author: Moore, J. Bird, C. J.

text:
    FLOWERS v. WAYNE PROBATE JUDGE.
    1. Appeal and Eerob — Appeals From: Pbobate Cotjet — Time.
    On certiorari to review an order in mandamus proceedings to compel the judge of probate to allow an appeal from the decision in an executor’s final account, and to approve an appeal bond, where it appears that said decision was rendered on January 3d and notice of appeal with reasons therefor and an appeal bond were left with the probate court on January 20th, but the surety on said bond did not justify until January 24th, the probate judge not having been requested to nor having fixed the amount of said bond, the appeal was not perfected within 20 days as required by the judicature act (3 Comp. Laws 1915, § 14145), and said order will be reversed.
    2. Same — Certiorari—Interest of Probate Judge.
    The probate judge has such an interest in the proceedings as to authorize him to bring certiorari, and the motion to dismiss same is overruled.
    3. Same — Probate Courts — Extension of Time — Abuse of Discretion.

      Held, under the showing made, that it was an abuse of discretion on the part of the probate judge to refuse an extension of time in which to make an appeal, under 3 Comp. Laws 1915, § 14145.
    Bird, C. J., dissenting.
    Certiorari to Wayne; Goff (John H.), J.
    Submitted October 7, 1919.
    (Calendar No. 28,750.)
    Decided December 22, 1919.
    Mandamus by Charles Flowers, executor of the will of Jane Armstrong, deceased, to compel Edward Command, probate judge of Wayne county, to vacate an order denying an appeal. From an order granting the writ defendant brings certiorari. Reversed, and order vacated. Plaintiff also filed a motion to dismiss the writ of certiorari.
    Motion denied.

      Bishop & Kilpatrick, for appellant.

      William Look, for appellee.
   Moore, J.

We have two motions before us which were argued as one and will be considered in the same way. The first of them is certiorari to Hon. John H. Goff, circuit judge, to review his order allowing writ of mandamus directed to judge of probate, defendant herein, requiring him to allow the plaintiff to appeal from his decision on the final account of plaintiff as executor in the matter of the estate of Jane Armstrong, deceased, and to approve the bond filed therein. The other motion is one to dismiss the writ of certiorari as improvidently issued because the defendant had no interest in-the litigation. The facts are not in dispute. A .supplemental final account on October 3, 1918, showing .a balance due said estate of $5,009.59 was filed by Mr. Flowers. On January 3, 1919, defendant rendered his decision finding the sum of $8,827.39 due from the said executor to said estate. January 20, 1919, William Look, attorney for the executor, left with the probate court a written notice and reasons for appeal from the said order of the probate court, and a bond on appeal in the sum of $300, signed by Frederick T. Ranney, as surety. Mr. Ranney did not justify as surety. The bond was submitted in the usual course of business to defendant, as probate judge, for approval, at which time defendant discovered that the surety had not justified, defendant caused said bond, together with the notice and reasons for appeal, to be mailed to the attorney for said executor on the afternoon of the 23d of January. These papers came to Mr. Look on the morning of the 24th day of January, and on the same day the attorney for the executor tendered to defendant, as probate judge, for approval and filing, a proposed bond on appeal in the sum of $300, with Frederick T. Ranney, who had justified as surety, and on said mentioned date defendant refused to approve the said bond. On January 31, 1919, Mr. Flowers, executor, filed a petition in the probate court, seeking an extension of time to make and perfect an appeal from the aforesaid order, and upon the petition coming on to be heard on February 27, 1919, defendant declined to grant an extension of time. On March 6,1919, Mr. Flowers caused a petition to be filed in the circuit coürt for the county of Wayne, praying that a writ of mandamus issue to defendant. Praying among other things as follows: “that a writ of mandamus may issue to the Honorable Edward Command, judge of probate as aforesaid, commanding him to allow and approve of your petitioner’s claim and bond on appeal or that he grant the extension of forty days for taking and perfecting such appeal as provided by section 1, chapter 65 [3 Comp. Laws 1915, § 14145 et seq.~}, entitled ‘Of Appeals From the Probate Court,’ and that such other order may be had in the premises as justice may require.”

An answer was filed by the defendant in which the following was stated:

“On February 27th, 1919, your petitioner declined to grant an extension of time to file notice and claim of appeal, and bond on appeal and upon the facts and evidence before respondent, respondent shows that he was warranted and legally justified in so doing. Respondent further shows that relator had had a full and fair hearing upon the allowance of his final account, and the determination of the amount due from relator to said estate was just and equitable and in accordance with the facts and evidence in the case, and that relator’s disobedience of the repeated orders of the probate court and relator’s dissipation of the assets of said estate and mismanagement'of said assets fully justified and legally warranted the discretion of respondent in declining to grant an extension of time as prayed by relator; and that it did not appear to respondent that justice required a revision of the aforesaid order of the probate court.”

After a hearing the court ordered defendant, among other things, to forthwith allow the said claim and notice of appeal, and also approve of the bond in the sum of $300. Nothing was said in the order about whether the probate judge should have granted an extension of time in which to grant an appeal.

In section 1 of chapter 65 of the judicature act (3 Comp. Laws 1915, § 14145), are the provisions relating to the taking of appeals to the circuit court from the probate court, and to the granting of the extension of time by the probate judge for the taking of appeals. The bond referred to in that section is mentioned in detail in section 14152. It would have been a proper thing to do for the probate judge, instead of returning the papers filed as aforesaid to the attorney in the afternoon of the last day for taking an appeal, to have had his register call the attention of the attorney to the defect in the bond and give him an opportunity to correct the defect if he could within the 20 days, but this was not done and we feel bound to say that the appeal was not perfected within the 20 days, the probate judge .not having been requested to, nor having fixed the amount in which such bond should be given (see Sokup v. Davis’ Estate, 206 Mich. 144), and that the order of the circuit judge in that respect is wrong. We also think, upon the showing made, that it was an abuse of discretion on the part of the probate judge to refuse an extension of time in which to make an appeal, and if the circuit judge had so held we should have approved his order, but he did not so hold.

The defendant has such an interest in the proceeding as to authorize him to bring certiorari and the motion to dismiss the certiorari proceedings is overruled.

We are constrained to hold that the order of the circuit judge for mandamus must be reversed and vacated with costs to the defendant. This ruling is made without prejudice to the right of Mr. Flowers to petition the circuit court for a delayed appeal under the provisions of section 14156, 3 Comp. Laws 1915.

Sharpe, Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred with Moore, J.

Bird, C. J.

(dissenting). I am unable to agree with the conclusion reached by Mr. Justice Moore in this case. The notice of appeal and bond were filed within the 20 days allowed by law. There is no claim that the notice was defective but it is conceded that the bond was defective because no justification of the surety was indorsed thereon. Three days after the bond was filed the defect was called to plaintiff’s attention, whereupon he at once caused it to be corrected, but not until after the 20 days had expired. It was, in my opinion, just such situations as this that moved the legislature to enact the following provisions :

“(12486) Sec. 9. No appeal shall be dismissed on account of any informality or imperfection in the bond, affidavit or other proceedings, for the taking of such appeal, if plaintiff shall either by amendment, or by furnishing a new bond, affidavit or other paper, supply the deficiency or defect.
“(12487) Sec. 10. Whenever a bond is or shall be required by law to be given by any person, in order to entitle him to any right or privilege conferred by law, or to commence any proceeding, it shall not be necessary for such bond to conform in all respects to the form thereof prescribed by any statute, but the same shall be deemed sufficient if it conforms thereto substantially, and does not vary in any matter to the prejudice of the rights of the party to whom or for whose benefit such bond shall have been given.
“(12488) Sec. 11. Whenever such bond has been heretofore, or shall hereafter be given, and shall be defective in any respect, the court, officer, or body who would be authorized to receive the same, or to entertain any proceedings in consequence of such bond, if the same had been perfect, may, on the application of all the obligors therein, amend the same in any respect, or may, on the application of the person required to give such bond, allow a new one to be substituted in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall thereupon be deemed valid from the time of the execution of such defective bond. When application is made to amend, said court, officer, or body shall have power to amend such bond in any respect, and without regard to the particular amendment applied for, so as to make said defective bond such a one as might have been required when the latter was given. When a new bond is allowed, it shall be such in form, penalty, and other respects, as might have been demanded when the defective bond was given.” 3 Comp. Laws 1915, §§ 12486-12488.

It is clear that these sections contemplate that a defective bond may be corrected or a new one filed, and it is equally clear that when this is done, it shall have relation back to the time when the original or defective one was filed, and have the same force and effect it would have had if no defect had existed. If it does not mean this, why was the provision inserted in section 12488 that the court may “allow a new one to be substituted- in the place thereof, bearing date at the time when such bond was required to be given, and such bond shall thereupon be deemed valid from the time of the execution of such defective bond” Indeed, it would be difficult for language to make it plainer. This section said to plaintiff, in substance: “Correct the defect in your appeal bond or file a new one, and after doing so you may date it back within the 20 days provided for appeal.” If we hold that plaintiff’s corrected bond came too late to authorize an appeal, how will we construe this provision and what will we say is the meaning of the words “such bond shall thereupon be deemed valid from the time of the execution of such defective bond?” It is obvious that this legislation was passed for the purpose of preventing appeals being lost by reason of defective bonds, where the opposite party is not thereby prejudiced, and it seems to me that these sections are directly applicable to the present case. If we are to say that they are not available in any case where the corrected or substituted bond is not filed until after the time for appeal has expired, then the legislation is in vain because if one discovers the defect before the time for appeal has expired he could file a new bond without the aid of the statute.

