author: Stone, J.

text:
    WHITMAN v. WHITMAN.
    Contracts — Cancellation of Instruments — Deeds—Support— Specific Performance.
    A written contract whereby a father deeded certain premises to his son, who was to conduct a saloon business thereon, pay existing incumbrances against the same, and then execute a life lease to the father, who was to have “a living out of the proceeds of such business without charge being made therefor,” construed and held, that upon paying the incumbrance and executing the life lease the deed had become absolute, but that the father was entitled to specific performance of the agreement for his support, the amount thereof, in excels of the income from the property which had been turned over to him upon discontinuance of the business, being made a lien thereon.
    On relief of grantor in conveyance in consideration of agreement to support which is broken by grantee, see notes in 43 L. R. A. (N. S.) 916 and D. R. A. 1917D, 627.
    Appeal from Saginaw; Kendrick, J.
    Submitted June 11, 1919.
    (Docket No. 4.)
    Decided October 6, 1919.
    Bill by Peter Whitman against John D. Whitman and another to compel a reconveyance of certain property, and for an accounting. From a decree for plaintiff, defendants appeal.
    Modified, and remanded.

      E. L. Beach, for plaintiff.

      Purcell & Travers, for defendants.
   Stone, J.

The bill of complaint herein was filed to compel a reconveyance by the defendants to the plaintiff of certain real estate in the city of Saginaw, for an accounting, “and that plaintiff be granted such other, further and different relief in the premises as may be agreeable to equity and good conscience.”

The salient facts leading up to this litigation are as follows: Plaintiff is the father of John D. Whitman. Zepha Whitman is the wife of the latter. In May, 1904, plaintiff was the owner of a parcel of real estate, situated upon the easterly side of South Washington street in the city of Saginaw (which street runs north and south), described as lot 4, except the south 20 feet, in bloek 33, Hoyt’s plat of said city. This property has 40 feet frontage and is 120 feet deep. At this time there was a three-story brick building upon the north 20 feet of the above 40 feet, and the south 20 feet thereof was vacant property, from which no rent was received. At this time plaintiff was conducting a saloon situated in the building on the north 20 feet of said 40 feet, as he had been for a number of years prior thereto. The upper portions of the building were occupied by plaintiff, at and subsequent to the date aforesaid, as living apartments for himself, and for rental purposes, there being a number of rooms over the saloon, which were let out by plaintiff to lodgers. In the spring of 1904, plaintiff instituted divorce proceedings against his second wife, not the mother of defendant John D. His son, the defendant, was at the time working for the Banner Brewing Co. of Saginaw, as a driver of a delivery wagon, and plaintiff was living alone in the saloon building. Some time prior to May 8, 1904, the plaintiff made a property settlement with his wife in the divorce proceedings, by which she was to receive $4,500, and his attorney, Mr. Kirby, $500, making a total of $5,000 in all. The plaintiff, in order to carry out this arrangement, borrowed from the Banner Brewing Co. upon his note, secured by his capital stock in said corporation, $1,000, which was turned over to his wife as a, cash payment on the $4,500, and gave her a mortgage for $3,500, dated May 8, 1904. He also gave a mortgage to Mr. Kirby, his attorney, dated May 6, 1904, to secure the payment to him of the $500 above mentioned; both mortgages .being upon the property above referred to. This brings us to the transactions which are particularly involved in this case.

In May, 1904, defendant John D. Whitman left his employment with the Banner Brewing Co. and entered into an agreement with his father, whereby he was to take over the management of the saloon business, and from the proceeds pay off the mortgages heretofore referred to. Plaintiff was, at the same time, to convey said property to his said son, with certain conditions. While there existed a verbal understanding and arrangement between the parties at the very beginning of their relations with regard to these matters, the same were not reduced to writing and signed by the parties until August 10, 1904, being the date upon which plaintiff obtained a divorce from his wife. That contract was as follows.

“This agreement, made and entered into this 10th day of August, 1904, by and between Peter Whitman, party of the first part, and John D. Whitman, party of the second part, both of Saginaw, Michigan.
“Witnesseth as follows: Whereas said first party this day made, executed and delivered to second party a warranty deed of lot number four (4) except the south twenty feet in block number thirty-three (33) Hoyt’s plat of the city of East Saginaw, now a part of the city of Saginaw, Michigan, according to the recorded plat thereof, and whereas there is now incumbrance against said property in the sum of $4,-000.00 in the nature of real estate mortgages, $3,500.00 of the same running to Ellen Whitman and $500 of the same to J. B. Kirby.
“Now, therefore, it is hereby agreed by and between the parties hereto that said John D. Whitman shall assume the management of the saloon on said property and shall as fast as possible and as soon as money is received from the proceeds of said business apply the same upon the payment of said mortgage indebtedness until the same shall be fully paid and discharged and it is further mutually agreed by and between the parties hereto that when said mortgage indebtedness shall be fully paid and discharged that the deed this day executed by first party to second party shall become absolute and the said John D. Whitman shall at that time execute and deliver to said Peter Whitman a good and sufficient life lease of the premises herein-before described. It is further understood and agreed that said Peter Whitman, John D. Whitman and his family may reside upon said property and receive their living out of the proceeds of such business without charge being made therefor.
“It is further mutually agreed by and between the parties that said John D. Whitman hereby agrees to execute to said Peter Whitman at any time before said indebtedness hereinbefore referred to shall be fully paid, a reconveyance of said property upon payment to said John E>. Whitman, the sum of $460.00 and interest at the rate of six per cent, per annum from May first, 1904, and the further sum of $56.00 for each and every month the said John D. Whitman shall work in and about said saloon from May 1st, 1904, and six per cent, interest per annum computed on said sums to become due said second party each and every month. It is agreed that the right to redeem said property by the payment of said several sums above mentioned is a personal right given said Peter Whitman and not assignable or transferable, and in the event of said Peter Whitman’s death before the mortgaged indebtedness hereinbefore mentioned is fully paid then and in that event said John D. Whitman takes and holds, absolute title to said premises.
“In witness whereof the said parties hereto have hereunto set their hands and seals the day and year first above written.
(Signed) “Peter Whitman,
“John D. Whitman.
“In presence of
“L. G. DUEF,
“Julius B. Kirby.”

This contract was duly acknowledged and recorded in the office of the register of deeds.

A warranty deed of said premises, bearing the same date, was executed and delivered by the plaintiff to John D., duly witnessed, acknowledged and recorded.

The $460 referred to in the contract was the amount which defendant John D. personally advanced on the liquor license for the year beginning May 1, 1904, and the $56 per month refers to the monthly wages which John D. was receiving when he went with his father, all of which was to be returned to him, with interest at 6 per cent, per annum, provided the plaintiff electéd to take back the property, “at any time before said indebtedness herein referred to shall be fully paid.”

The mortgage given to Mr. Kirby was discharged •of record February 10, 1905, and that given to Mrs. Whitman was discharged on January 31, 1908, defendant John D. having paid both mortgages from the proceeds of said business.

On February 17, 1908, defendant John D. and his wife, Zepha, executed and delivered the life lease provided for in the contract, of the premises, to said plaintiff for the expressed consideration of “one dollar and other valuable consideration,” and the parties continued in the occupation of said premises, and the conduct of the saloon precisely as theretofore, until May 1, 1914, when the saloon business was abandoned and John D. and wife moved to a farm which he had purchased near Onaway. When John D. quit the saloon business and removed from the building, the whole thereof was turned over to the plaintiff, and the first floor, where the saloon had been, was rented by the plaintiff for $50 a month.

After the last mortgage was paid, there was built upon the south 20 feet of said premises, which had been vacant and unproductive, from the proceeds of the saloon business, and $700 borrowed money, a small brick building, costing substantially $4,200. This building was erected with the consent of the plaintiff, he and the said defendant John D. talking the matter over, and reaching the conclusion that it was advisable to construct the.building. Subsequently, and on September 24, 1913, this south 20 feet, being the property upon which the new building had been erected, was sold for the sum of $5,000, and plaintiff and defendant joined in the deed. And also upon the same date all of the parties entered into a written party-wall agreement, with the grantees in said deed. From the money received from the sale of this, piece of property, $1,000 was paid to the plaintiff by John D. and the balance of $4,000 was retained by the latter. Defendants claim that these sums substantially represented, respectively, the value of the* vacant lot of 20 feet, and the cost of the building which John D. had erected.

At the hearing plaintiff claimed that he should have received $1,500, instead of $1,000. According to the testimony of defendant John D. he, on July 18, 1911, paid upon his father’s note for $1,000 given to the Banner Brewing Co. and secured by his stock the sum of $500. This he claimed was the $500 which was intended to apply upon the $700 borrowed from a sister of the plaintiff, and which was used in the erection of said building. But instead of being paid direct to plaintiff’s sister, it was, by an understanding between her and the plaintiff, applied on the note of his father, as above stated. This, according to the testimony of John D., accounts for $1,500, leaving but $200 for the plaintiff to pay upon the $700 borrowed from his sister.

The plaintiff, who at the hearing was nearly 70 years old, remarried in April, 1915. •

Plaintiff alleged in his bill of complaint that at the time of making the life lease the defendants agreed to live as they had before in the home of said plaintiff, and take care of him and furnish him with a good comfortable home, and upon these representations the said plaintiff, at the request and solicitation of the said John D. and upon his promise that he would always look after and provide said plaintiff with a home, did make and execute to him the said deed; that the accepting of said life lease, and the making of the said deed, were upon the express understanding — and the only consideration for the same was that the said defendants were to make a good comfortable home for said plaintiff, and were to provide for, and take care of, him during his lifetime.

