text:
    JOACHIMSTHAL v. JOACHIMSTHAL.
    1. Divorce — Alimony—Discharge of Decree.
    The equity court has the power, upon a proper showing, to declare that a decree for alimony has been fully satisfied.
    2. Same — Appeal.
    Upon a review of the testimony, held, that the order of the lower court as to alimony and the custody óf a minor child was justified.
    Appeal from Wayne; Caipenter, J.
    Submitted October 8, 1896.
    Decided November 17, 1896.
    Bill by Carrie Joachimsthal against Isidor Joachimsthal for a divorce. Both parties appeal from a decree in relation to alimony and the custody of a minor child,
    Affirmed.

      Griffin & Russell, for complainant.

      Otto Kirchner, for defendant.
   Hooker, J.

In December, 1885, the complainant obtained a decree of divorce from bed and board. She was also given the custody of her minor son, then four years of age, and the sum of $13 a week as alimony until the further order of the court. A petition was filed in 1896 by the.defendant, praying that he be discharged from all liability for payment of alimony up to the date of such petition, that he might be permitted thereafter to maintain, board, clothe, and otherwise provide for said son, and that the alimony allowed be correspondingly reduced. An answer was filed, and proofs were taken, whereupon the circuit court decreed that the decree for alimony was fully paid, satisfied, and discharged up to the date of filing said petition; that from and after said date the defendant should pay to the complainant the sum of $10 per week as and for her alimony, and that he thenceforth provide all necessary wearing apparel for said son, and that he pay to the solicitor for complainant a solicitor’s fee of $50 in 30 days from the date of said decree; and that in all other respects the prayers of the several petitioners be denied. Both parties appealed'; complainant' being dissatisfied with the discharge of 'the decree for alimony, and the defendant with the denial of the custody of the son to him and the continuance of alimony.

From a review of the testimony we are of the opinion that the order of the circuit judge was just, and should be affirmed. It is therefore so ordered; and it is further decreed that defendant pay to the solicitor for the complainant the further sum of $50 solicitor’s fee, and the complainant’s cost of printing in the cause.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    DOUVILLE v. COMSTOCK.
    1. Real-Estate Agents — Right to Commissions.
    To entitle a real-estate broker to his commissions for effecting a sale, it is not necessary that he be present at the sale, but his efforts must be the procuring cause of the sale.
    2. Same — Sale through Third Party — Agent Interested as Purchaser.
    A real-estate broker authorized to sell land, but not having an exclusive agency, is not entitled to commissions on a sale made by the owner directly through another broker, because the latter had previously had correspondence with the first broker respecting a sale of the land and a division of the commissions, and the purchasers were tEesame persons with whom the second broker negotiated during the correspondence, where all attempt at an agreement between the two • brokers had ceased before negotiations were commenced directly with the owner, and the first broker had at no time before the sale any knowledge of the prospective purchasers, and the owner, when he consummated the sale and paid the second broker his commissions, was not aware that he had had dealings with the first broker; nor does the fact that the second broker was interested in the purchase entitle the first broker to commissions, where the owner dealt with him as a broker only, and did not know that he was otherwise interested in the purchase.
    Error to Wayne; Erazer, J.
    Submitted October 23, 1896.
    Decided December 1, 1896.

      Assumpsit by Eugene E. Douville and another against Andrew W. Comstock and others for agents’ commissions on the sale of lands. From a judgment for plaintiffs, defendants bring error.
    Reversed.

      Moore & Moore, for appellants.

      Mitchell J. Smiley and Frederick W. Stevens, for appellees.
   Moore, J.

Plaintiffs sued the defendants to recover commissions upon the sale of real estate, and recovered judgment, from which judgment defendants appeal. In March, 1891, defendants, in reply to an inquiry, authorized the plaintiffs to sell about 13,000 acres of land in Mississippi, which they owned, at not less than $5 an acre, and to allow them a commission of 2£ per cent, if they made a sale. The plaintiffs were not given an exclusive agency to sell these lands. A map was prepared, showing these lands for sale, and hung in plaintiffs’ office, in New-Orleans. J. H. Moores, of Lansing, who was a real-estate broker, who was operating in real estate in Mississippi, saw the map, and asked to have a plat of the lands sent him, and for a division of the commissions if he made a sale. April 24, 1891, plaintiffs wrote Moores: “Enclosed find plat. Price is $5, net. We have a small commission at that figure, but not enough to divide.” Some correspondence ensued between Moores and the plaintiffs about a division of the land into smaller groups, and Moores informed plaintiffs that he .could place some of the groups at $3.50 an acre, and some at $4.25; and, in turn, plaintiffs corresponded with defendants about the divisions and offers of Moores, but did not inform the defendants at any time that they were having communications with Moores. Defendants declined to take less than $5 an acre. June 27, 1891, Moores wrote the plaintiffs that he was satisfied he could place the lands at $4, possibly at $4.25, an acre (a commission to come out of that sum, to be equally divided); that, at any higher price, he did not think it worth while to try and place them. July 2d, plaintiffs replied that the lands could not be bought for less than $5 net; that, to provide a commission to divide, they must be sold at $5.25.

This was all the correspondence had between the plaintiffs and Moores for two years; and no further communication passed between the plaintiffs and defendants until January 14, 1892, when plaintiffs, in a letter relating to other matters, inquired:

“ By the way, what price are you holding your lands at now ? Remember, we do not hawk any lands through brokers. Handle lands on commission only. Ask for no refusals unless we have a prospective customer, who is ready to examine. On these conditions, we would like to have you quote to us the lowest price at which you would sell on the basis of a 2-J- per cent, commission.”

Defendants did not reply to this inquiry, and in a letter referring to another matter, dated New Orleans, February 14, 1892, plaintiffs wrote to defendants:

“We have again established our office here for the winter, for the sale of Southern lumber lands. Can we again offer your lands on the same terms as last year, providing we get a customer for lands in that locality ?”

No reply was sent to this inquiry, and no communication was had between the plaintiffs "and defendants until March or April, 1893, at which time plaintiffs had learned that a sale had been made, and made a claim for commissions. On the trial, plaintiffs testified that they understood that the defendants had a right to employ other brokers, or to sell the lands themselves.

On the trial of the case, Mr. Mo'ores testified that his letter of June 27th was true; that he had tried his best to sell the lands, and that he could not get any higher price at that time; that when he got plaintiffs’ reply, stating that the lands, to provide a commission to divide, must be sold at $5.25 per acre, he dropped the matter for the time being, entirely; that he did not have any one to whom he could sell for $5, even. This testimony was stricken out by the court, and an exception taken by defendants. He also testified that, if plaintiffs had refused to give him part of the-commission, there would have been no sale. This was also stricken out, and an exception taken. And in the letter sent by the plaintiffs to defendants June 15, 1893, they wrote, “These negotiations went on until some time in July, 1891, after which we heard no more from him [Moores] on the subject, and concluded he had given it up.”

One of the parties with whom Mr. Moores was negotiating for a sale of the lands while the correspondence was going on between him and the plaintiffs was Mr. McPherson. After the termination of the correspondence between Mr. Moores and the plaintiffs, and about the 1st of September, 1891, he visited the defendants, at Alpena. They knew him as a real-estate broker, and did not know and were not informed that he had had any communications with the plaintiffs in relation to the lands. On September 5, 1891, the defendants authorized Moores to sell the lands at $5 an acre, and agreed to give him 2 per cent, commissions.

Through the instrumentality of Moores, on March 4, 1892, a .contract was made between the defendants and Alexander McPherson, trustee, for the 'sale of these lands, at $5 an acre. The purchase price was contributed by a number of persons, according to their interest. The lowest contribution was one thirty-second part of the purchase price, and the highest contribution was four thirty-second parts. Mr. Moores furnished no part of the purchase money. His name did not appear either in the contract of purchase or the deed subsequently made, and the defendants had no knowledge that he had, or was to have, any interest in the lands sold, except his commissions as broker. After the sale was completed, the defendants paid to Mr. Moores his commission of 2 per cent., amounting to something more than $1,300. The plaintiffs knew nothing about this sale until in March or April, 1893, when they claimed their commission. Some correspondence was had, looking to a settlement, but no conclusion was reached, and the plaintiffs brought suit.

On the trial, plaintiffs were allowed to show, under objection, that on March 1, 1892, Mr. McPherson and the persons represented by him addressed a letter to Mr. Moores, in which they agreed to buy the land in question, Avhich letter also contained the following statement:

“We further understand that you furnish the estimates of said land, and do all the work necessary in the closing up of the purchase. Also that you will hereafter have the general care of the same; that you will look after the payment of taxes, and such other work as may be necessary in the care and sale of the land, making no charge for your services, but only such expenses and work as you personally cannot attend to; and that for such services you are to have one-fifth of the net amount for which said lands are sold, left after deducting cost, taxes, expenses, and interest at 7 per cent., compounded annually. It is the further understanding that said lands are to be sold as soon as they will bring $10 per acre, and that either the group of 9,000, or the one of 3,500 acres, will be sold separate when opportunity shall offer at above price.”

The defendants objected to the .introduction of this letter, upon the ground that they were not parties to it, and had no knowledge of it. It was claimed on the part of the plaintiffs that Mr. Moores had such an interest in the lands, by virtue of this agreement, as to make him' one of the purchasers of the land. As before stated, Mr. McPherson was one of the persons Mr. Moores thought might probably purchase, when he was corresponding with the plaintiffs, in 1891. It also conclusively appeared that the persons represented by Mr. McPherson did not make their agreement with each other to purchase until within a short time before the purchase was actually made, in March, 1892, and that some of them were not parties to the negotiations of 1891.

