text:
    SEYMOUR v. BRUSKE.
    1. Trover — Conversion—Title of Plaintiff. ’
    In trover against a mere wrong-doer for the conversion of logs, it is no defense that plaintiff did not cut them within the time limited by the contract by which he acquired title from the owner of the land.
    2. Same — Ownership—Evidence—Sufficiency.
    In trover for the conversion of logs cut by plaintiff under contract with the owner of the land, evidence as to the ownership of the brand with which they were marked and of their being cut, skidded, and floated, examined in connection with defendant’s claims as to how he acquired title, and held, suf- , ijcient to establish plaintiff’s title for the purpose of the case.
    3. Same — Abandonment by Plaintiff.
    In trover for certain logs, where defendant claimed title by purchase from one who had previously been a partner of plaintiff, and claimed that upon his inquiring of plaintiff as to the ownership of logs bearing the mark of the Arm, plaintiff referred him to the partner, a charge that if the jury believed defendant’s testimony in regard to the interview with plaintiff, it would amount to an abandonment of logs converted after that date, was sufficiently favorable to defendant.

      4. Same — Logs—Number Converted — Evidence.
    In trover for the conversion of certain logs, evidence of the number of logs put into the water by plaintiffs, the number accounted for, and the percentage to be deducted for loss, for sunken logs, and the loss in towing and otherwise, is admissible to show approximately the logs probably converted by defendant.
    5. Same — Other Conversions.
    Evidence of the conversion and attempted conversion by defendant of logs belonging to others than plaintiff, introduced to show that defendant was engaged in the business of stealing logs, was incompetent.
    6. Witnesses — Bias—Grounds.
    The fact that a witness who gives testimony against a party to the suit is not friendly to that party is permitted to be shown in order that the jury may better judge the value of the testi-, mony given, but whether a feeling shown to exist ought or ought not to exist is not, in most cases, material.
    '7. Witnesses — Examination—Discretion oe Court.
    The extent to which an examination into the character of the •relations existing between a witness and the parties shall go is largely within the discretion of the trial court, and dependent upon the particular situation developed at the trial.
    ON MOTION to RETAX ‘COSTS, RECALL EXECUTION, 'AND MODIFY JUDGMENT.
    1. Costs — Reversal—Effect.
    The reversal of a judgment and an order for a new trial is in effect an allowance of the costs of this court to the party prevailing here unless grounds for the application of -Rule 67 •appear.
    2. Appeal and Error — Practice—Death of Party — Suggestion after Judgment.
    A suggestion of the death of one of the co-parties on error may properly be made after judgment as of the date of the death, and the judgment so modified that the-costs shall run against the survivor alone. Section 10121, 3 Comp. Laws.
    6, Same — Failure to Suggest Death — Waiver.
    The failure of a defendant in error to suggest the death of one of the two plaintiffs is an irregularity which may be waived by the survivor.
    4. Same — Execution—Reformation—Effect.
    Where an execution issued out of this court is recalled for the purpose of reformation, so as to comply with an amended judgment, any rights which have accrued under the execution by levy will be saved.

      Error to Manistee; McAlvay, J.
    Submitted February 14, 1905.
    (Docket No. 146.)
    Decided May 22, 1905.
    Motion to retax costs, recall execution, and modify judgment .on error submitted July 21, 1905.
    (Calendar No. 20,507.)
    Denied September 21, 1905.
    Trover by Richard A. Seymour and John Seymour, co-partners' as Seymour Brothers, against Herman Bruske. There was judgment for plaintiffs, and defendant brings error.
    Reversed.

      Frank L. Fowler, for appellant.

      P. T. Glassmire (Smurthwaite & Alway, of counsel), for appellees.
   Ostrander, J.

Plaintiffs sued to recover the value of certain pine and hemlock logs. The amended bill of particulars states the number of pine logs converted as 22,000, worth $20,400, and of hemlock 1,000 logs, worth $1,200. The bill of particulars also contains the following:

. ‘e Said saw lo^s at the time of their unlawful conversion being on the banks of the Sable river, Upper and Lower Hamlin Lake, and upon the waters therein, and a small portion of said saw logs, to wit, about 700 hemlock saw logs, were below the dam on said Hamlin Lake, all in Mason county, Michigan. ”

After a trial which occupied several days, a verdict for plaintiffs for $713.30 was returned, upon which judgment was entered. Defendant brings the case to this court, assigning 125 errors, all but one of which, it is said in the brief, are insisted upon. Counsel has grouped the alleged errors for discussion, as: (1) Those relating to plaintiffs’ title to the logs. (2) Those relating to defendant’s title to the logs. (3) Those relating to method of proving the number of logs converted. (4, 6, 7) Errors in receiving and rejecting evidence. (5) Errors in the charge.

1. The testimony on the part of plaintiffs tended to show that during the years 1890 to 1894, most of the timber being cut in 1890 and 1891, they owned a large quantity of pine and hemlock logs which had been cut by themselves and others on lands along Sable river and Hamlin Lake, which were marked on the ends “777,” and on the bark “7,” and were put in the water; that a large part of the logs were purchased from Pardee Cooke & Co., of Chicago, who gave to plaintiffs bills of sale of such timber standing on their lands as they should cut and remove within a limited number of years specified in each bill of sale; that the log marks used were originally chosen and recorded by themselves and A. E. Cartier as Cartier, Seymour & Co., in 1887, and were used by themselves and said Cartier in' lumbering operations carried' on by them jointly on the Pere Marquette river; that Cartier, Seymour & Co. had never lumbered on the Sable river or on Hamlin Lake, nor owned any logs there bearing said marks; that by arrangement with Cartier plaintiffs used said marks in the operations here involved. To the testimony of witnesses .as to the descriptions of land from which logs were cut, to the introduction of the bills of sale, and to the record of the log marks counsel for defendant objected, and now objects, that they were not competent evidence of title; that competent evidence of title to the logs is wholly wanting. In making one of these objections counsel said:

“We are not charged here with the conversion or taking of any of these logs from the land. We are charged with the conversion that we took them from certain streams and from the lake.”

In this statement counsel, as we think, overruled, properly, his own objections, and gave the reason why this point is not, as he claims it. is, controlled by the rulings in Crawford v. Corey, 99 Mich. 415, and in Solomon v. Widner, 117 Mich. 524. This is not an action of trespass, nor a suit by the owner of land to recover the value of timber taken by an alleged trespasser. Plaintiffs charge conversion of logs which they had cut or purchased, marked, and placed in the water. They showed that they had bills of sale of the timber from persons who described the lands as “belonging to us.” They showed that they had taken most of the logs so cut and marked, by water, to Ludington, and had there manufactured them into lumber; that, after discontinuing operations in 1894, they had skidded a large number of these logs on the banks, and it was these skidded logs and other of such logs remaining in the water that defendant is charged with having converted. The point made that the proof did not show with certainty that all of the logs were cut within the time limits fixed in the bills of sale is not one, we think, that defendant can rely upon. But, further than this, defendant, before the trial had proceeded very far, claimed by his counsel that he had purchased the logs he is charged with converting. It is defendant’s own testimony that he visited one of the plaintiffs to learn who owned the log marks in question, with the intention of buying the logs so marked, and that he was informed that Cartier owned them, and that he then purchased from Cartier; that he had caused some logs bearing these marks to be skidded, and, while he had sawed none of them, he would have done so if not prevented by men having them in charge. There is no evidence tending to show title in any one excepting plaintiffs. Defendant based hi's claim of title upon a purchase which recognized plaintiffs as the original owners. The court properly instructed the jury that for the purposes of this case plaintiffs had established their title to the logs at the time they were put into the water.

2. Defendant’s claim of title to the logs rests upon testimony, given by himself, to the effect that in 1896 he examined the record of log marks, and found that ‘ ‘ 777 ” and “7,” as recorded, belonged to Cartier, Seymour & Co.; that he called upon Richard A. Seymour, one of the plaintiffs, and was informed by him that Seymour Bros, had no interest in the mark, and had transferred their interest therein to Cartier; that he then saw Cartier, who was president of the Cartier Lumber Company, and took from him a bill of sale of certain property, including “all deadhead logs in and about Hamlin Lake and its tributaries, not in boom or on skidways, and belonging to said Cartier Lumber Company.” The bill of sale described no log marks. Defendant testifies that Mr. Cartier told him that ‘ ‘ they were through there, and were not going to do any more business, and I could have all the logs there were there, and I asked him what the marks were, and he said ‘777,’ ‘C’s,’ and a box mark altogether, and the mark ‘44.’” The bill of sale is executed by “Cartier Lumber Company, by A. E. Cartier, its president.” For the purpose of showing title to the deadhead logs, and for the purpose of showing good faith on the part of defendant, this proof and the bill of sale were offered in evidence. The court excluded the bill of sale, and charged the jury that the Cartier Lumber Company had, under the facts, no interest whatever in the logs in question or in the “ 777 ” mark; that if it undertook to sell the logs so marked without the knowledge of or by consent of the Seymours, such a sale would not be binding on plaintiffs. As we understand the contention made for defendant upon this point, it is that, if Mr. Cartier, who was one of the record owners of the log mark, and, it was claimed, a partner of plaintiffs, represented that the Cartier Lumber Company owned the logs bearing the mark, plaintiffs are concluded by the rule that “a partnership is bound by the false representations, if acted upon, of any of the copartners, made within the scope of the business.” We need not discuss this proposition. There is no evidence tending to show that Cartier and plaintiffs were at that time partners, nor that Mr. Cartier was assuming to act for such a partnership. The testimony concerning the talks with Richard A. Seymour and with Mr. Cartier was admitted. The facts testified to by defendant were denied by both Seymour and Cartier. The court charged the jury that if they believed defendant upon the question of the alleged interview with Mr. Seymour it would amount to an abandonment, by plaintiffs, of any deadhead “777’’logs converted by defendant after that date, if any were so converted. This was sufficiently favorable to defendant. We do not find that any error was committed upon this branch of the case.

