author: McAlvay, J.

text:
    ROSEN v. ROSEN.
    1. Usury— Contracts — Sales—Interest.
    Every written agreement to pay interest in excess of the legal rate, however well disguised, is in violation of law and usurious.
    2. Same.
    A contract by which one partner agrees to purchase the interest of another and to pay him an amount computable under the terms of the agreement, and, if payment shall not be made in a given time, to pay an additional sum, more than seven per cent, of the principal, is void as usurious. Act No. 207, Pub. Acts 1899, 2 Comp. Laws, § 4856 et seq.

    Error to Wayne; Murfin, J.
    Submitted October 14, 1909.
    (Docket No. 26.)
    Decided December 10, 1909.
    Assumpsit by Louis Rosen against Aaron D. Rosen upon a contract for the sale of a partnership interest. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed, and judgment entered for defendant.

      Maybury, Lucking, Emmons & Self man (Walters & Walters, of counsel), for appellant.

      Bernard B. Selling, for appellee.
   McAlvay, J.

The parties to this suit and Myer S. Fink, who were copartners conducting a merchandise business under the firm name of A. D. Rosen & Co., desiring to dissolve the copartnership, and the defendant desiring to purchase the interests of plaintiff and Mr. Fink and the good will of the business, entered into a written agreement on November 16, 1905, which provided in detail the method by which the value of the assets and the amount of the liabilities should be ascertained, the running expenses of the business provided for, and the respective shares of the partners computed and determined. By this writing defendant agreed to purchase on January 1, 1906, the interests of the other partners and the good will of the business “ at full face value as shown by the books of the firm of A. D. Rosen & Co. on that date, as hereinbefore provided for without any deduction whatsoever.” The contract, among other things, provided: That each retiring partner should remain in the store and have access to the books until paid in full. The defendant who purchased was limited as to the amounts he could withdraw from the business and was prohibited from discontinuing the business or incumbering the property. Accounts receivable and collections were to be assigned to Mr. Fink, out of which he was to pay the debts of the old firm, the salaries and expenses of the new business, and then the amount due him as his share. Mr. Fink was to draw a salary of $250 per month to be charged as an expense of defendant’s business from January 1, 1906, to May 1, 1906, the date when the payment for his interest was to be made, and until he was paid in full. Plaintiff was “ to take charge of the office work of defendant and see the trade ” of defendant from January 1, 1906, until he was paid in full, at a salary of $125 per month to be charged as an expense of defendant’s business. This contract was a very long one, covering 10 printed pages, containing 27 numbered paragraphs with numerous subdivisions. It is drawn with great care, and counsel on both sides on the trial claimed there was no ambiguity in its terms.

No further statement of the terms of the contract need be made, for the purposes of this case, than to quote the paragraph over which this dispute arises. This is paragraph 11, and reads as follows:

The said Louis Rosen is not to receive any thing except his salary until Myer S. Fink has been paid in full in cash. The said Louis Rosen is to be paid one-half of the amount coming to him under this agreement on or before July 1, 1906, and the remaining one-half by December 31, 1906, together with the sum of $2,000.00 for the use of said Louis Rosen’s money during said period; but said Aaron D. Rosen shall have the option of paying said Louis Rosen less than one-half of said interest on July 1, 1906, in which case said Aaron D. Rosen shall pay $4,000.00 on December 31, 1906, for the use of said Louis Rosen’s capital.”

Plaintiff’s interest in this property, as duly ascertained under the terms of the contract, was agreed upon on the trial, and amounted to $15,187, and also that defendant had paid plaintiff prior to July 1, 1906, $5,555.88 and prior to December 31, 1906, a total of $13,782.69, and on January 7, 1907, the sum of $506.75.

Plaintiff, who testified that he was an equal partner, had some dispute with defendant relative to certain items, which he claimed had not been paid, and brought this suit to recover under this contract for such items, and for the sum of $2,000 claimed by him under the terms of paragraph 11 of the contract. During the trial an adjustment was made of all matters in suit except the above claim for $2,000. Defendant with his plea gave notice of payment in full, and that the contract was usurious. The court refused to direct a verdict for defendant on the ground that the contract was usurious, and did direct a verdict for plaintiff for the sum of $2,000, with interest. This is assigned as error by defendant, who, upon review by this court, asks a reversal of the judgment entered against him. There is but one question in the case: Was this contract usurious?

The facts in the case are not in dispute. These parties have reduced their agreement to writing, and it is admitted that there is no ambiguity in the paragraph under consideration. The writing then speaks for itself, and its language must be construed by the court according to the usual and ordinary meaning of the words used. Paragraph 11, after providing that plaintiff is not to receive anything except salary until Mr. Fink has been paid in full in cash, fixes the terms of payment “of the amount coming to him under this agreement,” one-half on or before July 1, 1906, and the remaining one-half on or before December 31, 1906, “together with the sum of $2,000 for the use of said Louis Rosen’s money during said period.” Defendant is then given “the option of paying said Louis Rosen less than one-half of said interest on July 1, 1906,” in which case he “shall pay $4,000.00 on December 31, 1906, for the use of said Louis Rosen’s capital.” This purchase was consummated January 1, 1906. After that date the business was conducted as defendant’s business. The payments to plaintiff were to be made in six months and one year, together with $2,000 “for the use ” of his money during that period. We can conceive of no simpler or plainer statement which could possibly be made to indicate that this $2,000 was to be in payment for the use of this money. These words selected with care may be said to be self-construing. Explanation and argument cannot add to, or take from, the clear meaning expressed.

The contention of plaintiff that agreements cannot be held usurious except in cases where the transaction is a loan of money or extension of pre-existing debt, while true under many statutes, does not apply in this State, for the reason that our statute (section 4857, 2 Comp. Laws) is broader and includes any and all contracts and assurances. It reads:

“ Sec. 2. No bond, bill, note, contract or assurance, made or given for or upon a consideration or contract, whereby or whereon a greater rate of interest has been, directly or indirectly reserved, taken or received, than is allowed by law, shall be thereby rendered void; but in any action brought by any person on such usurious contract or assurance, * * * if it shall appear that a greater rate of interest has been directly or indirectly reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”

The authorities in those States where the statutes like ours include all contracts and assurances are- harmonious in holding that every written agreement to pay interest in excess of the legal rate, however well the unlawful interest may be disguised, is in violation of law and usurious. Cooper v. Tappan, 9 Wis. 361; Compton v. Compton, 5 La. Ann. 615; Evans v. Negley, 13 Serg. & R. (Pa.) 218. This contract provides without qualification that this $2,000 was to be paid when the last payment was due for the use of the money during said period. This is the clause which fixes the usurious nature of the agreement.

It cannot be said, as claimed by plaintiff, that the contract fixed two prices, one for cash and the other for a time sale, for the reasons:

(1) That by the terms of the contract defendant agreed to pay the full face value, without any deductions whatsoever, in the manner provided in the contract, which minutely included all the property of every kind, and the share of plaintiff was found to be $15,187; no second or other price being mentioned or contemplated.
(2) That the contract itself, as already stated, characterizes and designates that the $2,000 was to be paid “ for the use of the money.”

Exactly this question has not previously been before this court. In a case, somewhat similiar (Anderson v. Smith, 108 Mich. 69 (65 N. W. 615), and same case 103 Mich. 446 (61 N. W. 778), the court held that a stipulation to pay $2,000 in the terms there given was usurious. See, also, Bullock v. Taylor, 39 Mich. 137 (33 Am Rep. 356); Green v. Grant, 134 Mich. 462 (96 N. W. 583); Stack v. Cedar Co., 151 Mich. 21 (114 N. W. 876, 16 L. R. A. [N. S.] 616).

In our opinion defendant has shown such a defense that, as a matter of law, the court should have directed a verdict in his favor on the ground that the contract was usurious.

The judgment of the circuit court is reversed and set aside, and as the only question is one of law, and a new trial cannot be of any purpose, a judgment will be entered in this court in favor of defendant, with costs of both courts.

Blaie, C. J., and Geant, Mooee, and Beooke, JJ., concurred.


source: Caselaw Access Project

author: Blair, C. J.

license: Public Domain

text:
    ANDREWS v. OSBORN.
    1. Appeal and Error — Equity—Pleading—Plea—Duplicity.
    The objection that a plea to a bill in equity setting up the de- ' fenses of res adjudicata and of the statute of limitations is bad for duplicity, will not be held decisive on appeal where the point was not made in the trial court.

      2. Equity Pleading — Plea—Duplicity.
    The court in chancery may permit a double plea.
    3. Same — Injunction Bill — Judgment.
    A bill to restrain the enforcement of a judgment at law must be positive, explicit and certain.
    4. Same — Fraud—Conclusions in Pleading.
    If fraud is the ground upon which the aid of equity is asked to enjoin the enforcement of a judgment, it is not sufficient to incorporate in the bill general allegations of fraud, deceit or misconduct, but the specific facts constituting the alleged fraud must be set forth.
    5. Estates of Decedents — Allowance of Claims — Res Adjudioata — Judgments.
    The allowance of a claim against an estate of a deceased is conclusive on all persons interested whether residents of the State or not, if the steps required by statute are regularly taken to notify the parties in interest, unless successfully impeached for fraud.
    6. Same — Allowance of Claims — Collateral Attack — Judgments — Pleading.
    A bill which avers that a claimant fraudulently presented a claim against an estate, and that it was false and fraudulent and he procured its allowance by false testimony, is too general to warrant relief for fraud.
    7., Equity — Laches—Pleading.
    Laches may bar a complainant from setting aside the allowance of a claim in probate when he permits several years to intervene before filing the bill, which fails to negative knowledge of the death of deceased and her ownership of property.