The defendants presented a large number of requests to charge. Those necessary to consider here read as follows:

“Defendants had a right to employ any number of brokers they saw fit, and would only be responsible to the broker who made the sale. (Granted.)
“Defendants could not be held responsible to the plaintiffs for commissions, even if Moores first heard through them that the land was for sale, and then applied direct to the defendants for the agency, secured the agency, and made the sale as agent for the defendants. (The court stated that this would be given in connection with what he had already charged.)
“The plaintiffs, not having had the exclusive agency for the sale of the land, and not having furnished a purchaser, cannot recovér. (Refused.)
“When J'. H. Moores came to the defendants, and asked them to permit him to sell the land as their agent, and pay him a commission of % per cent., the defendants had a right to do so; and said Moores having sold the property, as their agent, to Alexander McPherson, trustee, and they having paid said Moores for his services as such agent, the plaintiffs cannot recover. (Refused.)
“As between the defendants and Alexander McPherson, trustee, Alexander McPherson alone was the purchaser, and J. H. Moores was the agent for the sale, and therefore the plaintiffs cannot recover. (Refused.)
“As between the defendants and Alexander McPherson, trustee, the only persons who could possibly be said to be purchasers were the parties who paid the defendants the money. The fact that the parties who paid the money agreed to pay Mr. Moores for his services and expenses by giving him a contingent interest in the lands would not make Moores a purchaser from the defendants, and therefore the plaintiffs cannot recover. (Refused.)
“The defendants sold’their land to Alexander McPherson, trustee. No part of the purchase price was paid or raised by J. H. Moores. So that all the consideration the defendants ever received was paid by purchasers other than Mr. Moores. The fact that the purchasers, also, at the time of the purchase or subsequently, agreed to give Mr. Moores an interest in the profits for the services that he (Moores) had rendered, and was to render in the future, did not make Moores a party to the original purchase. (Refused.)
“The defendants had a legal right to sell-their lands through any broker other than plaintiffs, and, having sold it through J. H. Moores, they were not liable to the plaintiffs, and therefore the plaintiffs cannot recover. (Refused.)
“Plaintiffs had no purchaser for the lands, but only an offer from another broker that he ■ would furnish a purchaser, at a fixed price, for oné-half of the commissions. This offer of another broker was refused by the plaintiffs. Consequently the plaintiffs had neither a purchaser, nor an agent to secure a purchaser, and the plaintiffs cannot recover. (Refused.)”

The court refused to give these x-equests, except as above stated, but charged that— .

“If, through the instrumentality of the plaintiffs, a sale of these lands was effected for the price agreed upon between the parties, then the amount of this commission became dxxe. It was not necessary, as has been stated by some of the counsel in this case, that they should have been actually present at the time of the tx’ansfer of the lands, but it was only essential that they should have brought the parties together, — been the effective instrument in making the sale of the laxxds to the persons who purchased them. And this is one of the questions, and one of the important questions, for you to determine before making up your verdict in this case. If you shall find from the evidence that at any time the negotiations that were pending with Mr. Moores, who was the only person with whom the plaintiffs in this case negotiated for the sale of these lands, that if at any time this sale fell through, or was mutually abandoned by these parties, so that they understood that the negotiations had ceased; no more effort was made, or intended to be made, for the sale of the lands at this price, — then I do not think these commissions were earned. Before the plaintiffs in this case can recover, you must find that it was their actions that were instrumental in bringing about the purchase.
“ There is some evidence in this case in regard to the question as to whether these parties were acting as agents, — that is, Mr. Moores was acting as a land broker (that is, a person undertaking to obtain purchasers of land), but in no way acted as a purchaser himself, — and there is a good deal of correspondence in relation to the question as to how he was to be paid; and it is contended, and the evidence is before you in that respect, that Mr. Moores was not intending to purchase these lands for himself, but that he was only negotiating with the plaintiffs for the purpose of procuring a purchaser for them, and of asking them to divide their commissions with him, which they uniformly refused to do. Now, if, in obtaining these purchasers, he was to obtain his commission from the purchasers, and they were to obtain their commission from the seller, if you shall find this state of facts to have existed, under the testimony, and the purchasers were obtained by him with that understanding, then the plaintiffs in this suit would be entitled to their commission, if you find that they were instrumental in bringing about this sale. * * *
‘ ‘ I am going to leave the question to you whether Mr. Moores was one of the purchasers in this transaction, or whether he was acting solely as an agent or land broker for selling this land to some other syndicate, or to somebody besides himself; for I charge you, if this purchase was made by Mr. Moores himself, or he purchased it to be interested in it, or receive any of the [benefits] of this sale, inured to him over and above any commission he should receive from any party, or he became interested more than his commissions in the sale, in this transaction, I leave it to you to say whether, under such circumstances, he was or was not one of the purchasers; and I charge you that it is the law in this case that if he acted solely as a land broker, never intending to be the purchaser himself, never participating in the profits, or actually receiving any of the benefits, over and above his commissions, then he was at liberty, as such land broker, with the understanding as is shown by the evidence in this case, to have negotiated this sale with somebody else, if he himself was no party to it, and he would have been entitled to his commissions, and the sale brought about in such a way would not- inure to the benefit of the plaintiffs, and they would not be entitled to commissions on the sale.”

We cannot agree with the learned judge that there was anything in this case to submit to the jury. The evidence shows very clearly that the plaintiffs did not procure a purchaser of these lands. The plaintiffs knew that Mr. Moores was acting in the capacity of a broker, but did not know for whom he was acting. Their negotiations with him resulted in a proposition from him to place the lands at $4 and $4.25 an acre, the commissions to be divided between them. This offer was unqualifiedly refused. The plaintiffs regarded the matter as ended. This is inaicated by the letters already mentioned, and by the fact that nothing was done by them afterwards to find a purchaser; and, so far as the record shows, plaintiffs never did anything further about procuring a purchaser of the lands. It is, of course, not necessary that the broker should be present at the sale; but the law is well settled that his efforts must be the procuring cause of the sale, to entitle him to recover. Mechem, Ag. § 966; Kelso v. Woodruff, 88 Mich. 303; Wylie v. Bank, 61 N. Y. 415; Sussdorff v. Schmidt, 55 N. Y. 319; Sibbald v. Iron Co., 83 N. Y. 378; Dreyer v. Rauch, 42 How. Prac. 22. See Thuner v. Kanter, 102 Mich. 59. There is nothing to show that plaintiffs knew, prior to the sale, that McPherson, as trustee or otherwise, proposed to buy these lands, or that McPherson knew that the plaintiffs were authorized to sell them. The plaintiffs understood that they did not have the exclusive agency for the sale of these lands; that defendants were at liberty to sell them, or to employ other brokers to do so. Moores was employed by the defendants, in good faith, in the capacity of a broker, and was paid his commission, without any knowledge on the part of the defendants that plaintiffs had ever communicated 'with Mr. Moores in relation to the sale of these lands, and after every offer ever made by the plaintiffs for any prospective buyer had been rejected, for the reason that the price offered was several thousand dollars less than the price for which plaintiffs were authorized to make the sale. To require defendants to pay plaintiffs a commission under such circumstances would be unjust. Tinges v. Moale, 25 Md. 480 (90 Am. Dec. 73); Ward v. Fletcher, 124 Mass. 224; Vreeland v. Vetterlein, 33 N. J. Law, 247; Wylie v. Bank, supra; Ahern v. Baker, 34 Minn. 98; Sibbald v. Iron Co., supra; Dreyer v. Rauch, supra; Mechem, Ag. § 969. See, also, Glenn v. Davidson, 37 Md. 365.

The circuit judge left it to the jury to say whether Mr. Moores was in fact a purchaser, and authorized them to find a verdict for the plaintiffs if they found that Mr. Moores had any interest in the lands purchased, except as a broker. This was error. Mr. Moores’ name did not appear, as grantee, either in the land contract or deed. He contributed nothing to the purchase price paid the defendants. All, the negotiations between him-and the parties to this litigation were conducted upon the basis of his being a broker. For the purposes of this case, he must be so regarded. The circuit judge should have directed a verdict in favor of the defendants.

Judgment is reversed, and no new trial ordered.

The other Justices concurred.


text:
    WALKER v. CITY OF ANN ARBOR.
    1. New Trial—Action Against City—Councilman as Juror-Failure to Object.
    A new trial will not be granted after a verdict for defendant in an action for personal injuries against a city, because one of the jurymen was a member of the common council, where the attorney for the plaintiff knew of that fact at the time the jury was selected, and made no objection to him on that account.
    2. Municipal Corporations—Repair op Sidewalks—Duty to Maintain Barriers.
    A city may avail itself of the placing of barriers and lights by the contractor or the property owner on a sidewalk under repairs, in an action against it for personal injuries received after the removal thereof, with the same effect as if they had been placed by the city itself.
    Error to Washtenaw; Kinne, J.
    Submitted October 6, 1896.
    Decided December 1, 1896.
    Case by Ann J. Walker against the city of Ann Arbor for injuries sustained by reason of a defective sidewalk. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Noah W. G heever, for appellant.

      John F. Lawrence, for appellee.
   Moore, J.

