text:
    WALLACE v. KELLY.
    1. Evidence — Parol Evidence — Written Contract — Varying.
    Testimony respecting oral conversations had before the execution of a written contract is inadmissible to vary its terms.
    2. Equity — Forfeitures—Enforcement.
    Where the purchaser of standing timber has been given extended time to remove it, his assignee will not be enjoined from cutting on the ground that the time for removal has expired, since equity will not aid to enforce a forfeiture.
    3. ,Vendor and Purchaser — Standing Timber — Time to Remove —Forfeiture—Waiver—Sufficiency—Statute of Frauds.
    Though standing timber, being part of the land, can be sold only by a writing signed by the owner (section 9509, 3 Comp. Laws), the right to forfeit timber thus sold, for failure to remove it within the time prescribed by the contract, may be waived by parol.
    4. Same — Extension of Time — Operation as Waiver.
    An extension of the time to remove standing timber provided by the contract of sale, in consideration of the payment of the taxes on the timber, operates as a waiver of the right to forfeit the timber for nonremoval.
    Appeal from Missaukee; Chittenden, J.
    Submitted October 18, 1906.
    (Docket No. 100.)
    Decided May 18, 1907.
    Bill by William Wallace against Darwin B. Kelly to restrain the removal of certain timber. Defendant filed an answer in the nature of a cross-bill to quiet title to said timber. From a decree dismissing the bill, and granting the prayer of the cross-bill, complainant appeals.
    Affirmed.

      E. E. Sawyer, for complainant.

      F. O. Gaffney, for defendant.
   Carpenter, J.

December 20, 1899, complainant entered into a written contract whereby, for the consideration of $750 then paid, he sold “to the Cromwell Lumber Company the maple timber * * * that will make logs down to eleven inches in diameter ” then standing on certain described lands. It was further agreed that “all timber unsuitable for merchantable saw logs * * * [should] be left,” and “the Cromwell Lumber Company * * * [was] given till the spring of 1902 to remove said timber.” Before that time expired complainant and said Cromwell Lumber Company orally agreed that the latter might have further time to remove said timber if it would pay the taxes thereon. In compliance with this agreement, the timber was left standing and said Cromwell Lumber Company paid said taxes during the years 1902, 1903, and 1904. In 1904 the Cromwell Lumber Company sold its interest in said standing timber to defendant, and he soon thereafter commenced cutting and removing the same. In September, 1905, complainant notified defendant to remove no more timber from said lands, and shortly thereafter he commenced this suit, seeking an injunction preventing said defendant from cutting or removing said timber. Defendant filed an answer in the nature of a cross-bill, praying for an affirmative relief. Upon the hearing testimony was taken in open court and a decree was rendered dismissing complainant’s bill and giving defendant “the right to enter upon said lands and cut and remove the timber within a reasonable time.” From this decree, complainant appeals.

That part of the decree dismissing complainant’s bill is clearly correct, for complainant did not make a case entitling him to relief. He did not make a case, as he contends, upon the ground that he was fraudulently induced to enter into the contract of sale, because his testimony fails to prove fraud. He did not make a case upon the ground alleged in his bill, that defendant was threatening to remove timber not embraced in the contract, for the testimony proves that there was no such threat nor intent. Nor was he entitled to relief, as he contends, upon the ground that defendant was removing more timber than was specified in a verbal conversation before the written contract was made, for the testimony respecting that oral. conversation was incompetent, and affords no basis whatever for relief. He was not entitled to relief upon the ground that the time to remove the timber had expired. The principle that equity will not aid to enforce forfeitures forbids. Hodges v. Buell, 134 Mich. 162.

The serious question in the case arises from the relief granted defendant on his cross-bill. Did the oral agreement to extend the time for removing this timber operate as a waiver of complainant’s right to forfeit the same ? Complainant insists that it did not. He insists that, as standing timber is a part of the land and cannot be sold except by a writing signed by the owner (section 9509, 3 Comp. Laws), the right to forfeit said timber can be waived only by a writing signed by the owner. It is undoubtedly true that one can sell standing timber only by a conveyance in writing (Russell v. Myers, 32 Mich. 522), but I think it also true that his right to forfeit the same for nonremoval may be legally waived by parol. This latter rule is, I think, to be deduced from Green v. Bennett, 23 Mich. 464. There this court held that the condition that the vendee of standing wood and timber should remove them within a stated time—

“Was one which the vendor might waive; and, by claiming and receiving from the purchaser the damages for the failure to remove them in time, he clearly waived the condition, and left the wood and timber as the property of the purchaser, to be removed within a reasonable time.”

See, also, opinion of Chief Justice Campbell in Williams v. Flood, 63 Mich. 487.

I think, therefore, that complainant waived the right to forfeit the timber for nonremoval, and that the decree complained of was properly made. That decree is affirmed.

McAlvat, C. J., and Grant, Blair, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    MILLER v. BANK OF BELLEVILLE.
    1. Waters and Watercourses— Milldams — Flowage — Prescriptive Rights — Extent.
    The prescriptive right of flowage of land arising from the maintenance of a milldam does not give the right to maintain in its place a more perfect dam of the same height offering greater obstruction to the flow of water.
    2. Same — Injunction—Evidence—Sueeicienoy.
    On a bill to enjoin the maintenance of a milldam above a certain height, evidence examined, and held, to establish that defendant’s dam is a higher and more perfect structure than previous dams upon which its prescriptive rights of flowage are founded, and that as a result the water in the river where the lands of complainants abut upon "the same is caused to stand upon a higher level than formerly.
    3. Same — Laches.
    The right of landowners to relief by way of injunction against the maintenance of a milldam above a certain height, held, not barred 'by laches, in view of the pendency and dismissal of a suit by the township on the agreement of the defendant to satisfy the landowners, the steps taken by the defendant to relieve conditions, and the absence of evidence to indicate that complainants had reason to apprehend that tho dam complained of would be so constructed as to affect their lands in any other or different way than former dams had done.
    Appeal from Wayne; Donovan, J.
    Submitted January 10, 1907.
    (Docket No. 15.)
    Decided May 18, 1907.
    Bill by Halen F. Miller and others against the Bank of Belleville and another to restrain the flooding of certain lands. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      Moore & Moore (Samuel W. Burroughs, of counsel), for complainants.

      E. P. Allen (Haug & Yerkes, of counsel), for defendant bank.
   Ostrander, J.

The bill is filed by a number of landowners to restrain defendant from flooding lands. The specific relief asked for is the lowering of a dam maintained by defendant Bank of Belleville 13 inches, the maintenance and operation in said dam of suitable flood gates. The dam is built in the Huron river on section 21, in Yan Burén township, Wayne county. The right of defendant to maintain the dam is not denied, nor the right to flow such lands and to such extent as they were flooded by a dam built about the year 1839, and known as the “Bell Dam.” Defendant claims no other or greater rights than were gained by prescription by the owners of the Bell dam, and denies that its dam does, in fact, flood more land than did the Bell dam. During its existence portions of the Bell dam were repeatedly washed away, and in 1894 a new dam, called Jbhe “Pelant dam,” was built some 100 feet above the site of the Bell dam. In the year 1900 the Pelant dam was, in turn, washed away, and the present dam, called the “ Coomer dam,” was constructed 70 rods below the site of the original or Bell dam. The Coomer dam was completed in November, 1900. In October, 1901, Coomer began the erection of a new mill, to be operated by the water power, and the mill was completed and in operation in February, 1902. The cost of the mill and machinery was a sum between $10,000 and $13,000.

Since the construction of the Coomer dam, the water above the dam has been uniformly higher than it was before, and the lands of complainants have been, to some extent, damaged by the higher water. This was the finding of the court below, and is one with which counsel for defendant agree.' But the court was of opinion that the Coomer dam did not cause the high water, and that it was due to the fact that there had been a larger rainfall and greater volume of water in the river since the year 1901 than there had been in previous years. The records of observations of the rainfall at various nearby points which were introduced irn evidence are, as would be expected, not in precise agreement. Those for Ann Arbor and Ypsilanti go back, some of them, for less than 20 years. The record of the United States Weather Bureau of the rainfall at Detroit from 1871 to 1904, .both years inclusive, shows a mean annual fall of 32.13 inches. The falls for the years 1900 to 1904, inclusive, are 31.45, 28.78, 35.53, 35.88, 28.32 inches. For these years the observations taken at the Detroit observatory at the University of Michigan are 26.17, 26.09, 41.50, 35.63, 28.21 inches, showing the effect in 1902 o£ a rain which perceptibly increased the volume of water in the Huron river, causing a portion of the abutment of the Coomer dam to be washed away. The observations at the University show rainfall for years 1895 to 1899, both years included, of 25.89, 32.27, 32.49, 31.63, 24.75 inches. The difference of some 10£ inches in these two five-year periods is found in the months of June and July, 1902, in both of which there was an excessive local rainfall. A careful study of those records and of the testimony of the witnesses leads to the conclusion that the rainfall indicated does not account for the increased height of water above the defendant’s dam. (

There is no evidence tending to prove that the Bell or the Pelant dams raised the water to its present height. Indeed, it is not contended that they did. The observation of the landowners and others, of the effect of the water upon the lands before and since the year 1901, the fact that tile drains and ditches which before that year performed their offices have since been covered or filled with water, and that this has not been and is not a mere temporary condition, strongly support the conclusion that the Coomer dam obstructs the flow of water past these lands to an extent unknown while either of the other dams was in existence. Defendant offered evidence to support the contention that it had, in fact, a dam no higher than the Bell dam. If that fact were established, it would not follow necessarily that it did not offer greater obstruction to the flow of water. Indeed, it is established that the Bell dam was very infirm, leaked badly, and was repaired annually. Turner v. Hart, 71 Mich. 128, 137, 138.