Some point is made by the respondent in his return that he was never requested to fix the penalty of the bond, and the inference to be drawn therefrom is that had he been so requested he would have exercised his discretion under section 14152, and ordered a bond in compliance therewith. This section provides that where a final account is. the subject of appeal the court “may, in its discretion, fix the penalty of the bond in such sum as will cover the amount found due by the probate court upon examination of such account.” * * * Had the defendant intended to exercise his discretion in this appeal and require a compliance with the foregoing provision, he should have frankly advised plaintiff to that effect, when he tendered the corrected bond. The only reason respondent assigned for refusing to file the bond was because no justification by the surety was indorsed thereon. There is no claim that a bond in the penalty of $300 is not sufficient to take care of the costs of appeal, and inasmuch as plaintiff has on file in his court a $15,000-bond, and less than $9,000 are here involved, the estate would not be seriously prejudiced by reason of a failure to invoke this provision.

I am impressed that plaintiff has done everything which the statute requires him to do in order to effect his appeal. The trial court was of that opinion and I think its order should be affirmed.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    McQUINN v. RUNNING.
    Deeds — Cancellation of Instruments — Undue Influence — Evidence — Sufficiency.
    Allegations in a bill to set aside a deed and for an accounting for personal property given to defendants in consideration of their furnishing to plaintiff, who was 68 years old, alone in the world, sick and unable to help himself, his board, clothing, medical attendance, etc., for life, on the ground that same were obtained by duress, undue influence, etc., held, not supported by a preponderance of the testimony.
    Appeal from Lapeer; Williams (William B.), J.
    Submitted October 30, 1919.
    (Docket No. 74.)
    Decided December 2, 1919.
    Bill by Archie Wilson against James Running and another to set aside a deed, and for an accounting. There was a decree dismissing the bill. Pending an appeal, plaintiff died and William McQuinn was appointed administrator, and perfected the appeal.
    Affirmed.

      Herbert W. Smith, for plaintiff.

      Theo. D. Halpin, for defendants.
   Moore, J.

The bill of complaint in this case is filed for the purpose of setting aside a deed given by Archie Wilson on June 1, 1916, to the defendants, of 30 acres of land. The bill also asks that personal property may be restored to the said Archie Wilson, and that an accounting may be had for such personal property as has been disposed of by the defendants. Mr. Wilson was 68 years of age and was the owner of 30 acres of land upon which he had lived alone for a number of years. This deed and transfer of personal property is claimed by the plaintiff to have been obtained by the defendants by duress, undue influence, misrepresentation and by taking advantage of him while he was sick in bed, in a weakened condition and unable to realize what he was doing. The defendants denied the averments of the bill. The case was tried in open court and a decree was entered dismissing the bill of complaint. Pending an appeal to this court Mr. Wilson died. An administrator was appointed. The death of plaintiff was suggested of record. The case is brought here by appeal. Plaintiff at the time the deed was made was 68 years old, and had never married. He had no relatives. He was found by one of his neighbors alone in his house, and sick; he was not able to care for himself, and there was no person living who was under any obligation to take him in and care for him. This neighbor, Mr. Bearinger, at his request, sent for the defendants, who at his request took him to their home and gave him care and furnished him with a doctor. The property mentioned in the bill of complaint was worth $700 to $1,000.

The decisive questions in this case are questions of fact. The plaintiff was the only witness in his own behalf. The defendants produced five witnesses besides themselves. Among them was the neighbor who discovered Mr. Wilson when he was sick, the doctor who attended him, and the scrivener who for many years had been register of deeds for Lapeer county, who drew the papers and before whom they were executed. In the life lease was the following:

“And said first parties agree to furnish him board and clothing, and in sickness, medical attendance, and support and maintain him during his natural life, and at his death furnish him a proper burial.”

Mr. Wilson was contradicted by each of the witnesses for defendant, upon some essential point. It would profit no one to recite the testimony in detail. It decidedly preponderates in favor of the claim of the defendants.

The decree is affirmed, with costs to defendants.

Bird, C. J., and Sharpe, Steers, Brooke, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    COPPER RANGE CO. v. ADAMS TOWNSHIP.
    ■1. Taxation — Valuation of Property- — Fraud.
    Before the court is justified iu holding a tax to be illegal because the assessing officers acted fraudulently, that fact should be clearly shown by the evidence; an error of judgment by the officers in their valuations of property being insufficient.
    2. Same — Evidence—Sufficiency.
    In an action by a mining company against a township to recover a portion of taxes claimed to have been excessive, and paid under protest, the finding of the court below that it was unable to find in the action of any of the assessing officers, whose action is questioned, or of the board of tax commissioners, any evidence of fraud or unfairness or of any effort to shift taxation from one mining property to another, held, justified by the record.
    Error to Houghton; O’Brien (Patrick H.), J.
    Submitted October 23, 1919.
    (Docket No. 4.)
    Decided December 22, 1919.
    Assumpsit by the Copper Range Company against the township of Adams for taxes paid under protest. The State board of assessors, the board of State tax commissioners, the St. Mary’s Mineral Land Company, and the South Range Mining Company intervened as parties defendant. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Stone, Weider & Schulte, for appellant.

      M. J. Sherwood, for defendant township.

      Alex. J. Groesbeck, Attorney General, and Thomas G. Baillie, Assistant Attqrney General, for intervening defendant State boards.

      Rees, Robinson & Petermann, for intervening defendant companies.
   Moore, J.

This is a suit brought to recover a portion of taxes of 1915, paid under protest by the Baltic Mining Company. Before the trial the Copper Range Company became the owner of all of the assets of the Baltic Mining Company, and the demands in said suit were assigned to the Copper Range Company which was substituted as plaintiff. The St. Mary’s Mineral Land Company and the South Range Mining Company intervened as defendants, as did the board of State tax commissioners and the State board of assessors. The case was tried before the court. From a judgment in favor of the defendant the case is brought here by.writ of error.

The trial judge made findings of fact and conclusions of law. He also filed a long written opinion , which states the issues involved so clearly that we quote from it freely:

