text:
    BANK OF TUSTIN OF J. M. PERRY & CO. v. TOWNSHIP OF BURDELL.
    1. Taxation — Action to Recover Taxes Paid Under Protest— Statement of Taxable Property — Assessments — Mortgage Tax — Exemption—Specific Taxation.
    In an action brought by a private bank to recover back taxes whicb had been paid under protest, where the plaintiffs introduced evidence that they had made a showing to the board of supervisors that the property included in the capital stock of the copartnership, or an amount equal thereto, was invested in land contracts and mortgages which were exempt from other taxation by virtue of Act No. 91, Pub. Acts 1911 (1 How. Stat. [2d Ed.] § 1979 et seq.), the plaintiffs were not barred from recovery because they had omitted to furnish the supervisor with a sworn statement for purposes of taxation, and the only compliance with this requirement was a written statement prepared and furnished to the village treasurer and produced before the board of review; sworn evidence was not essential unless required by the board of review.
    2. Same — Evidence—Tax Roll — Indorsement.
    Nor were plaintiffs precluded from bringing an action because the tax roll did not contain an indorsement of the protest made by plaintiffs as required by statute; the original tax receipt signed, by tbe county treasurer being offered in evidence and containing a minute of the protest; plaintiffs also testifying that tbe written protest was filed at the time payment was made.
    3. Same — Defenses—State Tax.
    Where the taxes were paid to the township treasurer in January and action was commenced to recover them in February, it is not clear that the right of plaintiffs to recover the State and county tax would be affected by the fact, if true, that the township treasurer had subsequently turned over and accounted for the money received by him for State and county purposes.
    4. Same — Banks and Banking.
    Where the evidence showed that plaintiffs, a banking firm, or copartnership, had invested an amount of their capital stock in mortgages and land contracts, upon which the specific tax had been paid under Act No. 91, supra, no additional tax could be imposed by the township as a personal property assessment.
    5. Same — Constitutional Law — Specific Taxation.
    Said Act No. 91 is valid and not open to the objection that it arbitrarily taxes property without regard to value, or that it is insufficiently uniform, or unfair.
    6. Constitutional Law — Taxation—Classification.
    A law of uniform operation is not unconstitutional because in its practical application it may work to the advantage or disadvantage of persons or corporations organized and doing business, although in the same line, in different capacities, under general or special laws.
    7. Taxation — Copartnership—Banks and Banking.
    That incorporated banks are not entitled to avail themselves of an exemption under the specific tax law is not a sufficient ground for holding that copartnerships may not claim the right; and no controlling distinction exists between such copartnership and a private person or banker who has invested in exempted mortgages and contracts.
    Error to Osceola; Withey, J.
    Submitted October 12, 1914.
    (Docket No. 76.)
    Decided January 4, 1915.

      Assumpsit by the Bank of Tustin of J. M. Perry & Company against the township of Burdell for the recovery back of taxes paid under protest. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      B. N. Savidge, for appellant.

      Howard F. Withey, for appellee.
   Steere, J.

Plaintiff, a private bank, is a copartnership consisting of six members, and is located in the village of Tustin, in defendant township, where for some years it has been engaged in a general banking business, with J. M. Perry cashier and manager. It has a paid-in capital of $16,500 and a surplus of $1,200. The respective interests of its members are not evidenced by certificates of stock, but are shown upon its books, which credit each member of the firm with the amount he invested in said copartnership.

In April, 1913, the supervisor of defendant township assessed plaintiff, under its firm name, for “personal bank stock” at a valuation of $10,000. Plaintiff was also assessed for real estate and fixtures, but the tax upon them was paid without protest, and is not in controversy. Mr. Perry, plaintiff’s cashier and manager, appeared for it before the board of review and made objection to the $10,000 item of personal tax, basing his protest on the claim that the copartnership had invested in real estate mortgages and land contracts an amount equal to, or greater than, its capital, and specific tax had been paid thereon under the provisions of Act No. 91, Pub. Acts 1911 (1 How. Stat. [2d Ed.] § 1979 et seq.). The board of review sustained the assessment as made by the supervisor, manifestly taking the view that a private bank was not entitled to such an offset against its capital. On January 9, 1914, plaintiff paid the tax against this $10,000 personal assessment, filing a protest setting forth the same reasons urged before the board of review. Within 30 days after payment of said tax this action was begun to recover the amount so paid under protest. On the trial a verdict was directed by the court in favor of plaintiff at the conclusion of the testimony, for the entire amount so paid, with interest from date of payment.

Defendant’s most important assignment of error is directed to refusal of the court to direct a verdict in its favor “on the ground that plaintiff was not entitled to have deducted from its property, for the purpose of taxation, any amount invested in mortgages and land contracts by reason of having paid the specific tax on the same.”

It is also claimed that plaintiff was not entitled to urge the foregoing question, because it had furnished the supervisor no sworn statement of its taxable property, as required by statute, and no proper showing was made before the board of review as to the same. It was shown that a statement for taxation purposes which had been prepared and furnished the village assessor was produced before the board of review and consulted in making computations during the discussion. It is admitted no other statement was furnished by plaintiff that year, though it was claimed, and denied, that the supervisor told Perry that the one given the village assessor would do for both of them. When Perry appeared before the board and urged his objections to the tax, no other proof or papers .were offered or asked for except the statement which had been furnished the village assessor. Perry testified:

“My statement as to the amount of money the bank had invested in contracts and mortgages was not questioned by any person, and no person asked for their production.”

It is clear that the assessment as fixed by the supervisor was sustained on the theory that a private bank was not legally entitled to the claimed offset against its invested capital, and not because of doubts or lack of corroborating evidence of Perry’s statements as to the financial condition of the bank and its investments in specifically taxed securities. Conceding that it was necessary to make a showing to the supervisor and board as to property claimed to be wholly exempt from general taxation, and to appear for that purpose before said board of review, we are satisfied that, under the circumstances disclosed, there was sufficient compliance with such requirement. In Griswold v. School District, 24 Mich. 262, it was said:

“We also think sworn evidence was not essential, unless called for by the board. That body could act upon personal examination, or any evidence which to them was satisfactory.”

It is also claimed no competent proof was made of a proper protest at the time the taxes were paid in January, and error is assigned on refusal of the court to sustain defendant’s objections in that particular. The tax roll offered in evidence did not have minuted upon it a statement that the tax was paid under protest, as required by statute, but the original tax receipt signed by the treasurer was produced and identified. It bore a minute of the protest indorsed upon it, in substance the same as urged before the board of review. Perry testified without contradiction that when making payment he filed a protest, following which this occurred:

“Q. You have already testified you made and filed a written protest at the time you paid the tax?

“A. I did; I hold the original protest in my hand.

“Counsel for Plaintiff: I offer the protest just referred to by the witness in evidence.

“Counsel for Defendant: I object to it as incompetent, immaterial, and irrelevant, and not sufficiently identified. (Objection overruled; exception noted.)”

It is urged that this was error, because there was no proof that the paper came from the treasurer's office, where the law requires it to be filed. We discover no error in the ruling complained of.‘

Objection is urged that in any event the directed verdict was excessive as to State and county taxes because, presumptively, they had been paid over by the township treasurer, and were not in his hands at the time this action was brought. These taxes were- paid to him under protest, on January 9, 1914, and action for their recovery was begun on February 6, 1914. He had until the 1st of March to collect the taxes upon his roll and account in full for all moneys received by him, and it would be a scant presumption under the circumstances of this case that he had disposed of those taxes when suit was commenced. Neither is it clear that plaintiff’s rights would be affected had he previously paid them over to the county treasurer. Though State and county taxes were not involved in Byles v. Township, 52 Mich. 612 (18 N. W. 383), in holding a township liable for school and highway moneys paid over to the proper authorities, it was said:

“There is an apparent hardship in holding the township liable for moneys thus paid over; but, on the other hand, when the plaintiff traces his moneys to the treasury of the township, it would seem plain that a right had accrued in his favor which could not be discharged by subsequent action of the township authorities to which he was in no sense a party. The defendant has received his money, and must account to him for it; not to any one else.”

It is also questionable whether this objection is covered by any assignment of error.

Defendant’s other assignments of error, which have all been carefully examined and considered, are not thought of sufficient importance to call for any discussion apart from the main question here involved, which is, as before noted, whether plaintiff is entitled to have deducted from its capital for taxation purposes its investments in specifically taxed securities, under section 10 of the specific tax law, heretofore mentioned, which is as follows:

“That class of credits other than the mortgages given prior to January 1st, 1912, upon which this act imposes a specific tax shall be exempt from further general taxes under the laws of this State. All acts and parts of acts in contravention of the provisions of this act are hereby repealed.”

Plaintiff’s fiscal condition at the time of the assessment was as follows:

The amount of money on hand and in transit....................................$17,792 96
The amount of funds in the hands of other bankers, brokers, and other persons, subject to draft ............................. 1,067 71
The amount of checks and other cash items not included in either of the preceding items .............................. 1,193 69
The amount of bills receivable, discounted or purchased, and other credits, due or to become due ..................... 64,806 83
Aggregate personal assets ..................$84,861 19
Amount of deposits made by other parties.. 69,192 69
The amount of accounts payable, other than current deposits ......................... 3,000 00
Aggregate liabilities .......................$72,192 69
Amount invested in mortgages and contracts specifically taxed ..................$17,552 30

Perry testified to the foregoing in connection with various exhibits put in evidence. It was conceded in the record that the total of exhibits introduced showing amount invested in mortgages and contracts “is as testified to by Mr. Perry, and that the specific tax had been paid on all.” Evidently, if deduction is made for the amount of plaintiff’s funds invested in mortgages and contracts, upon which said Act No. 91 imposes a specific tax, its liabilities exceed its assets.