3. Plaintiffs, to show the number of logs converted, gave evidence of the number put into the water, the number accounted for, allowed a percentage for loss for sunken logs and for loss in towing and otherwise. This did not show or tend to show that defendant had converted any logs. But it was testimony tending to show that plaintiffs had not themselves had the logs. They were cross-examined upon the matter, and their attention called to possible losses and ways of losing logs, and the jury heard the story. Plaintiffs offered evidence tending to show that defendant sawed large quantities of their logs, and had on his yard piles of lumber showing their mark, and had admitted the sawing of the logs; that he had sold for a consideration other of the logs on which he had caused his own mark to be placed. It was not possible for plaintiffs to show the precise number of logs defendant had converted to his own use, if any. The best that could be done was to show how many were put into the water, how many were regularly thereafter accounted for to them, the probable and possible chances of loss of logs in the regular course of the business, and so by a process of exclusion arrive at the number of logs probably cut by defendant. We understand from the record there was no other sawmill than defendant’s between Lake Michigan and the places where these logs were put into the water. Defendant denied having cut any logs bearing this mark. The jury had all of this testimony before them. We are of opinion that the court exercised a fair and reasonable discretion in admitting the testimony, and that no error appears.

4, 6, 7. Complaint is made because the court permitted defendant to be cross-examined about immaterial matters, and his testimony given concerning such matters to be contradicted. And the method of conducting some of the cross-examination is criticised. For example, various witnesses, including defendant, were asked by plaintiffs’ counsel about conversions'and attempted conversions by defendant of logs belonging to others than plaintiffs, and with respect to some of these alleged occurrences substantive proof was offered. It was the theory of plaintiffs, and no mistake concerning their attitude was possible, that defendant was engaged in the business of stealing and sawing the logs of others, and was claiming to have purchased the logs in question and others as a cover for the willful appropriation of property. We should, perhaps, be justified in this case in treating the cross-examination of defendant upon the subject of his dealings with the logs of other people as not calling for reversal of the judgment. But, as has been stated, plaintiffs’ counsel in rebuttal offerred, and the court received, substantive evidence of such alleged misconduct. Use was made of it in the argument to the jury. . Counsel for plaintiffs admit that it tended to show that defendant was in the general business of converting the logs of other people on this lake, and claim that the testimony of the conversion of the logs of others was competent upon the authority of Ayres v. Hubbard, 71 Mich. 594. In that.case a claimed trespass of land was committed by the cutting of timber, some of which was taken from1 the land of one owner and some from the land of another owner, both trespasses or a single trespass committed at the same time affecting two pieces of land and two owners. The defendant settled with the owner of one parcel of land, and proof of the transaction was admitted for the purpose of fixing the trespass upon the land of the other owner at a timé within the statute of limitations. The testimony in that case was neither offered nor received for the purpose for which it was introduced into this case. Nor is the case of People v. Kemp, 76 Mich. 410, cited by counsel, authority for admitting this testimony. • The testimony given upon the trial, contrasted with the verdict returned, impresses us with the idea that the jury were not in fact prejudiced by this evidence. We cannot say, however, that it was not prejudicial. We can say that it was incompetent.///

In this same connection, we notice other assignments of error relating to the admission and rejection of testimony. The plaintiffs having called a number of men who worked for defendant, who testified to the sawing of logs bearing the “777” mark, counsel for defendant, for the purpose of showing the animus of these witnesses, properly enough asked some of them, upon cross-examination, if they had not had trouble with defendant — did not bear him ill-will. The fact that a witness who gives testimony against a party to- a suit is not friendly to that party is permitted to be shown in order that the jury may better judge the value of the testimony given. But whether a feeling shown to exist ought or ought not to exist is not, in most cases, material. In the case at bar counsel for plaintiffs, both upon cross-examination of defendant and by direct questions to the witnesses, sought to and did obtain specifications of these various difficulties and disagreements not favorable to defendant’s reputation. The extent to which such examinations shall go is largely within the discretion of the trial court, and dependent upon the particular situation developed at the trial. In this case the proper purpose of such testimony was, apparently, entirely lost sight of in the zeal with which the charges and counter-charges of witnesses and defendant were developed and presented to the jury.

We are not disposed, because we think it unnecessary, to discuss other errors assigned, whether they are based upon rulings of the court or upon the charge to the jury. None of them are likely to arise upon a new trial.

As to the measure of damages, the court accepted and gave the rule asserted by counsel for defendant. .

For the errors pointed out, we feel obliged to reverse the judgment and order a new trial.

Carpenter, Blair, Montgomery, and’Hooker, JJ., concurred.

ON MOTION TO RETAX COSTS, RECALL EXECUTION, AND MODIFY JUDGMENT.

Per Curiam.

The plaintiff petitioner moves:

1. To retax the costs of this court.

2. To recall an execution issued, out of this court for collection of taxed costs.

3. To set aside the judgment of this court, so far as the same affects Richard A. Seymour, one of the plaintiffs below and one of the defendants in error.

4. To compel plaintiff in error to suggest of record the death of said Richard A. Seymour.

5. That costs of this court abide the final determination of the cause.

Two principal grounds are asserted and relied upon. They are:

1. That the bill of exceptions is unnecessarily voluminous.

2. That, plaintiff Richard A. Seymour having deceased after judgment below and before the issuing of the writ of error, it was incumbent upon defendant, the plaintiff in error, to amend the record, and that, not having done so, the judgriient of this court, reversing the judgment below and granting a new trial, is so irregular as to require reforming.

The costs of this court, as taxed by the clerk of the court, amount to $498.33. The reversal of the judgment and order for a new trial was in effect the allowance of the costs of this court to the party prevailing here. No application of Sup. Ct. Rule 37 was thought to be required, and upon re-examination no reason appears for such application. This disposes of the questions raised as to the amount of the costs as taxed.

The plaintiffs sued as joint owners of the timber claimed to have been used or sold by defendant. This court had no knowledge of the death of one of the plaintiffs. Counsel for the plaintiffs noticed the case for hearing in this court and later filed a brief in their behalf. In view of the statute (3 Comp. Laws, § 10121), and of the opinions of this court (Jenness v. Lapeer Circuit Judge, 42 Mich. 469; Newberry v. Trowbridge, 13 Mich. 263; Healy v. Newton, 96 Mich. 228), it seems proper to allow suggestion of the death of said plaintiff to be made now as of the time of such death, and to modify the judgment of this court, so that defendant recovers costs against the survivor alone.

As to the survivor so affected, the failure of defendant to suggest the death of his coplaintiff was an irregularity merely, which he could and did waive.

The execution issued out of this court will be recalled and reformed; so as to comply with the proper judgment. If, however, rights have accrued under said execution by levy upon the property of said survivor, said rights will be saved. Neither party will recover costs of this motion.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    GOULD v. WILKINSON.
    Liens — Oral Contract — Evidence—Sufficiency.
    On a bill to establish a lien on land growing out of an oral agreement under which complainant’s intestate built a barn on defendant’s land, evidence examined, and held, insufficient to support the allegations of the bill.
    Appeal from Barry; Smith, J.
    Submitted February 16, 1905.
    (Docket No. 160.)
    Decided May 22, 1905.
    Bill by Cassius M. Gould, as administrator of the estate of Robert Elston, against Jane Wilkinson and others to establish and enforce a lien. From a decree for complainant, defendant Wilkinson appeals.
    Reversed, and bill dismissed:

      Thomas Sullivan and Alonzo E. Kenaston, for complainant.

      Oolgrove & Potter, for appellant.
   Blair, J.

Complainant, as administrator of the estate of Robert Elston, deceaséd, filed the bill of complaint in this case to establish and enforce a lien claimed as springing from an alleged oral agreement between the said Robert Elston in his lifetime and Jane Wilkinson, his mother, by which it was agreed that the said Robert Elston should build a barn upon lands belonging to his mother, with the right to purchase the premises at their value, less the value of the improvements added by him, or, if he did not wish .to purchase, to receive pay and have a lien for the value of such improvements. Numerous witnesses were called by the parties in support and denial of the making of the alleged oral agreement, and after considering the same the court entered a decree in favor of complainant. The only questions which this record presents requiring our consideration are the questions of fact presented by the conflicting evidence relative to the alleged oral agreement for a lien. No useful purpose would be served by reviewing the voluminous testimony upon this issue of fact in this opinion. It is sufficient to say that, after a careful review and consideration of the testimony, we have reached a different conclusion from that arrived at by the circuit judge.

