mentioned to be procured; that more than six years elapsed after said note matured and before said judgment was obtained.
    “2. Defendant will show that he was not served with process in the suit in which the judgment mentioned in plaintiff’s declaration was obtained; that he did not appear in said suit in person or by attorney; that the alleged attorney who purported to appear for this defendant was not duly authorized so to appear; that at the time said suit was instituted and judgment recovered, he was not a resident of the State of Pennsylvania nor present within said State or within the jurisdiction of the court of common pleas of Crawford county; that said warrant of attorney in said note contained, if executed by defendant, is indefinite in terms and insufficient to authorize a confession of judgment against defendant, that the proceedings thereon in said court of common pleas did not comply with the law and statutes of Pennsylvania in that behalf provided, and that said court never acquired jurisdiction of the person of this defendant and that said purported judgment is void as against this defendant.
    “3. Defendant will show that the alleged judgment, more particularly described in the declaration heretofore filed in the above entitled cause deprives this defendant of life, liberty and property without due process of law and therefore violates the terms of the Fourteenth Amendment to the United States Constitution.”
    Plaintiff offered in evidence the exemplification of judgment which was received over the following objections interposed on behalf of the defendant:

      “1. That the power of attorney contained in the note is not negotiable.

      “2. On the ground that the note itself is not negotiable under the Pennsylvania laws.
    “3. On the ground that the power of attorney does not pass with the transfer of the note.
    “4. On the ground that there is no proof that the plaintiff, in Pennsylvania, was a bona fide holder.
    “5. On the ground that the warrant of attorney contained in the note sued upon is not a valid warrant of attorney in that it was too indefinite in its terms.
    “6. That the warrant of attorney contained in the note is not a valid warrant of attorney in that it does not state in whose favor the judgment might be entered, and particularly is invalid in this case because it does not authorize the entry of the judgment in favor of the assignees of the note in question.

      “7. That under the note and warrant of attorney there was no authority in the court of the State of Pennsylvania, and it did not have jurisdiction or right to enter up judgment in favor of the plaintiff in question because the warrant of attorney did not in terms run for the benefit of plaintiff.
    “8. On the ground that the attorney acting in the case was not the attorney of the defendant.
    “9. That it does not appear that the defendant was served or had notice of suit.
    ‘TO. On the ground that more than six years have elapsed since the maturity of the note.
    “11. That judgment taken is void on its face, and is void as contrary to due process of law under the Constitution of the United States, and the making and obtaining of that judgment was not with due process as guaranteed to the defendant by the United States Constitution and the amendments thereto.”
    The defendant was placed upon the stand by plaintiff, and, being examined under the statute, testified that he was a resident of Pennsylvania at the time the papet in question was executed. On cross-examination by his own counsel he was permitted to testify that he had never been served with any process or given any notice in the suit in connection with the note involved in the judgment. His testimony to the effect that he had never authorized any attorney to appear for him in any court in the State of Pennsylvania was excluded. Later in the course of the trial when plaintiff was on the stand and under examination by defendant’s counsel and after certain evidence had been excluded by the court the following occurred:

      “Mr. Helfman: Well, now let the record — will your honor let the record show that I offered to prove each and every one of the facts set forth in our special defenses, and I don’t want to go counter to your ruling.

      “The Court: Any objection to that course?

      “Mr. Brownson: Of his offer?

      “The Court: Yes.

      “Mr. Brownson: No, I cannot control that. He has offered to prove it, and I would make the same objection to each one of his offers.

      “The Court: All right.

      “Mr. Helfman: What I want to know is, shall I go through every one of these facts and try to prove that?

      “The Court: I think not. I think you have no right to prove them under the pleadings in the case.

      “Mr. Helfman: That is, we cannot prove any of the fads?

      “The Court: I think not. I think you are estopped by that.

      “Mr. Helfman: Your honor, will it be understood then that we have an objection?

      “The Court:- Sure.

      “Mr. Helfman: And exception to your honor’s exclusion of every fact — the offer of proof of the facts set up in my plea.

      “The Court: Yes, I think so, to the acts of the court in refusing to permit you what you offer to prove.

      “Mr. Helfman: It will be considered as if I had ■offered it and it had been excluded.

      “The Court: Yes, sir.”
    Defendant thereupon moved for a directed verdict substantially upon the same grounds advanced for the exclusion of the exemplification of judgment, which motion was denied and a verdict was directed in favor of the plaintiff for the amount of the’Pennsylvania judgment with interest.
   Brooke, J.