Counsel for defendant in his brief points out that, under section 19 of the general tax law (section 3842, 1 Comp. Laws [1 How. Stat. (2d Ed.) § 1787]), the method of arriving at the assessable value of the property of banks whose capital is not represented by shares of stock, and of every private banker or stock jobber, is by deducting the aggregate of all accounts payable, including deposits, from the aggregate of “the money on hand and in transit, the amount of funds deposited with other banks, the amount of checks and cash items not included in. the preceding items, and the amount of bills receivable, discounted or purchased, and other credits due or to become due,” and argues:

“This statute by its positive terms excludes from consideration other debts or credits if any exist, and excludes the exemption which plaintiff now claims for the amount invested in real estate mortgages. If not,' if Act 91 of the Pub. Acts of 1911 repeals section 3842 and gives to private banks the exemption claimed, the discrimination in favor of private and against incorporated banks renders the act unconstitutional and void.”

The mortgages and contracts involved here are unquestionably of the class designated “other credits due or to become due.” To what extent this section should be taken into consideration is questionable, since in Detroit Citizens’ St. Ry. Co. v. Common Council, 125 Mich. 673 (85 N. W. 96, 86 N. W. 809, 84 Am. St. Rep. 589), said section 3842 is held unconstitutional, because it provides for doubly taxing the property of corporations. But whether such holding applies solely to that subdivision of the lengthy section touching companies and corporations only in relation to which the scheme of taxation is designated as defective and in violation of the' Constitution, we need not consider, as the rule for construing and applying said Act No. 91 in connection with any similar provisions in the general tax law has been announced in Northern Assurance Co. v. Common Council, 176 Mich. ”80 (141 N. W. 904). The court there had under consideration Act No. 235, Pub. Acts 1903, which directs the method of determining the net personal assets of insurance companies for purposes of taxation. It concludes as follows:

“In computing the taxable property of insurance companies organized under the laws of this State, the value of the real property on which a company pays taxes shall be deducted from its net assets above liabilities, as determined and shown by the last report of the commissioner of insurance, including in such liabilities the legal reserve required by the laws of this State, or the regulations of the insurance department, and the remainder shall be the personal property for which the company shall be assessed.”

Counsel there contended that, under such positive mandate, with the exclusion distinctly designated, no deduction for exempt property could be made from an assessment so determined, unless the exemption appeared upon the face of the commissioner’s report. It was held that the method so prescribed should be followed in the first instance to arrive at assets otherwise liable to assessment, and it then became—

“the duty of the assessing officers, acting under their general powers as assessing officers, to determine what portion, if any, of such assessment is exempt by law from taxation, and, when it is ascertained that the assessment includes securities exempt by law, the deduction should be made” (citing Union Trust Co. v. Common Council, 170 Mich. 692 (137 N. W. 122).

In the latter case, which held that specific tax-paid mortgages and contracts are also exempt from city taxes, the exemption being from all ad valorem taxation, the constitutionality of Act No. 91 was attacked, on the ground that the rule of uniformity was violated by provisions exempting from all taxation mortgages and land contracts held by educational, charitable, and religious societies. With this contention the court did not agree, citing People v. Auditor General, 7 Mich. 90, in which it is said:

“The legislature has the power of prescribing the subjects of taxation, and of exemption, but it cannot arbitrarily tax property according to locality, kind, or quality, without regard to value (Sedg. on Stat. 557), but in this respect it must act by uniform rules.”

Act No. 91, in itself, certainly does not offend in any of those particulars. By its terms it is of general application and by uniform rule, with the exception referred to, which was construed as within legislative power. It plainly provides that securities of the kind mentioned, wherever and by whomsoever held, upon which the specific tax has been paid, cannot be subjected to ad valorem taxation. Such assets, whether owned by a corporation, a copartnership, or an individual, are nonassessable.

A law is not unconstitutional because in its practical application it may work to the advantage or disadvantage of persons or corporations organized and. doing business, though in the same line, in different capacities, under other general or special laws.

The contention that plaintiff is not entitled to the benefit of this law because incorporated banks under the laws applicable to them are precluded from availing themselves of it, and, as a result, private banks have a decided advantage over incorporated banks in loaning money on mortgages and contracts, is an argument applying, and properly appealing, rather to that branch of the government which makes and repeals the laws than to the courts whose duty it is, taking the laws as they find them, to declare and apply them. Regularly chartered banks incorporated under the general banking law and supervised by the State banking department have imposed upon them various duties, limitations and expenditures to which private banks are immune. Plaintiff has no entity peculiar to the business of banking, nor even any distinct legal entity with like defined rights and duties as an artificial person in law. Its general rights and duties are the same as any private individual who might engage in the banking business. Its copartnership relations, based on a contract between themselves, have their legal existence as to others under the law of agency, and are no different than if the same persons had each contributed a certain amount and entered upon the prosecution of any other business enterprise on a joint account. The assumed name under which their business is prosecuted is in law only a conventional mode of collectively designating the persons who have so associated together. Any change in membership gives the name a new significance and gives rise to changes in rights and obligations, as between themselves and the general public.

In the application of this law we conclude that no' controlling distinction can be drawn between plaintiff and any private person who has invested in such securities, and, as the law now stands, we are impelled to hold that the learned judge rightly construed and applied it.

The judgment is affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Bird, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Bird, J.

license: Public Domain

text:
    MILLER v. PETER.
    1. Judgment — Res Judicata — Accounting.
    Where a decree in chancery declared a deed to be a mortgage, and fixed the amount and ordered an accounting of the rentals, and the intestate owner had been a party • and was afforded an opportunity to be heard as to her claim that she was merely a surety and that the liability had been reduced by payments or otherwise, the decree was conclusive, in a subsequent hearing and accounting, upon the estate of the intestate, in which later proceeding the issue related to the effect upon the amount of indebtedness of certain releases and payment received therefor by the mortgagee that were considered by the court of chancery in entering its former decree and by the Supreme Court on appeal.
    2. Same — Evidence—Rental Value.
    Where defendants’ claim that the rental value of a farm was fixed at an unreasonably low figure and there were numerous witnesses sworn on either side whose testimony was greatly in conflict, ranging from nothing to $720 and averaging on the one side about $641, and about $136 on the other, and it appeared that the soil was well adapted to raising garden truck and live stock, held, that the yearly rental should be fixed at about $2.50 per acre in addition to taxes and insurance premiums, or about $400 per annum, instead of $200, as the chancellor determined upon the hearing below.
    Appeal from St. Clair; Law, J.
    Submitted January 13, 1914.
    (Docket No. 63.)
    Decided January 8, 1915.
    Bill by Anna T. Miller and another as administrator against Roxana Peter and others, administrators of the estate of William Petér, deceased, for an accounting and to declare a deed to be a mortgage. The case was heard and an appeal taken by complainant to the Supreme Court which remanded the cause for an accounting. Miller v. Peter, 158 Mich. 336 (122 N. W. 780). From a decree for defendants complainant Albert Miller, administrator, appeals.
    Modified and affirmed.

      John E. Kinnane and Dudley J. Kavanagh (James H. Kinnane, of counsel), for appellants.

      James E. Duffy, for appellees.
   Bird, J.

The bill of complaint in this case was filed to have a deed absolute upon its face declared a mortgage, for permission to redeem therefrom, and for an accounting. In the trial court the bill was dismissed. On appeal in this court the deed was declared to be a mortgage, and the amount fixed as due thereon was $4,000, and an accounting was ordered, covering the period of Mr. Peter’s possession of the premises. 158 Mich. 336 (122 N. W. 780). The accounting has taken place and the case is now before us on that question. The deed which was declared to be a mortgage, conveyed a farm of 160 acres situate within a mile from the village of Algonac, in St. Clair county. William Peter took possession of the same on May I, 1894, under his supposed deed, made improvements thereon, and received the income therefrom. For the purpose of determining the state of the account between the parties, this accounting was ordered. A large amount of testimony was taken bearing on the rental value, the improvements made, and the waste committed thereon, during that period. This testimony persuaded the chancellor that William Peter’s estate should be credited with the following items: By the amount adjudged by this court to be due on the mortgage, $4,000. By interest on the same from May 1, 1894, to May 1, 1912, at the rate of. 8 per cent. By betterment of land by clearing, ditching, and fertilizing, $300. By betterment of farm by reason of fences erected and repaired, $400. By betterment of buildings by reason of repairs and additions thereto, $500. It was further found that the estate should be charged with a yearly rental of $200, plus the taxes and insurance. Also the sum of $218.50 on account of waste committed. Two questions are raised and argued by appellant:

(1) The refusal of the chancellor to credit complainants with certain moneys received by the mortgagee for releases of two parcels of real estate owned by Lewis, and included in the principal mortgage.

(2) Exceptions to the finding of the chancellor upon different items of the account.

(1) The $4,000 which this court found to be due on the mortgage to the Peter estate was incurred by Jennie Miller as surety. The principal debtors were Miller and Lewis. It is the claim of complainant that during the period of her suretyship, William Peter, mortgagee, released two parcels of real estate covered by the principal mortgage, to which mortgage complainant’s was collateral, and that now the amount of the lien upon her lands should be reduced by the amount received for such releases. The defendant’s answer to this is that the question is foreclosed because it was pressed and passed upon at the first hearing of the case before this court. The opinion of this court makes reference to it in the following manner. We quote from the statement in the opinion:

“On the 22d day of August,- 1889, he had released to Lewis a part of the property covered by the mortgage given by him. On the 3d of June, 1890, he made a further release of property covered by the Lewis mortgage. The evidence is not very clear as to the occasion for this, although there is testimony tending to show that the reason for this release was that the property before it was mortgaged had been sold on contract, and that it was released in order that the parties equitably entitled to the property might secure the same.”