There is some confusion in these allegations of the bill, as the undisputed evidence is that the deed was executed and delivered by plaintiff, on August 10, 1904, whereas the life lease was not made until February 17, 1908. Defendants by their answer denied that the agreement or arrangement was. different from that set forth in'the written contract of August 10, 1904, or that they, or either of them, ever agreed to take care of the plaintiff, and furnish him with a home, or that plaintiff’s rights were other or different than are expressed in said agreement and life lease.

At the hearing there was a sharp conflict between the testimony of the plaintiff and the defendant John D. Referring to a claimed verbal agreement at the time the life leáse was executed and delivered by defendants, plaintiff, referring to John D., testified:

“He was to provide for me and keep me the rest of my days, • provided that I accepted the life lease.”

This was specifically denied by the defendant John D., who claimed that plaintiff’s rights were all expressed in the written agreement and life lease. Plaintiff admitted that his memory was somewhat defective, and he testified: “I can’t remember as I used to do.” Two witnesses testified to statements made by John D. to the effect that he had “a deed of the place and that he was to give his father a life lease, and had to support him the rest of his days.” This testimony was denied by said defendant.

Mr. Kirby, who drew all of the papers and was a friend of both father and son, testified at some length, having been called by the defendants. He testified in part on direct examination as follows:

“I think the life lease is a part of the transaction growing out of the first contract; I do not know of any other paper.”

On cross-examination the following appeared:

“Q. Do you know at the time when they came there, whether Peter was reluctant to the signing of that first contract? Just to refresh your memory, wasn’t it in reference to the wife, the woman this man John D. was living with?
“A. I have this recollection, during the time they were negotiating about these papers, John Whitman’s wife — whether they were married at that time, I do not know — had an altercation with the old gentleman — she used some instrument — she threw some knife at him, or something like that, and I do know that during the negotiations, the old gentleman was very reluctant, he was fearful she would be taken into the home, and by reason of her attitude drive him from the home, and John said to him, ‘Father, I’ll protect you in respect to that,’ and he had a serious conference about it, and it depressed me seriously; she had assaulted him with a knife or something (I might put it with an instrument), and he did not like to go through the performance, unless he was assured by John he would be protected.
“Q. Don’t you remember that what you have stated, that that took place after the contract was prepared and signed, and they were working under that contract, and it was just prior to the time when that life lease was made?
“A. I remember that it occurred, and that the old gentleman was very reluctant to sign, and then John encouraged him, he said he would protect him, but when that took place, or just when it took place, I couldn’t say.
“By the Court: Q. Whether it was before the life lease was drawn or the other papers, you don’t recollect?
“A. No. * * *
“Q. Do you remember that in any of the controversies that took place between them, after the contract was prepared, that John D. Whitman was to take care of Peter, and that he was to have a home there?
“A. I couldn’t remember specifically, but I understand they did live under that contract there, after the contract was prepared, and the life lease.
“Q. Yes, and he provided for him up to the time he went to Onaway in the spring of 1914; and now to refresh your memory, as I understand it they had several different talks at your office?
“A. Yes, sir. * * *
“By thef Court: Q. What do you think he meant when he said he would take care of his father and seeing he did not want?
“A. Do you want my conclusion?
“Q. If you can cull them from the conversation.
“A. I felt this way, from the character of their talk, there was a sort of friendly relation between John and his father; and my understanding was that John meant that he would take care of his father, even though it cost him the association of his wife (I thought he intended to admit that, Judge). I never saw a parent and son more friendly, a son more considerate of his father than John; in reference to these matters, I think they trusted each other implicitly; I think even though she had to get out of the house. That was the serious question and the extent of the talk. I do not know what the fight consisted of, or whether his testimony has shown anything about the altercation (turning to plaintiff). Did John’s wife strike, at you with something?
“Plaintiff: A. Yes (showing), there’s the scar right there.”

On redirect-examination, he testified:

“Q. So far as you are concerned these papers that I have shown you represent the agreement between them?
“A. Represent the agreement, and what I put in as attorney at that time.
“Q. Then they represent the agreement between the parties so far as you knew their agreements to be at that time?
“A. You are asking for my present recollection of it now?
“Q. I am asking for your understanding of it at the time you drew the agreement.
“A. I think that the first contract calls for a life lease.
“Q. Yes.
“A. I made the life lease.
“Q. That was the understanding by you?
“A. They came in later and asked me to make that life lease; anything different from that I don’t know.
“By the Court: Q. If the consideration in that agreement was one dollar and other considerations, do you know what the other considerations were?
“A. The general relationship, and the manner in which they have been living, and all things generally, convinced me that there was more than a general taking over the business, there was a continuous chain of circumstances, and my habit was to put in ‘one dollar and other valuable considerations,’ when the real value could not be obtained.”

The defendant John D. Whitman testified at length, and when testifying relative to the erection of the new building, he testified:

“Q. Where did you get the means to do it with?
“A. Out of the saloon business. My father at that time secured his maintenance and support from me out of the saloon business. * * *
“Q. Now, Mr. Whitman, during the time you conducted the saloon business on the ground floor, your father received a portion of a certain amount for his living?
“A. Yes, sir.
“Q. And then when you went away he had the use and occupation of the building itself?
“A. Everything. * * *
“Q. Your contract provides among other things that it is understood and agreed that said Peter Whitman, John D. Whitman, and his family, may reside upon said property, and receive their living out of the proceeds of such business, without charge being made. You understand that part of the contract, that you and your father, and your wife were to live there, and were to have your living out of the business without charge?
“A. Yes, sir. * * *
“Q. How much money did you give your father out of the proceeds of the bar after 1908?
“A. I couldn’t say how much.
“Q. It was as much as he wanted to take care of himself?
“A. Yes, and he had different moneys, he was to Detroit.
“Q. That money came out of the saloon business and you let him have it?
“A. Yes, just the same as before the life lease was made.
“Q. Do you claim that you and your father never talked over, that you were to provide for him the same as before?
“A. Nothing but what the life lease calls for.
“Q. Did you say anything — didn’t you say ‘father, I will take care of you and give you money just as before?’
“A. No, sir.
“Q. But you actually did?
"A. Yes. * * *
“Q. And while he was down the river in this boat house, where did he get his support and maintenance?.
“A. Out of the profits of .the saloon.”

The learned circuit judge who heard the case at the circuit found that the defendant John.D. was under contract obligation to properly support the plaintiff during his lifetime; that when said defendant quit the business and went away in the spring of 1914 he violated his contract; that in the sale of the new building said defendant had received sufficient compensation for his services, and decreed that he should reconvey the remaining part of the property, to wit: the north 20 feet of said lot, to the plaintiff. The defendants have appealed from this decree.

A careful reading of this record leads us to the conclusion that from the time of the making of the contract on August 10; 1904, it was the intention of the parties that the plaintiff should receive his “living,” or support out of the proceeds of the business. In fact such was the express language of the agreement.. That was a continuing right of the plaintiff, and was not done away with by the making of the life lease. In other words, as testified to by Mr. Kirby, “the life lease is a part of the transaction growing out of the first contract.” No doubt, when the contract was made, it was. contemplated that the business would be carried on indefinitely. It was carried on for a period of 10 years, and the conduct of the parties was the same during all that period, both before and after the making of the life lease. The practical construction of the contract by the parties is significant. It seems to be the claim of the defendants that the contract was merged in the life lease. We do not so understand it. The terms of the contract are still in force. The value of the property deeded to defendant John D. was probably $10,000. His duties are, we think, set forth in that contract, as. well as his rights. The contract is to be read in the light of the circumstances attending its execution. It should be construed so as to effectuate the intent of the parties when it was made. Kunzie v. Nibbelink, 199 Mich. 308; Ardis v. Railway Co., 200 Mich. 400, 411.

At the time of entering into this contract the plaintiff was a man well advanced in years. He had just incurred a heavy indebtedness and had mortgaged his property. He induced his son, John D., to undertake the-management of the business and to pay off the indebtedness, and give him “a living out of the proceeds of such business, without charge being made therefor.” Upon the paying off of such indebtedness the deed which he that day executed and delivered to his son should become absolute, but the duty to furnish “the living” continued. From the evidence it is clear that the plaintiff was not to become a member of John D/s family and eat at his table, but the living was to be provided. The evidence shows that such was the understanding of the parties, and such was the uniform course of dealing down to the spring of 1914, when John D, discontinued the business and moved away, leaving the plaintiff in the possession of the building under the life lease, chargeable with the taxes, insurance, and expense of repairs. We think the evidence shows that the net income from such building has not been sufficient to furnish a living to the plaintiff. It does not meet the question to say that it is the duty of a life tenant to pay such charges. The duty to support remains, under the contract. We cannot follow the opinion and decree of the court below in directing a reconveyance of the premises to the plaintiff. By the terms of the agreement and the paying off of the mortgages, the deed to defendant John D. became absolute, and he was under no obligation to reconvey after he had paid off such incumbrances. Under the evidence we find no fraud in the case. The representations of said defendant were promissory in their character, and the agreement can be specifically performed. The value or cost of the support of the plaintiff, over and above the net income of the property, can be readily determined, as well as that for future support, the same to constitute a lien on the premises. The defendant John D. did not violate the contract in deeding away the south 20 feet of the property, but his duty to support and maintain his father during his life remained. The decree below will be modified in accordance with this opinion; the case will be remanded to the court below to take an accounting and to determine the amount due plaintiff for his support and maintenance since May 1,1914, over and above the net income from said premises, and the same will be ordered paid to plaintiff, as well as the amount due annually from time to time for his future support and maintenance, upon the same basis; all of which will be a lien on the premises, to wit, the north 20 feet of said lot. No costs will be awarded to either party in either court, except that each party shall bear one-half the expense of printing the record.