(after stating the facts). When a suit upon a foreign judgment is brought in the courts of this State that judgment may be impeached for lack of jurisdiction in the foreign court to render the same; irrespective of the recital of jurisdiction contained in the record of judgment. Marshall v. R. M. Owen & Co., 171 Mich. 232; Farrow v. Protective Ass’n, 178 Mich. 639. It is asserted by the appellee that the appellant is precluded from interposing such affirmative defenses as are raised by his plea, citing Mutual Fire Ins. Co. v. Furniture Co., 108 Mich. 170 (34 L. R. A. 694, 62 Am. St. Rep. 693); Dunlap v. Byers, 110 Mich. 109. There can be no doubt, however, that any defense which goes to the jurisdiction of the court pronouncing the foreign judgment may be urged collaterally.

In the case of the First Nat. Bank of Danville v. Cunningham, 48 Fed. 510, it is said:

“Assuming that the judgment was void for want of jurisdiction over the defendant, three remedies were open to him: He could make application to the court rendering the judgment to set it aside; or he could invoke the aid of a court of equity to restrain its enforcement and to vacate it (Landrum v. Farmer, 7 Bush. [Ky.] 46; Caruthers v. Harts field, 3 Yerg. [Tenn.] 366 [24 Am. Dec. 580]; Johnson v. Coleman, 23 Wis. 452 [99 Am. Dec. 193]; Connell v. Stelson, 33 Iowa, 147), or he could await suit thereon, and attack its invalidity collaterally. Until there was some adverse action against him on the question, he could not be estopped from taking each of the foregoing remedies. The abandonment of either or both of the first two modes of attack by leave of court, before adverse action on the question, would not estop or preclude him from adopting the third mode, by way of defense attack, as has been pursued in this case.”

It is settled law that a warrant of attorney to confess judgment contained in a promissory note must be strictly construed. First Nat. Bank of Danville v. Cunningham, supra; National Exchange Bank v. Wiley, 195 U. S. 257 (25 Sup. Ct. 70). So construed it is the contention of the appellant that the power of attorney here under consideration did not authorize confession of judgment in favor of a remote assignee of the note. In support of this proposition much reliance is placed upon the case of Overton v. Tyler, 3 Pa. St. 346 (45 Am. Dec. 645), where it is said:

“A warrant to confess judgment, not being a mercantile instrument, or a legitimate part of one, but a thing collateral, would not pass by indorsement or delivery to a subsequent holder; and a curious question would be, whether it would survive as an accessory separated from its principal, in the hands of the payee for the benefit of his transferee. ' I am unable to see how it could authorize him to enter up judgment, for the use of another, on a note with which he had parted.”

We are of opinion that under the later decisions of the Pennsylvania courts the decision announced in Overton v. Tyler, supra, has been repudiated and that a warrant of attorney couched in unlimited terms may be exercised in favor of the assignee, where, as in the case at bar, the note is made payable to the order of the payee and was assigned by the payee to the Citizens' Banking Co., or order, and later assigned by the banking company to the plaintiff. See Cooper v. Shaver, 101 Pa. St. 547; Vietor v. Johnson, 148 Pa. St. 583 (24 Atl. 173); Champlin v. Smith, 164 Pa. St. 481 (30 Atl. 447); Fritz v. Morten, 243 Pa. St. 187 (90 Atl. 58).

Defendant by his plea set up:

“That at the time said note was taken up and paid instead of having said note canceled said payee and plaintiff caused the same to be assigned and transferred to plaintiff herein and thereafter said plaintiff, without notice to defendant, and with knowledge that said note was no longer the valid obligation of defendant, fraudulently caused the judgment in plaintiff’s declaration mentioned to be procured; that more than six years elapsed after said note matured and before said judgment was obtained.”

—and in the course of the trial offered,

“to prove each and every one of the facts set forth in our special defenses.”

Fairly construed, we think the plea and this offer put in issue the question of payment. Assuming then that the note in question was paid and as charged in the plea instead of being canceled and destroyed was fraudulently assigned to the present holder thereof, can that defense be urged in the present suit upon the judgment. In the case of First Ntat. Bank of Danville v. Cunningham, supra, the action was in Kentucky on an Illinois judgment. The defense was that the note itself had been paid and its payment was fraudulently concealed from the Illinois court. The court said:

“It admits of no question that the warrants of attorney attached to the several notes sued on in the Illinois court were only made to secure the payment of such notes; that they were ‘irrevocable’ only while the notes remained unpaid; and that, upon the payment and discharge of said notes, the authority conferred by said warrants of attorney thereby ceased and terminated, both in fact and law, especially as against a holder of the notes who knew the fact that such notes were satisfied and discharged. No other construction can properly be placed upon said warrants of attorney, which, in dispensing with notice and all opportunity to be heard by the makers thereof, the courts treat with little favor — interpret strictly — and require to be followed to the letter of the powers conferred.”

See, also, National Exchange Bank v. Wiley, supra, at page 268.