In the opinion it is said:

“The same thing may be said of the releases of the land of Mr. Lewis. These releases had been made prior to this adjudication, and had operated as payments, at least pro tanto, at the time the decree was made, if at all, and yet there is no claim of any fraud, and no attempt has been made to set aside that decree by a direct proceeding, nor has any attack been made upon it for many years.”

The foregoing excerpts from the statement and opinion of the case clearly show that the question of the releases was before the court and passed upon. This view is also strengthened by the fact that the accounting appears to have been the only question left open, and the court indicated, by specific language, what it intended the accounting should cover. It was there said:

“We think, therefore, that this deed should be held as a security for the sum of $4,000, and complainants should be permitted to redeem upon the payment of that amount, with interest. The defendants should be charged with the rental value of the property, less expenditures made in the ordinary course of husbandry.”

But it is argued that the administrator of Jennie Miller’s estate was not, at that time, a party to the proceeding, and that if the question were then passed upon, it could not bind him. At the time of the hearing in this court, the administrator was not a party. He was brought in, however, before the accounting began, but the fact must not be overlooked that Jennie Miller herself was made a party to the foreclosure proceedings, and had an opportunity to be heard at that time if she chose, with reference to the releases.

It is still further argued that the question is one of accounting, and therefore should have been considered. We cannot agree with this view. It is not so much a question of accounting as it is one of liability. If it were settled that complainant should be credited with the sums received for the releases, then it would become a question of accounting and not till then. The language of this court in submitting the question for accounting will not permit the determination of any such question of liability.

We think the record shows that this question is res adjudicaba, and that the chancellor was right in refusing to again consider it.

(2) Complainants argue that the rental value was fixed in the decree far below its real rental value, that too small a sum was charged against the estate for waste committed during the period, and that practically nothing ought to be allowed for improvements. Most of the contention arose over the rental value of the premises. Ten witnesses who lived in the vicinity of the premises, and who appeared to be qualified to speak thereon, testified for the complainants and fixed the yearly rental in sums ranging from $480 to $720, or an average of $641. Twelve witnesses testified for the defendants, and they fixed it in sums ranging from $80 to $200. One said it was worth nothing. The average price fixed by defendants’ witnesses was $186.25.

The farm in question is located within a mile from Algonac, a village of 1,800 inhabitants, and less than 50 miles from the city of Detroit. It is described by the witnesses as having a comfortable dwelling house thereon, a large barn 100x35 feet, commodious stock sheds and other small outbuildings, two windmills, and good fences. It.appeared to be the unanimous opinion of complainants’ witnesses that the soil is well adapted for raising live stock or “garden truck.” This does not appear to be denied by defendants’ witnesses, but they assert that it is a poor grain farm. Considering these conditions in connection with the opinion evidence, together with the fact that the farm has had the advantage of both interurban and water transportation to the city of Detroit, where its products could be quickly and cheaply marketed, we are convinced that the yearly rent fixed by the chancellor at $200, plus the taxes and insurance, should be increased to $400, plus taxes and insurance. This would make the annual rent $2.50 per acre, plus the taxes and insurance, which would add approximately 50 cents more, making the total yearly rent $3 per acre. During the first half of the period of nine years, from 1894 to 1903, $3 per acre would doubtless be very near its full rental value, but during the latter nine years of the period, it would be somewhat less than a fair rental value. An average of $3 for the full period does not appear to be unreasonable rent.

It appears from the briefs of counsel that since the accounting was ordered the dwelling house has been destroyed by fire and certain insurance collected by the defendants. Inasmuch as this matter is not properly before us, it should be called to the attention of the trial court.

The decree, with reference to rental value, will be modified as herein indicated, and in all other respects it will be affirmed, with costs of this court to complainants.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


text:
    CURTIS v. MUELLER.
    1. Mortgages — Trust Deeds — Foreclosure — Cancellation of Instrument.
    Complainant exchanged his farm for property owned by the defendants in Chicago. Both properties were subject to mortgages. As a part of the consideration defendants executed promissory notes for one thousand dollars payable monthly. At the end of six years, defendants having paid upwards of seven hundred dollars, complainants filed a bill to foreclose the trust mortgage which had been executed as a part of the transaction to secure the payment and performance of the exchange contract. Defendants claimed that they executed the trust instrument, if at all, in ignorance of its contents; that the attorneys conspired together with complainants to defraud them and asked that the court cancel the trust deed. There was evidence tending to support complainants’ claim, on review of which, held, that the trust deed was understanding^ executed and that defendants were not entitled to the relief prayed.
    2. Foreclosure of Mortgages — Contracts — Validity — Stipulation for Attorney Fee.
    The courts of Michigan will decline to enforce a provision in a mortgage executed in the State of Illinois providing and stipulating for a solicitor’s fee of one hundred dollars if foreclosure should occur, provisions of such nature being held by the courts of this State to be contrary to public policy and therefore unenforceable.
    3. International Law — Conflict of Laws — Attorney Fees— Mortgages.
    Although, as a general rule, contracts valid in the State in which they are made are valid in the courts of any other State or country, contract provisions, which are in violation of public policy of the State in which the proceedings are commenced, are considered to be an exception to the general rule.
    Appeal from Van Burén; Des Voignes, J.
    Sub' mitted January 8, 1914.
    (Docket No. 16.)
    Decided January 29, 1915.
    Bill by John Curtis against Charles J. Mueller and another to foreclose a trust deed. From a decree for defendants, complainant appeals.
    Reversed.

      David Anderson, for appellant.

      T. J. Cavanaugh and L. J. Lewis, for appellees.
   Bird, J.

In May, 1905, defendants exchanged their “flat” property in Chicago, for complainant’s farm in Van Burén county. Before the exchange was made, each inspected the other’s property. The parties met in the office of B. F. Mitchell, a Chicago lawyer, where some of the papers were made and the deal finally closed. Both sides were represented by counsel. Both properties were conveyed subject to mortgage. In addition to the $600 mortgage on the farm assumed by defendants, they executed 100 promissory notes of $10 each, payable monthly to Mitchell as a creditor of complainant. These notes were afterwards indorsed to complainant. To secure the payment of these notes, it is claimed a mortgage or trust deed was at the same time executed, acknowledged, and after-wards recorded. Payment of the notes was regularly made for nearly six years, and until 70 of them had been paid, when defendants claim they discovered for the first time the existence of the trust deed. In reply to complainant’s bill to foreclose the lien, the defendants assert that their signatures to the trust deed are forgeries, but that, if their signatures are genuine, they were fraudulently induced to sign it without knowing or intending to do so. They also charge that complainant and the attorneys who represented the parties conspired to defraud them in the deal, arid they pray for affirmative relief. The chancellor who heard the case found there was no lien, but refused to grant defendants any other relief. Complainant alone has appealed from the decree.

Upon the hearing complainant produced the trust deed, which appeared to be executed and duly acknowledged by defendants before a notary public. Complainant testified that he saw defendants sign it, and Albert Pudewa, the attorney who acted for the defendants on that occasion, testified that he explained the trust deed to defendants and saw them sign it. Three witnesses who qualified as experts on signatures gave, it as their opinion that the signatures on the trust deed were the same as those on the notes. Upon the offer of defendants, a large amount of testimony was taken bearing upon the relative value of the two pieces of property, and counsel figure out that, while complainant received equities in the Chicago property worth upwards of $5,000, the defendants received little or no equity in the farm property.

The evidence of relative value is not very helpful in determining whether there was a lien created to secure the payment of the notes. If defendants were denying that the notes, as well as the trust deed, were genuine, such evidence might have some bearing on the question as to whether complainant did not receive full value for his property, independent of the additional $1,000. But there is no such claim. The defendants concede that the $1,000 item was talked over, and that thej consented to it, as a part of the consideration for the farm. They admit they signed the notes and afterward paid 70 of them. Under these concessions, we can see little or no relevancy in the testimony of relative values.

We have, then, the testimony of complainant and Mr. Pudewa that the trust deed was signed by defendants in their presence. On the other hand, we have the testimony of defendants that they did not sign it — at least knowingly. If the question were to turn on this testimony alone, it perhaps might be said that the complainant had failed to discharge the burden of proof which rested upon him, but when we add to it the testimony of the experts and the force of the official certificate of Susie Garrett, the notary public, and consider that in sales of real estate it is usual for vendors to demand, and vendees to consent to liens for unpaid purchase price, we are carried to the conclusion’ that complainant has discharged the burden of proof and established his case. To hold that a lien was agreed upon will not increase the indebtedness, and, inasmuch as the admitted debt is for purchase money, no radical change will occur in the legal situation, as an equitable lien would doubtless arise in favor of complainant for the balance of the purchase money. Carroll v. Van Rensselaer,. Har. (Mich.) 225; Dunton v. Outhouse, 64 Mich. 425 (31 N. W. 411).

The charge that a conspiracy existed between complainant, Mitchell, and Pudewa to defraud defendants out of the $1,000 evidenced by the notes is not sustained by the evidence. It has little, aside from suspicion, to support it, and we think that, so far as the record discloses, the attack upon the professional conduct of Mr. Pudewa was unwarranted. Nothing appears, aside from insinuations and suspicions, to show that Mr. Pudewa was in any way disloyal to his clients.