Decree modified.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


source: Caselaw Access Project

license: Public Domain

text:
      In re COBURN AND GLOCHESKI.
    1. Evidence — Interpreter—Agent to Converse.
    An interpreter may be made an agent to converse, and then his translation is receivable as an agent’s admission „ without calling him to the stand.
    2. Same — Attorney and Client — Disbarment Proceedings.
    In disbarment proceedings, the testimony of witnesses as to statements of defendants made to them through an interpreter, at the time of the alleged misconduct, held, admissible.
    3. Certiorari — Appeal and Error — Weight of Evidence — Review.
    On certiorari to review disbarment proceedings, where there was evidence of defendants’ misconduct, this court will not decide, as a question of law, that the evidence was not clear and convincing; that question being clearly within the province of the trial court.

      On admissibility of evidence given through an interpreter, see note in 17 L. R. A. 813.

      4. Attorney and Client — Disbarment Proceedings — Trial — Subsequent Acts — Open to Inquiry.
    A letter introduced in evidence, written by one of the defendants in disbarment proceedings to the complaining witnesses subsequent to the misconduct charged, bearing upon defendants’ good faith, even if mailed (which the court ruled was not proven), held, insufficient to justify defendants’ contention that the proceedings should be dismissed, since an act subsequent to the misconduct complained of would not preclude subsequent inquiry into their conduct.
    Certiorari to Kent; Vanderwerp, J., presiding.
    Submitted June 12, 1919.
    (Docket No. 16.)
    Decided October 6, 1919.
    Petition by Leon W. Harrington and Harold W. Bryant, amici curise, for the disbarment of Corie C. Coburn and Roman F. Glocheski. From an order granting the petition, defendants bring certiorari.
    Affirmed.

      Smedley & Linsey, for. appellants.

      Leon W. Harrington and Harold W. Bryant, in pro. per.

   Stone, J.

This is a proceeding for the disbarment of Corie C. Coburn and Roman F. Glocheski, who for some years have been members of the bar in the courts of this State. The proceeding was instituted at the instance and on the recommendation of the Grand Rapids Bar Association, and was conducted in the circuit court for the county of Kent. That court appointed two members of the bar as friends of the court to make, prefer and prosecute the charges. The petition of the friends of the court is fully set forth in the record. That part which is material here, after stating that the respondents were members of the bar of this State, and practicing attorneys at law and in chancery in the courts thereof, alleges that on June 7, 1917, one John Moses of the city of Grand Rapids commenced an action by writ of capias ad respondendum for damages'for an assault and battery alleged to have been committed on him by Ciorba Mikleuis and Popa Ilis jointly, both of said city, and in said writ the ad damnum clause was the sum of $1,000; that thereupon and on the same day, said Mikleuis and Ilis were arrested by a deputy sheriff of said county and lodged in the county jail thereof, their bail having been fixed by a circuit judge at the sum of $200 each; that said respondent Glocheski learned of such arrest, through some third party unknown to the petitioners, and visited Mikleuis and Ilis in said jail and was employed as their attorney in said action; that said respondent then and there discovered that said Ilis had certain currency upon his person, and was also the owner of a large sum of money, to wit, $511, and that said respondent Glocheski thereupon accepted a payment of $10 from said Ilis for legal services to be rendered to said Ilis and Mikleuis, and then and there made an arrangement with the sheriff, whereby a cash deposit of $400 was made with said sheriff in lieu of a bail bond, and thereupon said Ilis and Mikleuis were released from said imprisonment, and accompanied said respondent, who advised them to come to his office on the following morning; that in the forenoon of the following day the respondent Coburn, having been employed to assist the other respondent in said case, and claiming to represent said Ilis and Mikleuis, negotiated a settlement, with the attorney for said Moses, of the said action against said Ilis and Mikleuis, and that it was then and there agreed by and between said respondent Coburn and said attorney for said. Moses that the sum of $100 should be paid in full settlement of all claims then existing of said Moses against said Ilis and Mikleuis, and that it was as a part of the same consideration also agreed that said action would be dismissed without costs; and that shortly thereafter, and on the same day, said respondent Glocheski called at the office of said attorney for said Moses, paid the said sum of $100 and was then and there given a full and complete release of said cause of action, duly executed by said Moses, and that a stipulation was then and there entered into between said attorney for Moses and said respondent Glocheski, by the terms of which the said action was to be dismissed without costs; that on said 8th day of June said respondents entered into a joint conference with said Ilis and Mikleuis, and, while acting as their attorneys, assumed to advise said Ilis and Mikleuis of their rights and duties, and to give them legal counsel as to their course of procedure in and about said action and, while acting as such attorneys, made, in substance, the following false and fraudulent representations to said Ilis and Mikleuis in order to induce them to pay to said respondents the sum of $600:

“(a) That said Ilis and Mikleuis were liable on account of said action to be fined by said circuit court the full sum of $1,000, unless they procured and paid to said Glocheski and Coburn the said sum of $600.
“(b) That said Ilis and Mikleuis would be immediately imprisoned, unless they paid said sum to said Coburn and Glocheski, and would be obliged to return to jail at once.
“(e) That said sum of $600 was. necessary in order to prevent said Ilis and Mikleuis from either being fined the full sum of $1,000, or immediately return to jail.
“(d) That they, the said Coburn and Glocheski, were negotiating directly with the said court, and that the said sum of $600 was required by said court to be paid in order that the matter might be settled, and the said Ilis and Mikleuis obtain their freedom. And that said respondents at the same time, then and there knowingly, wilfully and fraudulently concealed from said Ilis and Mikleuis the following facts, which were then well known to said respondents:
“ (a) That the entire matter could be adjusted and settled, and the case dismissed for the sum of $100.
“(b) That the said cause of action had, prior to that time, been compromised, adjusted and released, and a stipulation for the dismissal thereof without costs entered into, all upon páyment of the full sum of $100 to the attorney for said Moses.
“(g) That the said Ilis and Mikleuis were not liable unless, and until 'after a trial of the said cause of action, a judgment should be rendered against them either for fines, damages, penalties or imprisonment.
“(d) That the matter was one which was not a necessary or customary subject of negotiation directly with said court, and was. such that it could be entirely adjusted with the said Moses and his attorney.
“(&) That the said respondents were about to appropriate to themselves $500 of the said $600 so to be paid. That thereupon, and on the same day, the said Ilis and Mikleuis, believing and relying in g‘ood faith, upon the said representations of said respondents, and in order to be relieved of the supposed necessity of returning to jail or suffering a fine, procured and paid the said sum of $600 to the said respondents, of which said sum of $600, $100 was properly applicable to the settlement and adjustment of said cause of action, and $500 thereof, in breach of their fiduciary relation to their said clients, was by the said respondents wrongfully and. fraudulently appropriated to their own use.”

That said Ilis and Mikleuis are Roumanians, and are unfamiliar with the English language, and with the customs and laws of this State and country, and relied wholly upon the advice and counsel given to them by said respondents as their attorneys, and paid said sum of money, believing the said false representations, and the necessity for such payment.

That said acts and doings of said respondents constitute gross misconduct upon their part in the practice of the profession of law, for which misconduct both should be disbarred from the practice of said profession in this State, and such disbarment was prayed for.

Upon the filing of such petition, an order was duly entered requiring the respondents to appear and answer, and a certified copy of the petition was duly served upon each of said respondents. Each of the respondents answered said petition, specifically denying all fraud and fraudulent representations charged therein. Both answers admit that in the forenoon of June 8, 1917, it was agreed that the sum of $100 should be paid in full settlement of all claims then existing of said Moses against said Ilis and Mikleuis, which should be in full of all costs, and everything connected with said case, and that on the same day said respondent Glocheski called at the office of the attorney of said Moses and paid the said sum, and that a stipulation was then entered into dismissing said cause. But it was denied that such settlement was agreed upon, or made until after said Ilis and Mikleuis had left the offices of respondents and had gone with respondent Glocheski to secure the funds to pay whatever might be demanded by the attorney for said Moses, “provided the same did not exceed the sum of $600.” The exact time of the settlement was a disputed question.

A lengthy hearing was had upon the issue made and a large amount of testimony was taken. Upon the hearing it appeared that at the first meeting between respondent Glocheski and Mikleuis and Ilis the latter had been directed to bring with them an interpreter at the meeting to be held June 8th at Glocheski’s office; and that an interpreter attended and acted as such at that meeting. The right of Ilis and Mikleuis, at the hearing, to testify to what was translated to them through such interpreter was objected to by respondents, and the ruling admitting such testimony is one of the errors claimed by respondents here.

After a full hearing in the circuit court, the court found as follows as stated in the opinion filed:

“From the foregoing, it will be seen that I am of the opinion that a clear case has been made against the respondents, established by proof, so far as the first charge in the petition is concerned, that- is, the Ilis and Mikleuis charge. For this reason I am of the opinion, and I find that the respondents Corie C. Coburn and Roman F. Glocheski, have committed acts and doings which constitute gross misconduct in the practice of the profession of law, for which misconduct, the said Coburn and the said Glocheski should be disbarred in the future from the practice of their profession in this State.”

An order or decree of disbarment was accordingly entered, in accordance with the provisions of section 12064, 3 Comp. Laws 1915. The respondents thereafter applied to this court for a writ of certiorari to review the proceedings and judgment, which writ was granted.

In this court it is stated by counsel for respondents that the propositions involved are the following:

(1) That the testimony of Ilis and Mikleuis was incompetent.

(2) That the testimony and record do not show that petitioners have sustained their charges by clear and convincing proof, as matter of law, and that an order of disbarment ought not to have been made.