Plaintiff sued defendant to recover for injuries sustained by her from a fall received on a defective sidewalk at about 7 o’clock in the evening of October 7, 1893, which, resulted in severe injuries to her. Mrs. Ottley had been ordered by the proper authorities to construct a new walk in front of her premises, upon a grade recently established. She built a cement walk, which was completed the daj7- before the injury occurred. The walk was not dry, and had not been thrown open to the public, at the time of the accident. The west end of the walk was about 6 inches higher than the walk on the adjoining property. At the east end of the new walk there was a drop of 18 or 20 inches. The city authorities had notice of the situation of the walk. It was at the east end of the new walk that the accident occurred. It is the claim of the defendant that the contractor who built the walk erected at each end of the new walk suitable and proper barriers to exclude the public from using the walk, and that these barriers were known to be in place as late as half past 5 o’clock upon the afternoon of .the accident, and that they had been removed by some evil-disposed person,—just how long before the accident, no one knows. It was also the claim of the defendant that suitable lights were kept on the barriers when it was dark; that upon the evening in question the lights were all prepared, but had not yet been put out, because it was not dark enough to require them. It was the claim of the plaintiff that proper barriers had not been erected by any one; that, when the accident occurred, it was so dark that she could not see the dangerous condition of the walk. It was also her claim that the city authorities, after knowledge of the condition of the walk, had not acted at all. After the testimony was all in, the trial judge was requested to direct a verdict for the plaintiff. This he declined to do, and charged the jury as follows:

“The legislature of this State has made it the duty of a city to keep in reasonable repair, so they will be reasonably safe and convenient for public travel, all sidewalks within its jurisdiction. The law does not require that the sidewalks shall be kept absolutely safe, but only reasonably so, and fit for public travel. It is the duty of the defendant city to exercise, through its officers and its agents, a reasonable and supervisory care over its sidewalks, and, within reasonable limits, to be watchful of their condition and safety. The defendant is not bound to extraordinary diligence, but only to an ordinary and reasonable care and diligence. It is not an insurer of safety. It does not undertake to warrant against accidents and injuries. But it does undertake to exercise reasonable care and diligence in respect to the condition of its sidewalks.

“The plaintiff in this case bases her claim to recover upon the allegations that the defendant city has been guilty of negligence in the care of its sidewalks, and that she met with her accident and injuries by reason of such negligence on the part of the city. * * * The particular negligence complained of by the plaintiff against the defendant is that this sidewalk, when completed, was left in a dangerous situation; that no danger lights or proper barriers were put there to warn and protect the public against accident. It is undisputed that the walk was ordered and laid upon a grade established by the city, and that the street commissioner was present at some time or times during its construction.

“Now, you will determine from the evidence whether or not this walk, when completed, was dangerous, and whether or not, at the time this accident occurred, this sidewalk was in a dangerous situation or condition. If you find from the evidence that, at the time this accident occurred, this walk was in a dangerous condition, and unfit for travel, then it was the duty of the defendant to see that proper barriers were placed there during the-day, and suitable lights at night, to warn the public of this alleged danger,—that is, such barriers and such lights should be placed as would be sufficient to warn persons of reasonable and ordinary prudence of the presence of this alleged danger; and, if the city failed so to do, it would be liable to the plaintiff for any injury which she suffered, caused thereby, and to which she did not contribute. As far as the question of barriers for the daytime is concerned, if they were maintained until 5 o’clock of the day the accident occurred, and then removed by some unknown person, without the knowledge or authority of either the defendant or Mrs. Ottley, there could be n'o charge of negligence for want of these barriers; but if, at the time this accident occurred, the barriers, if there, would not have been a reasonable caution or protection, and if you find from the evidence that warning lights should have been there for the protection of the public, and that none were so placed, and if you further find that the city failed to take any measure or action to see that such lights were so maintained there, the defendant would be guilty of negligence, if you find that such lights were necessary to the reasonable protection of the public.”

The jury returned a verdict in favor of the defendant.

A motion was made for a new trial, upon several grounds; the only one necessary to notice here being that one of the jurymen, Mr. Taylor, was a member of the common council. The record discloses that the attorney for plaintiff at the time the jury was selected knew that Mr. Taylor was an alderman, and made no objection to him on that account. The motion for a new trial was overruled, and the case is brought here by the plaintiff. The motion for a new trial was properly overruled. Counsel cannot risk a verdict, and, when it is adverse to them, then move for a new trial, basing their application upon facts which were known to them when the verdict was received, which facts they failed to call to the attention of the trial judge. Bourke v. James, 4 Mich. 336; Sleight v. Henning, 12 Mich. 371; Johr v. People, 26 Mich. 427.

It is urged in the brief filed on the part of the plaintiff that the city is liable for defects of construction, as well as for defects for want of repair (citing Carver v. Plank-Road Co., 61 Mich. 590; Sebert v. City of Alpena, 78 Mich. 165), and that the city is liable for a dangerous drop in the sidewalk, even when made by a private citizen (citing Shippy v. Village of Au Sable, 85 Mich. 295), and that the city must close the street or sidewalk to all travel, if necessary to protect the public (citing Southwell v. City of Detroit, 74 Mich. 438; Alexander v. City of Big Rapids, 76 Mich. 284). Undoubtedly, these positions are well taken, and, if we read the charge of the circuit judge correctly, they were accepted as true by him. No case can be found, however, that requires the closing of a street to travel because a new sidewalk is in process of construction. The most that is required is that the public shall be excluded from that portion of the walk that is not reasonably safe and fit for travel, while it is in that condition. An effort was made to do this by the contractors. If we understand the position of the counsel for the plaintiff, it is that inasmuch as the city, by its officers, placed no barriers or lights, and the accident occurred, the city is liable, even though the contractor and the property holder had erected barriers and placed lights. We do not think this position can be maintained. All that is required is that the city shall see that the sidewalk is reasonably safe and fit for travel. If the walk is kept in that condition, whether it be done by the contractor, the property owner, or the city, it is to be treated as done by the city, and there can be no liability. The charge of the court was a careful and full explanation of the law as applicable to the case. If the charge is open to any criticism, it is that it was even more favorable to the plaintiff than she was entitled to have it; for it may well be questioned whether there would be any liability, where barriers had been placed as was shown to have been done here, when they were removed by some wrong-doer, and there was no knowledge on the part of the city of the removal of the barriers. Klalt v. City of Milwaukee, 53 Wis. 196 (40 Am. Rep. 759); Mullen v. Town of Rutland, 55 Vt. 77; Raymond v. Keseberg, 91 Wis. 191; Weirs v. Jones Co., 80 Iowa, 351.

We do not discover any error in the record.

Judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    BREITENWISCHER v. CLOUGH.
    1. Parol Evidence — Deeds — Consideration — Ownership op Crops.
    Parol evidence is admissible to establish an agreement by a grantee to allow the grantor, as part consideration for the deed, the privilege of sowing and raising for his own use a crop of grain, upon the land conveyed. Adams v. Watkins, 103 Mich. 431, distinguished.
    2. Replevin—Demand—When Necessary.
    One who claims grain by virtue of an alleged agreement for the working of his land on shares is relieved from thé necessity of making a demand before bringing replevin if the person sowing the grain converts the entire crop to his own use, and denies the contract under which the plaintiff claims.
    Error to Washtenaw; Kinne, J.
    Submitted October 20, 1896.
    Decided December 1, 1896.
    Replevin by Henry Breitenwischer against Elmer Clough. From a judgment for defendant, plaintiff brings error.
    Reversed.

      A. IP. & F. M. Freeman, for appellant.

      Thomas D. Kearney and Thomas A. Bogle, for appellee.
   Hooker, J.

Plaintiff, a mortgagee of the premises, took a conveyance of a farm from a grantee of the mortgagor. At the time of the transfer the grantor’s son, the defendant, lived upon the place, and plaintiff claimed that, a few days later, the plaintiff went to the farm, where a talk was had between the plaintiff and defendant. The parties disagree about the nature of this transaction. The plaintiff claims that he then contracted to allow the defendant to put in a crop of wheat for one-third of the crop, to be delivered in the half-bushel, upon the place, and defendant was to remain in the house until April 1st following. The defendant claims that nothing was said about his putting in the wheat on shares, or renting the place; that his possession was out on April 1st; and that all that was said in the conversation about the wheat was that defendant said he was going to put in 20 or 25 'acres, and plaintiff said that he must “put it in good, because he wanted to seed it down.” The defendant further asserted that, when the deed was made, as consideration therefor, the plaintiff agreed that he would allow the defendant’s father to grow 20 or 25 acres of wheat upon the place, and that this inured to defendant’s benefit.

Upon the trial, counsel for the defendant offered to prove this state of facts, but it was excluded by the court, and the plaintiff claims that it was error for the court to permit the statement to- be made. The theory upon which this testimony was excluded appears to be that such arrangement was a contradiction of the deed, and therefore its admission would have the effect of varying the deed by parol testimony, as in case of Adams v. Watkins, 103 Mich. 4-31. We think the cases are plainly distinguishable. In that case a majority of the court were of the opinion that the arrangement claimed to have been made was, in effect, a parol reservation of a growing crop. In this case there was no growing crop, and, so far as appears, the deed was intended to convey the entire title. As a consideration for such conveyance, the plaintiff agreed to allow the defendant’s father to sow and raise a crop within the year following. This was a contract, performed on one side, for an executory promise, unperformed on the other. Had the plaintiff prevented the raising of the crop, an action upon the contract for damages for its breach would have been properly brought.' But he was permitted to sow, and the defendant thereby acquired rights in the crop. It is much like a case where one says, “If you will deed me your house and lot, I will let you move into it for six months.” If, after this arrangement should be carried out by the parties, the owner should bring an action for six months’ rent, he would not be allowed to recover. In other words, the executory contract was oral, as such usually are. On the one hand, it was carried out by making the deed. On the other, the grantor was permitted to raise a crop. There was no reservation of any interest in the premises, but reliance upon a promise to permit the raising of a crop, which was a promise that the grantee might make, although he had not acquired the title. Dayton v. Dakin’s Estate, 103 Mich. 73. It would, therefore, have been proper testimony in the case.