It appears from the affidavit of the defendant filed in support of a motion for a new trial that in 1911 the Riverside Engine Co., the payee of the note in question, was consolidated with another business owned by one A. A. Holbeck under the name of the Holbeck-Riverside Gas Power Company and it is asserted that the new company took over all the assets and assumed all the liabilities of the Riverside Engine Co. It is further asserted in said affidavit that plaintiff told defendant that all the obligations of the Riverside Engine Company on which defendant was liable had been fully paid and that'there were no outstanding claims of any kind against defendant. Under the authorities cited we are of opinion that the court should have permitted defendant, if able, to show payment of the note and if such payment was shown beyond question to have directed a verdict in favor of the defendant.

Judgment is reversed and a new trial ordered.

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


author: Steere, J.

text:
    SMITHMAN v. GRAY.
    This case is ruled by Smithman v. Gray, ante, 317.
    Error to Wayne; Gage, J., presiding.
    Submitted June 18, 1918.
    (Docket No. 17.)
    Decided September 28, 1918.
    Assumpsit by Howard' H. Smithman against Edward Gray on a foreign judgment. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Lucking, Helfman, Lucking & Hwnlon, for appellant.

      Robert M. Brownson (Frederick S. Baker, of counsel) , for appellee.
   Steere, J.

This case is conceded both in the record and briefs of counsel to be identical in material facts and controlling questions with Smithman v. Gray, ante, 317. Each is an appeal from a judgment in the Wayne county circuit court upon directed verdict against defendant Edward Gray, based on a Pennsylvania judgment without personal service rendered by the court of common- pleas for Crawford county upon an assigned note, with power of attorney, given to the Riverside Engine Co. by Gray. Like defense is sought to be made and the same course was pursued in each case. The controlling issue in both cases is the right to question the jurisdiction of thé court rendering the foreign judgment. The opinion in that case disposes of this, and for the reasons there stated this judgment must be reversed and a new trial granted defendant.

Ostrander, C. J., and Bird, Moore, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


author: Bird, J.

text:
    WAGNER v. WAGNER.
    Divorce — Extreme Cruelty — Refusal to Cohabit — Desertion—■ Statutory Period.
    'Where the parties to divorce proceedings were less than 20 years of age, and after less than two months of married life the wife returned to her parents, refusing to live with the husband, his bill for divorce on the ground of extreme cruelty in refusing to cohabit was properly- denied; the case made being one of desertion, which has not continued for the statutory period.
    See notes in 14 L. R. A. 685; 39 L. R. A. (N. S.) 1118; L. R. A. 1915B, 772.
    Appeal from Kalamazoo; Weimer, J.
    Submitted June 6, 1918.
    (Docket No. 58.)
    Decided September 28, 1918.
    Bill by Donald Wagner against Lovina Wagner for a divorce. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Lincoln H. Titus, for plaintiff.
   Bird, J.

The parties to this action are young people. They were married at Kalamazoo on October 8, 1917, when less than 20 years of age. They lived together in that city from the time of their marriage until the first day of November, 1917, when defendant deserted the plaintiff and went to live with her relatives. Plaintiff made an effort to get her to return but she refused, stating at one time that Kalamazoo was too small a town for her, and on another occasion saying she would never live with him. Plaintiff, concluding that it would be of no avail to make a further effort to have her return, filed his bill for divorce through his next friend, charging her with extreme cruelty for her refusal to cohabit with him. Personal service was had upon the defendant but she made no defense and the bill was taken as confessed. The matter came on to be heard before the chancellor and after hearing the proofs he was of the opinion that the facts did not present a case within the definition of extreme cruelty, and therefore dismissed the bill.

Plaintiff has appealed to this court, insisting that the refusal of defendant to cohabit with him constitutes extreme cruelty within the holdings of this court, and especially within the holding of Case v. Case, 159 Mich. 491. The rule which prevails throughout most of the States is that a refusal to cohabit will not constitute extreme cruelty. There seems to be some exceptions, however, to this rule and our own cases are cited among the exceptions. An examination of the Michigan cases, however, will show that it is only after the refusal to cohabit has been persisted in for some considerable time that it will constitute extreme cruelty or when such refusal has been aggravated by other acts amounting to cruelty. Case v. Case, supra; Campbell v. Campbell, 149 Mich. 147 (119 Am. St. Rep. 660); Whitaker v. Whitaker, 111 Mich. 202; Menzer v. Menzer, 83 Mich. 319 (21 Am. St. Rep. 605); Donaldson v. Donaldson, 134 Mich. 291. See 9 R. C. L. p. 350.

