text:
    MATHER v. DAY,
    1. Arbitration — Validity of Award — Uncertainty.
    Where an award of arbitrators leaves the amount due from op.e party to the other to be determined from an examination of certain books of account, and such accounts are so incomplete that the amount awarded cannot be computed therefrom without the aid of other evidence, the award is void for uncertainty.
    2. Same.
    An award that is so uncertain and ambiguous in some of its parts that it cannot be enforced is void in tato, although sufficiently definite in other respécts; and especially is this so in a case where it was the intent of the parties that all differences existing between them with reference to the subject-matter of the submission should be determined by the arbitrators.
    3. Trial — Harmless Error.
    In'a case involving the validity of an award by arbitrators, the admission of evidence tending to show that one of the parties to the submission held a chattel mortgage against one of the arbitrators is not prejudicial, where the jury are afterwards instructed that the fact is immaterial and does not affect the validity of the award.
    Error to Wayne; Frazer, J.
    Submitted June 12, 1895.
    Decided September 26, 1895.

      Assumpsit by Horatio N. Mather against John C. Day to recover commissions for writing insurance. From a judgment for pluntiff, defendant brings error.
    Affirmed.

      Afkinson & Haigh, for appellant.

      Charles Flowers, for ajtpellee.
   Long, J.

The defendant is the general manager of the Equitable Life Assurance Society for this State. Plaintiff's action is for commissions on insurance written by himself and others whom he employed. Defendant pleaded the general issue, and gave notice of set-off and recoupment, alleging that the work was done under a special contract, which had not been kept by plaintiff, and for breach of which defendant claimed damages. The defendant also set up an agreement to submit the whole matter to arbitration, and the award of the arbitrators made under such submission, claiming it to be final, and that under it plaintiff was indebted to him in the sum of $146.

The disputed items in the bill of particulars are as follows:

The principal controversy arises over the claimed arbitration. It appears that a new contract was entered into on January 1, 1891, and when that expired the plaintiff claimed 10 per cent, on the premiums received by Muma and Sager; 5 per cent, on the premiums received by Heffron ; 70 per cent, of the premiums received on policies procured by him; a bonus of $3 per $1,000 on insurance procured by himself, Sager, and Muma; $195 for writing the quarterly premium insurance; and $40 for trips to Saginaw and Jackson. Defendant claims that plaintiff drew up articles of agreement for arbitration. This agreement was signed by the parties, and duly acknowledged. The arbitrators agreed upon were A. D. Colgrove, R. L. Warren, and A. P. T. Beniteau. The agreement is as follows:

“Detroit, Mich., February 16, 1892.
“Whereas, certain differences have arisen in the construction of a certain contract, under which EL N. Mather and his agents wrote applications for assurance and secured business for the Equitable Life Assurance Society, through J. C. Day, manager, for the year 1891:
“It is hereby agreed that said Day and Mather shall submit to three arbitrators said disputed questions in the contract for a settlement, and their decision shall be final in the closing of said contract for one year. Said Day and Mather are to select each one man, and, if they (said Day and. Mather) cannot agree on the third arbitrator, the two already chosen shall select the third arbitrator. It is agreed that no man is to be selected who bears any personal animosity against either said Day or Mather, and are to be men of fair and honorable business habits, having a knowledge of assurance methods, who are to agree, on the start, to honestly and fairly hear such evidence as said Day and Mather may offer on the questions in dispute, and further to agree that the same shall not by them be made public. Said Day and Mather agree to truthfully answer such questions before said arbitrators which may be mutually put to each other-by themselves, or by said arbitrators, bearing on the matters in dispute. All books and papers of the office shall be produced when called for by either party or arbitrators. Said arbitrators shall be selected as above within four days from date, who are to meet in the Equitable office within five days from date, and hear the evidence offered, and submit their report in writing.. The expenses of said arbitration to be equally divided between Day and Mather.”

The arbitrators met, examined the accounts, took testimony, heard arguments, and made an award, which, after the formal parts, states as follows:

“The contracts of said parties, and the books of the Michigan agency, containing the accounts between said parties, offered in evidence. By mutual agreement between said parties, each made his statement, with oath. M r. J ohn T. Liggett was sworn as a witness in behalf of Mr. Mather, and Mr. W. McCulloch was sworn as a witness in behalf of J. C. Day. The case was thereupon declared closed, the undersigned agreeing to meet the day following to prepare their findings, which are as foi-i lows:
“We believe that the proposition contained in the letter dated January 1,1891, a copy of which is hereto attached, was made and accepted with the intent that Mr. Mather should contribute his time and energies to the prosperity of the agency, and a knowledge of his ability to produce substantial business, and materially aid the manager in earning a bonus for writing $3,000,000 during the year. In view of the amount of business produced by Mr. Mather, we find that he did not perform his part of the agreement, and that he is not entitled to its benefits.
“If, from an inspection of the books, it shall be found that there are, at the time of reporting any premiums of Mather’s, sufficient credits to Mather to report such premiums on 65 per cent, basis, said Mather shall be credited with 65 per cent, on said premiums; if not, he shall be credited with 60 per cent.
“We find Mr. Mather entitled to 5 per cent, on the business written by Sager and Muma which was settled in cash.
“In witness whereof, we have hereunto subscribed our names this 20th day of February, 1892.
“A. D. COLGROVE,
“A. P. T. Beniteau,
“R. L. Warren.”

It appears that in the written contract of January 1, 1891, the terms of the plaintiff’s employment were specified. The letter referred to in the award of the arbitrators was written on the day the contract was made, and in which defendant says, “If the bonus of $9,000 is earned during the year, I will pay you $3 per thousand extra on all business that will count on the State bonus.” The contract of that date specified that plaintiff should contribute his time and energies to the prosperity of the agency. The arbitrators construed the letter as supplemental to the contract, and as part of it, and found that it was the intent that plaintiff should do this to earn the bonus provided in the letter. The plaintiff disregarded the award, and brought this suit.

The contention of the defendant is that there is no element of uncertainty in the award, and that the jury should have been instructed, as requested, that the award was valid, and -that it was their duty to ascertain the balance on the basis fixed by it. In Bush v. Davis, 34 Mich. 196, the rule was stated that, “if an award is sufficiently definite to be obligatory as a contract, it is sufficiently so as an award.” The submission refers to certain differences which have arisen in the construction of the contract under which Mather and his agents wrote applications for insurance and secured business for the Equitable Life Assurance Society for the year 1891, the claim being that the disputed questions in the contract should be submitted to arbitrators, and their decision to be final. This submission has reference to the contract of January 1, 1891, and the letter supplemental to it. The arbitrators so regarded the questions submitted to them, and found, under it, that Mr. Mather was not entitled to any part of the bonus. So far the decision of the arbitrators might be regarded as definite and certain; but by the award no amount is fixed and determined upon. The only finding is that “if, from an inspection of the books, it shall be found that there are, at the time of reporting any premiums of Mather’s, sufficient credits to Mather to report such premiums on 65 per cent, basis, said Mather shall be credited with 65 per cent, on said premiums; if not, he shall be credited with 60 per cent.” It is evident from the books of account offered in evidence, and from the testimony of the witnesses, that no one, from this award, could settle the differences between the parties. Something more than a mere computation would be necessary to determine the question submitted. But the court below submitted the whole question to the jury, as follows:

“In order to make this award binding upon these parties, it must be certain; it must refer to the matters submitted under the submission, and it must be so certain, that you can arrive at the determination of the arbitrators by resorting to no extraneous evidence; but if you can determine the amount that these arbitrators found under this award by an examination of these books, so that the accounts can be squarely stated between these parties from these books, on the matters described and mentioned in this award, without referring to evidence outside, — the condition of the books at the time the award was made, — then I charge you that this award is sufficiently certain to malee it binding upon these parties; and, if you find this award is binding, then you have nothing to do with any matters involved in this controversy covered by the contract of January 1, 1891.”

The books showed that a large part oí this account was entered upon them at a date subsequent to the time of making the award, which was February 20, 1892, much of the account appearing upon the books being under date of October 28, 1892; and the court charged that “the account, as it stood at the date of the arbitration, must furnish the basis for the computation, of the award. The entries afterwards made cannot be considered.”

We think it was proper to submit to the jury, under the circumstances, the questions arising under the submission and award. It is evident, from the finding of the jury, that they were unable to compute the award from the statement furnished, and therefore disregarded the award entirely, and entered upon the consideration of the general account between the parties. The award being too uncertain and ambiguous in some of its parts to be enforced, it was void in toto. It could not stand as to part of the submission, and be ineffectual as to the other matters therein contained. James v. Thurston, 1 Cliff. 367; Edwards v. Stevens, 1 Allen, 315; Morse, Arb. p. 341. This is especially so where it appears, as it does in the present case, that it was the intent of the parties that whatever differences existed as to the construction of the contract of 1891 should be determined by the arbitrators.

It is contended that the court erred in permitting the plaintiff to show that one of the arbitrators had on February 15,1892, — two days before his appointment as arbitrator, — given to the defendant a chattel mortgage of $300 on his household furniture. When the mortgage was offered in evidence, the court remarked: “I will allow this testimony for the present. You may introduce the paper.” Upon that subject the court charged the jury:

“The fact that one of the arbitrators was indebted to Mr. Day, and that a chattel mortgage was given by him to Mr. Day on certain property that he owned, is no reason why you should set aside this award, if you should find it right in other particulars, because I do not believe that is a sufficient reason in law; and I have serious doubts whether that award, for fraud or mistake, could be set aside in this controversy.”