“This action was originally brought by the Baltic Mining Company to recover from the defendant, township of Adams, the sum of $27,235.91 paid under protest as taxes to the treasurer of said township on the 10th day of January, 1916. The facts out of which the controversy grows are briefly as follows:
“At the spring election of the year 1915, Frederick W. Denton was elected supervisor of Adams township. During that year, and for at least ten years before, Mr. Denton was the general manager of the group of mines controlled by the Copper Range Company. The latter company owned substantially all of the stock of the said Baltic Mining Company, of the Trimountain Mining Company, and of the Copper Range Railroad Company. It also owned one-half of the capital stock of the Champion Copper Company. Mr. Denton, who claims he had made an elaborate investigation and series of calculations of the actual cash value of the Baltic Mining Company and of other mining properties, assessed the real estate thereof consisting of its mining property situated in the township of Adams, at the sum of $2,900,000 and the real estate consisting of mining property of the Trimountain Mining Company, situated in the same township, at the sum of $550,000. * * *
“When the committee on equalization met in the fall after carefully considering the matter, it recommended to the board of supervisors that the sum of $2,600,000 be added to Adams, township. A motion was thereupon made to the board of supervisors to adopt this report when a protest was made by other taxpayers of Adams township, to the effect that as the value of the Copper Range properties had been undervalued, it would be unfair to saddle this $2,600,000 on to Adams township as a whole and that they would' suffer to the extent of about 20 per cent, in their valuations if this plan was pursued. At their request and upon the motion of Supervisor Seeber, the recommendation of the committee on equalization was laid on the table until an adjourned meeting to give such taxpayers an opportunity to present the whole matter to the board of State tax commissioners, which was the only authority that could specifically assess this amount against Copper Range properties.
“Thereupon such proceedings were had that on the 3d day of November, 1915, the State board of tax commissioners appeared in Houghton and gave a full hearing to this particular question — as stated in the language of Commissioner Kearney — ‘Whether these particular properties complained of in the township of Adams are on the assessment roll at their true cash value disregarding any system that the supervisor may have used in placing them there.’ ■
“Mr. Denton presented Ms facts and figures at great length and defended his assessment in an able and exhaustive manner. Other parties interested were heard at length. The testimony and arguments were ■taken down stenographically. Mr. Denton left with the board all of his exhibits, containing carefully compiled and elaborate data tending to support his main conclusions. Mr. Rees presented an argument backed up by data tending to show that the stock market method employed by the supervisors for so many years had worked substantial justice and fairness in the valuation of mining properties. The board of State tax commissioners testify that before they decided the matter they waited for the proceedings at the hearing to be transcribed; that they gave the matter careful consideration both individually and as board, after which they unanimously decided to change the individual assessment of the Baltic Mining Company from the sum of $2,900,000 to the sum of $5,100,000, and the Trimountain Mining Company from the sum of $550,000 to the sum of $950,000, thus adding $2,-200,000 to the valuation of the Baltic Mining Company. Thereafter the board of supervisors met and equalized Adams township by adding to the total assessed valuation as fixed by the supervisor of the township the total sum of $2,600,000 being the exact amount of the increase as fixed by the State board of tax commissioners.
“A petition for a hearing was thereafter filed by Mr. Denton as supervisor for Adams township complaining of the value fixed by the board of equalization as to Adams township, as to Calumet township and as to Osceola township, setting forth and condemning the method pursued by the committee on equalization in adopting stock market quotations as a basis of valuation. This petition was denied. So the taxes of the Baltic Mining Company claimed to be excessive were paid under protest and this action is brought to recover the same.
‘‘Two propositions of fact are advanced by the plaintiff as a basis for a recovery in this case.
“(1) That the property of the Baltic Mining Company was grossly, arbitrarily, unlawfully and fraudulently placed upon the assessment roll by the State board of tax commissioners at a sum largely in excess of its cash. vslu6
“ (2) That the property of the Calumet & Hecla Mining Company and of the Osceola Consolidated Mining Company was fraudulently placed upon the rolls of the townships of Calumet and Osceola, respectively, at sums away below the true cash values of said properties.
“I am unable to find any evidence in the record'that the State board of tax commissioners acted hastily, carelessly or fraudulently in the matter of assessing the property of the Baltic Mining Company. There is no evidence that they did not use their best judgment. They gave due weight to the elaborate data and argument presented by Mr. D,enton. Even if they found after carefully considering both methods of arriving at the true cash value of the Baltic Mining Company that the conclusions reached by considering the stock market quotations of the shares of the Copper Range Company as an element in the result is correct, Can a court say that they acted in bad faith? Can a court say that they did not exercise their best judgment? Did the tax commission adopt a fundamentally wrong principle? * * *
“But the committee on equalization did not blindly follow the stock market. They made what they, considered reasonable deductions. They classified the mines. On the whole, if the matter was before me for decision as an assessing officer, I should consider that the stock market method of arriving at the true cash value of mining properties will in the long run prove more certain, just and equitable than any method based upon calculations founded upon data, a great deal of which is merely assumed to exist. If we were going to prove the true cash value of a piece of real estate we would inquire what similar real estate in the neighborhood was actually selling for or had sold for in the open market. * * *
“But it is said by the learned counsel for plaintiff that there was no way of applying the stock-market method of valuation to the Baltic property for the reason that its shares are not quoted on the exchange. The answer to this proposition is that if the stock-market method was not applied, then counsel has nothing to complain of because the whole foundation of plaintiff’s claim is that the true cash value cannot be determined by resorting to stock-market quotations. In fact in this particular instance not only was market quotations of the Copper Range Company considered, but also data derived from other sources. The process, was about this: The market value of the entire- Copper Range Company was ascertained by' multiplying the total number of its shares by 52, the quotation on the 12th day of April, 1915. True cash value of the property was determined by figuring 72% per cent, of this amount. From this sum was deducted the valuation of one-half Champion as assessed by Mr. Denton and also the valuation of the Copper Range Railroad, a subsidiary of the Copper Range Company, as assessed by the State board of assessors. The assessed value, of certain real estate owned by the Copper Range Company was deducted and the balance was the proposed assessment of the Trimountain and Baltic companies to bring the total Copper Range proportion on a par with other mining properties. The total additional valuation was added to Trimountain and Baltic substantially in the proportions of their respective assessed valuations.
“So we see that the board of State tax commissioners made calculations based on ascertained data. They acted on evidence after a full hearing. They reached a unanimous conclusion as to the true cash value of the plaintiff’s real estate. In my judgment, after carefully reading and studying all of the evidence presented to the commissioners, I not only can-hot say that they recklessly or fraudulently placed an excessive valuation upon the mining property of the plaintiff, but, on other hand, it is my belief that they exercised sound judgment in reaching the result of which the plaintiff complains. It goes therefore, without saying, that far from showing any fraud or discrimination, the evidence shows that the commissioners acted honestly, independently and in the utmost good faith. Nor am I able to find that the State tax commissioners, in assessing the Baltic Mining Company, adopted a fundamentally wrong principle. On the contrary, the principle or system adopted was more likely to bring a fair and reasonable result than any other system or principle brought to their attention.
“Complaint is also made by the plaintiff of a gross undervaluation of the Calumet & Hecla and of the Osceola mines by the supervisors of Calumet and Osceola townships in the spring of 1915. In determining the true cash value of the Osceola Consolidated Mining Company the stock market value of its shares was used as an element in the calculation precisely as was done in assessing other mining properties. In assessing the Calumet & Hecla property the stock market value of the Calumet & Hecla Mining Company was considered as a basis of the calculation of the true cash value of its real estate in the same way. To ascertain the value of its real estate in Calumet township there was deducted from the stock market value of the company its holdings of stock in other Michigan mining, companies whose property was assessed elsewhere; the value' of its real estate in other townships and its personal property holdings. After making those deductions, all of which were proper in order to avoid double taxation, the supervisor assessed 72% per cent, of the balance against the Calumet & Hecla. While Mr. James MacNaughton, the supervisor, was also the general manager of the Calumet & Hecla Mining Company, he did not attempt to devise any different system for determining the value of the mining properties in which he was interested than the one which had been in vogue when he first became supervisor. So it follows that the Calumet & Hecla property was assessed at a reasonable percentage of the value that was placed upon the property by those who in the open market were buying undivided interests^ in_it represented by shares of its common stock.
“So when we consider how honest and fair-minded men may differ about the factors that should be considered in placing a valuation on a mining property, Can we say that a supervisor who takes for a substantial element in his data the evidence of actual sales of its stock in the open market is acting arbitrarily and unjust? Isn’t it more disinterested than it would have been had he worked out his own method of valuation? If every one of the supervisors in Houghton county should adopt his own method of determining the mining property for assessing purposes, there would be no uniformity in results. We would have a sort of Dutch auction, in which every supervisor interested as manager of a mining company would be obliged to reduce the assessment on his mines so as not to be outdone by the other fellow. And if the necessity should exist I don’t think that our mine managers would have any difficulty in supplying a line of figures that would wring tears from the eyes of a mummy.
“So I conclude, as a matter of fact, there is no evidence of undervaluation of either the Calumet & Hecla or of the Osceola properties.
“But even if there has been an error of judgment either by the tax commission in its assessment of the Baltic Mining Company’s property or by the supervisors of Calumet and Osceola townships in their valuations of the Calumet & Hecla and Osceola properties, this fact of itself would afford no basis for recovery in this action. There must be some evidence of an intentional violation of duty on the part of the assessing officers, or such reckless disregard of a taxpayer’s manifest rights as would reasonably lead to an inference' of intentional inequality or of a clear adoption of a fundamentally wrong principle before an assessment can be declared void.
“In the briefs of counsel I find no dispute about the legal principle governing in actions of this kind. In this State it has been frequently held that before a court is justified in holding a tax to be illegal because the supervisor or the board of review acted fraudulently, that fact should be clearly shown by the evidence. Story & Clark Piano Co. v. Hilderink, 189 Mich. 131, citing a great number of cases, including Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430; Aurora Iron Mining Co. v. City of Ironwood, 119 Mich. 325; Island Mill Lumber Co. v. City of Alpena, 176 Mich. 575.
“The Supreme Court of this State has held in City of Muskegon v. Boyce, 123 Mich. 539, that the mere fact that some of the property upon the assessment roll was undervalued or that taxable property was omitted from the roll, was insufficient to invalidate the assessment; but to have that effect it must also be made to appear that action on the part of the assessing officers was intentional and that the person complaining was thereby compelled to pay more than his just portion of taxes. Story & Clark Piano Co. v. Hilderink, 189 Mich. 134.
“There are cases in this State where relief has been granted, but they are cases in which the taxpayer was held justly to complain and where there was a studied effort or combination on the part of the assessing officer to shift taxation from one class to another and where the officers designedly discriminated against certain property owners in favor of others, or where large amounts and values of property were designedly left off the roll. Some of these cases are the following: Merrill v. Humphrey, 24 Mich. 170; Walsh v. King, 74 Mich. 350; Solomon v. Township of Oscoda, 77 Mich. 365; Auditor General v. Jenkinson. 90 Mich. 523; Auditor General v. Prescott, 94 Mich. 190; Auditor General v. Pioneer Iron Co., 123 Mich. 521; Fletcher Paper Co. v. City of Alpena, 160 Mich. 462.
“The foregoing rules governing the legality or illegality of assessing officers in general are also applied by courts in considering the action of the State board of tax commissioners. In a suit to declare void assessments, the court will not consider complaints as to the results reached by the State board of assessors except those based on fraud or an adoption of a fundamentally wrong principle. Chicago, etc., R. Co. v. Babcock, 204 U. S. 585 (27 Sup. Ct. Rep. 326), citing as the foundation of this principle the opinion of our Supreme Court in Newport Mining Co. v. City of Ironwood, 185 Mich. 685.
“In Chicago, etc., R. Co. v. Babcock, supra, the court says:
“ ‘Within its jurisdiction, except as we hare said, in the case of fraud or clearly shown adoption of wrong principles, it [that is the State board] is the ultimate guardian of certain rights.’
“If the State board of tax commissioners acted fairly, honestly and justly towards the plaintiff in arriving at their conclusion, there is nothing to justify the court in setting aside the action of the board. Newport Mining Co. v. City of Ironwood, 185 Mich. 692; Sunday Lake Iron Co. v. Township of Wake field, 186 Mich. 631. The ascertainment of the value of taxable property is judicial and requires the judgment of the assessor upon his official oath. Wall v. Trumbull, 16 Mich. 228; Woodman v. Auditor General, 52 Mich. 28. The same may be said of the action of the board of review. * * * If they act in good faith and exercise their best judgment, mere errors in judgments will not defeat their action. * * * The burden of proof is on the complainants to sustain the charges of unfairness and fraud by a fair preponderance. Pioneer Iron Co. v. City of Negaunee, 116 Mich. 435.
“Viewing the case as a whole and having regard to the foregoing principles, I am unable to find in the action of any of the assessing officers whose action is questioned herein or of the board of tax commissioners any evidence of fraud or unfairness or of any effort to shift taxation from one mining property to another. * * *
“Judgment for the defendant township will be entered, with costs to be taxed.”

We have, with the appendix containing many exhibits, a long record. We have carefully prepared briefs by able counsel. We have gone over these with care. We think it would profit no one to go into details of the record. The questions involved are not new in this State. We agree with the trial judge in his statement:

“I am unable to find the action of any of the assessing officers whose action is questioned herein, or of the board of tax commissioners any evidence of fraud or unfairness, or of any effort to shift taxation from one mining property to another.”

The authorities cited by the learned judge are controlling of the law of the case.

The judgment is affirmed with costs to the defendant.

