author: Beasley, J.

text:
    ANDERSON’S VEHICLE SALES, INC v OMC-LINCOLN
    Docket No. 78-3839.
    Submitted June 21, 1979, at Detroit.
    Decided November 5, 1979.
    Anderson’s Vehicle Sales, Inc., has been the sole dealer in a tricounty area for Cushman light industrial vehicles under a year-to-year dealer agreement with OMC-Lincoln and its parent corporation, Outboard Marine Corporation, since 1966. On July 5, 1978, OMC-Lincoln and Outboard Marine Corporation terminated the dealer agreement upon 30-day written notice as provided under the terms of the agreement, and stated termination was effective August 5, 1978. On July 11, 1978, a new dealer-agreement statute was enacted, effective immediately, requiring 60 days written notice and cause as prerequisites for valid termination. Anderson’s Vehicle Sales, Inc., and its president, William Anderson, started suit in Oakland Circuit Court. Frederick C. Ziem, J., held that the new statute was not retroactive in its application and, therefore, did not apply to the termination. The court determined that, on its face, the termination was in accordance with the dealer agreement and therefore effective. Plaintiffs appeal. The issues on appeal are whether the effective date of the statute and its provisions control and have immediate application to dealer contracts already in existence and whether the statute unconstitutionally impairs substantial existing contractual rights in that it destroys the central undertaking of plaintiffs’ and defendants’ contract. Held:

    1. The Legislature intended that the dealer-agreement statute should have immediate effect regarding the practices that it proscribes. Defendants’ notice of termination was sent on July 5, 1978, before the' enactment of the statute, with termination to take place on August 5, 1978. Therefore, no retroactive application problem was presented because the termination of the dealer agreement was to occur subsequent to the effective date of the statute. Conduct violating the statute and occurring after July 11, 1978, is prohibited regardless of the date of the underlying dealer contract between the parties.

      References for Points in Headnotes
    [1] 17 Am Jur 2d, Contracts §§ 482, 497, 498, 509.
    [2, 4, 5] 17 Am Jur 2d, Contracts §§ 166, 168-170.
    [3] 17 Am Jur 2d, Contracts §§ 482, 496-498, 509.

      2. Enactment of the dealer-agreement statute was an exercise of police power which does not unconstitutionally impair the obligation of existing contracts because prohibiting termination of a contract where no just cause exists is not the pivotal provision in an agreement whose stated purpose is to govern all sale and purchase transactions between company and dealer, and because the Legislature has the power to regulate the potential inequities inherent in the relationship between manufacturers and dealers of motor vehicles and to make the enactment effective immediately as a means of remedying abuses and preventing the evils which the statute aims to correct.
    3. Defendants’ notice of termination alleged that there was reasonable cause for the termination of the dealership agreement. The statute provides a method for measuring whether or not the termination was reasonable and just. Remand will afford plaintiff an opportunity to have that issue decided.
    Reversed and remanded.
    1. Contracts — Motor Vehicle Dealership Agreements — Termination — Good Cause — Written Notice — Statutes.
    Dealership agreements between motor vehicle manufacturers and dealers of their motor vehicles, notwithstanding the terms, provisions, or conditions of the dealer agreement, require that the parties to the agreement act with good cause and in accordance with reasonable standards of fair dealing when terminating, cancelling, or failing to renew a dealership agreement; termination by a manufacturer or distributor requires 60 days written notice and the manufacturer or distributor has the burden of proof to show good cause for its termination, cancellation or failure to renew (MCL 445.522; MSA 19.856[2]).
    2. Statutes — Motor Vehicle Dealership Agreements — Termination — Effective Date of Statute — Retroactive Application.
    The inclusion of the words "notwithstanding the terms, provisions, or conditions of a dealer agreement” in the dealer-agreement statute, along with the language giving the statute immediate effect, indicates that the Legislature intended the act to have immediate effect regarding the practices it proscribes; therefore, where written notice of termination was before the effective date of the statute but termination was to take place on a date after the statute was enacted, the termination occurred subsequent to the effective date of the statute and there is no retroactivity problem because the statute prohibits termination of the contract, not just notice of termination (MCL 445.522; MSA 19.856[2]).
    3. Contracts — Motor Vehicle Dealership Agreements — Termination — Common-Law Rule — Good Faith — Statutory Rule — Reasonable Cause.
    Common law provides that termination of a contract at the option of a party is valid, but the option may be exercised only in good faith where the relationship is commercial and does not involve fancy, taste, sensibility, judgment, or other personal features; therefore, although the dealer-agreement statute requiring notice in writing and reasonable cause for termination of a dealership agreement is new, it merely involves an old concept in slightly different language.
    4. Statutes — Motor Vehicle Dealership Contracts — Legislative Intent — Remedial Purpose — Effective Date of Statute.
    The remedial purpose of the dealer-agreement statute indicates that the Legislature intended to make the effective date of the statute controlling and its provisions applicable to contracts in existence before the effective date of the statute as well as those entered into thereafter.
    5. Contracts — Motor Vehicle Dealership Agreements — Purpose of Agreements — Termination — Police Power — Statutes — Constitutional Act.
    The purpose of a dealership agreement is to govern all sales and purchase transactions between company and dealer; therefore, prohibiting termination of a dealership contract where no just cause for termination exists is not the pivotal provision in the agreement because it does not destroy the central undertaking; enactment of the dealer-agreement statute was an exercise of police power which does not unconstitutionally impair the obligation of such existing contracts because the Legislature has the power to regulate the potential inequities inherent in the relationship between manufacturers and dealers of motor vehicles and to make the enactment effective immediately as a means of remedying abuses and preventing the evils which the statute aims to correct.

      Butzel, Long, Gust, Klein & Van Zile (by John B. Weaver, Richard E. Rassel and David K. Easlick, Jr.), for plaintiffs.

      Davidson, Gotshall, Kohl, Secrest, Wardle, Lynch & Clark (by William P. Hampton and Laurel A. Ross), for defendant.
    Before: Bashara, P.J., and Beasley and J. C. Daner, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Beasley, J.

Since 1966, Anderson’s Vehicle Sales, Inc., has been the sole dealer in Oakland, Macomb and Wayne Counties for OMC-Lincoln’s line of Cushman light industrial vehicles under a dealer agreement which ran from year to year. On July 5, 1978, OMC-Lincoln and its parent corporation, Outboard Marine Corporation, terminated the dealer agreement upon 30-day written notice as provided under the terms of the agreement, and stated the termination was effective August 5, 1978. On July 11, 1978, the Legislature enacted, effective immediately, a new dealer-agreement statute requiring 60 days written notice and cause as prerequisites for valid termination.

Anderson’s Vehicle Sales, Inc., and William Anderson, president of Anderson’s Vehicle Sales, Inc., individually, promptly started suit and obtained an ex-parte injunction restraining OMC-Lincoln and Outboard Marine Corporation from putting the termination into effect. After a full hearing, the trial court dissolved the injunction and held that the new statute was not retroactive in its application and, therefore, did not apply to the termination. In accordance with that ruling, the trial court held that, on its face, the termination was in accordance with the dealer agreement and, thus, effective. Plaintiffs appeal by leave granted, and the injunction was peremptorily restored by this Court pending determination of the appeal.

We reverse the finding of the trial court and remand the case for hearing on the merits.

The new dealer-agreement statute (MCL 445.522; MSA 19.856[2]) reads:

"Sec. 2. (1) Notwithstanding the terms, provisions, or conditions of a dealer agreement, the parties to the agreement, in performing, dealing, or complying with the terms, provisions, or conditions of a dealer agreement or in terminating, canceling, or failing to renew a dealer agreement, shall act with good cause and in accordance with reasonable standards of fair dealing.
"(3) Notwithstanding the terms, provisions, or conditions of a dealer agreement, a manufacturer or distributor shall not terminate, cancel or fail to renew a dealership agreement without giving at least 60 days’ written notice of the termination for good cause shown. In a case where there is fraud, insolvency, closed doors, or failure to function in the ordinary course of business, a manufacturer shall give at least 15 days’ written notice. Upon a manufacturer’s or distributor’s termination, cancellation, or failure to renew a dealership agreement, the burden of proof to show the manufacturer’s or distributor’s acting with good cause shall be on the manufacturer or distributor.”

We find there is no retroactivity problem with the statute in that it prohibits the "termination” of the contract and not just the "notice of termination”. Termination took place August 5, 1978, and the statute had taken effect July 11, 1978; thus, the termination of the dealer agreement occurred subsequent to the effective date of the statute. Further, the inclusion in the statute of the words "Notwithstanding the terms, provisions, or conditions of a dealer agreement * * along with the language giving the statute immediate effect, indicates that the Legislature intended the act to have immediate effect regarding the practices that are proscribed.

The statute recognizes the economic disparity that usually exists between manufacturers and dealers of motor vehicles. In New Motor Vehicle Board of the State of California v Orrin W Fox Co, the United States Supreme Court quoted from the Senate report as follows:

" 'Dealers are with few exceptions completely dependent on the manufacturer for their supply of cars. When the dealer has invested to the extent required to secure a franchise, he becomes in a real sense the economic captive of his manufacturer. The substantial investment of his own personal funds by the dealer in the business, the inability to convert easily the facilities to other uses, the dependence upon a single manufacturer for supply of automobiles, and the difficulty of obtaining a franchise from another manufacturer all contribute toward making the dealer an easy prey for domination by the factory. On the other hand, from the standpoint of the automobile manufacturer, any single dealer is expendable. The faults of the factory-dealer system are directly attributable to the superior market position of the manufacturer.’ Senate Rep. No. 2073, p. 2, Automobile Dealers Day in Court, 84th Cong, 2d Sess, 195. See also S. MacAulay, Law and the Balance of Power: The Automobile Manufacturers and Their Dealers (Russell Sage 1966).”