The case of Murnan v. Murnan, 128 Mich. 680, is evidence that this court never intended to lay down a rule that a mere refusal to cohabit would amount to extreme cruelty. In this case the failure to cohabit was the only act complained of and it had been persisted in for ten months. It was insisted in this court that the case of Whitaker v. Whitaker, supra, justified the granting of a decree therein. In response to this contention it was said:

“The opinion in Whitaker v. Whitaker is a brief one and does not undertake to set out the facts disclosed by the record. In that case the defendant, during the entire period of her married life, refused to cohabit with her husband. She insisted upon having all the privileges of a new relation without assuming its duties. No such case is here shown. We think the circuit judge properly dismissed the bill of complaint.”

While no rule has been laid down by this court, how long the refusal to cohabit must be persisted in before it becomes extreme cruelty, the cases in which the principle has been applied are cases where the failure to cohabit has been persisted in for a long period of time and usually in cases where other cruelties were alleged and proven. In the instant case the parties lived together less than two months. No other cruelty is alleged. To hold that plaintiff is entitled to a decree on the ground of extreme cruelty would be doing violence to the case of Murnan v. Murnan, The case was rightly decided by the chancellor.

The decree must be affirmed.

Fellows, J., concurred with Bird, J.

Ostrander, C. J. I think the case made is one of desertion which has not continued for the statute period. I therefore agree to affirmance of the decree.

Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred with Ostrander, C. J.


author: Kuhn, J.

text:
    ATTORNEY GENERAL, ex rel. COMMON COUNCIL OF THE CITY OF DETROIT, v. MARX.
    1. Mandamus — Quo Warranto — Title to Office — Proper Remedy —Review.
    On certiorari to review mandamus proceedings to compel the mayor and board of education of the city of Detroit to fill alleged vacancies on the latter board, the Supreme Court will decide the questions presented, which are of great public interest, they having been fully briefed and argued, although quo warranto and not mandamus is the usual and proper remedy.
    2. Same.
    The mere fact that in mandamus proceedings the question of title to office is incidentally involved will not necessarily render that remedy an improper one.
    3. Schools and School Districts — Cities—Single School District — Statutes—Construction.
    Act No. 251, Pub. Acts 1913 (2 Comp. Laws 1915, § 5867 et seg.), providing “that the board of education of any city having a population of 250,000 which comprises a single school district shall consist of seven school inspectors,” applies to the city of Detroit; “single” signifying “principal” or “dominating” and not one; and “comprises” being a synonym of “embrace”; although the city in its rapid growth from time to time enlarged its territorial limits by taking in territory which did not immediately go into the school district, and also territory was taken into the school district which was not within the limits of the city.
    4. Statutes — Construction—Injustice.
    A statute should not be given a construction which would create hardship and injustice if it can be avoided.
    Certiorari to Wayne; Mandell, Williams, and Gil-day, JJ.
    Submitted June 11,1918.
    (Calendar No. 28,-409.)
    Decided September 28, 1918.
    Mandamus by the Attorney General, on the relation of the common council of the city of Detroit, to compel Oscar B. Marx, mayor of the city of Detroit, and the board of education of the city of Detroit, to fill alleged vacancies on the board of education. From an order denying the writ, plaintiff brings certiorari.
    Affirmed.

      Waller C. McNiel, for appellant.

      Donnelly, Hally, Lyster & Munro (Divie B. Duffield and Edmund Atkinson, of counsel), for appellees.
   Kuhn, J.

There is no public activity which more intimately affects the welfare of the community than that of its schools and means of education. As in all the communities of our State, the citizens of the city of Detroit have been keenly alive to the necessity of safeguarding and improving the education of their children. As a result, after years of agitation and discussion, a law providing for the present small school board to control and dominate educational matters was adopted. It is imperatively necessary, in order that this work can be carried on, that the legal status of this board be finally established. If questions concerning the right of its members to hold office can be urged, it is obvious that it becomes impossible for them to raise the necessary funds by bonding or otherwise to carry on this most important public service. In this proceeding it is urged that the present seven school inspectors, elected according to the provisions of said Act No. 251, Public Acts of 1913 (2 Comp. Laws 1915, § 5887 et seq.), were and are mere usurpers and their acts are absolutely null and void ab initio. In my opinion this situation presents a question of such great public importance that this court should finally decide the question presented upon the record now before us and finally fix the legal status of this board as to their right to hold office. It is true that proceedings in quo warranto might

have been instituted and that it has been held that mandamus is not the usual and proper remedy. This court has, however, at times, under similar conditions, waived the question of practice and has decided the questions presented when they have been fully briefed and argued, as has been done in this case. This, I think, we should now do. See Lawrence v. Hanley, 84 Mich. 399; Lichtig v. Saginaw Circuit Judge, 180 Mich. 667. Moreover, in this proceeding the principal contention was not a contention for title to office, except as that contention is incidental to the controversy that has arisen. On one side it is contended that the act creating the seven-member school board had no application to Detroit, because Detroit is not a single school district. On the other side it was contended that the act did have application to Detroit because, within the meaning of the act, Detroit was a single school district. There is authority in this State for the proposition that the mere fact that the application for a writ of mandamus incidentally involves the question of title to office, will not necessarily render the remedy

an improper one. See People, ex rel. Mead, v. Treasurer of Ingham Co., 36 Mich. 416; Smith v. Eaton County Sup’rs, 56 Mich. 217; Ketcham v. Wagner, 90 Mich. 271; Huntley v. Finley, 1180 McGrath’s Mandamus Cases; Wayne County Road Com’rs v. Board of Auditors, 148 Mich. 255.