The decree is reversed, and a decree will be entered dismissing the bill of complaint, with costs to defendants.

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


text:
    BRUNELLE v. RUELL.
    Trial — Question for Jury — Evidence Authorizing Different Inferences.
    Where the testimony in an action of crim. con. is as consistent with innocence as with guilt, but is such that different inferences may be drawn from it, the case is for the jury, and it is error to direct a verdict for defendant.
    Error to Houghton; Streeter, J.
    Submitted February 16, 1905.
    (Docket No. 165.)
    Decided May 22, 1905.
    Case by Joseph Brunelle against Archie Ruell for alienation of affections and criminal conversation. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      George O. Driscoll (P. H. O'Brien, of counsel), for appellant.

      Ohadbourne & Bees, for appellee.
   Blair, J.

This case was brought in the circuit court of Houghton county to recover damages for the alleged alienation by defendant of the affections of Sarah Brunelle, wife of the plaintiff, and for criminal conversation.

The testimony upon the trial was directed towards the maintenance of the charge of criminal conversation. At the close of the testimony for plaintiff, the court took the case from the jury, and directed a verdict on the ground that the evidence would not warrant a verdict in favor of plaintiff. The court’s reason for directing a verdict was explained by him in his charge, as follows:

“After a careful review of all the testimony in the case, I am unable to find one single act which, to my mind, is not as likely to be an innocent act as a guilty one, and, having that view of the testimony, I feel it my duty to direct you to render a verdict of not guilty. ” *

We think the learned trial judge erred in directing this verdict. After a careful consideration of the testimony, we have also arrived at the conclusion that the testimony is consistent with either guilt or innocence. In such cases, however, where different inferences may be drawn from the same facts, it is the province of the jury to draw such inferences, and not of the court. Teipel v. Hilsendegen, 44 Mich. 461; Burroughs v. Ploof, 73 Mich. 607; Slade v. Lee, 94 Mich. 127.

While the circumstances from which defendant’s guilt might be inferred are far from being cogent, we cannot say that the jury would not have been justified in any reasonable view of them in drawing such conclusion. Plaintiff was absent the most of the time, at least, and, according to the testimony of Mrs. Richards, who lived next door, Mr. Ruell went to the house many times while plaintiff was absent; he went in without knocking, and, when he went away, Mrs. Brunelle would come as far as the door with him, and her face would be red, and defendant’s also. Later on, he would let himself out, and his hat would be drawn down in front, and Mrs. Brunelle would not be seen at the door. One Albert Fish testified to a conversation with the defendant after the case had been started:

“Well, he told me that he was sued in damages — a lawsuit. I forgot the amount, though, but he told me that he was sued for a big amount, and I asked him from who, and he told me it was from Joe Brunelle, ‘ You ought to know.’ Isay, ‘Yes, I know it now, because he told me that he was going to sue you.’ Then I told him that I had advised Joe Brunelle to settle up that matter quietly, not go to law; that it would be better. He said, ‘ Yes, if he come to me I would have settled it, but now it is too late, I am going to fight the case.’ He said, ‘He think he going to make quite a bit of money out of that, but I believe he will be mistaken.”

Plaintiff’s children, the oldest being a girl of 13, were called as witnesses in his behalf, and their testimony tended to show that defendant only came to the house on a few occasions, and then for the purpose of having washing done by their mother. But we cannot say that the jury might not prefer the testimony of Mrs. Richards, somewhat confused though it was.

The other assignments of error relate to rulings of the court upon the admissibility of testimony or the form of questions, which we have considered, and find to be without error.

The judgment is reversed, and a new trial granted.

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


author: Carpenter, J.

text:
    KING v. CONCORDIA FIRE-INSURANCE CO.
    1. Fire Insurance — Policy—Rider—Validity.
    Where a rider attached to a fire-insurance policy contains the only description of the property insured to be found in the policy, so that if omitted the policy would be incomplete, the contention that an “iron-safe clause,” printed on the rider, is not a part of the policy, cannot be maintained.
    2. Same — Iron-Safe Clause — Consideration—Validity.
    It cannot be said that an “iron-safe clause,” one of the mutual promises and warranties in a fire-insurance policy, is invalid for want of consideration, or because it is not competent for the parties to contract for the preservation of testimony.
    3. Same — Knowledge of Agent — Waiver.
    A clause in a fire-insurance policy, by which assured agrees to “ keep his books and inventory in an iron safe at night, or at some place secure against fire in another building ” is not waived by knowledge of the soliciting agent that assured had no iron safe; nor is it waived as to keeping the books in another building by the fact that no other building safer from fire than'assured’s was accessible, since assured was under no obligation to keep them in a building safer than his own.

      4. Same — Iron-Safe Clause — Construction.
    An iron-safe clause in a fire-insurance policy construed, and held, that failure to observe any one of its stipulations invalidated the policy, notwithstanding the statute (§ 5180, 2 Comp. Laws) providing against forfeitures for breach of conditions not injuring the insurer.
    5. Constitutional Law — Standard Policy — Delegation of Power — Insurance Commission.
    The Michigan standard policy law of 1881 (Act No. 149), providing for an insurance commission and authorizing it to prescribe a standard form for fire-insurance policies, is unconstitutional because attempting to delegate legislative powers in violation of section 1 of article 4 of the Constitution.
    6. Same — Added Clauses — Validity.
    The Michigan standard policy law of 1881 (Act No. 149), being unconstitutional, an otherwise valid stipulation in a policy which purports to comply with the statute is binding though prohibited by that statute.
    Error to Benzie; Chittenden, J.
    Submitted February 16, 1905.
    (Docket No. 169.)
    Decided May 22, 1905.
    Assumpsit by Wallace E. King against the Concordia Fire-Insurance Company on a policy of insurance. There •was judgment for plaintiff, and defendant brings error.
    Reversed.

      Dickinson, Stevenson, Cullen, Warren & Butzel {Earl E. Drake, of counsel), for appellant.

      D. G. F. Warner, for appellee.

      JohnE. Bird, Attorney General {Michael P. Bourke, of counsel), amicus curise.

      For conditions in fire policy as to keeping, producing, and preserving books and papers, see note to Connecticut Fire-Ins. Co. v. Jeary (Neb.), 51 L. R. A. 698.

   Carpenter, J.

Defendant insured plaintiff’s stock of general merchandise against loss by fire. A fire occurred, and the merchandise was destroyed. This suit was brought to recover on the policy. Plaintiff had judgment in the-court below. Defendant appeals to this court.

The most important of plaintiff’s books of account and the inventory of his goods (which were kept in a wooden desk in the store containing his merchandise) were also destroyed by the fire above mentioned. Defendant insists that it was entitled to a judgment because these books and inventory were not kept in “an iron safe at night, or in some place secure against fire in another building,” and because plaintiff did not comply with defendant’s demand to produce them for inspection as required by the terms of its policy. As the destruction of the books and inventory rendered it impossible for plaintiff to comply with defendant’s demand to produce them for inspection, the only question which merits consideration is this: Was the policy void because said books and inventory were not kept in an iron safe at night, or at some place secure against fire in another building ? The determination of this question depends upon the validity and proper construction of the following rider attached to said insurance policy (which was a Michigan standard policy):

“Country Store Buildings and Stocks Therein.
“$-. Nothing on one one-story frame building, with shingle roof and its additions adjoining and communicating, including foundations, occupied by W. E. King as a grocery store and situated beginning at a point 14 rods E. of i Post between Sec. 946, thence to S. 10 rods, thence E. 6 rods, then N. 10 rods, thence W. 6 rods to place of beginning, T. 25 N. 13 W. Village of Wallin, Benzie Co., Mich.; $50 on store furniture and fixtures, including iron sate; $350 on his stock of merchandise, consisting principally of groceries and provisions, and such other goods as are usually kept for sale in a grocery store, all while contained in the building and its additions above described.
“It is agreed and understood that the assured shall keep a set of books showing the record of his or their business, including purchases and sales, both for cash and credit; also, that they shall take an inventory at least once a year, and shall keep said books and a copy of their last inventory in an iron safe at night, or in some place secure against fire, in another building, otherwise this policy shall be void.”

The question in this case is simply this: Did the failure of the insured to “keep said books and a copy of theii last inventory in an iron safe at night, or in some place secure against fire in another building,” make said policy void ? This depends upon the validity and effect of that part of the foregoing rider called the “iron-safe clause.” The following propositions are affirmed by defendant and denied by plaintiff: (l) That the “iron-safe rider” is a valid and binding part of the contract of insurance. (2) That according to the proper construction of said rider the failure of the insured to keep his books and inventory in an iron safe at night, or in some place secure against fire in another building, rendered the policy of insurance void. We will consider each of these propositions.

1. "Was the iron-safe rider a valid and binding part of the contract of insurance ?