The defendant harvested and removed the crop from the premises, claiming to own it, and the plaintiff replevied one-third of the crop, which was being threshed at the time of the issuance of the writ. The defendant was not permitted to show that he owned the wheat, as already stated, but it was left to the jury to find whether a demand was made before suit, upon the instruction that plaintiff could not recover without a previous demand. It is plain that the defendant was disputing the plaintiff’s title, by denying the contract under which plaintiff claimed a light to a share of the crop, under circumstances which showed that he had converted the entire crop to his own use. Demand, in such a case, was an idle ceremony, and was unnecessary. If plaintiff’s claim was true, the defendant had a right to the custody of his one-third only for the purpose of threshing and delivery; and when he removed it, for the purpose of preventing the plaintiff from obtaining such share, with the intention of keeping it, under a denial of plaintiff’s claim, and upon a claim of ownership, he was in a similar position to a bailee who sets up a claim of ownership against the true owner. Such a claim was inconsistent with the hypothesis that he would deliver the wheat upon demand, which rendered a demand unnecessary. Wells, Repl. §374; Cobbey, Repl. § 448, and cases cited; Byrne v. Byrne, 89 Wis. 659; Hyland v. Manufacturing Co., 92 Wis. 157; Carl v. McGonigal, 58 Mich. 567; Whitney v. McConnell, 29 Mich. 12.

"We cannot determine that the defendant was right in his contention as to ownership, or that the case did not turn upon the want of a demand, and hence must reverse the judgment. A new trial is ordered.

The other Justices concurred.


author: Hookee, J.

text:
    KNIGHTS v. PIELLA.

    1. Bailments—Goods Sent with Privilege of Purchase.
    A letter from a retail dealer in jewelry to a wholesale dealer, stating that the former has a customer for a diamond, and asking the latter to send him a number of stones, and suggesting that he may have to keep them for ten days or two weeks, as the customer is slow on selection,—is merely a request to send goods with the privilege of purchase; and the custody of the goods sent in pursuance of the letter is in the nature of a bailment.
    2. Same—Degree of Care Required.
    The bailment in such case being for the mutual advantage of the parties, the bailee is held to the exercise of ordinary care and diligence only in his custody of the goods.
    ' S. Same—General Issue—Defenses — Presumption of Negligence.
    In an action by the bailor to recover the value of the goods from the bailee upon failure of the latter to redeliver, the bailee may show, under a plea of the general issue, that the goods were stolen from him; and no presumption of negligence arises from the mere fact of the loss by theft.

      i. Same—Burden of Proof.
    The bailee in such case having shown a fact which prima facie excuses his failure to redeliver, the burden rests upon the bailor to prove want of due care.
    5. Same—Promise to Pay for Goods—Evidence.
    A letter written by the bailee to the bailor immediately after the theft, apprising the bailor of the fact, and promising to pay for the goods, does not conclusively establish the liability of the bailee, independent of all the other circumstances surrounding the transaction.
    Error to Ingham; Person, J.
    Submitted October 21, 1896.
    Decided December 1, 1896.

      Assumpsit by Charles H. Knights and another against Charles A. Piella for the value of certain diamonds sent to defendant on selection. There was a judgment for defendant, and plaintiffs bring error.
    Affirmed.

      William A. Fraser (Varnum & Anderson, of counsel), for appellants.

      Jay P. Lee, for appellee.

       Rehearing denied January 12, 1897.

   Hookee, J.

The plaintiffs were wholesale dealers doing business in Chicago, and defendant a retail dealer in jewelry at Lansing. The defendant wrote, and plaintiffs received, the following letter, viz.:

“Lansing, Mich., June 21,1893. “C. H. Knights & Co.

“Sirs: I have a customer for a diamond. I think he will take about one and one-half carat stone. Send me some, but good qualities. If I sell him a stone, it will sell a half dozen more in a sh.ort time. He is a man of big influence. Send them from one and one-fourth up to two carats. Send two or more at one and one-half carats, in different quality, if you can spare them. I may have to keep them for ten days to two weeks. He pretty slow on selection, but good as-.

“Chas. A. Piella.”

The plaintiffs forwarded to him séven diamonds, aggregating $1,033.19 in value, accompanied by the following memorandum:

“Memorandum from C. H. Knights & Co., Wholesale Dealers, Columbus Memorial Building, Chicago, corner State and Washington, streets.

“ Chicago, June 22, 1893.

“ Do not remove or deface cards or tags on goods.

“C. H. Knights. W. H. Gleason.

“Duplicate. These goods belong to us until paid for.

“Mr. C. A. Piella,

“ Lansing, Mich.:

2324 one dia. 2 1-16 at.............. $80 00
2328 one dia. If____________________ 115 00
2325 one dia. If 1-16 1-64........... 96 00
2223 one dia. If--------------------82 00
X one dia. If----------------------110 00
2330 one dia. If 1-16 1-32........... 82 00
2321 one dia. If $76.00 (per carat).”

The testimony of the defendant shows that he received the diamonds, and that the same were placed in a show case, from which they were stolen in the course of the next hour. Defendant having refused to pay for the stones, this action was brought to recover their value. The court instructed the jury that the title to the goods was in the plaintiffs, and that the goods were left with the defendant to be sold for their mutual benefit, or returned, and that the defendant was not an insurer of the safety of the goods, and was held to the exercise of ordinary care only, and that the burden of showing the want of such care was upon the plaintiffs. It was contended by the plaintiffs’ counsel that the defendant acknowledged his liability by the following letter, written soon after the loss:

“Lansing, Mich., June 23, 1893. “O. EL Knights & Co.

“Sirs: Porepaugh’s circus is in town today. I just received your package of diamonds, but I didn’t have them long. I got robbed of them after I received them,—one hour afterwards; my stones, and the stones I got from you this morning. I notified the Pinkertons, in Chicago; the Jewelers’ Alliance; also, H. H. Botts’, of New York. I belong to this insurance company. Will you please send me a duplicate bill ? They stole bill and all, with the book, out of my case. Don’t be alarmed. I shall pay you every cent I am indebted to you,—it is all the debts I have in God’s world,—even if I have to sell my home to pay it.

“Yours truly,

“Chas. A. Piella.”

Upon a motion by plaintiffs’ counsel to strike out certain testimony, the following colloquy between court and counsel occurred:

‘ ‘ Court: Setting aside the second letter for the purpose of this question, in considering it, do I understand that it is agreed between counsel that, if a sufficient degree of care were exercised, the loss would follow the title to the property ?

“Mr. Day: I think that is true; no question about it.

“Mr. Varnum: I have no doubts about that question, your honor.

Court: Upon that question I have some doubts. I have not any doubt as to where the title to this property was at the time of the alleged robbery or loss. * * * This is a reservation of title, clearly, under the circumstances of this case, on the part of C. H. Knights & Co. Under that situation the goods are said to have been stolen. I am not quite certain myself as to the duties imposed upon a consignee in a case of this kind, concerning the return of the goods; but, on the basis of what was stated in this case, I should'assume that the loss would follow the title, providing the consignee had exercised such care over the goods as their character, value, and the'circumstances of the case required,—reasonable and fair care. I feel very certain as to where the title was. I do not feel quite so certain as to the consequences. This matter must come to an end somewhere. I am going to take the opinion of the jury as to the question of care exercised by Mr. Piella in this matter.

Mr. Varnum: What position does your honor take in regard to the letter of June 23d? Is that to be submitted to the jury ?

Court: My present view about that letter is that, if Mr. Piella exercised proper care under the circumstances, there was no liability upon his part, and the letter would not create one. If he did not exercise that care, there was a liability following, by the terms of that letter, which would permit you to sue in assumpsit without a special count. It would be an express promise that would not bring it within the common counts.”

This excludes the claim now made that the defendant unconditionally promised to purchase or return the diamonds. The letter written by the defendant in the first instance was not equivalent to an unconditional order for goods, but a request to send goods with the privilege of purchase. It was not even a purchase with the right to return reserved, for there was no promise to buy. In this respect the case differs from those which hold that the vendee in a conditional sale takes the risk of the loss or destruction of the property. Walker v. Owen, 79 Mo. 569; Snyder v. Murdock, 51 Mo. 175; Burnley v. Tufts, 66 Miss. 48 (14 Am. St. Rep. 540); 1 Beach, Cont. § 141, and cases cited. The custody of these goods was more in the nature of a bailment, as contended by counsel. Schouler, Bailm. §§ -3, 6. As said by Mr. Justice Cooley in Dunlap v. Gleason, 16 Mich. 161 (93 Am. Dec. 231), the defendant might “terminate the bailment and purchase by payment.” See, also, Detoes Brewery Co. v. Merritt, 82 Mich. 201; Powell v. Eckler, 96 Mich. 538; Caldwell v. Hall, 60 Miss. 330 (45 Am. Rep. 410); Weir Plow Co. v. Porter, 82 Mo. 23; Knight v. Worsted Co., 2 Cush. 283.

It being apparent that, upon the admitted facts, the title was in the plaintiffs, and upon the admitted law, as above shown, that the court had a right to direct the jury that the owner of the title must bear the loss, unless the defendant was negligent, or the second letter showed a reason to the contrary, many of the questions raised become unimportant. We think the letter in question did not show a purchase, or an unconditional and unqualified promise to return the stones; and, in our opinion, the circuit judge was right in saying that the defendant was called upon to exercise ordinary care and diligence, as the bailment was one for the mutual advantage of the parties. There is much conflict in the books upon the subject of, the burden of proof in actions arising upon the loss or destruction of property while in the hands of the bailee. The jury were instructed that “the burden of proof is upon the plaintiffs, C. H. Knights & Co., to show that he did not, and thus, by the preponderance of evidence, to show that he was lacking in that ordinary degree of care that I have mentioned.”