The defendant certainly cannot complain that the chattel mortgage was put in evidence, when the court so specifically instructed the jury that it could not be taken into consideration.

Some other items are contained in the account, aside from those covered by the submission to arbitration. No strenuous contention is made but that they were fairly submitted to the jury. We find no other questions of sufficient importance to discuss. The ease seems to have been very fairly tried, and the charge of the court fully submitted to the jury all questions of fact of importance for determination. We find no error in the record calling for a reversal.

The judgment must be affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    BENEDICT v. ROOME.
    1. Mortgage — Duress—Husband and Wife — Threat of Criminal Prosecution.
    A mortgage executed by a wife under an implied threat of a criminal prosecution against her husband is obtained by duress and undue influence equally as if given under an express threat of prosecution.
    2. Same
    Complainant’s husband embezzled certain funds of defendants while in their employ. His conduct was disclosed to complainant by defendants’ attorney, who also advised her that it constituted a criminal offense; and on the afternoon of the same day she was informed by one of the defendants that he must have security or the money, or “there are the papers,” and “ I shall go on with the proceedings.” Complainant thereupon executed a mortgage to defendants upon her individual property for the amount of her husband’s defalcation. Held, that a decree setting aside the mortgage as having been procured by duress and undue influence was authorized.
    Appeal from Ionia; Davis, J.
    Submitted June 11, 1895.
    Decided September 26, 1895.
    Bill by Sarah. J. Benedict against William P. Roome and others to set aside a mortgage on the ground that it was executed under duress. From a decree for complainant, defendants appeal.
    Affirmed.

      R. A. Hawley, for complainant:
    The mortgage in question was obtained by duress, or by undue influence, amounting to the same thing in law. Buck v. Bank, 27 Mich. 293; Snyder v. Willey, 33 Mich. 483; Meeeh v. Lee, 82 Mich. 274; Cribbs v. Sowle, 87 Mich. 340; Miller v. Lumber Co., 98 Mich. 163; McCormick Harvesting Machine Co. v. Hamilton, 73 Wis. 486; Bank v. Kusworm, 88 Wis. 188; Harris v. Carmody, 131 Mass. 51; Morse v. Woodworth, 155 Mass. 233; Foley v. Greene, 14 R. I. 618; Bayley v. Williams, 4 Giff. 638; Coffman v. Bank, 5 Lea, 232; Express Co. v. Duffey, 48 Ga. 358; Bank v. Kirk, 90 Pa. St. 49; Town of Sharon v. Gager, 46 Conn. 189; McMahon v. Smith, 47 Conn. 221; Adams v. Bank, 116 N. Y. 606; Beindorff v. Kaufman, 41 Neb. 824.

      Lemuel Clute and Miller & Clute, for defendants:
    Counsel cited, to the contrary of the above proposition: 1 Bish. Cr. Law, § 714; Lefebvre v. Dutruit, 51 Wis. 326; Hackley v. Headley, 45 Mich, 574; Prichard v. Sharp, 51 Mich. 432; Wolf v. Troxell Estate, 94 Mich. 573; Miller v. Lumber Co., 98 Mich. 163; Mundy v. Whittemore, 15 Neb. 647; Horton v. Bloedorn, 37 Neb. 666; Stono v. Weiller, 10 N. Y. Supp. 828; Sprague v. Hosmer, 82 N. Y. 470; Metropolitan Life Ins. Co. v. Meeker, 85 N. X. 615; King v. Williams, 65 Iowa, 167; Gregor v. Hyde, 62 Fed. Rep. 107.
   Grant, J.

Complainant’s husband had been, for some years prior to the date of the mortgage involved in this case, a traveling salesman for the defendants, a copartnership of New York City, under the firm name of William P. Roome & Co. He collected moneys, amounting in all to about $800, belonging to his employers, and appropriated the same to his own use. Under his own admissions, he was guilty of the crime of embezzlement. His wife, the complainant, knew nothing of this state of affairs until about the time of the giving of the mortgage. He had no property. She owned a house and lot in the city of Ionia, which was deeded to her by her parents, in consideration of which she agreed to support them during their lives. Her father was dead, her mother living. Being unable to secure the payment of the money from Mr. Benedict, the defendants placed the claim in the hands of their attorneys for collection. One of the attorneys went to her house, a day or two before the mortgage was given, to see her in regard to the matter. Mr. Benedict came in before the attorney had disclosed his business, and nothing further was said. June 19,1893, one of the attorneys wrote a letter to complainant, requesting her to call at their office as soon as convenient, and he would finish the explanation he commenced with, her at her house. She did not go, but, on the morning of June 21st, she met the attorney in a store, who asked her to go to his office. On the way he told her that her husband was guilty of embezzlement, and that it was a criminal offense. In the office he explained the matter further, and read to her letters from Mr. Benedict to the firm, acknowledging his .use of the money. The attorney told her that he thought that perhaps she might be able to assist Mr. Benedict. She told him that she had nothing except her home, and that she felt she had no right to use that until her mother’s death. She declined to give the mortgage. Defendant Weir arrived at Ionia about 3 o’clock p. m. of the same day. He sent a letter to complainant, requesting her to meet him at the office of his attorneys. She went, and Mr. Weir then informed her that he must have security or the money. She said she would go home and talk with her mother, and return the next morning. He replied that he must leave that evening, and must know by 6 o’clock. He said: “I must have the money or the security, or there are the papers on the table, and I shall go on with the proceedings.” She went away, and returned in about an hour, and gave a mortgage upon her homestead to secure the amount of her husband’s embezzlement. She now asks to have this mortgage set aside on the ground of its procurement by duress and undue influence, and that it was given for the purpose of compounding a felony. Proofs were taken in open court, and decree entered for complainant.

We think the decree correct. It is unnecessary to detail the evidence at length. Mr. Weir and his attorney studiously sought to avoid any such threats as would vitiate the security they might take. If the court were to be governed alone by the words used to her by them, the position of the defendants might be sustained; but we cannot ignore the conclusion t'hat the conduct of her husband was suddenly disclosed to her, that she understood that he had committed a crime, and that the papers referred to by Mr. Weir as lying upon the table were prepared as the basis of a criminal prosecution. We think it clear that she gave the mortgage under an implied threat of criminal prosecution. If they so meant it, and she so understood it, and for that reason gave the mortgage, it was obtained by duress and undue influence, just as certainly as though an 'express threat had been made. The learned circuit judge saw the witnesses, and was therefore better able to judge their truthfulness and to reach a correct conclusion. We see no occasion to reverse the decree. The case comes within the rule established in the following cases: Meech v. Lee, 82 Mich. 274; Miller v. Lumber Co., 98 Mich. 163; McCormick Harvesting Machine Co. v. Hamilton, 73 Wis. 486

Decree affirmed, with costs.

The other Justices concurred.


text:
    MICHIGAN TRUST CO. v. BENNETT.
    1. Partnership — Conveyance by One Partner to Secure Firm Creditor.
    A conveyance by a partner of lands to which he holds the legal title, given as security for a bona fide indebtedness of the partnership, is valid as against the other creditors of the firm, whether the land be individual or partnership property

      2. Partnership — Tenancy in Common — Bona Fide Purchaser
    Where the legal title to partnership realty is vested in the-individual members of the firm as tenants in common, a conveyance by one partner of his undivided interest to a bona fidepurchaser is valid as against the firm creditors.
    Appeal from Montcalm; Dodds, J., presiding.
    Submitted June 12, 1895.
    Decided September 26, 1895.

      Bill by Seymour B. Gorham, assignee of Clarence W. and Merrick W. Chapin, against Frederick EL Bennett and others, to set aside certain conveyances on the ground that they were fraudulent as against the creditors of the assignors. The assignee having resigned, the Michigan Trust Company, as receiver, was substituted as complainant, and the cause proceeded From a decree for defendants, complainant appeals.
    Affirmed.
    Oscar Webber and Clarence W. Chapin, composing the firm of Webber & Chapin, bankers, became the owners of the land in dispute, having obtained the same in payment of a debt. June 26, 1883, Oscar Webber and wife conveyed an undivided half of said land to defendant Frederick EL Bennett for the expressed consideration of $1,400. The deed was not recorded until July 10, 1893. December 28, 1892, Webber & Chapin dissolved partnership; Webber selling out to Chapin, Merrick W. Chapin taking his place in the firm. The bank was indebted to defendant Spanogle in the sum of $1,800 for money deposited. Spanogle, hearing that the firm was in financial embarrassment, demanded the payment of his money. The firm was unable to pay, and thereupon Clarence W. Chapin and wife conveyed by deed to him •an undivided half interest in said land, and his interest in the personal property upon the farm, in payment of the claim. Afterwards, Chapin & Co made a general assignment for the- benefit of their creditors. This bill was filed by the assignee to set aside the two deeds,--one to Spanogle, and the other to Bennett, — and to recover the land for the benefit of the creditors. The testimony was taken in open court, and decree entered dismissing the bill as to Bennett, and holding that the conveyance to Spanogle was taken bona fide as a security for his debt, and that he should convey to the complainant upon the payment of his debt, with, interest and costs.

      Thomas F. McGarry, for complainant.