The trust deed provides for a reasonable attorney fee in the event of foreclosure, whether in law or equity, and stipulates that $100 is a reasonable fee. The question now arises whether the courts of Michigan will enforce this provision. Such provisions have been frequently declared by this court to be against public policy, and that they will be enforced only when permitted by statute or rules of court. Bullock v. Taylor, 39 Mich. 137 (33 Am. Rep. 356); Kittermas ter v. Brossard, 105 Mich. 219 (63 N. W. 75, 55 Am. St. Rep. 437, and cases).

The real question, however, is whether a contract made in the State of Illinois and valid there will be enforced by the courts of Michigan, notwithstanding that in the latter State its enforcement would be against public policy. It is not made quite clear by the record whether such a stipulation is valid in the State of Illinois, but, assuming that it is, our conclusion is that the stipulation is not enforceable in the courts of this State.

While the general rule is that a contract valid where made is valid in the courts of any other country or State where it is sought to be enforced, there are exceptions to the rule, and one of them is where the contract violates the public policy of the State of the forum. 9 Cyc. p. 674; Seamans, Receiver, etc., v. Temple Co., 105 Mich. 400 (63 N. W. 408, 28 L. R. A. 430, 55 Am. St. Rep. 457); Johnston v. Rogers, 19 Ky. Law Rep. 1272 (43 S. W. 234).

By reason of the views herein expressed, the decree of the trial court will be reversed, and one entered providing for the foreclosure of complainant’s lien for the unpaid portion of the notes. The complainant will recover his costs in this court.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Ostrander, J.

text:
    BOEING v. FORDNEY.
    1. Interest — Compound Interest — Contracts — Profit Sharing Agreement.
    Defendant F. entered into a joint arrangement with, one B., since deceased, for the purchase of certain lands upon a profit sharing basis. The deceased was to and did finance the purchase of large holdings of property, and it was provided by a written instrument, executed by both parties, that title was to be taken in the name of the deceased, who agreed to convey to the second party, the defendant, one-third interest in the lands upon the payment of one-third of the cost, which, they agreed, should include the purchase price, taxes, and interest on all sums at the rate of seven per cent, per annum. For a considerable period the parties engaged in a joint venture of the said nature and in so doing the deceased, at various settlements of the joint business affairs, without any objection on the part of the defendant, computed interest at seven per cent, per annum, compounding it annually; held, that they were bound by the express provisions of the writing that interest should be computed annually and not compounded, in a suit for an accounting.
    2. Same — Estoppel—Mistake.
    Defendant’s knowledge that his coadventurer borrowed funds to carry on the operations and paid interest on the loans at frequent intervals was not a sufficient ground for holding that the defendant was estopped from claiming the benefit of the contracts.
    3. Mistake — Mutuality—Joint Venture — Interest.

      Held, in a suit for an accounting and for the correction of a contract or contracts between decedent and the defendant, that the evidence did not show a mutual mistake in drafting the contracts, which complainants asked to have reformed by changing a provision for annual interest to compound interest.
    4. Accounting — Statement of Account — Joint Venture.
    In stating an account between complainants and defendant, who purchased lands upon a joint profit sharing arrangement, where it appeared that a considerable portion of the property had been sold and transferred a number of years prior to the suit, the proper method of computation is to ascertain the actual cost of the property, determining the amount of the investments and interest at the contract rate and applying thereon the total amounts received for land which was sold, computing interest on the balances at the agreed rate, treating the investment as paid with whatever was received from the purchase price and ascertaining the profits, if any, as of that date. Decedent, who had received back the entire amount invested, with interest, should account to the defendant precisely as if he had acted as agent for its collection. Interest is chargeable in favor of defendant only from the date of the demand made by him.
    Appeal from Wayne; Hally, J.
    Submitted June 8, 1914.
    (Docket No. 31.)
    Decided January 29, 1915.
    Bill by William E. Boeing and Rudolph Ortmann, executors of the estate of Marie M. Owsley, deceased, against Joseph W. Fordney and others to correct an alleged mistake in certain written contracts and for an accounting. From a decree for defendants, complainants appeal.
    Modified and affirmed.

      Beaumont, Smith & Harris (William W. Gurley and Howard M. Carter, of counsel), for complainants.

      Keena, Lightner, Oxtoby & Oxtoby, for defendant Fordney.
   Ostrander, J.

Defendant Fordney presented against the estate of Marie M. Owsley, deceased, a claim for $22,547.06, based upon two written instruments. The executors of the estate thereupon filed their bill against him and the commissioners on claims, based upon the contention that the claim involved partnership matters or the matter of a joint adventure which can be fully disposed of only in a court of equity, and that the instruments themselves should be reformed. The answer of defendant Fordney denies the material allegations of the bill — the existence of a partnership, the right to reformation, the necessity for an accounting. In effect, it denies the jurisdiction of the court, but, if jurisdiction is retained, asks for affirmative relief. The decree recites that the parties have consented in open court to settle and determine in this suit all of the matters put in issue, and adjudges that the bill be dismissed, the complainants pay to Fordney a certain sum of money, the amount to be determined by a method of ■computation stated in the decree; that the undertakings evidenced by the written instruments be specifically performed; that complainants convey to defendant Fordney an undivided one-third of certain lands in California; and that upon the filing by the complainants of a certain bond the commissioners on ■claims be perpetually enjoined from passing on the .said claim and the probate court advised to proceed to administer and close the estate. The bond' was approved and filed in conformity with the terms of the decree.

The formal beginning and the recited inducement in one of the instruments above referred to is:

“This agreement made this thirteenth day of September, A. D. 1887, between Wilhelm Boeing, of the city of Detroit, Michigan, party of the first part, and Joseph W. Fordney, of the city of Saginaw, Michigan, party of the second part, witnesseth: Whereas, said second party has been instrumental in exploring, estimating, and purchasing with the moneys of the first party lands in the State of California, and has furnished his experience and part of his time to that end; and whereas, the lands, described below _ have been bought on the strength of said exploration at the price, including expenses as mentioned below, and said first party having furnished the necessary funds for the purchase of said lands, and has. taken the title thereto in his own name: said lands are in the State of California, and described as follows, to wit: * * * The total cost of the above-described lands this day is ninety-nine thousand eight hundred and twenty-four dollars thirty-seven cents ($99,824.37).

“Now, therefore, be it known, that said first party, in consideration of the sum of one ($1) dollar to him in hand paid by said second party, the receipt whereof is hereby acknowledged, and other considerations above refererd to, hereby declares, that he holds said lands for himself and said second party upon the agreement and understanding as follows, to wit:

“That said first party will deed and convey to said second party an undivided one-third (1/3) interest in said lands upon payment of one-third (1/3) of the cost thereof.^ An estimation of such cost will include purchase price, taxes, and assessments paid by said first party, with interest computed on all sums at the rate of seven (7) per cent, per annum; that such conveyance shall be made to said second party, upon the condition and provision that he shall not sell or transfer his interest in this contract or in said lands until he has first offered to sell and assign such lands or interest to said first party, giving him a reasonable time to accept or decline such offer, and all sales and transfer of said lands or contract by said second party shall be subject to the above stated and reserved right in the first party to purchase the same; and it is further understood and agreed that the said first party before selling said lands shall offer to sell and convey the same to said second party, giving said second party a reasonable time to accept or decline such offer. Said lands were purchased for the purpose of selling the same for mutual profit, and it is understood and agreed that all profits or losses made or sustained in the sale or disposition of said lands, or in defects of titles, shall be divided or paid by and between the parties hereto upon the basis of two-third (2/3) interest in said first party, and one-third (1/3) interest in said second party.

“This contract is executed in duplicate, each party holding an original copy, and it is agreed by the parties hereto that no assignment, sale, pledge, or transfer of the contract held by either of the parties mentioned herein, or transfer of the interest of either of the parties in the premises above described, shall be of any validity or force whatever, unless such assignment, sale, pledge, or transfer be made on the other contract held by the remaining party, and by his consent in writing indorsed thereon.”

The other instrument, designated in the bill Exhibit B, is in form and substance like Exhibit A, except that the parties of the first part thereto are Wilhelm Boeing and James T. Keena, who took the title in their joint names. It is charged in the bill that for many years previous to the execution and delivery of these contracts Wilhelm Boeing and Joseph W. Fordney had been engaged as partners or quasi partners in the purchase of timber lands in Michigan and elsewhere, Boeing furnishing the money, Fordney buying the land therewith, usually taking title in Boeing’s name; that Boeing paid the expenses of exploring, estimating, and acquiring the lands and the taxes and other expenses after they were acquired.

“That under the terms of said partnership, or quasi partnership, said Boeing was entitled upon the sale of the lands so purchased to a return of the purchase price, the taxes, and other expenses paid by him, and as a part of his contract was also entitled to interest thereon at the rate of 7 per centum per annum, compounded annually; that after the payment of said purchase price, taxes, expenses, and compound interest as aforesaid, said Boeing and Fordney shared in the loss or profit, as the case might be, in the proportion of one-third to the said Fordney and two-thirds to the said Boeing; that said Fordney and Boeing in the conduct of said business acted as agents for each other and for both; that there was a community of interest in both profits and losses, and that there was a community of interest in the land purchased as aforesaid.

“That your orators have been unable to find any written articles of partnership between said partners, or quasi partners, but that it was the usual custom of said Boeing and Fordney, after a series of purchases of timber lands as aforesaid, to make a written •agreement between themselves with reference to the lands thus previously purchased, all of which agreements were similar, or substantially similar, in character to said Exhibits A and B hereto attached; that such agreements, however, as your orators are informed, believe, and charge, did not set forth and did not pretend to set forth all of the contract relations between said Boeing and Fordney in the purchase of said lands.

“That from time to time during the course of said partnership dealings, both before and after the execution and delivery of said Exhibits A and B, said Boeing and Fordney had numerous settlements between themselves _ as to such partnership or quasi partnership, and in every instance said settlements were made upon the basis of the allowance to said Boeing, as a part of his said profit, of interest at seven per cent, per annum compounded annually.