Upon this record, the defendant has established the fact and circumstances of the theft, without contradiction. There is no presumption of negligence from the mere fact of the loss or theft, and while there is much reason for the rule, adhered to in many States, that the defendant has the burden of proving the fact of loss, it does not necessarily follow that a presumption of negligence arises; and, if the facts shown in connection therewith do not fail to excuse, the onus is on the plaintiffs to shake defendant’s exculpation. This does not deny the proposition that when the bailment is proved, and a refusal to deliver is established, the plaintiff has made out a prima facie case, and the inference of wrong by the defendant follows, or that it is then for the defendant to explain the loss and exonerate himself, which he may do by showing circumstances which prima facie excuse the failure to deliver. To this extent, and in this sense, a burden rests upon the defendant; but, if this question of fact becomes a disputed one, the evidence of the plaintiff must preponderate; and if the language of the charge, viewed abstractly, extends further, it cannot be said to have prejudiced the plaintiffs, under the established facts, the disputed question in this connection being whether or not the care exercised was equal to that to be expected from ordinarily prudent persons under similar conditions and circumstances. See Schouler, Bailm. § 23, for a discussion of this subject.

It remains to add that we think the defense was allowable under the plea of the general issue, being a complete answer to the claim of the conversion.

As it is not in our province to pass upon the disputed question of fact, we cannot disturb the verdict.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    OSBORNE v. CHICAGO & WEST MICHIGAN RAILWAY CO.
    Railroad Companies—Damage by Fire—Negligence.
    In an action against a railroad company for negligence in “permitting a quantity of combustible material to accumulate upon its right of way, in causing a Are to be started therein, and. in permitting such fire to escape from the right of way to the adjoining land of the plaintiff,” it is incumbent upon the plaintiff to prove the origin of the fire, and that the negligence of the defendant was the proximate cause of the injury. A general instruction, therefore, that the defendant is liable if “the damage occurred because of the negligence of the railroad company,” is erroneous.
    Error to Muskegon; Russell, J.
    Submitted October 20, 1896.
    Decided December 1, 1896.
    Case by Silas Osborne against the Chicago & West Michigan Railway Company for negligently causing the burning of property adjacent to its right of way. From a judgment for plaintiff, defendant brings error.
    Reversed.

      F. A. Nims and William Alden Smith, for appellant.

      Arthur Jones, for appellee.
   Grant, J.

The declaration contains three counts. Upon the trial the plaintiff abandoned the first two counts, and recovered upon the third. The third alleges that the defendant was negligent in “ permitting a quantity of dry grass, rubbish,, and other combustible material to be and remain upon its right of way; in causing a fire to be started in said grass and rubbish, and permitting said fire to pass and escape from its right of way to the adjoining lands of the plaintiff.” The fire occurred July 16th. The combustible material which was charged to have accumulated consisted of grass and dead leaves which had accumulated among low huckleberry bushes along the right of way. The plaintiff based his right to recover upon the accumulation of the combustible material. While there was testimony from which it might be inferred that the fire caught from an engine, it is apparent that the jury were not agreed upon the origin of the fire. After they had been out some time, they returned into court, saying they could not agree. The judge refused to discharge them, and was about to send them back for further consideration, when the following colloquy took place:

‘ ‘ Juror: It is not necessary that we should find that that fire started from that engine, is it,—from the cars running through there?

The Court: Not if the damage occurred because of the negligence of the railroad company.

‘ ‘ Juror: It don’t make any difference where the fire originated or started,—what was the cause of the fire ?

“ The Court: Not if it occurred because of the negligence of the railroad company.

Juror: That is what I thought.

The Court: If there is nothing further, you gentlemen may retire.”

The instruction, in substance, said to the jury that the origin of the fire was of no consequence, but if they found that, on account of the dry weather, the defendant was negligent in not removing the dry grass and leaves, they should find for the plaintiff, although the defendant might have had nothing whatever to do with starting the fire. Whether there are any circumstances under which a railroad company would be liable for a fire started by a third party in such accumulations along its right of way, we need not determine. If plaintiff did not rely upon the fact that the fire was started by the defendant, it was certainly incumbent upon him to prove its origin, and that his damage resulted from the negligence of the defendant. If plaintiff had started the fire himself, or if a stranger walking along the right of way had intentionally or carelessly set fire to the grass and rubbish, or if an adjoining owner had set fire on his own land, and the fire had run across defendant’s land to plaintiff’s, clearly the defendant would not have been liable. In either of such cases the negligence of the defendant would not have been the proximate cause of the injury. The reason why, under certain circumstances, a railroad company is required by law to remove such inflammable material, when practicable, is to prevent its engines from setting fire thereto, and not to protect adjoining property from the acts of other parties. The court should have instructed the jury that, under the evidence, they could find for the plaintiff only upon the theory that it caused the fire. The duty of railroads in regard to such combustible material will be found discussed in Sibilrud v. Railway Co., 29 Minn. 58; Kesee v. Railroad Co., 30 Iowa, 78 (6 Am. Rep. 613); 2 Rorer, R. R. 792-805; 8 Am. & Eng. Enc. Law, 1.

Other questions are raised, but, as they are not likely to occur upon a new trial, we need not discuss them.

Judgment reversed and a new trial ordered.

The other Justices concurred.


text:
    NORTHWAY v. SHERIDAN.
    1. Public Officers—Incompatible Positions—Effect of Acceptance.
    A board of supervisors cannot refuse to recognize one elected as a member, because, at the time of his election, he held an office the duties of which so conflict with those of a supervisor that, on the ground of public policy, one person ■ ought not to be allowed to hold both offices, since one who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office.
    2. Same—Township Supervisor and County Clerk.
    Whether the offices of county clerk and township supervisor are so incompatible as to preclude one person from holding both at the same time,—queere.

      Mandamus by Fred J. Northway, prosecuting attorney of Montmorency county, to compel Thomas Sheridan, supervisor of Vienna township, to deliver the assessment roll of said township to the committee on equalization of the county board of supervisors. Respondent filed a cross-petition to compel the board of supervisors to recognize him as a member of such board.
    Submitted October 6, 1896.
    Writ granted as prayed in cross-petition, December 1, 1896.

      E. A. Cooley, for relator.*,

      W. E. Depew, for respondent.
   Moore, J.

The only question in controversy is whether the offices of county clerk and supervisor of a township may be held by one person at the same time. Thomas Sheridan, while holding the office of county clerk, was elected supervisor of the township of Vienna in the spring of 1896, and entered upon the duties of the office of supervisor. The board of supervisors refused to recognize Mr. Sheridan as supervisor, and he seeks by his cross-petition to have them compelled to recognize him. It is admitted by counsel that the statutes of the State do not in express terms forbid one person from holding the two offices, but it is insisted that the duties of the two offices are so conflicting that one person ought not to be allowed to hold them both upon the ground of public policy. No decision is cited by counsel directly bearing upon the case presented, but in a very able brief, presented by the counsel for the board of supervisors, our attention is called to all the provisions of the statute which tend to show conflicting interests between the holders of the two offices.

It is not necessary, in the disposition of the case, to decide whether the duties of the two offices are so inconsistent as to make it impossible for one person to hold both offices at the same time. The respondent has accepted the office of supervisor, and entered upon its duties. The rule is well settled “that he who, while occupying one office, accepts another incompatible with the first, ipso facto vacates the first office.” It follows that the board of supervisors must recognize the respondent as a supervisor. The writ of mandamus will issue as prayed in the cross-petition.

The other Justices concurred.


author: Montgomery, J.

text:
    CULLEN v. HARRIS.
    Garnishment—Proceeds of Sale of Exempt Personalty.
    The proceeds of the sale of exempt personal property, designed for investment in other exempt property, to take the place of that sold, are not subject to garnishment in the hands pf the purchaser.

    Error to Genesee; Wisner, J.
    Submitted November 10, 1896.
    Decided December 1, 1896.
    Replevin by Ambrose Cullen against William E. Harris. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    Plaintiff contracted to purchase of defendant a yoke of oxen at the stated price of $95, $45 of which was paid down, and it was agreed that the remaining $50 should be paid upon delivery of the oxen, a few days later. Before the time fixed for the delivery and the payment of the remaining portion of the purchase price, plaintiff was garnished by a creditor of Harris. Upon the day fixed for delivery, plaintiff demanded delivery of the oxen; stating that he had been garnished, and stood ready to pay the money upon its being ascertained to whom he should pay it. Defendant refused to deliver the oxen without payment of the $50, and stated at the time to plaintiff that he was selling these oxen for the purpose of procuring a team of horses with the proceeds, to take the place of the oxen. It appeared by the undisputed testimony that defendant was a farmer, and that he had no other team to use in carrying on his business, and that this team of oxen was so used. The circuit judge directed a verdict for the defendant, and plaintiff brings error.

      Zorrie B. House and Black & Brotan, for appellant.

      D. E. Adams and Ed. S. Lee (J. 8. Barker, of counsel), for appellee.

       On the question how far proceeds of exempt property retain their exempt character the cases are collected in Wylie v. Grundysen, (Minn.) 19 L. R. A. 33.

   Montgomery, J.