      F. A. Miller and William O. Webster, for defendants.
   Grant, J.

(aft&r stating the facts). It is conceded that Chapin & Co. were indebted to Spanogle in the sum of $1,800. The title to the undivided one-half interest in the land stood in Clarence W. Chapin. It is immaterial whether the land was the property of the bank or of Mr. Chapin. Mr. Spanogle had the undoubted right to secure his claim, either out of the firm property or out of the individual property of one of the‘members. There is no evidence that Spanogle acted in bad faith, or with any intent to assist Bennett and Chapin in defrauding the other creditors. There is good evidence to show that there was no considerable difference between the value of the property conveyed and the debt due. It is, however, of no consequence, because the assignee, by the decree of the court below, can obtain the entire value of the excess, if any, by paying the amount of the indebtedness, and from this decree Spanogle has not appealed.

Defendant Bennett testified that when he purchased the land from Webber he paid $1,400 in cash. Webber also testified to the same thing. Bennett went into possession immediately, and continued in possession thereafter, clearing up the land and erecting buildings. He used the proceeds of the land in supporting himself and family, and in these improvements. While there are some suspicious circumstances, such .as the failure to record the deed and the relationship of the parties, we do not think there is sufficient to justify the conclusion that Bennett did not pay the $1,400, or that the transaction is vitiated by fraud, which must be proven, and not based upon surmise. If Bennett actually paid the $1,400 to Webber, there is no reason why he should not be protected, although the purchase by Webber & Chapin was made with bank funds. Upon this record they were tenants in common, and each had the right to convey an undivided half interest to one who took without knowledge that the land was partnership property.

We see no reason to disturb the decree below, and it is affirmed, with costs.

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


author: McGrath, C. J.

text:
    MICHIGAN TRUST CO. v. CHAPIN.
    1. Husband and Wipe — Contract as to Services — Public Policy —Fraudulent Conveyances.
    An agreement whereby a husband is to pay to his wife a specified sum per year for her services as housekeeper is contrary to public policy, and a claim founded thereon will not support a conveyance to the wife as against the rights of creditors.
    2. Partnership — Homestead.
    One member of a firm cannot acquire a homestead intere?t m partnership property.
    3. Partnership — Fraudulent Conveyances — Rights op Attaching Creditor — General Assignment.
    An attachment creditor of a partnership may follow the interest of one of the firm in the partnership realty into the hands of a fraudulent grantee, notwithstanding the faot that such partner has withdrawn from the firm, and those succeeding to the business have assigned for the benefit of creditors.
    Appeal from Montcalm; Dodds, J., presiding.
    Submitted June 12, 1895.
    Decided September 26, 1895.
    Bill by Seymour B. Gorham, as general assignee of Clarence W. Oliapin and Merrick W. Chapin, against Clarence W. Chapin, Alice B. Chapin, and Jacob Neff, to subject certain lands to the purposes of the assignment. The assignee having resigned, the Michigan Trust Company, as receiver, was substituted as complainant. From a decree for complainant as against defendants Chapin, but dismissing the bill as to defendant Neff, complainant and defendants Chapin appeal.
    Affirmed.

      Thomas F. McGarry, for complainant.

      F. A. Miller and William O. Webster, for defendants Chapin.

      Clute & Clute, for defendant Neff.
   McGrath, C. J.

Oscar Webber and Clarence W. Chapin had been for many years engaged as partners in banking. They had acquired as such the real estate in question. On the 28th day of December, 1892, they entered into an agreement whereby Webber was to withdraw from the firm, was to receive $6,000, and the new firm of C. W. Chapin & Co., composed of defendant C. W. Chapin and his brother, Merrick W. Chapin, agreed to pay all outstanding indebtedness. On the 17th day of July, 1893, Webber and wife quitclaimed to Alice B. Chapin the lots in controversy. On August 23, 1893, Jacob Neff, a creditor of Webber & Chapin, sued out an attachment, and levied upon the lots so conveyed to Alice B. Chapin, who is the wife of defendant C. W. Chapin. On July 25,1893, Clarence W. Chapin and Merrick W. Chapin made an assignment to one Gorham, who filed this bill to set aside the deed to Alice B. Chapin as having been made without consideration and in fraud of creditors. Complainant prosecutes as receiver, afterwards appointed.

It is unnecessary to discuss the testimony as to the main question, as we are fully satisfied that at the time of the dissolution of the firm of Webber & Chapin the concern was insolvent, and that the agreement was part of a general scheme to relieve Webber, continue the business, and substitute C. W. Chapin & Co. as debtors. Before the assignment, a number of the creditors of Webber & Chapin had surrendered the evidences of indebtedness which were held by them at the time of the dissolution, and accepted C. W. Chapin & Co. The theory of the Chapins is that at the time of the dissolution it was agreed that Webber should convey Ms interest in the lots in question to whomsoever Chapin should direct, and that before the deed was executed he sent to Webber a draft of the deed running to Alice B. Chapin, which Webber and wife executed and returned. It is insisted on behalf of Alice B. Chapin — First, that she gave a valid consideration to her husband for the property; and, second, that it was the homestead of herself and husband. Alice B. Chapin’s claim is that at the time of the conveyance her husband was indebted to her, and that the indebtedness grew out of an agreement on his part, when they began housekeeping, to pay her $250 per year for her services as housekeeper. Such an agreement, if ever made, is contrary to public policy. The promise to pay for services which the very existence of the relation made it her duty to perform was without consideration. Schouler, Dom. Rel. § 43; Grant v. Green, 41 Iowa, 88. Respecting the homestead claim, C. W. Chapin and family had lived in a house upon the premises for a number of years, but it was nevertheless partnership property, and a homestead interest could not be acquired therein. “The assets of a partnership,” as is said in Hubbardston Lumber Co. v. Covert, 35 Mich. 254, “are held in a sort of community; but the partners do not hold as common tenants or joint tenants. The property is distinctly separated from that belonging to the individual members, and it constitutes an identical and entire interest. * * * As partner there is no power to bind individual interests.” Moran v. Palmer, 13 Mich. 367; Hutchinson v. Dubois, 45 Mich. 143; Way v. Stebbins, 47 Mich. 296; Bishop v. Hubbard, 23 Cal. 514; Robertshaw v. Hanway, 52 Miss. 713; Burnside v. Merrick, 4 Metc. (Mass.) 537; Uhler v. Semple, 20 N. J. Eq. 288.

As to the Neff attachment lien upon the property, Neff is a creditor of Webber & Chapin. He had an undoubted right to follow Webber’s interest in the property into the hands of a fraudulent vendee of that property.

The decree of the court below is affirmed, with costs to defendant Jacob Neff.

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


text:
    MAHIAT v. CODDE.
    1. Trial — Objections to Evidence — Appeal.
    An assignment of error founded upon a general objection to the admission of testimony will not be considered. Counsel must state the reasons for their objections, and will be limited upon appeal to the reasons stated.
    2. Motion for New Trial — Appeal.
    Reasons why a motion for a new trial should have been granted, which were not called to the attention of the lower court, will not be considered upon appeal.
    3. Instructions to Jury — Requests to Charge.
    Where all of the essential features of a case are covered by the instructions to the jury, it is sufficient. If counsel desire more explicit instructions, requests therefor should be presented.
    4. New Trial — Breach of Promts of Marriage — Excessive Damages.
    A verdict of $5,000 in an action for breach of promise of mar. riage is held not to have been so grossly excessive as to require the interference of the appellate court by granting a new trial.
    5. Breach of Promise of Marriage — Damages—Instructions to Jury.
    A charge to .ie jury as to the measure of damages in an action for breach oi promise of marriage, which was substantially the same as that given in Miller i Rosier, 31 Mich, 479, was approved.
    Error to Wavne; Frazer, J.
    Submitted June 12, 1895.
    Decided September 26, 1895.

      Assumpsit by Mary Mahiat against August Codde for breach of promise to marry. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Oscar M. Springer, for appellant.

      William Stacey, for appellee.
   Grant, J.

Plaintiff recovered verdict and judgment for $5,000 for breach of promise of marriage. The defendant’s wife died June 19th, and in August following be commenced his attentions to plaintiff. September 12th he proposed marriage to her. He admits the proposal. She testified that she promised to consider the proposal; that two days after he came for an 'answer, and she accepted. The acceptance is denied by him. The jury found that the marriage contract was consummated, and the proofs are ample to sustain their finding. His letter to her dated October 11th is conclusive on this point. Referring to the conduct of his daughter to the plaintiff shortly before, evidently owing to her opposition to the marriage, he wrote; “If the whole world torment ms against our union, there would be no change;” and signed himself “Your intended.” The question of the contract was, therefore, properly left to the jury, and their finding is conclusive.

1. Two questions were asked by plaintiff’s counsel to which counsel for defendant, according to the record, simply said, “Objected to,” giving no reasons for his objections. The reasons now urged against their admissibility are not such as would at once occur to the court. Such a statement is not a sufficient basis for an exception, and will not be considered upon appeal. Counsel must state the reasons for their objections, and will be limited, in this court, to the reasons stated. Abbott v. Chafee, 83 Mich. 256; Merkle v. Bennington Tp., 68 Mich. 133, and authorities there cited.

2. Counsel for defendant made a motion for a new trial, alleging 19 reasons therefor. This motion was overruled,

and the defendant excepted. The only error assigned upon this motion is that the court erred in denying it, for the reasons therein set forth. It is unnecessary to determine the question, urged by plaintiff’s counsel, whether the exception and assignment are sufficiently definite. Many of these reasons refer to points not raised upon the trial, and to which the attention of the court was not called. These cannot be considered upon review by this court. Waterman v. Waterman, 34 Mich. 490; Lane v. Pere Marquette Boom Co., 62 Mich. 63; Wicks v. Ross, 37 Mich. 464; Franklin Mining Co. v. Harris, 24 Mich. 115.