(3) That the court should have found that respondent Coburn wrote and mailed a letter to Ciorba Mikleuis, as claimed by respondents, and that, therefore, an order of disbarment ought not to have been made.

1. It is urged in argument by counsel that as Ilis and Mikleuis could only converse with respondents through an interpreter, their testimony was hearsay, and was immaterial and incompetent, and the following is quoted from Wigmore on Evidence, § 668:

“Conversations through an interpreter. When _ A speaks with B through an interpreter, because of ignorance of B’s language, A cannot of his own hearing know what B said; he depends on the interpreter’s report. Here no exception has been recognized to the general rule (though it might well have been). The witness A is allowed to testify only to what he heard from the interpreter, and the interpreter must be called to testify to what B said to him.”

Also the following in subdivision 3, section 812:

“A person conversing with a third person through an interpreter is not qualified to testify to the other person’s statements, because he knows them only through the hearsay of the interpreter. Ordinarily, therefore, the third person’s words cannot be proved by anyone except the interpreter himself.”

Also section 1810 of the same author.

The following cases are also cited by counsel for respondents: Diener v. Diener, 5 Wis. 483, 527; People v. Lee Fat, 54 Cal. 527; People v. Ah Yute, 56 Cal. 119; State v. Noyes, 36 Conn. 80.

The following appears in respondents’ brief:

“His and Mikleuis were instructed to return to the office of Mr. Glocheski the following morning and to bring with them an interpreter, so that Mr. Glocheski could be informecl as to the defense of Ilis and Mikleuis, and their wishes in the matter.”

It is urged by counsel for petitioners that it cannot be disputed that the statements of respondents, and the statements of Ilis and Mikleuis, during the conference, were relevant and material, and that the real question is whether they were hearsay; that upon the state of facts as they existed, the statements of respondents made to Ilis and Mikleuis, and interpreted by the interpreter, were admissible as evidence, and may be testified to by Ilis and Mikleuis, or any other party who was present, and heard and understood the statements; and that the decisions of the courts, as well as the language of the text-writers, support the admission of this testimony, citing Wigmore on Evidence, § 1078, subd. 6:

“An interpreter may be made an agent to converse, and then his translation is receivable as an agent’s admission without calling him to the stand. But otherwise, his extra-judicial statements are excluded by the hearsay rule.”

Also § 1810:

“Where a witness on the stand is asked to testify to the words of A (uttered out of court) as translated to him by M interpreting between them, the witness is not qualified by personal knowledge of A’s utterances, and may not testify; the interpreter M is the only qualified witness, but if A whose utterances are to be testified to is a party opponent, then he may be regarded as having made M his agent to translate, and thus M’s translations are admissions usable against A” — citing 2 Jones on Evidence (Horwitz’s Edition), § 265; Commonwealth v. Vose, 157 Mass. 393 (32 N. E. 355, 17 L. R. A. 813).

In the last-cited case Knowlton, J., said:

“When two persons who speak different languages and who cannot understand each other converse through an interpreter, they adopt a mode of communication in which they assume that the interpreter is trustworthy, and which makes his language presumptively their own. Each acts upon the theory that the interpretation is correct. Each impliedly agrees that his language may be received through the interpreter. If nothing appears to show that their respective relations to the interpreter differ they may be said to constitute him their joint agent to do for both that in which they have a joint interest. * * * They cannot complain if the language of the interpreter is taken as their own by anyone who is interested in the conversation. Interpretation, under such circumstances, is prima facie to be deemed correct. * * * In a case like the present, we are of opinion that either party, or a third person who hears the conversation, may testify to it as he understands it, although for his understanding of what was said by one of the parties, he is dependent on the interpretation which was a part of the conversation. The fact that a conversation was had through an interpreter affects the weight, but not the competency of the evidence.”

The following cases are cited in support of the claim of petitioners: Madau v. Lumber Co., 76 Wis. 120 (43 N. W. 1135); People v. Randazzio, 194 N. Y. 147 (87 N. E. 112); Miller v. Lathrop, 50 Minn. 91 (52 N. W. 274); Sertaut v. Crane Co., 142 Ill. App. 49; McCormicks v. Fuller, 56 Iowa, 43 (8 N. W. 800); Kelly v. Benevolent Ass’n, 2 Cal. App. 460 (84 Pac. 321).

A reference to the cases cited by respondents’ counsel will show that most of them can be readily distinguished from the instant case, in the application of the rule contended for. We are of the opinion that the weight of authority sustains the position contended for by the petitioners, and that the court did not err in overruling the objections to the testimony of His and Mikleuis.

The record shows that the interpreter testified to the correctness of the translation objected to.

2. It is contended that the record does not show that petitioners sustained their charges by clear and convincing proof, as matter of law.

As we said in Re Radford, 168 Mich., at page 487, so we say here:

“It is well that we keep in mind the fact that this case is before us upon certiorari, under the provisions of section 10497, 3 Comp. Laws; and that it has been often held that the office of a certiorari is not to review questions of fact, but questions of law. And that in examining into the evidence the appellate court does so, not to determine whether the probabilities preponderate one way or the other, but simply to determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved, whether that inference would, or would not, have been drawn by the appellate tribunal. Jackson v. People, 9 Mich. 111 (77 Am. Dec. 491).”

Respondents urge this court to decide, as a proposition of law, that the evidence upon which the trial court found respondents guilty of gross misconduct was not clear and convincing. We think that whether the proofs were clear and convincing was a question of fact peculiarly within the province of the trial court, and not a question of law properly reviewable by this court on certiorari. The cases of In re Baluss, 28 Mich. 507, and In re Clink, 117 Mich. 619, from which counsel quote, were both cases originating in this court, and where this court weighed the evidence. It is sufficient to say that there was evidence to sustain the charges, and the trial court has found that such evidence was clear and convincing.

3. Finally it is urged that the court erred in failing to find that respondent Cobum wrote and mailed a letter to Mikleuis on June 9 1917. That letter was as follows:

“June 9, 1917.
“Ciorba Mikleuis and Popa Ilis,
“City.
“Gentlemen: The case of John Moses has been settled. One hundred dollars has been paid to his lawyers giving you a clear slate. The receipt is in the files, and any time you may want it, you can get it, or send for it. Everything is done as you requested. Kindly call at the office at your earliest convenience and oblige,
“Respectfully yours,”

There was testimony that this letter was dictated by respondent Coburn to the stenographer in the office; that it was copied and inclosed in a stamped envelope and addressed to the parties at their street and number. The trial court admitted the copy of the letter in evidence, but was of the opinion that the evidence of the mailing of the letter was not sufficient. Whether that ruling was correct or not is not controlling of the case. It is claimed by respondents that the sending of the letter bore upon their good faith, and that if sent, these proceedings should be dismissed.

We do not agree with counsel in this contention. It was an act subsequent to the conduct complained of, and even had it contained a promise to refund the money (which it did not) it would not preclude subsequent inquiry into the conduct of respondents. In re Radford, supra, at page 495.

Finding no error in the record, the judgment of the circuit court is affirmed.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


text:
      In re BURNHAM’S ESTATE. BRACKETT’S ESTATE v. BURNHAM'S ESTATE.
    1. Husband and Wife — Estates of Decedents — Married Women —Services—Right of Wife to Recover — Runs of Law.
    In an action by a married woman against an estate for services rendered to deceased, evidence of an agreement between the husband and the wife emancipating the latter is insufficient to entitle her to recover; it must also appear that the party receiving such services assented to the arrangement and understood that contract relations between himself and the wife existed, and that she expected compensation.

      On right of married women to recover for services rendered outside the home, see note in L. R. A. 1917E, 282.

      2. Same — Contract Relations — Evidence—Sufficiency.
    Evidence that deceased told witness that “I want them (claimant and her husband) to have all I got, and I want them to have it to pay for everything she has done for me. Whatever I owe them they can always put in a claim and get it. I have enough property or money so they can always get what's coming to them,” helé, insufficient to prove that deceased supposed that contract relations existed between himself and claimant or that he was dealing with her.
    3. Same — Right of Marbied Woman to Earnings — Statute.
    In view of the effect of Act No. 196, Pub. Acts 1911 (3 Comp. Laws 1915, § 11478), defining and regulating the right of married women to their own .earifings, which was neither raised nor discussed, as to_sarvices rendered after the act took effect, a new trial is granted.
    Error to Kalamazoo; Weimer, J.
    Submitted June 10, 1919.
    (Docket No. 84.)
    Decided October 6, 1919.
    Anna C. Brackett presented a claim against the estate of Chauncey Burnham, deceased, for services rendered. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. On the death of claimant, the appeal was prosecuted in the name of William A. Brackett, executor. Judgment for claimant. Defendant brings error.
    Reversed.

      Lincoln- H. Titus, for appellant.

      Alfred S. Frost and Corwin & Norcross, for appellee.
   Stone, J.

This is the second appearance of this case in this court. When here on the former occasion, it will be found reported in 199 Mich. 326. For a full statement of the history of the case, reference is had to the former opinion. The case was reversed and a new trial ordered for the single error there pointed out. The case has been retried, resulting in a verdict and judgment for the claimant in the sum of $1,302.36, and the defendant has brought the case here upon writ of error. Many errors are assigned by appellant, but in our opinion the single meritorious question presented by the record is, whether there was any evidence, upon the retrial, showing that the arrangement which it was claimed was made between claimant’s husband and herself “that she might have whatever she earned” if she would allow Chauncey Burnham to come to the home of William A. Brackett and Anna C. Brackett to live, was ever communicated to Chauncey Burnham, or that such an arrangement was ever accepted by him, or understood, or acquiesced in by him. When the case was here before we said:

“We think the case should have been submitted to the jury upon the claim of Anna C. Brackett for her own services only.”