(after stating the facts). The sole, question presented on the record is whether, under the circumstances set out in the statement of facts, the proceeds of the sale of exempt property, designed for investment in other exempt property, to take the place of that sold, are subject to attachment while in the hands of the debtor, kept as a separate fund, or are, before reaching his hands, subject to garnishment. The authorities upon this subject are inharmonious. There are cases holding, as • contended by plaintiff, that the proceeds of the voluntary sale of property exempted from execution are not exempt. Wygant v. Smith, 2 Lans. 185; Knabb v. Drake, 23 Pa. St. 489 (62 Am. Dec. 352). The latter case even goes further, and holds that, where property is taken from the owner by proceedings in invitum, a judgment recovered for such wrong is subject to garnishment. But this holding is in conflict with the great weight of authority, and it is generally held that in such case, as well as in the case of a loss of exempt property by fire, the proceeds are exempt, at least until such time as the owner has reasonable opportunity to' appropriate the proceeds to the purpose of replacing the exempt property wrongfully taken from him, or consumed by fire. See Cooney v. Cooney, 65 Barb. 524; Tillotson v. Wolcott, 48 N. Y. 188; Mudge v. Lanning, 68 Iowa, 641; Rood, Garnishm. § 98; 1 Shinn, Attachm. § 71; Thomp. Homest. & Ex. § 748. It has also been held in various jurisdictions where the rule obtains, as in this State, both as to personal and real property exempt, that the owner has the right to sell or exchange such exempt property, and that such sale does not result in establishing a lien in favor of the creditor, or render the property, after the sale, subject to levy, that the money derived from the sale of a homestead, designed in good faith to be applied to the pui’chase of another homestead, and kept separate from other funds for that purpose, is not subject to seizure by creditors. See Watkins v. Blatschinski, 40 Wis. 347; State v. Geddis, 44 Iowa, 537; 1 Shinn, Attachm. § 71; Rood, Garnishm. § 97. We can conceive of no reason for distinguishing between the proceeds of exempt personal property and the proceeds of an exempt homestead, and we think the rule of the Wisconsin and Iowa courts in harmony with the liberal interpretation of the exemption laws which has always obtained in this court.

The judgment of the court below will be affirmed.

The other Justices concurred.


author: Long, C. J.

text:
    CORNING v. LOOMIS.
    1. Vendor and Purchaser—Contract op Sale.
    Defendant wrote to plaintiff, offering to purchase certain land for §250, payable, §25 at a specified date, and §25 every six months after the first payment, stating that he would improve the premises §50 worth the first year, and would set out fruit trees. Plaintiff answered, accepting the terms of the offer, agreeing to charge defendant with the land upon his books, to credit him with all payments, and to give a deed when payments were completed. A subsequent letter from plaintiff to defendant had indorsed thereon the terms of the contract as proposed by defendant. Held, that the writings constituted a valid contract of sale.
    2. Same—Right op Possession.
    Since the contract provided for the setting out of trees and for other improvements upon the land, the purchaser was entitled to possession pending performance.
    S. Same—Notice op Forfeiture.
    A vendor in an executory contract which gives the purchaser the right of possession does not acquire the right of immediate possession upon failure of the purchaser to make the payments as required by the contract, but he must terminate the contract relations by notice of forfeiture or demand of possession.
    Error to Isabella; Davis, J., presiding.
    Submitted October 23, 1896.
    Decided December 1, 1896.
    Ejectment by Grurdon Corning against Daniel Loomis and wife. From a judgment for plaintiff on verdict directed by tbe court, defendants bring error.
    Reversed.

      Thomas Costello and II. H. Graves, for appellants.

      Francis II. Dodds, for appellee.
   Long, C. J.

This is an action of ejectment to recover possession of certain lands described in the declaration. Upon the trial it was shown that plaintiff had title, but defendants claim that they were in possession under a certain contract for the sale of the lands to them. The claimed contract of sale is evidenced by certain letters passing between the parties. November 4, 1891, defendant Daniel Loomis wrote the plaintiff that he desired to purchase the land, and asked him to draw up a contract of sale, and send it to him. He then stated in the letter:

“ I agree to pay $25 March the 20th, and $25 every six months after first payment, or more if convenient, and interest at the end of each payment; and I agree to fence and chop down and improve to the amount of $50 worth the first year, or cause it to be done, and also to set out fruit trees the first year, and they will be on hand in the spring for setting,—I think about $10 worth.”

On December 15th the> plaintiff wrote defendant, accepting the terms of the offer, and agreeing to charge the same upon book account, charging the defendant with the- land, and crediting payments, and when full payment was made he agreed to deed the land to him. February 8th, plaintiff wrote defendant again, saying he would pay up all taxes prior to 1891. On the back of this letter, he indorsed the contract, as it was then understood between the parties, as follows:

“To Daniel Loomis: The land mentioned in letter opposite side of this sheet is the E. -J- N. W. sec. 29, T. 15 N., R. 6 west, containing 80 acres, more or less. I have letter from Mr. Daniel Loomis in which he agrees to pay $250 for the land, as follows: $25 March 20, 1892, and $25 each six months after first payment, or more if he can, and agrees to chop and cut down and improve to the amount of $50 the first year; also to set out fruit trees. They will be on hand in the spring for setting. And he is to pay taxes on said land, including the year 1891 and following years. The above I copy from your letter,” etc.

After these letters were written, the defendants went into possession’ of the land. They paid the $25, and made the $50 improvements on the land, and set out the fruit trees, as agreed. They built a house on the land and moved into it, and still continue to reside there.

The letters were offered in evidence by the defendants, under the claim that they constituted a contract of sale of * the land, and gave them the right of possession. The letters were objected to by counsel for the plaintiff, but were received subject to the objection then made. On motion, the. court thereafter struck them out of the case, holding that they constituted no more than a mere license, as to any right of possession. All evidence was stricken out as to the contract of sale. Some claim was made by Mrs. Loomis under a tax deed, but the court found that invalid, and, we think, properly, and that will not be discussed. We think the court was in error, however, in holding that the letters did not constitute a valid contract of sale of the land. Ryan v. U. S., 136 U. S. 68; Wilcox v. Cline, 70 Mich. 517. The price was agreed upon, and the time and mode of payment. The letter accepting the defendant’s proposition is signed by the plaintiff, and payments were made thereunder.

But counsel contends that the letters do not give the defendants the right of possession, and for that reason they could not defend their possession, as against the plaintiff, inasmuch as they had not made the payments in accordance with the terms of the contract. It appears that the payment of $25, and the clearing of the $50 worth on the land, and the setting out of the fruit trees had been fully performed. No other payments had been made when this suit was commenced in the early part of 1895; that is, over two years had elapsed from the time the last payment was made under the contract to the time of commencement of suit. If the defendants had the right of possession by the terms of the contract, the mere failure to make payments as by the contract agreed would not, of itself, give the plaintiff the right of immediate possession. He must terminate the contract relations by notice of forfeiture or demand of possession. Michigan Land & Iron Co. v. Thoney, 89 Mich. 226. Did the contract, therefore, give the defendants the right of possession ? It provided that they should make certain improvements, and set out fruit trees on the land. While it is not specific as to possession, it cannot be said but that the parties must have understood, at the time of the making of the contract, that defendants were to have possession. It is not like the case, cited by plaintiff’s counsel, of Buell v. Irwin, 24 Mich. 145. There a mere quitclaim deed was provided for, and the contract was wholly silent as to possession. Under the circumstances here, the court should have directed verdict in favor of defendants, as no notice of forfeiture had been given, nor demand of possession made.

Judgment is reversed, and new trial ordered.

The other Justices concurred.


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    BOUGHTON v. BOUGHTON’S ESTATE.
    Estates op Decedents—Claim for Services—Presumption.
    The presumption that washing, rooms, lights, fuel, and attendance, furnished to a decedent by one claiming compensation therefor against his estate, were gratuities, arising from the fact that the claimant was the daughter-in-law of decedent, and that he lived with her and her husband as a member of the family, is not overcome by evidence that there was an express agreement by him to pay for board.
    Error to Bay; Maxwell, J.
    Submitted November 11, 1896.
    Decided December 1, 1896.
    Mary E.. Boughton presented a claim against the estate of Darius Boughton, deceased. The claim was allowed in part by thé commissioners, and Griffith H. Francis, administrator with the will annexed, on the application of Darius F. Boughton, a legatee and heir at law, appealed. From a judgment for claimant, the administrator brings error.
    Reversed.

      H. H. & C. JEL. Hatch, for appellant.

      L. G. Willcox and George P. Cobb, for appellee.
   Grant, J.

The claimant was the daughter-in-law of the deceased, whose wife died in September, 1886. After her death deceased lived with his son, John 0. Boughton, the husband of claimant. The deceased was possessed of some means, and he paid his son three dollars per week for board. John 0. Boughton died in May, 1894, and Darius died six weeks thereafter. The claim presented

against the estate was as follows:

Board of Darius Boughton from May 14, 1894, to June 26, 1894, 6 weeks,' at $3 per week___________________ §18
Washing for said Darius Boughton from Sept. 6, 1886, to June 26, 1894, 406 weeks, at 50 cents per week---- 203
Booms, extra lights, fuel, and attendance furnished said Darius Boughton from Sept. 6, 1886, to June 26, 1894, 406 weeks, at §3 per week____________________1,218

The case was submitted to the jury upon the theory that there was testimony from which a contract to pay might be implied, and verdict and judgment were rendered for the claimant. The item for board is conceded, but it is insisted that there is no testimony upon which to base an implied contract to pay for. the other items. The deceased lived with his son and daughter as a member of the family, and was .treated as such. There is nothing, aside from the payment of board, to indicate that there existed any other relation. The agreement to pay so much a week for ‘ ‘ board ” excluded any implication to pay for any other services which naturally come within that term.’ There is no testimony to indicate that a word was ever said to the deceased by his son or the claimant that he was expected to pay anything more than the stipulated weekly amount. No contract can be implied where the express contract, in substance, covers the same subject-matter. Schurr v. Savigny, 85 Mich. 144. In order to bind the estate of the deceased, it was incumbent upon the claimant to prove that the deceased knew that Mrs. Boughton intended to charge him for the items for which she now claims, and that he assented to the arrangement. Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201). Not only is there no testimony to show the existence of such an arrangement, but the claimant herself shows that any such intent was purposely kept from him. She testified that something was at one time said between herself and her husband about her making a claim against the estate. She said:

“The care of the old gentleman was such that I often told my husband it was no compensation, and my husband said ‘No,’ but that after grandpa died he wanted a claim made. My husband did not want to hurt grandpa’s feelings. Grandpa did not realize that he was a care. * * * My husband said that he did not want to speak about it, because his father would feel hurt., The old gentleman did not realize that he was a care. I cannot recollect that anything else was said upon the subject.”