The judges who heard the matter in the court below were of the opinion that it is now too late to question the validity of the legislation, as in their opinion the questions here raised are foreclosed by the decision of this court in Burton v. Koch, 184 Mich. 250, and two decisions of the circuit court, which were accepted by the community at large as settled law. In the case of Burton v. Koch, supra, in the majority opinion sustaining the validity of this act, it was said with reference to the act:

“The expressed purpose is that, in districts co-extensive with a city having a population of 250,000, or more, the board of education shall consist of seven members elected at large by the electors of the whole district qualified to vote for school inspectors.”

Now it is urged that at the time the question of whether or not said Act No. 251, Public Acts of 1913, should become effective in said school district of Detroit was submitted on November 7,1916, the said city of Detroit did not comprise a single school district and (in the language of Burton v. Koch, supra) said school district of Detroit was hot co-extensive with the said city of Detroit. This is based upon the fact that as the city in its rapid growth from time to time enlarged its territorial limits, it took in limited territories which did not immediately go into the school district, and also, as the school district was enlarged, very limited territory was also taken into the district which was not within the territorial limits of the city of Detroit.

The first section of the act in question reads as follows:

“The board of education of any city having a population of two hundred fifty thousand or over which comprises a single school district shall consist of seven school inspectors who shall be elected at large by the electors of the whole city qualified to vote for school inspectors in such municipality.” * * *

The contention here urged by the plaintiff is that it was the purpose of the legislature in passing the act in question to make it apply only to cities haying a population of 250,000 or over, wherein the board of education exercises jurisdiction in territory that was co-extensive and coterminous with the principal municipality. While such a construction of the legislation is possible, it is not in my opinion the natural construction which the words necessarily require. I agree with the contention of counsel for the defendants that the word “single,” as used in the act, should be held to signify “principal” or “dominating” and not “one.” Plaintiff further contends that the word “comprises” means mutually inclusive and exclusive. I do not think it should be held to so mean, as in the ordinary meaning of the word it is held to be a synonym of the word “embrace.” De Nobili v. Scanda, 198 Fed. 341. The city of Detroit has always had one dominating school district and at no time have there ever been two complete school districts within its borders. There have been only parts of other school districts in the outlying sections. It has comprised at all times a single school district. These outlying portions of districts have come in as the territorial limits have been expanded, and have been gradually brought into the school district as the conditions with reference to the territorial limits of the municipality and the school district were gradually adjusted in accordance with the provisions of law. The construction which the plaintiff asks for would create a hardship and injustice, which, under the rules of construction, should not be given to a statute if it can be avoided. In 2 Lewis’ Sutherland Statutory. Construction (2d Ed.), § 490, it is said:

“Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship or injustice; to favor public convenience, and to oppose all prejudice to public interests.”

All the other questions, in my opinion, as to the validity of the legislation are finally determined by our decision in Burton v. Koch, supra.

For these reasons I think that the order denying the writ should be affirmed.

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


text:
    LIVESAY v. EAST SIDE CREAMERY CO.
    1. Principal and Agent — Statements of Agent — Admissions— Witnesses.
    While it is not competent to show statements and admissions of an agent to establish his agency, he may testify ‘to the fact of his agency; he being as competent upon that question as the principal would be.
    2. Same — Evidence—Sufficiency.
    Evidence, although conflicting, held, sufficient to sustain the finding of the trial court that agency was established.
    3. Same — New Trial — Great Weight of Evidence.

      Held, that the verdict was not against the weight of the evidence.
    Error to Lenawee; Hart, J.
    Submitted January 30, 1918.
    (Docket No. 70.)
    Decided October 7, 1918.
    Assumpsit by Frank M. Livesay against the East Side Creamery Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Edward D. Devine, for appellant.

      Herbert R. Clark and Herir y I. Bourns, for appellee.
   Bird, J.