(a) Plaintiff relies upon Goddard v. Insurance Co., 67 Tex. 69, as an authority for the proposition that the ‘ ‘ iron-safe clause ” was not a part of the contract of insurance, because it was contained in a rider attached to the policy, and not in the policy itself. This case is not like Goddard v. Insurance Co. It is more like the case of Home Insurance Co. v. Cary, 10 Tex. Civ. App. 300. This can best be shown by quoting from the opinion in the latter case:

* ‘ It will be seen that if the attached slip were omitted there would be no description of the property insured, and the policy would be incomplete. That it constitutes a portion of the contract, and is a warranty, we entertain no doubt. There is no rule of law which would warrant the court in adopting that portion of the attached sheet containing the description of the property as constituting a part of the policy, and in rejecting the remainder. * * * The case differs in almost every essential particular from that of Goddard v. Insurance Co., 67 Tex. 69. In that case the iron-safe provision did not in terms provide that it should constitute a warranty, was not referred to in the policy, nor did it refer to the policy. It was pasted on the policy in the midst of a sentence which had no reference to the stipulations of the assured, in such connection as to destroy the sense of the sentence; and, what is more important than all these circumstances, the policy was complete without the attached paper. * * *”

(6) Plaintiff insists that the iron-safe clause is not supported by any consideration, and cites to support his position Phœnix Insurance Co. v. Angel, 18 Ky. L. Rep. 1034. In this case the supreme court of Kentucky decided that an iron-safe rider attached to an insurance policy would not be enforced, saying:

“It is without consideration. * * * It does not seem to us that it is competent to contract with the assured for the preservation of testimony in behalf of either party.”

In the case at bar it cannot be said that the ‘ ‘ iron-safe ” agreement was without consideration. The contract of insurance is a contract of mutual promises. The promise of the insurer to indemnify the insured is the consideration for the agreement in question, as well as for all other agreements of the insured. Nor can we agree to the proposition that it is not “competent to contract with the assured for the preservation of testimony.” On principle and on authority, in order to preserve exact evidence of the extent of the loss, parties may contract that the books of account and inventory of the assured shall be kept in an iron safe. Liverpool, etc., Ins. Co. v Kearney, 94 Fed. 314; Home Ins. Co. v. Cary, supra; Ostrander on Fire Insurance (2d Ed.), p. 650; Morris v. Insurance Co., 106 Ga. 461.

(c) Plaintiff insists that, as defendant’s agent knew when he solicited the insurance that the insured did not have an iron safe, and as plaintiff’s building was as safe from fire as any other building in the town where the business was carried on, the inference may be drawn that the defendant thereby waived the requirement that the insured should “keep his books and inventory in an iron safe at night, or at some place secure against fire in another building.” If it be conceded that by reason of this knowledge of the agent the insurer waived the requirement that the books, should be kept in an iron safe, the insured remained bound to keep his books in another building, unless the requirement that he should so keep them was also waived. See Crigler v. Insurance Co., 49 Mo. App. 11. Plaintiff contends that it was waived because there was no other building in town safer than his own. It is manifest that this contention assumes that the language under consideration imposed upon plaintiff an obligation to keep his books in a building more secure against fire than the one containing his insured goods. Is this correct ? What is the proper construction of the words “ or in some place secure against fire in another building?” We must give this clause the same construction that we would had plaintiff attempted to comply with it, for surely its language does not mean one thing when plaintiff endeavors to comply with it and quite a different thing ‘when he refuses to comply with it. It does not mean one thing when we are considering the obligations of the insurer and quite a different thing when we are considering the obligations of the insured. When plaintiff was given the option of placing his books “ in an iron safe (that is, in an iron safe in the building containing his insured goods) or in some other place secure against fire,” it is clear that the parties contemplated that the other place might be less secure against fire than an iron safe. The clause therefore did not require that the place “in another building” in which the insured should choose to place his books should be secure against all fire that might possibly endanger them. What fire must such place be secure against ? This is determined by the purpose intended to be accomplished by the clause under consideration. That purpose is manifest. It was to insure the preservation of the best evidence of the amount of the loss of the insured in the event of the destruction of the insured goods by fire. This object would be accomplished if those books were placed in a building not exposed to the hazard of the fire which might endanger the insured goods. In other words, the insured could comply with this requirement by placing his books in any proper place in such other building. And there is nothing to indicate that this other building should be safer than the building containing the insured goods. If this is the correct construction of the requirement under consideration — and we think it is — the plaintiff could have complied with it, and there is nothing to indicate that he was released from his obligation to comply with it.

(d) The iron-safe rider in question is a condition added to the Michigan standard policy prescribed in accordance with Act No. 149 of the Public Acts of 1881 (see 2 Comp. Laws, §§ 5170-5179), and plaintiff insists that section 6 of said act (section 5175, 2 Comp. Laws) (which prohibits the issuance of a policy “containing any other or different terms or conditions than those expressed in said Michigan standard policy, or containing any word or words that will add to, take from, or vary the contract therein expressed”) makes said condition void. Defendant interposes several answers to this contention. We have carefully considered all these answers, and, without stating them, content ourselves with saying that only one of them is, in our judgment, adequate, and that is that the legislation providing for the Michigan standard policy is unconstitutional. In other words, we cannot uphold defendant’s contention that the iron-safe rider is a valid part of the contract of insurance without deciding that the legislation providing for the Michigan standard policy is unconstitutional. At this point it should be remembered that the parties to this suit do not agree as to the proper cpnstruction of the iron-safe rider. Plaintiff contends that, properly construed, failure to comply with its requirements did not render' the policy of insurance void. If plaintiff is right in this contention, it is unnecessary to adjudge the statute unconstitutional. As courts should not ad j udge a law unconstitutional “ unless a decision upon that very point becomes necessary to the determination of the cause” (Cooley on Constitutional Limitations [6th Ed.], p. 196), the constitutional inquiry should not be undertaken unless plaintiff is wrong in his construction of the iron-safe rider. We proceed, therefore, to a consideration of the question.

2. Did the failure of the insured to “keep his books and inventory in an iron safe at night, or in some place secure against fire in another building,” render his policy of insurance void ?

(a) In the case at bar plaintiff did keep books; he did make an inventory; and he insists that his policy is not void merely because he did not preserve his books and inventory as he agreed. In support of this contention he relies upon Connecticut Fire-Ins. Co. v. Jeary, 60 Neb. 338 (51 L. R. A. 698). In that case the insured agreed to keep books of account, to take an inventory, and to keep both books and inventory in an iron safe at night, and it was stipulated that “failure to observe the above conditions shall work a forfeiture of all claims under this policy. ” The insured did keep books of account as agreed. He did not, however, preserve them, and they were lost in the fire which destroyed his insured goods. It was held that under the language of this policy there was no forfeiture, because the insured did not fail to observe all the conditions. The court reasoned as follows:

“ It will be noted that these provisions, constituting, as we have seen, a promissory warranty, are joined together by the conjunction ‘and,’ followed by the penalty of forfeiture, to the effect that ‘failure to observe the above conditions shall work a forfeiture of all claims under this policy.’ The insurance company had the power to separate the conditions imposed, making each independent of the other, the clause being of its own creation; but it has not chosen to do so. By its own language it has made a series of acts to be construed together, and a failure to perform not one, but all, the conditions is required to work a forfeiture of the policy.”

We cannot so construe the iron-safe rider in the case at bar. Here it was, agreed that “the assured shall keep books showing the record of his * * * business, * * * shall take an inventory, * * * and shall keep said books and a copy of their last inventory in an iron safe at night, or in some place secure against fire in another building; otherwise this policy shall be void.” This language is clear, and entirely free from ambiguity. We cannot construe the language “otherwise this policy,shall be void” as the supreme court of Nebraska construed “failure to observe the above conditions shall work a forfeiture of all claims under this policy.” "We cannot say, as did that court, “it has made a series of acts to be construed together, and a failure to perform not one, but all, the conditions is required to work a forfeiture of the policy.” On the contrary, we are compelled to say that the insured has stipulated that if he fails to perform his agreement his policy shall be void, and that by failing to preserve his books as he agreed he failed to perform his agreement.

(6) Plaintiff insists that his failure to preserve the books and inventory as agreed (not being a breach of any condition of the policy which injured the insurer) did not avoid the policy according to section 5180, 2 Comp. Laws. In other words, plaintiff contends that according to the section just cited a breach of a condition does not make an insurance policy void unless the insurer is injured by such breach. This contention is answered by our decision in Boyer v. Insurance Co., 124 Mich. 455. We quote from the opinion in that case:

“ The loss occurred during a breach of the contract, and while its terms were being violated. The statute does not provide that under such circumstances the policy shall be valid. ”

On this branch of the case we conclude, therefore, that a failure to comply with the iron-safe rider (assuming it to be a valid part of the contract of insurance) rendered the policy void.

This conclusion compels us to recur to the question of the constitutionality of the legislation providing for the Michigan standard policy. That legislation empowered a commission thereby created to draft a form of fire-insurance policy to be known as the “Michigan Standard Policy,” to file a printed copy of such form in the office of the commissioner of insurance (who is a member of said commission); such form to “be so worded and printed as to secure as far as practicable the accomplishment of the following results, viz.:

“First. Fairness and equity between the insurers and the assured.
Second. Brevity and simplicity.
“ Third. The avoidance of technical words and phrases.
‘ ‘ Fourth. The avoidance of conditions, the violation of which by the assured would, without being prejudicial to the insurer, render the policy void or voidable at the option of the insurer.
Fifth. The use of as large and fair type as is consistent with a convenient size of paper or parchment.
“Sixth. The placing of each separate condition in a-separate paragraph, and the numbering of the paragraphs.”