Bird, C. J., and Sharpe, Steere, Brooke, and Kuhn, JJ., concurred. Fellows and Stone, JJ., did not. sit.


text:
    EBERT v. CORNING.
    Mortgages — Payment—Evidence—Sufficiency.
    On a bill'for tbe discharge of two mortgages, tbe finding of tbe court below that tbe debt of plaintiff represented by said mortgages was paid in full, held, supported by tbe record.
    Appeal from Huron; Beach (Watson), J.
    Submitted October 17, 1919.
    (Docket No. 62.)
    Decided December 22, 1919.
    Bill by Caroline Ebert against Anna Corning, executrix of the last will of William Coming, deceased, for the discharge of certain mortgages. Defendant filed a cross-bill for a reformation of said mortgages and to foreclose the same. From a decree for plaintiff, defendant appeals.
    Affirmed.

      George M. Clark, for plaintiff.

      G. W. Davis, for defendant.
   Moore, J.

We quote from the brief of the solicitor for the appellant in this case:

“Plaintiff filed a bill of complaint to obtain a decree discharging two mortgages given by her to the estate of William Corning, on or about the 26th day of April, 1904, for $2,900 and $1,000 respectively, and in her bill of complaint she alleges that she is entitled to the penalty of $100 provided for by the statute, on failure to discharge mortgages after payment. The trial court in its first decree awarded such penalty, but subsequently omitted it. Defendant answered, and in her answer in the nature -of a cross-bill, prayed the reformation of said two mortgages and also the foreclosure thereof. The real controversy arises concerning interest unpaid by the plaintiff on two other mortgages given by the plaintiff to William Corning, the principal and interest of which to the date of the making of said mortgages of April 26th, 1904, were to be included therein. The first of the old mortgages dated the 24th day of January, 1883, was due October 1st, 1884, and was for $200 with interest at eight per cent, per annum, payable April 1st and October 1st of each year, with exchange on New York, and ten per cent, payable on the 1st day of April and October each year, after maturity of the mortgage until paid. * * * The second of the old mortgages was for $700, dated October 1st, 1883, due October 1st, 1886, with the time for the payment of interest and the rate of interest the same as the $200 mortgage. * * *
“The defendant properly makes claim for the unpaid interest upon the two old mortgages, and that the same should have been included in the new mortgages. She contends that: It was agreed between the plaintiff and the defendant that the amount of the two old mortgages and the unpaid interest thereon should be included in and as a part of the moneys, the payment of which was to be secured by the new mortgages. * * *
“That the amount of the interest due and unpaid upon the two old mortgages in April, 1904, when the two new mortgages were given, was $616.30. That $100 of the new loan was not included in the new mortgages. * * * That the said new mortgages should be reformed so as to include the amount of the interest upon the two old mortgages and the said $100 of the new loan, and that decree should be entered for the foreclosure thereof, if the same is not paid.”

It was the claim of the plaintiff that her debt represented by all the mortgages was paid in full, and the trial judge so found. The case is brought here by appeal.

The two last-named mortgages were payable at the Second National Bank of Saginaw. The decisive questions in the case are questions of fact. The testimony covers nearly one hundred pages of printed record. It is conflicting. We have already stated where the mortgages were payable.

In the record appears the following:

“May 27th, 1909.
“Mr. John Ryan, Cashier,
“Bad Axe, Mich.
“Dear Sir: We have received your letter of the 26th inst. inclosing draft for $3,919.50 to pay two mortgages given by Caroline Ebert to Anna Corning and Edward Corning, executors of the estate of William Coming, deceased.
“We have notified Miss Corning and requested her to forward discharges of these mortgages.
“Yours very truly,
“Edward W. Glynn, Cashier.” .

Mr. Glynn was the cashier of the Second National Bank of Saginaw. His deposition was taken and offered in evidence on the part of the defendant. In it appears the following:

“Q. Do you remember of two mortgages being given by Mrs. Ebert in 1904 to the Corning estate?
“A. There are two mortgages under date of April 26, 1904, one for $2,900 and one for $1,000. On May 26, 1909, we received a letter enclosing a draft for $3,919.50 in payment of the two mortgages, in favor of Anna and Edward Corning, executors of the estate of William Corning, deceased. One of $2,900, recorded in liber 69 of mortgages, page 526, recorded May 31, 1904, the other mortgage of $1,000, recorded in. liber 75, page 430, on June 7, 1904. A memorandum on the letter in the files, shows we wrote to Anna Coming, May 27,1909, and in the files is a letter from her in 1910, referring to the Caroline Ebert mortgages, in which she complains that there was a mistake in the amount due, and that she had written Mrs. Ebert and called her attention to it, and that she had not questioned it, and that she had seen Mrs. Ebert personally, and rendered her a statement, and that she had supposed that when she wanted the discharge, she would adjust the matter.
“Q. Has there been any interest paid on those two mortgages since the deposit -of that $3,919.50 ?
“A. It appears, that there has been none paid.”

An examination of the entire record convinces us that the plaintiff has shown by a decided preponderance of the evidence that the averments of her bill of complaint are true.

The decree is affirmed with costs to the plaintiff.

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


text:
    ROMEO v. LUPO.
    Landlord and Tenant — Summary Proceedings for Nonpayment of Rent — Tender of Amount Due.
    In. summary proceedings for the possession of a store building for nonpayment of rent, where defendants tendered into court the amount due, with costs, in compliance with 3 Comp. Laws 1915, § 13253, as amended by section 25, Act No. 243, Pub. Acts 1917, they were entitled to retain possession, and a judgment of restitution is reversed.
    Error to Bay; Houghton (Samuel G.), J.
    Submitted October 31, 1919.
    (Docket No. 68.)
    Decided December 22, 1919.
    Summary proceedings by Joseph Romeo against Mathew Lupo and another for the possession of a store building. There was judgment of restitution before the commissioner, and defendants appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Reversed, and no new trial ordered.

      Kinnane, Black & Leibrwnd, for appellants.

      Hitchcock & Allison, for appellee.
   Moore, J.

This controversy involves the possession of a store building. It was owned by Mr. Clark and his wife, who on August 20, 1913, leased it to plaintiff for a term of 10 years for a rental of $20 per-month, payable monthly in advance. On January 2, 1918, plaintiff assigned this lease to defendants for the remainder of the term. Defendants were to continue to pay to the Clarks the $20 per month and were to pay $10 per month in addition to plaintiff. The assignment was silent as to the time of the month the $10 was due. The defendants went into possession. A controversy arose as to the payment of one month’s rent. On June 5, 1918, plaintiff served on Mathew Lupo, one of the defendants, a notice, and later commenced a suit by the usual complaint in summary proceedings, to which the defendants pleaded not guilty. The case was tried before the circuit court commissioner, on July 15, 1918. Defendant tendered and paid into court $20. The commissioner entered a judgment of restitution and found that there was owing plaintiff by defendants $30 for rent. The defendants appealed to the circuit court. Defendants, before trial in the circuit court, paid an additional $40 into court to cover the rent which had accrued since the trial before the circuit court commissioner, making a total tender of $60 which was refused by the plaintiff.

At the close of plaintiff’s case, defendants moved for a directed verdict, which motion was overruled. The jury returned a verdict that one of the defendants was guilty of withholding the premises, and that there was $60 rent due in addition to $15.20 costs, for which plaintiff might have execution, and also a writ of restitution for the possession of the premises. Some correspondence occurred and defendants tendered the amount of costs in addition to the previous tender, which had been kept good. The court later ordered that the writ of restitution issue, and the case is brought here by writ of error.

Many errors are assigned but we shall consider but one of them.

We think the case comes within the provisions of section 25 of Act No. 243 of the Public Acts of 1917. A similar provision has been construed by this court, Lambton Loan & Investment Co. v. Adams, 132 Mich. 350, where Justice Grant, speaking for the court, said:

“He who seeks possession for violation of a lease or contract of sale for nonpayment of money due thereunder takes the remedy subject to the conditions imposed by the statute. The statute was designed to provide a speedy and summary remedy for obtaining possession of lands held over contrary to these agreements, and in doing so it also sought to give the lessee or vendee another opportunity to retain the benefit of his contract by payments within five days, where the failure to pay was his sole default.”

The judgment is reversed, with costs, and no new trial ordered.

Bird, C. J., and Steere, Brooke, Fellows, Stone, and Kuhn, JJ., concurred. Sharpe, J., did not sit.


author: Brooke, J. Brooke, J.

text:
    BECKOVSKY v. BURTON ABSTRACT & TITLE CO.
    1. Abstracts of Titus — Defective Abstract — Express Contract —Question por Jury.
    In an action against an abstract company for damages growing out of tbe alleged negligent failure of tbe defendant, in extending and certifying an abstract, to show a certain incumbrance upon a piece of property plaintiff was about to purchase, testimony on tbe part of plaintiff, held, sufflcleat to carry the question to the jury as to whether an express contract was made between plaintiff and defendant.
    2. Same — Payment—Privity of Contract.
    In such action, if defendant’s agent was advised, when the abstracts were left with him for extension and certification, that the services were to be rendered to plaintiff but were to be paid for by the vendors, and acquiesced therein, it is unimportant whether payment was made or not, there being privity of contract.
    3. Same — Defect—Notice—Evidence—Sufficiency.
    Evidence held, insufficient to put plaintiff upon inquiry as to the mortgage in question.
    4. Same — Party Damaged.
    There is no merit in defendant’s contention that plaintiff was not the party who suffered damage because title to the property was taken in the name of his wife, where the declaration charged that plaintiff was the one purchasing the property and a copy of a quitclaim deed from his wife to him was attached thereto and made a part thereof, and the proofs showed conclusively that the entire consideration passed from him to the vendors.
    5. Same — Damages—Reliance Upon Defective Abstract.
    Where plaintiff, prior to receiving the defective abstracts sued upon, paid certain sums to the vendors on the purchase price, he is not entitled to have those amounts included in his damages, since they were not paid in reliance upon said abstracts.
    6. Same.
    The argument of plaintiff that he should recover the full amount paid because after he received the abstracts he parted with the title to his own property, held, fallacious, since he received property of an equal value at that time.
    7. Same — Excessive Damages.
    The verdict for plaintiff, held, not excessive by the amount of certain notes of the vendors surrendered by plaintiff in reliance upon said abstract as part of the purchase price because soon thereafter said vendors became insolvent, where, so far as the record discloses, the notes at the time of their surrender were good and collectible.
    For authorities passing upon the question of liability of title abstractors generally, see notes in 12 L. R. A. (N. S.) 449; 26 L. R. A. (N. S.) 1207; 42 L. R. A. (N. S.) 176, and L. R. A. 1916D, 826.

