text:
    VAN BUREN v. STUBBINGS.
    1. Sales — Conditional Sale — Standing Timber.
    A contract of sale of standing timber under which the title is to remain in the seller and the lumber not to be removed from the place of manufacture until the purchase price is paid is a contract of conditional sale.
    3. Same — Bona Fide Purchasers — Contracts.
    Where the contract of conditional sale under which a person holds possession of standing timber is expressly referred to in the contract by which he sells it to another, no other notice of the terms of the original contract is necessary, and the original owner’s title cannot be defeated except by a waiver upon which the subsequent purchaser has acted to his injury.
    3. Replevin — Parties.
    In replevin by the buyer of timber of one who held it under a contract of conditional sale, against the assignee of the owner of the land from which it was cut and who had sold it under said contract, other parties claiming interests in the estate of the assignor are merely nominal parties whose interests-cannot be litigated in the suit.
    4. Compromise and Settlement — Foreign Suit — Operation.
    A buyer of standing timber under a contract of conditional sale sold the same to plaintiff for manufacture at mills both ' in this State and in Wisconsin. The buyer failed to pay for the stumpage and the landowner seized the manufactured lumber in Michigan and presented a claim against the buyer’s assignee in Wisconsin which he afterwards compromised. Held, that such compromise did not settle a' replevin suit brought by plaintiff in Michigan for the lumber seized by the landowner, nor operate to transfer title to the Michigan lumber to plaintiff.
    Error to Gogebic; Shepherd, J., presiding.
    Submitted April S, 1907.
    (Docket No. 22.)
    Decided July 13, 1907.
    Replevin by Edgar R. Van Burén and Charles D. Bull, surviving partners of the Antigo Lumber Company, against Wilson H. Stubbings, the Union Trust Company, and others. There was judgment for defendants, and plaintiffs bring error.
    Affirmed.
    The litigation in this case' grows out of the financial failure of Hoxie & Mellor, copartners, 17 years ago. Their affairs became complicated, and suits arose in Michigan, Wisconsin, and Illinois. Several parties to the suits are dead. One feature of the litigation has been in this court. National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485. The statement of facts in the appellants’ brief covers 42 pages. We are met at the commencement of the appellees’ brief, with the statement—
    “That the errors and omissions in printing the bill of exceptions, coupled with inaccurate statements as to the issues involved, render a statement of facts uppn our part imperative.”
    Then follows a statement covering 40 pages. The difficulty and labor involved on the part of this court in making a concise and intelligent statement is apparent. The briefs of counsel cover, respectively, 179 and 297 pages, and are occupied mainly with a discussion of disputed issues of fact. We will, however, state as briefly as possible the facts which we conceive to be essential.
    One Stubbings, being the owner of certain lands, made a preliminary contract October 8, 1889, with one Hutchinson, to sell and convey to him the pine timber thereon, estimated at 10,000,000 feet. The preliminary contract provided that the terms of the completed agreement of sale should be as follows: Hutchinson was to pay the taxes on the timber and land until the timber was cut and removed, to pay $500 cash, $2,000 when the completed agreement was made, and good negotiable notes for $10,000; balance price of $40,000 to be paid in one year from date of completed contract, with interest at 7 per cent. It further provided that:
    “ The title to said timber shall remain in said Stubbings until the purchase money, interest and taxes herein mentioned are fully paid; and such purchase money, interest and taxes shall remain and be a lien upon said pine timber and the lumber manufactured therefrom, wherever the same may be, until such purchase money, interest and taxes are fully paid. The lumber sawed from said pine timber is not to be removed from place where manufactured until said purchase money, interest and taxes are paid. The one-half of said timber situated nearest the niill of the firm of Fair Brothers at Marenisco, the said Hutchinson shall have sawed and piled at the said mill by said firm, provided he can contract with said firm to do said sawing at rates as reasonable as he can obtain elsewhere, but said Hutchinson shall not pay said firm for said sawing and piling and shipping at less than $2.50 per thousand feet. The said Hutchinson shall have the right to enter upon, and take possession of the said de- , scribed lands for the period of three years from date hereof, for the purpose of removing said timber under this contract, and in accordance with the condition to cut and remove to such mill as may be most convenient to him for the purpose of manufacturing, and that contract shall be good to Hutchinson or his assigns.”
    Two days afterwards Hutchinson assigned this preliminary contract to Hoxie & Mellor. The completed contract was not executed until May 9, 1890. That contract was not assigned to Hoxie & Mellor. Hoxie & Mellor proceeded to cut the timber under the contract of October 8th. The completed contract was substantially the same as the preliminary. The timber was to be removed within three years from the 8th day of October, 1889. That contract was, immediately after its execution, recorded in the office of the register of deeds of- Gogebic county, and on June 12th was recorded at Antigo, in Langlade county, Wis.
    Plaintiff, a copartnership known as the “Antigo Lumber‘Company,” had two contracts with Hoxie &; Mellor for the purchase of lumber, to be manufactured by them; one dated September 24, 1889, and the other January 8, 1890. The latter contract included not all the lumber, but only certain grades of it to be manufactured from the Stubbings logs. It expressly included the lumber to be manufactured “from the logs and timber purchased by said first parties (Hoxie & Mellor) from W. W. Hutchinson by assignment by said Hutchinson of a contract between Hutchinson and W. H. Stubbings, dated October 8, 1889, and assigned to said first parties October 10, 1889.” The contract provided that the lumber was to be manufactured in a certain mill at Antigo, Wis., and at Marenisco, Mich. It provided terms of payment. Hoxie & Mellor were considered responsible, and unfortunately the Antigo Lumber Company made large advances greatly in excess of the lumber received. Hoxie & Mellor failed September 6, 1890. Prior to their failure, there had been manufactured in the mill at Antigo 2,352,148 feet, of which the plaintiffs had shipped 1,757,666 feet. There had been manufactured and piled in Marenisco 909,068 feet, none of which had been shipped, and which is involved in this suit. Mr. Stubbings claims that he was in possession of the lumber in the millyard at Marenisco, and marked it with his initials prior to the failure. This is disputed by the plaintiffs. Plaintiffs also had placed their marks upon it, but had done no further act indicating possession. Immediately upon the failure, Mr. Stubbings took possession under his contract. Plaintiffs, claiming title to the lumber, brought this action of replevin December 2, 1890, gave Mr. Stubbings a bond as the statute requires, took possession of the property,.and sold it. For reasons, perhaps, unnecessary to state, this suit was not tried until 1905. Plaintiffs claim,to be innocent purchasers without any knowledge of Mr. Stubbings’ rights; that the contract between him and Hutchinson was in effect a chattel mortgage, and not a conditional sale; that he waived his claims under the contract; that the plaintiffs acted upon such waiver to their prejudice; and'that therefore Stubbings and his assignee, the Union Trust Company, are estopped to assert title under the contract. .All the disputed issues of fact were submitted to the jury, who found a verdict for the defendants for the amount due on the Stubbings contract.
    The court instructed the jury that, if they found that Stubbings by words, acts, or conduct, waived the rights which he had to hold the lumber until the whole contract price was. paid, and 'that the plaintiffs acted upon that waiver, they should find for the plaintiffs. The court also instructed the jury that Stubbings’ assignee, the Union Trust Company, could recover only what was now due upon the contract, with interest thereon. It was conceded that, if the jury found for the defendants, the amount so due was $39,881.48, which was the amount of the verdict. The court further instructed the jury that the preliminary and completed contracts were in effect the same; that Hoxie & Mellor succeeded to all the rights of Hutchinson thereunder; that the contract was one of conditional sale; that plaintiffs were charged with the knowledge- of its contents, and took the assignment subject to the rights of Mr. Stubbings therein. There were other issues of fact submitted to the jury, which it is immaterial to mention. Any further statement of facts essential will be made in connection with the points raised.

      Herb. M. Norris (Hurley & Jones and M. B. Bosenberry, of counsel), for appellants.

      Belmont Waples (M. M. Biley and Charles B. Holden, of counsel), for appellees.
   Grant, J.