The question now presented was not presented or considered upon the former hearing. The evidence upon the retrial, as well as upon the first trial, upon the right of Anna C. Brackett to have her claim presented to the jury at all, was based upon a claimed conversation between Mr. and Mrs. Brackett, not in the presence of Chauncey Burnham, and was testified to by Mr. Brackett as follows:

“Q. Any conversation that you had that was in his presence would not be admissible, but the conversation that was not in his presence would be, so do not say anything in regard to any conversation had while he was present. What, if anything, was said by you to your wife about his staying there when you were talking with her, when Mr. Burnham was not present?
“A. I told her if she wanted to keep him she could, and she could have what she could earn.”

On cross-examination as follows:

“Q. Mr. Brackett, what you have told the jury is what you and your wife have talked about, when Chauncey Burnham was not present, is that right?
“A. Yes, sir.”

The rule of law in this State seems to be, that under such an arrangement, as claimed between husband and wife, before the wife can recover for services rendered under such circumstances, this agreement must be brought home to the knowledge of the party to be charged, and it must appear that such party assented to, and acquiesced in such arrangement. It is not enough to show that the husband has given the wife her services, but the other party must also understand that contract relations between himself and the wife exist, and that the wife expects compensation. It was, and is, the position of claimant’s counsel that this part of the case is sustained by the testimony of the witness Amelia Planck, which was as follows:

“Q. And what, if anything did he (Burnham) say to you, how did this conversation come up, and what was said to you?
“A. At different times, and one time especially, he was alone in the store and wasn’t feeling very well, and I says, ‘Why don't you get married?’ and he says, T don’t want to get married. I have got a home over to Mrs. Brackett’s and she takes care of me and does all my washing and ironing and everything.’ And in the conversation he said, T guess I ain’t got nobody that I care for, and I want them to have all I got, and I want them to have it to pay for everything she has done for me.’ And I said, ‘Why don’t you make a will?’ And he said, ‘Because they would fight over a will,’ and he says, ‘Whatever I owe them they can always put in a claim and get it. I have enough property or money so they can always get what’s coming to them.’ ”

At the close of the plaintiff’s evidence defendant’s counsel moved for a directed verdict, upon the ground (among others) that there was no evidence to show that the deceased knew that Anna C. Brackett intended to charge him for the items claimed, or agreed to it. This motion was denied and exception taken.

Defendant requested the court to charge the jury (among other things) as follows:

“2. The plaintiff, or claimant, having failed to produce any evidence that deceased, Chauncey Burnham, knew that Anna C. Brackett, wife of William A. Brackett, claimant, intended to charge him for any services she rendered him, and for which she now claims compensation, and that he assented to the arrangements, neither she, nor her estate, can recover in this action, for in order to bind the estate of Chauncey Burnham, it is incumbent upon the claimant to prove by a preponderance of the evidence that the deceased, Chauncey Burnham, knew that Anna C. Brackett intended to charge him for the items for which she now claims, and that he assented to the arrangements. (Citing cases.) Your verdict will be for the defendant, no cause of action.”

This request was refused, and the case was submitted to the jury. The court, in the course of its charge, did charge the jury as follows:

“It must appear to your satisfaction by a preponderance of the evidence that William Brackett, husband of Anna C. Brackett, relinquished to his wife the right to have whatever she might earn in caring for Chauncey Burnham, and that Chauncey Burnham, himself, understood and accepted such arrangement.”

The infirmity of the case is that, in our opinion, there was no evidence to warrant the submission of the question to the jury. Neither the testimony quoted, nor any evidence in the case, tended to show that Chauncey Burnham ever knew that the claimant had been emancipated, or knew of the claimed arrangement between the husband and wife, or knew that contract relations between himself and the claimant existed.

This is not a new question in this State. That such evidence is necessary has often been held by this court. In Mason v. Dunbar, 43 Mich. 407 (38 Am. Rep. 201), Justice Cooley, speaking for the court, said:

“The plaintiff claims that her husband and herself alternately took charge of the husband’s father, who in his extreme old age was blind and imbecile, and' required constant care and supervision, day and night, and that it was distinctly agreed between herself and her husband that for her own services she should receive compensation from the father. If such was the fact, and if the father understood the arrangement and assented to it, the court is of opinion that she would be entitled to recover what would be just and reasonable. The husband had the right to give her for this purpose her services, or to refuse to give them at his option; and if he made the gift, the legal right to deal with the father as a stranger might would follow.
“But we are all of opinion that the father must have been made aware of the arrangement, and must expressly or by implication have assented to it before he could have been chargeable with any legal claim in plaintiff’s favor. The legal presumption is that the wife is employing her services in her husband’s interest; and where she is working with her husband, as was the ease here, a great wrong would sometimes be done if each might present and recover on separate claims, when the other party supposed, and had a right to suppose, he was dealing with the husband alone. It is not enough to show that the husband has given the wife her services, but the other party must also understand that contract relations between himself and the wife exist, and that the wife expects compensation.”

This case has been approved and followed many times, as is evidenced by the following cases: Barnes v. Moore’s Estate, 86 Mich. 585; Boughton v. Bough-ton’s Estate, 111 Mich. 26, 28; Slack v. Norton, 111 Mich. 213, 215; Decker v. Kanous’ Estate, 129 Mich. 146; In re Barclay's Estate, 146 Mich. 650; Heral v. McCabe, 171 Mich. 530, 539.

In Be Barclay’s Estate, supra, Justice Ostrander, in speaking of an objection to the admissibility of certain testimony, said:

“The specific objection to the introduction of this testimony was that such a bargain between husband and wife must be shown to have been brought home to the decedent, and to have been assented to by her. See Mason v. Dunbar, 43 Mich. 407. If there was an arrangement that claimant should be paid, known and assented to by the husband, to the knowledge of decedent, so that liability to the wife personally was affirmed and liability to the husband was negatived, the rule that fit is not enough to show that the husband has given the wife her services, but the other party must also understand that contract relations between himself and the wife exist, and that the wife expects compensation’ (Mason v. Dunbar) is not violated.”

The difficulty with the instant case is that there was no such evidence, the necessity of which is above indicated. The language:

“And I want them to have all I got, and I want them to have it, to pay for everything she has done for me. * * * Whatever I owe them they can always put in a claim and get it. I have enough property or money so they can always get what’s coming to them.”

Such language falls far short of indicating that Burnham supposed that contract relations existed between himself and the claimant, or that he was dealing with her.

In Heral v. McCabe, supra, Chief Justice Moore, speaking for the court, after quoting from Mason v. Dunbar, supra, said:

“There is not a particle of evidence in the case from which the inference can be fairly drawn that the def endant understood that he was dealing witn the plaintiff, and that he was to pay her for her services.”

That language is very pertinent here.

Counsel for claimant have called our attention to Ashley v. Smith’s Estate, 152 Mich. 197, and especially to the following language:

“It is urged by defendant’s counsel that such contract would not be good unless Smith did know of this, but we think this point not well taken. If she had the right, and was competent to make such contract on her part, and he did make it on his, it would bind him, whatever he may have thought about it.”

It would appear from a casual reading of the above excerpt that it is in conflict with the cases which we have cited. But a more careful reading shows that it was not the contract relation that was referred to there, but the right on the wife’s part to make a contract. If the contract was actually made between claimant and deceased, and it turned out that she was authorized to make it, another question would arise, which is not the precise question we have been discussing, which is the contract relation. No cases are cited, and we do not think it was the intention to overrule the long line of decisions above cited without reference to them. It is also urged by appellant that the record in that case discloses that the questions here presented were not raised on the trial of that case. An examination of the record verifies that statement.

Many other reasons are urged by appellant why the case should be reversed, especially the weakness of the testimony as to the time and value of the services. We think, however, that enough was shown to take the case to the jury upon those questions.

Other questions raised and discussed will probably not arise upon a new trial. Much as we regret to reverse this case again, we see no escape from it, if our numerous decisions are to be observed.

The judgment will be reversed and a new trial granted because of the error discussed. One of the reasons why we grant a new trial is because the effect of Act No. 196 of the Public Acts of 1911 (3 Comp. Laws 1915, § 11478), entitled “An act defining and regulating the right of married women to their own earnings,” has neither been raised nor discussed. What effect that act should have in a case where, as here, no express contract is relied upon, as to services rendered after that act took effect, may be a material question. It is claimed that the period of services extended to November 21, 1914. See In re Scully’s Estate, 199 Mich. 181. Appellant will recover its costs of this court to be taxed.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Kuhn, JJ., concurred.

The late Justice Ostrander took no part in this decision.


author: Kuhn, J.

text:
    MUNROE, BOYCE & CO v. WARD.
    1. Appeal and Error — Statutory Right — Jurisdiction.
    Where a claim of appeal was not filed within 20 days after the entry of decree, as provided in 3 Comp. Laws 1915, § 13754, the court has no jurisdiction to entertain the appeal.
    2. Evidence — Books of Account — Admissibility.
    In order to entitle books of account to reception as evidence, it must appear that the party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects- of entry.
    3. Same — Admissions.
    The books and papers of defendant, offered in evidence by plaintiff, were admissible as admissions on the part of defendant.

      i. Same — Books of Account — Admissibility.
    A ledger, into which was copied totals from a journal, the original entries being made in small account books and from them transferred to the journal, held, too indefinite to warrant its admission as evidence to sustain a claim based thereon.
    5. Same — Secondary Evidence.
    Testimony as to the contents of books destroyed by fire is competent as secondary evidence.
    6. Same — Material Interest of Witness — Credibility.
    Where the journal and account books had previously been destroyed by fire, testimony by the son of defendant, who copied the items into the journal, as to the contents of the destroyed books, and who had a material interest in the outcome of the litigation, held, not so satisfying and convincing as to warrant the appellate court in setting aside the judgment of the trial court rejecting the claim based thereon.
    7. Partnership — Accounting.
    In a partnership accounting the finding of the court below that the action of one of the copartners in furnishing money and bidding in lumber sold to satisfy a judgment against the copartnership was not open to criticism, but that it safeguarded its interests, held, sustained by the record.
    8. Same — Attorneys’ Fees — Expenses.
    Amounts expended for lawyers and other expenses incurred by one of the copartners, in an effort to protect the interests of the copartnership, held, reasonable and proper charges to be allowed in a partnership accounting.
    9. Same — Interest on Loan — IntSñtion.
    Where money was advanced to a copartnership by one of the partners with the intention that it should be a loan and not a contribution to the capital, interest was properly allowed thereon in a partnership accounting.