The mere fact that a father, living with his son, contributed something out of his own means as a compensation for his support, is not sufficient to negative the existence of the family relation, and open the door to speculation as to whether there was an agreement to pay such further compensation for maintenance as a jury might think the equities of the case justified.

The judgment is reversed, and, inasmuch as no different state of affairs can be shown to exist upon a new trial, none will be ordered. Judgment will be entered in this court for the amount of the board, $18, and interest. The estate will recover the costs of both courts.

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


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    SHELDON v. LEAHY.
    Contracts — Failure to Perform — Recovery on Quantum Meruit.
    The right of a contractor, who failed to complete his contract, to recover upon a quantum mendt because of the other party’s acceptance of his part performance, is limited to a sum not exceeding the contract price, less the cost of completing the work, and less any damages and added expenses caused by his breach of the contract.
    Error to Wayne; Lillibridge, J.
    Submitted November 11, 1896.
    Decided December 1, 1896.

      Assumpsit by George W. Sheldon against Charles Leahy and another upon a building contract. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Atkinson & Atkinson, for appellants.

      James H. Pound, for appellee.
   Montgomery, J.

This is an action to recover for work done under a building contract, in changing over and making additions to a building owned by defendants, under a special contract, and also for some extra work done outside the contract. It appeared on the trial that plaintiff had not completed all the work provided for by the contract, but plaintiff’s claim was that he was prevented by defendants from finishing the job. On the other hand, defendants offered testimony tending to show that plaintiff had abandoned the work without cause, and refused to go on with it. The question of fact as to which party was right in their contention in this regard was fairly submitted to the jury, but complaint is made of the instruction of the court relating to the rights of the plaintiff in case the jury should find as a fact that the plaintiff •was in fault in not completing his contract. The instruction complained of is as follows:

“If you believe from the evidence that the plaintiff was not following up his work with reasonable diligence, but was neglecting it, then the plaintiff is not entitled to recover the contract price; but, having done a portion of the work, he is entitled to recover a fair and reasonable price for the work done and material furnished by him, not exceeding such proportionate part of the contract price as the work done amounted to with respect to the whole contract.”

We think this instruction is open to the criticism made by the appellants’ counsel. The true rule applicable to such a state of facts as that assumed; in the instruction, namely, that the plaintiff had failed to complete his contract fully, according to its terms, but that defendants had accepted the benefit of his services-in the performance of some portion of the contract, is that, while the plaintiff cannot recover upon the contract, he is entitled to recover upon the quantum meruit, for the work performed, a sum not exceeding the contract price, less the cost of completing the work, and less any damage and added expense which the defendants have been put to by reason of the breach of contract by the plaintiff. Allen v. McKibbin, 5 Mich. 449; Wildey v. School Dist., 25 Mich. 419. This limitation was not stated in the charge.

It is contended that the. error was without prejudice. We do not think this contention justified by the record.

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


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    PEOPLE v. ROHRER.
    Intoxicating Liquors—Keeping Saloon Open on Sunday— Penalties.
    The fact that section 7 of the general liquor law (Act No. 313, Pub. Acts 1887) prescribes a penalty for the violation of any of the provisions of the act for which no specific penalty is provided does not preclude the infliction of the penalty so prescribed on one guilty of keeping a saloon open on Sunday in violation of section 17 of the act, after the penal clause of the last-mentioned section has been held unconstitutional and void, it being provided by section 18 that a person convicted of violating any of the provisions of the five preceding sections shall be punished as provided in section 7.
    Error to St. Joseph; Yaple, J.
    Submitted November 17, 1896.
    Decided December 1, 1896.
    George R. Rohrer was convicted of keeping his saloon open on Sunday.
    Affirmed.

      Neioton H. Barnard, for appellant.

      Fred A. Maynard, Attorney General, and Bishop E. Andrews, Prosecuting Attorney, for the people.
   Grant, J.

The respondent was convicted of keeping his saloon open upon Sunday, contrary to the provisions of section 17, Act No. 313, of the Public Acts of 1887 (3 How. Stat. § 2283e). The contention on behalf of the respondent is that section 17 is unconstitutional and void, and that no conviction can be sustained under it. This section, after providing that saloons and other places where intoxicating liquors are sold shall be closed upon Sunday and certain other days therein mentioned, provides that—

“Any person found in the act of violating any of the provisions of this' section shall be deemed guilty of a breach of the peace, and punished accordingly, and the arrest therefor may be without process; and this punishment shall be taken to be in excess of all other manner of punishment in this act provided for a violation of the provisions of this section.”

It further authorizes officers to make arrests as for a breach of the peace.

The other sections of the statute bearing upon the question are 7 and 18. Section 7 provides that—

“A person convicted of the violation of any of the provisions of this act shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than $200,” etc.

Section 18 provides that—

‘ ‘ Any person who shall violate any of the provisions of the five preceding sections shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished as provided in section 7 of this act.”

In Robison v. Miner, 68 Mich. 549, the penal provisions of this act were under consideration, and certain provisions held void. After striking out these provisions, the court held the other provisions valid, giving its reasons therefor on page 564. The court held the penal clause of section 17 void for reasons stated on page 559. We must therefore construe the statute with this penal clause of section 17 eliminated, and look to other provisions for the penalty. Sections 7 and 18 cleai’ly provide it.

The conviction is affirmed.

The other Justices concurred.


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    BOARD OF SUPERVISORS OF WAYNE COUNTY v. WAYNE CIRCUIT JUDGE.
    .1. Boards or Supervisors—Constitutional Powers—Statutory Limitations.
    The legislature may, under the Constitution, confer upon boards of supervisors such powers, and surround them with such limitations, as are not inconsistent with the powers conferred and the limitations placed by the Constitution itself.
    2. Same—Erection or County Buildings—Expenditures—Requirement or Two-Thirds Vote.
    Under 1 How. Stat. § 483, subd. 6, and section 484, authorizing the board of supervisors to cause the erection of county buildings, and to prescribe the time and manner thereof, but prohibiting the exercise of such powers without a vote of two-thirds of all the members elect, a two-thirds vote is necessary to authorize the letting of the several contracts for work involved in the construction of a building.
    3. Same—Constitutional Law.
    The statutes cited, in thus regulating the expenditure of money raised under authority of a vote of the electors, do not constitute an undue restriction upon the power conferred upon the board by the Constitution, article 10, § 9, to borrow or raise by tax §1,000 for constructing public buildings, but no greater sum unless authorized by a majority of the electors of the county, in view of article 10, § 6, providing that the board shall have such powers as shall be prescribed by law.
    A Same—Repeal or Statute.
    These sections of the statute were not repealed, either ex pressly or by implication, by Act No. 295, Local Acts 1895, which provides, inter alia, for a special meeting of the board of supervisors of Wayne county to determine the necessity for the construction of county buildings, and which contemplates action upon a majority vote.

      Mandamus by the board of supervisors of Wayne county to compel Joseph W. Donovan, circuit judge of said county, to dissolve an injunction restraining the execution of a contract for the performance of part of the work involved in the construction of a county building.
    Submitted November 17, 1896.
    Denied December 1, 1896.

      John J. Speed and John D. Conely, for relator.

      Edwin E. Conely and Gray & Gray, for respondent.
   Moore, J.

This is a proceeding brought to test the effect of a resolution adopted by a majority vote of the-supervisors to accept the bid of Henry George & Son to construct the stonework of the new county building about to be erected in Wayne county. This building is to cost a large amount of money. It is agreed by counsel representing all parties in interest that the only question necessary to be determined in this proceeding is whether a two-thirds vote of all the supervisors elected is necessary to authorize the letting of contracts for the construction of the building. The learned counsel have prepared very exhaustive briefs, containing all the legislative and constitutional provisions which have been adopted from the earliest history, of the State in relation to the powers conferred upon the board of supervisors. These briefs have been of great value in examining the questions at issue, but we do not deem it necessary, in this discussion, to go over all the ground covered by the briefs.

Section 9 of article 10 of the Constitution provides that—

“The board of supervisors of any county may borrow or raise by tax one thousand dollars for constructing or repairing public buildings, highways, or bridges; but no greater sum shall be borrowed or raised by tax for such purpose in any one year, unless authorized by a majority of the electors of such county voting thereon.”

The question of raising money for the erection of the county building was voted upon by the people, and was authorized by them. It is urged by the counsel for the petitioner that the power conferred upon the board of supervisors by this section is exclusive, and that the legislature cannot place any limitation upon the power so conferred, and that, having been authorized by the electors to raise this money, the board can expend it in the erection of buildings, free from any limitations placed upon them by the legislature. Before accepting this view, I think we must consider this section in connection with the other constitutional provisions, and give them all such a construction, if possible, as will make them all operative. Section 6 of article 10 provides that—

“A board of supervisors, consisting of one from each organized township, shall be established in each county, with such powers as shall be prescribed by law:”

These two sections are to be construed together, and it was evidently contemplated that the legislature might confer upon the board of supervisors such powers, and surround them with such limitations, as were not inconsistent with the powers and limitations placed by the Constitution itself. Section 9 authorizes the board to raise money for certain purposes, but is entirely silent as to the method of its expenditure. Can it be doubted that section 6 was intended to authorize the legislature to place such safeguards around the expenditure of public funds by boards of supervisors as the public interest requires?