      8. Same — Estates of Decedents — Allowance of Claims — ConÓLUSIVENESS OF JUDGMENT — SETTING ASIDE — LIMITATIONS.
    The defense of the statute of limitations should be. raised before the commissioners to whom a claim is presented, or on appeal, and is barred as a ground for setting aside the judgment by the allowance of the claim.
    Appeal from Barry; Smith, J.
    Submitted October 12, 1909.
    (Docket No. 47.)
    Decided December 10, 1909.
    Bill by L. F. Andrews and others against George Osborn, Alice Sturtz, and others, to set aside a claim allowed against the estate of Jennie Charlton, deceased. From a decree dismissing the bill, complainants appeal..
    Affirmed.

      Finley & G-allinger and Golgrove & Potter, for complainants.

      Thomas Sullivan, for defendant Sturtz.
   Blair, C. J.

Complainants and appellants as heirs at law of Jennie Charlton, formerly of Barry county, in this State, filed their bill of complaint for the purpose of setting aside proceedings in the probate court of said county, resulting in the allowance of a claim filed by Eli Charlton against the estate of his said wife Jennie, as well as an administrator’s deed of real estate in said county, of which, the said Jennie Charlton was seised and possessed at the time of her death, executed under the order of said probate, court. Mrs. Charlton died on the 7th day of August, 1894, intestate, her husband surviving her until-the 21st-day of July, 1908, when he also died, leaving a will under which the defendants claim. The bill sets forth that the complainants were all nonresidents of the State of Michigan, and that none of them had actual notice of the probate of the estate of Mrs. Charlton, or the pendency of the petition for the probate of the same, or of the order of publication made therein, or of the presentation of the claim of Eli Charlton against said estate, or of the allow - anee of said claim, or the application for the sale of the lands, or of any of the proceedings connected therewith; that the first actual notice received by them was after the death of said Eli Charlton—

“That the said Eli Charlton, husband of said deceased, well knowing the premises, but wrongfully contriving and intending to injure the estate of the said Jennie Charlton and the complainants herein in their right of inheritance, made and presented a claim to the probate court for Barry county, Mich., against the said estate of Jennie Charlton, deceased, a copy of which said claim is now on file in the office of the probate court for Barry county, Mich., is annexed hereto and marked ‘ Exhibit A’; that said account was wholly without merit; that it was false and fraudulent; that it was fraudulently and designedly trumped up in order to cheat, wrong, and defraud the estate of Jennie Charlton, deceased, and the complainants herein of their rights, and to fraudulently obtain the sale of the real estate of the said Jennie Charlton, deceased, and to fraudulently obtain the title thereof; that said claim was outlawed and barred by the statute of limitations, and upon its face showed that part of it did not accrue during the lifetime of said Jennie Charlton, and that part which did accrue during the life of Jennie Charlton showed upon its face that it was fraudulent, without foundation, and without merit, but, that notwithstanding the fraud upon the part of said Eli Charlton in presenting said claim, he, the said Eli Charlton fraudulently procured the allowance of said claim and fraudulently procured the sale of said real estate by proceedings had in the probate court for Barry county, Mich., and fraudulently bid in said property as a purchaser at said sale and in pursuance of said fraudulent design and conspiracy became the owner thereof.”

To this bill of complaint defendants filed their plea, accompanied by an answer denying the fraud, and setting up in their defense as a bar the former adjudication in the probate court and the statute of limitations. It is urged by counsel for complainants that these defenses made by the plea are separate, inconsistent, and distinct, and that the plea is therefore bad, as held by this court in Mains v. Steel Fence Co., 116 Mich. 538 (74 N. W. 735).

It is alleged in the brief for defendants that no objection was made to the plea as being bad for duplicity in the court below, but the matter was argued on the sufficiency of the plea, and that this objection is now made for the first time in this court. This statement in the brief of defendants is not controverted upon the oral argument by counsel for complainants, nor is there anything in the record indicating that the question was formally raised in the court below. Inasmuch as the court below might have permitted the double pled if his attention had been called to the matter (16 Enc. Pl. & Pr. p. 608), and the case is fully briefed on both sides upon the material questions in the case, we are not disposed to determine the case upon the preliminary question of practice.

The allegations of the bill of complaint in equity to obtain an injunction against a judgment at law must be positive, explicit, and certain, and, if fraud is the ground upon which the aid of equity is asked in relieving against a judgment, it is not sufficient to incorporate in the bill general allegations of fraud, deceit, or misconduct, but the specific facts constituting the alleged fraud must be set forth. 23 Cyc. pp. 1039-1041. An examination of the bill of complaint in the present case discloses that all of its allegations are of the most general character so far as the allegation of fraud is concerned, and amount in substance to this: That the claimant, Eli Charlton, put in a false claim against the estate of his deceased wife, and supported it by perjured testimony. The record shows that all of the steps required by statute to charge the heirs at law and all other persons interested in the estate of Mrs. Charlton, whether residents or nonresidents of the State of Michigan, were regularly taken, and they are a bar to any further inquiry, unless successfully impeached for fraud. Toll v. Wright, 37 Mich. 93; Shurbun v. Hooper, 40 Mich. 503; Norman v. Olney, 64 Mich. 553 (31 N. W. 555); Lafferty v. Savings Bank, 76 Mich. 35 (43 N. W. 34); Burgess v. Stribling, 134 Mich. 33 (95 N. W. 1001); Flynn v. Lorimer’s Estate, 141 Mich. 707 (105 N. W. 37); Draper v. Brown, 153 Mich. 120 (117 N. W. 213).

The bill contains no allegation that complainants were ignorant of the death of Jennie Charlton at the time thereof, or that they were ignorant of her ownership of real and personal property, or that her death was in any wise concealed from them; and, in view of the strictness required in the statement of complainants’ case by the rules of pleading, it might well be inferred that such allegation was omitted for the reason that it could not truthfully be made, in which event complainants’ laches would be a complete answer to their bill of complaint. Waiving this question, however, the bill does not state such a case of fraud as to justify the intervention of a court of equity under the repeated decisions of this court. Gray v. Barton, 62 Mich. 186, 197 (28 N. W. 813); Cleveland Iron Mining Co. v. Husby, 72 Mich. 61 (40 N. W. 168); Codde v. Mahiat, 109 Mich. 186 (66 N. W. 1093); Weisman v. Newton Beef Co., 154 Mich. 511 (118 N. W. 2).

It is also contended that the claim was void, and could not be allowed because it showed upon its face that it was barred by the statute of limitations because section 9375, 3 Comp. Laws, provides that “no claim barred by the statute of limitations shall be allowed by the commissioners in favor of or against the estate as a set-off or otherwise ;” that, therefore, the allowance of the claim was a mere nullity. The answer to this contention is that the claim, which is fully set forth in the record attached to the bill of complaint and the plea, was not for the most part barred by the statute of limitations, but only certain items thereof, and it does not follow that these items might not have been shown by testimony to the satisfaction of the probate court to have come within some of the exceptions preventing the running of the statute; but, conceding that some of the items were unlawful claims, still these did not oust the court of jurisdiction, since other items were proper subjects for allowance, and the case falls within the decision of Perkins v. Fairfield, 11 Mass. 227, rather than that of Heath v. Wells, 5 Pick. (Mass.) 140 (16 Am. Dec. 383). We are still of the opinion, moreover, previously expressed in Shurbun v. Hooper, 40 Mich. 503, that, “ if there was any objection growing out of the statute of limitations to the validity of the claims passed upon, it should have been raised before the commissioners or. on appeal, and cannot properly be considered in this action.”

We are of the opinion that the circuit judge reached a correct conclusion, and the bill of complaint is dismissed, with costs to defendants.

Grant, Moore, McAlvay, and Brooke, JJ., concurred.


text:
    STENZHORN v. CITY ELECTRIC RAILWAY CO.
    1. Street Railways — Negligence in Operation op Cars — Contributory Negligence.
    A street sweeper working on a street car track, in the midst of a noise sufficient to deaden the sound of the gong of a car, is guilty of contributory negligence for placing reliance on his hearing only, and cannot recover for injuries sustained because of the motorman’s failure to stop a car, which approached from the rear, running at ten miles an hour, and on which the gong was sounding.
    2. Same — Contributory Negligence — Duty to Person Guilty oe Negligence.
    In the operation of cars on the public street it is not negligence to assume that a person standing on the track will hear the usual .signals, until it becomes apparent that he is paying no attention to them.

      3. Same — Negligence in Operation op Cars.
    It is error to submit to tbe jury the question of defendant’s negligence in backing the car off the injured street sweeper, dragging him back severa® feet, where the evidence showed that the car backed because the current had been reversed to avoid the collision.
    4. Evidence — Hearsay—Res Gest®.
    Advice to the person operating the car, given after the accident, is inadmissible.
    Error to Macomb; Law, J., presiding.
    Submitted October 13, 1909.
    (Docket No. 63.)
    Decided December 10, 1909.
    Case by Philip Stenzhorn against the City Electric Railway Company for personal' injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      P. H. Phillips, for appellant.

      Fred B. Brown, for appellee.
   Blair, C. J.

Plaintiff, while engaged in the performance of his duties as a street sweeper in the employ of the city of Port Huron, was struck by one of defendant’s east-bound cars and seriously injured. At the time of the accident, about 10 o’clock in the forenoon, plaintiff was sweeping towards the east along the south rail of the track with his back towards, and directly in the path of, the approaching car from the west. Plaintiff testified:

“ I was working on the track a few minutes just before the car struck me, and was facing the east. I was sweeping the street. I had been sweeping along the track about five or six minutes before the car struck me, and before that was on the street near the rail. I walked right on the walk and started to sweep there, and, after I worked five or six minutes on the street and started to step towards the track, I looked to the west, but did not see any car approaching. I didn’t know the car was coming while I was working -there. I looked first, but didn’t see any car approaching. I did not hear any car, nor did I hear any gong. I had been working on the streets for five or six years sweeping, and before that I worked at the Upton Works. I always worked up to the time that I was injured, and earned $1.75 a day. My health was like oak before the injury, and my hearing was good. Before the accident, my hearing was very good, and up to that time, while working as a street sweeper, I could hear the bells of street cars. I could hear the sound of the gong if it had rung. I was 71 years of age on the 23d day of May; born in 1836.”