The instructions of the court covered all the essential features of the case, and were, therefore, sufficient. If counsel desired more explicit instructions, they should have presented their requests to the .court. Brown v. Furniture Co., 65 Mich. 360.

It was also insisted, upon the motion for a new trial, that the verdict was so excessive that the court should interpose and grant a new trial. The learned circuit judge passed upon this question, and decided otherwise. It is now urged, with great persistency, that this court-should reverse the verdict for that reason, and counsel make a strong argument upon the merits of the controversy, which would be very appropriate before a jury. The testimony is very strong that the plaintiff refused to live in the house in which defendant was then living; that she insisted upon a transfer of property to her, and that her sister should live with them, at Ms expense; and that she said he was too old, and she didn’t want him. Some of these statements were admitted and explained, and others denied. There was a clear conflict of evidence upon all the essential points of the case. The circumstances under wMch the contract was made and broken, and the financial condition of the parties, were fairly placed before the jury, whose peculiar province it was to assess the damages. We cannot hold the verdict to be so grossly excessive as to demand our interference by granting a new trial.

3. Error is assigned upon tbe instructions given at the request of the plaintiff. They were, in substance, the same as those approved by this court in Miller v. Rosier, 31 Mich. 479.

4. Complaint is made of the argument to the jury by the plaintiff’s counsel. We find nothing in it which requires a reversal of the case, and it would be of no benefit to the profession to quote the language complained of, with the explanation necessary to its full understanding.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    CHEEVER v. NORTH.
    1. Will — Revocation.
    The execution of a will containing no express clause of revocation does not, of its own force, operate to revoke a former will; and the subsequent destruction of the later will by the testator will effect a revival of the earlier one. A contrary rule is not implied by 2 How. Stat. § 5798, providing that no will shall be revoked except “ by some other will or codicil ” or by other specified means, but the statute is merely declaratory of the common-law rule that a later will, becoming operative by the death of the testator, revokes a prior inconsistent will.
    2. Same — Burden of Proof
    One who claims that a will was revoked by the subsequent execution of another will, which was afterwards destroyed by the testator, has the burden of proving that the later will contained an express clause of revocation.

      3. Will — Evidence oe Cancellation.
    Proof that a will was kept in the cu?' fiv of the testator, and could not be found after his death, raises a presumption that it was destroyed by him with the intention of canceling it.
    4. Evidence — Existence oe Codicil to Will.
    Testimony tending to show that a testator exhibited, a paper which was signed and witnessed, that such paper assumed to dispose of but a part of the testator’s property, and that he said at the time that it made some slight alterations in the terms of his original will, of which certain persons mentioned by him were executors, is sufficient to justify a finding that the paper was in facta codicil to an existing will wherein said parties were named as executors.
    5. Trial — Statements oe Counsel — Harmless Error.
    Upon the trial of an issue whether a will presented for probate had been revoked by a later will, a statement by proponent’s counsel that he proposed to show that the subsequent will had been destroyed by the contestant was not prejudicial to the latter, who was a beneficiary under the later will, where the jury were instructed that, if such will was destroyed by one other than the testator, it might be probated.
    6. Costs — Appeal erom Prorate Court.
    Under 2 How. Stat. § 6791, providing that in cases contested in probate court, or in the circuit upon appeal, the court may award costs to either party, in its discretion, to be paid by the other party or out of the estate in controversy; and 2 How. Stat. § 8982, providing that costs upon appeal from the probate court shall be paid by the appellant or respondent, as directed by the court, — no more than the actual taxable costs are allowable to a contestant of a will upon its admission to probate in the circuit court.
    Error to Washtenaw; Kinne, J.
    Submitted June 11, 1895.
    Decided September 26, 1895.
    Noah. W. Cheever and another presented for probate the will of Merchant H. Goodrich, deceased. From an order probating the will, A. Anna North and others appealed to the circuit court. Contestants bring error from a judgment admitting the will to probate, and proponents assign error upon that portion of the judgment awarding costs to contestants.
    Judgment modified and affirmed.

      Noah W. Cheever (John F. Lawrence and A. J. Sawyer, of counsel), for proponents.

      Thompson & Harriman (Thomas A. Bogle, of counsel), for contestants.
   Montgomery, J.

This is an appeal from the judgment of the circuit court probating the will of Merchant H. Goodrich, who died February 19, 1892. The will probated bore date May 12, 1888. It was in testimony, and not disputed, that deceased, in December, 1888, or January, 1889, executed another will, to which Dr. John Greenshields and R. L. Parkin were witnesses. There was also testimony tending to show that the will offered for probate was found among the papers of deceased, and that no other will or codicil was found. The jury found, answer to special questions, that the Greenshields and Parkin will was destroyed by decedent, and that a codicil, of which an abstract was in evidence in the case, was executed as a codicil to the will offered for probate, and that Goodrich also destroyed this codicil. The jury further found that the subsequent will, known as the “Greenshields and Parkin Will,” was executed by Goodrich, and that it made a complete disposition of his estate. There was no finding by the jury, nor was there any evidence, upon the subject of whether the subsequent will contained a revocation of the prior will, in terms.

1. The circuit judge charged the jury, in effect, that a second will, which contained an express revocation of a prior will, would have the effect to revoke it, but that, if the later will contained no clause revoking the former will, the subsequent destruction of the later will by the testator would revive the former will. There is an irreconcilable conflict of authority upon the question of the effect of the destruction of a second or subsequent will upon an earlier one. The great weight of authority is to the effect that the execution of a subsequent will, containing an express clause revoking the former will, operates as a revocation at once, and that the former will thus revoked cannot be subsequently revived, except by republication, and is not renewed by a destruction of the later will. James v. Marvin, 3 Conn. 576; Pickens v. Davis, 134 Mass. 252; Scott v. Fink, 45 Mich. 241, and cases cited. But we think the weight of authority, and also the previous expressions of this court in Scott v. Fink, favor the doctrine that, as to a will containing no express clause of revocation, it does not have the effect, of its own force, to revoke the former will, and that the destruction of such later will effects a revival of the earlier will. The cases which maintain this doctrine rest upon the ground that all wills are, in their nature, ambulatory until the testator’s death, at which time, and not before, the testament becomes operative. Flintham v. Bradford, 10 Pa. St. 82; Peck’s Appeal, 50 Conn. 562; Simmons v. Simmons, 26 Barb. 77; and cases cited supra.

We are cited to the statute (section 5793, 2 How. Stat.'i which provides:

“No will, nor any part thereof, shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator or by some person in his presence and by his direction; or by some other will or codicil, in writing, executed as prescribed in this chapter; or by some other writing, signed, attested, and subscribed in the manner provided in this chapter for the execution of a will.”

And it is urged, with much show of plausibility, that the execution of a new will operates, under this statute, to revoke the former will. Such, however, is not the strict reading. If, at tbe common law, a will duly executed is ambulatory, and is held, for the purposes of this question, to take effect only at the death of the testator, we think the statute should be construed as having reference to the common-law rule. The revocation may be by some other will, but it occurs when the will takes effect, not when executed. This statute no more than declares the common law on the subject. The precise question was involved in Peck’s Appeal, supra. The statute of Connecticut provides:

“No will or codicil shall he revoked except by burning, canceling, tearing, or obliterating it by the testator, or by some person in his presence by his direction, or by a later will or codicil.” Gen. Stat. 1875, p. 370.

It was said :

“Prior to 1821, as well as since, the law was so that a later will, when it took effect by the death of the testator, revoked a prior inconsistent one. That proposition is not questioned. If James v. Marvin is an authority, before the statute a subsequent will, containing no revocatory clause, did not, during the lifetime of the testator, revoke a prior will. In respect to that point, we do not think the statute was intended to make any change. * * * The testatrix, by executing the second will, evinced no intention to become intestate, but, rather, a contrary intention. By destroying the last will, and carefully preserving the first, she affords satisfactory evidence that she intended, until the very last, to die testate, and that that should be her will. In the absence of an express provision to that effect, we cannot presume that the legislature intended that the mere execution óf a will should, in all cases, revoke a prior will. Such a construction would in many cases defeat the manifest intention of the testator. The statute requires a ‘later will or codicil.’ iVe think that means an operative will or codicil.”

In Scott v. Fink it was said:

“There seems to have been a material distinction, and on good ground, between the state of a former will, after a second one merely inconsistent with it, and its state after a second one with a declaration expressly revoking it. In the first case the only chance for the second to operate in revocation of the first, according to the prevalent theories of. the courts, was by its coming to a head as an active will, which it could do only by surviving its author. Being the last expression of the decedent, and at the same time practically inconsistent with the prior one, the intent to repeal the first by it was to be implied. In case, however, of its being recalled by the testator in his lifetime, it could not, on the theory referred to, be taken to have had the effect to do away with its predecessor. Being cut off before having its dispositions of property awakened into life, it could have no affirmative operation, through its dispositions, upon the estate.”

And after holding that a will containing a clause of revocation does operate to revoke a former instantaneously, and of its own force, the court concludes by saying:

“Upon consideration, the doctrine of James v. Marvin, S Conn. 576; Boudinot v. Bradford, 2 Dali. 266; and others holding the same views, and ruling in accordance with what has just been expressed, — appears to be most consonant with our system and with popular understanding, and at the same time the most reasonable and safe.”

While it may be said that this language was not absolutely necessary to a determination of the case, yet it is evident that a conclusion was reached and the 'announcement made after careful deliberation; and we feel that we ought not to disturb the rule laid down, without being convinced of its error upon authority.