      Appeal from Ottawa; Cross, J.
    Submitted June 12, 1919.
    (Docket No. 62.)
    Decided October 6, 1919.
    Rehearing denied December 23, 1919.
    Bill by Munroe, Boyce & Company, a copartnership,, against Michael Ward for an accounting. From the decree entered, defendant appeals.
    Affirmed.

      Lillie, Lillie & Lillie, for plaintiff.

      Ellis & Ellis and M. Thomas Ward, for defendant.
    The learned trial judge who heard this case filed an opinion at the close of the proofs, which clearly and concisely states facts sufficient for an understanding of the issues which are before us for consideration. It is as follows:
    “The bill of complaint was filed in this cause for a partnership accounting. Issue was joined and proofs taken by depositions, before a commissioner, and in-open court.
    “The plaintiff, a copartnership, composed of Stephen L. Munroe, Sherman H. Boyce and Nelson R. Hewlett, of Grand Haven, Michigan, were engaged in the business of manufacturing and selling lumber and timber. Mr. Boyce died in 1904, and Nelson R. Howlett was made executor of his estate. Upon the death of Mr. Boyce, the partnership affairs were not closed, but were continued under the'firm name; Mr. Howlett, as executor, represented the estate of Mr. Boyce.
    “The defendant, Michael Ward, of Harvard, Michigan, and his brother, James Ward, Sr., under the firm name of Ward Bros., had been engaged for many years in buying and selling timber and logging the same. James Ward, Sr., died and Michael Ward acquired the • interests of James Ward, Sr., and continued in the same business.
    “Munroe, Boyce & Co. and Michael Ward entered into an oral partnership agreement, and bought timber land and cut the timber into lumber and sold the same. When the timber from a certain tract was sold, the parties would have a settlement, and each party would share one-half of the profit or loss.
    “In November, 1884, the parties purchased a large tract of timber land in the State of Minnesota, and in 1910 they started logging operations upon this tract.
    “On the 19th day of September, 1910, the plaintiff and the defendant entered into a written contract with Wick O’Connell & Co. to cut and haul the timber on certain parts of the Minnesota lands, for the sum of $6.75 per thousand feet.
    “After operating for a time under this contract it was discovered that the scale of the logs made in the woods was much larger than the scale made at the sawmill, and in the fall of 1911, a new contract was entered into between the parties. By the terms of this contract the final settlement with Wick O’Connell & Co. was to be made after the scale of the lumber at the sawmill.
    “Munroe, Boyce & Co. and Michael Ward had no definite agreement as to just what authority James Ward, a son of the defendant, had in reference to the logging operations, but in a general way it was left to him to look after the interests of both parties in the timber transactions in Minnesota.
    “On December 1, 1911, the plaintiff employed James B. Alverson to go into the woods in Minnesota, and look after its interests.
    “The books of account were kept by James Ward and James B. Alverson. A reference to the books so kept will show that neither party was an experienced bookkeeper. The checks to pay the accounts were signed by James Ward. Reports were made by James B. Alverson to the plaintiff.
    “In the fall of 1913, Wick O’Connell & Company were financially unable to go ahead with their contract, so a new arrangement was made with them by James Ward to guarantee the payment of the bills for the logging job. Thereafter the bills of Wick O’Connell & Co. on the logging job were paid by the plaintiff and the defendant, and charged to the account of Wick O’Connell & Co. Checks for the same were given by James Ward, and the items were entered in the books of account by James B. Alverson or by James Ward.
    “The result of the operations under this arrangement was an increase in the cost of the logging operations over and above the original contract price of $6.75 per thousand feet.
    “A dispute arose with Wick O’Connell & Co. as to the construction of the terms of the written contract and a lawsuit resulted. A judgment was rendered against Munroe, Boyce & Co. and Michael Ward, and upon appeal the same was affirmed by the supreme court of Minnesota. To satisfy this judgment a levy was made upon the lumber belonging to the parties.
    “Disputes arose between Munroe, Boyce & Co. and Michael Ward, and the bill of complaint in this case was filed, and an injunction was issued restricting the defendant from disposing of any of the assets of the partnership, including the lumber on hand.
    “After the bill of complaint was filed, and upon application of the plaintiff, the defendant was ordered to file all the books and papers pertaining to the business of the parties, with the county clerk, so that either party could examine the same.
    “The plaintiff employed the Michigan Trust Company to make an audit of the books. An audit was made by H. W. Fick, an expert accountant, of the books, etc., of the timber transportations for the years 1911 to January, 1915, and the same was offered in this case, being 'Exhibit N.’
    “The report of the auditor was divided into two schedules, marked ‘A’ and ‘B.’ Schedule ‘A’ includes all the items of disbursements which were substantiated by proper invoices, receipts or other written evidence of payment and debit. Schedule 'B’ shows the same accounts as are included in Schedule 'A’ and also includes a list of items which were not substantiated to the satisfaction of the auditor, by proper invoices, receipts or other written evidences of debt and payment.
    “Testimony was taken in regard to all of the items and after a careful consideration of the same, it appears that Schedule ‘B’ is a correct statement of the amount due the plaintiff, with the following exceptions; the proof is insufficient to substantiate the following items:

      July 31, 1914, cash telegrams.................. $3.77
    August 22d, 1914, Dan Campbell................ 21.00
    Checks:
    April 6th, 1911, Postal Telegraph Co........... $2.60
    July 9th, 1912, S. A. Story...................... 7.95
    September 3d, 1913, A. D. Ellefson.............. 10.00
    September 23d, 1913, Thos. Kearney............ 50.00
    December 1st, 1913, James Moonan.............. 207.55
    August 29th, 1913, Thos. Kearney..............114.10
    January 5th, 1915, S. A. Story.................. 1.34
    “These items amount to the sum of $418.31 and ,one-half of this sum should be added to the amount due plaintiff as shown by Schedule ‘B,’ viz.: $9,364.11, making a total of $9,573.26.
    “The testimony shows that the following items listed on page 71, of the report of the auditor, and not listed in Schedule ‘B,’ should be allowed, viz.:
    Aug. 12th, 1914, Marshall Wells Hdwe. Co..... $28.67
    Locke No. 279, for labor........................ 78.85
    Williams No. 280, for labor................... 76.95
    April 3d, 1914, Parker & Ayres, J. 16..........192.00
    October 7th, 1914, Parker & Ayres, J. 68........ 62.00
    January 15th, 1914, Ledger B. Folio 176, C. 125 check 1876 .................................. 6.50
    February 22d, 1914, E. A. Kemp & Son, insurance 302.40
    “These items amount to the sum of $747.37, and one-half of this amount should be charged to the plaintiff and deducted from the sum of $9,573.26, which leaves a balance of $9,199.58, due plaintiff from defendant, together with interest at five per- cent, from March 30th, 1915, to the date of payment.
    “Plaintiff had notice of the change of the contract with Wick O’Connell & Co. before all the payments had been made thereon, and cannot now charge the defendant for the amount of the overpayment of the original contract price.
    “After the bill of complaint was filed in this cause, the judgment obtained by Wick O’Connell & Co. was affirmed by the supreme court of the State of Minnesota, and the lumber levied upon was sold under an execution to satisfy that judgment. Prior to the sale, Munroe, Boyce & Co. endeavored to have Michael Ward raise'his share of the money to pay the judgment, but the defendant failed to raise the money, and to protect the interests of the parties, one of the partners, Stephen L. Munroe, made an arrangement to attend the sale to see that the lumber belonging to the partnership was sold for at least enough to pay the judgment and costs. Mr. Munroe personally bid at the sale the amount necessary to satisfy the execution and the costs of sale. The amount bid was paid by Mr. Munroe, and the lumber was then turned over to him. Afterwards, Mr. Munroe sold this lumber for the sum of $53,234.79, its fair market value at that time.
    “The defendant contends that Mr. Munroe should account to the defendant for one-half of the profits on the sale of this lumber.
    “At the time of the purchase and sale of the lumber, the partnership between the parties had not been dissolved, and Mr. Munroe, a partner, could not make a purchase of the property of the firm at an execution sale, against the interests of the other partner.
    “Testimony was taken as to the amount paid for the lumber, the amount for which it was sold and the expenses thereof, and although Mr. Munroe made the purchase and re-sale in good faith, yet under the law he will be required to account to the defendant for one-half of the amount received by him on the sale of the lumber, less the amount paid to satisfy the execution and the expenses of the sale.
    “The testimony shows that Mr. Munroe incurred the following expenses in looking after the lumber after the same had been attached, until same was finally sold, viz.:
    November 2, 1914, expense to Minnesota........ 870.00
    November 2, 1914, services, Lillie & Lillie......132.85
    August 15, 1915, expenses to Minnesota.......... 75.00
    August 15, 1915, services, Lillie & Lillie........125.00
    August 16, 1915, expenses, S. L. Munroe........ 42.30
    September 9, 1915, telegrams................... 1.90
    September 10, 1915, making lists of lumber...... 2.00
    September 12, 1915, expenses, S. L. Munroe____ 58.54
    September 15, 1915, expenses, S. L. Munroe, Chicago ..................................... 8.50
    September 15, 1915, expenses, S. L. Munroe, Winton ...................................... 54.00 .