Although this statute requiring notice in writing and reasonable cause for termination is new in Michigan, under common law, defendants’ conduct may also have been subject to scrutiny. In J R Watkins Co v Rich, the Court stated:

"A provision in a contract for termination at the option of a party is valid. But where the relationship is commercial and does not involve fancy, taste, sensibility, judgment, or other personal features, the option may be exercised only in good faith. Cummer v Butts, 40 Mich 322 (29 Am Rep 530) [1879]; Brucker v Railroad Co, 166 Mich 330 [130 NW 822 (1911)], Holton v Monarch Motor Car Co, 202 Mich 271 [168 NW 539 (1918)]; Brown v Board of Education, 117 Kan 256 (231 Pac 72) [1924]; Bishop v Bloomington Canning Co, 307 Ill 179 (138 NE 597) [1923]; 13 CJ, p 607.”

Thus, it can be argued that in prohibiting termination except for cause the new statute merely embodies an old concept in slightly different language.

Defendants argue that the act applies only to contracts entered into after the July 11, 1978, effective date of the statute. To hold with defendants’ position is untenable. For the Legislature to say that contracts in existence before the effective date could be terminated in violation of the terms of the statute, but ones entered into a day later were subject to all the provisions of the statute, would fly in the face of the remedial purposes of the act. We do not believe the Legislature so intended.

In McAvoy v H B Sherman Co, the Supreme Court considered the retroactive effect of legislation in the worker’s compensation law. Carriers and employers argued that the application of the amendatory language of 1975 PA 34 (MCL 418.862; MSA 17.237[862]) to cases involving injuries incurred or appeals taken by employees before the effective date of the act constituted an unconstitutional impairment of contractual obligations. The Court held, citing Lahti v Fosterling, that employers have no vested right or contract right that prohibits the Legislature from changing the remedies afforded employees under the worker’s compensation laws.

In the case at bar, we find the date of the underlying contract between the parties to be irrelevant. The statute regulates conduct occurring after the effective date of the legislation. Conduct violating the statute and occurring after July 11, 1978, is prohibited.

Defendants also claim that the act unconstitutionally impairs substantial existing contractual rights in that it destroys the central undertaking of plaintiffs’ and defendants’ contract. Prohibiting termination of a contract where no just cause for termination exists is not the pivotal provision in an agreement whose stated purpose was to "govern all sale and purchase transactions * * * between company and dealer”.

In Home Building & Loan Ass’n v Blaisdell, the United States Supreme Court quoted Justice Holmes, and went on to state:

" 'One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them. The contract will carry with it the infirmity of the subject matter.’
"The argument is pressed that in the cases we have cited the obligation of contracts was affected only incidentally. This argument proceeds upon a misconception. The question is not whether the legislative action affects contracts incidentally, or directly or indirectly, but whether the legislation is addressed to a legitimate end and the measures taken are reasonable and appropriate to that end.
"Whatever doubt there may have been that the protective power of the State, its police power, may be exercised—without violating the true intent of the provision of the Federal Constitution—in directly preventing the immediate and literal enforcement of contractual obligations by a temporary and conditional restraint, where vital public interests would otherwise suffer, was removed by our decisions relating to the enforcement of provisions of leases during a period of scarcity of housing.”

To say that this exercise of the police power unconstitutionally impairs the obligation of existing contracts is to ignore the lessons of the last 45 years; Blaisdell holds otherwise.

We find that the Legislature has the power to regulate the potential inequities inherent in the relationship between manufacturers and dealers of motor vehicles, and that the dealer-agreement statute affords a means for remedying the same. Support for this position comes in the United States Supreme Court’s upholding of a similar scheme with an identical purpose in New Motor Vehicle Board of California v Orrin W Fox Co, supra. While the issue confronting the United States Supreme Court was more narrow than the issue presented here, the Court recognized the broad legislative powers inherent in any scheme to regulate supposed abuses. The Court said:

"At least since the demise of the concept of 'substantive due process’ in the area of economic regulation, this Court has recognized that, '[legislative bodies have broad scope to experiment with economic problems * * *.' Ferguson v Skrupa, 372 US 726, 730 [83 S Ct 1028; 10 L Ed 2d 93] (1963). States may, through general ordinance, restrict the commercial use of property, see Euclid v Ambler Realty Co, 272 US 365 [47 S Ct 114; 71 L Ed 303] (1926), and the geographical location of commercial enterprises, see Williamson v Lee Optical Co, 348 US 483, 491 [75 S Ct 461; 99 L Ed 563] (1955). Moreover, '[c]ertain kinds of business may be prohibited; and the right to conduct a business, or to pursue a calling, may be conditioned * * * [Statutes prescribing the terms upon which those conducting certain businesses may contract, or imposing terms if they enter into agreements, are within the state’s competency.’ Nebbia v New York, 291 US 502, 528 [54 S Ct 505; 78 L Ed 940] (1934).

"In particular, the California Legislature was empowered to subordinate the franchise rights of automobile manufacturers to the conflicting rights of their franchisees where necessary to prevent unfair or oppressive trade practices. '[S]tates have power to legislate against what are found to be injurious practices in their internal commercial and business affairs, so long as their laws do not run afoul of some specific federal constitutional prohibition, or of some valid federal law * * *. [T]he due process clause is [not] to be so broadly construed that the Congress and state legislatures are put in a straitjacket when they attempt to suppress business and industrial conditions which they regard as offensive to the public welfare.’ Lincoln Union v Northwestern Co, 335 US 525, 536-537 [69 S Ct 251; 93 L Ed 212] (1949). See also North Dakota Board of Pharmacy v Snyder’s Drug Stores, Inc, 414 US 156 [94 S Ct 407; 38 L Ed 2d 379] (1973); Ferguson v Skrupa, supra, Williamson v Lee Optical Co, supra.’'

Certainly, that broad legislative power includes the power to make the enactment effective immediately so as to prevent the evils which the statute aims to correct.

In this case, defendants’ notice of termination alleged that there was reasonable cause for the termination. The statute provides a method for measuring whether or not the termination was reasonable and just. Remand will afford plaintiff an opportunity to have that issue decided.

Reversed and remanded.

       See, Briggs v Campbell, Wyant & Cannon Foundry Co, 379 Mich 160, 164; 150 NW2d 752 (1967).

       439 US 96, 100, fn 4; 99 S Ct 403; 58 L Ed 2d 361 (1978).

       See, Murphy v Seed-Roberts Agency, Inc, 79 Mich App 1; 261 NW2d 198 (1977).

         254 Mich 82, 84-85; 235 NW 845 (1931).

       401 Mich 419; 258 NW2d 414 (1977).

        US Const, art 1, § 10; Mich Const 1963, art 1, § 10.

       357 Mich 578; 99 NW2d 490 (1959).

       US Const, Art 1, § 10; Mich Const 1963, art 1, § 10.

       290 US 398, 437-440; 54 S Ct 231; 78 L Ed 413 (1934).

       439 US 96, 106-107; 99 S Ct 403; 58 L Ed 2d 361 (1978). However, this view is not unanimous; e.g., Shell Oil Co v Marinello, 63 NJ 402; 307 A2d 598 (1973), Ruiz v Economics Laboratory, Inc, 274 F Supp 14 (D Puerto Rico, 1967), Superior Motors, Inc v Winnebago Industries, Inc, 359 F Supp 773 (D SC, 1973), Willys Motors, Inc v Northwest Kaiser-Willys, Inc, 142 F Supp 469 (D Minn, 1956), Clifford Jacobs Motors, Inc v Chrysler Corp, 357 F Supp 564 (SD Ohio, 1973), among others. Also see, Anno: Validity and construction of state statutes forbidding area price discrimination, 67 ALR3d 26, § 6 (1973).


source: Caselaw Access Project

author: E. F. Oppliger, J.

license: Public Domain

text:
    JOHNSON v JOHNSON
    Docket No. 78-3869.
    Submitted June 13, 1979, at Grand Rapids.
    Decided November 5, 1979.
    Robert C. Johnson filed suit for divorce against Karen Johnson in the Muskegon Circuit Court alleging one child of the parties. At trial, plaintiff orally amended his complaint to allege that he was not the father of the child. The only testimony at trial was by defendant, Karen Johnson, who stated that she assumed the plaintiff was not the father because she was told by her doctor, two months after first meeting plaintiff, that she was about three months pregnant. She also testified that she told plaintiff her condition on the day she found out, that she and plaintiff were married about 3-1/2 months later and that the child was born after the marriage. The child’s last name is Johnson, plaintiff is listed as the father on the birth certificate and, until commencement of the divorce action, plaintiff supported and cared for the child. The trial court, John H. Piercey, J., held that plaintiff was not the father of the child and had no duty to support it. Defendant appeals. Held:

    It is presumed, by statute and case law, that any child conceived or born to a married couple prior to the commencement of a suit for divorce is legitimate. This presumption may be rebutted only by clear and convincing evidence. The fact that the child was born during wedlock presents a strong claim to legitimacy, regardless of whether defendant claims plaintiff to be the father or not. The fact that the child was born during wedlock foreclosed any support action by defendant against any third party. The presumption was not rebutted by clear and convincing evidence. Furthermore, under the facts of this case, plaintiff is estopped to deny paternity.

      References for Points in Headnotes
    [1] 10 Am Jur 2d, Bastards § 15.
    [2] 10 Am Jur 2d, Bastards § 13.
    Presumption of legitimacy, or of paternity, of child conceived or born before marriage. 57 ALR2d 729.
    [3] 10 Am Jur 2d, Bastards § 69.
    [4] 10 Am Jur 2d, Bastards § 52.
    What amounts to recognition within statutes affecting the status or rights of illegitimates. 33 ALR2d 705.

      Reversed.
    1. Divorce — Children — Presumptions — Legitimacy — Statutes.
    It is presumed, by statute and by case law, that any child conceived or born to a married couple prior to the commencement of a suit for divorce is legitimate; this presumption may be rebutted only by clear and convincing evidence.
    2. Parent and Child — Presumptions — Legitimacy.
    A trial court erred in holding that a man who was married to a woman was not the father of a child born to the woman during the marriage upon the sole testimony of the woman to the effect that she presumed the man was not the father because ■ her doctor informed her two months after she met the man that she was "about three months pregnant” and she did not know she was pregnant prior to meeting him.
    3. Bastards — Bastardy — Bar to Bastardy Action.
    A pregnant woman who, prior to giving birth, married a man not the biological father is foreclosed from seeking support from the biological father.
    4. Parent and Child — Paternity — Estoppel.
    A man who knowingly marries a pregnant woman and who assumes the status of a father to her child for a period of nine years is estopped to deny paternity of the child.