The present dam is some 70 rods farther down the stream, where there is a narrower channel. The fall in the bed of the river between these two points is not shown. There is some fall. There is positive testimony that the Coomer dam is some 13 inches higher than the Bell dam was, and equally positive testimony that its crest is little, if any, higher than that of the Bell dam. None of this testimony is convincing, unless we are able to find which one of two starting points for levels which were taken is shown to be the proper one. Various witnesses claim to have knowledge sufficient to enable them to tell where the top of the Bell dam was. These witnesses do not agree. It is shown that levels were taken from these (disagreeing) points to the Coomer dam, resulting in the demonstration that that dam is no higher (or that it is much higher) than the Bell dam was. It is clear that, if the crest of the Coomer dam is level with the crest of the Bell dam, the Coomer dam is higher than the Bell dam was. If, for example, the Coomer dam is built at a point two feet lower than the one where the Bell dam stood, and was built no higher than the Bell dam, its crest should be upon a level two feet below that of the crest of the Bell dam. We have read the record with care to discover the evidence upon which is based the assertion that these two dams were constructed of the same height. We do not find it. On the contrary, the testimony, other than that relating to the increased height of water, which seems to us to be most satisfactory upon this subject, leads to the conclusion that the Coomer dam is higher than the Bell dam was. We find this evidence in the testimony, meager as it is, of the actual measured height of these dams and the head of water. It is conceded that the Pelant dam was of the same height as the Bell dam. The evidence is, and it is not disputed, that the height of the Pelant dam was 5£ feet. The man who built the Pelant dam testified:

“The height of the water head was 5f feet in both the Bell and Pelant dams. I know because I took the level from the Bell dam when I built the Pelant. I mean by the head the crest.”

A measurement made December 9, 1902, by an engineer, showed, and no effort was made to dispute the fact, that the crest of the new dam above the apron is 6.45 feet. The same engineer, on the same date, found the head of water at the Coomer dam — from head water to tail water — 7.06 feet. A witness for defendant testified, and this is undisputed, that the apron of the Coomer dam was lli inches from top to bottom, and the posts, the upright pieces, which made the dam, were about 5 feet 10 inches long, the cap about 8 inches. If the ap'ron was entirely above the bottom of the river, we have a structure some 7 feet 5\ inches in height. Flash boards were used on the Bell dam. Assuming they were a foot in width, the actual height of both dam and flash board would not be equal to the height of the Coomer dam. There is other evidence, not here repeated, which supports the finding that the Coomer dam is, in fact, a higher and a more perfect structure, a greater obstruction to the flow of water, than was either the Bell or the Pelant dam, and that as a result the water in the river where the lands of complainants abut upon the same is caused to stand at a higher level than it used to stand. It would seem that the evidence of the precise height of these dams, and of the difference in elevation between the spot where the Bell and that where the Coomer dam was constructed, with specifications of the water which leaked through the old dams and flumes, should have been more certain. The evidence afforded preponderates in favor of the position of complainants. It is matter of common knowledge that lands may be damaged, even though not covered, by water which stands along them. We therefore necessarily ascribe some of the damage to complainants’ lands which is asserted to the obstruction of the water by defendant’s dam, and, as defendant asserts no right to maintain the water at its present height, and does not attempt to fix the point to which, by prescriptive right, it might lawfully flood the lands, relief should be given as prayed, unless there is some satisfactory reason for refusing it.

It is urged that complainants have been dilatory in making their complaint, for which reason the court should hold them estopped to ask that the dam be lowered. The facts are that in December, 1902, the township brought suit against the owners of the dam, and that this suit was dismissed upon an agreement of the owners to cut the dam down 10 inches on the west and 13 inches on the east end thereof in default of having, before a day named, purchased the right of flowage or otherwise satisfied landowners on the river. Said dam owners also agreed to indemnify the township for any loss or damage in consequence of setting back the water. If, before the day certain, the dam owners succeeded in satisfying said landowners, so as to allow the dam to remain at its present height, then the township was to raise its bridge, a few feet below which the dam was built, three feet, and the owners were to properly construct the roadway affected. This agreement was not carried out for the reason that the owners of the dam became, as they claim, convinced that the survey which showed their dam to be too high was erroneous. The bill in the present case was filed in April, 1905. The agreement referred to fixed July 15, 1904, as the limit of time allowed to secure the necessary right of flowage. The suit was not discontinued until November, 1904. Meantime, in 1903, as appears from correspondence between counsel, the owners had put a waste gate in the dam which they asserted would take care of the surplus water, and had secured estimates, or an estimate, of the expense of cutting down the dam. There were, then, proceedings pending and an existing agreement, of which, we assume, complainants and others in the township had knowledge; the possible and probable result being an accommodation. Under such circumstances, it would be an extreme application of the doctrine of estoppel by nonaction to deny relief to which complainants are otherwise entitled. In this respect, the present suit and Blake v. Cornwell, 65 Mich. 467, and Miller v. Cornwell, 71 Mich. 270, should be distinguished. There is here nothing to indicate that complainants had reason to apprehend that the new dam would be so constructed as to affect their lands in any other or different way than former dams had done. Nor does it appear that the effects now complained of would become immediately noticeable. In the year 1902 the great rainfall may have been held responsible for conditions then appearing. The action of the township authorities, if successful, would amend the condition. Defendant is not in the position of one giving notice of the intention to raise the water to an unwarranted height; and even now asserts that it is exercising no more than its prescriptive rights.

Some evidence was given of the cost of cutting down the dam, to prove that the expense will be small, and some evidence, also, of the resulting damage to the mill-owner in loss of power. The millowner has no right to profit out of the water at the expense of those upper proprietors whose lands abut upon the stream. Moreover, it does not appear that the mill cannot be operated to its capacity with the head of water which will be afforded with a dam 13 inches lower. On the other hand, it appears that several hundreds of acres of complainants’ lands are injuriously affected, with a large aggregate annual loss;

The decree below is reversed, and a decree will be entered in this court requiring the defendant Bank of Belleville to lower its dam 13 inches at the east side and 10 inches at the west side, the crest to be made level, within 90 days from the entry of said decree, unless counsel shall agree that for any reasons this time should be extended, from and after which time said defendant will be perpetually enjoined from maintaining its said dam at its present, or at any, height above the level thereof so fixed. Complainants will recover of said defendant the costs of both courts.

McAlvay, C. J., and Grant, Blair, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
      In re McNAMARA’S ESTATE. McNAMARA v. MICHIGAN TRUST CO.
    1.Executors and Administrators — Special Administrator— Right to Appeal.
    A special administrator has a right to appeal from the allowance of a claim against the estate without special authority from the probate court.
    2. Same — Claims Against Estate — Contract for Services— Construction — Question for Jury.
    A claim against the estate of a deceased person for services, based on an alleged oral contract, the testimony in support of which was all oral, stated that deceased agreed to pay claimant “well and liberally for all her services out of her estate at the time of her death, and that such allowance payment would be sufficient to keep claimant well during the balance of her life.” Held, that whether the agreement to pay “ well and liberally” was qualified by the statement that the amount would be sufficient to keep claimant well during the balance of her life, was a question for the jury.
    3. Limitation of Actions — Services—Contract for Life.
    Where services are performed under a contract to pay therefor out of the promisor’s estate, limitations do not begin to run against the claim until the promisor’s death.

      4. Wills — Contract to Bequeath — Conveyance Before Death —Part Performance.
    Where services are performed under a contract to pay therefor out of the promisor’s estate, a conveyance of property by the promisor to the promisee, upon nominal consideration, shortly before the promisor’s death, is prima facie payment pro tanto.
    5. Work and Labor — Amount Recoverable.
    Where claimant gave up the profession of school teaching to become the companion of her distant kinswoman, upon a promise to be paid well and liberally from her estate, and lived with her 18 years, the last five of which she was nurse as well as companion, an award by a jury of $25 a week for the whole period, in addition to property worth $5,000 conveyed before death, is excessive.
    Error to Kent; Perkins, J.
    Submitted January 11, 1907.
    (Docket No. 28.)
    Decided May 18, 1907.
    Mary McNamara presented a claim against the estate of Mary McNamara, deceased, for services rendered. The claim was allowed in part by the commissioners, and claimant appealed to the circuit court. There was judgment for claimant, and the Michigan Trust Company, special administrator, brings error.
    Reversed.