      Error to Wayne; Hunt (Ormond F.), J.
    Submitted October 31, 1919.
    (Docket No. 101.)
    Decided December 22, 1919.
    Reargued April 28, 1920.
    Former opinion affirmed June 18, 1920.
    Assumpsit by Morris Beckovsky against the Burton Abstract & Title Company for negligence in extending and certifying an abstract. Judgment for plaintiff. Defendant brings error.
    Affirmed conditionally.

      Campbell, Dewey & Stanton (Henry M. Campbell, of counsel), for appellant.

      Keena, Lightner, Oxtoby & Hanley and Beekenstein & Weinner, for appellee.
    This action is brought by plaintiff against defendant for the purpose of recovering damages growing out of the alleged negligent failure of the defendant in extending and certifying an abstract to show a certain incumbrance for $15,000 upon a piece of property plaintiff was about to buy. The declaration in its first count alleged an express contract between plaintiff and defendant relative to the certification of the abstract and inasmuch as the case went to the jury upon the allegations contained in this count alone, consideration of the other two counts is unnecessary. The plea was the general issue with notice of certain defenses thereunder unimportant so far as this review is concerned. The mortgage lien not noted upon the abstract had been foreclosed before the suit was brought. The final decree in the foreclosure case fixed the amount due at $15,647.50; that sum plus interest to the day of the trial, $339, amounted to $15,986.50, for which sum plaintiff had judgment. Defendant now reviews the case in this court under 20 assignments of error.
   Brooke, J.

(after stating the facts). 1. It is first asserted in behalf of the defendant that in cases of this kind the relationship between the parties is contractual and the action is not based upon tort. A leading case upon the question involved is Savings Bank v. Ward, 100 U. S. 195, where it is held that proof of employment is a prerequisite to maintenance of the action. This decision has been followed in Harshman v. Winterbottom, 123 U. S. 215 (8 Sup. Ct. Rep. 98); Waters-Pierce Co. v. Deselms, 212 U. S. 159 (29 Sup. Ct. Rep. 270); German Alliance Ins. Co. v. Home Water Supply Co., 226 U. S. 220 (33 Sup. Ct. Rep. 32, 42 L. R. A. [N. S.] 1000). See, also, Mallory v. Ferguson, 50 Kan. 685 (32 Pac. 410, 22 L. R. A. 99); Zweigardt v. Birdseye, 57 Mo. App. 462; Schade v. Gehner, 133 Mo. 252 (34 S. W. 576); Equitable Building & Loan Ass’n v. Trust Co., 118 Tenn. 678 (102 S. W. 901, 12 L. R. A. [N. S.] 449, 12 Ann. Cas. 407); Thomas v. Trust Co., 81 Ohio St. 432 (91 N. E. 183, 26 L. R. A. [N. S.] 1210). Upon this point the court charged the jury as follows:

“I charge you that in order for the plaintiff tó recover in this case, he must establish to your satisfaction that a, contract relation existed between plaintiff, Beckovsky* .and the defendant, the Burton Abstract & Title Company, under which and by reason of which the plaintiff had certain rights and the defendant certain obligations to perform with reference to the plaintiff. In other words, this contract relation which the plaintiff claims, must have been suggested that he, the plaintiff, had a- right to rely upon this alleged contract, and the defendant had certain duties with reference to the plaintiff, and those duties he must have performed in the manner as I shall hereafter more in detail instruct you.”

In this court defendant asserts:

“The plaintiff elected to go to the jury upon that count in the declaration charging an express contract. It, is submitted that there is not a scintilla of evidence in the case showing an express contract between this plaintiff and defendant.”

In the light of this assertion and the charge of the court upon the question it is necessary to examine the evidence touching the question. It appears that on October 12, 1917, plaintiff had arranged an exchange of his property with Victor & Lipshitz. Plaintiff’s property was valued at $40,000 subject to a mortgage of $13,000 and Victor & Lipshitz’s property was» valued at $75,000 subject to a mortgage of $35,000, the agreed net values of the two properties being respectively $27,000 for plaintiff’s and $40,000 for that of Victor & Lipshitz. The difference of $13,000 was to be paid by plaintiff to Victor & Lipshitz, $9,000 in cash and the balance, $4,000, by the surrender of the notes for that amount held by plaintiff against Victor & Lipshitz. Two or three days later, plaintiff went to the ■office of Victor & Lipshitz, when, according to the plaintiff’s testimony, the following occurred:

“Q. What took place in their office?
“A. I asked for the abstracts. I saw Victor give me the abstracts and he told me 'Here is your abstracts,’ is the way he explained it. Then he tells me I should go and certify it. I told him, ‘Would there be any difference if Miller go with me, or let him go with me?’ He gave him the abstracts and I asked him, Mr. Miller, if he would go with me. So, on the way I asked him about that deal because he was collecting the rents and asked his information about the tenants and if it was true whatever it brings in. We went to the Burton Company with the abstracts for examination of the title. When I purchased real estate before I had the abstract certified to date and I would not have closed this deal until I had the abstracts examined by my attorney.
“Q. What took place when you went over to the Burton Company office?
“A. We went over and Mr. Miller handed the abstracts through the window. A young lady was sitting there and she asked ‘What name?’ and he told her that this fellow, Mr. Beckovsky, bought the prop-^ erty and he said, T believe he wants to give it in in the name of Victor & Lipshitz because we have to pay the bill.’ I says, ‘Yes, that is what I want. I want you to certify the abstracts and I want you to charge the bill to Victor & Lipshitz.’
“Q. Who did you say that to?
“A. I said it to the young lady who took the abstracts. Mr. Miller handed the abstracts to the young lady behind the counter. There were three or four windows in this counter. The abstracts were handed in through the ‘Order’ window. This was about the 16th or 17th of October. A young man asked, ‘Do you want them in a rush?’ I told him, ‘No, it is in no hurry about it.’ The young man addressed his questions to both of us. He was not standing by the girls when we gave the order in. He just stepped in.”

On cross-examination plaintiff testified:

“A. Yes, sir. Well, when me and Mr. Miller went to Mr. Burton’s office, we went there to the window and we handed the abstracts, and the young man asked him which name to certify the abstracts and he said ‘This gentleman here, Beckovsky, bought the property and I think he wants to give it in the name of Victor & Lipshitz, because it is up to them to pay the bill— up to us to pay the bill.’
“Q. He said, ‘It was up to us to pay the bill’?
“A. Yes. I said, T want you to certify the abstracts for me and charge the bill to Victor & Lipshitz.’
“Q. State whether or not it is a fact that Mr. Victor asked Mr. Miller, in your presence, to take these abstracts and — over and have them signed up?
“A. I believe Mr. Victor told me to take the abstracts. That is the way I recall it.”

Assuming the truth of plaintiff’s testimony, we are of opinion that the language:

“I want you to certify the abstracts and I want you to charge the bill to Victor & Lipshitz,”

—and—

“I want you to certify the abstracts for me and charge the bill to Victor & Lipshitz.”

—is sufficient to carry the question ,to the jury as to whether an express contract was made between plaintiff and defendant. The juiy by its verdict determined that the contract was made as testified to by plaintiff.

2. It is next urged that under the testimony of the plaintiff the contract was plainly between Victor & Lipshitz and defendant and that therefore plaintiff being a stranger to the contract and not furnishing any part of the consideration he cannot recover. A sufficient answer to this contention is found in what we have said, supra,.

3. The next point argued in appellant’s brief is that inasmuch as there was no proof of payment of the amount charged by defendant for the certification of the several abstracts, plaintiff may not recover, citing 13 Corpus Juris, p. 367. If defendant’s agent was advised when the abstracts were left with him for extension and certification that the services were to be rendered to plaintiff but were to be paid for by Victor & Lipshitz, and acquiesced therein, it seems to us that it is unimportant whether payment was made or not. It was said in the case of Monaghan v. Insurance Co., 53 Mich. 238:

“But whenever there is a privity of contract between the plaintiff and the defendant, as when the promise is made directly to the plaintiff, although the consideration for the promise proceeds from a stranger, the defendant is liable to the plaintiff in an action upon the contract because of such privity.”

See, also, Palmer v. Bray, 136 Mich. 85.

4. As outlined in his brief defendant’s fourth position is that:

“At the time the deal was being closed, plaintiff had notice of outstanding papers affecting the title. Being so notified he proceeded thereafter at his peril and subject to any outstanding claims.”

While it is true plaintiff testified:

“After they executed the deed Mr. Victor asked I should hold it over for a day or two because he said, T have some outstanding papers which I have got to take care of,’ * * * He said: ‘That is nothing, I will take care of it within a day or two.’ ”

We are of opinion that this was not sufficient to put plaintiff upon inquiry as to the $15,000 mortgage. The case of Roberts v. Abstract Co., 63 Iowa, 76 (18 N. W. 702), cited by appellant, appears to be inapplicable because in that case the plaintiff knew of the defect in the abstract in time to have prevented the loss had he acted promptly.

5. “The plaintiff was not the party who suffered damage.” This claim is based upon the fact that the title to the property of Victor & Lipshitz was taken by plaintiff in the name of his wife. The declaration, however, charges that plaintiff was the one purchasing the property and alleges that in order that the record might conform to the facts he had taken a quit-claim deed from his wife, a copy of which was attached to and made a part of the declaration. Furthermore, the proofs show conclusively that the entire consideration passed from plaintiff to Victor & Lipshitz. There is no merit in the contention.