“That, as your orators are informed, believe, and charge, said Fordney began making purchases of land described in said Exhibits A and B some time in October, 1886, or nearly one year previous to the execution and delivery of said contracts; that said Fordney went to California and purchased such lands as he saw fit, the money being furnished from time to time and sent to him by said Boeing in advance of such purchases; that said Boeing remained in Detroit the entire time that said purchases were being made; that said California purchases were made beginning some time in October, 1886, and extended over a period of from eight to ten months, and the land was purchased from 15 or 20 different owners; that during this period said Boeing sent to said Fordney in California, for the purpose of said partnership or quasi partnership purchases, more than $160,000, substantially all of which was used by said Fordney in said partnership or quasi partnership business.

“That the lands set forth in said Exhibit B were purchased by said Fordney in the same manner as those described in said Exhibit A, the money being forwarded to said Fordney by said Boeing, but said James T. Keena was permitted to contribute to the purchase of and was given an undivided one-third interest in the lands thus purchased, the consideration paid by said Keena amounting to $20,000, or thereabouts; that, notwithstanding this fact, said Boeing and Fordney, as between themselves, included their interests in these purchases in and as a part of their general partnership transactions and dealings, and as a part of their partnership assets.

“That said Wilhelm Boeing during his lifetime carried said lands set forth in said Exhibits A and B, paying all expenses and taxes and other charges thereon, subsequently collecting from said Keena his pro rata thereof, so far as the lands described in said Exhibit B are concerned.”

The bill then charges the death of Boeing in the year 1900, before which time he conveyed to his wife, Marie M. (now Owsley), also since deceased, .the lands in the agreements mentioned; that after the death of Boeing his widow, Marie, executed to Fordney two certain declarations of trust with reference to said lands to protect said Fordney, “and without intending, as your orators are informed, believe, and charge, to change or modify the original partnership or quasi partnership agreement with reference to said lands;” that the widow, during her lifetime, continued to pay taxes and other charges and expenses concerning the lands.

“That in February, 1894, a portion of the land included in said Exhibit A was sold for $30,000 cash; that on April 20, 1904, another portion of said land described in said Exhibit A, and all of the land described in Exhibit B, was sold upon land contract for $333,333.33, $100,000 of which was paid in cash, and notes for the remainder therefor, the last of which notes were paid shortly before presentation of the claim of said Fordney against the estate of Marie M. Owsley; that there yet remains a large amount of said partnership or quasi partnership lands (in the neighborhood of 1,200 acres) described in said Exhibit A, unsold, the legal title thereto remaining in said Marie M. Owsley until her death as aforesaid.

“That the present claim of said Fordney arises out of a dispute between said Fordney and said estate as to the amount of interest chargeable against said partnership land as a part of the cost thereof; that said dispute arises through a mutual mistake made by said Boeing and Fordney in the drafting of said Exhibits A and B; that it was the intention of both of said partners, or quasi partners, to provide in said contracts for payment of interest at 7 per cent, per annum, compounded annually, but that, through'the error of said copartners, said agreement having been drafted by said Wilhelm Boeing himself, who was not a lawyer, the provision for interest was made to read, 'Seven per cent, per annum,’ and failed to set forth and express the full intent and meaning of the parties with reference to interest as aforesaid; that said Wilhelm Boeing, in his lifetime, and said Marie M. Owsley, during her lifetime, at all times treated said agreements upon the basis that they provided for compound interest, and in the books of account in which the accounts of various partnership lands were kept charged said lands with interest compounded semi-annually; that your orators are informed, believe, and charge that said Fordney at various times, and in various ways, in his negotiations with said Wilhelm Boeing, and afterwards in his negotiations with said Marie M. Owsley, treated said partnership lands and said contract upon the basis that compound interest was properly a part of the cost of said lands; that it was not until recently, after the death of both the said Wilhelm Boeing and said Marie M. Owsley, that he made any different or other claim.

“That, if interest compounded annually is a proper charge against the cost of said lands as a part of the profit of said Wilhelm Boeing, then the entire cost of said lands has not yet been repaid, and there remains in the neighborhood of $40,000 due to said estate of Marie M. Owsley, but that, if simple interest only can be considered as a part of said cost, then the profit of said Wilhelm Boeing as represented by interest will have been fully paid, and there will remain of the partnership assets, in addition to unsold lands, something like $14,000 in cash, and it is upon the latter basis that said Fordney has presented his claim against said estate, and upon the theory that he is now entitled to be paid said sum. * * *

“That your orators also represent that, so far as said Keena is concerned, all of the lands in which he was interested are disposed of, and they are informed, believe, and charge that all matters in which he was interested, both as between him and said estate and between him and said Fordney, have been amicably settled and adjusted, and for that reason he is not made a party to this suit.”

As stated by complainants and appellants, the issues are:

(1) Considering the relation of the parties, is the original cost of the land, including taxes, expenses of carrying same, chargeable with simple or compound interest?

(2) If with simple interest only, should the computation be upon the basis of the Connecticut or the Massachusetts rule?

Mr. Fordney was a witness in his own behalf. Objections were made to portions of his testimony upon the ground that the facts related were equally within the knowledge of Mr. Boeing, or were equally within the knowledge of Mrs. Owsley. In the brief for appellants the point is stated, with a citation of authorities and reference to the statute, but no application of the rule contended for in the objections and In the brief is made. That is to say, counsel for appellants have not pointed out what facts relied upon by defendant would remain not proven if the rule is enforced. On the contrary, the statement of facts which they present is unquestionably based, in part, upon testimony of Fordney about facts equally within the knowledge of either Mr. Boeing or of his assignee, Mrs. Owsley. In the brief for Fordney, it is said upon this subject, among other things:

“It seems to us upon this record to be of comparatively little consequence to Mr. Fordney whether his testimony is excluded or considered, but what we object to is that complainants should use his testimony, and likewise the inadmissible ex parte and unverified statements of Wilhelm Boeing, deceased, to support their case, and at the same time claim that Mr. Fordney can have no benefit from his testimony because of the statute.”

This statement is followed by references to portions of the record which, it is said, show that complainants are relying upon Fordney’s testimony. • In the reply brief for complainants it is said:

“It is a matter of indifference to us whether Fordney’s testimony is considered by the court or not. On the whole, it is rather more favorable to us than otherwise. Through the zeal of counsel, plainly incompetent testimony has been injected, which a chancery judge was helpless to exclude. Despite our objections and refusal to cross-examine, it is in the case. We feel justified therefore in referring to this testimony until it shall have been finally passed upon. It merely serves in important particulars to confirm our own testimony, which necessarily was made up in large part from ancient records, documents, statements, back accounts, correspondence, etc.”

This being the general attitude of counsel (there are one or two specific portions of testimony and its effect about which there is argument), I do not feel called upon to critically examine the testimony of Mr. Fordney, ascertain to what extent it should be rejected, and determine the effect of rejecting any of it. I am the better satisfied to do this because I am impressed that, with or without the objectionable testimony, the decree dismissing complainants’ bill must be affirmed.

Mr. Boeing and Mr. Fordney were for many years associated together in the business of buying, holding, and selling lumber and timber, and they purchased and disposed of a large number of tracts of land, bought with money furnished by Boeing, who paid the expenses of the purchases and the accruing taxes. It is the theory of complainants’ bill that underlying the relations which existed between them was a parol agreement which, if correctly interpreted, and legally enforceable, bound them, as partners, or as joint adventurers (and bound Mrs. Owsley as Boeing was bound), to certain specific things, among them the one that in their settlements and divisions of profits and losses the cost of a particular purchase of lands should be augmented by interest computed at the rate of 7 per cent, per annum upon the original cost and upon the expenses and the taxes paid, and compounded annually. Such an agreement is not evidenced by general articles or by any written contract or memorandum involving any particular purchase or adventure. Indeed, it is negatived by every one of the many memorandums or agreements formally made and executed by the parties in interest. But it is claimed that such an agreement is evidenced by the correspondence and the uniform conduct of the parties, who kept accounts and settled and distributed profits and losses of their various adventures according to the original and underlying agreement. It appears that the parties made many contracts similar to those directly involved in this suit, which reserved to Mr. Boeing interest at 7 per cent, per annuir upon sums paid out by him to make and to carry purchases of land and timber; that none of them in terms reserves interest to be compounded; and that in every instance, when the lands were sold, compound interest was, in fact, taken by Boeing as a part of the cost of the land or timber. Upon such a basis settlements were uniformly made, and the method of computation was, apparently, never questioned. For an example, contract Exhibit 5, relating to a purchase and holding of Michigan lands, contains the following agreement of Mr. Boeing “to account for and pay to said second party,” Fordney—

“One-third (1/3) of the proceeds of such sales, after deducting from said proceeds the original cost as above to said first party of said lands and annual interest at the rate of 7 per cent. - on such cost, together with the amount and interest thereon paid by said first party for taxes on said lands.”