      Thomas P. Bradfield {Francis A. Stace and Knappen, Kleinhans & Knappen, of counsel), for appellant.

      Dwight D. Boot and W. H. Eastman, for appellee.
   Montgomery, J.

Claimant presented a claim against the estate of Mary McNamara, deceased, for services extending over the period intervening June, 1885, and February, 1904, under an alleged promise of compensation which the claim presented states in the following terms :

“If claimant would remain and care for and look after her [deceased] and personally care for her, attend the household duties and the other business matters of deceased, she, the said deceased, would pay the claimant well and liberally for all her services out of her estate at the time of her death, and that such allowance payment would be sufficient to keep claimant well during the balance of her life.”

The commissioners on claims allowed the claim at $13,500, with a proviso that all provisions made by deceased for claimant, either by will or conveyance or otherwise, be deducted. From this allowance claimant appealed to the circuit court. On a trial before the court with a jury the claimant recovered a verdict for $26,399.06. The contestant brings error.

Claimant has interposed a motion to dismiss the writ of error on the ground that a special administrator has no authority to appeal from a judgment of this nature without special authority from the probate court. The motion cannot prevail. It is the duty of the special administrator under his general appointment to conserve the estate, and this he cannot do effectually unless he is authorized to defend against unconscionable claims.

In Lothrop v. Conely, 39 Mich. 757, it was held that an appeal from the appointment of a general administrator' did not suspend the authority of commissioners on claims previously appointed. It was said:

“If there were no one to represent the estate before them, there might be a temporary suspension of action by them in the actual hearing and disposal of claims, because the estate is interested in such disposal; but a special administrator has for that purpose the same duty as a general administrator, and is bound to attend to the interests of the estate.”

If the special administrator has the duty to defend against the claim, he certainly has the right to follow the case to the circuit and obtain a review if desired. The other questions of practice so far as they have merit are met by an amended return of the circuit judge embodied in an amended record.

The contestant has discussed in its brief the errors relied upon under 16 heads. It is possible to eliminate some of these questions by a reference to the claims of the respective parties and the action of the jury. The claimant demanded (and so far as the voice of the jury controls) recovered very large compensation in addition to her board and clothing during her 18 years with decedent, under a claim that she had rendered services to her during all these years under an agreement to be well and liberally paid out of her estate.

The contestant claims, first, that under the claim as presented claimant was in any event limited to a recovery of such sum as “would be sufficient to keep her well during the balance of her life,” and that, as corollary to thiá, the claimant was not entitled to recover on the quantum meruit; second, that if entitled to recover under the quantum meruit claimant was limited to six years preceding the death of decedent; third, that, whatever the basis of compensation be, the claimant should be charged with the value of two houses and a lot deeded to her by decedent; fourth, that the verdict was grossly excessive; fifth, that the court erred in the instructions to the jury. A decision of the questions stated will sufficiently indicate the theory upon which a new trial may proceed if one is found necessary.

The first contention of contestant rests upon the postulate that the words above quoted from the claim filed by claimant in the probate court are a limitation on what precedes these words in the statement, i. e., that the agreement to pay claimant “ well and liberally for all her services ” was qualified by the additional statement that such payment would be sufficient to keep her during the balance of her life. We think the circuit judge rightly interpreted this pleading; and, the evidence of the contract being wholly oral, it was properly left to the jury to determine whether such contract was for full compensation in any event, together with a further assurance that such compensation would be sufficient in amount for claimant’s future support or whether it was intended that claimant was to be limited to a sum adequate for such support, although her services may have been worth more.

If the special contract was found by the jury to be a contract for full compensation out of decedent’s estate, it would follow that the actual value of such services was the measure, and that evidence of value was admissible. It also would follow from such finding by the jury that, as the demand was not due until the death of the employer, the statute of limitations would not commence to run until such decease. Rodgers v. Lamb’s Estate, 137 Mich. 244.

The third and fifth of contestant’s contentions may be considered together. A few months prior to her death decedent made a deed of the Sheldon street property, so-called, to claimant; and deposited the same in escrow to be delivered after her death. The consideration named was $1 and other good and valuable considerations. The actual value of the property is shown by the testimony at from $4,700 to $7,000. The claimant accepted, and is in possession of the property, receiving rents. The contestant claimed on the trial, and insists here, that the value of this property should be charged against the claimant. The circuit judge charged the jury as follows:

‘£ Ordinarily, when a debtor conveys property to a creditor and there is nothing in the transaction to show the contrary, there is a presumption of law arising that the conveyance is intended as payment, and not as a gift. But this is not a conclusive presumption. It may be overcome by the facts and circumstances of the case.
“The burden of proof as to the payment rested on the contestant here, the representative of the estate of Mary McNamara. The burden rests upon it to show by a fair preponderance of evidence that a payment was intended.
“ If you are satisfied by a fair preponderance of the evidence that this conveyance was given with the understanding that it should be received as part payment for services rendered, you will deduct the value of the property at the time' that the claimant took possession of it from the amount you may ascertain the claimant’s services to have been worth should you find for the claimant, and the .balance will represent the amount of your verdict.”

This instruction does not correctly state the law as applied to the facts of this case. The contract alleged and proved was a contract to compensate claimant for her services out of the estate of decedent. By the conveyance in question to become operative at the death of decedent a portion of her estate was set apart to claimant. It was a transfer in kind, and prima facie payment pro tanto. Breton v. Cope, 1 Peake N. P. 43; Stewart’s Estate, 15 Pa. Co. Ct. R. 380; Kelly v. Kelly’s Ex’rs, 6 Rand. (Va.) 176. The error in casting the burden upon the contestant was of vital importance, as there was but the barest scintilla of evidence to overcome this presumption, consisting of an alleged statement of decedent that she had made no payments, while the "presumption was supported by testimony of decedent’s declaration in claimant’s presence at the time the deed was executed.

As the case must be reversed on this ground, it is not necessary to discuss at great length the contestant’s fourth proposition. We deem it proper to say, however, that the court should not hesitate to intervene when it is manifest that a jury under the guise of allowing a claim undertakes to distribute an estate in accordance with their ideas of justice. Here we have a claimant who gave up the profession of teaching to become a companion of her distant kinswoman. She lived with her some 18 years, having her support in the meantime. During the last five or six years she was nurse- as well as companion. No one will question that she should have been liberally compensated, but when it is attempted to give her $25 a week for this whole period, in addition to $5,000 in property already provided, it is quite obvious that the result has been reached by other considerations than that of awarding compensation.

The judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Q-rant, Blair, and Ostrander, JJ., concurred.


author: Carpenter, J.

text:
    LYON v. IVES.
    Sales — Fraud—Rescission.
    This case, involving the right of a purchaser of goods to rescind the contract' for fraud, follows the case of Lyon v. Lindblad, 145 Mich. 588, presenting similar facts.
    Error to Berrien; Coolidge, J.
    Submitted February 13, 1907.
    (Docket No. 136.)
    Decided May 18, 1907.
    Assumpsit by Louis E. Lyon and Milbert F. Price, co-partners as the Lyon-Taylor Company, against Edwin B. Ives for goods sold and delivered. There was judgment for defendant, and plaintiffs bring error.
    Affirmed.

      Charles E. White, for appellants.

      N. H. Bacon, for appellee.
   Carpenter, J.

Plaintiffs ask us to reverse a judgment rendered in favor of defendant in the circuit court. We think it quite sufficient to say that the propositions of law upon which they rely were decided adversely to them in the case they brought — a case very similar to the one at bar — against Peter J. Lindblad, reported as. Lyon v. Lindblad, 145 Mich. 588.

Judgment affirmed.

McAlvay, C. J., and Grant, Blair, and Montgomery, JJ., concurred.


author: McAlvay, O. J.

text:
    ULMAN v. ULMAN.
    1. Divorce — Alimony—Lien—Foreclosure—Venue.
    Where a decree for alimony provides that it shall be a lien on real estate situated in a county other than that in which the suit is pending, suit to foreclose the lien may be maintained in the county in which the land lies. Section 515,1 Comp. Laws.
    2. Same — Finality oe Decree — Enforceability in Other Forum.
    Section 8641, 3 Comp. Laws, giving to the court which renders a decree for alimony power to modify it, does not thereby destroy its character as a final decree enforceable in any other forum, since by proper proceedings effect may be given to any modification.
    '3. Same — Installments — Default in Payment —When Foreclosure May be Begun.
    Proceedings to foreclose the lien of a decree for alimony payable in installments may be begun whenever an installment is due and unpaid without waiting until the whole is due.
    Appeal from Oceana; Perkins, J., presiding.
    Submitted February 19, 1907.
    (Docket No. 78.)
    Decided May 18, 1907.
    Bill by Sarah Ulman against Francis J. Ulman and Harry Woolner to enforce a lien for the payment of alimony. From an order overruling a demurrer, defendants appeal..
    Affirmed.

      Nims, Hoyt, Erwin & Vanderwerp, for complainant.