2.* The burden of proof is upon a party who asserts that the later will contained a clause of revocation. Thornt. Lost Wills, § 115; Beach, Wills, § 73; Caeman v. VanHarke, 33 Kan. 333. The circuit judge charged the jury:

“It is incumbent upon the party who claims that the second revokes the first will to establish, by a fair preponderance of the evidence, that it contained a clause of revocation. I am not aware that there is any direct evidence in this case that any of the later wills contained any express clause of revocation.”

Complaint is made of this, and it is discussed in the brief of counsel as though it related to the subject of the burden of proof to establish the destruction of the later will, which it clearly does not. It relates solely to the proof of the contents of the last or destroyed will. It is true that, the later will having been proven, this amounted to a revocation of the former will, if in existence at the time of the testator’s death. But if the fact is established that the will was kept in his custody, and could not be found after his death, this raised a presumption that the will was destroyed animo canoellandi. 1 Redf. Wills, 350. There was no request upon the subject of the burden of proof, and we do not think any error was committed by failing to charge upon this subject any more specifically, in the absence of requests.

3. Testimony was introduced showing that the decedent at one time exhibited to Dr. Lum and his wife a. paper which was either a will'or a codicil, and the jury, in answer to a special question, found this to have been a codicil to the will admitted to probate. It is contended that there was no evidence that this was a codicil to this will, and the court was asked so to charge. Mrs. Lum testified to an occasion when a transcript of a certain paper was made; that she and her husband were in the room of deceased; that he took out a sheet of foolscap paper, read portions of it, and asked her to sit down and copy off the purport of the paper. He toid her that Mr. Vance and Mr. Cheever were the executors of the will, and he said, at the last, that, if there were any changes in the will, he would let her know. She was then asked:

“Do you know the difference between a codicil and a will?”
“A. I did not at that time.
“Q. Do you know now?
“A. , You told me. Yes, sir.
“Q. After having been told the difference between a codicil and a will, I want to know what he said to you on that subject, if you can recollect anything he said about it.
“A. Simply that he had made this slight alteration in his original will. That was all.
“Q. That was all there was about that?
“A. That was all.”

She further testified that the paper which she saw was signed and witnessed. The only will of which Vance and Cheever are executors is the will offered for probate in this case. As before stated, Mrs. Lum made an abstract of this paper in the presence of decedent, which she retained. It appears that this abstract does not dispose of all the property. We think, under this testimony, that there was some evidence that this was a codicil to the will of 1888.

4. It is claimed that error was committed, when Mrs. Anna North was on the stand, by an offer on the part of proponents’ counsel to show that the subsequent will was destroyed by the witness. When this offer was made, counsel for contestants stated that, if proponents’ counsel desired to show that the witness destroyed the later will, he would concede it, for the purposes of the case, and go to the jury. It is difficult to conceive how this offer could have damaged the contestants, inasmuch as the court charged the jury, at their request, as follows:

“If you find the will witnessed by Dr. Green-shields and Dr. Parkin was not revoked or destroyed by Merchant H. Goodrich, but has been lost or destroyed by another person, it is still the last will and testament of Mr. Goodrich, and may be probated.”

The most that can be said is that it might have had a tendency to create a prejudice against the contestants. But the line of inquiry indulged by counsel was proper for the purpose of showing, if he could, by such cross-examination, a change in the state of the mind of the testator towards Mrs. North, who was one of the beneficiaries in the later will. We do not -think error was committed in this regard.

Other questions are presented by the appeal of the contestants, which we have examined, but deem it unnecessary to discuss in this opinion. We think no error was committed to the prejudice of the contestants.

The proponents also appeal from -an order of the court awarding $200 costs to the contestants. There -are two sections of the statute bearing upon this subject. Section 6791 reads as follows:

“In all cases that shall be contested either in the probate court or in the circuit court, such court may award costs to either party, in its discretion, to be paid by the other or to be paid out of the estate which is the subject of the controversy, as justice and equity shall require.”

Section 8982 provides that—

“Upon appeals from probate courts to a circuit court and from the circuit courts to the Supreme Court, costs shall be paid by the appellant or respondent, as shall be directed by the court to which the appeal is made; and upon affirming any sentence, determination, or decree, or upon the appeal being discontinued or quashed, the court may, in its discretion, award damages for the delay and vexation caused by such appeal.”

We think the costs should have been limited to the actual taxable costs, and the judgment will be so modified. The proponents will recover costs of this court.

The other Justices concurred.


text:
    TOLES v. MEDDAUGH.
    1. Landlord and Tenant — Eight op Possession — Trespass.
    Defendant had for several years occupied and worked certain land as a tenant, yielding to the owner a certain portion of the products as rent By an arrangement between the parties, defendant was to surrender the premises when they should be sold. Plaintiff purchased the land after defendant had sowed it to wheat. Held, that defendant was entitled to possession until he had harvested and threshed the wheat, and that, not having previously surrendered such possession, he was not liable to the plaintiff in trespass qu. cl. for acts committed during such period which were incident to his occupancy of the premises.
    2. Costs — Vexatious Appeal.
    An additional attorney fee of $25 was awarded to the appellee as for a vexatious appeal.

      Error to Ionia; Davis, J.
    Submitted June 14, 1895.
    Decided September 26, 1895.
    Trespass guare clausum fregit by James W. Toles against James Meddaugh. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      F. H. Stowe and John Nichol (R. A. Hawley, of counsel), for appellant.

      McGarry & Nichols, for appellee.
   Grant, J.

This is an action of trespass guare clausiwn fregit. Prior to April 11, 1892, the land described in the declaration, together with other lands, was owned by one George Lunn. Defendant had for several years occupied and worked the lands, two adjoining farms, as his tenant, yielding to him one-third of the products as rent. Defendant and Lunin had an agreement by which defendant was to surrender the premises to Lunn’s grantee when the lands were sold. The land in dispute was a 40-acre lot, sowed to wheat the fall previous. Plaintiff.purchased the land April 11, and obtained a deed April 20, 1892. Some time prior to the purchase he had a conversation with the defendant aboult buying this land, in which he told him that he was going to buy one of the places, but had not made up his mind which one. Defendant then informed him of his agreement with Lunn to give up possession when the land was sold. After obtaining his deed, plaintiff informed the defendant that he had purchased the land of which this 40 acres was a part, but said nothing to him about possession, nor did he serve any notice to quit. Defendant was entitled to possession until the wheat was harvested and threshed. Plaintiff, by his purchase, became entitled to Lunn’s share of the wheat. About May 1st defendant surrendered possession of the land, except the 40 acres, to one Austin, who leased it from plaintiff. Defendant harvested and stacked the wheat upon the 40 acres, and about the 1st of September threshed it, and gave plaintiff! his share. After harvesting, defendant, as had been his custom, turned his hogs into the lot, to eat the wheat left upon the ground, where they remained three or four weeks. They rooted up the ground some, and ate the grass, and apples which had fallen from the trees. After the wheat was threshed and removed, defendant abandoned possession. Up to this time nothing had been said between the parties about possession. A difficulty then arose between them about 30 rods of fence, which plaintiff claimed that defendant had removed. He then instituted this suit, claiming damages for the fence and for the iujury done by the hogs. Mr. Austin testified that the damage to the land and clover was from $3 to $5; that he judged tibe hogs ate from 15 to 25 bushels of apples, worth from 10 cents to 15 cents a bushel. In addition to these damages, plaintiff! claimed that defendant took out two lengths of fence, for the purpose of drawing the threshing machine in and out of the lot. Mr. Austin testified that it would not cost over 25 cents to replace these boards.

At the conclusion of the evidence the court directed a verdict for the defendant. The direction was correct. The defendant’s relation was not changed from that of a tenant to that of a mere cropper. He was entitled to and retained possession of the land until the wheat was harvested and threshed. All the acts complained of were committed before he had surrendered possession. He was not, therefore, guilty of trespass.

Another question was raised upon an amendment allowed to the plea, but this disposal of the case renders its determination unnecessary.

We think the appeal in this case was vexatious, and the defendant will therefore recover an additional attorney fee of $25.

The other Justices concurred.


text:
    BOEHME v. CITY OF MONROE.
    1. Municipal Corporations — Public Improvements — Assessment District — Reference to Plat.
    Where under proceedings to pave a street, instituted by a city incorporated under the general law (1 How. Stat. chap. 80), a plat and diagram of the proposed improvement has been filed with the city clerk, in compliance with section 2645, which includes all the parcels of land abutting on the portion of the street that is to be paved, and gives the relative location of each lot or parcel, the lot numbers, the names of the various plats in cases where the land has been platted, the frontage and boundary lines of each parcel, and the name of the owner of each, a resolution of the council designating the district to be assessed as' “ all the lots, premises, and parcels of land fronting upon” such portion of the street, “as shown by a map of the proposed district on file in the office of the city clerk,” sufficiently defines the assessment district.
    2. Municipal Corporations — Validity op Ordinance — Omission op Clerk.
    A municipal ordinance is not invalidated because of the failure of the city clerk to certify thereon, or in the journal of the council proceedings, the time when such ordinance was presented to the mayor for his approval, and the time of the return thereof, as required by 1 How. Stat. § 2532, where the ordinance was otherwise regularly passed, approved, recorded, and published.
    3. Municipal Corporations — Public Improvements — Board op Assessors.
    1 How. Stat. § 2643, provides for a board of assessors to levy special assessments in cities incorporated under .the general law, and, therefore, there is no necessity for the enactment of an ordinance providing for the creation of such a board, under section 2427.
    4. Same — Officers De Facto.
    Where the common council has assumed to appoint assessors under 1 How. Stat. § 2643, whether or not the persons so named were officers de jure will not be considered in a suit to restrain the collection of a special assessment made by them.