It empowered the commission, which was a body having continuous existence, to alter or amend the form so adopted by them “whenever they shall deem it necessary.” It gave the commissioner of insurance power to fix the time when the use of the form of policy so adopted or amended “shall become obligatory,” and prohibited thereafter, under penalty, the making of contracts of fire insurance, except in accordance with said form as so altered or amended. It is contended that this statute is unconstitutional, because it gave legislative power to the commission. Section 1, art. 4, of our Constitution, provides that “ the legislative power is vested in the senate and house of representatives,” and it is well settled that such power cannot be delegated. Says Judge Cooley in his Constitutional Limitations (6th Ed.), p. 137:

‘ ‘ One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority. Where the sovereign power of the State has located the authority, there it must remain; and by the constitutional agency alone the laws must be made until the Constitution itself is changed. The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.”

Was the power which this statute delegated to the insurance commission legislative in character ? It certainly was a power which the legislature itself might rightfully exercise, but it does not follow from this circumstance that it was a legislative power (see Wayman v. Southard, 10 Wheat [U. S. ] 1), for the legislature often exercises powers of an executive or administrative character which it may delegate (see Hurst v. Warner, 102 Mich. 238 [26 L. R. A. 484]; Dowling v. Insurance Co., 92 Wis. 63 [31 L. R A. 112]). We have upheld legislation whereby the operation of a law — local option law — in a particular county is made to depend upon the approval of both a majority of the electors and the board of supervisors of said county. See Feek v. Township Board of Bloomingdale, 82 Mich. 415 (10 L. R. A. 69). The Supreme Court of the United States has held (see Field v. Clark, 143 U. S. 649) that Congress might vest the President with authority to suspend the operation of a reciprocity law. The proper distinction between such delegated power and legislative power is stated in Locke’s Appeal, 72 Pa. St. 498, as follows:

“ The legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.”

This distinction is approved in Field v. Clark, supra, and in Dowling v. Insurance Co., supra. We have also held (see Hurst v. Warner, supra) that the legislature may authorize officials (the State board of health) intrusted with the execution of a quarantine law to make rules relative to its execution. See, also, Chicago, etc., R. Co. v. Dey, 35 Fed. 866 (1 L. R. A. 744); Georgia Railroad v. Smith, 70 Ga. 694.

“The true distinction [said Ranney, J., in Cincinnati etc., R. Co. v. Com’rs of Clinton Co., 1 Ohio St. 88] is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.”

This distinction is also approved in Field v. Clark and Dowling v. Insurance Co., supra. Tested by this distinction, the authority delegated to the insurance commission by the legislation under consideration was not administrative, but was legislative. It cannot be said that the legislature merely delegated to the commission power to determine “ a fact or state of things upon which the law makes, or intends to make, its own action to depend;” nor that it merely delegated to the commission ‘ ‘ discretion as to its execution to be exercised under and in pursuance of the law.” On the contrary, it delegated to the commission authority to itself make the law (which was to be evidenced by the form of insurance policy filed with the commissioner of insurance), and to change this law “whenever they shall deem it necessary.” As said”by the supreme court of Wisconsin in a similar case:

“ Had the commissioner wholly declined to prepare, approve, and adopt any form whatever, it would not have been possible to have carried into effect so imperfect or uncertain an enactment, or to transact business under it. Within the lines indicated, a discretion was reposed in the commissioner as to the form of the policy which embodied the substance of the contract, and which was to have the sanction and force of law. The effect clearly was to transfer to him bodily the legislative power of the State on that subject.” Dowling v. Insurance Co., 92 Wis., at page 73 (31 L. R. A. 112).

In the following cases similar laws were also adjudged unconstitutional: O’Neil r. Insurance Co., 166 Pa. St. 77; Anderson v. Assurance Co., 59 Minn. 182 (28 L. R. A. 609); Phœnix Ins. Co. v. Perkins (S. Dak.), 101 N. W. 1110. We are therefore compelled to declare the law under consideration unconstitutional. That law in form was never law in effect, and did not prevent the parties to this suit making the iron-safe rider a part of the contract of insurance. That rider was therefore a valid provision of said contract, and, plaintiff having violated its conditions, the policy in suit was void, and defendant was entitled to a verdict and judgment in the lower court.

The judgment for plaintiff should therefore be reversed, with costs, and a new trial granted.

In considering the constitutional question decided in this case, we have labored under an unusual embarrassment. Counsel for plaintiff and counsel for defendant each having argued that the law was unconstitutional, we thought it proper to request a brief from the attorney general. He complied with this request, and furnished a brief — a most helpful brief — in which he, too, maintained that the law was unconstitutional. We have therefore been compelled to decide the case without the advantage of any argument — doubtless because no such valid argument could be discovered — maintaining the constitutionality of the law.

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


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    STAUBER v. ELLETT.
    1. Appeal and Error — Questions Re view able — Record.
    Error in refusing to strike evidence cannot be reviewed where no exception to the ruling appears in the record.

      % Pleading — Defense—Notice—Sueeioienoy.
    A notice of fraud relied upon as a defense against a bond examined, and held, insufficient as failing to set forth the facts relied upon as provided by Circuit Court Rule 7 e.
    3. Bonds — Consideration.
    Where a contract and the bond for its faithful performance are entered into as nearly contemporaneously as parties residing in different States can do by correspondence, a claim that the bond is without consideration because bearing date two days later than the contract is not well founded.
    Error to St. Joseph; ’Yaple, J.
    Submitted February 16, 1905.
    (Docket No. 173.)
    Decided May 22, 1905.
    Assumpsit by Adolph Stauber and Carl Stauber, co-partners as the A. Stauber Manufacturing Company, ■against James W. Ellett, principal, and Whitman E. Clark and Willard W. French, sureties, on a bond. There was judgment for plaintiffs, and defendants bring ■error.
    Affirmed.

      George H. Arnold and B. E. & L. E. Andrews, for appellants.

      B. B. Pealer and George E. Miller, for appellees.
   Blair, J.

This was an action brought to recover on a bond executed by the defendants, conditioned as follows:

“ The condition of this obligation is such: That whereas the above named James W. Ellett, has been duly appointed by the aforesaid Company their salesman to travel and sell goods as directed by them and during the ■pleasure of the members of the said Company, and will as agent obtain orders for the shipment of merchandise to divers parties, and will, as such agent, receive into his hands and possession money with which to pay his necessary traveling expenses while traveling in the interests of said Company; also merchandise and other property belonging to said Company and be bound to turn same over to the possession of said Company, or whomsoever they may direct, at their request immediately when called upon by them to do so, and also be required to furnish said Company an itemized account and statement of the money expended for traveling expenses, when requested by them to do so. The said Company will also advance to said principal money with which to pay the necessary traveling expehses and money the sum of $55 monthly for his personal use, and if by reason of said money so advanced and an insufficient amount of commissions earned by him, the account of said principal may be overdrawn, said principal shall be bound to pay to said Company whatever amount his account may be overdrawn, when called upon by said Company to pay same.
“It is understood, however, that the said principal or sureties shall not be held liable for any damage resulting to property on account of fire, loss in transportation, or other unavoidable accident, provided that due care and diligence is used on the part of said principal to prevent same.
“Now, therefore, if the said James W. Ellett shall well and faithfully perform all the duties imposed upon him as such agent and truly and correctly transmit to said Company all orders taken by him for said Company, as such agent, and shall have properly applied the money furnished him for traveling expenses, and shall have rendered to said Company an itemized statement of said traveling expenses, and shall deliver all the property belonging to the said Company to them or to whomsoever they may direct, and that said principal shall not be owing to said Company any money by reason of his account being overdrawn, then this obligation shall be null and void, otherwise to remain in full force.”

Plaintiffs are manufacturers of pants and clothing specialties, and are located at Streator, 111. Mr. James W. Ellett, one of the defendants, and the principal on the bond upon which this suit was brought, answered an advertisement of plaintiffs soliciting applications for traveling salesmen for their manufactured product, and, after some correspondence between the plaintiffs and said Ellett, defendant Ellett visited the plaintiffs at their factory at Streator, 111., and an arrangement was finally agreed upon a few days later; and October 22, 1901, the contract set forth in the declaration was drafted, and the date, as of that day, was affixed, and the contract, together with the bond, which was without date, were mailed to Ellett, at Three Rivers, Mich. Later the contract was returned to plaintiffs, signed by Ellett, accompanied by the bond on which suit was brought, and which was dated October 24, 1901, signed by all of the defendants. After the bond and contract had been executed and delivered to plaintiffs, the samples of their goods from which to make sales were sent Ellett, who proceeded to sell the plaintiffs’ goods in different towns in southern Michigan. Plaintiffs, upon the receipt of the contract and bond, executed as stated, from time to time sent Ellett money, to the amount of $410, and Ellett sold% goods for plaintiffs on which he was entitled to credit by way of commissions amounting to $97.77. All of the moneys that were paid Ellett by plaintiffs were paid during the months of November and December, 1901, and January, 1902. Ellett did no work for plaintiffs after January 25, 1902. Plaintiffs notified defendants Clark and French of default in the conditions of the bond and made demand for payment of amount due on February 6, 1902. Plaintiffs’ declaration contained the common counts, and a special count setting forth the contract and bond in full. The defendant Ellett suffered judgment by default. The defendants French and Clark pleaded the general issue, and gave notice of want of consideration for the bond. After plaintiffs had rested their case, defendants’ counsel asked leave to amend the notice under the general issue to set up fraud in obtaining the contract. Leave was granted to make such amendment, and court adjourned to the following morning for that purpose. The notice- as amended contained the following allegations of fraudulent representations, for which defendants claimed the right to recoup damages, viz.:

“That the said plaintiffs made certain false and fraudulent representations to said defendants above named and to James W. Ellett, one of the defendants in the above-entitled cause, as to the nature and extent of plaintiffs’ business, and as to their goods and the salability of the same, and as to the amount that had been sold by any one man in the State of Michigan, and as to the nature and effect of the bond which they would require of him, and that the said plaintiffs herein, well knowing their statements and representations to be false and fraudulent, then and there by said false and fraudulent representations therein and thereby induced said James W. Ellett, the principal on the said writing obligatory, to enter their employ and make and execute the contract set forth in plaintiffs’ declaration, and the bond therein mentioned.”