      Cross, Lovelace & Eoss, for defendants.
   McAlvay, O. J.

Complainant on April 24, 1905, obtained a decree of divorce from defendant Francis J. Ulman in the circuit court for the county of Muskegon, in chancery, and in said decree was granted for permanent alimony the sum of $500, together with her costs of suit to be taxed, the alimony by the terms of the decree being made payable with interest at 5 per cent, per annum, payable semi-annually, in installments of $50 each, on or before certain dates, from July' 1, 1905, to June 1, 1909, the costs to be paid on or before July 1, 1905. The decree also provided that the amount so decreed for alimony, interest, and costs should be secured by and constitute a lien upon certain real estate of defendant situated in the county of Oceana. In case of default in the payment of said several sums of money, the decree provided for the sale of the premises, as provided by statute in such cases. Default having been made in the payment of certain of the installments of alimony, together with interest and costs of suit, complainant filed her bill in the circuit court for Oceana county in chancery to foreclose her said lien for the amount then due.

To this bill of complaint defendants demurred on the ground that the circuit court of Oceana county had no jurisdiction to entertain the same, and attached the decree as a part of their demurrer. Defendants rely upon the following propositions:

1. The circuit court for the county of Oceana in chancery has no jurisdiction to entertain the case, for the reason that the circuit court for the county of Muskegon in chancery has sole and exclusive jurisdiction of the enforcement of the lien, and any proceedings appropriate therefor must be brought in that court and not elsewhere.
2. No authority exists in law or equity for the enforcement of the lien against the real estate described in the bill, until after the several amounts mentioned in the decree, and aggregating the sum of $500 have become due and payable, the last of which said payments will not become due and payable until June 1, 1909.

The demurrer was argued before Hon. Willis B. Perkins, circuit judge, presiding, and an order entered overruling it. From this order defendants have appealed to this court.

Complainant relies upon .the following statutory provisions which operate to make this lien similar to a mortgage and determine the forum in which foreclosure shall be instituted :

First. “ In all cases where alimony * * * shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed, the court may decree the sale of the property against which such lien is decreed, in the same manner and upon like notice as in suits for the foreclosure of mortgage liens.” Section 8640, 3 Comp. Laws.
Second. “All bills for the foreclosure or satisfaction of mortgages shall be filed in the circuit court in chancery of the county where the mortgaged premises, or any part thereof, are situated.” Section 515, 1 Comp. Laws.

See, also, section 434, 1 Comp. Laws.

Authorities are abundant which hold that such a decree, for a fixed sum, is a judgment of record, and will be received by other courts as such. And such a decree rendered in any State of the United States will be carried into judgment in any other State. Lynde v. Lynde, 162 N. Y. 405 (48 L. R. A. 679), affirmed 181 U. S. 183; Barber v. Barber, 21 How. (U. S.) 582. The question to be determined is whether the legislative intent by this statute was to require the liens created to be foreclosed in a county other than the one where the real estate was situated.

The legislature evidently had in view an independent proceeding in chancery to foreclose these liens. The statute was also enacted with knowledge of section 515 above quoted. It will be presumed that the legislature intended by providing as it did for the foreclosure of these liens to bring them within all of the provisions of the statute providing for the foreclosure of mortgages in courts of chancery, of which statute section 515 is the first section. Such a construction is reasonable and necessary. No possible confusion can arise under it, nor any conflict of jurisdiction between the courts of different counties. The county where the land is situated is the only place where any valid record of the lien sought to be enforced can be found, and the only place where a. deed of a sale made to enforce the lien can be recorded. Such a construction can in no way work to the injury of the person against whom the decree was rendered.

It is urged that the statute (section 8641, 3 Comp. Laws) gives to the court which renders the decree creating the lien power to modify its decree, and thereby destroys its character as a final decree enforceable in any other forum. We do not agree with this contention. By proper proceedings in the foreclosure case effect could be given to any modification made in the decree, and, if made before suit was instituted, it could be set up by way of defense. Trowbridge v. Spinning, 23 Wash. 48 (54 L. R. A. 204).

It is objected that the foreclosure proceedings by the terms of the decree cannot be brought until the last payment of alimony becomes due, that the right of sale is contingent upon “default in the payment of said several sums of money,” and that this is further indicated by the provision that, in case of sale to any person other than complainant, she is required, within 15 days, to quitclaim to such purchaser, and in default thereof the decree to stand as such conveyance by her. This decree must be construed as a whole. These liens being by statute made enforceable the same as mortgages, the same construction will be given to them as is given to similar provisions in mortgages. The weight of authority is in support of the proposition that a mortgage may be enforced when the first installment of the mortgage debt is due and is not paid, unless the mortgage by its terms expressly or by implication precludes the exercise of this right. 9 Enc. Pl. & Pr. p. 232, and notes.

This court in a case where a bill. for foreclosure was filed for interest in arrears before any of the notes secured by the mortgage were due held that the bill was not prematurely filed; Dederick v. Barber, 44 Mich. 19. This court has also held that each installment must be taken and deemed a separate mortgage. McCurdy v. Clark, 27 Mich. 445; Jennings v. Moore, 83 Mich. 235. The sale for the installments due would satisfy the lien only to that amount, and such sale would be made subject to the lien of payments to become due. We can see no inconsistency in holding that the quitclaim could be made of complainant’s interest to the extent of the payments for which the property had been sold, retaining her lien for the balance. To hold this proceeding premature would be contrary to the weight of authority in cases of foreclosure of mortgages, and most inequitable to the complainant, and would defeat the benefits the statute intended to' confer.

The order overruling the demurrer is affirmed, with costs to complainant, and the cause is remanded. Defendants will be allowed to answer the bill of complaint within the time provided by rule.

Carpenter, Ostrander, Hooker, and Moore, JJ., concurred.


author: Hooker, J.

text:
    HAAS v. MALTO-GRAPO CO.
    1. Principal and Agent — Contract of Appointment — Construction-Compensation.
    Where a contract appointing a sales agent provides for a salary and commissions on sales, and also names a minimum amount of sales per month that shall be regarded as a fulfillment of the contract, the agent is not entitled either to salary or commission unless the sales reach the minimum amount.
    2. Same — Fulfillment of Contract — Delay—Waiver.
    Delay of the principal in opening an office for the agent and supplying him with goods as agreed in the contract of agency is waived by accepting the office and goods when furnished.
    3. Same — Goods Furnished — Quality—Question for Jury.
    Whether goods shipped to an agent, and for which he had paid in advance, were inferior and overcharged for, held, under the evidence, a question for the jury.
    4. Evidence — Written Contract — Parol Evidence — Admissibility.
    Letters antedating and leading up to the making of a written contract are inadmissible to vary its terms.
    5. Appeal and Error — Practice—Errors Favorable to Appellant — Assignment by Appellee. /
    ' Defendant in error,-by joining in the bill of exceptions and including assignments of error, is not entitled to have reviewed errors favorable to the plaintiff in error, but must take out a writ of error himself if he desires review of such errors.
    Error to Yan Burén; Des Yoignes, J.
    Submitted February 21, 1907.
    (Docket No. 109.)
    Decided May 18, 1907.
    Assumpsit by W. E. Haas against the Malto-Grapo Company, Limited, for breach of a contract of employment. There was judgment for plaintiff on a verdict directed by the court for an insufficient amount, and he brings -error.
    Reversed.

      Anderson & Warner, for appellant.

      Benjamin F. Heckert and Thomas J. Cavanaugh, for appellee.
   Hooker, J.

The plaintiff has brought an action of assumpsit, based upon a contract, joining a count for breach of the contract with the common counts. This precludes a claim of fraud, under the settled rule that the action is consistent only with the validity of the contract. It is clear that the contract has not been performed, therefore this cannot be treated as an action for compensation, after full performance, under the common counts. The plaintiff must stand, then, upon one of two theories: First, that defendant has broken its promises entitling plaintiff to damages; second, an action for the value of his services, subject to a right of recoupment, if the circumstances should warrant it.