      6. Municipal Corporations — Public Improvements — Assessment District — Submission op Bonding Proposition.
    The fact that a resolution of the common council, providing for the submission to the electors of a proposition to bond the city for the expense of paving a certain portion of a street, states that the owners of property abutting on such portion are to pay a specified percentage of the cost of the improvement, will not invalidate the assessment thereafter made, on the ground that it was left to the people to define the assessment district, where such district was afterwards established by the council, in accordance with 1 How. Stat. § 2644.
    6. Same — Limitation op Amount op Assessment.
    A paving assessment which is divided into five annual installments, under 1 How. Stat. § 2658, none of which exceeds 5 per cent, of the assessed valuation.of the property within the assessment district, is not in violation of section 2699, limiting the amount to be raised in any one year, in any special assessment district, to 5 per cent, of the assessed valuation of the property included therein.
    7. Same — Assessment by Frontage — Railroad Companies.
    A railroad company is not liable to assessment for paving a street because its track is located therein, and abuts upon the section of the street so improved, although the assessment is made according to frontage.
    8. Same — Valuations on Roll.
    Under 1 How. Stat. § 2649,, requiring the board of assessors to enter upon a special assessment roll the valuation of each parcel within the district (as shown by the last preceding general assessment roll), the valuation of a parcel lying partly within and partly without the district may be apportioned, where it was assessed as one tract upon the general roll.
    9. Same — Issuance op Bonds — Enjoining Payment — Equity.
    An abutting owner, assessed for the paving of a street, cannot maintain a bill to enjoin the payment of bonds issued by the city to defray its proportion of the expense of the improvement, pursuant to a vote of the electors, on the ground that the city in fact paid a larger percentage of the cost than was specified to be paid by it in the resolution of submission.
    10. Same — Validity op Bonds.
    A resolution submitting to the electors the question of an issue of paving bondi provided that a certain percentage of the cost of the improvement should be paid according to frontage. The city owned a considerable extent of the frontage, and the amount apportionable to it by reason of such, ownership was made a general charge, reducing the percentage of the total cost actually assessed upon private property. All of the bonds were issued before the roll for the first installment of the assessment had been prepared, and the greater portion, before the amount to be specially assessed upon individual property had been ascertained. Held, that a bill would not lie to restrain the city from paying the bonds, on the ground that they were issued in violation of the vote of the electors.
    Appeal from Monroe; Kinne, J.
    Submitted June 18, 1895.
    Decided September 26, 1895.
    Bill by O. Augustus Boelune and others against the city of Monroe and others to restrain the collection of a special assessment, and for other relief in connection therewith. From, a decree dismissing the bill, complainants appeal.
    Affirmed.

      Ira G. Humphrey (J. O. Knowlton, of counsel), for complainants.

      C. A. Golden and A. B. Bragdon, for defendants.
   McGrath, C. J.

This is a bill filed to restrain the collection of a special assessment for paving First street, in the city of Monroe; to set aside the proceedings had therefor; and to restrain'the collection of the bonds issued in payment for said improvement. The reasons given are as follows:

(1) Because the resolution of the council did not define the paving district.

(2) Because the ordinances were not approved in the manner required by the charter.

(3) Because there is no ordinance providing for the creation of a board of assessors.

(4) Because the vote for assessors was by ballot, and not by ayes and nays, and there was therefore no board of assessors.

(5) Because it was submitted to the people to define the pretended district.

(6) Because the tax exceeds 5 per cent, of the assessed valuation of tlie pretended district, as assesssed for State and county taxation.

(7) Because the pretended assessment is made without any reference to benefits; neither is it according to frontage.

(8) Because the pretended board fixed their own valuations on many tracts.

(9) The bonds are illegal, and their payment should be enjoined:

(a) The improvement for which they were issued in payment is not a legal charge, either against the taxpayers or the city; therefore the council has no right to pay for the improvement.

(b) The bonds are issued in violation of the vote of the electors, which provided that the city at large should only pay for 65 per cent, of the cost of the improvement.

1. A plat and diagram had been filed with the city clerk, in compliance with 1 How. Stat. § 2645, which included all the parcels of land abutting on the street between the east line of East Chester street and the east line of Monroe street, giving the relative location of each lot or parcel; the lot numbers; the names of the various plats, where platted; the frontage and boundary lines of each parcel; and the name of the owner of each. The resolution of the council referred to the district as comprising—

“All the lots, premises, and parcels of land fronting upon First street, from the east line of East Chester street to the east line of Monroe street, as shown by a map of said proposed district, now on file in the office of the city clerk.”

The plat or diagram is required to be made and filed for the very purpose of inspection, and it was entirely competent to further describe the lots or parcels of land and the district by reference to the plat. In Whitney v. Village of Hudson, 69 Mich. 189, cited by counsel for complainants, it is said:

“Had all the real estate abutting on the street been platted into village lots, and the plat recorded, and had the resolution described the real estate to be assessed as all the lots and parts of lots fronting on or abutting on the street between certain points, according to the recorded plat, it would have definitely defined a district to be taxed.”

2. It is admitted that the ordinances referred to were each presented to, and signed and approved by, the mayor, within the time prescribed by the statute, and that the same were recorded by the city clerk in the record of ordinances kept by him, and that in said record, and following each ordinance, are the following certificates, in form, to wit:

“Passed a regular session of the common council, Monday evening [date being given]. Presented to the mayor, and approved by him [date being given].”
(Signed by the city clerk.)
“I do hereby certify that the above ordinance was published on the [date being given] in the Monroe Democrat; also, on [date being given], in the Monroe Commercial, — two newspapers published in said city.”
(Signed by the city clerk.)

It is further admitted that upon the original ordinances appears the following indorsement:

“The foregoing ordinance was presented to and approved by me this [giving date].”
(Signed by mayor.)

It is admitted that all of the records of council proceedings are signed by the city clerk, and signed and approved by the mayor.

The statute does not require that ordinances shall be recorded in the journal, but it does require that they shall be recorded “in a book to be called, 'The Record of Ordinances.’” 1 How. Stat. § 2534. The next section provides for the publication of ordinances, and for the clerk’s certificate thereof. The time When the ordinances are to take, effect is not made to depend upon the certificate of the clerk on the journal of the proceedings or on the ordinance, but is fixed by the ordinance itself. The approval of the mayor appears upon the original crdinance, and the council afterwards acted under the same. The ordinance is not invalidated because of the failure of the clerk to perform the duty imposed upon him. Stevenson v. Bay City, 26 Mich. 44.

3. The statute (1 How. Stat. § 2643) provides for a board of assessors.

4. The statute provides that they shall be appointed by the council. The method of choice is not prescribed. In any event, the persons named were officers de facto, and in this proceeding the court will not consider whether or not they were officers de jure.

5. The question submitted to the people was the issue of bonds, and not the assessment district. The district was referred to in describing* the improvement, and for the purpose of showing that a portion of the cost was to be defrayed by the persons immediately benefited thereby.

6. 1 How. Stat. § 2646, limits the amount to be levied by special -assessment upon *a.ny lot, for any one improvement, to 25 per cent, of the assessed value, while section 2699 limits the amount to be raised in any one year, in any special assessment district, to 5 per cent. The amount levied for this improvement did not exceed 25 per cent, in any case, and the whole amount was divided into five installments of less than 2.2 per cent, of the valuation -of the district. Sections 2658 et seq. contemplated the division of special assessments into not more than five installments, one of which shall be collected each year, and that special assessment rolls shall be made for each installment as the same shall fall due.

7. The cost of paving the intersections, as well as other public spaces, was paid out of the general fund. There is no force in the contention that, because a railroad company had its track in the street, it should have been assessed for the pavement thereof.

8. 1 How. Stat. § 2649, requires the assessors to enter upon each parcel of land within the district “the valuation thereof.” When the assessors undertook to do this, they found that certain of the lots fronting upon First street extended through to Second street, and that the assessment for State and county taxes included the entire parcel. The assessors apportioned the valuation, and reported that “that part of the tract or parcel of land within the paving district was appraised at such a proportion of the sum so assessed on the said ward rolls as we judged the value of the part within said district to bear to the value of the whole tract so assessed on said ward rolls.” We have no doubt of the power to make such apportionment in such case.

9. The resolution submitting the question of the issue of bonds to the electors provided, in' substance, that 85 per cent, of the cost.of the improvement should be paid according to frontage. Of this frontage the city owned nearly 500 feet, and its proportion was made a general charge, reducing the percentage of the whole actually assessed upon private property. It appears, also, that, of the bonds, three-fifths had been issued before the assessment was made, or the amount to be specially assessed upon individual property had been ascertained, and all of the bonds had been issued before the roll for the first installment was prepared. Again, complainants have no equities. Their complaint seems to be that they have not been assessed as much as they should have been.

The decree dismissing the bill is affirmed, with costs to defendants.

The other Justices concurred.