(after stating the facts). 1. Mr. Stub-

bings was the owner of the property, the subject of the contract of sale. That contract expressly provided that the title should remain in him until the purchase price was paid, and that the lumber should not be removed from the place of manufacture until that price was paid. The books do not furnish a clearer case of conditional sale. We might cite many authorities from this and other courts, but the late'case of Bunday v. Machine Co., 143 Mich. 10 (5 L. R. A. [N. S.] 475), is sufficient. Plaintiffs’ contract with Hoxie & Mellor expressly stated that Hoxie & Mellor’s sole title was derived from, and evidenced by, a contract between Stubbings and Hutchinson and assigned by Hutchinson to Hoxie & Mellor. No other notice of the terms of that contract was necessary. Town v. Gensch, 101 Wis. 445; Dwight v. Tyler, 49 Mich. 614. Plaintiffs took no steps to ascertain what that title was until Hoxie & Mellor had failed. Evidently they did not deem it essential for their interests to do so, as they regarded Hoxie & Mellor entirely responsible. Mr. Stubbings took prompt steps to assert his rights. His right of recovery can only be defeated by a waiver on which the plaintiffs acted to their injury. This waiver depended mainly upon the testimony of one of the plaintiffs and Mr. Stubbings. The jury have settled that disputed question of. fact in favor of the defendants. The Union Trust Company is the assignee of Mr. Stubbings, and the court very properly instructed the jury that the other defendants were nominal defendants, and that their verdict, if for defendants, would be in favor of Stubbings’ assignee, the Union Trust Company. There was no question of fact to be left to the jury upon this point. If any other parties have interests in the estate of Mr. Stubbings, this suit is not the proper proceeding in which, to assert them. The other errors assigned relate to the admission and rejection of testimony.

2. Plaintiffs offered in evidence the record of the proceedings had in the circuit court for Langlade county, Wis., in the matter of the assignment of Hoxie & Mellor, assignors, Lyman E. Brown, assignee. That record consisted of a petition filed by Mr. Stubbings asking that the assignee of Hoxie & Mellor be directed to pay him the value of the lumber which was manufactured at the Antigo mill, taken possession of and disposed of by the assignee, an amended petition, answers of the different parties interested, testimony taken by the referee, and the final orders or decrees of settlement. That claim was finally settled by stipulation for $12,000, paid by the Wisconsin assignee to the assignee of Mr. Stubbings, and 12,000 to Mr. Stubbings for expenses, etc. .These proceedings were at first admitted in evidence, but, on motion of defendants, were finally stricken from the record and excluded from the consideration of the jury. The claim is that that settlement settled all Mr. Stubbings’ ' claims for this lumber, as well that in Michigan as that in Wisconsin. That settlement was ratified by the court, and was declared’in the order “to be in full satisfaction, payment, and discharge of any and all liability of or claim against the estate of said assignee thereof by or in favor of the plaintiff, Wilson H. Stubbings, or any person or persons, corporation or corporations, claiming through or under him, and said assignee shall take proper receipts therefor. ” The money was paid, the proper receipts given, and the plaintiffs in this case credited with it by the direction of the court below at the request of the plaintiffs.

The assignee of Hoxie & Mellor in Wisconsin had no interest in, or control over, the lumber in Michigan. That was in the exclusive control of Mr. Stubbings until it was replevined by the plaintiffs. The decree or order in Wisconsin related solely to the lumber situated at Antigo. The claim is that there was an understanding that Mr. Stubbings should prosecute the Appleton suit until he had exhausted his remedy against the lumber in Wisconsin, and that the plaintiffs should furnish the money to conduct that litigation, and that a settlement was made without notifying them. It is, perhaps, a sufficient answer to plaintiffs’ contention to say that there is no showing that a continuance of that expensive litigation would have resulted in a larger amount than was received. However that may be, it is apparent that this Wisconsin litigation was earned on mainly in the interest of the plaintiffs. We think it also evident that their attorneys had cognizance of the proceedings in the Wisconsin court. But, whether they had any knowledge of the proposed action of the court, it is certain that upon ascertaining it they took no direct steps to have the order vacated, which they might have done, as they were the principal parties interested. Instead, they seek by a technicality to impose the entire loss upon Mr. Stubbings and his assignee. Mr. Stubbings had shown no intention to abandon his title to the property in Michigan. He and his assignee acted in good faith in instituting and in settling the suit brought in "Wisconsin. That settlement was ratified by the court. We are therefore of the opinion that the settlement of the Wisconsin suit did not settle the suit in Michigan, and did not operate to convey the title to the Michigan lumber to the plaintiffs. It would unnecessarily lengthen this opinion to enter info a,detailed statement of the facts in regard to the Wisconsin litigation, which covers more than 100 pages of the record. We think the proceedings in that suit were properly excluded from the consideration of the jury.

The other questions raised during the progress of the trial are not of sufficient importance to discuss. We find no reversible error in the rulings of the court.

This was a long and hotly-contested litigation. The case was carefully tried, and was fairly submitted to the jury without any substantial error during the entire trial, and the judgment is affirmed. '

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


source: Caselaw Access Project

author: McAlvay, C. J.

license: Public Domain

text:
    CITY OF FLINT v. STOCKDALE’S ESTATE.
    ,1. Municipal Corporations — 1Officers — Council — Delegation of Authority — Ministerial Acts — Appeal Bonds.
    The signing of a claim of appeal and an appeal bond in a suit in which a city is interested are ministerial acts which are prop- ■ erly delegated by the council of the city to the mayor.
    2. Same — Mayor—Attorney—Authority—Appeal.
    A resolution of the council of a city directing the mayor and clerk to enter into a contract with a named attorney employing him to take charge of certain litigation in conjunction with its committee is a sufficient delegation of power to the mayor and the attorney to authorize them to take an appeal in the litigation referred to.
    3. Same — Appeal—By Whom Taken.
    The mayor of a city is the proper party to sign a claim of appeal from probate court on .behalf of the city.
    4. Same — Batification.
    The act of the common council of a city in ratifying the act of the mayor in taking an appeal and signing an appeal bond on behalf of the city, if not necessary, is within its power and disposes of any objection that may be raised as to the authority of the mayor.
    Error to Genesee; Wisner, J.
    Submitted April 9, 1907.
    (Docket No. 37.)
    Decided July 13, 1907.
    The city of Flint petitioned for the probate of a lost will, claimed to be the last will and testament of Mary Stock-dale, deceased. The petition was dismissed in the probate court, and petitioner appealed to the circuit court. There was an order dismissing the appeal, and petitioner brings error.
    Reversed, the appeal reinstated, and cause remanded.

      DeVere Hall (Homer J. McBride, of counsel), for appellant.

      Brennan & Cook, John J. Carton, Mark W. Stevens, Black & Roberts, and Brown & Farley, for appellees.
   McAlvay, C. J.

The, city of Flint, appellant in this case, appealed to the circuit court of Genesee county from an order of the probate court for said county dismissing its petition for the probate of a lost will of Mary Stockdale, deceased. On September 4, 1906, two motions having been theretofore made on behalf of the special administrators and certain parties interested in said estate •to dismiss said appeal, the circuit court made an order granting said motions. On September 18, 1906, appellant made a motion to set aside said orders and to reinstate the appeal. ‘This motion was denied. By writ of error the case is brought to this court upon the record.

The grounds upon which the motions to dismiss were based, briefly stated, were that no lawful appeal had been taken from the probate’ court, because no authority had been given by the city council to take such appeal and execute the appeal bond. This was the view entertained by the trial judge in granting the motions and dismissing the appeal. The petition to probate the will was made and filed by David D. Aitkin, then mayor of the city of Flint, claiming for said city as residuary legatee and trustee for the establishment of a hospital a large interest in said estate. Pending said petition, and before the hearing thereon, the common council of appellant, on April 16, 1906, at a regular meeting, by a unanimous vote, directed its mayor and clerk to enter into an agreement with DeVere Hall as its attorney to take charge of litigation then pending relative to the claim of the city as residuary legatee in trust of the estate of Mary Stockdale. This agreement was on that date executed by these officers on behalf of the city. It provides:

“Whereas the said party of the first part (the city of Flint) has, or believes that it has, rights and interests under a certain last will and testament made by Mary Stockdale, deceased, late of the township of Flint, Gene-see county, in said State, under which the said party of the first part is the residuary legatee in trust of the estate of said Mary Stockdale, and litigation concerning which is now pending, and it is the desire of the party of the first part to employ professionally the party of the second part (said Hall) to -take charge of such litigation, it is hereby agreed: First. That the party of the second part shall take full and complete charge of such litigation and in conjunction with the common council of the party of the first part, or such committee or committees as may from time to time be designated by resolution, co-operate in the carrying on of such litigation. Second. That the party of the first part, if necessary, shall from time to time, as necessary, pay to the party of the second part in disbursements, the actual expenses of securing witnesses, taking testimony, court officers’ charges, not exceeding in the aggregate eight hundred dollars in connection with such litigation.”