We have searched the record in vain for evidence that the case was tried on the latter theory. It can therefore be eliminated, and the case, then, must rest upon the count for breach of contract, and whether the plaintiff has a right of action upon this theory, practically turns on the construction of the contract. We include a copy:

“This agreement, made and entered into the 20th day of March, 1-905, by and between the Malto-Grapo Co., Ltd., party of the first part, and W. E. Haas, party of the second part, Witnesseth:
“That the parties hereto, after a personal interview, have embodied the result of all previous and present negotiations into this writing; said agreement being as follows, to wit:
“1. The said first party hereby engages the said second party in the capacity of general sales agent, to conduct a sales agency in the city of Chicago, State of Illinois, for a period of two (2) years, from the date that the sales office is opened for the said second party, as hereinafter provided for, and for and in consideration of the faithful performance and fulfillment of each and all of the several agreements herein contained and agreed to between the parties, the party of the first part agrees to engage the said second party for a period of twenty-four (24) months, and agrees to pay the party of the second part one hundred and twenty-five dollars ($125.00) per month, and five per cent. (5) additional commission on all sales of said office during the continuance of this contract.
“2. The party of the first part agrees, at its own expense, to open and fit up an office or salesroom for the use of the party of the second part, at said city, in which the party of the second part shall carry on said business as herein provided for, and the party of the first part further agrees to supply stationery and circulars for the proper handling of the business. Also to sell and deliver such stock as it manufactures and sells as the trade of said office may require from time to time, at forty per cent. (40 per cent.) discount from retail or list prices, and to instruct said second party in the details of handling the business until he is sufficiently instructed in the estimation of said first party.
“3. At the expiration of the term and fulfillment of this agreement, the party of the first part further agrees to repurchase from said second party all stock that he may have on hand, purchased from said first party, paying therefor in cash the same prices originally charged him.
“In consideration of the foregoing and subsequent agreements, the said second party agrees to the following:
“1. That the said.party of the second part will and does hereby engage and agree to become general sales agent for the goods manufactured and sold by the party of the first part, as heretofore stipulated, for a term of two (2) years, and that he will devote his whole time and efforts to advancing the success of the business, and to satisfactorily perform the duties herein required of him, dealing honorably with the party of the first part, the public, and all persons with whom he may have business relations.
“2. That said party of the second part will supply no stock to agents, dealers or other purchasers from him that will in any way demoralize the trade, and only for cash with orders, or thirty (30) days’ time, if secured by the indorsement of some financially responsible party, or on some satisfactory letter of credit.
“3. Said second party further agrees to carry a stock of merchandise amounting to one thousand six hundred and sixty-six dollars and 66/100 ($1,666.66) at list prices, which shall be an assortment of the various goods manufactured or handled by said first party, such stock and assortment to be selected by the party of the first part, or to be jointly selected, and to be billed to said second party at forty per cent. (40) discount from retail prices, amounting to one thousand dollars ($1,000.00) net.
“ 4. The party of the second part further agrees to furnish the said first party with daily and weekly reports, and at the end of each month to forward to the party of the first part a report of all business done during the month, giving the names and addresses of any and all agents appointed, a full and accurate statement of expenditures, amount of goods sold, of money collected, and any other information regarding the business that may be desired by the party of the first part.
“5. As the permanent success of this business will depend upon a small amount of merchandise being sold, it is understood and agreed that the sales of each month shall amount to five hundred dollars ($500.00) which shall be considered the minimum amount of business necessary to constitute the fulfillment of this contract. If the sales of any month shall not amount to the minimum amount, namely, five hundred dollars ($500.00) and during the succeeding months sales should be in excess of the minimum amount to make up an average of five hundred dollars ($500.00) per month, this contract will thereby be fulfilled in this respect by the party of the second part.
“ If the sales at the end of the first year shall not have averaged five hundred dollars ($500.00) per month, the party of the first part reserves the right to cancel this contract, if it so desires, and upon such cancellation, shall repurchase from said second party all stock that he may have on hand, purchased from said first party, at prices originally charged. All sales to be made to agents at a discount of thirty-three and one-third per cent. (33£ per cent.) and to dealers at twenty-five per cent. (25 per cent.), from list or retail prices.
“6. It is mutually understood and agreed between the parties hereto that the said second party shall have the right and authority to collect all moneys for business done through said office, and at the end of each month, after deducting from the receipts of this office, the amount of his own remuneration, to wit, one hundred and twenty-five dollars ($125.00) and the necessary expenses such as rent, necessary office help, postage, advertising matter, office sundries, commission, etc., he shall remit the balance to said first party at its office in the city of Detroit. The party of the first part will then replace the stock sold during the previous month by the said party of the second part, without additional charge or expense to said second party, and in case the minimum amount of business required to be transacted shall not be sufficient to pay the necessary expenses of the office as herein provided for, cost of replacing stock sold, etc., such deficiency shall be made good by said first party at the end of each month.
“7. It is further mutually agreed by both parties hereto that said second party shall have the right to renew this contract at its expiration, it being .understood by both parties that the expenses incident to the opening of this office constitute the necessity of a permanent arrangement.
“ In witness whereof the parties of this contract have hereunto set their hands and seals in duplicate the day and year first above written.
[Corporate Seal.]
“Malto-Grapo Co., Ltd.
“ Per F. S. Doud, Gen. Mgr. [Seal.] “W. E. Haas. [Seal.]
“Received of W. E. Haas, one thousand dollars ($1,000.00) in payment for stock as per above contract.
“ Malto-Grapo Co., Ltd.,
“F. S. Doud, Gen. Mgr.”

Much is said in the briefs regarding the unfairness of this contract, and it can be truly said that it would have been quite as easy to give greater prominence to the fact that the plaintiff was not to be entitled to salary or commission, when his monthly sales were less than $500, as to separate the provisions relating to the subject, and thereby make plausible the charge of a design to mislead the plaintiff; but we feel compelled to say that the language will admit of but one interpretation, and we cannot say that the plaintiff did not fully comprehend it. He testified that he ceased to conduct the business under the contract about July 22d, and did not send in a monthly statement covering that month, as required by the contract, but sold the remainder of the property as well as he could. His report for May shows that his sales were $48.12, while his office expenses amounted to $95.75. He claimed a

Balance on expenses--------- $41 63
Salary for May......... 125 00
Commission---------- 2 40
Total...................... $169 03

He asked a check for this amount. This demand was mailed June 1st. On June 3d the defendant called attention to the fact that he had not complied with the minimum claim of the contract. For June the receipts of the month were $218.78; the expenses $209.11. He did not report for July, but testified that his sales were approximately $110, and expenses $190. He has not shown himself entitled to payment of salary or commission under the contract. This disposes of the first and second points discussed in the brief of the plaintiff’s counsel.

The third proposition is that the defendant unreasonably delayed the opening of the office in Chicago. The contract was made March 20th, and provided for plaintiff’s engagement from the date that a sales office should be opened in Chicago, which was done May 1st. The plaintiff found fault with the delay. The learned circuit judge was of the opinion that plaintiff had waived any claim that he may have had, upon this ground, by a letter in which he stated that defendant’s representative had “opened and fitted up the office in a satisfactory manner,” etc-., and “you have fully complied with your contract up to date.” So far as this delay is concerned, we think that the decision was right, and the same is true as to the delay in receiving the first consignment of goods of which the bill of lading was given to the plaintiff at that time. The goods were then in Chicago, but, not being delivered promptly, he investigated and found that they had been delivered to other parties, and they were not recovered and delivered until May 9th. There is nothing to indicate any blame on the part of the defendant or its agents. While the contract bound the defendant to sell and deliver goods to plaintiff at prices mentioned, we think it obvious that its duty was done when it properly and seasonably shipped such goods charges prepaid, and forwarded the bill of lading subject to its duty to reimburse for cartage. As soon as the error of the railroad company was brought to its notice, its officers hastened to find and see that the goods were delivered. The defendant was at liberty to appoint other agents in Chicago. There is nothing in the contract which deprived it of such right.

A claim is made that the goods shipped the plaintiff, and for which he paid in advance, were inferior goods, and were overcharged for. There are three such items: (1) 53 cases of Paw Paw grape juice for which he was charged $1.20 per gallon; (2) 60 cases apple juice, at $4.20 per case; (3) 55 cases Blood of the Grape, and not Malto-Grapo. The plaintiff claims that the retail or list price of the Paw Paw grape juice was less than the amount at which it was billed to him, and he offered testimony tending to show one instance where it had been sold at 60 cents. This was explained as a contract made at a special price some months before the contract with plaintiff was made. To prove his claim as to the apple juice, plaintiff offered to introduce a portion of an advertising circular issued by the defendant, in which the price per case was $3.25. The court is said to have excluded this because it was shown that it may not have been the price established for the year 1905. The 55 cases were claimed to have been of a quality inferior to Malto-Grapo. They were labeled “Blood of the Grape,” and this was not manufactured by the defendant. Some correspondence followed their shipment, and some time afterwards defendant offered to replace them upon their being returned. This correspondence began June 28th, when he wrote defendant that he held the goods subject to their disposal, and continued until August 2d. We are of the opinion that these were questions which should have gone to the jury. Complaint was made as soon as the error was discovered, and even if it was his duty to ship the goods back, before shipment of those to be substituted, the correspondence shows a long delay and some difficulty in inducing defendant to adjust the matter. If there was any substance in plaintiff’s claim, he might have suffered damage, even though a substitution had been made later.

Error was assigned upon the exclusion of three letters, antedating and leading up to the making of the contract. They were inadmissible. The contract was the culmination of the negotiations, and as the case was presented we do not see that the plaintiff’s rights were injured by their exclusion, if they would be admissible under any circumstances which we do not decide.

Error is assigned upon the exclusion of an item of $4 for a sign. It would have been proper to submit the item to the jury.