Mr. Boeing kept two accounts of his land business with. Mr. Fordney, neither of them in the form of a partnership or of a mutual account. One account he kept with the land, showing its cost, with interest compounded annually; the other an account of cash transactions with Fordney, in which he charged Fordney with one-third of the cost of the land only after a sale had been made and a settlement and division was due. In both he deals as with his own land and his own funds. He, Boeing, is owner of the lands and of their proceeds, and, as he disburses money to purchase lands, so he disburses the proceeds when lands are sold. Fordney kept an account with Boeing. Their accounts agree, or were made to agree, upon conference and examination. Fordney was usually indebted to Boeing as the account shows. But there is nothing in the accounts, or in the manner in which they were kept, to indicate a general partnership or any relation other than the one repeatedly evidenced in the written contracts they made, each of which concerned a particular tract or tracts of land, the original cost of which was stated and the division of proceeds provided for substantially as above set out. There is evidence in the contracts themselves which tends to disprove the existence of a general parol partnership or other agreement of the parties under which the California lands were purchased. In the contracts relating to Michigan lands, losses which may occur are not mentioned. In those relating to the California lands — those here involved — there is a provision that losses shall be shared as profits are shared. In the Michigan contracts it was provided that, if Fordney found a purchaser at a price which suited him, and did not suit Boeing, then, on a release by Fordney, Boeing was obligated to account to him for his one-third interest on the basis of the price proposed. In the California contracts it is provided that Boeing will deed an undivided one-third interest in. the land to Fordney, upon payment of the cost thereof, upon certain conditions. Whether they were partners or were joint adventurers, there is no objection to enforcing an agreement reserving compound interest to Mr. Boeing on account of his cash contributions, if such an agreement existed. The evidence of such agreement, and the only evidence, is the fact that Boeing always took it; that Fordney did not object; that he himself thus made some computations of the cost of land; that he approved, or at least did not question, such a computation made by the executor of Mrs. Owsley’s estate, showing the cost of some or all of the California lands which are embraced in the particular contracts involved in this suit; this in the face of the plain provision for interest agreed to by them in the written contracts which they made. I think there is but one reasonable explanation of the matter, which is that Mr. Boeing, who himself prepared many of the contracts, supposed, and that Mr. Fordney supposed, that the reservation of interest— namely, “annual interest at the rate of 7 per cent.”— meant interest computed annually and annually added to the sum drawing interest. This, indeed, is the effect of Mr. Fordney’s. testimony. The California lands were purchased in 1886 and 1887. After that time, and before the death of Mr. ■ Boeing, he and Mr. Fordney made at least 29 adjustments respecting other properties upon the basis of adding to the cost of the land compounded interest. Upon the contracts involved in this suit the right to do this was first questioned by Fordney. Although lands were bought and sold in a few instances which were never made the subject of a written memorandum of agreement, and although in such cases settlements were made as they were made when written agreements were entered into, I am not satisfied that complainants have proven any general, independent agreement of Boeing and Fordney. On the contrary, I am impressed by the fact that in most cases — always when there was opportunity to do so — a written memorandum of agreement with respect to particular purchases was made which contains, by recital and otherwise, a complete statement of the relations of the parties. It was to the written contracts that they looked for a statement of their mutual rights and obligations, and it is to them that the court must look.

Unless Mr. Fordney is estopped to insist upon performance of the particular contracts according to their plain terms, they must be so performed. The suggestions of counsel upon the subject of estoppel have all of them been examined, and, I think, must be all of them rejected. That Mr. Boeing borrowed large sums of money for these operations and paid interest thereon at short intervals would furnish some reason for his exacting compound interest if he had done so. But Fordney’s knowledge that Boeing so paid interest is not of itself sufficient to estop Fordney to claim the benefit of the contracts. I have considered carefully the suggestion that Boeing made the considerable investment in California lands and carried it for years, relying upon his right to eventually treat the cost of them as including compound interest. But the contracts are before us, executed with formality, unambiguous in their terms. It is of their very essence, that they separate the particular transactions from all others. It does not appear that Fordney did anything with respect to them which affected, injuriously or otherwise, the conduct of the other interested party or parties. He did not protest when he learned how Boeing computed the cost of lands. He even gave Boeing his note in 1889 for a balance which was undoubtedly made from computations which included compound interest.

It is said there was a mutual mistake in drafting the contracts, which should therefore be reformed to accord with the intention of the parties. I find rather that Fordney assented to Boeing’s construction of the terms of the contracts until advised of their true legal effect; that he understood, until correctly advised, that by the terms of the contracts Boeing had the right to compound the interest. The decree dismissing the bill must be. affirmed.

As to the method of stating the account. The effect of the decree is to charge Fordney with his proportion of the cost of the land, including principal, expenses, and taxes paid, with interest at 7 per cent, per annum until October 20, 1911. He is credited his proportion of moneys received for sale of the lands as of the date when it was paid and interest thereon at 7 per cent, to October 20, 1911. Upon the balance to be struck he is allowed interest at 5 per cent, from October 20, 1911 (it is said in the brief that this date should be November 19, 1911). Complainants declare this method to be absurd, and say that, if compound interest is not chargeable, then the computation must be made upon the basis of the Massachusetts rule, “and not upon the basis of the Connecticut rule, which is the rule stated in the decree.” For defendant Fordney it is said that the Massachusetts rule is followed in the decree as far as it is applicable;' that there was nothing either of principal or interest due when some of the land was sold in 1894, nor when partial payments were made from time to time upon the final sale, and consequently nothing to apply these payments to. Perhaps some confusion has resulted from the attempt to separate Mr. Fordney’s interest and deal with that, instead of dealing with the fund as a whole. It is a somewhat laborious, but not difficult, matter to ascertain what the land had cost Mr. Boeing and his successors at any particular time. Each sum of money invested and interest upon it from the time it was invested, beginning with the sums stated in the contracts, is what complainants have at all times had the right to take — to repay themselves. The remainder is profit, and Mr. Fordney is entitled to one-third of it. In February, 1894, some of the land was sold for $30,000. To this extent the interest-bearing investment ought to be reduced, and is, in effect, reduced, when complainants are charged this amount in the account, with interest on it at 7 per cent. In April, 1904, more of the lands were sold, and for a price which more than equaled the sum invested and interest. The sum of $100,000 cash was paid April 20, 1904. Further payments were deferred, with interest at 4 per cent., and were made at various times from March, 1905, to November, 1911. But I perceive no reason for continuing the Boeing investment, as against Fordney, after April 20, 1904. Granting that up to that time Boeing had a 7 per cent, investment in the lands, it was an investment for the purpose only of securing to himself and Fordney a profit when the lands were sold. The lands were sold. The investment should be regarded as then and there paid with whatever was accepted for the purchase price, and the profits ascertained and distributed as of that date. In short, the parties should now do what they might have done April 20, 1904 — use the money and sufficient of the securities first maturing to repay Mr. Boeing, and divide the remainder of the securities and the land. If, as I assume, complainants have received the entire sum then unpaid, with interest, they should account to Mr. Fordney for it precisely as though they had acted as collecting agents for him. As I find no evidence of their withholding the money so collected against his demand therefor, no interest will be charged to complainants on account of it before October 20, 1911, from which time any balance in Mr. Fordney’s favor will draw interest at 5 per cent, per annum. If either party has paid out money for the benefit of the other on account of the unsold lands since April 20, 1904, the account to be stated must take care of it.

A decree may be prepared in accordance with this opinion, and will be entered in this court. Defendant Fordney will recover the costs of his appeal against the executors, appellants.

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


author: Bird, J,

text:
    PINEL v. RAPID RAILWAY SYSTEM.
    Master and Servant — Workmen’s Compensation — Dependent Relatives — Parent and Child.
    A woman who has been receiving no support from her son, and who was not dependent upon him, is not entitled to compensation for his death in the course of his employment under Act "No. 10, Extra Session 1912, 2 How. Stat. (2d Ed.) § 3953; since, it is apparent that the son is not under legal obligation to support his parent until an order of the court has been made requiring him to contribute thereto. 2 Comp. Laws, § 4487 (2 How. Stat. [2d Ed.] § 3478). The situation as to the dependency is to be determined as of the date of the accident to decedent. Act No. 10, Extra Session 1912, § 7.
    Certiorari to the Industrial Accident Board.
    Submitted April 21, 1914.
    (Docket No. 96.)
    Decided January 29, 1915.
    Rachel Pinel presented her claim against the Rapid Railway System, a corporation, for compensation caused by the death of her son while he was employed by said company. An order denying an award of compensation is reviewed by claimant on certiorari.
    Affirmed.

      Devine & Snyder, for claimant.

      Corliss, Leete & Moody and Benjamin S. Pagel, for contestant.
   Bird, J,

Edward Pinel was in the employ of the respondent, and was killed while in such employment on May 29, ■ 1913. He left him surviving neither widow nor child. He left a mother 83 years of age, who is claimant herein, and several brothers and sisters. Application was made to the Industrial Accident Board on behalf of claimant for an award. After hearing the proofs the award was denied by the arbitration board on the ground that claimant was not dependent on the deceased. On appeal to the Industrial Accident Board, the same result was reached. The claimant has a life lease on a farm of 87 acres in Macomb county. Her son Charles resides with her. The deceased, Edward, and his brother Thomas were the owners of a mortgage against the farm, and more or less litigation has ensued in the past few years between them and claimant, and as a result thereof they have been unfriendly. It is not contended that the claimant was dependent upon the deceased by reason of any contributions made to her by the deceased, but by reason oí the fact that he was a son who might be compelled to contribute to her support by 2 Comp. Laws, § 4487 et seq. (2 How. Stat. [2d Ed.] § 3478 et seq.).

The question, therefore, presented is whether the claimant was a dependent on the deceased, within the meaning of the compensation law, by reason of the provisions of 2 Comp. Laws, § 4487 et seq. (2 How. Stat. [2d Ed.] § 3478 et seq.).

Section 7 of part II of the compensation law (Act No. 10, Extra Session 1912, 2 How. Stat. [2d Ed.] §3953), provides that:

“Questions as to who constitute dependents and the extent of their dependency shall be determined as of the date of the accident to the employee, and their right to any death benefit shall become fixed as of such time, irrespective of any subsequent change' in conditions.” Act No. 10, Pub. Acts 1912.