6. “The damages are excessive.” It is agreed in briefs of counsel that the certified abstracts were delivered to plaintiff on October 28th. It is therefore certain that plaintiff could not have relied upon said abstracts prior to that time. He testified:

“This agreement was signed on October 12th, 1917, by myself, Nathaniel Victor and Harry Lipshitz. At the time of the execution of the agreement, I paid over to them $1,000, and a few days later, on October 15th, 1917, I gave them $3,500. About a week later I gave two cashier’s checks on a bank in Birmingham, Michigan, for about a thousand dollars and cash, making up $1,500 paid at that time.”

We~ therefore find that by October 22d or six days prior to the day on which plaintiff received the abstracts in question he had paid to Victor & Lipshitz the sum of $6,000. Upon this question defendant requested the court to charge as follows:

“The undisputed evidence in this case shows that before plaintiff received the abstracts, he had paid to Victor & Lipshitz, the sum, at least, of four thousand, five hundred dollars, and defendant claims that fifteen hundred dollars more was also paid by plaintiff before the abstracts were delivered to him. You are instructed that such sums as you find were paid by plaintiff before the abstracts were received by him should be deducted from the amount of the fifteen thousand dollar-mortgage and interest up to on or about December 3d, 1917.”

The request was apparently covered in the charge in the following language:

“I charge you, as a matter of law that the defendant is not liable to the plaintiff for anything which the plaintiff did or did not do until the abstract was furnished and delivered and was in the hands of plaintiff. In other words, whatever he then did or did not do could not have been by reason of the default of the defendant, because not having this abstract back from the defendant, whatever he did, he did upon his own volition so far as the defendant is concerned. So, gentlemen of the jury, you will not take into any consideration that the defendant is liable in any respect for anything that he did or did not do preceding the time when the plaintiff received back the abstract as prepared and certified by the defendant. I think you understand that proposition. Did the plaintiff suffer any damages by reason of the reliance upon the abstract? You are only to take into consideration what he did or did not do after he received the abstract, because he could not have relied upon something he did not have. Then, you will eliminate, as I said, what he did or did not do up to that time. That is, if you pass the first two questions in favor of the plaintiff.”

But the court continued:

“Now, there are at least three different theories of damages in this case. It is claimed by plaintiff that the deed which he made to Victor & Lipshitz was made after he received the abstract back, had an examination made, and that he did that in reliance upon the abstract — upon its correctness and validity. You can take that into consideration if you find that he did deed his property in reliance upon the abstract. And all other things that happened thereafter that he did, if you find that he did them in reliance upon it, you may consider them in making up your items of the damage which the plaintiff suffered, if any.
“Finally, the plaintiff asked the court to instruct the jury that in any event that if plaintiff is entitled to recover, that he is entitled to recover the amount of the decree which was entered in the circuit court for the county of Wayne, in chancery, on the 8 th of August, 1918. Now, it is conceded that that decree was for a certain amount. Before we reach that, however, gentlemen of the jury, it is the law that upon the discovery of the error by plaintiff it was his duty, being placed in that situation when he discovered the defect or error in the abstract, to use reasonable diligence and exercise reasonable exertion to save himself, if possible, from adverse consequences. The defendant is only liable for such damages which plaintiff could not himself have reasonably prevented or lessened. I think you understand that. In other words, if plaintiff discovered that there was an error he should at once, as far as a reasonable man could under the circumstances, do all that he could to save himself from the situation in which he was then placed. I am going to leave that as a matter of fact for you. Did the plaintiff when he discovered the error, exercise reasonable diligence and do all that a reasonable man should under the circumstances, to save himself from further loss? Do not take that from the court as being the impression that he had. If you do find that he used reasonable diligence and took reasonable steps and used reasonable exertion to save himself from further loss and if you further find that he could not thereafter have done anything to lessen the damages, mitigate the damages, it is manifest, gentlemen of the jury, then and in that case only, that this decree of the court that was entered appears to be — now, I will leave that with you — appears to be the amount of damages which he has suffered. Understand that I do not say that that is conclusive, and it is a circumstance, gentleman of the jury, that if he had not gone ahead with this deal, for you to say whether he would have ever deeded his property and received this other deed from Victor & Lipshitz of the property in exchange. It is reasonable to suppose that if the abstract was certified under the circumstances in this case and it did not disclose this lien or mortgage, plaintiff had a right to suppose there was no such lien of record, and it afterwards developed that there was —and you have heard all the testimony about this litigation, and of the efforts of both plaintiff and defendant to have it declared invalid — at any rate, a final decree was entered on or about the 8th day of August for $15,647.50, and if plaintiff is going to have that property as he expected that hei would have it, that is, free and clear from that, he must pay it.
“Now, gentlemen of the jury, the interest as I un-, derstand it, has been conceded or, at least there has been no objection made, that the interest on that from the date of the decree is $339, and that the decree and interest to date is $15,986.50. Now, that is what the plaintiff must pay as the testimony now stands in order to redeem the property from that lien.”

While the latter excerpt is not entirely clear we must regard it as an invitation or at least an authorization to the jury to allow plaintiff the full amount of the $15,000-mortgage, interest and costs, entirely disregarding the fact that prior to the obtaining of the certified copies of the abstracts plaintiff had already parted with $6,000. This is made clearer upon an examination of the motion for a new trial based in part upon this specific ground. The court denied the motion, saying:

“The reasons stated in defendant’s motion are seven in number, but the only question argued by counsel upon the hearing of the motion related to the question of damages. Upon this question the court charged the jury at length and a repetition thereof would serve .no useful purpose here. The court is of the opinion that in the charge to the jury, a more elaborate exposition on the general rule might have been given, but in the instant case, the court finds that such a general charge upon abstract propositions could not have aided the defendant, and being of the opinion that the charge as given safeguarded the rights of the defendant in all essential matters, the motion for new trial is hereby denied.”

It is further urged on behalf of the defendant that the verdict is excessive by the amount of $4,000 notes surrendered by plaintiff to Victor & Lipshitz at the time of the exchange of the papers on November 1st. This claim is based upon the fact that very soon thereafter Victor & Lipshitz became insolvent and it is urged that the notes were worthless. We do not believe this claim tenable. So far as this record discloses the notes at the time of their surrender were good and collectible. It seems quite clear, however, that the judgment against defendant is too great by the amount of $6,000 and interest thereon, from the date of the payment to the day judgment was taken. Plaintiff’s argument that he should recover the full sum of the judgment and interest because after he received the abstracts he parted with the title to his own property valued at $27,000 is entirely fallacious because he got in exchange the property of Victor & Lipshitz of, an equal value at that time. By reason of the defendant’s default plaintiff is out on the entire transaction just the amount of the judgment in this court and from that amount must be deducted such sums as were paid by him before he received the abstracts because they were paid of his own volition, uninfluenced by the failure of the defendant to properly note upon the abstract the $15,000-incumbrance.

If the sum of $6,000 and interest as above stated is remitted from the verdict the judgment will stand affirmed for the lesser sum. If not so remitted a new trial will be ordered. Appellant will recover costs in either case.

Bird, C. J., and Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred. Sharpe, J., did not sit.

On Rehearing.

Brooke, J.

After listening to a reargument upon the question of the measure of damages, and upon further consideration of that question, we are of opinion that the conclusion thereon reached in the original opinion herein is correct.

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


author: Brooke, J.

text:
    PEOPLE v. HASSELL.
    1. Appeal and Error — Questions Reviewable.
    A point not raised in the trial court nor covered by an assignment of error will not be considered by this court.
    2. Intoxicating Liquors — Criminal Law — Interpretation op Statute.
    The provisions of the statute (section 38, Act No. 338, Pub. Acts 1917) requiring the labeling of liquor in transit apply to all shipments of liquor by common carriers.
    3. Same — Consignee—Possession by Drayman — Offense.
    In a prosecution for an offense under section 38, Act No. 338, Pub. Acts 1917, making it unlawful for any consignee of intoxicating liquors to receive or have in his possession any original package or packages containing intoxicating liquor unless said package is marked, etc., where defendant, a passenger, checked two trunks containing whisky of 44.48 per cent, alcoholic content, not marked in compliance with the statute, and at destination gave a dray-man the checks, who obtained the trunks and transferred them to another depot, defendant was guilty of the offense, he being both consignor and consignee, and the possession of the drayman was the possession of defendant.

      Exceptions before judgment from Oakland; Rockwell (Kleber P.), J.
    Submitted October 16, 1919.
    (Docket No. 107.)
    Decided December 22, 1919.
    William F. Hassell was convicted of transporting intoxicating liquor in violation of Act No. 338, Pub. Acts 1917.
    Affirmed.

      Pelton & McGee, for appellant.