The defendant joined in the bill of exceptions, and included assignments of error. The court ruled that' under this contract the defendant was under obligations to replenish plaintiff’s stock and directed a verdict for plaintiff, for amounts agreed to represent the quantity of goods claimed. Defendant’s counsel insist that this was erroneous. As the matter stands, the plaintiff has a judgment for these items. He has taken a writ of error, but the defendant has not. The parties evidently acted upon the assumption that one writ would bring up both appeals. We think this is not a proper practice. As there is yet time to take a writ of error, and as the case must be tried again, we dispose of the question. We agree with the construction placed upon the contract in this particular.

For the reasons stated, the judgment is reversed, and a new trial ordered.

McAlvay, C. J., and Carpenter, Ostrander, and Moore, JJ., concurred.


author: Moore, J.

text:
    BRADFIELD v. ST. CLAIR CIRCUIT JUDGE.
    Mandamus — Propriety—Collateral Attack.
    Mandamus to compel a circuit judge to vacate an order in a cause removed to liis circuit will not be granted on the ground that the order changing the venue was without jurisdiction, relator’s remedy being by motion to vacate the order changing the venue and mandamus to review the denial of that motion.
    Mandamus by Thomas Parks Bradfield to compel Eugene E. Law, circuit judge of St. Clair county, to vacate an order awarding temporary alimony.
    Submitted April 2, 1907.
    (Calendar No. 22,121.)
    Writ denied May 18, 1907.

      Rufus Gf. Lathrop {Francis A. Stace, of counsel), for relator.

      Moore, Brown, Miller & Ladd, for respondent.
   Moore, J.

This is an application for mandamus commanding the respondent to vacate an order made by him as circuit judge in the circuit court for the county of St. Clair, in chancery, on the 7th day of January, 1907, requiring the relator to pay alimony and expenses in a suit for divorce commenced in the circuit court for the county of Oakland, in chancery, wherein Elizabeth P. Bradfield (wife of relator) is complainant and the relator is defendant, for the reason that the respondent had no jurisdiction to make such order, because the order purporting to transfer said suit from the Oakland circuit court to the St. Clair circuit court was void, having been made without jurisdiction or authority. The wife of relator commenced a divoi’ce proceeding against him in the circuit court for the county of Oakland, in chancery. He caused his appearance to be entered therein and moved for a change of venue because (we quote from the affidavit) :

“Deponent further says that the complainant in said cause has an undue influence over the citizens of Oakland county.
“Deponent further says that an odium attaches to the defense of the defendant in said cause on account of local prejudice in Oakland county.
“Deponent further says that the judge of the circuit court for the county of Oakland is biased in favor of the complainant in said cause and prejudiced against this deponent, the defendant in said cause. * * *
“Deponent further says that an odium attaches to the defense of this defendant on account of local prejudice in some of the other counties in the eastern part of the State of Michigan, especially in the county of St. Olair. ”

The petition was to be heard November 12th. It was called up by the solicitors for complainant in the absence of the solicitor for the relator, and after a delay of more than an hour ank oral order was made transferring the cause to St. Clair county.

It was claimed by the solicitor for the relator that it was unfair in view of what occurred between coünsel to call up the motion in his absence, and that an arrangement was made that counsel would appear before the circuit judge who was then holding court at Lapeer, when counsel would agree upon the cause being- removed to some other county than St. Clair. The circuit judge does not remember this as does counsel, but says counsel appeared before him for the purpose of rehearing the motion, and.that it was reheard when an order as follows was signed:

“State of Michigan. — In the circuit court for the county of Oakland, in chancery.
“Elizabeth Palmer Bradfield,
“Complainant,
v.
“Thomas Parks Bradfield,
‘ ‘ Defendant.
“At a session of the circuit court for tne county of Oakland in chancery, continued and held on the 12th day of November, A. D. 1906, in the city of Pontiac.
“Present, Honorable George W. Smith, Circuit Judge.
“In the above cause a motion for a change of venue having been made and set for hearing on this day and no one appearing in support of the said motion, and George G. Moore, of Moore, Brown, Miller & Ladd, solicitors for the said complainant appearing in opposition to said motion, after due consideration being had, it is ordered and adjudged that the said cause be and the same is hereby transferred to the county of St. Clair for hearing.
“George W. Smith,
“ Circuit Judge.
“Filed November 19, 1906.
“George A. Brown,
“Register.”

Soon thereafter the files were transferred to St. Clair county. On the 11th of December counsel moved the circuit judge of Oakland county to vacate this order. This motion was overruled. No effort was made to review the action of the judge in overruling this motion. The complainant in the divorce moved the court in St. Clair county for an order for alimony and solicitor’s fees. The relator obje<3ted to this being done, claiming that the circuit judge of Oakland county had no jurisdiction to make the transfer, and that the circuit court in chancery for St. Clair county had no jurisdiction to make any order in the case. He also made a counter showing to the application for alimony, but it was agreed this was without prejudice to the question of jurisdiction.

The court thought it had jurisdiction to make the order, and made it. We are asked through the writ of mandamus to require the circuit judge to vacate the last-named order because the judge of the circuit court for the county of Oakland in chancery had no authority to make it. This would in effect vacate the order which the- judge of Oakland county refused to vacate, and which refusal was not sought to be reviewed in any direct proceeding. We think it would be anomalous for the circuit court of St. Olair county in chancery to refuse to take jurisdiction in a case transferred to it by the judge of another circuit when the order making the transfer was regular upon its face. The case of County of Montmorency v. Wiltse, 125 Mich. 47, is authority for the proposition that, if relator desired to. test the legality of the removal of the case from the Oakland circuit to the St. Clair circuit, it should have been done by the writ of mandamus when the judge of the Oakland circuit refused to vacate the order making the transfer.

Counsel say:

“After a cause has been actually transferred, and the records and files transmitted, the original court cannot resume jurisdiction by an order vacating the order changing the venue " — citing Stone v. Byars, 32 Tex. Civ. App. 154, and other, cases.

An examination of these cases will show that none of them was a case where it was claimed the order making the transfer was void for want of jurisdiction to make it.

Motion is denied.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Montgomery, J. Hooker, J.

text:
    BARNUM v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Railroads — Crossing Accidents — Negligence — Evidence-Sufficiency.
    In an action against a railroad company for the death of a person killed at a crossing, there being evidence that the view of deceased was obstructed in the direction from which the engine and tender approached, that there was no flagman or gates, that a train had passed in the same direction immediately before, and that no lookout was on the tender of the locomotive which backed upon the crossing and caused the injury, the question of defendant’s negligence is for the jury, though no one of the facts stated, by itself, constitutes negligence. Hooker and Grant, JJ., dissenting.
    2. Same — Negligence—Crossing Flagman — Lookout on Backing Train.
    It is not ordinarily negligence to neglect to have a flagman at a crossingin the absence of an order from the commissioner of railroads, though the circumstances of the particular case may be such that the absence of a flagman may be evidence of negligence; and the like is true of the absence of a lookout at the rear of a car being backed across a way.
    3. Same — Action—Instructions—Sufficiency.
    In an action against a railroad company for the death of a person killed at a crossing, instructions examined, and held, not subject to the criticism that under them negligence of defendant could be found from the mere fact that the engine causing the injury followed another train immediately, but to properly state the elements which were to be considered in determining whether, under the circumstances, defendant was negligent.
    Error to Genesee; Wisner, J.
    Submitted April 18, 1906.
    (Docket No. 79.)
    Reargued April 2, 1907.
    (Docket No. 1.)
    Decided May 18, 1907.
    Case by Hartson G. Barnum, administrator of the estate of George E. Nixson, deceased, against the Grand Trunk Western Railway Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      H. Geer, for appellant.

      Mark W. Stevens (George W. Cook, of counsel), for appellee.
   Montgomery, J.

This case was before the court at the October term, 1904. A judgment for th'e plaintiff was reversed, and a new trial ordered. Barnum v. Railway Co., 137 Mich. 580. The case has been retried, a verdict and judgment for plaintiff entered, and defendant again brings error. It is not deemed necessary to restate the facts at length. By reference to the report of the case in 137 Mich. 580, a full statement will be found accompanied by a map showing the scene of the accident.

It is now contended that no negligence is shown on the part of the defendant, that the decedent is shown to have been guilty of negligence, and that the court was in error in submitting either question as one of fact for the jury. It is also contended that there was error in the instructions as given. The further contention is made that the court was in error in refusing a new trial based on the ground that the verdict was clearly against the weight of testimony. In our former opinion it was clearly indicated that the facts were such as to bring the case within the rule of Breckenfelder v. Railway Co., 79 Mich. 563, as it relates to the question of the contributory negligence of plaintiff. See, also, Grenell v. Railroad Co., 124 Mich. 141, and Hintz v. Railroad Co., 140 Mich. 565. The facts appearing on the second trial have not weakened the case of the plaintiff in this respect.