      September 15, 1915, services, Lillie & Lillie......$176.43
    September 27, 1915, Mr. Sias, services.......... 15.00
    September 29, 1915, insurance.................. 24.93
    October 1, 1915, interest,....................... 209.74
    October 1, 1915, revenue stamps................ 6.80
    October 6, 1915, John H. Moore, services......187.13
    “These items amount to the sum of $1,190.12, and added to the sum of $33,980.83, the amount paid to satisfy the judgment, make his total expenditures the sum of $35,170.95, and deducting this sum from the amount received for the lumber, viz.: $53,234.79, leaves a balance of $18,063.84. One-half of this sum, or $9,031.92, Mr. Munroe will be required to pay to the defendant, together with interest at five per cent, from September 29, 1915, to the time of payment of same.
    “The tug, boom chains and any other personal property on hand should be divided equally between the parties.
    “During the trial of this case it appeared that defendant was mentally incompetent to transact business and a guardian ad litem was appointed to represent him. Before the conclusion of the case the defendant died and his administrator appeared and defended the case.
    “The partnership being dissolved by the death of the defendant, the partnership affairs should be wound up and closed. The plaintiff will recover costs.
    “The amount of the witness fees of the expert accountant is not determined, for the reason no proof was submitted as to the cost of the same. Proofs may be submitted and the amount of the same will be determined on a settlement of a decree herein.
    “A decree may be prepared for signature in accordance with these findings.”
    Thereafter certain amendments were made to these findings, as follows:
    “Certain amendments to the findings heretofore filed having been proposed, and upon the consideration of the same it appears that the accounts receivable in the sum of $625.29 were charged to the defendant, and the accounts payable of $27.03 were credited as paid by the defendant. One-half the accounts receivable belong to each of the parties, and each party should pay one-half of the accounts payable.
    “It also appears that certain advancements of ’ money were made by the plaintiffs in September and October of 1915 and January, 1916, after the bill of complaint was filed. These items should not bear interest from the date the bill of complaint was filed, but only from the date of the payment of same. This would make a credit on the interest item of $83.64.
    “It also appears that the item of ‘September 27, 1915, Mr. Sias, services, $15.00,’ should be stricken from the findings, as the same appears in the report of the auditor. This correction gives the defendant a credit of $7.50 in addition to the amount due from Stephen L. Munroe.
    “The expert accountant, acting as a witness in the trial of this cause, is not included within the provisions of the statute in regard to employing and paying expert witnesses, therefore no order will be made for the payment of extra fees.”
    From a decree entered in accordance with this opinion and this amendment, both the plaintiff and defendant have filed notices of appeal.
   Kuhn, J.

(after stating the facts). The decree in this cause was signed and filed on the 8th day of February, 1918. The record discloses that the plaintiff’s claim of appeal was dated March 18th, 1918. The first question for us to determine is whether or not counsel for .plaintiff are in a position to claim that they have the right and benefit of an appeal to this court. Section 13754, 3 Comp. Laws 1915, provides that—

“Any party desiring to appeal from the order or decree of the circuit court in chancery shall, within twenty days after the entry of such order or decree, file or cause to be filed a claim of appeal in writing with the clerk of the court where such decree or order, was entered, and shall also within the said twenty days pay a fee of five dollars to the clerk:” etc.

We held in. Guthrie v. Leelanau Circuit Judge, 197 Mich. 321, that the payment of the appeal fee to the register in chancery within twenty days after the filing of the decree was mandatory. The right of appeal is a statutory one, and unless the mandatory provisions of the statute are complied with the court has no jurisdiction to entertain the appeal. See Bolton v. Cummings, 200 Mich. 234; J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Miller v. Johnson, 201 Mich. 535; also Brevoort v. Wayne Circuit Judge, 203 Mich. 388. We must therefore take the case as if no notice of appeal had been filed by plaintiff, and will therefore consider only the questions which are urged by defendant’s counsel for modification of the decree. These questions are thus stated in their brief:

“1. The defendant claims $2,922.05 by reason of money paid .out and expended by Michael Ward during the period named, and if interest is allowed to the plaintiff, the defendant would be entitled to the interest on this money during the same period that the plaintiff drew interest on their money they advanced, but we contend that neither side was entitled to interest.
“2. Defendant also claims and gives evidence tending to show that in the year 1911 Michael Ward had charge of this business in locating roads and a way in which the timber could be gotten out from where it was to the mill where it was sawed; that he expended for that purpose in money actually paid out $831.58. (R. p. 675.) He of course would be entitled also to interest, if the plaintiff was entitled to recover interest on the money they advanced.
“3. Defendant also claims that wrongfully and without cause, and when as a matter of fact there was no considerable money due to the plaintiff, they refused to sell this lumber and thereby kept it over, part of it a year and part of it nearly two years, and a large loss occurred in the carrying charge, insurance and so forth.
“4. It also appears in the case, as we have already mentioned, that instead of paying the judgment recovered in Minnesota and saving expense, that the plaintiff permitted the lumber to be sold at public auction, thereby incurring an expense of over 700, and that that matter should be charged to the plaintiff; also that the plaintiff should stand whatever expenses he made in that behalf for help or otherwise.
“It is also claimed that the lumber on hand at the time of the sale and the time it was bid off by Mun-roe, was worth in the market between $12,000 and $15,000 more than it was sold for by Munroe, and that the plaintiff should account for this lumber at the market value, and one-half of that sum should be paid to the defendant.
“5. It also appears by the evidence that at the time that the plaintiff refused to allow lumber to be sold, that there was not, in fact, anything due to the plaintiff on the operating charges; that after that and after they had their injunction, the plaintiff paid certain charges that had been before that time incurred, and the court allowed interest on the money so advanced, and the interest on the money that had been paid for taxes; that this is unjust and contrary to law, and should be deducted, or credited back to the defendant.
“6. It also appears that Munroe, Boyce & Company hired attorneys for their own use and benefit; attorneys who were representing them in this case; that the attorneys were not hired to represent the defendants in any way, but the court allowed them to bring in those attorney fees and charge them in this case; as an item against the defendant.
“7. It also appears that Munroe, Boyce & Company 'put up a fictitious bill that they never intended to charge against anybody, and brought it in and presented it, and a portion of that was allowed against the defendant; that their excuse for doing it was that Michael Ward charged for what he did in 1911, and that James Ward had his expenses, although there was no evidence to show that he ever charged anything that he did not actually expend for the benefit of the company.
“8. In addition to the above there were certain items of money paid out for freight, labor and like expenses, which are shown in the report of the auditor, which were not allowed to the defendant, and which should be allowed, we contend, in this case.”

The court made an order requiring Michael Ward to produce his books and papers relating to the Minnesota lumber job, which books and papers the accountant desired for certain items to make up his account and report. Among other books was a ledger, which was offered in evidence and known in the record as “Exhibit H.” The ledger was a private book of Michael Ward and was not a record of any partnership transaction. It showed charges against Munroe, Boyce & Co. in the sum of $2,922.05. The ledger was kept by James P. Ward, the son of Michael Ward, who stated that he had entered the balances of certain accounts making up these items in this ledger and that the items were taken from other books, the original entries being made in small account books by his father and transferred by the witness, James P. Ward, to a journal and the totals transferred from the journal to the ledger. These small account books and the journal had been previously destroyed by fire or were lost and were therefore not produced. It is the contention of counsel for defendant that the court erred in disallowing these items, because the ledger furnished adequate proof of the claim against Munroe, Boyce & Co. We are of the opinion that the court reached the proper conclusion in holding that the ledger did not furnish evidence sufficient to sustain the claim of the defendant for the items under discussion. The rule to entitle books of account to reception in evidence was well stated in Countryman v. Bunker, 101 Mich. 219, as follows:

“In order to entitle books of account to reception as evidence, it must appear that the party keeping and producing them is usually precise and punctilious respecting the entries therein, and that they are designed at least to embrace all the items of the account which are proper subjects of entry.”

See, also, Mally v. Excelsior Wrapper Co., 181 Mich. 568; Davis v. Buttars, 201 Mich. 244. We notice that there were no itemized statements made of these amounts in the ledger and that they did not embrace any items of account which were the proper subject of entry. We think that the ledger was entirely too indefinite to warrant its admission as evidence of these claims under the well established rule in this State. The books and papers of Michael Ward were used by the plaintiff simply as admissions on his part, and for this purpose they were clearly admissible.

James P. Ward testified as to the contents of the lost and destroyed books. He attempted to explain from his recollection what the footings of the ledger, entered by him from those books, were made up of in detail. The whole record now being before us, Was this testimony competent and sufficient to establish the defendant’s claim now being urged by his counsel? Unquestionably, the original books having been destroyed, his testimony was competent as secondary evidence to be offered in support of the claim. The question before us for consideration at this time is, however, whether or not this testimony was sufficient to satisfactorily prove the claim and warrant us in setting aside and reversing the findings of the circuit judge with reference to it. It is a question of the credibility of a witness and the reliability of this elass of testimony, standing alone, in support of the account. Mr. Chamberlayne, in his Handbook on Evidence (Students Edition), § 919, very aptly says that a pertinent fact to be considered by the court in weighing this class of testimony is, not only whether—

“the oeclarant was possessed of adequate Knowledge, but whether he was free from controlling motive to misrepresent. This lack of motive to misrepresent, upon which the subjective relevancy of the evidence is based, is taken or assumed to be established by the automatism of habit, the regular doing of an act where the declarant has no motive to misrepresent, but has every reason, in discharge of his business, professional, or official duty, to assert the truth.”