      Glenn C. Gillespie, Prosecuting Attorney, for the people.
    Respondent was convicted of an offense under section 38 of Act No. 338, Pub. Acts 1917, which provides :
    “It shall be unlawful for any consignee of intoxicating liquor to receive or have in his possession any original package or packages containing intoxicating liquor unless said package or packages containing such intoxicating liquor have printed thereon in a conspicuous place where it can be plainly seen and read, marked in large letters, the following:

      “First, This package contains intoxicating liquors;

      “Second, Name and address of consignor and consignee, and the quantity and kind of intoxicating liquor;

      “Third, The specific purpose for which such liquors are to be used.”
    The facts about which there is no dispute appear to be as follows: On the morning of February 25, 1919, respondent checked two large sample trunks from Lansing to Pontiac, Michigan, upon presentation of a passenger ticket to the baggageman of the Grand Trunk railway at Lansing. Apparently respondent traveled on the same train upon which his trunks were carried. Shortly after his arrival in Pontiac respondent employed a drayman to transfer the two trunks from the Grand Trunk depot to the Detroit United Railway freight station, giving to the dray-man the two duplicate checks which corresponded with the two checks on the trunks and paying the drayman $1 for his services. The trunks on arrival at Pontiac were discharging a liquid smelling of intoxicating liquor. A special officer of the Grand Trunk thereupon notified the sheriff’s office in Pontiac. The trunks were delivered to the drayman upon surrender by him of the checks and were driven by the drayman to the Detroit United Railway station where respondent was arrested. In the meantime a search warrant had been issued. Respondent and the trunks were taken to the jail where, upon his refusal to tell what was in the trunks or unlock them, they were broken open and found to contain 72 quart bottles of whisky, analyzing 44.48 per cent, alcoholic content.
    At the close of the people’s case respondent moved for a directed verdict upon the grounds that it had not been shown that the liquors were being transported for the purpose of barter or sale; that there was no evidence that their ultimate destination was any place in the State of Michigan; that Act No. 338 of the Public Acts of 1917 was not intended to apply to liquors for private use; and because respondent was not a consignee within the meaning of the act. This motion was overruled, and respondent, having rested his case, a verdict of guilty was rendered by the jury under the direction of the court.
   Brooke, J.

(after stating the facts). In this court respondent contends:

1. That there was no delivery of the trunks to him. A sufficient answer to this contention is found in the fact that the point was not raised in the trial court nor is there any assignment of error covering it in this court.

2. It is next urged on behalf of the respondent that no evidence was offered by the people that the liquors were being transported for business or commercial use. Under this head it is argued that the seizure of the liquor in question could not be justified unless it was apparent that it was stored in a freight house or depot for the purpose of being sold, furnished or given away contrary to law. It is said that the purpose of Act No. 338 of the Public Acts of 1917,—

“was to control liquor that was being transported to points in the State of Michigan for the purpose of being sold, furnished or given away contrary to law; that is to say, it was to control liquor that was being dealt in as, a business.”

We are unable to agree with this contention. The provisions of section 38 requiring the labeling of liquor in transit apply to all shipments of liquor by common carriers; it evidently having been within the contemplation of the legislature that lawful transportation might be had thereunder without offense to other provisions of the law.

3. Respondent’s next contention is that the liquor must have arrived at its destination before any crime was committed, and in this connection it is said that the evidence discloses that the liquor was intercepted while en route and that there is no evidence touching the residence of respondent or the ultimate destination of the liquor. It is likewise urged that respondent was not the “consignee” of the liquor within the meaning of the act. The last two points will be treated together. We have no difficulty in concluding that as to this particular shipment respondent was both consignor and consignee. The act does not provide that the offense is complete only upon delivery of the liquor to the consignee or at its destination. The offense is complete when the consignee shall “receive or have in his possession” the unlawful package. That respondent received the liquor through the agency of the drayman to whom he delivered the baggage checks by means of which the drayman secured possession of the trunks, seems too plain for argument, therefore the possession of the drayman was the possession of the respondent in contemplation of law.

The judgment is affirmed and the case remanded for further proceedings.

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


text:
    FELDMAN v. ZIMMERMAN.
    1. Circuit Court Commissioners — Apteais—Time — Justices of the Peace — Statutes.
    The time within which appeals may be taken from circuit court commissioners, being the same as from justices’ courts, under 3 Comp. Laws 1915, § 13252, is limited to five days by 3 Comp. Laws 1915, §§ 14402, 14403, 14406, and the circuit court has no discretionary power to allow an appeal after the expiration of that time except where an application is made for a delayed appeal under section 14408.
    2. Same — Statutes—Construction—Writ of Restitution.
    Act No. 243, Pub. Acts 1917, amending 3 Comp. Laws 1915, § 13253, construed, and held, not to extend the time from 5 to 30 days within which an appeal might be taken from the judgment of the circuit court commissioner in the case of a proceeding upon an executory contract for the purchase of land, but that the legislative intent was to extend the time within which a writ of restitution might not be issued to 30 days.

      Error to Wayne; Goff (John H.), J.
    Submitted October 22, 1919.
    (Docket No. 117.)
    Decided December 22, 1919.
    Summary proceedings by Samuel Feldman and another against Fred C. Zimmerman and another for the possession of certain real property. There was judgment of restitution, and defendants appealed to the circuit court. Judgment for defendants. Plaintiffs bring error.
    Reversed, and appeal dismissed.

      William Friedman (Morris Garvett, of counsel), for appellants.

      Rood & Visscher, for appellees.
   Brooke, J.

A single controlling question was presented for determination upon this record. Plaintiffs, on March 12, 1919, brought suit before Samuel L. May, circuit court commissioner, to recover possession of certain premises described in the pleadings from said defendants. Judgment of restitution was rendered by said circuit court commissioner on March 28, 1919. An appeal was perfected by defendants and bond filed on April 25, 1919, 28 days subsequent to the date of judgment. The statute touching appeals from circuit court commissioners, 3 Comp. Laws 1915, § 13252, provides in part:

“Either party conceiving nimself aggrieved by the determination or judgment of the commissioner, or other officer, made or rendered under the provisions of this chapter, may appeal therefrom to the circuit court for the same county, within the same time, in the same manner, and return may be compelled, and the same proceedings shall be thereon had, as near as may be, and with the like effect, as in cases of appeals from judgments rendered before justices of the peace, and costs shall be awarded and collected in the circuit court in the same manner.” * * *

The law relative to appeals from justices’ courts, 3 Comp. Laws 1915, § 14402, provides:

“The party appealing under the provisions of the preceding section shall, within five days after the rendition of the judgment, present to the justice an affidavit made by himself, his agent, or attorney, before any person authorized to administer oaths, stating that such judgment is not in accordance with the rights of such party, as the person making such affidavit verily believes.” * * *

Section 14403 provides:

“The party appealing under the provisions of the preceding section shall also, within five days after the rendition of the judgment, deliver to the justice a bond or recognizance to the adverse party, in conformity with the following provisions:” * * *

Section 14406 provides:

“The appellant shall, within the said five days, in addition to the making and filing of an affidavit and bond, pay to the justice the taxable costs of the prevailing party, together with the- sum of one dollar for making his'return to said appeal, and the further sum of three dollars as clerk and entry fee,” etc.

Section 14408 provides that:

“Appeals may be authorized by the circuit court, or by the circuit judge at chambers, after the expiration of five days, when the party making the appeal has been prevented from taking the same by circumstances not under his control.” * * *

We have repeatedly held that the circuit court has no discretionary power to allow appeals from justice’s court after the expiration of 5 days provided by statute. Such right exists only where the party desiring a delayed appeal makes application under the provisions of section 14408, supra; Anderson v. Wartenberg, 196 Mich. 529, and cases cited.

In the case at bar no application for a delayed appeal was made. It is the contention of counsel for defendants that their appeal was seasonably taken. Section 25, chapter 30, 3 Comp. Laws 1915, § 13253:

“No writ of restitution shall be issued under the provisions of this chapter, until the expiration of five days after the entry of judgment of restitution; and in case of an appeal within that time, no writ of restitution shall issue until such appeal be determined in the circuit court; and in case it is found that the plaintiff is entitled to the possession of the premises, in consequence of the nonpayment of a sum of money, no writ of restitution shall issue, if the defendant shall, within five days after final judgment, pay the amount so found due, and the amount of costs awarded to the said plaintiff.”

By Act No. 243 of the Public Acts of 1917 said section was amended to read in part as follows:

“No writ of restitution shall be issued under the provisions of this chapter, until the expiration of five days, or in the case of a proceeding upon any executory contract for the purchase of real estate until the expiration of thirty days after the entry of judgment of restitution; and in case of an appeal within that time, no writ of restitution shall issue until such appeal be determined in the circuit court.” * * *

Counsel for defendants insist that by this amendment the time during which a dissatisfied litigant may appeal from the judgment of the circuit court commissioner, “in the case of a proceeding upon any executory contract for the purchase of real estate,” is extended from 5 to 30 days. We are unable to agree with this construction of the statute. It is to be noted that the preceding section 13252, 3 Comp. Laws 1915, (section 24, chapter 30) deals with the right and limitations on the right of appeal. The next section deals only with the question of when a writ of restitution may issue. By amendment it extends the time from 5 to 30 days within which such writ may not issue. The words “that time” in the concluding language,—

“and in case of an appeal within that time, no writ of restitution shall issue until such appeal be determined in the circuit court,”

should be construed to refer to the 5-day period instead of to the 30-day period. In other words, there is apparent no intention to change the section relative to appeals but it was the legislative intent in cases of proceedings upon executory contracts for the purchase of real estate to extend the period within which a writ of restitution might not be issued to 30. days.

Upon the trial the plaintiff moved to dismiss the appeal because not seasonably taken, excepted to the overruling of said motion and assigned error upon the action of the court thereon.

The judgment is reversed and the appeal from the circuit court commissioner to the circuit court is dismissed.

Bird, C. J.,_and Sharpe, Moore, Steere, Fellows, Stone, and Kuhn, JJ., concurred.


text:
    FREEMAN v. HOAG.
    1. Appeal and Ebeob — Requests to Charge — Directed Verdict.
    Where the testimony was in dispute, the trial court was not in error in refusing requests to charge which amounted to a directed verdict.
    2. Contracts — Release—Consideration—Suettciency.
    The promise of plaintiff to release defendant from his obligation on a contract to pay plaintiff part of the proceeds of a note made by third parties to defendant if he would indorse another not© of the makers for ?1,000, thus releasing security in which plaintiff had an interest, held, supported by a sufficient consideration.
    3. New Trial — Newly-Discovered Evidence — Admissibility.
    Where plaintiff’s motion for a new trial on the ground of newly-discovered evidence was supported by an affidavit that, after the date of the alleged agreement releasing defendant from his obligation to pay plaintiff, defendant stated to affiant that he wanted to borrow money to pay up plaintiff, held, that the trial court was in error in concluding that such testimony was inadmissible as tending to show a compromise, since affiant apparently had no knowledge of such effort, if any was being made, and that under the facts of this case a new trial should have been granted.
    Error to Washtenaw; Sample (George W.), J.
    Submitted October 14, 1919.
    (Docket No. 39.)
    Decided December 22, 1919.
    Case by Amariah F. Freeman against Egbert G. Hoag for a breach of a contract for the division of the proceeds of a promissory note. Judgment for defendant. Plaintiff brings error.
    Reversed.

