author:
Ostrander, J.
      Moore, J.

text:
    BELCHER-STINE LUMBER CO. v. BURNS.
    1. Attachment — Sale by Sheriff — Sales—Contract Terminating Seller’s Lien.
    Trover lies for the conversion of lumber owned by the plaintiffs, seized in attachment against third parties, and sold by the sheriff without awaiting the levy of execution, the lumber having been transferred to plaintiffs by the purchasers who bought it subject to the terms of a contract which provided for a lien until notes of the purchasers were given; the evidence showing the execution of the' stipulated notes.
    3. Same — Affidavit—Parties.
    An affidavit in attachment which describes the defendants named as a copartnership, when, in fact, one of them is not a member of the firm, is not so defective as to deprive the court of jurisdiction. Moore, J., dissenting.
    Error to Wayne; Brooke, J.
    Submitted October 22, 1909.
    (Docket No. 174.)
    Decided December 31, 1909.
    Trover by the Belcher-Stine Lumber Company against James D. Burns, sheriff of Wayne county. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Harry M. Lau (George M. Sayles, of counsel), for appellant.

      Bowen, Douglas, Whiting & Eaman (Herbert V. Barbour, of counsel), for appellee.
   Ostrander, J.

I do not think the record supports the conclusion that the attachment proceeding was void in the sense that it was a nullity, that the court had no jurisdiction, and that a judgment rendered therein would upon its face have been without force or effect.

The record discloses that the lumber which the defendant, as sheriff, took into his possession in executing the writ of attachment was sold by the sheriff at the instance of the plaintiffs in attachment, and the money turned over to said plaintiffs. It seems to me, therefore, that the question presented is this: Did the sheriff sell lumber which belonged to the plaintiffs ? If not, he is not liable for its conversion. The plaintiffs in attachment had no contract with the plaintiff in this suit. Their contract was with the copartnership. That contract provided that the title to the lumber should pass to said copartners—

“As soon as the same is cut and piled in said millyard, subject only to lien of said first party for the purchase price of said lumber.”

The record discloses that, as between the said copartnership and the plaintiff herein, it (the plaintiff) assumed the contracts of the copartnership, but without acquainting the owners of the lumber with the fact that a corporation had been formed. If the plaintiff owned the lumber in question, it is because title to it passed to it upon its delivery on board cars after it had paid for the same according to the terms of the contract. The contract provides :

“ Terms of payment to be four months’ note to be given upon rendering invoice for each 500 M. feet of lumber sawed.”

It seems to be established, although the record is not very clear upon the subject, that notes of the plaintiff had been given for the particular lumber. I conclude, therefore, that the title to the lumber passed when the same was delivered on board cars and by the terms of the contract itself no lien remained with the former owners of the lumber. The lumber which the sheriff seized was the lumber of the plaintiff, and it had the right to maintain this action. I therefore concur in affirming the judgment of the court below.

Grant, Montgomery, and McAlvay, JJ., concurred with Ostrander, J.

Moore, J.

(concurring). From a judgment obtained in favor of the plaintiff the case is brought here by writ of error.

In June, 1905, a written contract was entered into between the Lewis Cornwell estate for the sale of lumber to Belcher-Stine Lumber Company, a partnership. The sale included all of the hemlock lumber cut at the mill of the Lewis Cornwell estate at Wolverine, Mich., during the season of 1905. The provisions of the contract important in this controversy read as follows:

“Terms of payment to be four months’ note to be given upon rendering invoice for each 500 M. feet of lumber sawed. The invoice for the first one million feet, already sawed, to be rendered immediately and four months’ note to be given for the same. All lumber to be measured by said first party when the same is placed upon cars, and invoice rendered therefor to second party. Said second party shall move said lumber promptly, as fast as the same is in shipping condition; sixty days from date of sawing being understood to be the length of time required for drying. The title to said lumber to pass to the party of the second part, as soon as the same is cut and piled in said millyard, subject only to lien of said first party for the purchase price of said lumber. Lumber is to be kept insured by party of the first part.”