      White, Spaniola, Knudsen, Stariha & Potuznik, P.C., for plaintiff.

      Bruce Krueger and Douglas J. Dok, Jr., Legal Aid of Western Michigan, for defendant.
    Before: D. F. Walsh, P.J., and M. J. Kelly and E. F. Oppliger, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   E. F. Oppliger, J.

Defendant appeals that portion of the divorce judgment entered in the trial court holding that the plaintiff was not the father of her child and had no duty to support the child. She alleges on appeal that the trial court’s finding of nonpaternity was clearly erroneous.

In his verified complaint, plaintiff alleged that the child, born on June 28, 1968, was a child of the parties to the divorce action. At trial, plaintiffs counsel orally amended the complaint to aver that plaintiff was not the father of the child born during the marriage.

The trial was brief, consisting only of testimony of the defendant. Both on direct and cross-examination, she stated that she had assumed plaintiff was not the father of her child because she had been informed by her doctor approximately two months after she met plaintiff that she was "about three months pregnant”. However, she also testified that she did not know that she was pregnant before she met the plaintiff in the fall of 1967. She learned of her pregnancy in late November, 1967. The parties were married on March 8, 1968. The child was born on June 29, 1968.

The child received the surname Johnson and plaintiff was listed on the birth certificate as the father. Plaintiff supported and cared for the child as his own until this action commenced in November, 1977.

Based on defendant’s testimony of her uncertainty as to her child’s father, the trial court held that plaintiff was not the father of the child and further held that plaintiff had no duty of support.

The Supreme Court declared in Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), that parties to a divorce action have a right to testify to nonaccess to affect the legitimacy of a child born in wedlock. It is nevertheless the clear holding of Serafin that there is still the "viable and strong, though rebuttable, presumption of legitimacy”. Id., 636. That presumption may be overcome only by "clear and convincing evidence”. Shepherd v Shepherd, 81 Mich App 465, 469; 265 NW2d 374 (1978).

Defendant argues that the trial court erred in finding that the presumption of legitimacy was overcome by clear and convincing evidence. We are compelled to agree that the trial court misapplied this standard.

The divorce trial was brief, with the substance of defendant’s testimony as recounted above. Following that testimony, the trial court observed:

"Well, I think the principal issue has been resolved here.
I can’t, in the face of the evidence presented here, reach the conclusion that he is the father of the child * * * >>

Later, after reciting the clear and convincing evidence standard of Serafín, the trial court stated:

"There is no claim, apparently, no claim, no efficacious claim presented to this Court by the Defendant that the Plaintiff is in fact the father of the child.”

Thus, the trial judge has so clearly reversed the presumption of legitimacy in this case that we cannot uphold his finding of nonpaternity. The trial judge stated that defendant made no claim that plaintiff was the father of this child. However, the very fact the child was born during wedlock presents a very strong claim of legitimacy. Once testimony of birth within wedlock is received, the court need not struggle to "reach the conclusion” of paternity. A prima facie case of paternity has been established which may be rebutted only by clear and convincing evidence. By unrebutted testimony the child was born during wedlock, eight months after plaintiff and defendant met, within the outer limits of the period of gestation which has been said to be between 240 and 300 days. People v Case, 171 Mich 282; 137 NW 55 (1912).

Defendant’s claim that the child was born during wedlock, standing alone, creates a presumption of legitimacy which is one of the strongest presumptions known in the law. Shepherd, supra. In this case, it was rebutted only by defendant’s testimony that she was unsure whether plaintiff could be the father of her child. We believe that the trial court’s finding of nonpaternity is erroneous in that it is not supported by clear and convincing evidence of illegitimacy required by Serafín, supra, Shepherd, supra.

This case also raises the question of an estoppel to deny parentage. Plaintiff married defendant knowing that she was carrying a child for whom he was possibly the biological father. More importantly, plaintiff held himself out as the father and supporter of this child for more than nine years.

Even if plaintiff were not the biological father of the child, by marrying defendant he forecloses any action by her to seek support from the child’s biological father. Actions under the paternity act are authorized only where the woman was unmarried from the conception to the date of birth of the child. MCL 722.711(a) and (b), 722.714(b); MSA 25.491(a) and (b), MSA 25.494(b). As the Ohio court observed in Burse v Burse, 48 Ohio App 2d 244, 248; 356 NE2d 755 (1976), "the man at the time he marries the woman, knowing the woman is pregnant by another man, should be cognizant that he is foreclosing the chances of the unborn child being legitimized by its natural father and is barring a bastardy action by the mother against the natural father”.

Plaintiff assumed the status of father of this child when the child was born and continued as such for ten years until he amended his divorce complaint at trial. As the child was born during the marriage while the parties lived together as husband and wife, it was not necessary for plaintiff to go through adoption proceedings. Conversely, after plaintiff has represented himself as the father of this child for nine to ten years, he may not now say that he was not.

On the facts of this case the Court is compelled to hold that plaintiff is estopped by his conduct to deny paternity of this child.

For the above reasons, we reverse.


author:
J. H. Gillis, P.J.
      Beasley, J.

text:
    PEOPLE v LeBEUF
    Docket No. 78-3910.
    Submitted June 14, 1979, at Detroit.
    Decided November 5, 1979.
    Robert A. LeBeuf was charged with possession of phencyclidine. The Wayne Circuit Court, Charles S. Farmer, J., granted defendant’s motion to suppress the evidence and to quash the information. The evidence suppressed was a quantity of pills seized from defendant during a pat-down search conducted when the defendant was arrested for a traffic violation. The people appeal by leave granted. Held:

    The facts indicate that the drugs were discovered by the police during a search incident to a full custodial arrest for a traffic offense. The search was valid; therefore, the trial court erred in suppressing the evidence and quashing the information.
    Reversed and remanded.
    Beasley, J., dissented. He would affirm because he would not find the trial court’s decision to be clearly erroneous.
    Opinion of the Court
    1. Searches and Seizures — Drugs and Narcotics — Evidence.
    A police officer who has arrested a suspect may search the suspect for weapons; a quantity of drugs discovered during such a search is not the result of an unreasonable search and seizure and may be admitted into evidence.
    Dissent by Beasley, J.
    2. Appeal and Error — Clear Error — Standard of Review.

      The Court of Appeals applies a standard of "clearly erroneous” when reviewing a trial court’s order to suppress evidence and dismiss charges; a finding is ''clearly erroneous” where, although there is evidence to support the ñnding, the reviewing court, on the entire evidence, is left with a Srm conviction that
      a mistake has been made, and in the absence of clear error, the trial court’s decision should be affirmed.

      References for Points in Headnotes
    [1] 68 Am Jur 2d, Searches and Seizures §§ 92, 93.
    [2] 5 Am Jur 2d, Appeal and Error § 880.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.

      Colista, Green, Green & Adams (by Richard C. Kaufman), for defendant.
    Before: J. H. Gillis, P.J., and Beasley and R. M. Ransom, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   J. H. Gillis, P.J.

Defendant was charged with possession of 20 purple tablets containing phencyclidine in violation, of the Controlled Substances Act, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b).

After preliminary examination, defendant was bound over for trial on the charge. Defendant filed a written motion to suppress the evidence and to quash the information, which was granted after oral argument.

The prosecution appeals, and the matter is before this Court on grant of the application for delayed appeal.

The facts are that on June 10, 1977, at approximately 8 p.m., two officers, driving a marked patrol vehicle, observed an automobile approaching from the opposite direction. The approaching vehicle had a damaged windshield, with cracks apparently obscuring the driver’s vision. The vehicle was pulled over for this traffic ordinance violation.

Upon approaching the vehicle, one of the officers observed two half quart beer cans lying on the floor of the car, one in front of the passenger and one in front of defendant driver. Each can was open. The officer asked the men to hand him the cans, which they did. He discovered the cans were half full of beer and ordered the occupants out of the vehicle and placed them under arrest for transporting open intoxicants in a vehicle.

After conducting a pat-down search for weapons, the officer felt an object in defendant’s right front pocket. He removed the object, which was a plastic container labeled "Vanquish”. The officer found some 20 purple capsules within it. Knowing that Vanquish capsules are white, the officer placed defendant under arrest and delivered the capsules to the narcotics laboratory where they were determined to be phencyclidine, a schedule 3 controlled substance, MCL 335.318(l)(b); MSA 18.1070(18)(l)(b), the possession of which constitutes a 2-year felony by virtue of the above-cited statute.

As indicated, the trial judge granted defendant’s motion to suppress the evidence and quash the information, finding the officer’s action to constitute an unreasonable search and seizure. We disagree and reverse.

The facts in the instant case disclose a search incident to a full custodial arrest for a traffic offense. The right to search incident to a lawful arrest is within the bounds of the Fourth Amendment. The search conducted in the instant matter was a valid exercise of that right. See People v Garcia, 81 Mich App 260, 273-278; 265 NW2d 115 (1978), (J. H. Gillis, J. dissenting), People v Cavitt, 86 Mich App 59, 62-63; 272 NW2d 196 (1978), (Bashara, J., dissenting).

Reversed and remanded for trial.

R. M. Ransom, J., concurred.

Beasley, J.

(dissenting). I respectfully dissent.

I accept the correctness of the recitals of fact contained in the majority opinion.

In reviewing a trial court’s order to suppress evidence and dismiss the charges, this Court applies a "clearly erroneous” standard. A finding is "clearly erroneous” when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been made.

In this case, I do not find the trial court’s analysis and findings in conflict with the decisions of this Court in People v Garcia, People v Cavitt, or People v Strong. While recognizing that, like the three cited cases, this is also a close case, I would not find the trial court’s decision clearly erroneous. Consequently, I would affirm.