From a finding of facts by the trial court it appears that for several months prior to September 15, 1915, defendant purchased milk from one Guy R. Skidmore, of Jasper, who in turn purchased it from the farmers in that vicinity. Some disagreement arose between Skidmore and the farmers in September, 1915, and it looked as though they, or some of them, would refuse to make further deliveries to him. This coming to the attention of defendant, Mr. Paul Roggebamb, general manager of defendant, went to the Jasper creamery, where Skidmore had been receiving the milk, and arranged with George Delano and Frank Skinner, who were in charge of the creamery, to say to the farmers that if they would continue to deliver the milk to the Jasper creamery the defend-' ant would pay them direct for all milk delivered after September 15th, at the rate of $1.30 per hundred. In pursuance of this arrangement Delano and Skinner conveyed the information to the farmers and as a result thereof they continued to deliver their milk at the Jasper creamery and Delano and Skinner in turn shipped the same to defendant. After milk had been delivered under this arrangement amounting to nearly $1,000 demand was made for payment. Defendant refused to pay, claiming that it had purchased the milk from Skidmore and paid him for it. Plaintiff thereupon, on behalf of himself and as assignee of other farmers who delivered milk, brought this suit to recover the amount due. A trial was had before •the court without a jury and resulted in a judgment for plaintiff in the sum of $943.53. Exceptions to the conclusions of law and fact were duly filed by defendant.

Counsel contends that the trial court was in error in finding that a contract was made between defendant and plaintiff. The testimony of Delano and Skinner is direct and positive that such an agreement was made with the farmers through them. That after the 15th of September they received the milk from the farmers and forwarded it to defendant. The fact of delivery was corroborated by Mr. William Bradish, the station agent of the Detroit, Toledo & Ironton Railway Company at Madison. It is true that Mr. Roggebamb denied that he made the arrangement but does not deny that defendant received the milk. It is also claimed that Skidmore was paid for the milk under its contract with him. This appears to be denied by Skidmore. The testimony on this phase of the case was in conflict and we think fully sustains the finding of the trial court.

But counsel says there was no competent proof that Roggebamb had authority to bind defendant to such an agreement, and the contention is made that Roggebamb’s testimony to the effect that he had authority as general manager to purchase milk for defendant was incompetent. No rule of evidence was violated by permitting him to testify that he was the general manager of defendant, and as such officer had the authority to, and did, purchase milk for defendant. The case of Logan v. Agricultural Society, 156 Mich. 537, and other similar cases are cited to the effect that agency cannot be proved by the declaration of the agent. This is a well recognized rule, but it does not apply to this situation. It was not competent to show statements and admissions of Roggebamb to establish his agency, but because that is true it does not follow that Roggebamb himself may not testify to the fact of his agency. He is as competent a witness upon that question as his principal would have been. 31 Cyc. p. 1651; 1 Mechem on Agency (2d Ed.), § 292; Cleveland Co-operative Stove Co. v. Mallery, 111 Mich. 43; Spears v. Black, 190 Mich. 693.

It is also contended that the agency of Delano and Skinner is not made to appear by competent evidence. It appears that Roggebamb had the authority to make the arrangement with them, and it appears from their testimony that he did make the arrangement. This would justify the conclusion reached by the trial court that Delano and Skinner were the agents of defendant.

Witnesses Melner, Cross and Alcock, farmers with whom Delano and Skinner made the arrangements to continue bringing their milk in pursuance of the instructions of Roggebamb, were permitted to testify to the fact that the arrangement was made with them. This was competent as showing that Roggebamb’s instructions were carried out by Delano and Skinner and that the witnesses relied upon the defendant’s promise to pay them for their milk.

The point is raised that the verdict is against the weight of the evidence. We cannot agree with this contention. The testimony which was offered to establish the making of the contract and the authority of those who made it was very persuasive and amply supports the conclusion reached by the trial court.

The judgment is affirmed.

Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred. Ostrander, C. J-., and Kuhn, J., did not sit.


text:
    CLUGSTON v. ROGERS.
    1. Statutes — Amendments—Pbocedube.
    In so far as a new statute' merely provides for changes in the mode of procedure, it will not invalidate steps taken before it goes into effect, but will apply to all proceedings taken thereafter.
    '2. Taxation — Redemption—Notice—Statute—Compliance.
    Where notice of right to reconveyance of lands sold for taxes within six months after service of notice complied with Act No. 236, Pub. Acts 1903, in force when the notice was placed in the sheriff’s hands for service, but before service Act No. 142, Pub. Acts 1905 (1 Comp. Laws 1915, § 4138), took effect, amending the former act by providing for reconveyance within six months after return of service of notice, and the notice by publication was not changed to conform to the amendatory act, the notice was insufficient.