The record of the same meeting of the council recites:

“Mayor McKinley appointed Aid. Page, Salisbury and Callahan to act with Attorney Hall in connection with the matter of the Stockdale estate.”

After the probate court dismissed the petition on May 9, 1906, and within the statutory time, to wit, on June 28, 1906, the mayor filed the claim of appeal on the part of appellant, together with an appeal bond executed by him on behalf of the city, and in due course the appeal was filed and entered in the circuit court. No other action relative to this matter was taken by the common council after April 16, 1906, until August 20th following, when at a regular meeting the action of the mayor in taking the appeal and executing the bond on the part of the city was expressly ratified and confirmed. The fact that the council had paid the costs of appeal was called to the attention of the trial judge before the decision of the motions to dismiss as appears from the record and the opinion of the court. The resolution of ratification was presented to him with the motion to set aside the orders dismissing the appeal.

There is no dispute but that proper action was taken by the municipality at the time it was determined to litigate this matter, nor that appellant had the right so to do, as well as to employ an attorney to take charge of the litigation. The record of the council meeting referred to shows that at the time Mr. Hall was employed as attorney a committee was appointed by the mayor to act with him “in connection with the matter of the Stockdale estate.” Such action was contemplated by the agreement. These parties were “ to co-operate in the carrying on of such litigation.” Taking an appeal is one of the usual and ordinary things in litigation, and the authority given to the attorney and committee to co-operate in this case was sufficient to warrant taking this appeal, and the act of the mayor, who was the proper party to sign the claim of appeal, was a ministerial act, as was also his act in signing the bond. Such acts could be and were delegated by the council. It could not delegate all the power conferred upon it by the legislature, but, like every other corporation, it could do its ministerial work by agents. Hitchcock v. Galveston, 96 U. S. 341. The acts of the mayor were certainly within the purview of the terms of the agreement of the city made with the attorney, and its action in appointing the committee to co-operate with him, and were germane to the subject-matter of such action. This action of the mayor was afterwards ratified and confirmed by the council. This, while not necessary, was within the power of the council, and would forever dispose of any objection that might be raised as to the authority of the mayor. Davis v. Mayor, etc., of Jackson, 61 Mich. 530, 540; Naegely v. City of Saginaw, 101 Mich. 532; Raymond v. McKenna, 147 Mich. 35. The court was in error in dismissing the appeal.

The judgment of dismissal is hereby reversed and set aside, and the said appeal reinstated, and the cause is remanded for further proceedings, with costs to appellant to be taxed and paid by the special administrators out of the estate of Mary Stockdale.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


text:
    RAPP v. RAPP.
    1. Divorce — Grounds—Drunkenness.
    That a wife was occasionally under the influence of intoxicants ' does not constitute habitual drunkenness giving her husband ground fór a divorce.

    2. Same — Extreme Cruelty — Evidence.
    On a bill for divorce, evidence examined, and held, that the charge against the wife of extreme cruelty was not sustained.
    Appeal from Wayne; Iiosmer, J.
    Submitted April 11, 1907.
    (Docket No. 64.)
    Decided July 13, 1907.
    Bill by Frederick Bapp against Christine Bapp for a divorce. From a decree for complainant, defendant appeals.
    Beversed, and bill dismissed.

      Washington J. Robinson, for complainant.

      William Look, for defendant.

       As to the degree of drunkenness which will authorize a divorce, see note to Dennis v. Dennis (Conn.), 34 L. R. A. 449.

   McAlvay, C. J.

From a decree granting a divorce on the ground of habitual drunkenness and extreme cruelty, defendant has appealed, contending that the decree is not supported by the evidence.

There is no question of law in the case. These parties had been married about six years. For a time complainánt kept a saloon, and required his wife to tend bar. The witnesses he produces to prove his charge of habitual drunkenness appear to either have been engaged in.like business or to be regular customers at such places.- Outside of complainant’s testimony the evidence at most indicates that defendant was occasionally under the influence of intoxicants. This is not habitual drunkenness. Meathe v. Meathe, 83 Mich. 150. Complainant brought beer and sometimes liquor to the house, and both parties used it as they desired. This court in Magahay v. Magahay, 35 Mich. 210, gave a definition of what constitutes an habitual drunkard. The weight of evidence in this case does. not bring defendant within that definition. It is not disputed but that this woman a few years ago suffered from paralysis, and from the testimony it appears that such physical disability might be mistaken for intoxication.

The extreme cruelty charged is that defendant used vile and abusive language, that she absolutely neglected her household duties, and spent the money for liquor which was supplied by complainant for household expenses, and contracted bills at stores. It is uncontradicted, except by complainant, that she was a competent and neat housekeeper. She was industrious and at times did washing for many people. No vile and abusive language used by her is proven except by complainant, who admits th,at he called his wife vile names. She satisfactorily explains how the money which was given to her was used and why goods were charged. The charge of extreme cruelty is not sustained.

From an examination of the entire record, our conclusion is that the weight of all the evidence in the case does not support the decree. The decree is reversed, and complainant’s bill dismissed, with costs of both courts.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


text:
    HANNAH & HOGG v. RICHTER BREWING CO.
    Fraudulent Conveyances — Sales in Bulk — What Constitute —Chattel Mortgage.
    The giving of a chattel mortgage upon a stock of goods is not a sale, transfer, or assignment in hulk within the meaning of the sales in bulk act, so called (Act No. 223, Pub. Acts 1905), a chattel mortgage being neither a sale nor an assignment in this State.

    Appeal from Delta; Stone J.
    Submitted April 12, 1907.
    (Docket No. 80.)
    Decided July 13, 1907.
    Bill by Hannah & Hogg against the Bichter Brewing Company and others to set aside certain conveyances on the ground of fraud. From an order sustaining a demurrer of defendant Bichter Brewing Company, complainant appeals.
    Affirmed.

      A. H. By all, for complainant.

      Qummishey & Spencer, for defendant brewing company.

       As to the validity and construction of statutory requirements on sale of stock of goods in bulk, see note to Everett Produce Co. v. Smith (Wash.), 2 L. R. A. (N. S.) 331.

   McAlvay, C. J.

But one question is involved in this appeal, and that is whether the giving of a chattel mortgage is a sale, transfer, or assignment, in bulk, within the meaning of Act No. 223, Pub. Acts 1905, entitled “An act to regulate the sales, transfers and assignments of stocks of goods, merchandise and fixtures, in bulk.” Defendant Oliver Hotel Company, in connection with its business, conducted a bar where liquors were sold. On February 21, 1906, it gave defendant Bichter Brewing Company a chattel mortgage upon the entire bar fixtures pertaining to its liquor business, and afterwards made a sale in bulk of the same property to the other defendants.

The hotel company was, before giving this chattel mortgage, indebted to complainant, which, on May 29, 1906, put its claim into judgment for $278 damages and $2.95 costs of suit. On June 5, 1906, an execution issued and a levy was made upon this property, and demand was made of defendants to turn the same over to complainant and release all claim of ownership or title thereto. This demand was refused, and the bill of complaint in this case was filed, upon the theory that the disposition of this property was within the prohibition of the statute invoked, and complainant asked the court to declare the instruments void for jthat reason, and prayed for other relief. Defendant Richter Brewing Company demurred, raising the question involved. The demurrer was sustained, and a decree entered dismissing the bill of complaint as to demurring defendant.