         People v Goss, 89 Mich 598; 280 NW2d 608 (1979), People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978), People v Robertson, 81 Mich App 446; 265 NW2d 365 (1978), People v Terrell, 77 Mich App 676; 259 NW2d 187 (1977).

         People v Goss, supra, People v Hummel, 19 Mich App 266, 270; 172 NW2d 550 (1969).

       81 Mich App 260; 265 NW2d 115 (1978).

       86 Mich App 59; 272 NW2d 196 (1979).

       77 Mich App 281; 258 NW2d 205 (1977).


author: D. C. Riley, J.

text:
    PEOPLE v KRIST
    Docket No. 78-154.
    Submitted June 22, 1979, at Detroit.
    Decided November 6, 1979.
    Leave to appeal denied, 407 Mich 963.
    Larry Krist was convicted of two counts of armed robbery in St. Clair Circuit Court, Halford J. Streeter, J. Two weeks prior to trial the defendant informed the trial court that he no longer desired to be represented by his appointed counsel. The defendant’s counsel moved to withdraw, said motion being denied by the trial court. On the day of trial, the defendant sought appointment of a new counsel, alleging that his appointed counsel had on prior occasions demonstrated a lack of preparedness and had not acted in the defendant’s best interests. The trial court denied the request for a new appointed counsel, and the defendant proceeded to trial with the counsel who had been previously appointed.
    The two counts of armed robbery arose out of separate robberies of two party stores occurring within a two hour period. The proofs showed that, during the first robbery, the defendant announced that he was armed with a gun, but that neither the defendant nor his co-participant, Thomas Surline, was observed with a gun or anything like a gun. Surline, who testified on behalf of the prosecution, testified that neither he nor the defendant had a gun. At the close of the proofs, the defendant moved to dismiss the first count of armed robbery by reason of the lack of evidence of a weapon. The trial court denied the motion.

      References for Points in Headnotes
    [1, 2] 67 Am Jur 2d, Robbery § 4.
    [3] 73 Am Jur 2d, Statutes § 295.
    [4] 67 Am Jur 2d, Robbery §§ 4, 6.
    [5, 9] 5 Am Jur 2d, Appeal and Error § 778.
    [6, 7] 21 Am Jur 2d, Criminal Law § 321.
    Accused right to choose particular counsel appointed to assist him. 66 ALR3d 996.
    [8] 21 Am Jur 2d, Criminal Law §§ 319, 321.
    [10] 5 Am Jur 2d, Appeal and Error § 807.
    Propriety and prejudicial effect of informing jury that accused has taken polygraph test, where results of test would be inadmissible in evidence. 88 ALR3d 227.
    [11] 5 Am Jur 2d, Appeal and Error §§ 778, 807.

      The defendant appeals alleging error in the trial court’s refusal to dismiss the first count of armed robbery, error in the failure of the trial court to hold an evidentiary hearing regarding the pre-custody photographic identification without counsel being present and error flowing from ineffective assistance of counsel. Held:

    1. The essential elements of armed robbery are that: (1) an assault was committed by the defendant upon the complainant; (2) the defendant feloniously took from the complainant, or in his presence, property which might be the subject of a larceny; and (3) the defendant was armed with a weapon as described in the statute. Armed robbery is distinguished from unarmed robbery by the element requiring proof that the perpetrator of the robbery used a dangerous weapon or an article used or fashioned so as to lead the person assaulted to reasonably believe that the article was a dangerous weapon.
    2. Applying the rule of statutory construction that criminal statutes should be strictly construed, mere proof of oral statements made by the defendant during the robbery that he is armed with a dangerous weapon is insufficient to establish the "being armed” element of the armed robbery statute. In order to satisfy that statutory element, some physical manifestation of the existence of a dangerous weapon or an article reasonably believed to be a dangerous weapon must be shown. The conviction for armed robbery under the first count must, accordingly, be reduced to a conviction for unarmed robbery.
    3. Any error in failing to hold an evidentiary hearing relative to the validity of the pre-custody photographic identification without counsel being present is harmless error, since the evidence of guilt was overwhelming and the in-court identification of the defendant had a basis independent from any pretrial identification procedure.
    4. While a defendant is not entitled to an appointed attorney of his own choosing, he is entitled to have his appointed counsel replaced upon a showing of good cause, providing that the substitution of counsel does not unreasonably disrupt the judicial process. The decision regarding substitution of an appointed counsel is addressed to the discretion of the trial court and will not be disturbed on appeal absent a showing of abuse of discretion. Allegations of inadequate assistance of counsel on the basis of lack of preparation must be supported, on appeal, by a showing of prejudice arising out of the counsel’s lack of preparation.
    5. A disagreement between a defendant and his appointed counsel regarding trial strategy, in the absence of a bona fide irreconcilable dispute regarding a substantial defense, does not constitute sufficient grounds for appointment of a new counsel.
    6. The failure of appointed counsel to move for separate trials on the two armed robbery counts does not mandate reversal on the basis of inadequate assistance of counsel. Even if it was error on the part of counsel to fail to request severance, the failure to so request severance did not appreciably affect the defendant’s chances of acquittal, since, because of the similarities between the two crimes and their temporal proximity, evidence of the other robbery would have been admissible in each of the trials had severance been granted.
    7. The decision of appointed counsel to pursue the matter of a polygraph test of Surline, during the cross-examination of that witness, was a matter of trial strategy and did not deny the defendant a fair trial or effective assistance of counsel. The questions were designed to impugn Surline’s reputation and did not elicit the results of the polygraph test. Further, the trial court cautioned the jury to disregard any reference to the polygraph test.
    8. While it was improper to admit the testimony relative to Surline’s prior offer to commit an armed robbery, the admission of that testimony did not result in reversible error, since the record established that Surline’s statements were made some time prior to the robberies at issue and were not linked to the defendant, and since the trial court gave a limiting instruction to the jury.
    Reversed in part, affirmed in part.
    1. Robbery — Armed Robbery — Elements — Statutes.
    The essential elements of armed robbery are that: (1) an assault was committed by defendant upon the complainant; (2) the defendant feloniously took from the complainant or in her presence property which might be the subject of a larceny; and (3) the defendant was armed with a weapon as described in the statute (MCL 750.529; MSA 28.797).
    2. Robbery — Armed Robbery — Unarmed Robbery.
    Armed robbery is distinguished from unarmed robbery by the element requiring proof that the perpetrator of the robbery used a dangerous weapon or an article used or fashioned so as to lead the person assaulted to reasonably believe that the article was a dangerous weapon.
    3. Criminal Law — Statutes — Construction.
    Criminal statutes are to be strictly construed.
    4. Robbery — Armed Robbery — Evidence — Statutes.
    Proof of oral statements made by a defendant during a robbery that he is armed with a dangerous weapon is insufficient to establish the "being armed” requirement of the armed robbery statute; some physical manifestation of the existence of a dangerous weapon or some article reasonably believed to be a dangerous weapon is necessary to establish the "being armed” element (MCL 750.529; MSA 28.797).
    5. Criminal Law — Pretrial Identification — Evidence — Harmless Error.
    Any error in failing to hold an evidentiary hearing relative to the validity of a pre-custody photographic identification without counsel being present is harmless error where the evidence of guilt is overwhelming and the in-court identification of defendant had a basis independent from any pretrial identification procedure.
    6. Attorney and Client — Criminal Law — Appointed Counsel — Substitution — Discretion — Appeal and Error.
    A criminal defendant, while not entitled to an appointed attorney of his own choosing, is entitled to have his assigned counsel replaced upon a showing of good cause, providing that substitution of counsel does not unreasonably disrupt the judicial process; the decision regarding substitution is addressed to the discretion of the trial court and will not be overturned on appeal absent a showing of an abuse of discretion.
    7. Attorney and Client — Criminal Law — Appeal and Error —
    Assistance of Counsel — Lack of Preparation — Prejudice. A criminal defendant alleging inadequate assistance of counsel by reason of counsel’s lack of preparation must show, on appeal, prejudice originating from counsel’s lack of preparation.
    8. Attorney and Client — Criminal Law — Appointed Counsel — Disagreement With Counsel.
    A disagreement between a criminal defendant and his appointed counsel regarding trial strategy, in the absence of a bona fide irreconcilable dispute regarding a substantial defense, does not constitute sufficient grounds for appointment of a new counsel.

      9. Attorney and Client — Criminal Law — Assistance of Counsel — Severance of Trials — Prejudice.
    The failure of counsel to move for separate trials on two robbery counts does not mandate reversal on the basis of inadequate assistance of counsel where the evidence against defendant on each count was abundant and where, because of the factual similarities between the two crimes and their temporal proximity, evidence of each crime would be admissible in the trial of the other, the failure to move for severance not appreciably affecting defendant’s chances of acquittal.
    10. Attorney and Client — Criminal Law — Assistance of Counsel — Examination of Witnesses — Polygraph Test — Trial Strategy.
    The decision of counsel to pursue the matter of a polygraph test of a witness for the prosecution during the cross-examination of that witness was a matter of trial strategy and did not deny defendant a fair trial or effective assistance of counsel where the questions asked, which were designed to impugn the witness’s credibility, did not elicit the results of the polygraph test and where the trial court cautioned the jury to disregard any reference to the polygraph test.
    11. Evidence — Criminal Law — Prior Offer to Commit a Crime — Admission — Harmless Error.
    The improper admission of testimony relative to a prior offer to commit a crime made by the defendant’s co-participant did not result in reversible error where it was established on the record at trial that defendant was not present at the time the statement was made and the trial court gave a limiting instruction to the jury.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people.

      Kathleen M. Cummings, Assistant State Appellate Defender, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and D. C. Riley and J. X. Theiler, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   D. C. Riley, J.

Defendant was tried and jury convicted of two counts of armed robbery, MCL 750.529; MSA 28.797. He was thereafter sentenced to concurrent terms of 14 to 20 years imprisonment on each count, and appeals by right.