      A. F. Freeman (Frank B. DeVine, of counsel), in pro. per.

      Cavanaugh & Burke, for appellee.
    Plaintiff brought suit against defendant to recover for an alleged breach of a written contract bearing date October 12, 1914. After reciting that Homer C. Millen and May Millen had executed a note in the sum of $3,000 dated September 23, 1914, payable on or before April 1, 1915, to defendant Hoag, the contract provided:
    “That from the moneys realized or paid in on said $3,000-note to the amount of $1,737.34 the same shall first belong and be payable to said Hoag for that amount. .

      “That all sums realized and paid in on said $3,000-note when paid in full, over and above said $1,737.34, shall belong to and be divided equally or share and share alike, between said Hoag and said Freeman, and that said Freeman’s ownership in said note and chattel mortgage, notwithstanding same is in the name of said Hoag, shall be in that proportion and in that amount as it may figure when the whole amount payable is paid, but that if any less sum is paid than the whole of such.note through a proposed compromise or settlement at a lesser amount, then such shall first have the approval of said Freeman; but that if full payment is not realized or paid and no compromise amount is then effected as payment and it shall become necessary to realize on such note to force collection and foreclose said chattel mortgage and to realize-further or attempt to from the decree or the results of said chancery suit, or in these securities, and a lesser amount results and is realized than the full amount of such note, said Freeman shall be entitled to all amounts over and above the said $1,737.34 to the extent of $600 at least, or so much thereof as may be realized, and all above $2,337.34, share and share alike as- aforesaid.”
    The declaration in effect alleges full payment of said note by the Millens to defendant and the refusal of said defendant to account to plaintiff for his share thereof under the terms of the contract.
    Under the plea of the general issue defendant does not deny the execution of the contract relied upon by plaintiff but alleges that defendant’s liability thereunder has been fully paid and cancelled under the following circumstances:
    “The said. Millens named in said declaration and the said plaintiff desired to procure a loan from the bank of one thousand dollars, for the purpose of paying an indebtedness of the said Millen; that said plaintiff, Amariah F. Freeman, was interested financially in_ the payment of said indebtedness ; that the said Millens and the said plaintiff, in order to obtain the loan of said one thousand dollars, found it necessary to obtain the signature of this defendant to a promissory note given to said bank as security for said loan , that the said plaintiff, the said Amariah F. Freeman, came to this defendant and promised and agreed to and with this defendant that if he, the said defendant, would sign said note and thus enable the said Millens to procure a loan thereon from the bank of one thousand dollars, that in consideration of the defendant’s so doing, he, the-said plaintiff, the said Amariah F. Freeman, would release and discharge this defendant from any and all liability whatever resulting to this defendant under and by virtue of said writing, Exhibit A, attached to the declaration herein; that in consideration of the said promise and agreement of the said Freeman and for said consideration, this defendant signed said note to said bank and became liable to pay the same and remained liable thereon until said note was afterwards paid.”
    Upon the issue thus framed the parties went to trial. After a full hearing upon the merits, the court charged the jury that the plaintiff was entitled under the proofs to recover from defendant the sum of $1,-013.83 as his share under the contract, unless,—
    “the defendant rebuts such cause and establishes by a preponderance of the 'evidence such a valid contract based upon a lawful consideration that plaintiff, Freeman, has given up and; transferred his claim to the defendant, Hoag. And defendant, Hoag, has the burden of proof upon him to establish such a transfer by plaintiff, Freeman, to defendant, Hoag, and defendant, Hoag, must also satisfy you that Freeman has done that by the preponderance of the evidence.”
    The jury returned a verdict in favor of the defendant. Thereafter a motion for a new trial was made upon the following grounds:
    1. Because of newiy-discovered evidence.
    2. Because of unwarranted and prejudicial conduct of counsel for defendant.
    3. Because of the alleged erroneous refusal to instruct as requested.
    4. Because the verdict was against the weight of the evidence.

      The learned circuit judge who heard the case seems to have reached the conclusion under an opinion dated February 7, 1919, that a new trial should be granted upon the ground of newly-discovered evidence. We find, however, that by a later decision dated and filed February 24, 1919, a new trial was denied. Plaintiff now reviews a judgment of no cause of action in this court.
   Brooke, J.

(after stating the facts). The first three assignments of error are based upon the alleged erroneous refusal of the court to give plaintiff’s requests to charge as presented. An examination of those requests will show that they amounted to requests for a directed verdict in favor of the plaintiff. We are of opinion that they were properly refused. It would seem that if defendant, Hoag, indorsed the $1,000-note of the Millens at the request of the plaintiff, who was interested in securing the money with which to settle with Sawyer, thus releasing stock held by Sawyer, a part of which went to plaintiff under a promise of plaintiff to release defendant from his obligations under the contract sued upon, a sufficient consideration would be made to appear.

Whether such an agreement was made was, in our opinion, a question of fact for the jury under proper instructions and, assuming it to have been such a question, we do not understand the instructions of the trial court are criticized by plaintiff’s counsel.

The remaining important assignments of error refer to the denial of the motion for a new trial. Bearing upon the question of newly-discovered evidence, plaintiff introduced the affidavit of one Tallmadge to the effect that on or about September 13, 1918, defendant, Hoag, desired to make a loan; that in the course of negotiations,—

“he stated to this deponent that he wanted moneys to pay to some other party, his partner as he expressed it, whose name he did not state, but who lived at Ann Arbor, who had certain interests and ownership in the said chattel mortgage and the said stock certificates so hypothecated as aforesaid, and that he wanted the said moneys of three hundred dollars ($800) to pay off or buy off his partner or such other party thus interested jointly with him and so that he and the said Millen could deal with each other as they desired, for the said other party, his partner, at Ann Arbor, was vigorously insisting him, said Hoag, that said Hoag must proceed with the foreclosure under the said chattel mortgage and the said stock certificate and make collection of the debt that said Hoag and the other party, his partner, had jointly against the said Millens as aforesaid, and that he desired to obtain the three hundred dollars ($300) to buy him off or pay him off as aforesaid, so that he would not have to crowd the Millens which he did not want to do at that time for some reason which he did not state.”

In his first decision upon the motion the court held:

“I find that the newly-discovered evidence in this case, as set forth in the motion and affidavit, meets the requirements for a new trial as laid down by the courts. It is therefore ordered that a new trial be granted in the above-entitled cause.”

After striking this decision from the files he dealt with the question as follows :

“The only remaining ground upon which plaintiff bases his motion for a new trial is that of newly-discovered evidence. I think this position is also untenable. The plaintiff attempted during the trial of the cause to introduce evidence showing that defendant offered to pay him $300 for full discharge of the claim of more than $1,000 involved in the suit. The testimony was rejected because it was an offer on the part of the defendant to compromise. The newly-discovered evidence which plaintiff wishes to introduce, is of one Tallmadge, and, in substance, that defendant in borrowing $300, said that it was to pay to a certain party. I regard the proposed testimony as testimony tending to show further that the defendant was securing money, if to pay the plaintiff at all, was to pay him as a compromise.”

The significance of the alleged newly-discovered evidence, if introduced, is that it would or might convince the jury that defendant, Hoag, would not be borrowing money in September, 1918, to buy out plaintiff’s interest if said interest had been extinguished by agreement at the time the $1,000 Millens’ promissory note was indorsed by defendant. We are of opinion that the court was in error in concluding that such evidence would have been inadmissible as tending to show a compromise between plaintiff and defendant. The witness, if examined, would apparently have no knowledge of such an effort, if any, being made on the part of defendant.

Touching upon the ground alleged in the motion for new trial that the verdict was against the great weight of the evidence, plaintiff points out that the $1,000-note indorsed by defendant bore date July 1, 1916, and that in open court in a case wherein Homer C. and May Millen were plaintiffs and defendant, Hoag, was defendant in August, 1918, more than two years after his alleged release from obligation under the contract, defendant testified:

“Q. You were to put up the attorney fee?
“A. I was to look after certain investigations he was to make * * * we had to have the thing gone into pretty thoroughly and, of course, provide for him.
“Q. Did you advance money upon that?
“A. I have not advanced it, I expect I will have to.
“Q. Do you know how much that will amount to?
“A. I suppose around $700, something like that.
“Q. With whom did you agree to take care of that?
“A. Mr. A. F.'Freeman.
“Q. You agreed to pay him $700 for that?
“A. We have not determined upon the amount, because if it were successful it would be a little more and if not it would be a little less. Mr. Freeman was taken into the case at my suggestion, * * * Well, it figures like this: we will say the first mortgage was for $1,400 (really $1,237.34), and we will say that I gave them $500 in money * * * I was* to take care of Mr. Freeman’s account which was something we couldn’t exactly arrive at until we got to the end.
“Q. Do you know what those amounts figure up at?
“A. I couldn’t tell you until I settle with Mr. Freeman.”

While this evidence may not be conclusive against defendant’s present contention, it would appear to be significant, and, in a case where a fact is asserted by one and denied by one other, no other witnesses to the transaction being obtainable, we are impressed that its significance may be accentuated. Upon a careful perusal of the whole record we are disposed to the view that the conclusion first reached by the learned trial judge that a new trial should be ordered was correct.

The assignments of error based upon alleged improper conduct of counsel are not considered. Upon another trial no occasion for complaint on this score should be permitted to arise.

The judgment is reversed and a new trial ordered, with costs.

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