Plaintiff was working on Lapeer avenue between Seventh and Eighth streets, which intersect the avenue at right angles, and at the time he was struck was about 80 feet west of the west line of Seventh street. Mr. Cruse, plaintiff’s principal witness, testified that his attention was attracted to the car by the sound of the gong.

“The car was then between Eighth and Ninth streets. * * * I heard the gong ring at Eighth street. The car was then possibly 50 feet west of Eighth street. It was sounded three or four times — three or four quick taps. I didn’t hear anything of the gong until the car was within a very few feet of Stenzhorn, possibly four feet. I have had experience on both electric and steam railways, and have had occasion to become familiar with the speed at which trains run. That car came down Lapeer avenue at least 10 miles an hour, and, after it struck Stenzhorn, went in the neighborhood of 40 feet. He was under the fender. The fender projects out over the rail. It would strike him on the calf of the leg from behind. She threw him under, and his head against the side of, the car on the south side. It jerked his feet under the fender until it came to the fender hanger. There is a bolt there, I think, with a split key. That split key caught his clothing, and made him fast there. The snow scraper in front of the wheels was directly behind his leg. When the car struck him, he fell to the pavement, his head fell out to the south, and the snow scraper, being behind him, kept him rolling along, his head bumping over the pavement. When the oar stopped, it did not remain stationary, but was reversed and ran back, and he came back with it. He was still caught in the car with that split key. It jerked him back about 20 feet, when his clothes tore loose from the split key and left him lying on the rail. His head was about one foot from the rail, and his body, legs, and_ feet were directly across the south rail. The car continued backwards after clearing Stenzhorn, about, possibly, 10 feet, but then came forward again, but did not strike him. It came so close that the fender was directly over his legs. When the car struck Stenzhorn, the motorman reversed his car. When the car struck Stenzhorn, I ran to his assistance. At the time the car struck Stenzhorn, the motorman had reversed his motor, but the car kept on in an easterly direction until the momentum of the car had ceased by the backward motion of the motor. He still kept the car backing, and, as soon as the car would come to a stop, she would reverse right back, and run back this way quick. * * • * I was motorman on the electric line for about years. Going at the rate of 10 miles an hour as this car was going it should be stopped in about 40 feet. That is done by applying the brakes, and in case of emergency reversing the power on the car to back motion. Reversing the car has the effect of revolving the wheels on backward motion. It starts the wheels revolving in the opposite direction to what it would be going forward. * * * There were quité a few teams and a number of people on the street near the intersection of Lapeer avenue and Seventh street. The teams made considerable noise in going over the pavement. * * *
“Q. Now, after you saw the car strike Mr. Stenzhorn, you say you ran toward him, you and Mr. McKinnon ?
“A. Yes, sir.
“Q. What, if anything, did you say to the motorman? This was objected to by the defendant as immaterial and hearsay. (The objection was overruled, and defendant excepted.)
“A. As the motorman wa^s approaching Stenzhorn the second time, I hollered to him, and asked him what he was trying to do — run over the man a second time ? I also told him to put his reverse lever in the center of the controller, so that he couldn’t use the power. If the lever was in the center, the current could not be turned on, and the car would have to remain stationary. * * * Well, when the motorman approached Eighth street, he sounded his gong. Mr. Stenzhorn was standing on the track on the south rail. There were also a number of teams and foot passengers, fire department teams, hook and ladder wagon. I don’t know what else you call it, maybe a hose wagon, and a number of people passing the street, and I knew this would be. * * * Mr. Stenzhorn at this time was on the south rail. One step of three feet sideways would have taken him out of the way of the car, and, if he had stepped the other way, it would have been directly in front of it.”

The declaration alleges in each count, either directly or by reference, that the plaintiff “was in plain sight of the motorman of said car as it approached plaintiff, for a distance of, to wit, 1,000 feet;” and it is undisputed that the car was visible for several hundred feet. Each count in the declaration alleges that the defendant “wantonly, recklessly, and wilfully disregarded its duties” specified in the declaration, but also contains an averment that the plaintiff was in the exercise of due care, and “ was without negligence with respect to the cause of his said injuries.” The second count averred that, after the car struck plaintiff—

“ It became and was then and there the duty of said defendant to immediately stop said car, and to give aid, assistance, and attention to plaintiff and to hold said car stationary, and to render assistance in extricating plaintiff from under the fender of said car. Yet the said defendant wantonly, recklessly, and wilfully disregarded its duty by continuing to run its said car forward a distance of, to wit, 100 feet, after said car had struck plaintiff and knocked him to the pavement, as aforesaid, dragging plaintiff for said distance along and over the rough pavement. Defendant further wantonly, recklessly, and wilfully disregarded its duties by not holding said car stationary after it had stopped running forward, as aforesaid, and by reversing said car and running the same backward a distance of, to wit, 100 feet, again dragging plaintiff for said distance along and over the rough pavement.”

The circuit judge directed a verdict for defendant so far as responsibility for the original striking was concerned, but submitted the case to the jury upon the theory that the evidence tended to show negligence in handling the car after plaintiff was struck, saying, among other things:

“I do not think the motorman by the exercise of ordinary care would have known when far enough away to have stopped his car that plaintiff was in a place of danger so long as, by a single step, plaintiff could have moved himself to a place of safety. . Hence I do not think there is any opportunity of applying the law which permits the plaintiff to recover notwithstanding his own contributory negligence.. And this is the theory set forth in the declaration, and the theory upon which this case has been tried, and the theory of the requests to charge which have been presented to the court. In this case the motorman was not running his car at any unusual rate of speed when the car passed over Eighth street moving to the east. And the motorman was justified in acting On the assumption that the plaintiff would step off the track and escape injury. Hence I do not consider the exact position of the plaintiff on the pavement or on the track or the fact as to whether or not the gong was rung after the car passed Eighth street, as controlling. The theory I have outlined is plaintiff’s theory of the case. And I now direct you that he could not recover because he was struck, on this theory. And in so acting I rely on the Michigan case of Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139), and the statement contained in Kotila v. Railway Co., 134 Mich. 315 (96 N. W. 437).
“ However, in the second count in plaintiff’s declaration is found another and separate charge of negligence. It is charged that the defendant’s motorman was negligent in backing the car after the plaintiff was struck, and after the car stopped. You will remember that the testimony of some of the witnesses shows that after plaintiff was struck, and after the car stopped, it backed; there being some difference in the testimony of the witnesses regarding how far the car backed up. After stopping the car, it was the duty of the defendant’s motorman to do all he could do to prevent any further injury to plaintiff. If he failed to do all that a reasonably prudent man would have done under all the circumstances, taking into consideration the extremity, the probability of excitement, and all the surrounding conditions, the motorman may be charged with negligence for which the defendant is responsible. If he did all that a reasonably prudent man would do under the circumstances, the railway company, defendant, cannot be charged with negligence by reason of any act of the. motorman. (To which the defendant excepted.)
“ There is no foundation in the evidence for the charge of any wilful, wanton, or reckless act against the motorman in backing the car.”

The jury found a verdict for plaintiff, and defendant has removed the record to this court for review.

Although the ruling in favor of defendant as to its responsibility for the original striking is not technically before us, the point is discussed in the briefs of counsel for both parties, and is so intimately connected with the second branch of the case that we deem it proper to consider it. Certain of plaintiff’s witnesses testified that there was noise at the point in question which might interfere with hearing the car. His fellow sweeper, working about seven yards away, testified:

“ Stenzhorn had been sweeping on the track about two or three minutes before he was hurt. I did not see the car before it struck him. I was minding my work, and was not watching the car. I can’t swear that I heard the car coming.
“Q. Was there any gong sounded before it struck ?
“A. No; I heard no bell ringing at all. My hearing is pretty good. I didn’t hear any noise about there at the time. There was no sound or anything that would prevent me hearing a gong if one had been sounded. By all means I could hear a gong on a street car. * * * I was working along there doing my sweeping, and not paying any attention to the car. I didn’t even know it was coming until it struck him. I never took any notice. The first thing that called my attention to the car was when I saw the fellows running towards Mr. Stenzhorn, and I did not know anything about the car before that.”

Another of plaintiff’s witnesses testified:

“After I first saw Mr. Stenzhorn, I heard no bell nor no gong. My hearing is good so that I can hear gongs on street cars when they are rung on the streets. I heard no noises sufficient to drown the sound of the gong if one had been rung. I heard no sound. I heard nothing at all. There was no unusual noise there at the time that I took any notice of.”

The conductor, the motorman, and the only passenger on the car testified to the giving of warning signals. Assuming that the testimony of plaintiff’s witnesses that they heard no signals raised a question of fact for the jury, we are of the opinion that the plaintiff was guilty of contributory negligence in working upon the track in such a position as to deprive him of the use of his vision, and in relying solely upon his sense of hearing. If there was noise and confusion, as testified by some of his witnesses, it was not prudent for him to rely solely upon his hearing. If there was no noise to prevent his hearing and his hearing was very good, as he testified, it is inconceivable that he, working over the rail, should not have heard the approaching car, if he was listening for it. There is no evidence in this record that he was listening or was in the habit of listening for approaching cars, although he testified:

“ I cannot tell how often the cars run up and down La-peer avenue. I don’t keep track of them. I haven’t time when I am working. I always watch the cars, watch them so they wouldn’t run over me and keep my eye on them, but I can’t tell how often they went back and forth. I started to work that morning at 7 o’clock. * * * I commenced to work on Lapeer avenue on the morning that I was hurt at Eighth street and work west as far as Fifteenth or Sixteenth street. Then I went on Water street and was there for some time, and then went on La-peer avenue and worked east from Eighth street. Cars passed by me both on Lapeer avenue and Water street while I was working there. I don’t know how often. I didn’t notice it particularly.”