The evidence presented at trial involved two closely related robberies. On December 10, 1976, at approximately 10:30 p.m., two men robbed the Beverage Barn, a take-out convenience store in Port Huron. On December 11, 1976, at about 12:10 a.m., 1-1/2 to 2 hours after the first robbery, a similar crime took place at Walsh’s Party Store, also in Port Huron.

Witness Timothy Tiegeler, a clerk at the Beverage Barn, testified that as he returned from the stockroom he was struck, thrown to the floor near the cash register and ordered to lie still. One of the assailant’s said, "that they had a .357 magnum and they were going to blow my head oif”. Tiegeler stated that although he never saw a gun, nor anything that looked like a gun, he conducted himself as though one was trained on him because of the threat made.

Various witnesses, present at Walsh’s Party Store stated that an "armed robbery” was specifically announced. In addition, co-participant Thomas Surline was variously described by four witnesses as waving his hand in his coat pocket and shouting "I have a gun, I have a gun”.

Surline testified for the prosecution, and admitted his participation in the two robberies, stating that he and Krist had spent the evening of December 10, 1976, drinking heavily and smoking marijuana. He remarked that Krist had told an attendant at the Beverage Barn that he possessed a gun. Surline stated that, after going to two other bars nearby, they both robbed Walsh’s Party Store. He further indicated that it was he who had his hand in his pocket, but asserted that he held a bottle of beer, and not a gun. On cross-examination, Surline claimed that neither he nor Krist actually had a weapon. He further testified that he had never seen defendant with a gun of any type.

Other facts necessary to the resolution of the five issues raised by defendant on appeal are discussed where pertinent.

Defendant initially contends that the trial judge erred in refusing to dismiss Count I (Beverage Barn robbery) because no evidence was adduced at trial showing that defendant was armed with a weapon as required by the armed robbery statute, MCL 750.529, which provides that:

"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.” (Emphasis supplied.)

The essential components of the statute mandate a showing that (1) an assault was committed by defendant upon the complainant; (2) the defendant feloniously took property which might be the subject of larceny from the complainant or in his presence; and (3) the defendant was armed with a weapon as described in the statute. People v Beebe, 70 Mich App 154, 157-158; 245 NW2d 547 (1976), People v Karasek, 63 Mich App 706, 710; 234 NW2d 761 (1975).

Armed robbery is distinguished from unarmed robbery, MCL 750.530; MSA 28.798, by the element of a dangerous weapon, or any article so used or fashioned. Both crimes involve the element of assault and fear. With regard to its third requirement, the armed robbery statute evidences a dichotomous intermix between two separate measures of governmental proof. Verification of a "dangerous weapon” or "an article used or fashioned” etc. apparently requires an objective showing. However, the latter phrase is patently conjoined with subjective proof regarding the victim’s state of mind.

The prosecution concedes that there was no evidence in Count I that a weapon was used, but maintains that the main thrust of the statute points to the reasonable belief of the victim, and, therefore, defendant’s declaration that he had a gun and would use it was sufficient to sustain its burden of proof. We do not agree.

Several Michigan decisions have upheld convictions where, as in Count II, the facts adduced at trial indicated that a defendant had gestured with a covered hand in such a manner as to lead the victim to conclude that he probably had a weapon. People v Shipp, 34 Mich App 67, 69; 190 NW2d 750 (1971), People v Washington, 4 Mich App 453, 455-456; 145 NW2d 292 (1966), People v Jury, 3 Mich App 427, 432; 142 NW2d 910 (1966). See also People v Boxx, 16 Mich App 724, 725; 168 NW2d 628 (1969), wherein evidence that the victims felt hard objects pressed against them and saw what they thought were guns was sufficient to bind over defendant for trial. No case, however, has addressed the factual setting before us.

Our resolution of the issue is guided in part by the long-standing principle that criminal statutes are to be strictly construed. People v Lockwood, 308 Mich 618, 622; 14 NW2d 517 (1944), People v Goulding, 275 Mich 353, 358; 266 NW 378 (1936), People v Reynolds, 71 Mich 343, 348; 38 NW 923 (1888), People v Gilbert, 88 Mich App 764, 768; 279 NW2d 546 (1979), People v Goodchild, 68 Mich App 226, 232; 242 NW2d 465 (1976).

Consistent therewith, and in accordance with the wording of the statute, we are of the opinion that, under the "article so used or fashioned” element of armed robbery, there must be, in addition to proof of the victim’s fear, competent evidence purporting to establish some attempt by defendant, aside from mere oral insinuations, to physically communicate the existence of a dangerous weapon. A verbal statement, without more, is insufficient. In this manner, both the objective and subjective criteria of the "article so used or fashioned” portion of the statute are satisfied.

We note that the result of this interpretation does not relieve a defendant of criminal liability, but rather, only effects conviction under another, albeit lesser, statute, i.e., unarmed robbery. Accordingly, we vacate defendant’s armed robbery conviction under Count I and remand for entry of conviction for unarmed robbery and resentencing.

Defendant next assails the trial judge’s failure to hold an evidentiary hearing regarding the validity of his pre-custody photographic identification without counsel being present, and by allowing the identifying witnesses to testify regarding same.

If the complained-of procedure was, in fact, erroneous, we determine that any error in permitting such testimony was clearly harmless error. Gilbert v California, 388 US 263, 272-274; 87 S Ct 1951, 1956-1957; 18 L Ed 2d 1178, 1186-1187 (1967), Chapman v California, 386 US 18, 24; 87 S Ct 824, 828; 17 L Ed 2d 705, 710-711 (1967), People v Anderson, 389 Mich 155, 167-169; 205 NW2d 461 (1973). The evidence of guilt in both counts, including the considerable and destructive testimony of codefendant Surline, was overwhelming. In addition, despite any impropriety of the photo show-ups, the in-court identifications of defendant originated from an independent basis. People v Hill, 88 Mich App 50, 64; 276 NW2d 512 (1979), People v Richmond, 84 Mich App 178, 182; 269 NW2d 521 (1978). Witness Timothy Tiegeler recognized defendant as a high school classmate, and further testified that defendant had been in the Beverage Barn store twice before on the night in question. The four employees of Walsh’s Party Store testified that they observed defendant throughout the course of the robbery, while one also recognized defendant from several previous appearances at the market. All gave detailed descriptions of defendant’s appearance on the night in question. We find no reversible error.

Defendant also asserts that, for three reasons, he was denied the effective assistance of counsel: (1) despite evidence of a breakdown in the attorney-client relationship, the trial court failed to explore defendant’s claims or appoint substitute counsel; (2) defense counsel had failed to demand separate trials for the two robbery offenses; and (3) counsel had failed to properly cross-examine co-participant Surline regarding a polygraph test.

Although an indigent defendant is constitutionally guaranteed representation by counsel, that right does not extend to an attorney of his own choosing. People v Eddington, 77 Mich App 177, 185; 258 NW2d 183 (1977). Nevertheless, he may be entitled to have his assigned lawyer replaced upon a showing of adequate cause, People v Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973), People v Blassingame, 59 Mich App 327, 331; 229 NW2d 438 (1975), People v Bradley, 54 Mich App 89, 95; 220 NW2d 305 (1974), provided it does not unreasonably disrupt the judicial process. Blassingame, supra, 331, People v Wilson, 43 Mich App 459, 462; 204 NW2d 269 (1972), but see People v Charles O Williams, 386 Mich 565, 574-577; 194 NW2d 337 (1972). The decision regarding substitution is entrusted to the trial court’s discretion, Eddington, supra, 185-186, and will not be overturned on appeal absent an abuse of that discretion.

The record reveals that, approximately two weeks before the original trial date, defendant, by letter of August 1, 1977, informed the trial court that he no longer desired representation by his then present attorney. Defense counsel thereafter moved to withdraw, but that motion was denied. Defendant’s attorney continued his representation at numerous motions held August 1, 8 and 15, 1977. On the last date, defendant’s motion to "waive court-appointed counsel” was granted; however, the court indicated that defense counsel would be present at defendant’s side should he need assistance. On August 17, the day set for trial, defendant requested of the trial court another attorney, and also indicated that he had talked to his father about funds to retain counsel. At this time defendant proffered several reasons why new counsel should be appointed, including allegations that counsel had, on prior occasions, been unprepared, had waived his rights without consulting him, and had failed to insist that a district judge, who had previously represented defendant, disqualify himself from hearing the preliminary examination in another case involving defendant where then present counsel was also appointed.

Initially, we note that, on appeal, it is incumbent upon defendant to show prejudice originating from his attorney’s alleged lack of preparation. People v Hernandez, 84 Mich App 1, 8; 269 NW2d 322 (1978), People v Bradley, 54 Mich App 89, 96; 220 NW2d 305 (1974), People v Russell, 47 Mich App 320, 324; 209 NW2d 476 (1973). No such showing has been made in the present case. On the contrary, a perusal of the transcript reveals that defense counsel made several pretrial motions and conducted extensive discovery. With respect to defendant’s remaining assertions, the record fails to substantiate the defendant’s complaints by a showing of the required negligence on the part of his attorney.

Although there was evidence of tangible disagreement between defendant and counsel, we do not find it sufficient to qualify as adequate cause for substituted counsel. Absent a bona fide irreconcilable dispute regarding, for instance, a substantial defense, disagreements regarding trial strategy do not constitute sufficient grounds for the appointment of successor counsel. People v Hooper, 82 Mich App 713, 716; 267 NW2d 162 (1978), Hernandez, supra, 9. In this regard we observe that defendant has already had two lawyers but seeks yet a third. Defendant’s then present counsel was himself appointed substitute counsel when defendant became dissatisfied with his originally appointed attorney. In sum, under these circumstances, noted by the court below, we find no abuse of discretion.