      3. Same — Notice—Bona Fide Return — Statute.
    Evidence held, sufficient to sustain the conclusion of the court below that there was not such good faith effort on the part of the sheriff to make personal service on the persons entitled thereto as the law demands.
    4. Same — Void Tax Title — Right to Recover for Improvements.
    Where the tax title purchaser entered premises as a trespasser, he was not entitled to recover for improvements thereon, on failure of his title.
    5. Same — Right to Recover Taxes Paid.
    Neither could he recover on account of taxes paid during his illegal occupancy, where they were more than offset by the benefits he had received from the premises.
    Appeal from Alpena; Emerick, J.
    Submitted April 11, 1918.
    (Docket No. 67.)
    Decided October 7, 1918.
    Bill by Elizabeth P. Clugston and others against Austin L. Rogers to redeem from the sale of land delinquent for taxes. From a decree for plaintiffs, defendant appeals.
    Affirmed.

      Dayton W. Closser {I. S. Canfield, of counsel), for plaintiffs.

      O’Brien & Francis, for defendant.
   Bird, J.

Defendant Rogers purchased from the State on the 2d day of December, 1904, in 40-acre parcels, the north half (%) of the northeast quarter (*4), and the southwest quarter (%) of the northeast quarter (*4) of section ten (10), town twenty-nine (29) north, range six (6) east, Alpena county, for the taxes of 1890, 1891, 1894, 1896-1900; also a tax deed of the land above described as one parcel for taxes of 1892, also certificate of purchase for taxes of 1901, and tax receipts for taxes of 1902 and 1903 paid as condition of said purchase. The total amount paid for said purchase being $306.63.

It was conceded that the government chain of title was in plaintiffs. This chain of title shows that at the time defendant purchased the tax title, Edward K. Potter was the grantee in the last recorded deed in the regular chain of title of the north half of the northeast quarter, and that William Slee was the grantee in the last recorded deed in the regular chain of title of the southwest quarter of the northeast quarter.

On the 25th day of April, 1905, Rogers placed a notice of reconveyance in the hands of the sheriff of Alpena county for service. The sheriff retained the notice until July 1, 1905, when he made the following return:

“State of Michigan, ) “County of Alpena, j ss-
“I do hereby certify and return that I received the annexed notice of tax sale (Austin L. Rogers to estate of Edward K. Potter and estate of William Slee) on the 25th day of April, A. D. 1905, and that after careful inquiry I have been unable to ascertain the whereabouts or the postoffice address of the grantee hamed in the last recorded deed, or deeds, or the mortgagee named in all undischarged recorded mortgages, or the assignee of record of said mortgage of said premises, or of the heirs of said grantee or mortgagee or assignee, or whereabouts or the postoffice address of the executor, administrator, trustee or guardian of such grantee, mortgagee, oriassignee, or of any of the heirs-at-law of the said estate of Edward K. Potter or of the estate of William Slee.
“Dated, this first day of July, A. D. 1905.
“Anthony Peterson, “Sheriff.”

Service by publication followed and after the statutory period defendant took possession of the premises and has ever since been in the possession thereof.

Plaintiffs, in August, 1915, filed this suit to redeem said premises. At the hearing none of the deeds involved were questioned. The attack was made by plaintiffs upon the form of the notice of reconveyance and on the service óf the notice. The chancellor concluded that neither the form of the notice nor the service was legal, and a decree was made giving plaintiffs the right to repurchase upon payment of $628.26.

The form of the notice. The defendant placed the notice with the sheriff for service on April 25, 1905. The notice advised the persons addressed “that you are entitled to a reconveyance thereof at any time within six months after service upon you of this notice.” This was in compliance with Act No. 236 of the' Public Acts of 1903 then in force. While the sheriff was holding the notice for service, and on May 25, 1905, this part of the statutory notice was changed, by amendment (Act No. 142 of the Public Acts of 1905, 1 Comp. Laws 1915, § 4138) to read:

“That you are entitled to a reconveyance thereof at any time within six months after return of service of this notice.”

Notwithstanding this amendment no change was made in the notice for publication. It is claimed by plaintiffs that the failure to make the notice comply with the amendment invalidates it, citing Closser v. Remley, 195 Mich. 313. This case holds that a failure to incorporate into the notice the amended words renders it invalid. Defendant recognizes this but seeks to escape the effect of it by the fact that the notice was placed in the hands of the sheriff for service prior to the taking effect of the amendment. The amendment did not affect any substantial right of the defendant, neither did it deprive him of the existing remedy. It simply modified the mode of procedure. The rule in such cases is stated to be as follows:

. “In so far, however, as the new statute merely provides for changes in the mode of procedure, it will not invalidate steps taken before it goes into effect, but will apply to all proceedings taken thereafter.” 36 Cyc. p. 1216.

See, also, Union County Com’rs v. Greene, 40 Ohio St. 318; Moyne v. Huntington County Com’rs, 123 Ind. 132 (24 N. E. 80); Weller v. Wheelock, 155 Mich. 698.