The conclusion is irresistible from his testimony and the surrounding facts and circumstances that, like his fellow workman, his mind was wholly occupied with his work, and he was not paying any attention to the car. We are therefore of the opinion that the ruling of the circuit judge was correct on this branch, even if we assume that the declaration did not admit the plaintiff’s negligence and predicate a recovery upon the negligence of defendant after the discovery of plaintiff’s negligence. In any phase of the case we think it is ruled upon this branch by the cases cited by the circuit judge. Considering the case on this branch as one involving a charge of ordinary negligence, a recovery is barred by plaintiff’s contributory negligence. Considering that a recovery is sought for the negligence of defendant as the proximate cause of the accident after discovering plaintiff’s precedent negligence, there was no evidence to sustain such recovery under the rule of Daly v. Railway Co., 105 Mich. 193 (63 N. W. 73); Lyons v. Railway Co., 115 Mich. 114 (73 N. W. 139).

Did the court err in submitting to the jury the question whether defendant’s motorman was negligent in backing the car after the plaintiff was struck ? The answer to this question must depend, in our opinion, upon whether such backing of the car was due to a new act of the motorman after the stopping of the car and independent of the original attempts to stop the car and avoid the accident. The declaration charges an independent act of the motorman in wantonly, recklessly, and wilfully disregarding his duty “by not holding said car stationary after it had stopped running forward as aforesaid, and by reversing said car and running the same backward, etc. ” The proofs do not sustain this allegation of the declaration, but make it manifest that whatever negligent acts were committed by the motorman were committed in endeavoring to stop the car to avoid striking plaintiff. The car was reversed before striking plaintiff. It was not reversed after it had stopped. It was all one transaction, and cannot be split up into two separate branches. If defendant was guilty of any negligence in permitting the reverse action to continue in operation after the forward motion of the car was overcome, it was part of the original negligence and not an independent ground for recovery. The doctrine of discovered negligence does not apply to this branch of the case tinder the declaration and proofs. Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073); Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817).

We are also of the opinion that the court erred in permitting Cruse to testify to what he said to the motorman after the injuries to plaintiff were complete.

Judgment reversed, and new trial granted.

Grant, Moore, McAlyay, and Brooke, JJ., concurred.


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      In re RADFORD.
    1. Attorney and Client — Disbarment Proceedings —Words and Phrases — Action at Law.
    Proceedings for disbarment are the exercise on the part of the court of its inherent right and power to preserve the orderly-administration of justice, and are not actions at law.

      2. Same.
    The conduct of every officer of a court is always the subject of supervision and inquiry on the part of the court.
    3. Certiorari — Disbarment Proceedings — Appeal and Error —Demurrer.
    Certiorari does not lie, as in actions at law, to review the order of a circuit court in disbarment proceedings overruling a demurrer to the charges filed against an attorney, until after a final determination. Act No. 310, Pub. Acts 1905.
    4. Same — Attorney and Client — Supreme Court.
    The Supreme Court has exercised general supervisory jurisdiction in such eases, but has never assumed exclusive jurisdiction.
    Petition by George W. Radford for a writ of certiorari to review an order overruling a demurrer to a petition for his disbarment as an attorney at law.
    Submitted October 1, 1909.
    (Calendar No. 23,804.)
    Writ denied December 10, 1909.

      Thomas A. E. Weadock, for petitioner.

      Charles T. Wilkins and Charles W. Casgrain, amici curiae.

   McAlvay, J.

Pending proceedings before the circuit court for Wayne county for the disbarment of petitioner, he applies to this court for a writ of certiorari to review the action of such court in overruling his demurrer to the charges filed against him. Upon the filing of the petition in this court, briefs were requested from both parties as to whether the issuance of the writ of certiorari was the proper practice at this stage of disbarment proceedings. The legislature by Act No. 310, Pub. Acts 1905, made a change in the practice, as to a review of certain questions by this court on certiorari, as follows:

“Whenever in any action at law in a circuit court * * * the issue raised on a demurrer * * * shall be decided adversely to the party filing such * * * demurrer * * * the decision may be reviewed by writ of certiorari forthwith.”

Before this enactment, the practice in this State, with few, if any, exceptions, had been not to allow a writ of certiorari before a final decision in a case by an inferior court.

It is urged by petitioner that proceedings of this kind are fairly within the statute, and are actions at law, and therefore that he is entitled to this writ under the provisions of the statute; and, further, if not included within the terms of the statute, in these proceedings such a case is made that the court should interfere to prevent great injury which may befall petitioner if denied. It is also urged that the practice in such proceedings has never been fixed by this court, and also that the circumstances of this case warrant this court, in the fair exercise of its discretion, to issue the writ for the purpose of at this time determining the questions of law presented. Of these contentions the first must be determined against relator. In no sense can such proceedings be called an action at law. Like contempt proceedings, proceedings for disbarment are the exercise on the part of a court of its inherent right and power to preserve the orderly administration of justice. The conduct of every officer of a court is always the subject of supervision and inquiry on the part of the court. This court has held that proceedings for contempt were not within the statute. While contempt proceedings are regulatory of the individual conduct of all parties in the presence of the court and elsewhere to preserve due respect for it and to prevent interference with the orderly course of business, and preserve its dignity, yet such proceedings are necessarily the exercise of inherent power and right of self-preservation. So proceedings for disbarment, although not in the nature of police regulations, are taken by courts to protect the administration of justice, and to guard the interests of litigants against the rapacity or cupidity of officers of the court who alone are authorized to present their disputes before the court. Incidentally such proceedings are beneficial to the profession of the law by eliminating unworthy members; but primarily to preserve from contamination the administration of justice.

We do not think the cases passed upon by this court, and cited by petitioner, where under the statute invoked certiorari has been held the proper remedy, are of any cogency in support of relator’s claim. There was apparently little dispute upon the question of remedy. These cases arose in ordinary actions at law upon motions to quash writs or declarations upon jurisdictional grounds, demurrers, pleas to the jurisdiction, or other dilatory pleas — all strictly within the provisions of the statute. There is no settled practice in disbarment proceedings in this State. Eight cases only are reported. Seven of these were instituted in this court. The earliest case (In re Mills, 1 Mich. 392) was before this court upon questions of law reserved by the circuit judge of Kent county under a statute at that time in force allowing such practice. Under such practice, the court passed upon certain questions of law and remanded a case for the guidance of the trial court. Later that statute was declared unconstitutional, and the case furnishes us no precedent. None of the other cases shows the course of procedure, except In re Shepard, 109 Mich. 631 (67 N. W. 971), begun in Hillsdale circuit court, in which a motion was made to dismiss the application on jurisdictional grounds, and after its denial an answer was filed, proofs taken, and disbarment adjudged. The case was then reviewed by this court on certiorari and affirmed. This court has exercised general supervisory jurisdiction in all these cases, but has never assumed exclusive jurisdiction. There would appear to be no reason why proceedings of this kind should be commenced in this court, except where the conduct complained of is directly connected with cases before the court. The time of the court would be unnecessarily taken up with the hearings of these issues of fact, which should usually be heard where they arise. The better practice would be to have the trial courts try and determine these matters, leaving to the persons disciplined a review by this court of any questions of law raised. There is no reason why the responsibility of regulating the conduct of the attorneys in the several circuits should be shifted upon this court. These proceedings were begun in the proper forum. As to questions raised which go to the merits, we at this time express no opinion, nor do we assume the promulgation of any rules of practice relative to these proceedings to be necessary.

So far there appears to have been no difficulty in getting the ear of this court to review any questions involved in such proceeding. It does not appear since the Mills Case that any have been brought here for review until final determination in the circuit court. We approve this practice, and refuse to hear these matters in any other manner. Any other method we think would tend to hinder and delay the prompt disposition of a class of proceedings which should be prosecuted with all due dispatch.

The writ of certiorari is denied, and the matter will proceed in the court below until finally determined.

Blair, C. J., and Grant, Montgomery, and Brooke, • JJ., concurred.


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    SCOVEL v. CITY OF DETROIT.
    1. Evidence — Deeds—Special Assessments — Parol Evidence-Consideration — Municipal Corporations.
    Testimony tending to show that property was deeded to a. municipal corporation for a boulevard, under an agreement with the members of the municipal boulevard commission that 'special assessments were not to be made for improvements, is competent to show the true consideration.
    2. Municipal Corporations — Taxation—Special Assessments— Sidewalk Improvements.
    The conveyance to the city of Detroit of property for a boulevard, by a deed referring to Act No. 388, Local Acts 1889, creates an implied contract to raise funds for improvements by general táxation as provided in the act, and is not affected by its repeal under a proviso that rights acquired under the repealed law should not be impaired.
    Appeal from Wayne; Mandell, J.
    Submitted October 14, 1909.
    (Docket No. 35.)
    Decided December 10, 1909.
    Bill by Massie W. Scovel and another against the city of Detroit and others to restrain a special assessment for the construction of sidewalks. From a decree dismissing the bill complainants appeal.
    Reversed, and decree entered for complainants.

      James H. McDonald and Lloyd L. Axford, for complainants.

      Walter Barlow (P. J. M. Hally, of counsel), for defendants.
   Blair, C. J.