Defendant’s claims that counsel’s failure to move for severance and his improper cross-examination of co-participant Surline were serious mistakes denying him effective counsel must fall, unless, but for these alleged errors, defendant would have had a reasonably likely chance of acquittal. People v Garcia, 398 Mich 250, 266; 247 NW2d 547 (1976), People v DeGraffenreid, 19 Mich App 702, 718; 173 NW2d 317 (1969). Here, although joinder of the two robbery counts may have been improper, People v Tobey, 401 Mich 141; 257 NW2d 537 (1977), People v Ritchie, 85 Mich App 463; 271 NW2d 276 (1978), the evidence against defendant, including the testimony of several eyewitnesses (in addition to co-participant Surline’s narrative), was abundant. Moreover, had severance been granted, the analogous factual settings between the two crimes, including time, location, type of establishment robbed and parties involved, would have likely rendered evidence of one crime admissible in the trial of the other under the similar acts statute, MCL 768.27; MSA 28.1050. Thus, we are unable to conclude that, had defendant’s attorney requested a severance, defendant’s chances for acquittal would have been appreciably elevated.

Nor can we determine otherwise in the case of counsel’s cross-examination of Surline regarding his previous polygraph examination. When Surline inadvertently mentioned the polygraph test, defense counsel clearly perceived it as a method of challenging the witness’s credibility. Choices made by counsel within the rubric of "trial strategy” do not deprive a defendant of either a fair trial or effective assistance of counsel. People v Garcia, supra, 264-266, People v Bowen, 77 Mich App 684, 690; 259 NW2d 189 (1977), People v Penn, 70 Mich App 638, 648; 247 NW2d 575 (1976). The brief questions at issue, designed to impugn the witness’s credibility, did not elicit the results of the exam, see People v Barbara, 400 Mich 352; 255 NW2d 171 (1977), People v Davis, 343 Mich 348; 72 NW2d 269 (1955), and the trial judge cautioned the jury to disregard any reference to the polygraph.

Defendant’s penultimate allegation questions the lower court’s evidentiary ruling that enabled the prosecution to introduce, over defendant’s objection, testimony relating to Surline’s prior offer to commit an armed robbery.

Laura Watson, a waitress at the German Gardens, one of the two intervening bars allegedly visited between the robberies in question, testified that approximately ten days prior to the date of the robberies Surline informed her that he was going to rob the German Gardens bar and had asked for her assistance. The statement was introduced to illustrate the concern and apprehension Ms. Watson and the owner of the bar shared when they learned defendant and Surline were present, and to account for their vivid recollection of that evening.

Surline’s declaration was totally irrelevant and non-probative of defendant Krist’s guilt in either of the two robberies. Although the trial judge incorrectly allowed its admission into evidence, the error was not reversible inasmuch as defendant was not with Surline at the time of the statement and the trial judge further gave a limiting instruction to the jury.

Finally, we briefly reject defendant’s contention that the prosecutor’s remarks during closing argument considered facts not in evidence and, therefore, denied him a fair trial. In view of the evidence and theories presented at trial, the comments were within the bounds of permissible debate and observation. We find no error.

Reversed in part, affirmed in part.

       "Any person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 15 years.” MCL 750.530; MSA 28.798.

       The maximum penalty for armed robbery is life imprisonment, whereas the punishment for unarmed robbery cannot exceed 15 years.

       As unarmed robbery is a necessarily lesser included offense of armed robbery, People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975), People v Green, 86 Mich App 142, 150; 272 NW2d 216 (1978), People v Jones, 71 Mich App 270, 273; 246 NW2d 381 (1976), the jury, in convicting defendant of the higher charge, necessarily found him guilty of the lesser.

         United States v Wade, 388 US 218, 242; 87 S Ct 1926, 1940; 18 L Ed 2d 1149, 1166 (1967).

       US Const, Ams VI, XIV, Const 1963, art 1, § 20.


author: Cynar, P. J.

text:
    MICHIGAN BEAN COMPANY v SENN
    Docket No. 78-4018.
    Submitted June 22, 1979, at Lansing.
    Decided November 6, 1979.
    Plaintiff, Michigan Bean Company, entered into a contract with defendant, John Senn, for the purchase of navy beans under the following terms: 90,000 pounds per year for three years at a given price per hundredweight, delivered on or before a date certain each year with title to pass upon delivery. The agreement, supplied by plaintiff, allowed plaintiff to cancel the agreement if defendant was unable to complete delivery by the specified date or if defendant failed to notify plaintiff in advance of any encumbrances. It provided alternatively that plaintiff could extend the delivery date with defendant’s consent. It also contained a liquidated damages clause in the event of a breach by defendant. The first year defendant tendered timely performance. A second contract was made, identical to the first in all other respects, for the delivery and purchase of another 60,000 pounds in the year 1973. Nearly two months prior to the second year delivery deadline defendant notified plaintiff that he would be unable to deliver his quota. Defendant ultimately delivered less than 40,000 pounds of beans. Plaintiff sued defendant for breach of contract for the deficient delivery. Defendant admitted the contracts but denied any breach and raised the affirmative defense of impossibility of performance, contending that the contracts called for him to produce the beans as a grower and did not require him to act as a broker and that he was unable to perform due to extreme weather conditions. A year later plaintiff amended its complaint to allege a failure of delivery for the third year. Defendant amended his answer and denied the existence of the contracts and moved for summary judgment, arguing that the agreements constituted only unaccepted and wholly revocable unilateral offers. The Saginaw Circuit Court, Gary R. McDonald, J., denied the motion, ruling that the agreements were enforceable, indivisible broker’s contracts. After a bench trial on the issue of damages the court entered judgment for plaintiff based on the liquidated damages provision. Defendant appeals alleging failure of mutual consideration and error in refusing to allow him to assert his defense of impossibility of performance. Held:

      References for Points in Headnotes
    [1] 15A Am Jur 2d, Commercial Code § 6.
    17 Am Jur 2d, Contracts §§ 102, 103, 107.
    [2] 17 Am Jur 2d, Contracts § 276.
    [3] 17 Am Jur 2d, Contracts §§ 260, 261.

      1. The Uniform Commerical Code—Sales creates an obligation on the part of a contract purchaser to accept and pay for the goods in accordance with the contract and this obligation is sufficient consideration to support the contract. The agreements are valid, enforceable contracts.
    2. The contracts were not specifically delineated broker’s contracts or grower’s contracts. Both parol and extrinsic evidence should have been admissible to supplement and explain the contracts.
    Reversed and remanded.
    1. Sales — Contracts — Consideration — Uniform Commercial Code.
    The Uniform Commercial Code—Sales creates an obligation on the part of a contract purchaser to accept and pay for the goods in accordance with the contract and this obligation is sufficient consideration to support the contract (MCL 440.2301; MSA 19.2301).
    2. Contracts — Construction of Contracts — Ambiguities.
    Ambiguities in a contract are to be construed against the party who drafted it.
    3. Sales — Contracts — Uniform Commercial Code.
    The Uniform Commercial Code—Sales provides that a sales contract’s terms may be supplemented or explained by parol and other extrinsic evidence related to course of performance, course of dealing or usage of trade regardless of whether or not the court has made a specific finding that an ambiguity exists (MCL 440.2202; MSA 19.2202).

      John A. McColgan, for plaintiff.

      Allan C. Schmid and Craig H. Dill, for defendant.

      Before: Cynar, P.J., and Mackenzie and L. W. Corkin, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Cynar, P. J.

Defendant appeals as of right a judgment entered September 29, 1978, in favor of plaintiff in the amount of $29,612.30, with interest.

On February 25, 1972, plaintiff and defendant signed a form supplied by plaintiff, which was captioned "Navy Bean Sale and Purchase Agreement”. According to the terms thereof, defendant was to deliver 90,000 pounds net weight of CHP grade navy beans at the price of $9 per cwt. each year for a three-year period commencing in 1972, said deliveries to be made on or before October 31 of each year. Title to the commodity was to pass to plaintiff at the time delivery was made. Plaintiff was entitled to cancel the agreement if defendant was unable to complete delivery by the specified date or if defendant failed to notify plaintiff in advance of any encumbrances on the goods. Alternatively, plaintiff could elect to extend the delivery date, provided defendant assented thereto. The agreement also contained a liquidated damages clause, operative upon a breach of the agreement by defendant.

For the year 1972, defendant tendered full performance in a timely fashion, and was paid according to the agreed-upon rate. In February of 1973, the parties signed a second agreement, on a form identical to the one used previously, again supplied by plaintiff. This agreement called for defendant to deliver an additional 60,000 pounds on or before October 31, 1973, but was otherwise indistinguishable from the first. The effect was to increase the 1973 requirement to 150,000 pounds.

Early in September 1973, defendant realized that he would be unable to deliver his quota. He conveyed this information to an agent of plaintiff. Subsequent negotiations relating to an extension of defendant’s time for performance proved fruitless, and plaintiff indicated its intention to seek damages for the shortfall in quantity delivered. Defendant was able to supply plaintiff with somewhat less than 40,000 pounds out of the 150,000 pound quota.

On March 1, 1974, plaintiff filed a complaint alleging breach of contract by defendant with respect to the 1973 delivery deficit. Defendant answered, admitting the existence of both contracts, but denying any breach thereof on his part. Defendant raised as an affirmative defense impossibility of performance, contending that the contracts called for him to produce the commodity as a grower and did not oblige him to act as a broker and that, due to abnormally extreme weather conditions, it was literally impossible for him to carry out the terms of the contracts.

On January 8, 1975, plaintiff amended its complaint, praying for additional damages as a result of defendant’s failure to deliver any quantity of beans in 1974. Defendant, by leave of the trial court, was allowed to amend his answer so as to deny the existence of any contracts. Following this, defendant moved for summary judgment, arguing that the purchase agreements constituted only unaccepted and wholly revocable unilateral offers as opposed to bilateral contracts. Said motion was denied, the trial court ruling that the agreements represented enforceable, indivisible broker contracts. A bench trial was then held solely on the issue of damages. The above-noted award to plaintiff was based upon the liquidated damages provisions in the two contracts.

Initially, defendant argues that the forms he signed are void for want of mutuality of consideration. Since plaintiff made no promises of legal consequence in either document, they are illusory and unenforceable as contracts. Plaintiff never obligated itself to purchase the beans from defendant.