This appears to be the general rule and we think it should be applied in this case. This amendment of the tax law had been in effect more than a month before the sheriff made his return and nearly two months before any attempt was made to make service by publication. Our conclusion on this point brings the case within the holding of Closser v. Remley, supra.

Considerable testimony was taken at the hearing bearing upon the good faith of the sheriff’s return. In holding that the return was not a good faith return the chancellor said:

“Another, and a most serious contention made by plaintiffs is that the sheriff did not make the careful inquiry as to the whereabouts and postoffice address of the persons entitled to notice which the law requires. True it is, there is no direct evidence of the efforts and inquiries actually made by the sheriff in his attempts to learn such matters, or that he made no such effort or inquiries at all. But it must be such facts may be proved by indirect evidence. Suppose a sheriff today'should return that he was unable to ascertain the whereabouts or postoffice address of Governor Sleeper, or of William T. Sleator, the mayor of the city of Alpena. Surely, the court, from the very prominence of certain individuals in a given community would be justified in finding as a fact that the officer had made no such careful, good faith inquiry as the law required.
“The holders of the last recorded deeds m the regular chains of titles of the lands involved in this case were Edward Kent Potter and William Slee. In 1905 both of these men were recently deceased, and the notice placed in the hands of the sheriff for service was directed to their respective estates. Mr. Potter was one of the most prominent of the pioneer citizens and business men of Alpena. For more than twenty-five years he was a joint owner and operator of a large steam saw mill, situate on the river at the head of Washington avenue, in that city, and resided in a home on that street that was, and still is,, a landmark of the town. Midway between the mill and home of Mr. Potter lived Christian Peterson, the father of the sheriff, Anthony Peterson, in a house at 912 Washington avenue, where the sheriff was born and always lived, until he moved into the county jail upon his election to the office of sheriff. The elder Peterson was an employee of Mr. Potter for years in this mill, and during the later years of the active business career of Mr. Potter while he carried on business, associated with his two sons, Charles E. and William H. Potter, 2d, plaintiffs in this case, under the firm name of E. K. Potter & Sons, the sheriff himself was an employee of this firm in this same mill. He grew up a playmate and schoolmate in the old fourth ward school with all the Potter children, the plaintiffs, in this case. After Mr. Potter’s death, his widow and his five children removed to Los Angeles, in the State of California, and his children reside there still. Two brothers of Mr. E. K. Potter, James J. and John D. Potter, continued to reside at, and carry on' one of the most extensive mercantile establishments in the city of Alpena, under the firm name of Potter Brothers. The location and residence of the plaintiffs after their removal to California and before was notorious in the city of Alpena and any inquiry at all made by Anthony Peterson would, if, indeed, he did not already know, have placed him in possession of full knowledge of the whereabouts and postoffice address of each of the Potter children, the plaintiffs in this case.
“And William Slee was another prominent citizen and business man of Alpena. In 1905 his estate was being administered in the probate court of Alpena county. His widow, Clara Matilda Slee, herself a well known resident of Alpena, was administratrix of his estate and the guardian of his minor children, by the order and decree of the same court wherein all these matters were of record. The notice itself was directed to the estate of William Slee and was ample notice to the sheriff that he would find just what he needed to know in the probate records of Alpena county. I think it can be surely said that any inquiry, however slight, would also have given the sheriff complete knowledge as to the heirs and personal representatives of William Slee.
“Therefore, there was not the earnest effort made in good faith on the part of the sheriff to give plaintiffs actual notice of defendant’s tax titles, which the law demands.”

We have read the testimony bearing on this question and we fully concur in the conclusion reached by the chancellor. It may be easier to have the sheriff make a return on the notice and get service by publication where the heirs are numerous and badly scattered, but that course is not a compliance with the statute, neither is it the exercise of the diligence and good faith which the law demands. Winters v. Cook, 140 Mich. 483.

It is argued by defendant that if it shall be held that he is not entitled to possession of the premises he is entitled to recover for the improvements which he has made thereon. The chancellor overruled this contention, holding that as Rogers had entered the premises as a trespasser he was not entitled to recover for such improvements, citing Corrigan v. Hinkley, 125 Mich. 125; Griffin v. Kennedy, 148 Mich. 583; Cook Land, etc., Co. v. McDonald, 155 Mich. 175; Morrison v. Semer, 164 Mich. 208; White v. Dunsmore, 167 Mich. 542; Powell v. Pierce, 168 Mich. 427; Closser v. McBride, 182 Mich. 594.

The chancellor was also of the opinion that no recovery should be had on account of taxes paid by him during his illegal occupancy, expressing the opinion that they were more than offset by the benefits he had received from the premises.

We are of the opinion that the chancellor took the proper view of the questions involved. The decree will be affirmed, with costs to the plaintiffs.

Ostrander, C. J., and Moore, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.