On January 28, 1887, Daniel J. Scovel and Jane M. Scovel, his wife, conveyed by warranty deeds two strips of land, one strip by each deed, to the city of Detroit for the use of a public boulevard, as contemplated by Act No. 374 of the Local Acts of 1879. The following reservation by the grantors is contained in each deed:

“Said strip of land is conveyed only for the use of a public boulevard as contemplated by Act No. 374, passed by the legislature of Michigan in 1879, and if discontinued by law, shall revert to the parties of the first part, their heirs and assigns, and they may enter upon and possess the same, together with all and singular the hereditaments and appurtenances thereunto belonging or in any wise appertaining.”

The complainants are heirs at law and assignees of said Daniel W. Scovel and Jane M. Scovel, his wife, and are the owners in fee simple of several lots abutting the strips of land so conveyed by said Daniel J. Scovel and JaneM. Scovel, his wife, to said city for boulevard purposes. The commissioner of parks and boulevards cáused notice to be served upon them to build, at their own expense, a cement sidewalk upon a part of said boulevard, in front of their several lots, and they refused to build said sidewalk, claiming that the same was an improvement on said boulevard and should be paid for by public taxation. On their refusal to construct said sidewalk, the said commissioner of parks and boulevards constructed the same. The cost and expense thereof, $326.31, has been assessed upon their said lots; and the city treasurer is threatening to sell said lots for nonpayment of said special assessments thereon. The bill was filed to set aside said special assessments, and to restrain the city treasurer from selling said lots for the purpose of collecting said assessments. On the hearing of the case in the court below a decree was entered dismissing the bill, and the complainants have appealed therefrom to this court.

The commissioner constructed the sidewalk under the authority of Detroit City Charter (1904), § 571. Counsel for complainants contend that the acceptance of the deeds, specifically referring to the statute, which prohibited special assessments of abutting property for improving the boulevard, created a contract that, in consideration of such deeds, grantors should not be subjected to such assessments. This contention is denied by counsel for defendants, who insist that the question has been disposed of in their favor in the case of Turner v. City of Detroit, 104 Mich. 326 (62 N. W. 405). James D. Scovel, a son of Daniel J. Scovel, testified, under objection, that he was one of the witnesses to the deeds, and that at the time they were executed he was familiar with the proceedings for the establishment of the boulevard; that he acted for his father in that matter, and personally delivered the deeds; that the talk then was that it was considered there would be no assessments of abutting property; that the abutting property would stand no part of the cost of construction, and under those conditions the deeds were given; that his father expected to derive a benefit to his property on account of the nature of that thoroughfare, and that that was the chief feature that led him to do as he did do; that it would enhance the value of his property along the boulevard frontage; that he talked with Mr. Chapoton, Mr. McGrath, and Mr. Langley, who were the members of the board of public works, and also boulevard commissioners at that time,'in regard to making the dedication to the city for boulevard purposes; that he informed his father and mother of the substance of his understanding with these gentlemen, and that after the matter was all understood by Mr. Chapoton, Mr. McGrath, Mr. Langley, and his father and mother and himself, the two deeds were executed by his father and mother in the form that they show here. We think the testimony was competent, as showing the actual consideration of the deed. Long v. Mayor, etc., of Battle Creek, 39 Mich. 323 (33 Am. Rep. 384); Strohauer v. Voltz, 42 Mich. 444 (4 N. W. 161); Breitenwischer v. Clough, 111 Mich. 6, 116 Mich. 340 (69 N. W. 88, 66 Am. St. Rep. 372, 74 N. W. 507); Ford v. Savage, 111 Mich. 144 (69 N. W. 240); Eckler v. Alden, 125 Mich. 215 (84 N. W. 141). Turner v. City of Detroit, supra, does not rule this case. It appears from the opinion in that case that the complainant alleged in her bill:

“ That her land was condemned for the use of the boulevard in 1890, under Act No. 388, Local Acts 1889. Her counsel in their brief refer to the original boulevard act (No. 374, Local Acts 1879). This act was expressly repealed by the act of 1889. Complainant’s rights must therefore be determined by the later act.”

Section 16 of said Act No. 374 is as follows:

“ Sec. 16. The city of Detroit may annually raise and appropriate funds for the uses and purposes of the said boulevard, but shall raise the same by taxation only, and after approval of the board of estimates, and in the manner provided by law for raising funds for the general purposes of the said city. The funds raised by the city of Detroit for the uses and purposes of the said boulevard shall remain with the city tieasurer of the said city, and shall be kept by him in a separate fund, to be known and designated as the ‘boulevard fund,’ and no moneys shall be drawn therefrom except on the warrant of the controller of said city.”

Section 17 makes a similar provision with reference to the townships of Hamtramck, Greenfield, and Springwells. The limitation of the raising of funds, “for the uses and purposes of the boulevards,” “by taxation only, and after approval of the board of estimates, and in the manner provided by law for raising funds for the general purposes of said city,” does not appear in said Act No. 888. The language of the deeds that “ said strip of land is conveyed for the use of a public boulevard as contemplated by Act No. 374,” etc., should be construed, in the light of the surrounding circumstances, as referring to a boulevard to be improved and maintained by general taxation only. Under this construction the acceptance of the deeds by the city raised an implied contract, at least, not to levy special assessments upon the grantor’s abutting property. The agreement was one which the city had power to make, and which it ought to keep. Coit v. City of Grand Rapids, 115 Mich. 493 (73 N. W. 811). The section (30) of Act No. 388, Local Acts 1889, which repealed Act No. 374, Local Acts 1879, expressly “Provided, that such repeal shall not impair or affect any acts done or rights accrued or acquired under said act.”

The decree is reversed, and a decree may be entered in accordance with this opinion, with costs of both courts to complainants.

Grant, Moore, McAlvay, and Brooke, JJ., concurred.


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    SWANTEK v. JARMOSZKA.
    Justices oe the Peace — Appeal—Ceetioeaei as Evidence.
    After the removal of a cause by appeal from justice’s to circuit court the justice’s return to a writ of certiorari is of no effect and is incompetent as evidence in aid of a motion to dismiss the appeal. 1 Comp. Laws, § 918.

      Error to Kent; McDonald, J.
    Submitted October 15, 1909.
    (Docket No. 99.)
    Decided December 10, 1909.
    Assumpsit in justice’s court by Peter Swantek against Stephen Jarmoszka for work and labor. Plaintiff recovered judgment for an insufficient amount, and appealed to the circuit court. The defendant subsequently took out certiorari upon the justice’s judgment. An order granting a motion to dismiss the appeal is reviewed by plaintiff on writ of error.
    Reversed.

      George Hollway, for appellant.

      Hatch & Raymond, for appellee.
   McAlvay, J.

Plaintiff on May 11, 1908, recovered a judgment' in justice’s court in the city of Grand Rapids against defendant in an action in assumpsit for $160 damages and costs of suit. This amount being much less than the amount claimed by plaintiff, he in due time took a general appeal to the circuit court for Kent county. The return to this appeal was taken May 16, and filed May 19,1908. Steps taken by him in making this appeal, and the return by the justice, appear to be regular in all respects. Afterwards defendant took steps to remove the case to the said circuit court by writ of certiorari. The return to this writ was made by the justice on June 80, 1908. Plaintiff’s appeal was duly noticed and regularly set for trial upon the circuit court jury calendar for the September term following. At that term defendant moved to dismiss the appeal for the reasons;

(a) That the judgment was rendered by the justice when without the limits of the city of Grand Rapids and while in Benzie county, sending a memorandum of said judgment by mail to the clerk of his court.
(b) That he so decided it on May 11, 1908, which was the third day after the trial, when he had announced that he would take four days in which to decide the case.

These are all the objections made to the regularity of the proceedings, or to the judgment. This motion was founded upon the return of the justice to the writ of certiorari. Upon the hearing of this motion the case was stricken from the calendar on motion of defendant’s attorneys. The case was again noticed for trial by plaintiff for the December term of said court, and defendant made the same motion to dismiss the appeal upon the same grounds. The motion was granted, and a judgment entered accordingly. Plaintiff by writ of error asks a review of the case upon errors assigned.

The contention is that the court erred in considering the return in the certiorari case upon the motion to dismiss, and in dismissing the appeal on account of statements contained in such return. As far as this record shows, no hearing has ever been had in the certiorari case. The only use which has been made of the return of the justice in it has been for the purposes of the motion to dismiss the appeal of plaintiff. The situation is a novel one. We consider the error assigned upon exceptions taken broad enough to go to the competency of the return in the certiorari case as evidence. The appeal had been taken reg.ularly, and the return made and filed in the circuit court, before the proceedings for certiorari were taken. It is well settled that after an appeal is perfected the justice has no further jurisdiction over the case. The statute reads:

“ On filing the return of the justice the circuit court shall become possessed of the cause the same as if it had been originally commenced in said appellate court, subject to the same rules and regulations.” Section 918, 1 Comp. Laws.

Therefore after this appeal the justice had no jurisdiction of the case. His return to the writ of certiorari was of no valid force or effect. The action of the court in dismissing the case, having been founded solely upon the recitals contained in the return of the justice to the writ of certiorari, was erroneous.

It is not necessary to discuss other matters argued in the briefs of the parties. No other relevant or material questions are presented.

The judgment is reversed and set aside, and the case is remanded to the circuit court for further proceedings.

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


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    CRYSTAL ICE CO. v. UNITED SURETY CO.
    1. Insurance — Guaranty and Indemnity Bonds — Principal and Surety.
    It is not a defense to an action on a bond which indemnified an employer against the default of a collector, and which provided for notice to the surety company by registered letter, that the registered letter was not sent as required by the contract, where actual notice was promptly given of the embezzlement to the State agent of the surety, who promptly notified his principal.
    2. Same — Contracts—Waiver—Breach.
    The employer was justified in acting on the advice of the State agent and retaining the collector in his employ, notwithstanding a proviso in the contract against such retention after a default, where it appeared that the advice given was known to the surety and it forwarded blank proofs of loss and received the proofs without objection.
    3. Same — Nature op Bond — Liability.
    A bond for indemnity against loss through the default of an employé makes the surety an insurer in all essential particulars and subject to the same rules as fire and life insurance companies.
    4. Same — Principal and Agent — General Agency.
    An agent who takes a risk and issues a policy of insurance is a general agent.