The claimant did not belong to the class conclusively presumed by the compensation law to be a dependent. On the date of the accident it is conceded claimant was not dependent by reason of any support furnished to her by the deceased. On the date of the accident she was not dependent on the deceased by force of any order of court based upon section 4487 et seq.

A son is always under moral obligation to assist his indigent mother, but he is under no legal obligation to do so until proceedings under .the statute have resulted in an order compelling him to do so. No such order was in force at the time of the accident; therefore we must conclude that he was under no legal obligation at that time to support his mother. See Rees v. Navigation Co., 87 L. T. 661, 5 W. C. C. 117; Schwanz v. Wujek, 168 Mich. 492 (128 N. W. 731). The most that can be said of the statute, with reference to the question involved, is that by its terms a court of competent jurisdiction might have, under certain contingencies, compelled the deceased, if able, to contribute to the support of his mother. The contention of claimant cannot be sustained.

The order of the board will be affirmed.

Brooke, C. J., and McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred.


author: Kuhn, J.

text:
    BUSHMAN v. FALTIS.
    1. Specific Performance — Contracts — Landlord and Tenant— Estates for Years — Time of Payment.
    Under a contract whereby defendant agreed to enter into a lease to the complainant of certain premises for a period of ninety-nine years, and which provided that the rent should be a stated amount per year, and contained also a provision that the lessee should be entitled to purchase the premises on or before ten years from the execution of the lease for the sum of $100,000, there was no such indefiniteness as to the time of payment as to require the court of equity to decline specific enforcement, if the contract was otherwise valid and was certain as to parties, amount, description, term, and rental.
    2. Landlord and Tenant — Rent—Time of Payment.
    Rent payable at a stated amount per year is due at the end of the period with reference to which the rent is computed, i. e., at the end of each year.
    3. Specific Performance — Modification of Contract.
    The agreement would not- be changed or rendered void because the complainant originally provided in a draft of a lease which was not signed that the rent should be payable in monthly installments, and defendant also drafted but did not execute another lease in which the rent was payable in monthly installments in advance.
    4. Same — Lease—Parol Evidence Rule.
    Where the defendant authorized his attorney in writing subsequently to entering into the contract, and after putting complainant into possession, to insert in the lease a number of changes set forth by him in a letter, but the complainant never agreed to or accepted the terms, which were not inserted in the original contract, the court of equity could not enforce the additional provisions and there was no ground for the contention that the minds of the parties had not met, as to the agreement which they, in fact, signed, and in part performed.
    5. Same — Option—Landlord and Tenant.
    While it is a sufficient reason for denying the equitable remedy of specific performance that no time of purchase was specified by the parties, in a lease and option which they had executed, such lease was valid and enforceable in equity where it provided that the lessee might purchase the premises at any time within ten years for a stated amount; the lessee would be entitled to exercise this privilege at any time within the period by tendering the amount named.
    6. Same — Frauds, Statute oe — Contracts.

      Held, also, the contract was certain and complete and valid under the statute of frauds.
    7. Same — Assignment—Equity.
    In defense of the action for specific performance of the contract, it was not a sufficient reason for denying to the complainant the relief prayed because defendant claimed he might form a corporation with a small amount of capital stock, to take over the lease, so as to escape personal liability, in the absence of any proof or evidence that the complainant had such intention or that any purpose existed to do any unjust or inequitable act.
    Appeal from Wayne; Murphy, J.
    Submitted October 8, 1914.
    (Docket No. 17.)
    Decided January 29, 1915.
    Bill by Franklin E. Bushman against John J. Faltis for the specific performance of a contract for a lease and option to purchase real property. From an order overruling the demurrer to the bill of complaint defendant appeals.
    Affirmed.

      Ralph B. Wilkinson (Henry M. Butzel, of counsel), for complainant.

      Walker & Spalding, for defendant.
   Kuhn, J.

The complainant’s bill is for the specific performance of an agreement by the defendant to make a 99-year lease of certain land in Detroit. A demurrer was filed by the defendant; the grounds thereof being stated as follows:

“(1) Because the alleged agreement set up in the second paragraph of said bill, and upon which said suit is based, lacks mutuality and is unconscionable in its terms.

“(2) Because said alleged agreement is too indefinite and uncertain to be susceptible of specific performance.

. “(3) Because said alleged agreement was never signed or accepted in writing by the complainant.”

Defendant appeals from an order overruling this demurrer.

The agreement is as follows:

“Received of Franklin ■ E. Bushman the sum of •"$250, which is hereby acknowledged, to apply upon the first six months’ rental of the property known as lots 37, 38, 39,_ and 40 of block 85 of Governor and Judges’ Plan, situated in the city of Detroit, county of Wayne and State of Michigan, consisting of 160 feet on the south side of Columbia street west, between Woodward and Park street.

“The balance, $1,250, to be paid on or before sixty days from the date hereof, abstract to be brought down showing good, merchantable title.

“It is understood that the said John J. Faltis is to execute a lease on the above-described premises to Frank E. Bushman, or any corporation to be incorporated for a period of ninety-nine years, from and after the first day of August, 1913, the rental for the period of said term to be as follows: $3,000 per year net, for three years, free of all taxes and assessments that may be levied against the above property. For the balance, ninety-six years, the rental shall be $4,000 per year net, free of all taxes and assessments.

“It is understood and agreed upon that the said John J. Faltis agrees to sell to the said lessees, on or before ten years from the execution of the above lease, the property described herein, for the sum of $100,000.

“It is understood and agreed upon that there shall be no restrictions as to the kind or class of buildings that the said lessee may desire to erect and that he may have the privilege, of subletting the above premises.

, “We hereby set our hand and seal this twenty-fourth day of July, 1913.

“John J. Faltis.”

The failure of the lessee to sign this instrument, it is now conceded, is not material, and no point is made of it by the appellant. Smith v. Mathis, 174 Mich. 262 (140 N. W. 548); Mull v. Smith, 132 Mich. 618 (94 N. W. 183).

Defendant having demurred to the bill, every allegation therein, for the purposes of this discussion, must be taken as true, and, in order to show what is claimed, the following paragraphs of the bill are set forth:

“Third. And your orator further shows that, on the signing of the agreement set forth in the last preceding paragraph, the. possession of said premises was turned over to your orator, and that your orator proceeded to make certain repairs, thereon and alterations therein, and did expend and has expended a large sum of money thereon, and has collected certain rents from tenants in possession of said premises, and that your orator has retained possession of said premises from the said 24th day of July, 1913, to the present time.

“Fourth. That subsequently the said John J. Faltis had prepared and submitted to your orator abstracts of said property, which abstracts were duly examined by your orator’s attorney and certain defects found therein, which defects, at the direction of the said John J. Faltis, were referred to _ Stellwagen & Mac-Kay, attorneys for the said Faltis, who agreed that certain of the defects would be adjusted as soon as possible, and certain other defects they refused to adjust, which last defects your orator agreed to waive.

“Fifth. And your orator further shows that subsequently, and before sixty days from the date of said agreement, he prepared a lease according to the terms of said agreement hereinabove set forth, and submitted the same to the said John J. Faltis, a copy of which lease is hereto attached, marked ‘Exhibit B,’ and made a part hereof, together with an offer to pay said twelve hundred and fifty dollars. ($1,250); that the said Faltis refused to accept said lease and wished to have one prepared by his attorneys; that such agreement was thereupon prepared by Stellwagen & MacKay, and submitted to your orator’s attorney, who objected to certain clauses therein, a copy of which lease so prepared by Stellwagen & MacKay is hereto attached, marked ‘Exhibit C,’ and made a part hereof, and on the twentieth day of September, 1913, and before the said sixty days had expired, the said John J. Faltis. directed his said attorneys, in writing, to make certain changes in said lease, a copy of which said written instructions are hereto attached, marked ‘Exhibit D,’ and made a part hereof, which directions were duly submitted to the attorneys for the said John J. Faltis, who agreed to have a lease prepared in accordance with said directions, as your orator agreed to accept said lease prepared by Stellwagen & MacKay with the changes, therein directed to be made by the said Faltis, and that a copy of said lease, as prepared by Stellwagen & MacKay, and embodying the changes as directed by said Faltis in Exhibit D, is hereto attached, marked ‘Exhibit E,’ and made a part hereof.

“Sixth. And your orator further shows that subsequently, on the 22d day of September, and before the said sixty days had expired, the said John J. Faltis, in consideration of the delay in preparing said lease, indorsed upon said agreement (Exhibit A), hereinbefore set forth, the following: ‘I hereby extend inclosed option until lease pertaining to same is perfected. * * * John J. Faltis, Detroit, September 22, 1913.’

“Seventh. And your orator further shows that he has continually endeavored to obtain said lease, and that he has tendered the said John J. Faltis said sum of twelve hundred and fifty dollars ($1,250) in legal tender, stating that he would make the payment on said agreement hereinbefore set forth required, and that the lease would be afterward prepared according to the directions of said John J. Faltis. to his attorney, but that the said John J. Faltis refused to accept said money, and still refuses so to do, or to execute any lease to your orator.

“Eighth. And your orator further shows that he has been at all times ready and willing and able, and still is ready, willing, and able, to carry out the terms of said agreement hereinabove set forth, and he hereby tenders into court said sum of twelve hundred and fifty dollars ($1,250), in said contract provided to be paid.

“Ninth. And your orator further shows that said lease is of great value to your orator — far in excess of one hundred dollars — and of peculiar value for the reason that your orator has made certain plans and arrangements which required the use of the property hereinabove described, and that your orator will suffer irreparable injury, unless said defendant is required to carry out said agreement.”