So much of this statute as is now necessary to quote provides: The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade, and in the regular and usual prosecution of. the business of the seller, transferror or assignor, shall be void as against the creditors of the seller, transferror, assignor, unless,” etc., giving the notice and proceedings necessary in order to make the transaction valid. While many of the courts hold to the common-law doctrine that a chattel mortgage is an instrument of sale conveying the title of the property, this court has held that the true relation of parties to a chattel mortgage is that of debtor on one side and creditor secured by lien on the other. Lucking v. Wesson, 25 Mich. 443. And also that the title of a mortgagee of chattels does not become absolute until foreclosure and sale. Kohl v. Lynn, 34 Mich. 360, and cases cited. It is the settled law of this State that a chattel mortgage is not an assignment. Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; Wineman v. Manufacturing Co., 118 Mich. 636. To find the legislative intent in construing a statute it is proper for the court to consider the entire statute, the ordinary meaning of the words used, the object of the legislation, and the status of the law of the State in relation to the subject-matter under discussion. The terms, “sale, transfer or assignment,” used in the entitling and in the body of the act, taken in their usual and ordinary signification, mean the disposition of the entire title of the seller. This meaning is indicated by the provision'in the statute relative to notice required to be given to creditors as follows, “and unless the purchaser, transferee and assignee shall, at least five days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every creditor whose name and address are stated in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.” Taking this language and the other language of the act, it is apparent that its object was to regulate those sales made of an entire stock upon an immediate payment and change of possession, and which before the act might have been valid, although in fact a fraud upon creditors. To hold a chattel mortgage within the meaning of the statute it is necessary to hold that it is a sale within the common acceptation of that term, transferring the entire title, and entitling the vendee to immediate possession. This, by the specific terms of this mortgage, which are the same as those of chattel mortgages generally in this State, and under our decisions above cited, cannot be done. The argument is advanced that, having adopted this statute, the court will follow the construction given by the courts of those States from which it is taken. The custom referred to has no binding force upon the courts of the adopting State. In the case at bar the custom cannot be followed, for the reason that no construction has yet been given upon the point involved, and, if construction had been given favorable to complainant, it could not be followed because those States accept the common-law doctrine that a chattel mortgage is an instrument of sale conveying the title of the property, which, as above shown, does not prevail in this State.

It is also urged that the court must hold chattel mortgages within the meaning of the act in order to remedy the mischief sought to be cured. While it is true that the act is intended to prevent certain debtors from defrauding their creditors, it is not for the courts to give the statute a construction it will not bear,, because the legislature has not included within its prohibition certain transactions whereby frauds may be and undoubtedly are perpetrated. That is a matter for the consideration of the legislative branch of the government.

We agree with the learned ■ circuit judge that chattel mortgages are not included in the act.

The decree is affirmed, with costs.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


text:
    HERTEL v. SAFETY FOLDING BED CO.

    1. Master and Servant — Dangerous Appliances — Duty to Guard — Violation of Statute.
    There is no violation of the statutory duty on the part of an employer in failing to guard a revolving line shaft situated two feet from the floor of a factory at a point where there are no couplings, set screws, or projections of any kind.
    2. Same — Personal Injuries —Risks Assumed — Scope of Employment.
    In an action by a servant for personal injuries caused by being caught on a revolving shaft, evidence examined, and held, that sawing crating material was within the scope of employment of an employé of the shipping department of a factory, and that the risk of being caught on the shaft from which the saw was driven was apparent and was assumed by him.
    Error to Wayne; Murphy, J.
    Submitted April .12, 1907.
    (Docket No. 73.)
    Decided July 13, 1907.
    Case by William Hertel, by next friend, against the Safety Folding Bed Company, Limited, for personal injuries. There was judgment for plaintiff, and defendant brings error.
    'Reversed.

      Keena, Lightner & Oxtoby, for appellant.

      E. A. Fink, for appellee.

       Rehearing denied October 4,1907.

   McAlvay, C. J.

While in defendant’s employ, on November 16, 1904, plaintiff, then about 18 years of age, was injured. James Saxton was shipping clerk, and had charge of the crating and shipping department of defendant’s factory, which included cutting the boards which were used in making crates. Plaintiff was employed by Saxton and worked in his department a year and three months before the accident. The saw on which the boards for crating were cut was located in a different part of the building from the shipping room where the goods were crated. This saw and saw table were located upon a floor or platform which had been put in about halfway between the floor and ceiling of this part of the factory. The saw was driven by a line shaft, which was continually revolving when the engine was running. It was about two feet from the floor upon which the saw table stood, and extended the width of the building north and south. The accident occurred about four feet from the saw table. This saw was operated by two persons. One put the boards through the saw, and the other, a helper, took the pieces into which a board was sawed away from the table and piled them up. The saw was in use about half the time, sometimes continuously for a full day, and sometimes for half a day, as the strips for crating were needed. The person doing the sawing stood on the west side of the shafting facing the windows, which were in the east wall of the building. The helper was on the east side of the shafting at the east end of the saw table. This was part of the work of the shipping and packing department, and was all done by the employés of that department, under the direction of the shipping clerk, who hired, controlled, and discharged the men under him. Plaintiff during the time he worked for defendant company had been frequently sent by Mr. Saxton to work as helper at the saw table. The saw at this time was operated by Julius Diweneski, an employé in the same department, 24 years of age. Plaintiff had so worked for some length of time previous to the accident; he says for two or three months. After Diweneski quit work, Mr. Saxton put plaintiff in charge of this saw, at which work he continued until his injury. The record is not perfectly clear as to the length of time he operated the saw. It was at least for two weeks. Plaintiff says:

‘ ‘ I had been there working at the saw myself five or six times. * * * It was not On consecutive days. Sometimes I would be there once a week, and sometimes twice a week, and maybe once in two weeks.”

On the day of the accident," while ripping boards with a helper, who had never worked there before that day, plaintiff, desiring to give him some instructions how to pile the pieces of lumber, stepped away from the saw table, about four feet, towards this line shaft and against it. He says that he went away from the saws on account of the noise, so that the helper could hear him. His clothes were in some way caught by the revolving shaft, and he was injured. At this place on the shaft there was no coupling, set screw, or other projection of any kind. The case was submitted to the jury, and a verdict rendered for plaintiff. Defendant asks this court to reverse the judgment entered upon said verdict, upon the ground that the trial judge erred in submitting the case to the jury. The contention is that plaintiff assumed the risk connected with his employment, that there was no evidence of defendant’s negligence, and that plaintiff was guilty of contributory negligence.

The learned trial judge properly held that defendant could not be held guilty of negligence on account of any violation of a statutory duty in the construction and operation of this machinery. He submitted the question to the jury to determine whether the work in which plaintiff was engaged at the time of his injury was within the scope of his regular employment, and subject to increased risk and danger concerning which he was not informed and instructed. We think that the crucial question in this case is whether this work was within the scope of plaintiff’s regular employment. There is no dispute in the record but that the work done upon this saw was part of the work of the department in which plaintiff was employed ; that plaintiff, as a helper, had frequently and for a considerable length of time assisted in this part of the work under a competent operator; that he was put in charge of the saw and did this work for at least two weeks before his injury. He was a young man of ordinary intelligence almost 18 years old. From his acquaintance with this revolving shaft and his experience in going over and under it frequently when he worked as helper, he must be held to have known the dangers incident to coming in contact with it. He says he knew that it was always in motion, and that he avoided touching it. The question of negligence on account of not giving warning as to dangers from the saw itself is not in the case. From the experience of the plaintiff, above related, while working as a helper and operator, he was informed of all the apparent risks of his surroundings. Mushinski v. Vincent, 135 Mich. 26; Berlin v. Mershon & Co., 132 Mich. 183.

The work in which he was engaged, and which he always performed satisfactorily, was within the scope of his employment. The danger from this shaft was apparent, and the risks of the employment were assunied by him. Kean v. Rolling Mills, 66 Mich., at page 288; Martin v. Lumber Co., 141 Mich. 363.

The request of the defendant for an instructed verdict in its favor should have been given. Other contentions of defendant need not be considered.

The judgment is reversed, and a new trial ordered.