      5. Same — Defenses—Evidence.
    Evidence that money had been taken by the employé, is insufficient to establish as a defense to an action on the indemnity contract that his accounts had not been examined weekly, as required by the contract.
    Error to Wayne; Murfin, J.
    Submitted October 22, 1909.
    (Docket No. 175.)
    Decided December 10, 1909.
    Debt by the Crystal Ice Company, Limited, against the United Surety Company for the amount of a bond. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Frank C. Cook, for appellant.

      Thomas Hislop, for appellee.
   McAlvay, J.

The action in this case was brought by plaintiff on a surety bond executed by defendant company to plaintiff June 1,1906, insuring plaintiff, for the term of one year, to the amount of $500, against loss sustained by the larceny or embezzlement of a certain employé while in plaintiff’s employ as a collector The surety bond was renewed for another year by a renewal certificate. On December 24, 1907, while this bond continued in force, the employé confessed to Mr. Osborne, secretary of plaintiff company, that he had not returned money of plaintiff collected by him, to the amount of $96.98. The secretary at once went to Mr. Parker, who was State agent representing defendant, and reported what the employé had told him. He asked Mr. Parker what he should do about it, and whether he should continue the employé at work. He told him that he did not know, and could not tell from the nature of the business, how much was missing; that he only knew the amount confessed to him. Mr. Parker told him that he would report to the company, and that he would better keep the man at work until he heard from the company, as it would be but a few days. The secretary followed these instructions. He continued to find more money, which had been paid to this collector, missing, and reported that fact to Mr. Parker from day to day and asked for instructions. Mr. Parker received a letter from the company written by its attorney, which was shown to Mr. Osborne. It was dated December 26, 1907, and reads as follows:

“We have your favor of the 24th inst. in regard to bond 3477 executed on behalf of Edward V. Joy and note contents. We will await further advices in this matter.”

After this Mr. Osborne called upon Mr. Parker every day or two, reporting further accounts missing, and asked for instructions as to what to do. He was told by Mr. Parker that he had received a letter from the company saying that further instructions would be given. He asked if there was anything more he should do in the matter, and was told that the letter was expected every day and to await further instructions. He was also told, as soon as he knew the full amount of the loss, to send it in. This was done by Mr. Osborne. It does not appear from the record that the promised letter and instructions ever came. Joy continued to work for plaintiff until February 12, 1908. On February 15, 1908, plaintiff wrote to defendant company at Baltimore, Md., sending a list of all accounts collected by Joy and not accounted for, giving name and residence of customer, date of collection, where possible, and the amount. This letter also contained statements relative to the case which are not of sufficient importance to quote. This letter was answered by defendant through its attorney, February 18, 1908, as follows:

“Gentlemen: We have your favor of the 15th inst. inclosing itemized claim of your company against this company under the bond of Edward Joy, No. 3477, and note contents. In reply we beg to advise that we have written our agent Mr. Edw. H. Parker in your city in connection therewith, who will in all probability take the case up with you in the next few days.
“Yours very truly,
“H. E. Miles, Attorney.”

On February 28, 1908, Mr. Parker wrote Mr. Osborne on the home office letter paper of defendant company, as follows:

“Detroit Mich., Feb. 28, 1908.
“Mr. Osborne,
‘'Crystal Ice Company, Detroit.
Dear Sir: Inclosed herewith please find blank form of proof of loss, which I would ask you to kindly fill out and execute and return to me at your earliest convenience, and oblige.
“Yours truly,
“United Surety Company,
“Edw. H. Parker, State Agent.”

Proofs of loss were accordingly made upon this blank, on March 3, 1908, and sworn to before Agent Parker. Defendant did not ask for other or further proofs. The record shows some other letters between the parties and their attorneys not material to the case. On April 9, 1908, defendant wrote plaintiff denying all liability in the premises for the reasons:

(1) That the requirement that the employé’s accounts were to be examined weekly had not been followed.
(2) That the employé had been continued in plaintiff’s employment after the knowledge of peculations, thereby condoning the offense, which was prohibited by the terms of the bond.
(3) Neglect to immediately notify the company by registered letter of the discovery of any act which may be the basis of a claim under the bond, as by its terms required.

The foregoing statement contains, in effect, all of the material evidence in the case. It has been given fully for the reason that defendant offered no evidence except some exhibits (letters) introduced on cross-examination. The substance of those considered material is given.

Both parties at the close of the case requested an instructed verdict. These motions were denied, and the case was submitted to the jury upon the question of fact as to whether Joy had embezzled the money of plaintiff to the amount of $169.04, which had been agreed upon as the amount of plaintiff’s claim. The jury returned a verdict for plaintiff for that amount, and a judgment was entered. Defendant brings the case before this court for review upon a writ of error, claiming that the court erred in denying its motion for an instructed verdict, and in refusing defendant’s requests, based upon the reasons denying liability given in the letter last above set forth.

In this case it appears without dispute that Mr. Parker, who acted for defendant when this bond was procured, was the State agent of defendant. He was promptly informed of the employé’s confession of misconduct, and as promptly notified defendant company. Two days later defendant acknowledged receipt of such notice, stating that they would await further advices. Therefore defendant was notified immediately of acts which would be the basis of a claim under the bond.

In the matter of continuing the employé at work, plaintiff acted upon the instructions of defendant’s State agent. There is no evidence which shows that the accounts had not been examined weekly up to the time of plaintiff’s first knowledge of the employé’s misconduct, except by inference from the fact that money had been taken by him. This could have been readily done without plaintiff’s knowledge by a false statement of money received, or by giving a receipt without crediting an account. All that occurred after the discovery was done while plaintiff was acting under instructions from Mr. Parker, whose knowledge was the knowledge of the defendant, and whose act in giving instructions to plaintiff to continue the employé at work was the act of defendant.

Defendant is in all essential particulars an insurer. 32 Cyc. p. 307, and cases cited. The same rules, as to the authority of general agents of such companies, should be applied, as are applied to fire and life insurance companies. It is settled law that the agent who takes a risk and issues a policy is a general agent for the insurance company. Mr. Parker acted as agent in taking this insurance, and also was the State agent of defendant company. Defendant company had further knowledge of plaintiff’s claim than through Mr. Parker. Plaintiff sent a full statement of its entire claim against defendant, and also many of the facts in the case, by letter direct to its home office, February 15, 1908. The answer of February 18, 1908, is already given in full. The matter was referred to Agent Parker, who would take the case up in a few days. He did this on February 28th following, sending blank proofs of loss for execution and return, acting as State agent for defendant. At this time defendant knew: (a) Of the employé’s defalcation by information given immediately; (6) that Joy had remained in plaintiff’s employ on its agent’s advice; (c) the facts upon which it claims weekly accountings were not had with Joy.

The proofs of loss were sworn to before Mr. Parker and delivered to him March 3, 1908, and defendant delayed any denial of liability until April 9, 1908. We do not think that, under the evidence in this case, the three defenses urged were available to defendant on account of its own knowledge of the facts, and the knowledge of the agent, Parker, and his instructions to plaintiff, and also on account of the fact that, if any of such defenses could have been interposed, all these matters were waived by furnishing the proofs of loss and accepting the same without objection (Burnham v. Casualty Co., 117 Mich. 142 (75 N. W. 445).

The errors assigned upon the admission of certain evidence need not be discussed. The court took every question of fact from the jury, except whether the employé had embezzled the amount claimed. The evidence objected to related to other questions.

The judgment is affirmed.

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


text:
      In re BENDER’S ESTATE. APPEAL OF LOOK.
    Appeal and Error — Contents op Record — Motion for New Trial — Opinion and Exceptions Necessary.
    In the absence of a request to the trial court to give its reasons in writing for the refusal of a new trial, no reasons appearing in the record and no exceptions being taken to the refusal, the Supreme Court will not review the action of the lower court in denying a motion for a new trial.
    Error to Wayne; Mandell, J.
    Submitted October 22, 1909.
    (Docket No. 152.)
    Decided December 10, 1909.
    William Look presented his final account as special administrator of the estate of Joseph Bender, deceased. From the account as allowed in the probate court, said administrator appealed to the circuit court. A judgment affirming the order of the probate court is reviewed by said administrator on writ of error.
    Affirmed.

      Charles Flowers, for appellant.

      Herbert C. Munro and Arthur F. Schreiter, for appellee.
   McAlvay, J.

The administrator appealed from an order of the probate court of Wayne county, on the allowance of his final account, to the circuit court. When the case was set for hearing before the court, a jury having been expressly waived, the administrator asked for a continuance, on the ground of the unexpected absence of his attorney, who was also a material witness, and of which absence he had first learned on that date. The request was denied by the court making the following statement:

The Court: Let it appear of record that under the rules adopted by the bench with reference to the arrangement of the business of this court, this division of the court has nothing to do with the matters of application for continuance, and has nothing to do but to try the cases assigned to it. That application, according to my suggestion, was made to the presiding judge, Judge Donovan’ for continuance, and that application was denied. I will proceed with the hearing of the case.”

Appellant excepted to the denial of the continuance. The court proceeded with the hearing, and allowed the account in favor of the estate at $973.90, being the same as allowed by the probate court, with interest. Later the .administrator made a motion for a new trial on the ground that the court erred in denying the continuance asked for, and also in not allowing certain items of bis account. This motion was denied.