As to the question of defendant’s negligence, the court on the former hearing, while implying that this was also a question for the jury, held that there was error in submitting the case to the jury. We are of the opinion that on this record the plaintiff made a case for the consideration of the jury as to the defendant’s negligence. Our view of this question can be best expressed by a consideration of the charge of the court and the facts as stated in the former opinion in connection with the assignment of error on the charge. The charge complained of was as follows:

• “You are instructed that you must not find defendant guilty of negligence from the mere fact that the locomotive was backing over Beach street crossing following the freight train. Safe railroading is often a matter of minutes, sometimes seconds, and it is not for juries or courts to determine what good or bad railroading requires from their own opinion, or from the fact that an accident has happened under certain conditions; but it is for you to determine, under all the circumstances, surroundings, and conditions as they existed at and near the crossing, the fact that the Pere Marquette Railroad was in close proximity, the fact that Saginaw street bridge was not in use for teams, the increase of travel, if any, over the Beach street crossing, and the amount of travel over the same, the fact that there were no flagman or gates at such crossing, the obstructions, if any, which may have obstructed the view of the track to the east of the crossing in respect to persons approaching the crossing from the north, the passing of the freight train, the following of the backing engine, its speed, and the proximity to the train, whether or not the brakeman was on the tender in position to signal the engineer in case of danger to persons making Beach street crossing, and, under all the other facts in the case, whether the defendant railroad was exercising such ordinary and reasonable care and caution as ordinary prudence would dictate in running its engine and tender,' backing the same, following the freight train that had just passed Beach street going in the same direction and on the same track. If you find that the defendant railroad was not exercising such ordinary and reasonable care and caution in its conduct as ordinary prudence would dictate, then I charge you that defendant railroad would be guilty of negligence, and plaintiff would be entitled to a judgment, if you find that such negligence of the railroad was the proximate cause of the injury, provided you further find that Mr. Nixon was exercising such ordinary and reasonable care and caution as an ordinarily prudent man would exercise under the same circumstances, surroundings, and conditions as you will find they appeared to him at that time.”

It will be seen that the elements left to the consideration of the jury were an obstruction of the view of the track in the direction from which this engine and tender were approaching, the absence of a flagman and gates, the passing of the freight train immediately before, and the absence of a lookout on the tender. With these elements all stated, it was left to the jury to say whether, under all the circumstances, there was negligence. There was testimony tending to show that each element stated existed in fact, and we are of the opinion that when all these circumstances are considered it was a proper question for the jury as to whether reasonable care was exercised by the defendant. It is quite possible that no one of these facts by itself would constitute, or even evidence, negligence, and yet when all are taken together a jury be fully justified in finding negligence. It is not ordinarily negligence to neglect to have a flagman at a crossing in the absence of an order from the commissioner of railroads, and yet circumstances of the particular case may be such that the absence of a flagman may be evidence of negligence. See Freeman v. Railway Co., 74 Mich. 86 (3 L. R. A. 594); Willet v. Railroad Co., 114 Mich. 411; Grenell v. Railroad Co., 124 Mich. 141; Grand Trunk R. Co. v. Ives, 144 U. S. 408; 2 Thompson on Negligence, § 1535. And so of the absence of a flagman or lookout at the rear of a car being backed across a way. Green v. Railway Co., 110 Mich. 648; Schindler v. Railway Co., 87 Mich. 400; 2 Thompson on Negligence, §§ 1571 and 1594.

On the former hearing it was held that it was error to charge the jury that the negligence of the defendant could be found from the mere fact that the engine followed the train immediately. It is insisted that the charge given on the last trial is open to the same objection. We do not so construe the charge. The circuit judge plainly instructed the jury in the language of our former opinion that negligence could not be found from the mere fact that the engine followed the train closely, and then added a statement of other elements of negligence which were to be considered in determining whether in such circumstances the company was exercising ordinary and reasonable care.

We think the case was a proper one for the jury, and was well submitted. We are not convinced that the court was in error in refusing a new trial.

No prejudicial error being found, the judgment is affirmed.

McAlvay, C. J., and Carpenter, Blair, Ostrander, and Moore, JJ., concurred with Montgomery, J.

Hooker, J.

(dissenting). This cause has been tried a second time, and defendant has appealed from a verdict and judgment for the plaintiff. The outlines of the case will be found in 137 Mich. 580, and the proofs are much the same upon this record as upon that. Upon that hearing we refrained from granting a new trial, upon the ground that the verdict was against the evidence, inasmuch as the case was to be reversed upon other grounds, and we did not pass upon the question of defendant’s negligence. We did hold that there was that in the case which made contributory negligence a question for the jury.

The facts stated show conclusively as to most questions, and with but a little evidence to the contrary as to some of them, that the plaintiff drove his horse and wagon upon the track and stopped within a couple of rods of an approaching engine; that he had abundant opportunity to see it for a distance of 30 to 40 feet before it reached the highway, and while he was yet in a place bf safety; that a brakeman, upon the footboard to make a coupling, signaled the engineer as soon as it became apparent that he intended to cross, and stepped off the engine, which was running slowly, as he well might do, to avoid injury to himself; that all of this time an automatic crossing alarm bell was clanging, and the engine bell was ringing, and both were plainly heard by persons near; that there was no evidence that there were any other vehicles or pedestrians in the immediate vicinity, or any unusual travel on the street. There is a bare scintilla of evidence, and hardly that, upon one point, viz., the presence of the brakeman upon the engine, supporting the suggestion that he was not there at all.

It is said that the cause was properly allowed to go to the jury upon the theory that, although there was no negligence in any one of the particulars alleged, there might be in all taken together, and that the surrounding circumstances might make conduct negligent which otherwise would not be. We need not question the latter proposition as a general principle; but we are able to say that none of the things done or omitted should be made negligence by the surrounding circumstances of this case. The former contention we think unsound.- We are therefore of the opinion that a verdict should have been directed for the defendant upon the ground that negligence was not shown. We are also of the opinion that the evidence most clearly shows contributory negligence, and while we think that we should not say that as a matter of law — though it is a close case upon that point — it would itself be a sufficient reason for setting aside the verdict under the statute.

The judgment should be reversed, and, as there is every reason to suppose that the full case is before us, the defendant should not be subjected to further litigation.

Grant, J., concurred with Hooker, J.


author: Blair, J.

text:
    KREMER v. METTE.
    Trusts — Declaration—Property Chargeable.
    A letter written by defendant to complainant stating that “ $2,000 have fallen to you when you attain the age of thirty years,” that in the interim complainant is to draw interest, that complainant’s uncle, defendant’s brother, and defendant worked together, and to avoid legal proceedings he had sold everything to defendant and assigned to him the outstanding moneys, ‘ ‘ and all these moneys he has charged me to pay you with,” evinces an intent to charge the personal property assigned to defendant by his deceased brother and constitutes a sufficient declaration of trust for that purpose, but does not evidence an intent to declare a trust in real estate. ■
    Cross-appeals 'from Wayne; Hosmer, J.
    Submitted April 3, 1907,
    (Docket No. 3.)
    Decided May 18, 1907.
    Bill by Joseph Kremer against John Mette and Elizabeth Mette to compel the payment of a trust. From the decree rendered, both parties appeal.
    Affirmed.

      William E. Henze, for complainant.

      William Look ( Thomas A. E. Weadock, of counsel), for defendants.
   Blair, J.

Complainant filed a bill to recover from defendants the sum of $2,000 and interest from January 1, 1899, alleging that this money is due to him by reason of a conveyance from0one Frank Mette, complainant’s uncle, of all his real and personal estate to defendant John Mette, his brother, upon condition and with the understanding that said defendant John Mette pay to complainant the sum of $2,000 when complainant had attained the age of 30 years, and until then pay him interest thereon at bank rates. In October, 1891, Frank Mette deeded to defendant John Mette all his real estate, and transferred to him all of his personal estate. Afterwards, and in March, 1892, Frank Mette died, leaving no issue. Complainant is the son of Theresa Kremer, a sister of Frank and John Mette. The real estate conveyed by Frank to John was worth about $15,000, and the personal property was of the value of several thousand dollars. In 1904, the defendant John Mette deeded the real estate to his son, Frank W. Mette, who, on the same day, deeded the property to the defendant Elizabeth Mette, wife of said John Mette, for a consideration of $1. . The complainant became 30 years of age on April 29,1899, and filed the present bill of complaint in August, 1904.

The principal issue of fact in the case related to the signatures to certain letters written by the defendant John Mette or members of his family to the complainant, who resided in Germany. The first of these letters, dated January 25, 1894, purports to be signed by the defendant John Mette, and contains, among other things, the following:

“ Dear Joseph, you may rest quiet. $2,000 have fallen to you when you attain the age of thirty years. During this period you draw bank interest. So far they are 4 per cent.
“ Before I proceed further, I explain to you the whole business or history. Uncle and I worked together and to avoid that our life’s savings should become food for lawyers he sold everything to me, and the outstanding moneys were assigned to me and some of these are very hard to get. By reason of which, you, my dear nephew, must bear a portion. How much, I cannot yet tell, for loaning money on notes and without anything else was to a great part uncle’s doings. And all these moneys he has charged meto pay you (plural) with. Through notes and cash book I am able to prove everything and what may be lost of these moneys you will have to bear your portion, for I cannot see that I should be pricked by the thorns and another plucks the roses. * * * If in the month of March interest for two years, say $160.00, will be of service in the purchase of the land you may look for the same. Four per cent, in a bank would be more preferable to me than to own real estate at Esenberg. I could deposit the interest here and send you the bank book.
“ Forgotten above — For to do what uncle wanted me to do no security was asked nor given. Also, dear Joseph, I would not speak of withholding, no thought for such lies in my heart.
“I knew that you were serving in the army and frequently have thought of you, but I had no address, otherwise I would have sent you something. It will, however, be of good to you.
“Brother Clemens and August have their. My family is in good health. I have no special news.”