Carpenter, Grant, Blair, and Ostrander, JJ., concurred.


author: Hooker, J.

text:
    HORTON v. HELMHOLTZ.
    1. Taxation — Sale for Taxes — Purchase by State — Effect.
    A valid sale to the State for taxes divests the original owner of all title to the land sold and vests a complete and perfect title in the State.
    2. Same — Original Title — Conveyance—Effect.
    A quitclaim by the original owner of lands previously bid in to the State at a valid tax sale conveys nothing.
    3. .Quieting Title — Right to Relief.
    One must have either a legal or an equitable title if he is to be allowed relief upon a bill to quiet title, though an equitable title is sufficient. (Section 448, 1 Comp. Laws.)
    4. Same — Tax Title — Sufficiency.
    Where a deed of State tax land executed by the auditor general was void because of insufficient payment therefor, and the original owner tendered a sufficient sum to the auditor general and demanded a deed, which was refused him, he acquired a sufficient equitable title to éntitle him to relief by a bill to quiet title, though he did not move against the' auditor general by mandamus to compel him to issue the deed.

      5. Same — Parties—Auditor General.
    The auditor general is a proper party to such a bill.
    6. Taxation — Tax Title — Void Deed — Effect on Title.
    Where a deed of State tax land executed by the auditor general was void because of insufficient payment therefor, but the holder also holds under-other tax sales and deeds made subsequent thereto, the later deeds are not void because of the failure to pay the deficiency on the prior sale, but the title conveyed by the later deeds is valid subject to a reassessment for the deficiency.
    Appeal from Cheboygan; Mayne, J., presiding.
    Submitted April 18, 1907.
    (Docket No. 58.)
    Decided July 13, 1907.
    Bill by Charles M. Horton against August C. Helmholtz and James B. Bradley, auditor general, to quiet title to certain land. Defendant Helmholtz, filed an answer in the nature of a cross-bill to establish a title by virtue of certain tax deeds. From a decree for defendant, complainant appeals.
    Affirmed.

      A. A. Ellis, for complainant.

      Frost & Sprague, for defendant Helmholtz.

      John E. Bird, Attorney General (Charles W. McGill and George L. Hauser, of counsel), for defendant Auditor General.
   Hooker, J.

The defendant Helmholtz claims title to the land in controversy under various tax titles as follows :

(1) A purchase at delinquent sale in May, 1893, for the tax of 1890, at which time the purchaser bought the State’s title, for the years 1883 to 1889, the same having been previously bid in to the State for those years. It is admitted that the State’s title was valid.

(2) A purchase at delinquent sale in December, 1893, for the tax of 1891.

(3) A purchase at delinquent sale in December, 1895, for the tax of 1893.

(4) A purchase at delinquent sale in December, 1896, for the tax of 1894.

(5) A purchase by the State at delinquent sale in May, 1898, for the tax of 1895; this title having been after-wards purchased at the auditor general’s office on December 12, 1898, at which time the taxes assessed for 1896 and 1897 were paid by the purchaser.

(6) A purchase at delinquent sale in May, 1902, for the tax of 1899.

The complainant admits that the sales to the State for the taxes of 1883 and succeeding years were valid. It follows, therefore, that the original owner was divested of all title to the lands, and the State became vested with a • complete and perfect title as early as 1885. The original title, quitclaimed to complainant, therefore conveyed nothing. One of two things is necessarily deducible from these facts, viz., either the defendant’s grantor became vested with a complete and perfect title, or the deed from the State was void, in which case such a title remained in the State, and was subject to purchase from the auditor general, as in other cases. The complainant asserts the latter claim, and in 1904 he tendered to the auditor general a sum sufficient to cover the State’s claim, interest, and charges, and requested a conveyance, which was refused him. Thereupon he filed this bill without attempting to enforce by mandamus compliance with his demand whereby he might perhaps have obtained the title from the State, if, as he claims, the State then had the title, and he was entitled to a deed. The bill in this cause is filed against Helmholtz to quiet complainant’s title by setting aside and canceling as void the tax deeds as clouds upon complainant’s title. The auditor general is made a party defendant, though the bill contains no specific prayer against him.

. We consider it elementary that one must have a legal or equitable title, if he is to be allowed relief upon a bill to quiet title. Under our statute one claiming only an equitable title may file such a bill. 1 Comp. Laws, § 448. We have held that the act of the auditor general in selling and issuing deeds for State tax lands on private sale is ministerial. Chief Justice Grant said in Eldridge v. Richmond, 120 Mich. 588:

“The application was made by James H. McFarlan, who subsequently assigned to plaintiff. We think it conclusively appears that application and payment were made on August 3d. This was all that was necessary to complete the purchase. It is urged that the minds of the applicant and the auditor general did not meet until the latter had investigated and determined whether the land was subject to sale. The mind of the auditor general is of no consequence. He is not clothed with any discretion. His act is purely ministerial. The deposit with him of the amount due and the application complied with the law, and rendered the purchase complete. The subsequent acts of issuing a certificate, or executing a deed, or both, are mere ministerial acts necessary to evidence title. The title which the State has becomes absolute by application and payment.”

See, also, Youngs v. Povey, 127 Mich. 299; Hall v. Mann, 122 Mich. 15; Gockburn v. Auditor General, 120 Mich. 644.

If, as contended, the deed first issued was void, and the complainant took steps which entitled him to a deed, we think it must follow under the cases cited that he acquired some sort of an equitable title, and that he might have it quieted in such a proceeding as this. We also think that it was competent to make the auditor general a party, and ask that he, be required to execute and deliver the deed to which complainant should show that he was entitled. This, however, leaves out of consideration the changed conditions arising out of later sales.

The State’s title for the faxes of 1883 to 1889 was sold in 1893 by the county treasurer. It is claimed that the sale and deed were void, first, because interest on the tax was computed at 6 per cent, instead of 12; second, because the purchaser did not pay the taxes for 1891 and 1892. Counsel insist that, if right in the proposition that the deed was void for the reasons given, there was a lien for the unpaid interest of #22.31, and that, while the land might be assessed, returned, and sold for a later tax, such sale would be void if the purchase was not accompanied by the discharge of the existing lien, which lien was never suspended; it being plainly ascertainable from the record, unlike the case of O’Connor v. Auditor General, 127 Mich. 553, where all sums claimed or due the State had been paid, leaving nothing due to the State for which it could have a lien, until the amount received from Keith on his purchase of the State’s title should be refunded. We are of the opinion that this distinction is not warranted by the facts. It is undeniable that according to complainant’s contention there was a deficiency of $22.31 on the purchase of the State’s title in this case, and that the sale of the auditor general and his deed were void. If that were all that there was of the defense, he would be entitled to .have his title quieted.

But defendant holds under later titles procured after said purchase, and while the State’s title was apparently held by defendant or his grantors, unquestioned, under the deed. In the O’Connor Case the facts were similar. It is true that the deed in that case was canceled on another ground, viz., an error in publication; but it does not follow that it was not on the ground, also, that it was void for want of full payment as in this case, or that it was not claimed that the State had a lien upon the premises for the identical reason claimed in this case, which might have authorized a seasonable purchase by another. In fact, the opinion expressly states that ‘£ the deed was void for the further reason that when Keith purchased the tax of 1896 was a lien, and was not paid by him.” The relator moved for a cancellation and refunding to him of the purchase money, basing1 his claim upon the contention that when Keith purchased for the tax of 1896 his purchase and deed were void, because of his failure to pay the deficiency on the prior sale. The contention was not sustained, and it was indicated that the title thus conveyed was a valid title, but was taken subject to a reassessment for the deficiency, upon the ground that, section 73, Act No. 262, Pub. Acts 1899, should be construed as providing'for a suspension of the lien of the State for the deficiency. See, also, Auditor General v. Clifford, 143 Mich. 628.

We need not consider other questions in the case, and express no opinion upon them. The decree is affirmed, with costs.

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


author: Ostrander, J.

text:
    NEIFERT v. HASLEY.
    Physicians and Surgeons — Malpractice—Evidence.
    In an action against a surgeon for malpractice, evidence examined, and held, that there was none warranting the inference that plaintiff’s disabled arm or crippled foot resulted from improper surgical treatment.

    Error to Wayne; Donovan, J.
    Submitted June 4,1907.
    (Docket No. 7.)
    Decided July 13, 1907.
    Case by Albert Neifert against Philip P. Hasley, a surgeon, for malpractice. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      James H. Pound (Charles H. Marr, of counsel), for appellant.