The case is here upon writ of error. At the time of the trial a judgment was not entered. It was formally entered a long time afterwards. The only error assigned is upon the denial of this motion of the administrator for a new trial. By some oversight neither this judgment nor the order denying this motion for a new trial was printed in the record. A copy of the order is furnished in appellant’s reply brief, but we do not find in the record a request to the court to file reasons in writing for denying this motion. No reasons are given by the court in the record, although the record shows exceptions taken to the action of the court in denying the motion. This court has repeatedly held that under such circumstances the action of the circuit judge in refusing to grant a new trial will not be reviewed. Among these decisions reference is had to the following: Griffin v. McKnight, 116 Mich. 470 (74 N. W. 650); Stevenson v. Railway Co., 118 Mich. 653 (77 N. W. 247); Gillett v. Burns, 131 Mich. 617 (92 N. W. 104), and other cases there cited.

The judgment is affirmed.

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


author: Brooke, J.

text:
    PIERSON v. ILLINOIS CENTRAL RAILROAD CO.
    1. Damages — Trespass—Railroads—Carriers of Passengers — Ejecting Passengers.
    In an action for damages based upon a wrongful expulsion from a train of the defendant, in which the declaration did not put in issue the question of damages for the value of plaintiff’s ticket, testimony as to the amount paid for the ticket is properly excluded.
    2. Evidence — Subsequent Acts — Res Gest®.
    Testimony concerning a conversation held between the plaintiff and defendant’s conductor three hours after the plaintiff was ejected from defendant’s train is inadmissible under a declaration which counts only on the ejection.
    3. Same — Conclusions—Opinion Evidenoe.
    A statement by a witness that plaintiff groaned involuntarily is an inadmissible conclusion.
    4. Same — Privileged Communications — Husband and Wife.
    A divorced wife may not testify to diseases of her former husband of which she learned by communications during the marriage relation; the evidence being excluded as privileged under 3 Comp; Laws, § 10213
    5. Same — Saving Questions for Review.
    An objection that the testimony should be struck out, because the parties were husband and wife at the time covered by the testimony, sufficiently apprised the trial judge of the reason relied on.
    Error to Calhoun; North, J.
    Submitted October 12, 1909.
    (Docket No. 54.)
    Decided December 10, 1909.
    Case by John A. Pierson against the Illinois Central Railroad Company for a wrongful ejection from defendant’s train. A judgment for defendant is reviewed by plaintiff on writ of error.
    Reversed.

      Hatch & Anderson, for appellant.

      Arthur B. Williams, for appellee.
   Brooke, J.

This is the second time this case has been before this court for consideration. The first decision is reported in 149 Mich. 167 (112 N. W. 923), where a sufficient statement of fact will be found. The last trial re - suited in a verdict and judgment for defendant. Plaintiff brings the case here on writ of error.

Error is assigned by the plaintiff upon the refusal of the court to permit him to testify as to what he paid for the ticket; it being claimed by his counsel that, in any event, plaintiff should have recovered a judgment for the value of the ticket upon which transportation was refused. This claim cannot be maintained. The action is brought solely to recover damages for the alleged wrongful expulsion from defendant’s train. Plaintiff has, no doubt, a right of action against defendant for the value of the unused portion of the ticket; but he has not chosen to put that matter in issue in this suit.

Plaintiff sought to give evidence of a conversation between himself and N. A. Ross (defendant’s conductor), held at Ft. Dodge, about three hours after leaving Council Bluffs, the point at which he had been ejected from defendant’s train. This same testimony was offered at the former trial. It was received, but afterwards stricken out. In considering the question this court said: “It was received, but was stricken out as soon as its immateriality developed.” The defendant was there claiming that the taking of the testimony, and subsequently striking it out, constituted error. The plaintiff at that hearing, having recovered a judgment below, was interested only in defending the action of the court upon which the judgment was predicated. He now urges that the testimony was admissible. An examination of the declaration shows that the plaintiff counts only upon the alleged wrongful acts of defendant committed at Council Bluffs. The testimony was properly excluded.

Error is assigned upon the action of the court in striking out the evidence of Gertrude Anderson:

“My father did not complain to me of suffering; but I heard him groaning involuntarily, which continued some time after, till he left for Mt. Clemens.”

There is no doubt that exclamations of pain may be proven where they are the natural and ordinary accompaniments and expressions of suffering. O’Dea v. Railroad Co., 142 Mich. 265 (105 N. W. 746), and cases cited. But the witness had no means of knowing, and therefore could not properly testify, that the groaning was involuntary. No error was committed in striking out the testimony.

Plaintiff’s 11th assignment of error is as follows:

“ The court erred in permitting Gertrude Wilson, the divorced wife of plaintiff, to testify to confidential communications, communicated to her by plaintiff, while the marriage relation existed, and in refusing to strike out such testimony, upon motion made by one of plaintiff’s attorneys, Mr. Salisbury, for that purpose; and the court also erred in permitting Gertrude Wilson to testify that, when she was living with plaintiff, as his wife, plaintiff was troubled with his back and constipation, that he often used plasters on his back, and that he was constantly taking mineral water for his constipation, and in refusing to strike such testimony out.”

After the witness in question had testified to the fact that plaintiff had a weak back, wore plasters upon it, was troubled with constipation, and took bitter water from Mt. Clemens for that trouble, counsel for plaintiff interposed the following objection:

Mr. Salisbury: I would like to put an objection on record. We object to any further testimony on the part of this witness, and ask to have the testimony thus far given stricken from the records, because the relation of husband and wife existed between the parties during the periods to which she testified.
The Court: I think you may take the testimony until I study the case more carefully; if I desire to strike it out later, I will do so. Your objection may apply to further testimony, and to the refusal of the court to grant the motion to strike out.”

The witness then testified:

“I never knew Mr. Pierson to be free from constipation, and, when he was home, he was always taking the water. He used to refuse to ride in our carriage on account of hurting his back.”

Section 10213, 3 Comp. Laws, so far as applicable, is as follows:

“ Nor shall either [husband or wife], during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other, during the marriage.”

In the case of Hagerman v. Wigent, 108 Mich. 192 (65 N. W. 756), this court held the foregoing provision to be but declaratory of the common law, and that it referred only to communications, confidential in character, made by the husband or wife during coverture. Such communications are inadmissible. Maynard v. Vinton, 59 Mich. 139 (26 N. W. 401, 60 Am. Rep. 276); Hitchcock v. Moore, 70 Mich. 112 (37 N. W. 914, 14 Am. St. Rep. 474); Carter v. Hill, 81 Mich. 275 (45 N. W. 988).

It is therefore necessary to inquire whether the facts and communications, testified to by Gertrude Wilson, were such as to fall within the inhibition of the statute. We think they were. The law is founded upon sound public policy, and its beneficent operation should not be frittered away by over refinement. Defendant urges that the objection was not seasonably made, and that it was not in terms based upon the statute. Neither contention has weight. The trial court clearly understood the nature and force of the objection, and, after deliberation, allowed the testimony to stand.

Error is assigned upon the charge of the court. We are of opinion that the eharge carefully and properly instructs the jury as to the issues involved. After consideration thereof, it has been deemed unnecessary to discuss the other assignments of error.

Because of the error pointed out, the judgment is reversed, and a new trial ordered.

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


text:
    METROPOLITAN LIFE INSURANCE CO. v. FREEDMAN.

    1. Insurance — Annulment op Policy por Fraud — Fraud —Injunction.
    A policy of insurance procured by the beneficiary named in it on the life of his father, under false representations made as to the age of the insured and as to the rejection of insurance by other companies, ,may be annulled in equity at the suit of the insurer, and an action at law on the policy enjoined.
    2. Same — Fraud—Evidence op Intent.
    The acceptance and retention by the insured of a policy which contains a copy of the false representations made in the application for insurance furnishes evidence of a fraudulent intent.
    3. Same — Conspiracy—Fraud.
    The fact that false representations as to the rejection of the deceased by other companies were made by the agent for a company which had accepted the deceased as a risk, is not a defense to such suit in favor of the beneficiary who knew of the falsity of the statements and conspired with the agent to secure the policy.
    4. Same— Rescission — Return'op Premiums — Forfeiture Provisions.
    Premiums paid upon a policy in which a clause was incorporated providing that they should be forfeited in case the application contained fraudulent representations, should be returned if the policy is rescinded by the decree, although they could not be recovered in an action by the insured.
    5. Equity — Maxims.
    He who seeks equity must do equity.
    Appeal from Wayne; Rohnert, J.
    Submitted October 14, 1909.
    (Docket No. 33.)
    Decided December 10, 1909.
    Bill by the Metropolitan Life Insurance Company against Louis Freedman, executor of the last will and testament of Jacob Freedman, deceased, for the cancellation of a policy of insurance, and to restrain an action at law. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Haug & Yerbes (Maybury, Lucking, Emmons & Helfman, of counsel), for complainant.

      Sloman & Sloman, for defendant.

       Rehearing denied February 3, 1910.

   Brooke, J.

Complainant files its bill to procure the cancellation and delivery of a policy of insurance issued by it upon the life of Jacob Freedman, and to enjoin the further prosecution of a suit at law upon said policy, pending at the time the bill was filed. From a decree in favor of complainant, defendant appeals.

It is claimed by the complainant that the policy in question was fraudulently obtained from it at the instance of Louis Freedman, a son of the deceased, executor of his estate, and sole beneficiary of the insurance, under his father’s will. The fraud complained of .is, that in the application for insurance the deceased made false statements (1) as to his age; (2) as to rejections by other companies; (3) as to his health. The record is very voluminous. We believe that to exhaustively analyze the testimony, pro and con, upon a disputed question of fact, would be of no value to the profession. It has, however, been examined with care, and from such examination we think it conclusively appears that, at the time the application was written, Jacob Freedman was many years past the age of 59 (the age given in the application). It further appears that applications for insurance on his behalf had been rejected by other insurance companies prior to the date of the application for insurance in the complainant company. His application to the Metropolitan Company contained a representation and warranty to the contrary.