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    OLIVER & ROBERTS WIRE CO. v. WHEELER.
    1. Partnership — Fraudulent Conveyances — Transfer of Property to Pay Debts.
    The creditors of an insolvent partnership cannot complain of a transfer of firm assets in payment of a bona fide obligation upon which all of the members of the firm were jointly liable.
    3. Same.
    Defendant negotiated the sale of a stock of goods to L., agreeing to take his farm in exchange; but, it appearing that the value of the stock exceeded that of the farm, it was agreed that W. should enter into partnership with L., and a joint note was given by them to defendant for the amount of the excess in value. Several years later, the firm becoming embarrassed, defendant repurchased the Btock, turning out the note of W. and L. in part payment. Held, that the transfer was not fraudulent as to the creditors of the firm of W. & L., in the absence of actual fraud in the transaction, although, as between the individual members of the firm, the note was the obligation of W., and L. was merely a surety.
    Error to Shiawassee; Wisner, J.
    Submitted June 18, 1895.
    Decided September 26, 1895.
    Garnishment proceedings by the Oliver & Roberts I Wire Company against Francis M. Wheeler, as garnishee of Edward M. Wheeler and Charles E. Lovett, principal defendants. From a judgment for the garnishee defendant, plaintiff brings error.
    Affirmed.

      Lyon & Hadsall, for appellant.

      8. F. Smith, for appellee.
   Montgomery, J.

Plaintiff seeks to charge the defendant, by proceedings in garnishment, as having property, money, and effects in his hands belonging to Edward M. Wheeler and Charles E. Lovett, and as being indebted' to the principal defendants as copartners. Defendant disclosed, denying that he was indebted to, or had any property in his possession belonging to, the principal defendants. An examination was demanded, and was had before a circuit court commissioner, and it appeared from this examination that prior to September 25, 1891, defendant and Edward M. Wheeler had been conducting a hardware business at Owosso, under the firm name of Wheeler Bros. Edward M. had no capital invested, but had a working interest. At the above-mentioned date, the assets of the firm amounted to $8,100. Defendant, being the owner of the whole stock, negotiated a sale to Charles E. Lovett, agreeing to take his farm in exchange. Upon taking the inventory, it appeared that the value of the stock exceeded the value of the farm by $3,113.62. It was then agreed that Edward M. Wheeler should become a partner with Lovett, and a joint norte was made by Edward M. Wheeler and Charles E. Lovett for the. amount of the difference between the price of the stock and the farm. The business was conducted by Lovett and Wheeler until June 7, 1894, when the garnishee defendant, Francis M. Wheeler, bought back the stock, fixtures, and accounts, paying therefor $5,600, by assuming a chattel mortgage of $2,100, paying $1,000 in cash, and turning back to Wheeler & Lovett the note of $3,113.62, upon which there remained due to the defendant $2,500. The plaintiff demanded a trial of the issues, and a trial was had before the court with a jury.

Some of the assignments are based upon exceptions to testimony bearing upon the question of whether the note was received as a copartnership note, or as the note of W'heeler, upon which Lovett was surety. We think it unnecessary to discuss these exceptions in detail, for we think it appears by the original examination that the sale was made to Wheeler & Lovett, and that this note was received as a part of the consideration; and we think it is equally clear that, as between Wheeler and Lovett, the obligation was intended to be Wheeler’s, and that Lovett was a surety. Nevertheless, the note was a joint obligation of the two, in form and in law. It is contended that the note was the individual debt of one partner, and that, after the insolvency of the partnership, the partnership assets were turned out to pay the debt, with the knowledge of the party who took them, and that the creditors occupy a position entitling them to assail this transfer, and set it aside. We think this position cannot be maintained. This property was certainly equitably liable for the purchase price. The legal owners were jointly liable to the defendant, and the property was subject to be seized by a process against the two, who were the only members of the firm, and the only ones legally interested in the property. Pars. Partn. § 248, note 1; Hall v. Richardson, 66 N. H. 205; Saunders v. Reilly, 105 N. Y. 12; Couchman v. Maupin, 78 Ky. 33. This being the case, it would seem to follow logically that the parties might, by agreement, turn out the same property in the payment of a debt. The case is quite different than it would be if the debt were in fact the obligation of but a single partner, and thé property not subject to seizure. In a case of the distribution of the assets of a copartnership in bankruptcy, it is true, a creditor who holds the joint obligation of all the partners is not permitted to- share in the distribution of the copartnership property (Pars. Partn. § 391; Bates, Partn. § 829); although the authority upon this question is not-uniform (see cases cited in note to Bates, Partn. § 829, and the comments of the author in Pars. Partn. § 391). While recognizing this rule of distribution in bankruptcy, we can see no reason why, in case there is no infringement of the assignment statutes, and in the absence of a bankruptcy law, the legal owners of the property may not turn it out in payment of a debt upon which it is subject to seizure by legal process.

Plaintiff also insists that the question off whether this transfer was in fraud of creditors of Wheeler & Lovett should have been submitted to the jury; the statement in the brief being that payment for the property “by indorsement on an individual debt to .him of one partner, who wias his brother, of the greater portion of the purchase price, the price paid, and the indefiniteness, to say the least, as to what became of the $1,000 cash paid, which plaintiff insisted was a pretense merely, and intended only for the purpose of relieving the defendant from the position of having paid nearly the whole purchase price by a credit on a precedent debt from one partner to him, were all evidences of fraud, which the plaintiff was entitled to have submitted to the jury.” This contention is, in large part, based upon -the assumption that this was the individual debt of Edward M. Wheeler, whereas, in fact, as we have shown, it was the joint obligation of the two, and a demand enforceable against the two, and against the very property purchased by the defendant. Nor do we think there is any indefiniteness in the statement of the witness as to what was done with the $1,000 cash. He stated that it was laid down on the desk, but he does not know, which of the defendants took it. This can hardly be said to bo evidence of bad faith, and upon a full examination of the record, the case depending in most part upon the testimony of the garnishee defendant, we are unable to discover any fact or circumstance from which the jury would be justified in finding anything 'Other than that the defendant in goiod faith bought and paid for these goods, if, as matter of law, he was entitled to use in payment the note in question. Having determined that he had this right, we think no error was committed by withdrawing the case from the jury.

The judgment will be affirmed, with costs.

The other Justices concurred.


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    WOODEN v. MT. PLEASANT LUMBER & MANUFACTURING CO.
    1. Waters — Obstruction or Stream — Rights or Mill Owner.
    One who is not injured by the maintenance of a dam by means of which a mill is operated cannot, when sued by the mill owner for obstructing the natural flow of the stream to the mill,- defend by setting up that the dam was constructed without proper authority from the board of supervisors, under 1 How. Stat. § 494.
    2. 'Same.
    A log owner who fills the bed of a stream with logs in winter, when it is not navigable, thereby interrupting the natural flow of the water, is liable in damages to a lower proprietor who is injured thereby.
    Error to Isabella; Daboll, J., presiding.
    Submitted June 18, 1895.
    Decided September 26, 1895.
    Case by Sarah B. Wooden against the Mt. Pleasant Lumber & Manufacturing Company for the unlawful obstruction of a stream. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff owns a grist mill, propelled by water power, created by a dam across the river Chippewa. The dam was built in 1870, without any authority from the board of supervisors. In 1873 the then owner presented a petition to the board, in which he set forth the construction of the dam, the building of a chute or apron for the passage of logs and ñsh, and asked that the dam be declared by the board to be such a dam ias was required by law, and that it be allowed to remain as then constructed, and he be vested with the, rights and privileges granted to owners of dams under the law. The board adopted a resolution in accordance with the prayer of the petitioner.,
    The defendant, during the winter, put logs into the river and along its banks, about four miles above tbe dam, ready for driving in the spring. Tbe banks were low. Rollways were made, and logs piled upon them the whole width of the stream. Plaintiff claims that tbe effect of this was to stop the flow of tbe water so as to destroy tbe supply for her mill. This suit was instituted to recover damages for such unlawful act. Tbe defense was (1) that tbe dam was built without authority, and that tbe proceedings before tbe board of supervisors were void, because tbe petition was not in compliance with the statute, and that no notices of tbe petition were shown to have been posted in tbe several townships before tbe hearing; and (2) that the defendant banked its logs in the usual and a reasonable manner, and therefore is not liable for obstructing tbe flow.
    I. A. Faneher, for appellant.

      Free Estee (M. Brown, of counsel), for appellee.
   Grant, J.

(after stating the facts). Tbe defendant is not in position to raise tbe question of tbe regularity of the proceedings before the board of supervisors. No interference with its right of navigation for tbe purpose of running logs is claimed. Tbe plaintiff obtained tbe right of flowage over all tbe land affected thereby. Her business is a lawful one. The defendant is not injured by her act. It was not at tbe time engaged in navigation. Tbe stream at that time was covered with ice and snow, and could not be navigable until spring, after tbe ice and snow bad melted. Land-owners are entitled to the natural flow of the water, subject to such interference as is caused by tbe use of tbe stream for navigation in tbe usual manner. Even if plaintiff’s dam was constructed without proper authority, defendant, could not maintain a direct action to abate it as either a public or a private nuisance so long as defendant is not injured thereby. Gould, Waters, § 364; Brown v. Perkins, 12 Gray, 89. Much less will defendant be permitted to attack it collaterally.

Briefly stated, the second def ense is that a log owner may lawfully fill the bed of a stream with logs in winter, when it is not navigable, and obstruct 'the natural flow of the water for months, depriving land-owners below of its natural use, and flooding the lands above. The proposition carries with it its own refutation, and no argument can make it clearer. Land and mill owners are entitled to the natural flow of the water, subject to the reasonable use for the purposes qf navigation. Had these logs been placed in the river when it was navigable, for the purpose of running them, a different question would arise, which need not now be discussed, as it is not before us. The defendant was not using the stream for navigation, and its act was unreasonable and unlawful. As applied to the facts of this case, the instruction of the court below that the plaintiff was entitled to the natural flow of the water, so as not to injure her business, was correct.