      Charles M. Woodruff, for appellee. *

       As to degree of care and skill which a physician or surgeon must exercise, see note to Whitesell v. Hill (Iowa), 37 L. R. A. 830.

   Ostrander, J.

Plaintiff, a man 30 years old, was badly injured in May, 1903, by machinery. According to his testimony, his right arm was broken in three places between the shoulder and elbow, some ribs were broken, his leg was broken just below the knee, he was badly hurt about the head, and a portion of his skull was gone. Defendant, a physician and surgeon, attended him until some time in the summer, and, as plaintiff claims, was negligent and unskillful in his treatment. The declaration alleges, as improper treatment, permitting and causing the broken brones not to be placed in apposition the one to the other, the muscles, ligaments, and tendons not to be properly placed, so that they could properly adhere to their proper places by natural processes, the leg and foot caused to be and become greatly swollen, inflamed, festered, and diseased, pus permitted to accumulate and remain, so that it became and was necessary to amputate a portion of the foot. The result is alleged to be a weak, stiff, deformed arm, a crippled leg and foot. The case coming on to be tried, the court, when plaintiff’s case was rested, directed a verdict for defendant. ,- This ruling and direction is assigned as error. We are therefore called upon to review the testimony produced for plaintiff.

Counsel for appellant has directed attention to that portion of it which, he thinks, made a case for the jury. He relies upon evidence of the fact that the arm was not- set until 19 days after the injury, the opinion of plaintiff that there was no reason for not setting it earlier, the statement of Dr. Keig that an arm should be set as soon as possible, if everything is in condition to do it, mentioning as a preventable condition an arm too badly bruised, the opinion of plaintiff that the arm “is not properly set.” He relies, also, upon the testimony of plaintiff, to the effect that Dr. Parker said to defendant, after learning that the arm was not set: “What do you expect to get out of that? You will have a flail arm out of it.” He relies, also, upon the fact that Dr. Parker advised application of heat to the leg; the argument made being that defend- ( ant did not use a well-known remedy, and neglected to apply hot water to stimulate the circulation until told to do so by Dr. Parker. There is also the testimony concerning the amputation of the toes and of the condition of plaintiff at the time of the trial. The witnesses for plaintiff were himself, his wife, and Dr. J. H. Reig. It appears that on the day succeeding the injury, when plaintiff’s leg was dressed and set, two physicians besides defendant were present. Later Dr. Parker was in consultation with defendant. When the toes were amputated, .Dr. Stevens performed the operation, and Drs. Reig, Pike, and another physician were present. From Dr. Reig we get no testimony concerning the nature or extent of plaintiff’s injuries, the treatment he had received, whether the treatment had been proper, the cause or causes of plaintiff’s condition at the time he began treating him. His testimony warrants the conclusion that he found the tissue on and about the toes broken down and amputation of the toes necessary. In his opinion plaintiff had dry gangrene, which, he said, may be due to a bruise or to interference with circulation of the blood. Plaintiff’s injuries were severe and evidently complicated. Defendant advised amputation of the leg. Dr. Parker, called in consultation, was of opinion that plaintiff had a fighting chance to save the leg. The chance was taken, with the result already stated. The argument that the court or a jury may assume that hot water applications to the leg were so strongly indicated that it was negligence not to apply them is met by the argument of counsel for defendant that hot applications were clearly contra indicated as likely to induce suppuration, and" that the purpose of applying them when they were applied was to hasten the sloughing off of dead tissue and to establish a line of demarcation between good and bad tissue. There is no opinion evidence upon the subject. When defendant set the arm (it had been before 'that stretched out between sand bags), a hole was left in the plaster cast so that a sore might be reached and treated, indicating a bruised arm. It is not claimed that plaintiff has a flail arm.

If in any case nonexpert testimony of the injury, of the method of treatment adopted, and of the resulting conditions may be such evidence of negligent treatment by an attending surgeon as a jury may act upon - (see Wood v. Barker, 49 Mich. 295; Pelky v. Palmer, 109 Mich. 561), this case is not such an one. And we have found, and our attention has been directed to, no testimony warranting the inference that the disabled arm or the crippled foot resulted from improper surgical treatment.

The judgment is affirmed.

Carpenter, G-raijt, Blair, and Montgomery, JJ., concurred.


author: Blair, J.

text:
    RHOADES v. MALTA VITA PURE FOOD CO.
    1. Contracts —Consideration —Illegality —Public Policy— Prevention of Competition — Fraud.
    A contract of employment, entered into for the primary purpose of inducing the employé to break a similar contract with another employer and deprive it, as a competitor, of the benefit of the skill and experience of the employé, is illegal and fraudulent and does not furnish a good consideration for a promise.
    2. Partnership — Limited Partnerships —Contracts —Execution — Sufficiency—Two Managers.
    A contract by a limited partnership association to employ plaintiff for two years at a salary of $2,000 per year is void if not reduced to writing and signed by at least two managers, as provided by section 6083, 2-Comp. Laws.
    3. Pleading — Issues—Bill of Particulars — Services.
    Where, in an action against a corporation, the bill of particulars claims compensation for services rendered beginning with a certain time, evidence is not admissible which shows a subsequent contract to pay plaintiff for services previously rendered to defendant’s predecessor in the business.
    4. Corporations — Officers—Authority—Delegation.
    Authority to the secretary and treasurer of a corporation to contract to pay for services rendered to another, for which defendant corporation was in no way liable, does not authorize the officer to delegate such authority to another.
    5. Same — Authority Delegated.
    A delegation of authority to employ plaintiff for a corporation, and fix his salary, does not authorize making a contract by which the corporation becomes liable to pay him for services previously rendered for the corporation’s predecessor in business.
    Error to Calhoun; Hopkins, J.
    Submitted June 4, 1907.
    (Docket No. 12.)
    Decided July 13, 1907.
    Assumpsit by Charles E. Rhoades against the Malta "Vita Pure Food Company for work and labor. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Williams & Beck, for appellant.

      Moore & Moore (B. J. Kelley, of counsel), for appellee.
   Blair, J.

Plaintiff, an expert in the manufacture of cereal flake foods and a millwright, brought suit against defendant for a balance of- salary claimed to be due him, filing, with his declaration on the common counts, a bill of particulars of his claim. The charges against defendant in the bill of particulars are:

To two years’ salary from Sept. 16, 1901, to Sept. 16, 1903, at $3,000.00 per year__________________$4,000 00
To materials furnished and provided by the plaintiff for the defendant in doing experimental work by the plaintiff for the defendant at its request, as follows: [Stating various items, amounting in the aggregate to] 39 59

Defendant is credited with payments of cash, from time to time, amounting to $3,850, leaving a balance claimed to be due the plaintiff of $1,189.59. The defendant is a New Jersey corporation, formally organized under the laws of that State, February 4, 1903. On January 34, 1903, the defendant acquired the property and plant of the Battle Creek Pure Food Company, Limited, a partnership association. Plaintiff entered the employ of the Pure Food Company in the fall of 1900, but left it in May, 1901, to take a position with a company at Buffalo, N. Y., manufacturing a food known as “Force,” at a salary of $3,000 per year for one year from May 33, 1901. In August, 1901, plaintiff, in violation of his contract with the Force Food Company, agreed with Mr. A. C. Wisner, a manager of the Battle Creek Pure Food Company and acting for said company, to abandon his contract with the Force Food Company, return to Battle Creek, and enter the employ of the Pure Food Company at a salary of $3,000 per year on a two-years contract. According to plaintiff’s proofs, it was understood by him and Mr. Wisner that the primary reason for the agreement between plaintiff and the Pure Food Company was to get the plaintiff out of the employ of the Force Food Company and thereby deprive that company, as a competitor of the Pure Food Company, of the benefit of his skill and experience in installing the machinery in their plant and manufacturing their product. The agreement was to be kept secret, and plairitiff was not to be openly in the employ of the Pure Food Company, but, “as a cover,” was to be ostensibly in the employ of others. The object was to “put Force out of business; and he says: ‘That is our intention; we have the money back of it, and we will do it.’”

“Q. And your coming back to Battle Creek was dishonest ?