What occurred later is stated by the learned trial judge as follows:

‘ ‘ Under this contract the lumber was shipped to BelcherStine Lumber Company, a copartnership, and notes given, signed by Belcher-Stine Lumber Company by George B. Stine, until January, 1906, after which date notes given in payment were signed, ‘ The Belcher-Stine Lumber Co., by George B. Stine, Vice President,’ or by ‘ F. S. Belcher, President.’ The change in the signature of the notes given was due to the fact that a corporation had been formed, except that the notes called ‘ The Belcher-Stine Lumber Co,,’which corporation took over all the contracts of the Belcher-Stine Lumber Company, a copartnership. No notice was given to the Cornwell estate that a corporation had been formed, except that the notes were signed by the president or vice president when they had previously been signed only by George B. Stine, and some of the letter paper used showed very plainly that a corporation had been formed, although after the formation of the corporation some letter heads of the old partnership were used. Lumber was shipped to the corporation for several months and the corporation notes accepted and paid. Finally, certain notes were allowed to go to protest, and on receipt of this notice the Cornwell estate immediately started an attachment suit in Detroit against the Belcher-Stine Lumber Company, a copartnership, and seized the two car loads of lumber in dispute in this case. The affidavit for the attachment described the copartnership as composed of Fred S. Belcher, George W. Belcher, and George B. Stine. Now, there was no such partnership in existence at this time, and no such person as George Belcher in existence. The Cornwell estate accounts for this mistake in the affidavit by showing that they made inquiries in Toledo, and were told that the partnership was composed of the men mentioned in the affidavit. The lumber seized belonged to the Belcher-Stine Lumber Company, an Ohio corporation, and was not the property of the partnership described in the affidavit for the attachment. After this lumber was seized a demand was made upon the sheriff who had taken a bond from the Cornwells, and the demand was refused. The suit (an action in trover) was then started to recover the value of the lumber from the sheriff. The lumber was appraised and sold for $344.32.”

It is insisted on the part of the appellee that the attachment proceeding was void because of the defect in the affidavit. On the part of the appellant it is said that the defense, if any, growing out of this defect, was personal to the partnership and cannot inure to the benefit of the plaintiff in this suit. Section 10556, 3 Comp. Laws, provides what must be stated in the affidavit to entitle one to a writ of attachment. In Estlow v. Hanna, 75 Mich. 219 (42 N. W. 812), the court says:

“The affidavit is necessary to confer jurisdiction. * * * The remedy itself is a harsh and extraordinary one, proper when it comes within the plain provisions of the statute, but the statute should not be extended by construction ”

There was no personal service and no general appearanee of the defendant in the attachment case. In Nugent v. Nugent, 70 Mich. 52 (37 N. W. 706), it was held that, in an attachment proceeding against a nonresident defendant who does not appear, the proceeding may be attacked collaterally; citing Granger v. Judge of Superior Court of Detroit, 44 Mich. 384 (6 N. W. 848); King v. Harrington, 14 Mich. 532; Millar v. Babcock, 29 Mich. 526.

It is contended that, conceding the attachment proceedings are defective, plaintiff in the attachment case still had a lien against the property by reason of the contract which could be asserted. The trial judge was of the opinion that the lien was lost by the shipment of the lumber to the vendee. We need not decide whether this is correct, because the defendant in this case was doing what he did, not in an effort to enforce a lien, but as an officer proceeding by virtue of a writ of attachment. The record shows the property was appraised and sold by the defendant. It does not show that he sold the property by virtue of an order of the court.

In Trowbridge v. Bullard, 81 Mich. 451 (45 N. W. 1012), it was said:

“ The office of the writ of attachment is to hold the property until the coming of an execution to enforce a judgment against the property of the debtor, so that the debtor may not put his property beyond the reach of such creditor when he shall obtain judgment. * * * The writ of attachment confers no right to sell the property except in special cases, when ordered by the court.”