Evidence of fraudulent representations offered by defendants under this amended notice was excluded by the court on the ground that the allegations were not sufficient to authorize such proof. A verdict was rendered in favor of plaintiffs, and the defendants bring the record to this court for review upon writ of error.

The assignments of error relied upon for a reversal of the judgment are: (1) That the court erred in admitting in evidence the contract, and in refusing to strike out the testimony of Carl Stauber, one of the plaintiffs, as to its date. (2) That the court erred in ruling that evidence of fraud was not admissible under the amended plea and notice. (3) The court erred in charging the jury, in substance, that the bond was conditioned, among other things, that Ellett should, whenever so requested by the plaintiffs, account to and turn over to the plaintiffs all moneys owing by him to plaintiffs by reason of his account with plaintiffs as plaintiffs’ agent for sale of plaintiffs’ goods being overdrawn, and that the only question was whether he was indebted to the plaintiffs, over and above the commissions earned by him, for moneys advanced to him by the plaintiffs for his legitimate and necessary traveling expenses and for his personal use.

1. Defendants’ counsel objected to the admission of the contract in evidence ‘ ‘ for the reason that it does not appear to be the contract set forth in the plaintiffs’ declaration in his case.” He also made a motion after its reception in evidence to strike out the evidence of Carl Stauber, showing that, while dated October 22d, it was sent to him and received by him on the same day as the bond dated October 24th. This motion was overruled, but, as no exception to the ruling appears in the record, the assignment cannot be considered. Since the contract offered was the identical contract set forth in the declaration, there was no ■error in receiving it, as against the objection first referred to.

2. Circuit Court Rule 7, subd. c, provides that, whenever fraud is relied upon as a defense against a written instrument, “the facts upon which such defense is based shall be plainly set forth in a notice added to the defendant’s plea.” Defendants’ notice failed utterly of compliance with the rule. It contained no statement of any particular representation, and would have been quite as efficient in advising the plaintiffs of the charges they were to meet if it had contained the bald statement that they obtained the contract by fraudulent representations. Under such a notice the court correctly ruled that the evidence offered was inadmissible.

3. This assignment raises the question chiefly relied upon in defendants’ brief. The want of consideration for the bond is argued to arise from the fact that the contract is dated October 22, 1901, and is set forth in the declaration without explanation or claim that it was not actually made upon that day, while the bond was, as set forth in the declaration, dated October 24, 1901; neither containing any reference to the other. It follows, therefore, it is claimed, that the rights of the parties were fully fixed and determined by the contract, as shown by the pleadings, before the bond was executed; that the defendant Ellett was under no obligation to give the bond, and already had, under his contract, all the rights which he had after giving the bond; that he acquired nothing from giving the bond, and .it was based upon no consideration whatever. We do not regard this contention as well founded. The letter from plaintiffs to defendant Ellett, dated October 10,1901, introduced in evidence by defendants’ counsel, notified him that he would be required to give a bond. The undisputed facts disclosed by the record show that defendant Ellett went to Streator, 111., and settled upon the terms of the arrangement with plaintiffs; that, after agreeing upon the terms, Ellett left for Michigan, and plaintiffs prepared and forwarded to him, unsigned, the contract and bond in suit; that on a later day plaintiffs received the contract and bond by mail, properly executed by defendants, whereupon the contract was signed by plaintiffs, and is the only contract ever entered into between the parties. There was clearly as nearly a contemporaneous execution of the papers as possible between parties residing in different States, and the trial court was not in error in refusing to hold that there was no consideration for the bond.

4. The court instructed the jury that the liability of the defendants, if any, was to be determined by the bond, and not by the written contract, and, we think, gave them a correct interpretation of the bond and the question arising out of such interpretation for their consideration.

We find no errors in the record, and the judgment is affirmed.

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


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    TOWNSHIP OF SPRINGWELLS v. DETROIT, PLYMOUTH & NORTHVILLE RAILWAY.
    Stipulated Damages — Penalty — Bond — Franchise — Street Railroad.
    The penalty of a bond given by a street-railroad company to secure performance of the duties enjoined by a franchise accepted by it will be construed as fixing in advance the damages recoverable for a breach and not as providing a mere penalty.
    Error to Wayne; Frazer, J.
    Submitted February 14, 1905.
    (Docket No. 143.)
    Decided May 22, 1905.
    Assumpsit by the township of Springwells against the Detroit, Plymouth & Northville Railway, principal, and the American Bonding & Trust Company, surety, on a bond. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.

      Dickinson, Stevenson, Cullen, Warren & Butzel, for appellant American Bonding & Trust Co.

      B. I. Lawson and Tarsney & Fitzpatrick, for appellee.
   Blair, J.

The Detroit, Plymouth & Northville Railway about May 15, 1901, obtained from the township of Springwells a franchise for the construction and operation of a line of street railway along Warren avenue from the then northerly limits of the city of Detroit to the then westerly line of plaintiff township. Among the terms and conditions of the resolution by the township board of Springwells granting permission to the defendant railway to construct a street railway on Warren avenue it was provided that the track should be laid to a gauge of 4 feet inches, composed of T rails of a weight of 60 pounds to a lineal yard; that the location of the track should be upon the side of the highway; that a map of the proposed railroad should be filed with the township clerk and approved by the board; that at all highway crossings, etc., crossings of the track should be made of plank, and should be of certain width; that at each corner a group of lights should be maintained; that the railroad should be completed and in operation within 120 days after the acceptance of the grant herein contained, etc.; and it was also provided that—

‘ ‘ Within sixty days after acceptance the grantee herein shall file with the township clerk of the township of Spring-wells a good and sufficient bond in the sum of $10,000, conditioned upon the carrying out of all the terms of this resolution relative to the construction of the line of railway herein licensed, and when the said terms are fully carried out the township board hereby agree to discharge the said bond.”

In compliance with this resolution the defendant railway company and the American Bonding & Trust Company, about July 15, 1901, executed a bond, conditioned that—

“If the said first party (Detroit, Plymouth & North-ville Railway) shall well and truly perform all the obligations required of it in the said grant to it heretofore made as aforesaid, then this obligation shall be null and void; otherwise it shall be of full force and virtue.”

No portion of the railroad was ever constructed, and the action was brought in assumpsit to recover the sum of $10,000, the amount named in the bond running from defendant to plaintiff township. The trial judge directed a verdict for the plaintiff in the sum of $10,000 and $1,280.55 interest, and to review the judgment entered upon this verdict the defendants have removed the record to this court by writ of error.

The sole question for determination in this case is whether the provision in the bond for the payment of $10,000 on default is in the nature of a penalty or constituted a fixing in advance of liquidated damages. Defendants contend that the provision in question is for a penalty, in accordance with the rule adopted by this court in Jaquith v. Hudson, 5 Mich. 123, that:

“ Where the contract is for the performance of several stipulations of very different degrees of importance, and one large sum is made payable on the breach of any one-of them, even the most trivial, the damages for which can, in no reasonable probability, amount to that sum, * * * as the contract exacts the same large sum for the breach of a trivial or comparatively unimportant stipulation as for that of the most important, or of all of them together, it is equally clear that the parties have wholly departed from the idea of just compensation, and attempted to fix a rule of damages which the law will not recognize or enforce.”

This rule is based upon the “ principle of just compensation for the loss or injury actually sustained. * * * It is the application in a court of law of that principle long recognized in courts of equity, which, disregarding the penalty of the bond, gives only the damages actually sustained. This principle may be stated in other words to be that courts of justice will not recognize or enforce a contract or any stipulation of a contract clearly unjust and unconscionable.” This rule of construction is wise and salutary as applied to contracts between private parties, and has frequently been approved by this court. But as to contracts between municipalities acting in their governmental capacities and public service corporations, where the contracts are affected by a public interest, the application of the rule must obviously be modified by the widely different status of the parties. In cases like that at bar the municipality cannot suffer any damages in its private or corporate capacity, and must be deemed to be contracting for the benefit of the public. As said by Mr. Justice Montgomery, speaking for the court, in City of Detroit v. Telephone Co., 135 Mich. 696:

“ On the argument, attention of counsel was directed to the case of Whiting v. Village of New Baltimore, 127 Mich. 66. We are unable to distinguish that case from the present. In that case, as in this, the municipal body, as such, suffered no damages by reason of the failure of the corporation to comply with the terms of its grant. But it was said that the contract was made by the corporate officers for and in the interest of the inhabitants. It might be added that their damages, likewise, would not be susceptible of proof, and this furnishes a strong reason for holding that the parties intended by their stipulation to treat such damages as liquidated.”