“A. Well, it was not dishonest on my part.

“Q. But it was dishonest on his part, and you were willing to aid him in a dishonest purpose on his part ?

“A. I did aid him.

“Q. And you' knew that he had a dishonest purpose in getting you back there ?

“A. Practically so; yes, sir.

“Q. Now, will you kindly tell us what his dishonest purpose was ?

“A. What his dishonest purpose was ?

“,Q. Yes, sir.

“A. Well, his dishonest purpose was getting me from the Force Food Company for the protection of the Malta Vita.

“Q. Then it was dishonest on his part to get you away from the Force Food Company ?

“A. It seemed so; yes.

“Q. And you were quite willing to be used as a dishonest tool in Mr. Wisner’s hands ?

“A. Not particularly so; I wanted to go away.

“Q. Mr. Wisner could not have done anything dishonestly if you had said to him, ‘ Mr. Wisner, I am not a dishonest man, and I will not aid you in your dishonest scheme.’ Did you tell him that ?

“A. No, sir.

“Q. And you joined him in his dishonest scheme ?

“A. I suppose I did.

“Q. And enabled him to further a fraud on somebody, did you ?

“A. Yes, sir.”

The agreement between plaintiff and Mr. Wisner was not binding upon the Battle Creek Pure Food Company for the reasons:

First. The transaction was illegal and fraudulent, and did not furnish a good consideration for a promise. Comstock v. Draper, 1 Mich. 481; Smith v. Barstow, 2 Doug. (Mich.) 155; Morgan v. Andrews, 107 Mich. 33, 39; Angle v. Railway Co., 151 U. S. 1.

Second. Because the agreement was not reduced to writing and signed by at least two managers, as required by section 6083, 2 Comp. Laws. Citizens’ Savings Bank v. Vaughan, 115 Mich. 156. It follows, therefore, that, even if competent proof had been given or offered tending to show liability on the part of the defendant corporation for the debts of the Battle Creek Pure Food Company, which we do not determine, defendant could not be held upon this contract. Plaintiff’s counsel contend, however, that if Judge Hopkins ruled correctly in directing a verdict for defendant, upon the ground that defendant was not liable for the services performed under the contract with Wisner, he erred in refusing to permit plaintiff to prove a new contract between plaintiff and defendant made in November, 1903, wherein it was agreed that plaintiff should receive a salary of $2,000 per year and the bal-_ anee due him from the Battle Creek Pure Food Company as his compensation for the services to be rendered defendant.

Plaintiff’s counsel offered to prove, and put appropriate questions to witnesses to elicit such proof, that at the time of plaintiff’s employment by Mr. Roleau, defendant’s general manager :

“ Mr. Roleau told Mr. Rhoades that he was glad that he, Rhoades, would be able to work for them, but that as to his salary he should see Mr. Wisner; that everything in reference to the hiring of Mr. Rhoades was left to Mr. Wisner, and that anything that Mr. Wisner said would go; that thereafter Mr. Rhoades saw Mr. Wisner and made an arrangement with him whereby he was to perform certain further services for the Malta Vita Company at a salary of $2,000 per year, and that as a part of that arrangement Mr. Wisner promised in behalf of the Malta Vita Pure Food Company that the balance due to Mr. Rhoades upon the original two-year arrangement about which Mr. Rhoades has testified in this case and . in reference to which he claims a balance of $1,189 should be paid; that is, that the Malta Vita Pure Food Company, in addition to the payment of $2,000 a year, would pay Mr. Rhoades the $1,189 in question, or that balance, in consideration of the then present employment.

“We desire to show further that Mr. Roleau was at that time general manager of the Malta Vita Pure Food Company, the defendant in this case, with ample power to make such an arrangement as I have stated.

“Mr. Moore: You have gone so far now, that I think Mr. Roleau’s power in this matter should be shown. I do not understand that he had any such power. I do not understand that Mr. Roleau ever had any power to authorize anybody else to employ that Mr. Roleau or somebody did employ this man to work for several months after this alleged contract had .expired, and that this was the first service he ever performed for the Malta Vita. I object to it.

The Court: The objection may be sustained.”

Mr. Roleau testified, reading from the records of the defendant company, as follows:

“I came there September 13, 1902. After May, 1903, I held the office of secretary, and was elected treasurer after Mr. Phelps died. As secretary of the company, I performed the usual duties and the duties of manager. I was made manager at that time — in June, 1903. I read' from page 201: ‘ On motion of Mr. Studebaker, seconded by Mr. Morganthaler, Mr. O. E. Roleau was unanimously elected secretary to fill vacancy then existing.’ On page 208: On motion of Mr. Gross, seconded by Mr. Morganthaler, it was carried that Mr. Roleau be given charge of the affairs of this company and the conduct of its offices and factories as general manager.’ That resolution was put through in the adjourned meeting held June 5, 1903. I acted in accordance with that resolution, and was given charge of the affairs of the company and the conduct of its offices and factories as general manager. I held that office continuously until January 9th, this present year, when the company was dissolved. * * *

“The whole board were principally active as directors in looking after and attending to the affairs of the Malta Vita Pure Food Company during the period of its existence. Of that board, Mr. Phelps, Mr. Wisner, and myself were the members living in Battle Greek. * * * All of the directors of the company except Mr. Wisner and Mr. Phelps, up until I was elected in January, 1904, resided away from the city of Battle Greek.”

The proof of a new and independent contract covering this balance of salary was not within the cause of action as limited by the bill of particulars, which claimed compensation for services actually rendered for defendant prior to the making of the contract with Wisner, which plaintiff offered to prove, and the testimony was properly rejected, although the ruling does not seem to have been put upon this ground. The ground upon which the court rested his ruling seems to have been that the authority to make the contract could not be delegated by Roleau to Wisner. If Roleau himself had authority to bind the corporation to pay for services performed for another corporation and for which it was in no wise liable, he certainly-had no authority to delegate such an extraordinary power to another. Furthermore, the offer to prove does not indicate that Roleau attempted to delegate any such authority, but to authorize Wisner to fix the salary of plaintiff for services to be performed in the future. Such delegation of authority would fall far short of warranting the making of the contract alleged by plaintiff.

The judgment is affirmed.

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


author: Grant, J.

text:
    McCASKEY REGISTER CO. v. TRUETTNER.
    1. Statute of Frauds — Sales of Goods — Contracts Within Statute.
    Any essential part of a contract for the sale of goods of the value of over $50 resting in parol renders it void under the statute of frauds.
    2. Sales — Contract—Oral Representations — Merger in Writing.
    An agent solicited an order for goods of defendant, but defendant declined to buy, stating that if he afterwards concluded to order he would send direct to the principal. Subsequently he sent a telegram to the principal accepting the agent’s offer and alluding to a letter to follow, which he sent, containing all the essential terms of a contract. Held, that oral representations of the agent, not incorporated in the letter, were not binding on the principal.

      Error to Gogebic; Cooper, J.
    Submitted June 7, 1907.
    (Docket No. 48.)
    Decided July 13, 1907.
    Assumpsit by the McCaskey Register Company against Louis H. Truettner for goods sold and delivered. There was judgment' for defendant, and plaintiff brings error.
    Reversed, and judgment entered for plaintiff.
    This is an action of assumpsit, tried before the court without a jury. Plaintiff’s declaration and claim are based upon the following telegram and letter:
    “Bessemer, Mich. Aug. 30.
    “McCaskey Register Co.,
    “Alliance, Ohio:
    “Accept offer of your agent for short account system.
    Letter follows.
    “L. H. Truettner.”
    “Bessemer, Mich. 9-2-’05.
    “McCaskey Register Co.,
    “Alliance, Ohio:
    “ Gentlemen: This letter confirms message sent you 8-30-’05, accepting offer made by your agent for one of your short account systems and cabinet which holds 640 books, price complete #135. You may ship same along at once.
    “ Yours respectfully,
    “L. H. Truettner, H. O.”
    The machine was shipped, was received, put in operation, claimed to work unsatisfactorily, and reshipped by the defendant to the plaintiff. Plaintiff refused to accept it, claiming an absolute sale and completed contract. With his plea of the general issue defendant gave notice that the contract of sale, if any was made, was oral; that the value of the goods exceeded $50; and that the contract therefore was void under the statute of frauds. One McLeod was the agent of the plaintiff. He on August 24th solicited an order from the defendant. No order was given. McLeod testified that he showed defendant a sample and made a proposition of different sizes at different prices, one of which was $135; that he also proposed, that if defendant would turn in the system he was then using, he would receive 400 of its pads in exchange, or he could have 5 per cent', off for cash, and that the company, if he sent the order, would guarantee to keep the register in good condition for two years. Defendant refused to purchase, but said that if he wanted one he would send his order to the factory. Defendant and his clerk testified that Mr. McLeod represented the machine to be better than the one defendant was then using, and that McLeod offered to allow $10 in cash for defendant’s old system. The circuit judge found that the telegram and letter did not of themselves constitute a binding contract, but were based on the offer of McLeod, made August 24th, and that such offer was a part and parcel of the contract, and that the plaintiff committed a breach of its contract in refusing to accept $125 and the old system, and therefore could not recover.