It is urged on behalf of the defendant that the deceased was an ignorant man, of' foreign birth, quite unable to read or write the English language, and speaking it but brokenly, and therefore it is not probable that he ever knew of the fraudulent character of the representations contained in the application, or made them wilfully and with intent to deceive. We do not think this position is tenable. It makes little difference in our opinion whether Jacob Freedman himself actually knew that the statements contained in this application, signed by him, were false, or ignorantly permitted himself to be used by his son Louis as a tool for the accomplishment of a fraud. The real defendant in this cause is Louis, the son, and it is entirely clear that he knew that his father’s age was greater than was represented, and that other insurance had been refused. This is apparent from the fact that the applications which were rejected were made at the instance of Louis, and in them he was named as beneficiary. In any event, a complete copy of the application (containing the false representations) was set out on the third page of the policy, which was in the possession of either Jacob, the insured, or Louis, his son, from the time it was issued until Jacob died. It was Jacob’s duty to know that the representations therein contained, and which constituted the inducement for the issuance of the policy, were true, and his silence during the life of the policy is persuasive proof of a fraudulent intent. Cleaver v. Insurance Co., 65 Mich. 527 (32 N. W. 660, 8 Am. St. Rep. 908); Haapa v. Insurance Co., 150 Mich. 467 (114 N. W. 380, 16 L. R. A. [N. S.] 1165, 121 Am. St. Rep. 627); Genrow v. Modern Woodmen, 151 Mich. 250 (114 N. W. 1009); New York Life Ins. Co. v. Fletcher, 117 U. S. 519 (6 Sup. Ct. 837); Maier v. Life Ass’n, 78 Fed. 566 (24 C. C. A. 239).

The defendant sought to show that the complainant had actual knowledge of the rejections, or might have learned of them by exercising reasonable diligence before issuing the policy, or, at any rate, before accepting the second premium.

It is urged, therefore, that complainant is estopped from setting up defendant’s fraud, particularly in view of the fact that complainant accepted a second premium when it knew, or might have known, the facts now relied upon by it. This contention would have force if the proofs sustained it. We are of the opinion that they do not. One Newton Burnham, an agent for the John Hancock Insurance Company, after insuring Jacob Freedman in his own company, seems to have aided Louis Freeman in the attempt to secure additional insurance on Jacob’s life. In furtherance of that design, he notified soliciting agents of other companies (including complainant) that policies might be written on Jacob’s life. He undoubtedly did this in some instances after he knew that insurance had been refused, but he was not the agent of the complainant, and owed it no duty. He did communicate the fact of the rejections to Louis, and, after such knowledge was communicated to Louis, he (Louis) caused further applications to be made. It would, we think, be a novel doctrine to permit Louis to urge the fraud of his co-conspirator in excuse or palliation of his own wrongdoing.

Paragraph 11 of complainant’s bill is as follows:

“ That the first two annual premiums upon said policy were paid to your orator, and such payments amount to the sum of $121.60,. and notwithstanding that said policy provided that, if any statement in the application herein referred to is not true, all premiums paid shall be forfeited to the company, and, notwithstanding your orator is lawfully entitled to retain said premiums, yet your orator is now ready to tender into court the sum of $121.60, and which sum the complainant is now ready to pay to the said Louis Freedman, executor, when so directed by this court; and your orator hereby offers to pay and tenders the same unto the register of this court, to be paid to the said defendant, Louis Freedman, executor, when so directed by this court.”

The last paragraph of the decree in the circuit court is as follows:

“It is further decreed that said policy is by this court declared to be null and void on account of fraud; therefore, that premiums shall be retained by the said complainant, but that no costs shall be awarded in this cause to either party.”

We are of the opinion that in the disposition of the premiums paid the learned circuit judge was in error. While it is true that where the policy is obtained by means of fraudulent misrepresentations, the premiums cannot be recovered back by the insured (see 2 May on Insurance [4th Ed.], § 567, and cases cited), we think a different rule obtains where the company seeks to avoid the contract on the ground of fraud. In that event, the complainant must recognize the maxim that he who seeks equity must do equity. It would, indeed, be strange, if the complainant could say:

This contract was obtained from me by fraud. Therefore, it is void — void, except as to the provision therein contained that, in the event of fraud, the premiums paid should be retained by the company. As to that provision, it is valid.”

No authorities need be cited to show the untenable character of such a claim. At the time the bill was filed the complainant itself recognized this fact, and it cannot now be heard to urge the contrary. The complainant should have recovered costs in the court below.

The decree of the circuit court will be modified, in that the complainant will be required to repay the amount of the two premiums collected, with interest thereon from the date of filing its bill. Complainant will recover costs of the circuit court to be taxed.

Defendant will recover costs of this appeal.

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


author: Ostrander, J.

text:
    COURSER v. JACKSON.
    1. Appeal and Error — Death—Necessity op Suggestion — Settlement op Bill op Exceptions.
    On error from a judgment for a defendant who died prior to the settlement of the bill of exceptions, and whose death was not suggested on the record, the court will not review such judgment until a party is substituted whom the judgment of the court would bind.
    2. Attorney and Client — Death—Authority.
    An attorney’s authority is generally terminated by the death of the client.
    Error to Montcalm; Davis, J.
    Submitted October 20, 1909.
    (Docket No. 127.)
    Decided December 10, 1909.
    Case by Arnold Courser, by next friend, against Homer Jackson for personal injuries. A judgment for defendant is reviewed by plaintiff on writ of error.
    Dismissed.

      Earl F. Phelps and L. G. Palmer, for appellant.
   Ostrander, J.

This cause was upon the calendar for this October, 1909, term of court, and was reached in its order on October 20th. Counsel did not appear, and but one brief, that for plaintiff and appellant, has been filed. The action is trespass on the cáse for damages for personal injuries alleged to have been inflicted by defendant upon the infant plaintiff. There has been no trial upon the merits, but the cause was brought on for trial at the October, 1908, term of the circuit court, where a judgment was rendered for the defendant. A motion to set aside the judgment and reinstate the case for trial was denied March 80, 1909, and later — we assume that it was on or about May 19, 1909 — a bill of exceptions was settled.

On October 18 and 19, 1909, there were filed in this court the affidavits, respectively, of counsel who appeared for defendant in the court below, from which it appears that on March 22, 1909, the defendant died, and that counsel, believing themselves to be without authority in that behalf, took no part in settling the bill of exceptions or in any proceedings thereafter had, and of that said conclusion and attitude informed counsel for appellant on or about the day that the bill of exceptions was noticed for settlement. To these alleged facts this court, by its clerk, called the attention of counsel for appellant, who had filed an affidavit and brief which do not dispute, but impliedly, at least, admit, that defendant died before exceptions were settled, and present the contention that, until counsel for the defendant suggest the death and bring upon the record the representatives of decedent, they are at liberty to proceed as though they in fact had no knowledge of defendant’s death. They say, too, that counsel for defendant are not in a position to raise the question. Counsel do not raise the question. It was proper, the names of counsel for defendant appearing upon the record, that they should advise the court of the situation. It must be assumed that their authority did not survive the death of their client. Plaintiff is the moving party in this litigation, seeking to obtain a judgment — in this court a judgment reversing a judgment in favor of defendant.

This court must decline to take action in the premises until a defendant upon whom its judgment will be binding is brought upon the record.

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


author: Moore, J.

text:
    SUCHOCKI v. CALUMET INSURANCE CO.
    Appeal and Error — Bill op Exceptions — Amendments.
    The amendment of a bill of exceptions to include an omitted bill of sale on the order of the Supreme Court (Suchocki v. Insurance Co., 158 Mich. 62 [122 N. W. 216]), in an action on an insurance policy wherein a verdict was directed in favor of the defendant on the ground that the plaintiff conveyed the insured property by bill of sale to secure a loan, is conclusive of the question whether or not the bill of sale was introduced in evidence.
    Error to Wayne; Rohnert, J.
    Submitted October 14, 1909.
    (Docket No. 104.)
    Decided December 10, 1909.
    Assumpsit by Wladislaw Suchocki against the Calumet Insurance Company on a policy of insurance. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Dohany & Dohany, for appellant.

      Russel, Campbell, Bulhley & Ledyard, for appellee.
   Moore, J.

The following statement of facts is taken from the brief of appellant:

“ On the 27th day of June, 1906, appellant was engaged in the saloon business in the city of Detroit, and on that date secured a policy of insurance in the sum of $1,500 from the appellee, covering his stock in trade, fixtures, and household furniture. On January 2, 1907, a fire occurred, and all of his stock, furniture, and fixtures were destroyed. Appellant brought this action on said policy, and the principal defense urged by appellee and upon which the court directed a verdict in appellee’s favor, was that appellant had, after the issuance of said policy, given a bill of sale, in the nature of a chattel mortgage on a portion of the property covered by the policy of insurance, for the sum of $70.”

The only error assigned is that the court erred in "directing a verdict in favor of defendant and against the plaintiff, of no cause of action, on the ground that "there was a bill of sale given, apparently from the testimony of witnesses, to secure the repayment of a loan on the property covered by the policy of insurance, on which at the time of the fire there was $40 due.”

Counsel say the instrument upon which the trial judge directed a verdict was not offered and received in evidence. That contention was before us in Suchocki v. Insurance Co., 158 Mich. 62 (122 N. W. 216), where it was ordered that an addition to the return of the writ of error and to the printed record should be made by adding thereto a copy of the bill of sale. This additional return disposes of the contention of counsel stated above.

The judgment is affirmed.

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