To hold that the parties in this case provided for a penalty, as contended by defendants, is to determine that they were at much pains to do an entirely idle and profitless thing. Such a construction ought not to be given to the agreement of the parties, if any other reasonable one is open to the court. The construction of a line of railway was the prominent thing in the minds of the parties. The weight of the rails, the gauge, the planking at crossings, and other details of construction, were merely the elements which were descriptive of and went to make up the completed whole. The bond in suit was intended to enforce a substantial performance of the contract for the benefit of the inhabitants of Springwells, and for that purpose provided for damages in default of such performance. The status of the parties, and the fact that otherwise no damages would be ascertainable, warrant the construction that the parties intended the provision for $10,000 as liquidated damages for a substantial failure to perform the entire contract, rather than as a penalty to secure the exact performance of each separate provision for construction.

The case of Whiting v. Village of New Baltimore, supra, supports, and, we think, requires, this holding. In that case the ordinance required the electric-railway company to deposit a certified check for $2,000, “ which said check shall be returned to said grantee, or to his order, upon the completion of said railway within the time herein provided for, and in case of a default of the construction of said road within the time provided shall be collected, and the proceeds thereof placed in the village treasury,” etc. “ Said grantee shall fully construct said railway and equip the same with cars, and shall commence the operation of said railway by the regular running of cars thereon on or before the 30th day of November, A. D. 1897,” etc. In deciding the case in the court below, Judge Atkinson, in a very able and elaborate opinion, said, referring to the sections of the ordinance above quoted as sections 14 and 15:

“ I think sections 14 and 15 should be transposed, and section 15 read first, which by its terms provided that the grantee ‘ shall fully construct said railway and equip the same with cars, and shall commence the operation of said railway by the regular running of cars thereon on or before the 30th day of November, A. D. 1897.’ The defendant’s right to retain the two thousand dollars ($2,000) rests upon what is meant by the word 1 construction ’ in section 14; and if we read these two sections together in the transposed order I think that word means the performance of all that is required in section 15, viz., the actual building of the road, putting down rails, ties, planking, grading, paving, etc.,including the erection of poles, stringing of wires, and the actual equipment of the road by cars and. motors as stipulated in the ordinance; so that in this view Mr. Dyar would forfeit the ($2,000) two thousand dollars in case of default in any one of seven or eight important conditions, and that he would not be entitled to the return of his draft on the simple completion of a roadbed through the village with no connections either way, or no other compliance with the ordinance. If this reasoning is correct, there is a multiplicity of covenants and but one measure of damages — a test which is often applied by courts in order to ascertain whether the- amount is ‘ liquidated damages’ or ‘ a penalty ’ ”—citing Jaquith v. Hudson, 5 Mich. 123, and other cases.

Judgment was entered for the plaintiff for the reasons stated, which was reversed in this court upon the ground that the case came within that section of the rule as laid down in Jaquith v. Hudson:

“Where, from the nature of the contract and the subject-matter of the stipulation for the breach of which the sum is provided, it is apparent to the court that the actual damages for a breach are uncertain in their nature, difficult to be ascertained, or impossible to be estimated with certainty by reference to any pecuniary standard,” etc.; and the court therefore “adopts the computation or estimate of the damages made by the parties as being the best and most certain mode of ascertaining the actual damage or what sum will amount to a just compensation.”

There is no valid ground for distinguishing the New Baltimore Case from the case at bar, and the judgment is affirmed.

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


author: Montgomery, J.

text:
    SKINNER v. TAFT.
    1. Wills — Construction—Annuities—Payment from Corpus of Estate.
    Where a will provided that the testamentary trustees should pay from the income and profits of all the estate certain annual sums to testator’s -widow and children for five years, the corpus of -the estate to be equally divided at the expiration of that period, and provided that the provisions in favor of the widow were in lieu of dower, homestead, and support, the annuities could not be paid from the corpus of the estate.
    3. Trusts — Income—Pledged Securities.
    Dividends on stocks and bonds pledged as collateral security to creditor of testator in his lifetime applied on the obligations given to secure such indebtedness, could not be regarded as ' income of his estate, from which annuities could be paid by his testamentary trustees.
    3. Same — Payments—Diverted Income.
    Where a will provided for the payment of an annuity to testator’s widow until the termination of the trust period, when' she was to receive a portion of the corpus of the estate, it being provided that the provisions for her were in lieu of dower, homestead, and support, and she was paid a monthly allowance during the administration of the estate, she could not thereafter assert that the sums so paid her were diverted from the purpose intended.
    Appeal from Calhoun; Hopkins, J.
    Submitted April 6, 1905.
    (Docket No. 30.)
    Decided May 22, 1905.
    Bill by Brainard T. Skinner and Steven S. Hulbert, administrators, with the will annexed, of the estate of Richmond Kingman, deceased, against Emily K. Taft, Caroline B. and Howard R. Kingman and another to construe said will. From the decree rendered, defendants Caroline B. and Howard R. Kingman appeal.
    Affirmed.

      Mechem & Bailey, for appellants.

      Williams & Beck, for defendant Taft.
   Montgomery, J.

This is a bill filed to obtain a construction of the last will and testament of Richmond King-man.

To an understanding of the question raised, it is necessary to set out the main portions of the will at length. The provisions necessary to be quoted are as follows:

“ First.
“ After the payment of my just debts and funeral expenses, I give, devise and bequeath unto Roldon P. King-man, Howard R. Kingman, and Fred M. Wadleigh, all of Calhoun County, Michigan, and Mitchell N. Packard, of the City, County and State of New York (the executors of this my Will hereinafter named) and to the survivors and survivor of them, or to such of them as may from time to time qualify as such executors, and to their successors and assigns, all of my Estate and property, real, personal and mixed, of whatsoever kind and description and wheresoever situate. In trust, nevertheless, for the uses and purposes following and herein stated and no other, that is to say: That my said executors take possession of all my said Estate and property as aforesaid, and to hold the same and to collect the rents and profits thereof, arising from my said Estate and property during all the time they hold the same; and to sell and dispose of my said Estate and property, or of so much and such parts thereof as they may deem for the best interests of my Estate, and to invest my said Estate and any of the income thereof, in such manner as they shall deem judicious, and in such securities as they may see fit, and to reinvest the same so often as may be necessary, and that such securities may be other than those prescribed by statute or law for the investment of trust- estates, any statute or law to the contrary notwithstanding.
“And I do hereby give to my said executors, or to such of them as may from time to time qualify as such executor, and to their successors and assigns, full power and authority to grant, alien, bargain, sell, convey, mortgage, lease and assure all or any of my said Estate, real, personal, and mixed to any person or persons and their heirs and assign forever, by all and every such lawful ways and means in law as to them and their counsel learned in the law shall seem fit or necessary. And in case of sale of any part of my said Estate, whether real or personal, I direct that it may be either at public or private sale, as to my said executors may seem best and most judicious, and in carrying out the provisions of this, my Will, I hereby authorize and empower my said executors to make, execute and deliver all necessary deeds, mortgages, leases, releases and other papers (provided that nothing herein contained shall authorize my said executors to lease any of my real estate beyond the time herein fixed for the termination of this trust). Out of the interests, income and profits which shall accrue from my estate so held in trust as aforesaid, I will and direct the following sums to be paid to my wife and children in semi-annual payments, during • the continuance of the trust herein, and I give, devise and bequeath to my said wife and children out of said interests, incomes and profits as follows, to wit:
“To my wife, Caroline B. Kingman, the sum of Five Thousand Dollars per year; to my daughter, Emily K. Taft, the sum of Sixteen Hundred and Sixty-six Dollars and Sixty-six Cents per year; to my son Howard R. Kingman, the sum of Sixteen Hundred and Sixty-six Dollars and Sixty-six Cents per year, and to my son Richmond T. Kingman, the sum of Sixteen Hundred and Sixty-six Dollars, and Sixty-six Cents per year.
’* ‘ Should my wife or any of my said children die during the continuance of this trust, her or his portion or share of said interests, incomes and profits shall be paid to her or his heirs and assigns.
“The trust herein and hereby created in this clause of my Will shall terminate five years from the date of the probating of my Will in the County of which I may die a resident, and my object in creating the aforesaid trust is in order that my estate may be kept together in the manner herein provided until my various business interests can be closed up advantageously to my said Estate, and administered upon by my executors and trustees for the best interest of my wife and children, and judging that that length of time will be necessary so to do.
“Second.
“Upon the termination of the trust created in the preceding clause of this my Will, I hereby direct my executors and their successors, and their successors, and the survivor and survivors of them, or such of them as may from time to time qualify, and to their successors, to divide my said Estate and property into four equal portions.
‘ ‘ And I hereby give, bequeath and devise the first part or portion thereof to my said wife, Caroline B. Kingman, and her heirs and assigns forever; and the second part or portion thereof to my daughter, Emily K. Taft, and to her heirs and assigns forever; and the third part or portion thereof to my son, Howard R. Kingman, and to his heirs and assigns forever; and the fourth or remaining part or portion thereof to my son, Richmond T. Kingman, and to his heirs and assigns forever.
“Third.
“ The legacies and bequests hereinbefore made to my said wife, Caroline B. Kingman, are made to her, and are to be by her received in lieu of all rights of dower, homestead and support.”