Judgment affirmed.

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


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    CAMPAU v. CITY OF DETROIT.
    1. Municipal Corporations — Contract for Sewer — Construction.
    Plaintiff contracted with the defendant city to build a sewer between certain designated points, according to plans on file, for a specified price “ per lineal foot.” From the plans it appeared that a portion of the sewer was to consist of a single cylinder, 9 feet in diameter, and the remainder, of two parallel cylinders, each 6 feet, 8 inches, in diameter, with concrete between. The word-“sewer,” however, was used throughout to indicate the structure in all its parts. Held, that each cylinder should not be treated as a separate sewer in determining the amount to which plaintiff wa's entitled, but that payment should be limited to the number of lineal feet of the entire structure.
    2. Same — Alteration op Contract — Authority op Board op Public Works.
    A .city charter provided that no contract should be made for any public work unless approved by the council, and that all contracts should be let to the lowest responsible bidder. The board of public works, when the construction of a sewer should have been ordered, was required to advertise for proposals to execute the work according to plans and specifications, and was authorized to contract with the lowest bidder, and to supervise the work of construction. Held, that the board had no authority, without the approval of the council, to make any substantial change in the terms of an existing sewer contract, and that, therefore, the contractor could not recover extra compensation from the city because of a variation from the plan of the work, made by direction of the board.
    3. Same.
    A contract for the construction of a sewer provided that the work should be prosecuted in such order and at such places as the board of public works might direct; that the excavations should be made of such widths and in such direction as might be necessary; that any work which might be required to be done, but which was not specified in the contract, should be performed in accordance with the directions of the board, and should be paid for at its valuation; and that the contractor should perform the contract as specified, but should make any alterations in the form, dimensions, or materials that might be directed in writing by the board. Held, that no authority was conferred upon the board to make any material change in the plans as to the course or location of the sewer.
    Error to Wayne; Frazer, J.
    Submitted June 19, 1895.
    Decided September 26, 1895.

      Assumpsit by Theodore L. Campau against the city of Detroit to recover a balance claimed to be due for constructing a sewer. From a judgment for plaintiff for part of- his claim, both parties bring error.
    Reversed, and judgment entered for defendant.-

      Brooke & Spalding, for plaintiff.

      John J. Speed, for defendant.
   Montgomery, J.

This action was brought t-o recover for a balance claimed to be due for constructing a sewer in Woodward avenue in the city of Detroit. There was a written contract between the parties, executed on behalf of the city by the board of public works. On the trial the two questions presented were — First, whether, under the contract, the plaintiff was entitled to recover the price per foot stipulated, as determined by measuring each cylinder as a separate sewer, or whether he was limited to the number of lineal feet of the entire substructure; and, second, whether the plaintiff was entitled to recover -extra compensation for the reason that t7ieconstruction of the sewer was made more expensive by a variation from the line marked on the plan. The circuit judge held in favor of the plaintiff on the first proposition, but held that he was not entitled to recover for bxtra work. Both parties appeal.

1. The first question is to be determined by a construction of the contract. The agreement on the part of the plaiutiff, as expressed in the contract, wa,-s “to build and finish complete, together with the back filling, according to the plans on file in the board of public works office and the specifications hereto attached, Woodward avenue dock, outlet, and sewer, from river -to north line of State street. * * * The said construction shall, in all respects, be in accordance with the plan of said sewer on file in the office of said board.” The city undertook to pay “'for furnishing all the labor and material, except water-lime, and building and finishing complete, together with the back filling, according to the plans; * * * Woodward avenue dock, outlet, and’ sewer, from river to north line of State street, the sum of $14.49 per lineal foot.” The plan shows transverse sections, which are labeled, “Transverse Sections through Sewer.” This transverse section shows two cylinders, each 6' 8" in diameter, with concrete work between them. A portion of the sewer is a single cylinder, nine feet in diameter. At the foot of the plans is noted:

( Length of sewer and dock, 2,568 feet.
Sewer \ Size “ “ 2-6' 8" cyls., 2 R. C. B.
( “ “ “ 9' 0"cyl., 3 R. C. B.

The letters “R. C. B.” mean “rings of common brick.” The distance named is the single length of the Ime of sewer. We are all of the opinion that this contract should be construed as providing for the payment of $14.49 per lineal foot, and that it is not open to the construction that each cylinder was to be treated as a distinct sewer. The word “sewer” is used throughout to indicate the structure in all its parts, consisting of a single cylinder where but one is used, and including both cylinders where two are used, and, in either case, the masonwork, cement, etc., shown in the transverse section on the plan.

2. The plan upon which the bid was based indicated the course of the sewer, and, while the distance from the curb is mot marked in figures, it is claimed that the line which plaintiff attempted to build was in accordance with the plan. After he commenced work, the superintendent directed him to construct the sewer nearer the center of the street. The plaintiff protested, but did as directed, and subsequently served notice on the board of public works, stating that he would hold the city liable for the increased cost and damage resulting from the change. There was evidence that by reason of the change he came in contact with an old sewer for a portion of the distance, and additional expense was incurred by reason of this, amounting to about $4,000.

By the city charter, no contract can be made for any public work unless it (the contract) shall have been approved by tbe common council; and all contracts for the construction of sewers and other public works, where the expense of construction exceeds $200, must be entered into with the lowest responsible bidder. By the act creating the board of public works, the work of construction of sewers must be done after advertisement for proposals to execute the work according to plans and specifications, and the board is required to contract with the lowest responsible bidder. Charter and Laws of Detroit 1898, § 326. The board of public works is given authority to supervise the work of constructing sewers. Id. § 316. But no power is conferred upon the board to vary the contract, or to change plans and specifications. It is apparent from these provisions of law that the legislature has sought to guard against the making of contracts except by awarding them to the lowest bidder, and, by providing that the contracts shall be let in accordance with the plans and specifications, has erected a safeguard against such substantial departures as that in the present case. Similar provisions of municipal charters have been considered by the court in a number of cases. In City of Detroit v. Michigan Paving Co., 36 Mich. 335, it was held that the city could not be held for the expense of a public improvement, except under express contract conforming to charter conditions, and was not liable upon an implied contract. In McBrian v. City of Grand Rapids, 56 Mich. 108, it was said:

“The law holds those dealing with a municipal corporation to a knowledge of the extent of the authority conferred, and of the mode of its exercise, and of all illegalities committed by its agents in not pursuing the authority in the manner pointed out.”

In this case the plaintiff had but one contract with the city, and that was the one awarded to him after competitive bidding. If the demand of the superintendent was not justified by the contract, he had the right to refuse to proceed, but had not the right to demand compensation other than that provided by the contract. He was bound to know that neither the superintendent nor the board had authority to bind the city by any new contract with him, or by any substantial deviation from the contract which he had executed. If he proceeded, he must be held bound by the terms of the contract, and .limited to the compensation provided thereby. Any other rule would open the door in every case to an evasion of the statute, for, when a substantial departure is made, if it may be lawfully made by the board and bind the city, the compensation provided by the contract is no longer controlling, and a deviation which a jury may say is substantial would entitle the contractor, in every case, to recover on the quantum mer-uit.

Dut it is urged that the contract in this case provides • for changes and extras. Plaintiff’s counsel say:

“We do not contend that the plaintiff is entitled to recover damages for not being allowed to perform his contract according to its terms, or that the city is liable upon an implied contract arising from the doing and acceptance of work not contemplated by the contract. It is our claim that, under the terms of the contract and specifications, the line of the sewer might be changed, subject to the obligation to make fair compensation for extra work caused by thé change, and that the plaintiff was hound ho follow the line given him, although it departed from that laid down upon the plans.”

The provisions of the contract which are thought to sustain this contention will be separately considered. The first provision relied upon is: “The work embraced in this contract shall be prosecuted in such order, and at such places and parts of the work, as the said board may direct.” It is clear that this provision relates to the order of the work, and the places referred to are the places provided for by the contract.

The second provision referred to is contained in the specifications, and reads: “The excavations to be made to the depths shown on profile and plans on file in the office of the board of public w-orks, of such widths and in such direction as may be necessary.” This means “necessary to comply with the contract,” nothing more.

The third provision is: “Any work connected with the construction of said sewer which may be required to be done, but which is not specified herein, shall be performed .in accordance with the directions of said'board, and shall be paid for at their valuation.” If it be assumed that this provision is lawful, under the charter, it does not authorize a departure from the specifications. There is no pretense that the work done was not specified, but the claim is that it was made more expensive by a deviation from the course specified.

The only remaining provision is: “The said contractor hereby agrees that he will perform this contract as specified, but will make any alterations in the form, dimensions, or materials which may be directed in writing by the said board of public works.” This provision certainly does not authorize a change in the course or direction of the sewer.

None of these provisions, taken separately, nor all of them, read together, authorize any substantial change in the plans and specifications as to the course or location of the sewer. It is unnecessary to consider to what extent these provisions of the contract conflict with the charter provisions, as none of them sustain plaintiff’s claim. Nor is it necessary to consider the effect of a provision of the contract which makes the decision of the board final as to every question relating to the execution of the contract, as to which see Rens v. City of Grand Rapids, 73 Mich. 237. For the reason stated, we think the circuit judge was right in holding that the city was not liable on this branch of the case.

For the error committed on the first branch of the case, the judgment will be reversed, with costs of both courts, and no new trial ordered.

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

       Act No. 393, Laws of 1873.