      Belmont Wqples, for appellant.

      Herb. M. Norris, for appellee.
   Grant, J.

(after stating the facts). Both parties agree that no contract was made on August 24th. There is also no evidence tending to show that the statement máde by the plaintiff’s agent was intended by either the agent or the defendant as a standing offer for the defendant to accept at some time in the future suited to his convenience. The defendant testified that he expressly refused to buy of the agent, and told him if he concluded to take one he could buy it later. The agent testified that defendant said if he concluded to buy he would send his order to the factory. Under the defendant’s own testimony, he had no reason, to suppose that the agent would write his principal of his rejected proposals, or that plaintiff knew anything • of the terms which the agent had offered.

It was clearly understood that negotiations for the purchase of a machine from the agent ended, and that if the defendant should conclude afterwards to order a machine he would deal directly with the plaintiff. The price of the machine which he ordered by a telegram and followed by his letter was to be advanced on the 1st of September to $175. The defendant knew this, and therefore ordered the machine so as to save the advance. The letter contained all the essential terms of a contract: “Price, $135.00. You may ship at once.” Plaintiff would naturally infer that the defendant had been informed of the proposed advance in the price, and that he desired to take advantage of the old price, and therefore stated the terms of the agent’s offer, viz., $135.

Under defendant’s contention, essential parts of the contract as claimed by him rested in parol, and would render the contract void under the statute of frauds. Hall v. Soule, 11 Mich. 494; Palmer v. Mill Co., 32 Mich. 274; Webster v. Brown, 67 Mich. 328; Baumann v. Lumber Co., 94 Mich. 363.

No standing offer having been left by the agent with the defendant, the defendant could not incorporate the oral representations or proposals of the agent in a subsequent written order to the principal, and make them binding upon it, without specifying what the representations or proposals were. Plaintiff was justified in assuming that he was making a sale óf a machine for $135 in cash, and that those were the agent’s representations referred to in his written proposal. We think the court erred in his findings.

Judgment reversed, and judgment entered in this court for plaintiff, with the costs of both courts.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    APPLEMAN v. HAHN.
    1. Justices op the Peace — Jurisdiction—Manner op Raising Question.
    Where the want of jurisdiction of a justice of the peace, because of nonresidence of the parties, is not apparent on the , face of the record, a plea to the jurisdiction, properly verified, or a motion to quash, likewise verified, is the proper manner in which to raise the question, and not by an unsupported motion to dismiss.
    2. Same — Motion—Supporting Proop — -Necessity.
    Amotion to dismiss a suit in justice’s court because of the nonresidence of the parties, nonresidence not appearing on the face of the record, and the motion not being supported by any proof, is properly denied.
    3. Same — Review—Oertiorari—Questions Considered.
    On certiorari to review a judgment of a justice of the peace, plaintiff cannot retry questions of fact on new affidavits and proofs in the circuit court; the office of the writ being to review questions of law.
    Error to St. Joseph; Yaple, J.
    Submitted June 7, 1907.
    (Docket No. 53.)
    Decided July 13, 1907.
    Assumpsit in justice’s court by William Appleman against Ammon Hahn for excessive fees collected in the capacity of a public officer. There was judgment for plaintiff, and defendant brought certiorari to the circuit court. There was an order affirming the justice’s judgment, and defendant brings error.
    Affirmed.'

      Wilbur F. Thomas and H. O. Bliss, for appellant.
    „ George H. Arnold, for appellee.
   Hooker, J.

The township of Park lies immediately north of the township of Loekport, in the county of St. Joseph. The city of Three Rivers was constituted from a portion of the territory within the original limits of the township of Lockport, but no part of it is contiguous to the township of Park.' The plaintiff brought an action of assumpsit against the defendant before .a justice of . the peace of the township of Park, summons being returned personally served. The defendant appeared specially for the purpose of moving the dismissal of the case, “ upon the ground that the court has no jurisdiction over the persons of the parties, because it appears that plaintiff and defendant reside in the city of Three Rivers, which said city does not adjoin the township of Park.” The motion was overruled, and defendant took no further part in the proceedings; and the justice proceeded with the cause and rendered a judgment for the plaintiff. The defendant removed the cause to the circuit court by certiorari, where it was affirmed, and it is now before us on writ of error issued at the instance of the defendant.

The return shows that the plaintiff had, prior to the commencement of this action, been arrested upon a criminal warrant, by the defendant, who was deputy sheriff, and taken before the magistrate who issued the warrant, where he pleaded guilty to the charge, and was sentenced to pay a fine and the costs, which were taxed, and which plaintiff paid. The costs as taxed included an item of $1.70 for the fees of the defendant. This action was begun upon the claim that said charge was excessive, to the amount of $1. Plaintiff declared orally “upon the common counts in assumpsit, and especially for money received by the defendant for official duty or services as deputy sheriff, over and above such as are allowed by the laws of this State, and contrary to and in violation of the statutes of the State of Michigan (3 Comp. Laws, §§ 12012, 11240, 11241, and 11242) relative to asking or receiving other or greater fees or reward for services as an officer than are allowed by the laws of this State, and providing the penalty for the same.” Defendant did not plead. The special appearance, motion, and denial thereof appear from the return, and it also appears that the alleged overcharge was proved to have been $1, and thereupon the justice rendered judgment for $3, and costs, taxed at $4.55. The errors assigned were:

1. That the court was without jurisdiction, for the reason that both parties lived in Three Rivers.

2. That plaintiff’s right had been adjudicated in the . criminal case by the taxation of the fees at; $1.70.

3. That the judgment for $3 was not warranted under the declaration, which claimed only “single damages.”

Regarding these assignments, the justice returned that, “as to the place of residence of the parties, there was no evidence before him intimating in any way the place of residence of either party, and none was offered in support of the motion; that as to a former adjudication no such question was raised before him; that as to the damages he determined them to be $3 from the declaration and the statutes. ” Subsequent to the filing of the return, a motion for an amended return was made, which was supported by affidavit, to the effect that, upon the hearing of the motion to dismiss, it was conceded by plaintiff’s counsel that both parties resided in Three Rivers. Such return being ordered, the justice filed such return, which stated that no such concession was made, that he did not know of such fact, and that he did not take the matter under advisement for the purpose of determining whether he had jurisdiction, when both plaintiff and defendant resided in said city, and overruled the motion because he did determine that he had, and that he based his decision on the ground that no evidence had been offered as to the , residence of either party. At circuit the court held that, in the absence of evidence, the court could not presume that the parties lived in Three Rivers, and, as stated, affirmed the judgment.

The want of jurisdiction in this cause was not apparent in the face of the record at the time the motion was made, but depended upon matters dehors the record. A plea to the jurisdiction, properly verified, would have been a proper way to raise the question. Under our practice it is also proper to raise it by a motion to quash, setting up the facts relied upon, and ordinarily such motion should be verified.

The defendant submitted the question without offering any proof in support of his motion, and we think that it was not error on the part of the justice to deny the motion to dismiss the case under such circumstances. The office of a writ of certiorari is to bring up the record for review on questions of law, and unless it shows an error of law below, the judgment must be affirmed. The plaintiff in certiorari cannot retry the question of fact on new affidavits or proofs in the circuit court.

The judgment is affirmed.

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