Section 475,1 How. Stat., provides thata majority of the supervisors of any county shall constitute a quorum for the transaction of the ordinary business of the county. Subdivision 6, § 483, 1 How. Stat., authorizes the board of supervisors “to cause to be erected the necessary buildings for poor-houses, jails, clerks’ offices, and other county buildings, and to prescribe the time and manner of erecting the same.” Section 484 provides, “None of the powers mentioned in the sixth subdivision of the last preceding section shall be exercised without a vote of two-thirds of all the members elected to such board.” What effect is to be given to these provisions ?

The unlimited power to raise and expend large sums of public money appeals to the cupidity of the weak and dishonest. Its tendency is to encourage the extravagant use of public funds. It was in recognition of this fact, and to prevent raising unnecessary sums of money, that section 9 of article 10 was placed in the Constitution. There is no provision of law requiring boards of supervisors to let contracts for the construction of county buildings to the lowest bidder. Was it not the legislative intent to guard the public interests by requiring that the action of the board of supervisors in spending the funds, when raised for the construction of public buildings, must command the approval of two-thirds of the members elect? It is urged that Act No. 295 of the Local Acts of 1895 makes an exception of Wayne county, and authorizes the construction of county buildings by a majority vote of the supervisors. _ A careful reading of this act discloses that its purpose was to enable a special meeting of the board of supervisors to be held to determine the necessity for the construction of the county buildings, and to provide a method of submitting to the electors of Wayne county the question of raising by loan the money required in the construction of the buildings. The legislature did not indicate, by any language used in the act, a purpose to remove the limitations upon the powers of the board of supervisors in relation to the construction of county buildings contained in the Constitution and the general laws. The act does not repeal, either expressly or by implication, subdivision 6 of section 483, or section 484, 1 How. Stat. Whatever power boards of supervisors have to construct county buildings, and to make contracts therefor, is derived from subdivision 6 of section 483, and section 484, 1 How. Stat. It becomes important, then, to determine what is the obvious and natural meaning of the words used in conferring this authority upon the board. Can it properly cause to be erected a county building at a cost of nearly a million of dollars, so as to guard the interests of the public, and prescribe the time and manner of its erection, where the construction is to be done by contract, without knowing who the contractors are, when they are to commence their contract, and when to finish it? How much they are to be paid, and when? The kinds and qualities of the materials to be employed in the construction? Must not the board be put in possession of a knowledge of all the essential things to be contained in the contracts necessary to enable them to pass upon the contracts' intelligently? And must not these contracts secure the approval of two-thirds of all the members elect, if the provisions of the statute are to be given effect ? There is but one answer to these inquiries, and that is an affirmative one.

The petition for the writ of mandamus is denied, with costs.

The other Justices concurred.


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    RAUB v. NISBETT.
    1. Appeal from Probate Court—Disallowance of Claim— Change of Theory.
    Upon an appeal from the disallowance by commissioners of a claim against an estate, it appeared that the issue before the commissioners was whether the estate was indebted to claimant upon an accounting as trustee. The claim, upon its face, was equally consistent with the theory that it was based on an absolute sale of property-. Held, that the claimant could not present his claim in the circuit upon the latter theory.
    2. Same—New Trial—Newly-Discovered Evidence—Laches.
    The administrator in such case is not guilty of laches in failing to introduce upon the trial the testimony of the attorney who drew the deed and bill of sale out of which the claim arose, to the effect that the transfer was in trust, so as to preclude him from obtaining a new trial upon the discovery of such evidence, although he knew the papers were in the attorney’s handwriting, since there was nothing to indicate that claimant would proceed on appeal upon a new and different theory.
    Error to Mecosta; Palmer, J.
    Submitted November 18, 1896.
    Decided December 1, 1896.
    Samuel E. Raub presented a claim against the estate of Stephen S. Wilcox, deceased. The claim was disallowed by the commissioners, and-claimant appealed to the circuit court. Erom a judgment for claimant, William P. Nisbett, administrator, brings error.
    Reversed.

      L. Gf. Palmer and C. H. Thrall, for appellant.

      M. Brown, for appellee.
   Grant, J.

Plaintiff filed with the probate court a claim entitled as follows: “Bill of Particulars of Unsettled Claim of Samuel F. Raub against the Estate of Stephen S. Wilcox, Deceased.” The first item-was dated September 27, 1887, and the last, October, 1889, the total claim being $15,145.49. The property described in the claim consisted of shingles, a shingle mill, and land. The affidavit attached to the claim stated that the estate was indebted to him in about the sum of $4,000, as near as he could estimate -the same. The claim was disallowed by the commissioners. Plaintiff appealed, and in the circuit court obtained a judgment. There is nothing upon the face of the claim to indicate the basis upon which it Was made. It does not appear whether it is based upon the theory of the sale of the property described in the claim, or upon a trust relation. Upon its face it is as consistent with one theory as with the other. It is evident from the affidavit attached to the claim that Mr. Wilcox received the property under some relation by which he was to account. It therefore required evidence before the commissioners to show the basis of recovery. The three commissioners were produced upon the trial in the circuit, and all testified that Mr. J. M. Raub, who was the sole witness before the commissioners to prove the basis of the claim against the estate, and who had died before the trial in the circuit, testified that the property was transferred to Mr. Wilcox in trust, to be manufactured and sold by him, the proceeds to be applied in payment of a debt due Wilcox, and other debts, amounting to about $4,000, and that Wilcox was to take the shingle mill as it then was, and the shingles on hand, dispose of them to the best advantage, operate the mill, advance money to pay expenses, and to finally make an accounting; the balance, if any, to be turned over to Mr. Raub. There was- no testimony to contradict that of the commissioners, and this evidence established the fact that the claim was presented to the commissioners on the basis of a trust. Tbe lumber conveyed had all been manufactured, and, with the shingles on hand at the time of the conveyance, had been sold by Mr. Wilcox, and the mill plant also sold; and Mr. Wilcox had rendered an account showing that he had paid all the debts, and that there was a small balance due him. In the circuit court the plaintiff sought to establish his right of recovery, not upon a trust relationship, but upon the theory of an absolute sale. The law did not permit him to change the issue upon the trial in the circuit, and the court should, as requested, have directed the jury that there could be no recovery upon the basis of a sale. The two theories are utterly inconsistent, and, if plaintiff had presented his claim upon these two theories, the court would have compelled him to elect upon which he would proceed. Meyers v. McQueen, 85 Mich. 156. The issue before the commissioners was whether the estate was indebted to the plaintiff upon an accounting as trustee. This issue continued the same on appeal to the circuit court. Hatheivay’s Appeal, 52 Mich. 112.

The defendant moved for a new trial upon the ground of newly-discovered evidence. This motion was based upon the affidavit of the attorney who drew the deed and bill of sale from Raub & Co. to Mr. Wilcox, stating that the agreement between the parties at the time of the transfer was the same as that already stated, as testified to by Mr. Raub before the commissioners. We think the court should have granted this motion. The motion was refused because the court was of the opinion that the defendant had not used due diligence in looking up this evidence, since he knew the papers were in the handwriting of this attorney. There would have been force in this ruling if the case had been presented before the commissioners upon the theory of a sale, but, there being nothing upon that- hearing to indicate that in the circuit a different position would be taken, the defendant was under no obligation to look for this evidence, and could not, therefore, be charged with laches.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    BELDING MANUFACTURING CO. v. DRURY.
    Married Women—Liability as Indorser—Estoppel.
    A married woman indorsed a promissory note given for lier son’s debt. In reply to a letter from the holder’s attorney demanding payment, she denied liability, on the ground that her signature bound her only until the note was due. While she failed to state that she was a married woman at the time the indorsement was made, there was nothing to indicate that she knew that the fact constituted a legal defense. The holder, with knowledge of all the circumstances, brought suit. Held, that defendant was'not estopped from setting up coverture as a defense.
    Error to Washtenaw; Kinne, J.
    Submitted November 18, 1890.
    Decided December 1, 1896.

      Assumpsit by the Belding Manufacturing Company against Louisa J. Drury on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Me Garry & Nichols, for appellant.

      Thompson & Harriman, for appellee.
   Moore, J.

The plaintiff sued the defendant upon a promissory note, made by her son and indorsed by her. At the time of the indorsement the defendant was a married woman. Before suit was brought the attorneys for the plaintiff wrote the defendant that they had the note for collection, and that they were instructed to “take up this matter immediately, and have it paid or secured.” She replied that her signature held her only until the note was due, and said nothing about coverture being a defense. Before suit was brought plaintiff knew that defendant was a married woman when she indorsed the note. Upon the trial the defendant offered as a defense the fact that the note was indorsed by her when she was a married woman, and that the note was given for a debt due from her son, and not from her. _ The trial judge held the defense to be good, and directed a verdict in her favor. The plaintiff appeals, upon the ground that, inasmuch as the defendant, in her letter to its attorneys, said nothing about the defense of coverture, she is es-topped now from setting up that defense; that it supposed she would not interpose that defense, and so was led to bring- suit and incur costs.

We do not think the assignments of error are well taken. .The plaintiff knew all about the giving of the note, and, before it brought suit, it knew that the defendant was a married woman. It also knew that defendant declined to pay the note. It also knew that she had a complete defense to the note, but there was nothing in her letter to indicate that she knew that coverture was a legal defense and meant to waive it. The undisputed facts in the case do not constitute an estoppel.

Judgment is affirmed.

The other Justices concurred.