The second letter, dated March 14, 1894, and purporting to have been signed by the defendant John Mette, contained a postal money order for $160, “deducting 1 per cent, leaving $158.40. One dollar is equal to 4 marks and 12 pfennig. It amounts to 653 marks and 18 pfennig.” The next letter, dated March 27, 1895, purports to be signed, “Your cousin, F. W. Mette,” and contained, among other things, the following:

“Today father has sent you by mail the sum of $72.82. This sum in Germany amounts to 300 marks and 19 pfennig and represents the interest for the past year. * * * As it now appears, a certain portion must be deducted from every one on account of losses. It may be much or little. As soon as the money comes in, it will be disposed of properly and I hope that this may be soon.”

The last letter, dated April 15, 1898, was conceded to have been written and signed by the defendant John Mette, and was as follows:

“ My ill health is chiefly to blame for the delay in this remittance. Of late I have been suffering with rheumatism. You will be wonder why this remittance is not so large as the preceding one. The reason is that the bank interest has been reduced to 3 per cent., so this amount is $54.60, in letters fifty-four dollars and sixty cents. My brothers Clemens and August are well, as is also my family. The best regards to you all, ánd especially to Fellbecke.”

March 19, 1899, complainant’s father wrote to defendant John Mette, notifying him that complainant would be 30 years of age in April, and advising how his “inheritance should be sent.” April 19th, defendant’s attorney answered this letter:

“That Frank, deceased, absolutely left no property or estate but did during his lifetime, in Oct. 1891 (about five months before his death) convey and transfer to his brother John Mette all of his property. Should you wish further information concerning same, I recommend that you apply to the probate court at Detroit.”

The defendant John Mette denied writing or signing the first letter, and his daughter supported him in this denial.

The circuit judge, having heard the proofs, found that the property was received by John Mette upon a trust which attached to the personal estate, but did not attach to the real estate Conveyed to him; ordered that the bill be dismissed as against the defendant Elizabeth Mette without prejudice to the rights of the complainant against the conveyance to Elizabeth Mette, to be determined, if necessary, by a bill attacking such conveyance as in fraud of complainant’s rights as a creditor; decreed that said defendant John Mette—

“ Payor cause to be paid to complainant or his solicitor the said sum of $2,000, and interest thereon, the same amounting at the date hereof to the sum of $2,731.10, and that execution issue for said amount and the costs of this court be taxed against the said defendant John Mette.”

Both parties appeal.

The testimony of defendant and his daughter is so inconsistent and so inherently improbable that we think it should not be given much weight. We are satisfied, from a consideration of the proofs in this case and a comparison of the signatures to the original letters, that the letter first above quoted was signed by the defendant John Mette, as well as the last letter, and that the other letters were written at his direction and request, and were in effect his own letters. The letters do not identify any particular real estate, nor evidence an intent to declare a trust in real estate. On the contrary, the statement, “and all these moneys he has charged me to pay you with,” evinces an intent to charge the personal property and constitute a sufficient declaration of trust for that purpose. "We are also satisfied that the rights of complainant were well understood by the members of defendant’s family, and that the defendant Elizabeth Mette took her deed with notice of the trust.

The decree is affirmed, but without costs in this court to either party.

Grant, Montgomery, Hooker, and Moore, JJ., concurred.


text:
    McILHINNY v. VILLAGE OF TRENTON.
    Municipal Corporations — Highways and Streets — Improper Use — Injunction—Abutting Owners.
    The erection, of an electric lighting plant by a village within the limits of a public street is an improper use of the street, and at the instance of the abutting owners will be enjoined.
    Appeal from Wayne; Hosmer, J.
    Submitted April 3, 1907.
    (Docket No. 5.)
    Decided May 18, 1907.
    Bill by Mary P. Mcllhinny against the village of Trenton to enjoin the erection of a building in a street, and to abate a nuisance. From a decree granting insufficient relief, complainant appeals.
    Reversed, and decree entered.

      Lodge, Trevor & Brown, for complainant.

      Dickinson, Stevenson, Cullen, Warren & Butzel (Charles W. Casgrain and Joseph S. McDowell, of counsel), for defendant.
   Moore, J.

Appellant is the owner of a residence property situated on the northeast corner of Front street and St. Joseph avenue, in the village of Trenton.

The dedication clause in the plat contained the following language:

“To vest the fee of such parcels of land as are herein named, or intended to be for public uses, in said county, in trust, and for the purposes and uses therein named, expressed or intended, and for no other use or purpose whatever.”

■ Complainant is the owner of lots 97, 98, 119, 120, situated on the northeast corner of Front street and St. Joseph avenue, her property having a frontage of 132 feet on Front street and running back parallel with and alongside of St. Joseph avenue to the channel bank of the Detroit river, a distance of from 350 to 500 feet.

On or about May 22, 1896, the .village council and water commissioners caused to be erected in the center of St. Joseph avenue, east of Front street, and between 100 and 150 feet from the channel bank of the river, a building 30 feet wide east and west, by 32 feet long north and south, which has since been used for a pumping station in connection with the village waterworks. No legal proceedings were taken by complainant, or in her behalf, to restrain or enjoin the erection of this plant. Since the erection and operation of this pumping station complainant and other residents in that neighborhood claim to have suffered great inconvenience and annoyance from the large volumes of smoke and soot emitted from its smokestack, and the noises of a large steam whistle blown each day. On the 12th of November, 1902, the defendant awarded a contract for the erection of, and afterwards proceeded to erect, a frame building with a stone foundation (a duplicate of the then existing pumping station) in St. Joseph avenue, immediately adjoining the pumping station on the north, and between the pumping station and complainant’s property. This building, when completed, was to be 12 feet high, 32 feet long north and south, and 30 feet east and west, parallel with complainant’s lot line, and leaving between £ to 2i feet between the building and complainant’s south fence. This building was to be used for the installation' and operation of an electric lighting plant.

Complainant thereupon filed her bill of complaint to enjoin such proposed erection, claiming that the village had no right to use the street in such a manner, and praying that defendant be compelled to remove, not only that portion of the new structure which had already been put in, but also the pumping station.

The trial court held that, although the pumping station might have been regarded as a nuisance in its inception, and if application had been made in due season to enjoin it he would have enjoined the original erection, nevertheless the complainant, having allowed so long a time to elapse, is not entitled to an injunction entirely prohibiting the erection of the building. He ordered the smoke and noise nuisance to be abated; and, while he enjoined the erection of the building next to complainant’s property where it was originally proposed to build it, he permitted it to be erected on the eastern, or river, side of the pumping station, still occupying as great an additional part of the street as first planned.

The case is brought here by appeal. Counsel do not ask to have the decree refusing to enjoin the village from operating its pumping station reversed, but ask this court to grant an injunction against the new obstruction in the street.

The following statements of the law have been made:

“ Municipal corporations, notwithstanding their broad and comprehensive powers, have no right, unless authorized by the legislature, to alienate their streets or devote them to the uses inconsistent with the rights of the genera] public and the abutting land owners.” 24 Am. & Eng. Enc. Law (1st Ed.), p. 47, and cases cited.
“Whether the fee of the street or a mere easement is vested in the municipality, it holds it in trust for the public for the ordinary and necessary purposes to which the streets of a city are usually subjected.” 27 Am. & Eng. Enc. Law (2d Ed.), p. 149, and cases cited.
“ The municipality holds the streets, and power to regulate and control them, in trust for the public, and cannot put them'to any use inconsistent with street purposes. * * * Thus cities have no right to use their streets for the erection of municipal buildings or works, and it has been held that placing a stand pipe in a public street, the fee of which was in the municipality, was an unlawful use of the street.” 27 Am. & Eng. Enc. Law (2d Ed.), pp. 150, 151, and cases cited.

See, also, Barrows v. City of Sycamore, 150 Ill. 588 (25 L. R. A. 535); Davis v. City of Appleton, 109 Wis. 580; Pettit v. Town of Grand Junction, 119 Iowa, 352; Mayor, etc., of Savannah v. Wilson, 49 Ga. 476; Rutherford v. Taylor, 38 Mo. 315; Glasgow v. City of St. Louis, 87 Mo. 678.

The village had no right to make the use of the street it attempted to do. Since this bill was filed, the village has ignored the effort of complainant to assert her rights, and has completed the building, and we are. now urged to affirm the decree of the court below. The action of the village was taken at its peril, and it should not be permitted to profit by its own wrong.

The decree is reversed, and one will be entered here requiring the removal of the electric lighting plant, with costs of both courts.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.