Conversely, plaintiff claims that the documents constitute validly executed bilateral contracts. Plaintiff was impliedly obligated by law to pay for the goods upon delivery, even though no express promise was incorporated into the forms. We agree with plaintiff.

As the contracts in question were for the sale of goods, Article 2 of the Uniform Commercial Code applies. MCL 440.2102; MSA 19.2102. Under MCL 440.2204(1); MSA 19.2204(1), a contract for the sale of goods may be made in any manner sufficient to show agreement, including conduct by the parties which recognizes the existence of a contract. Under subsection (3) of this provision, a contract for sale will not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for granting a proper remedy, notwithstanding the fact that one or more terms are left open.

Reviewing the circumstances surrounding this transaction, we find that the agreements in question spoke to quantity, price, date and place of delivery, passing of title, warranty of title, cancellation and extension rights, assignment of rights and obligations, and contained a liquidated damages clause to be effective upon a breach of contract by defendant. Applying the above code provisions, we conclude that the parties intended to make a contract, and that there was a reasonably certain basis under the agreement for granting an appropriate remedy to either party thereto. In addition, no essential terms were left open. Moreover, the conduct of the parties most assuredly recognizes the existence of the contracts, i.e., full performance by both parties in the first year of the original agreement, and partial performance by both defendant and plaintiff the second year, as well as protracted, although unsuccessful, negotiations with regard to modifying the terms of both agreements insofar as they dealt with defendant’s performance for the year 1973.

More importantly, under MCL 440.2301; MSA 19.2301, an implied obligation is imposed upon the plaintiff-purchaser in this case to accept and pay for the commodity in accordance with the terms of the agreements, even though such obligation is not expressed in the forms signed by the parties. Thus, plaintiff would be in breach of contract if it refused to accept and pay for the beans delivered by defendant as per the contract. Since plaintiff was so obligated, defendant’s claim that that mutuality of consideration was lacking is rendered nugatory. Maryland Supreme Corp v The Blake Co, 279 Md 531; 369 A2d 1017 (1977), cf., White and Summers, Uniform Commercial Code (1st ed), § 3-5, pp 89, 91, Domas v Rossi, 52 Mich App 311, 315-316; 217 NW2d 75 (1974).

Next, we are confronted with defendant’s allegation that the trial court erred in refusing to allow him to assert the defense of impossibility of performance (in reality, a defense of commercial impracticability). Such refusal was predicated upon the court’s ruling that the agreements constituted broker’s rather than grower’s contracts. Defendant assails this conclusion as error also and further argues that parol evidence should have been admitted to show that the quota under each contract was to be filled, if at all, solely from crops grown by defendant. Defendant finally contends that extrinsic evidence relating to course of performance, as well as of course of dealing and usage of trade, should also have been admitted and that the refusal of the trial court to allow this mandates reversal.

Plaintiff argues that the forms signed by the parties represented the complete and exclusive expression of their agreement. To have allowed defendant to assert the defense of impossibility of performance would contradict the terms of the documents, in violation of the parol evidence rule. The agreement did not limit the source from which defendant was to fill the quota, but, on the contrary, allowed defendant to do so in any manner so long as he had merchantable title to the commodity at the time of delivery.

At the outset, we note that the forms, supplied by plaintiff, contain no language which would indicate that they were intended as a complete and exclusive statement of the terms of the agreement. Thus, they cannot, on their face, operate as a barrier to allowing parol evidence in under MCL 440.2202; MSA 19.2202.

Additionally, since plaintiff supplied the standardized forms which became the written memoranda evidencing the agreements, they are subject to the general rule of construction, that, where ambiguities exist in a contract, they are to be construed against the draftsman. Soloman v Western Hills Development Co, 88 Mich App 254, 256-257; 276 NW2d 577 (1979). Therefore, we decline to infer any intent by the parties to integrate their entire argument into the writings. As such, subsection (b) of MCL 440.2202 is inapplicable to the agreements before us insofar as it would bar the admission of parol or extrinsic evidence.

Nor is the language of the memorandums so unequivocal as to admit of only one conclusion, i.e., that the agreements were broker’s contracts as opposed to grower’s contracts. This fact would alone be sufficient to create an ambiguity with respect to this question. However, under § 2202, a finding that the wording of a contract is ambiguous is not a prerequisite to the admission of parol evidence or other extrinsic evidence related to course of performance, course of dealing or usage of trade. Campbell v Hostetter Farms, Inc, 251 Pa Super 232; 380 A2d 463 (1977), cf., Flamm v Scherer, 40 Mich App 1, 7; 198 NW2d 702 (1972). Whether or not an ambiguity existed with respect to the nature of the contracts, both parol and extrinsic evidence were admissible to supplement and explain the agreement.

Having so concluded, we find as error the trial judge’s ruling that, as a matter of law, the contracts were broker’s contracts, which ruling had the further effect of erroneously excluding evidence of the parties’ course of dealing, the course of performance under the agreements, as well as usage of trade. The judge finally ordered stricken defendant’s defense of impossibility of performance, such ruling being consistent with a finding that the agreements were broker’s contracts. Since the ruling with regard to the species of contracts involved was error, the striking of defendant’s affirmative defense was also a ground for reversal.

The questions of whether the agreements were grower’s rather than broker’s contracts and ensuing damages, if any, are properly questions of fact to be resolved after presentation of all relevant evidence. On remand, if the trier of fact finds the agreements to be grower’s contracts, then whether defendant’s performance can be excused under MCL 440.2615; MSA 19.2615 is also a factual question.

Our resolution of these questions makes it unnecessary for us to address the remaining contentions of the parties. Reversed and remanded for further proceedings consistent with this opinion. Costs to defendant.

       The above-cited provision is the parol evidence rule applicable to contracts for the sale of goods under Article 2 of the Uniform Commercial Code, and provides:
      "Sec. 2202. Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented
      "(a) by course of dealing or usage of trade (section 1205) or by course of performance (section 2208); and
      "(b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement. 1962 PA 174, § 2202, eff. Jan. 1, 1964.”

       The official comment on the section by the commissioners on Uniform State Laws, the draftspersons of the legislation, adopts this position, stating:
      "1. This section definitely rejects:
      "(c) The requirement that a condition precedent to the admissibility of the type of evidence specified in paragraph (a) is an original determination by the court that the language used is ambiguous.
      "2. Paragraph (a) makes admissible evidence of course of dealing, usage of trade and course of performance to explain or supplement the terms of any writing stating the agreement of the parties in order that the true understanding of the parties as to the agreement may be reached. Such writings are to be read on the assumption that the course of prior dealings between the parties and the usages of trade were taken for granted when the document was phrased. Unless carefully negated they have become an element of the meaning of the words used. Similarly, the course of actual performance by the parties is considered the best indication of what they intended the writing to mean.”


author: Allen, P.J. T. M. Burns, J.

text:
    PEOPLE v ESTELLE
    Docket No. 78-4724.
    Submitted June 14, 1979, at Lansing.
    Decided November 6, 1979.
    Defendant, Ronald A. Estelle, was serving time in the Federal penitentiary in Atlanta, Georgia, when he first was brought to the Federal Holding Facility in Milan, Michigan. Then pursuant to a writ of habeas corpus ad prosequendum he was brought to Macomb County jail and before the Macomb Circuit Court where he was charged with armed robbery. At circuit court defendant was told that the trial judge to whom the case was assigned was to undergo surgery and that, unless defendant chose to stand trial before an alternate judge, trial would be delayed at least four weeks. Defendant elected to wait for the assigned judge’s return and expressed a preference for waiting at the Federal Holding Facility instead of the Macomb County jail. As a result, defendant was held at the Federal facility and the county was charged $16 per day plus meals and transportation. Trial was held and defendant was convicted. Defendant requested return to the facility pending sentence but his request was denied. At sentencing defendant moved to dismiss on grounds that, when defendant was returned to the Milan facility to await trial, the state lost jurisdiction to try him under Article IV(e) of the Interstate Agreement on Detainers. The court, Raymond R. Cashen, J., denied the motion. Defendant appeals. Held:

    Under these circumstances, the Interstate Agreement on Detainers does not require dismissal. The purpose of Article IV(e) of the act is to prevent the disruption of an inmate’s rehabilitation when a detainer is lodged against him. In this case no rehabilitative programs were available either at the holding facility or the county jail. Defendant’s rehabilitation program was not interrupted. Nor was he returned to his original place of confinement, Atlanta. Further, since the county paid the cost of his confinement, he was not really returned to the Federal authorities but was merely housed by them until trial.

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 250.1, 250.2. 31 Am Jur 2d, Extradition § 28.

      Affirmed.
    T. M. Burns, J., concurred in the result but would hold that the Interstate Agreement on Detainers does not apply to habeas corpus ad prosequendum.

    Opinion op the Court
    1. Criminal Law — Interstate Agreement on Detainers — Statutes — Federal Custody.
    Article IV(e) of the Interstate Agreement on Detainers does not require dismissal of an information where, following arraignment but before trial, a defendant who had been brought to Michigan from the Federal penitentiary in Atlanta was returned to Federal custody at the Federal Holding Facility in Milan, Michigan, rather than being confined in the county jail pending trial (MCL 780.601; MSA 4.147).
    Concurrence by T. M. Burns, J.
    2. Criminal Law — Interstate Agreement on Detainers — Detainers — Habeas Corpus ad Prosequendum — Statutes.

      A writ of habeas corpus ad prosequendum is not a detainer or a "written request for temporary custody" within the meaning of the Interstate Agreement on Detainers (MCL 780.601; MSA 4.147).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Assistant Prosecuting Attorney, for the people.

      Douglas J. M. Voss, for defendant.
    Before: Allen, P.J., and T. M. Burns and D. E. Holbrook, JJ.

       Former Court of Appeals Judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Allen, P.J.