It transpires that the income was not sufficient to pay these legacies provided in the first clause of the will, and the question presented is whether they shall be paid out of the corpus of the estate.

The rule of universal and constant application — the cardinal rule in construing wills — is that the intent of the testator, when gathered from the four corners of the instrument, must be given effect. The rule should not, however, as we fully recognize, be applied in ignorance of, nor in disregard of, precedents which may throw light upon the subject. The learned counsel representing the two parties in interest have very materially aided the court by collecting the cases which bear upon the construction of wills having clauses in some respects analagous to those here under consideration, and which treat of the rules by which the courts are guided in determining whether a legacy is general, special, or demonstrative. No review of all the cases which would be of any value could be confined within any reasonable or proper limits for an opinion. It will, perhaps, suffice if the contention be stated, and the cases claimed by either’s counsel to be most directly in support of his contention be considered.

Counsel for Mrs. Kingman say the bequest in question is not a legacy of all the incomes of the estate, or of a certain portion of the estate, or a legacy of all the income from certain sources or certain classes of property, but it is a legacy of definite amounts of money to be paid at definite times to the legatee, and it is contended that the provision that this legacy shall be paid “ out of the interests, income and profits which shall accrue ” are words of demonstration rather than words of limitation. The case most nearly in point in support of this contention is Pierrepont v. Edwards, 25 N. Y. 128. That case is not widely dissimilar from the present. The clause which gave the legacy reads, that the executors shall pay out of the income of the estate so invested, $8,000 per annum to testator’s wife. The facts were that the income was insufficient, and that the testator had died in the belief that it was sufficient. In these respects the case was much like the present. In addition, it appeared in that case that no other provision was made for the legatee, who was the widow. It was held that this was a demonstrative legacy, two justices dissenting. This decision was written by Mr. Justice Denio, and is, because of the great learning of its author, entitled to great weight. The principle which Justice Denio determined the case upon was stated by him as follows:

‘ ‘ When the testator bequeathes a sum of money, or, which is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular way or out of a particular fund.”

This rule cannot be questioned, the only doubtful question being whether there was that in Pierrepont v. Edwards which warranted the court in finding the independent intention that the money should be paid at all events. The majority of the court did so find, but it is to be noted that much stress was laid upon the fact that the annuity was the only provision made for the widow — a fact which distinguishes that case from the one under consideration.

On Mrs. Taft’s behalf, the case of Einbecker v. Einbecker, 162 Ill. 267, is cited. This case'appears to be well considered, and was evidently determined after a careful examination of the cases bearing upon the point under consideration-. The will construed in that case vested the estate in trustees:

“(a) In trust, to manage my estate, collect the rents, and qther incomes arising therefrom, make leases of my real estate for such term as they may deem best, and to invest and re-invest all moneys coming to their hands as such trustees, in good interest-bearing securities.
“(b) In trust, further, to pay to my wife, Anna Einbecker, out of the moneys so arising from my estate, the sum of One Hundred Dollars per month, during her natural life.”

The will further provided that, when the estate should be divided, the trustees should retain in their possession a •sufficient capital to insure from the income the prompt payment of the monthly allowance to the wife, and further provided for a division and partition of the estate when the youngest child should reach the age of 18 years, and for a division of the reserved portion at the death of the wife. The income of the estate proved to be insufficient to meet the monthly payments provided in claim “6,” and the question presented was whether these payments should be made from the corpus of the estate. It was held that in these circumstances the legacy to the wife abated pro tanto. It will be readily seen that the case is strongly in point, as the will there construed is, in most of its essential features, similar to the one here considered. In reaching the conclusion arrived at, the court, citing from Theobald on the Law of Wills, 637, the rule, “If there is anything to show that the corpus is looked upon as entire after the annuitant’s death, * * * it is not liable to make good arrears,” laid stress upon the fact that the provision for a division of the estate did not refer to the estate to be distributed as a “residue” or “subject to ” the payment of the annuity, or provide for the distribution “after payment over of the annuity.” It will be noted there is no such provision in the will we are considering. See, also, as bearing on this question, Baker v. Baker, 6 H. L. Cas. 616.

In the present case, the language of the first clause of the will plainly imports that the annuities are to be paid out of the income, and that alone; and we are not able to find, in other provisions of the will, any expression which overcomes the implication arising from this language.

We do not overlook the contention, that, as the provisions made for Mrs. Kingman by the will are in lieu of dower, the will should be so construed as to make all the provisions effectual. If the annuity were the only provision made for Mrs. Kingman, this contention would have greater weight; but, as Mrs. Kingman is also to share in the corpus of the estate in any event, we do not regard this consideration as controlling.

It is also contended that the income was sufficient to pay the annuities in part, and that, if such income has been diverted, Mrs. Kingman is now entitled to have a corresponding sum taken from the body of the estate and distributed as provided in tbe first clause of tbe will. The answer admits that as to a large portion of the estate, consisting of stocks and bonds, the same were pledged as collateral security to creditors of Mr. Kingman in his lifetime, and that the dividends were applied upon the obligations given to secure such indebtedness, presumably in large part for interest. We do not think that as to such items it can be said that they were income of the estate. These amounts never came, nor could they, into the hands of the executors.

There has also been paid to Mrs. Kingman a monthly allowance of $100 during the administration, presumably out of the income. In view of the fact that the third clause of the will provides that the bequests to Mrs. King-man are made in lieu of dower, homestead, and support, she is not how in position to assert that the sums so paid her were diverted from the purpose intended. The question is not the same as that presented in Houghteling v. Stockbridge, 136 Mich. 544. In that case, we were not dealing with a will which made provision in lieu of support, nor was the widow in a position where her complaint consisted of a complaint of a diversion of a fund, which was, in fact, diverted to her own use. We are not able to determine from this record that there came into the, hands of the executors an income subject to division under the terms of the will.

A decree will be entered advising the executors that the annuities cannot be paid from the corpus of the estate. The costs of this proceeding may be paid out of the estate.

Carpenter, McAlvay, Grant, and Hooker, JJ., concurred.


author: Grant, J.

text:
    FAHLSTEDT v. LAKE SHORE ENGINE WORKS.
    Work and Labor — Action—Value or Services — Evidence-Quantum; Meruit.
    Where plaintiff’s son, after working a few months under an oral contract of apprenticeship void under the statute of frauds, was discharged and paid his wages as provided by the contract, plaintiff could not recover more on the basis of the price of common labor without showing that his son’s services were worth the price of common labor.
    Error to Marquette; Stone, J.
    Submitted April 7, 1905.
    (Docket No. 12.)
    Decided May 22, 1905.
    Assumpsit by Victor Fablstedt against the Lake Shore Engine Works for work and labor done. There was judgment for defendant, and plaintiff brings error.
    Affirmed.
    Plaintiff’s son, with the consent and approval of plaintiff, made a parol agreement with the defendant by which the son, a minor, was to enter defendant’s service for four years, to learn the business of a machinist. A graduated scale of wages was agreed upon. The son was to receive nothing for the first two months, 50 cents a day for the remainder of the first year, 75 cents a day for the second year, $1 a day for the third year, and $1.50 a day for the fourth year. The son worked eight months, commencing in March and ending in October, when he was discharged. The son was paid regularly twice a month by check, and the plaintiff received the proceeds of the check. Plaintiff, the father, now sues to recover for his services at the rate of $1.50 per day, the alleged regular price of day labor, claiming that his son was wrongfully discharged. The defendant, with his plea of the general issue, gave notice of satisfaction, payment, justification of discharge, and the statute of frauds. It was conceded upon the trial that the agreement of apprenticeship was void under the statute of frauds. The evidence was conflicting as to the cause of the discharge. The above facts were found by the court before whom the case was tried without a jury, and, as a conclusion of law, the court found that the plaintiff could not recover, on the ground that he had already been paid the contract price for the service of his son.

      Button & Heffernan, for appellant.

      Ball & Ball, for appellee.
   Grant, J.

{after stating the facts). Plaintiff seeks to recover the ordinary price paid laborers for similar work, namely, $1.50 per day. The cause was tried before the court without a jury, and the finding of facts is not suchas to justify a judgment in favor of the plaintiff, even if his theory of the law as to the statute of frauds is correct. There is no finding that the plaintiff’s son did a man’s work, or that his services were worth $1.50 a day. He was paid what the void contract called for; He could recover no more in any event, except upon proof of what his services were worth. The mere fact that laborers were paid $1.50 per day is not evidence that his services were worth that amount.

For these reasons, the judgment must be affirmed.

Carpenter, McAlvay, Montgomery, and Hooker, JJ., concurred. '