It is urged that the agreement is bad because- it does not fix the time for the payment of rent nor, in the event of sale, the time of the payment of the price at which the lessee is given the option to purchase; and that, in order to have specific performance, the contract must be complete, certain, and definite. It is contended by the complainant that there is no indefiniteness, uncertainty, or incompleteness in the memorandum, in that it is definite as regards the description of the premises to be leased, as to the persons to whom the lease runs, as to the length of time the lease was to be in force, as to the amount of rental reserved by the defendant and to be paid by the complainant, and also as to the amount to be paid in case of sale.

Taking the contract standing alone, it providing that the rent shall be a certain amount “per year,” under the authorities the amount would be due at the end of the period with reference to which rent is computed, which in the instant case would be at the end of the year. See Coomber v. Howard, 1 C. B. 440, 135 Eng. Rep. 611; Gibbens v. Thompson, 21 Minn. 398; Kistler v. McBride, 65 N. J. Law, 553 (48 Atl. 558). In our opinion, therefore, it cannot be said that the agreement itself is uncertain and incomplete because it fails to state definitely the time of the payment of rent.

It is argued that in. the case before us it is clear that neither party intended that the rent should be paid at the end of each year, because the original draft of the lease prepared by the complainant provides that the rent shall be payable in monthly installments on the 15th of the month, while the draft lease originally prepared by the defendant provides that the rent shall be paid in monthly installments in advance on the first of the month, and that, as a result, the minds of the parties never met as to the time of the payment of rent. It does not seem that there is much force to this argument, as the legal effect of the original writing as to the time of payment of rent would not be changed nor be made uncertain, when in law it was certain, because the parties thereto perchance subsequently may have entered into negotiations to make different terms of payment than provided for in the original agreement.

It is claimed that, if there was any uncertainty about the details of the lease, the terms were made certain by the subsequent conduct of the parties. It appears that after giving possession of the property to the complainant, and after allowing him to expend money in repairs, the defendant went over a form of lease prepared by his attorney and directed him in writing to make certain changes in the lease, as requested by complainant, which complainant agreed to accept. The instruction in writing was as follows.:

. “Detroit, Michigan, Sept. 20, 1913.

“Mr. John D. MacKay,

“City.

“Dear Sir:

“I hereby authorize the following changes in the lease heretofore prepared by you for me, and running to Franklin E. Bushman: [Fifteen changes are here set forth.] Wish you would kindly have this lease rewritten in conformity with the above suggestions.

“Yours respectfully,

[Signed] “John J. Faltis.”

It is not charged in the bill, nor does the letter to his attorney show, that defendant agreed to execute the draft of the lease with the modifications; and, the minds of the parties not having met with reference thereto, the court cannot insert them.

The agreement provides an option to exercise a right to purchase within a fixed time, which clearly distinguishes the case from Gault v. Stormont, 51 Mich. 636 (17 N. W. 214), and Ebert v. Cullen, 165 Mich. 75 (130 N. W. 185, 33 L. R. A. [N. S.] 84), in which cases it was sought to enforce specific performance of agreements to sell, when no time was fixed for the payment of the purchase price. Under this agreement we are of the opinion that the purchaser would be entitled to a deed with the usual covenants, upon tender by him of the amount specified at any time within the period fixed. Watts v. Kellar, 56 Fed. 1, 5 C. C. A. 394; Schroeder v. Gemeinder, 10 Nev. 355.

Can it then be said that the agreement to lease is so incomplete or uncertain as to make it impossible to decree specific performance? There is no uncertainty as to the names of the parties to the lease; there is no indefiniteness as to the description of the premises leased; no uncertainty as to the length of time the lease is to be in force nor as to the annual rentals, nor as to the amount to be paid in case of sale. If the lease provided for in the agreement were for any ordinary short-term lease, the well-established rule might be applied that the law will imply that a lease with usual covenants required by such leases shall be drawn and signed. Church v. Brown, 15 Vesey, Jr., 258; 1 Tiffany, Landlord and Tenant, §§ 66, 68. However, the provision in the instant case being for a 99-year lease, and it not appearing that the execution of 99-year leases has become so common as to establish a custom and make it possible to say what covenants and agreements would usually go into and become a part of such a lease, this rule cannot be said to apply. However, as the agreement to lease sets forth definitely in our opinion all the essential requirements of a lease (see Cochrane v. Mining Co., 16 Colo. 415 [26 Pac. 780]; Jones, Landlord and Tenant, §137a; 1 Tiffany, Landlord and Tenant, §66), it cannot be said, because other and different covenants might have been agreed upon, that what in fact has been provided for is too uncertain and indefinite to permit of specific performance.

We are of the opinion that the agreement, standing’ by itself, is a complete contract, certain in its terms, and satisfies the statute of frauds (3 Comp. Laws, § 9511, 4 How. Stat. [2d Ed.] § 11395).

In answer to the claim that the agreement is inequitable in that a corporation might be formed with a minimum capital stock to take over the lease from the lessee and the personal liability of the lessee thus cease, it can be said that there is as yet no proof that such is the intention of the parties, and it cannot be said that there is a presumption that the lessee will attempt anything unjust or inequitable. We therefore conclude that this is such a contract as a court of equity should enforce.

The order of the chancellor in overruling the demurrer is affirmed.

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


author: Brooke, C. J.

text:
    SIOUX CITY SEED & NURSERY CO. v. DETROIT & MACKINAC RY. CO.
    1. Railroads — Municipal Corporations — Consequential Injuries — Highways and Streets — Closing.
    No damages are recoverable in an action at law for tbe closing of that part of a public street, not fronting on but leading to plaintiff’s warehouse, which had been lawfully vacated by the city council, by the erection of a railway station across and upon the street by means of which the public had been accustomed to gain access to the premises of the plaintiff, rendering access more difficult and inconvenient, but not cutting off ingress and egress, which remained possible, although the route had beén rendered somewhat circuitous, for the persons approaching from the south. 2 Comp. Laws, § 6234, 3 How. Stat. (2d Ed.) § 6587.
    2. Same — Nominal Damages — Appeal and Error.
    But a verdict for nominal damages, from which the defendant railroad company did not appeal, will be affirmed, although it was more favorable to the, plaintiff than it was legally entitled to ash.
    Error to Alpena; Emerick, J.
    Submitted October 9, 1914.
    (Docket No. 63.)
    Decided January 29, 1915.
    Case by Sioux City Seed & Nursery Company against the Detroit & Mackinac Railway Company for damages for the closing of certain streets in the city of Alpena. Judgment for the plaintiff for nominal damages. Plaintiff brings error.
    Affirmed.

      Joseph H. Cobb, for appellant.

      Henry, Henry & Henry, for appellee.
   Brooke, C. J.

The facts involved in this case will be found fully set forth in the case of Detroit & Mack inac Railway Co. v. Sioux City Seed & Nursery Co., reported in 168 Mich. 668 (134 N. W. 1103). In that case the defendant in the case at bar was complainant and the plaintiff herein was defendant. We there held that the defendant therein (plaintiff herein) was not entitled to restrain the railroad company from taking possession of and occupying and building upon the vacated streets, but remitted defendant there to its remedy at law. The present action is a suit at law brought by the seed company, as plaintiff, against the railroad company, for damages which it alleges it has suffered by reason of the closing of the streets and alleys, a description of which will be found in our former opinion.

It will be remembered that Tenth street runs approximately east and west, and that Saginaw street runs approximately north and south. The railway company, from the time it was built, has been located, at the point in question in the center of Tenth street. Plaintiff’s premises are located upon the northeast corner of Saginaw and Tenth streets. A side track, or spur, lead,s' from the main track directly to and along the Tenth street frontage of plaintiff’s warehouse. Saginaw street north of Tenth street was not closed, but it was closed for a distance of one-half block immediately south of Tenth street, and Tenth street was closed for a distance of about five blocks. The depot, now completed, in part occupies the whole of Saginaw street south of Tenth street. It will therefore be noted that plaintiff’s property, which extends from Saginaw street to Tawas street, abuts on Tenth street, which was closed, and abuts on Saginaw street at a point where it was not closed. As pointed out in our former opinion, access to plaintiff’s property may still be had by way of Saginaw street from the north, or Tawas street from the east. The closing of Saginaw street south of Tenth street undoubtedly renders communication with plaintiff’s property from the south more inconvenient than it was before the closing of Saginaw street south of Tenth street.

This situation is identical with the situation set out in the case of Buhl v. Union Depot Co., 98 Mich. 596 (57 N. W. 829, 23 L. R. A. 392). This court there held, in an exhaustive opinion, that:

“The injury sustained by a landowner whose land fronts upon a public street, but not upon that portion occupied and closed by a union depot company under Act No. 94, Laws of 1891, and whose means of ingress and egress are not thereby cut off, but only rendered less convenient, is damnum absque injuria, and damages are not recoverable under said act, which provides that, in case of such occupancy and closing, the company shall pay to all parties entitled to the same any and all damages that may accrue to them in consequence thereof.” Headnote.

Upon the trial the plaintiff distinctly disclaimed any damages to it arising from the closing of Tenth street, which the record shows had never, since the building of the railway, been used for purposes of general travel in the vicinity of plaintiff’s premises. No testimony was introduced on behalf of plaintiff tending to show such damages.

Under the condition of the record as presented to the court below, and in view of the holding in the case of Buhl v. Union Depot Co., supra, we are of opinion that the trial court should have directed a verdict in favor of defendant. A verdict, however, was directed in favor of plaintiff for nominal damages. Inasmuch as defendant does not appeal and the verdict directed was more favorable to plaintiff than it was entitled to, the judgment is affirmed.

Me Alva y, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.