Considering the fact that the witness, being a son of the defendant, had a material interest in the outcome, we are not prepared to say that the testimony offered in support of the claim is so satisfying and convincing as to warrant us, an appellate court, having simply the record before us, in setting aside the judgment of the trial court, who, in weighing the evidence and passing thereon, had the benefit of hearing and seeing the witness upon the witness stand. We are satisfied that the evidence is not sufficient to warrant us in setting aside the trial court’s determination with reference thereto.

What has been said with reference to item No. 1 also applies to item No. 2, as it was sought to prove this item also by the introduction of the ledger account and the testimony of James P. Ward.

Claims Nos. 3 and 4 relate to the action taken by the plaintiff to safeguard the rights of the parties in the lumber which was about to be sold to satisfy the judgment and costs obtained against the parties in the Minnesota courts. We have carefully examined the testimony in reference to these claims and find no merit in them. It clearly appears that plaintiffs did everything in their power to induce the defendant to advance money to satisfy this judgment, but it appears that they did not receive any replies to their letters and telegram sent to Michael Ward in reference to the payment of the judgment or in reference to the sale of the lumber. Everything that Stephen L. Munroe did with reference to the transaction appears to have been done in an effort to safeguard their interest in the lumber, and there is no satisfying evidence that there was any deceit or fraud on his part in the transaction. By taking the step that he did in bidding at the sale and afterwards selling the lumber, he protected 'the rights not only of himself, but of Michael Ward, and by the decree of the court below he has been made to account to Ward for his interest in the funds received from the sale of the lumber.

Criticism is made of the fact that certain charges were allowed by the court because of the fact that Munroe, Boyce & Co. hired lawyers and incurred other expenses in their effort to protect the interests of the parties in the lumber. We have examined these items and think that they were reasonable and proper and were properly charged against the copartnership funds by the court.

Contention is made that the court also erred in allowing interest on certain funds advanced by one of the partners towards the business without an agreement clearly expressed or implied. The general rule is thus stated in 20 R. C. L., at page 1021:

“While it seems impossible to lay down any unbending rule on the question whether interest should be allowed or disallowed on partnership accounts, the general rule appears to be that, in the absence of an agreement to the contrary, interest is not to be allowed on partnership' accounts until after a balance is struck. Hence, if moneys are advanced by a partner, he is not entitled to interest on the amount in the absence of an express agreement on the subject, or something in the usages of business or the surroundings of the parties from which an intent to allow it may be inferred.”

And further:

“If the circumstances indicate that it was the intention of the parties that a partner should advance money as a loan instead of a contribution to the capital, the courts may accord to him a creditor’s right to interest.”

The following Michigan cases sustain the rule that interest will not be allowed in the absence of agreement express or implied: Godfrey v. White, 43 Mich. 171; Sweeney v. Neely, 53 Mich. 421; Thompson v. Noble, 108 Mich. 19. See, also, Young v. Barras, 74 Mich. 343, and Wells v. Babcock, 56 Mich. 276, 282, in which interest was agreed upon. In the most recent case, Mack v. Engel, 165 Mich. 540, where the question was whether interest should be allowed on advances made by a member of a partnership association, limited, the court said the following:

“As between partners, there is no doubt that a partner who makes advances for partnership purposes beyond the amount of his agreed contribution is entitled to collect interest thereon, at the customary legal rate, even in the absence of any express agreement therefor with his copartners. 30 Cyc. p. 444, note 19; Bundy v. Youmans, 44 Mich. 376.
“A member of a partnership association, limited, would certainly be in no worse position as to interest upon advances than a member of an ordinary partnership. 2 Cook on Corporations (6th Ed.), § 692.”

In view of the previous decisions of this court cited above, the rule thus stated may have been stated somewhat too broadly, as it would seem that unless it satisfactorily appears from all the facts, and circumstances in the case that it was the intention of the partners that the moneys advanced should bear interest (which clearly appears in Mack v. Engel, supra), which would thus create an implied agreement, interest should not be allowed in the absence of an express agreement therefor among the partners. In the case before us, considering all the circumstances under which the advances in question were made — that they were made only after repeated solicitation on the part of one of the partners to the other to advance sufficient funds to protect his interest — it would seem that the legitimate inference to be drawn — and we do draw it— from the testimony, is that it was the intention as to the moneys thus advanced that they should be advanced as a loan instead of any contribution to the capital, and that therefore the court did not err in allowing interest on these amounts.

We have examined the other claims of counsel and do not .find that there is anything that would warrant us in disturbing the findings of the circuit judge.

From a review of the whole record we are of the opinion that the decree as made should be affirmed, without costs to either party.

Bird, C. J., and Moore, Steere, Brooke, Fellows, and Stone, JJ., concurred.

The late Justice Ostrander took no part in this decision.


author: Bird, C. J.

text:
    RUPRIGHT v. MUSKEGON CIRCUIT JUDGE.
    1. False Imprisonment — Capias Ad Respondendum — Affidavit— Sufficiency — Prima Facie Case.
    In an action for false imprisonment and abuse of civil process, commenced by capias ad respondendum, a declaration, supported by affidavit, charging defendant with causing plaintiffs arrest and imprisonment without probable cause, and that the proceeding was subsequently voluntarily dismissed, held, to make a prima facie case of false imprisonment.
    2. Same — Abuse of Process — Prima Facie Case.

      A further showing of ill will on the part of defendant toward plaintiff over the title to a gasoline motor that had been patented by plaintiff, and the fact that plaintiff was given his liberty upon condition that he would go away from the county and remain away, held, to make a prima fade case of the abuse of civil process.
    On the question whether the discharge of one accused of crime by an examining magistrate is prima fade evidence of want of probable cause, see notes in 64 L. R. A. 481 and 3 L. R. A. (N. S.) 928.

      Mandamus by Frederick E. Rupright to compel John Vanderwerp, circuit judge of Muskegon county, to reinstate capias ad respondendum proceedings.
    Submitted July 17, 1919.
    (Calendar No. 28,843.)
    Writ granted October 6, 1919.

      Charles E. Misner, for plaintiff.

      Carpenter & Jackson, for defendant.
   Bird, C. J.

On November 23d, one Clifford R. Was-sell, of Muskegon, caused the arrest of plaintiff on a capias ad respondendum and plaintiff was kept in the county jail by the sheriff for a period of four hours. At the end of that time he was. released on his promise to Wassell that he would go and stay away from the county of Muskegon. Later plaintiff’s counsel moved to quash the writ on the ground that the order to hold to bail was not sufficient. During the pendency of this motion Wassell’s attorneys stipulated a discontinuance of the writ and proceedings. This matter being disposed of, plaintiff caused the arrest of Wassell on a capias for false imprisonment and abuse of civil process. Wassell’s attorneys, moved the court to dismiss the writ on the ground that the affidavit for the capias was insufficient. This motion was granted. Plaintiff now asks this court for a writ of mandamus to compel the circuit judge to reinstate the capias.

Several reasons were set forth in Wassell’s motion to dismiss but the one principally relied upon was “because the affidavit does not show or set out any cause of action.” As a basis for the writ plaintiff filed a declaration counting therein on false imprisonment and abuse of civil process, and supported it by his affidavit which shows in substance:

(a) That said Charles R. Wassell caused his arrest on a capias with an order for bail in the sum of $2,000 indorsed thereon without any probable cause for so doing; that he did not furnish bail and was in consequence imprisoned for four hours in the county jail.

(b) That at the end of the four hours’ imprisonment he was taken from the jail and given his liberty on condition that he would leave the county of Muskegon.

(c) That subsequently the ca/pias and proceedings thereunder were dismissed upon application of Was-sell’s own attorneys and plaintiff was discharged.

(d) Plaintiff further makes it appear that the said Wassell was president of the Columbia Motor Company; that the Columbia Motor Company was endeavoring to acquire the title to a gasoline motor that had been patented by the plaintiff, and that much ill feeling existed between himself and the said Wassell on account of the attempt to acquire said motor. Plaintiff shows, by appropriate allegations, that the said Wassell caused his arrest and imprisonment for the purpose of enabling him the better to get control of said motor and said patents.

The declaration filed sufficiently charges defendant with false imprisonment and with abuse of civil process. When plaintiff shows by his affidavit that he was arrested on a capias at the instance of Wassell, that the same was without probable cause upon the part of Wassell and that the proceeding was subsequently voluntarily dismissed, he makes a prima facie case of false imprisonment. Burhans v. Sanford, 19 Wend. (N. Y.) 417.

When plaintiff showed these facts and the further fact that he was given his liberty upon condition that he would go away from the county of Muskegon and remain away, and shows the ill feeling between bim and Wassell over the motor and the promotion of it, we are of the opinion that he makes a prima, facie case of the abuse of civil process. Paulus v. Grobben, 104 Mich. 42; Marlatte v. Weickgenant, 147 Mich. 266; Antcliff v. June, 81 Mich. 477 (10 L. R. A. 621).

' We are of the opinion that the trial court was in .error in holding the affidavit insufficient. Upon the trial court’s attention being called to this opinion the writ of mandamus, will issue, if necessary, to reinstate the proceedings. The plaintiff will recover his ccMs in this court.

Moore, Steere, Brooke, Fellows, Stone, and Kühn, JJ., concurred.

The late Justice Ostrander took no part in this decision.