On this question of first impression we are asked to decide whether Article IV(e) of the Interstate Agreement on Detainers, MCL 780.601; MSA 4.147(1), requires dismissal with prejudice of the information where, following arraignment but before trial on charges of armed rpbbery, the defendant, who had been brought to Michigan from the Federal penitentiary in Atlanta, Georgia, was returned to Federal custody at the Federal Holding Facility at Milan, Michigan, rather than being confined in the Macomb County jail pending trial. We answer this question in the negative.

Defendant was charged with armed robbery occurring March 14, 1977, in Macomb County, Michigan. On September 12, 1977, defendant was bound over on the charge but made bond and was released to await arraignment. In October he went to Mississippi to see his wife, but on October 14, 1977, was arrested by Federal authorities in Mississippi for parole violation and was incarcerated at Gulfport, Mississippi. Following a hearing he was transferred to the Federal penitentiary in Atlanta, Georgia. In January 1978 a letter and writ of habeas corpus was delivered by the Ma-comb County authorities to the Federal marshall for the Eastern District of Michigan and to the warden at the Atlanta penitentiary. Both the letter and the writ directed the Federal authorities to deliver defendant to Macomb County for arraignment on January 25, 1978. Pursuant to said writ defendant was transferred to the Federal penitentiary at Terre Haute, Indiana, and from there to the Federal penitentiary at Milan, Michigan. On February 1, 1978, he was transported to the Ma-comb County jail.

On February 2, 1978, he was arraigned at the county courthouse on the information and his bond was cancelled. At the arraignment defendant was advised that the trial judge to whom the case was assigned was to undergo surgery and that, unless defendant chose to stand trial before an alternate judge, trial would be delayed at least four weeks. Defendant elected to await the assigned judge’s return. Discussion was then had concerning where defendant would be lodged awaiting trial. Defendant, through counsel, expressed a preference for awaiting trial in the Federal facility at Milan instead of the Macomb County jail. On February 15, 1978, he was transferred back to Milan where he remained until trial on March 16, 1978. During this period the State of Michigan was charged $16 per day, plus meal expenses and costs of transportation.

Trial began March 16th and concluded March 23rd, when the jury returned a verdict of guilty of armed robbery. Again defendant asked that he be returned to Milan to await sentence, but this time the request was denied. On May 2, 1978, defendant was sentenced to prison from six to ten years. At sentencing defense counsel moved to dismiss on grounds that, when defendant was transferred back to Milan to await trial, the State of Michigan lost jurisdiction to try defendant under Article IV(e) of the Interstate Agreement on Detainers (IAD). On May 2, 1978, the trial court denied the motion on grounds that the IAD did not apply to cases where the defendant was returned by writ of habeas corpus. Six days later this Court in People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978), held that a writ of habeas corpus ad prosequendum was a detainer. Fifteen days later (May 23, 1978) the United States Supreme Court held that a writ of habeas corpus ad prosequendum was not a "detainer” or a "written request for temporary custody” within the meaning of the IAD. United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). Defendant appeals by leave granted.

Viewed in the totality of the circumstances involved we do not find the confinement of defendant at the Holding Facility in Milan a violation of the proscription of Article IV(e) of the IAD. In reaching this conclusion we find it unnecessary to decide whether Mauro, supra, overrules this Court’s decision in Beamon, supra. Article IV(e) reads:

"If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order distnissing the same with prejudice.”

Article I of the IAD states that the purpose behind the statute is to prevent the disruption of an inmate’s rehabilitation when a detainer is lodged against him. As was stated in Christian v United States, 394 A2d 1, 40 (DC App, 1978):

"There is nothing in the legislative history or in the Agreement itself to indicate that its provisions were intended to apply to persons who were not involved in rehabilitative programs. Article IV(e) was designed to avoid the shuttling back and forth between jurisdictions and the resulting disruptive effect such transfers would have on a consistent treatment program and to promote the speedy disposition of outstanding charges upon which the detainers were based.”

In the instant case the defendant was not being shuttled back and forth between the county jail and a Federal prison but was held only for a brief stated period of time awaiting trial. Neither can it be said that his right to an uninterrupted program of rehabilitation was infringed upon. Neither at the Milan Holding Facility or at the Macomb County jail could the defendant participate in a program of rehabilitation, since neither institution offered such programs.

The identical question raised here was decided adversely to defendant in State ex rel Stanley v Davis, 569 SW2d 202 (Mo App, 1978). In that case the defendant, who had been sentenced to three years imprisonment and a three-year term of parole, was confined in the Federal institution in Springfield, Missouri. Soon thereafter he was charged in the circuit court of Franklin County, Missouri with assaulting a police officer and a detainer was filed with the Federal authorities. He requested a speedy trial on the state charges and was brought to Franklin County where, on June 21, 1977, he was arraigned and entered a plea of not guilty. Trial was set for July 21, 1977, and the defendant was returned to the Federal institution in Springfield. On July 21, 1977, defendant and his counsel appeared before the Franklin County Court but the case was passed to September 6, and defendant was incarcerated in the county jail. On July 27 counsel moved to dismiss on grounds that when defendant was returned to a Federal institution to await trial. The Court held IAD did not apply:

"We conclude that, based upon the history of the Agreement, the total context of the Act and the purposes embodied therein, Article 111(4), § 222.160, RSMo. is not applicable to the situation where a federal prisoner in Missouri is transferred to a Missouri court for the limited purposes of arraignment, appearances or hearings and then returned to the Federal facility in Missouri. In short, that section is not applicable to federal-state intrastate transfers for limited purposes. The intent and meaning of the statute must be determined by examining the entire Agreement and not isolated specific sections. The Agreement was meant to be ¿ shield against unconstitutional deprivation of a speedy trial and not as a sword.” State ex rel Stanley v Davis, supra, 210.

We find Davis on point and incorporate its reasoning by reference. In fact, Davis is more favorable to defendant’s position than the instant case since in Davis the defendant had not requested that between arraignment and trial he be confined in the Federal institution.

Further support for our conclusion that Article IV(e) of the statute does not apply to the situation in this case is found in the fact that while incarcerated at Milan the state paid the costs of housing and meals. Under this arrangement the defendant was not really returned to the Federal authorities but in effect was merely housed and boarded at the Federal facility pending trial. Finally, we find that Beamon, supra, so strongly relied upon by defendant, is inapposite to the instant case. There the defendant who had been brought to Michigan pursuant to a detainer from a Federal penitentiary in Terre Haute, Indiana, was returned following a mistrial in Michigan to Terre Haute. Article IV(e) uses the term "original place of imprisonment”. In Beamon the defendant was returned to the original place of imprisonment whereas in the present case defendant originally came from the Federal penitentiary in Atlanta, Georgia.

The remaining claims or error raised by defendant we find less substantive than the question of first impression discussed above. The trial court did not err when it refused to conduct a Walker hearing when a witness for the prosecution alluded to a statement made by codefendant Bellamy. A Walker hearing pertains to the voluntariness of a confession rather than the Bruton question of whether the use of the codefendant’s confession prejudiced the defendant. The witness did not divulge the contents of the confession, a cautionary instruction was given by the trial court and the matter was not referred to again. Under these circumstances the cautionary instruction was the appropriate remedy. People v Skidmore, 28 Mich App 677, 680; 185 NW2d 137 (1970).

After deliberating two hours the jury returned to the courtroom at 5 p.m. and announced they had not reached a verdict. After discussing the matter briefly with Mr. Egan, the jury foreman, the following occurred:

"The Court: I would rather keep you a couple more hours now if you could get a resolution of the matter than to have to send you home for four days.
"Mr. Egan: We will give it the old college try.
"The Court: Go back in the jury room and we will give you a reasonable time to see what you can do. Everything is still fresh in your minds and I would just as soon see you try again.
"Mr. Egan: All right.”

Whereupon, at 5:10 p.m. the jury resumed deliberations and at 6:20 p.m. returned with a verdict of guilty. We disagree with defendant that the court’s action was coercive. The situation is strikingly similar to the situation in Zeitz v Mara, 290 Mich 161, 164; 287 NW 418 (1939), where the Supreme Court held the judge’s action noncoercive. The trial judge’s instruction is even less demanding than in People v Coles, 28 Mich App 300, 304; 184 NW2d 214 (1970). In that case this Court found no error. We find none here.

We find no error in the trial court’s instructions to the jury in regard to prior inconsistent statements given at the preliminary examination. The instruction which was given is taken almost word for word from CJI 4:5:01 and is in accord with the holding in People v Paul Mathis, 55 Mich App 694; 223 NW2d 310 (1974). Finally, we disagree that the jury was "instructed to find the defendant guilty eleven times of some lesser offense”. Instead, the court instructed on the principal offense of armed robbery and the ten lesser included offenses. Such an instruction is in accord with People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975), and no objection to the instruction was made by defendant. We find no error.

Affirmed.

D. E. Holbrook, J., concurred.

T. M. Burns, J.

(concurring). 1 concur in the result reached by the majority for the reason that I believe our decision here is dictated by United States v Mauro, 436 US 340; 98 S Ct 1834; 56 L Ed 2d 329 (1978). Being a member of the majority that decided People v Beamon, 83 Mich App 121; 268 NW2d 310 (1978), I have examined it closely and attempted to distinguish it from Mauro. However, I am unable to do so and must concede that Mauro now controls.

       Plaintiff is not asking this Court to overrule Beamon and in its brief concedes that “in light of this Court’s recent decision in Beamon a writ of habeas corpus ad prosequendum” invokes the IAD. Therefore, we do not address the question of whether the United States Supreme Court decision in Mauro overrules Beamon. That question is also raised in People v Barnes, 93 Mich App 509; 287 NW2d 282 (1979).

      2 Article III (4), § 222.160, RSMo. is the same as Article IV(e) of the Michigan statute.

       Numerous cases hold that where defendant requests he be returned to the sending institution or state, defendant waives his rights under the IAD. Christian v United States, supra, 35, and cases cited therein. However, some cases hold that for the waiver to be effective it must be shown that there was an intentional relinquishment of a known right. Enright v United States, 434 F Supp 1056 (SD NY, 1977). Since the record in the instant case does not show that defendant was told what his rights were under the IAD, we do not base our decision on waiver.

         People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

        Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968).