In Terry v. Metevier, 104 Mich. 50 (62 N. W. 164), which was an action of trover against a sheriff for the conversion of property which he had seized under a writ of attachment and sold without judicial sanction, the court says:

" It was the duty of the officer to hold the property until the coming of an execution to enforce the judgment in the case. He had no right to sell and dispose of the property without an order of the court, and that could be obtained only upon a special showing of necessity. Here he sold a portion of the property, and permitted the remainder to be removed beyond the jurisdiction of the court. This amounts to a conversion of the property.

The court in the above case quotes approvingly from McGough v. Wellington, 6 Allen (Mass.), 505, as follows:

“An officer who has a precept which authorizes him to take property may take it under and by virtue of his precept ; or he may take it wrongfully to convert it to his own use. If, at the trial, he justifies under his precept, and has conducted himself strictly according to its requirements, he is protected, because he is then entitled to the conclusive presumption that he acted under his lawful authority. But if, before the trial, he has exceeded his lawful authority, the law presumes that the original taking was not for the purpose of serving his precept, but as a trespasser. The facts which occur after the suit is commenced do not constitute a cause of action, but are merely evidence from which arises the absolute presumption that his first taking was a trespass. The character of his original act is shown by his subsequent conduct. It is in the nature of an admission that he did not act under his precept, and such an admission is as effectual in proof if made at one time as at another. The cause of action is the original unlawful taking. That the original taking was unlawful is shown by his subsequent conduct.”

Judgment is affirmed.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    GASKILL v. JACKSON CIRCUIT JUDGE.
    Mandamus — Decrees in Equity — Enforcement by Execution.
    The entry of an order in circuit court requiring the issuance of an execution to collect the sum specified in a decree of the Supreme Court on accounting will be compelled by mandamus.
    Mandamus by Mary H. Gaskill and others to compel James A. Parkinson, circuit judge of Jackson county, to order the issuance of an execution.
    Submitted December 14, 1909.
    (Calendar No. 23,642.)
    Writ granted December 31, 1909.

      D. P. Sqgendorph, for relators.

      Wilson & Cobb, for respondent.
   McAlvay, J.

Relators ask that a writ of mandamus issue against respondent requiring him to enter an order directing the register of the circuit court for Jackson county in chancery to issue an execution out of said court in favor of relators and against Eugene J. Weeks, Charles C. Bloomfield, and Thomas A. Wilson, executors and trustees, etc., defendants, remanded by this court to Jackson circuit court (Gaskill v. Weeks, 154 Mich. 223 [117 N. W. 647]), by a decree duly entered December 29, 1908. Later, a motion was made for a reformation and correction of said decree. This motion was denied. Gaskill v. Weeks, 156 Mich. 668 (121 N. W. 1133). Complainants having complied with the suggestions of this court as expressed in the opinion filed in the case last above cited, and having been paid their share of the cash and all costs, applied to the said circuit court for an execution against the defendants. Upon a hearing the court denied the motion to order an execution to issue. The amount to be distributed was found by the court to be $13,850.14. Of this amount complainants were found to be entitled to four-sevenths. “Such amount and none other ” was fixed “as the basis of the distribution.” We find no ambiguity in the decree and order above cited. No discussion is necessary. Complainant’s construction is correct. He is entitled to an execution for four-sevenths of $13,850.14 less the amount already paid. The motion to order such execution to issue should have been granted.

A writ of mandamus will issue as prayed.

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


author: Ostrander, J.

text:
      In re CORNING’S ESTATE. GLYNN v. CORNING.
    Wills — Probate —Venue — Jurisdiction Dependent on Residence oe Testator — Private International Law — Statutes.
    The will of a person who is domiciled in another State at the time of his death must be admitted to probate in the State of the testator’s domicile, before it can be admitted to probate here.
    Error to Saginaw; Gage (William G.), J.
    Submitted October 30, 1909.
    (Docket No. 128.)
    Reargued January 4 and 5, 1910.
    Decided February 3, 1910.
    Edward W. Glynn presented for probate the last will and testament of Edward Corning, deceased. The will was allowed in the probate court, and Anna Corning appealed to the circuit court. A judgment for proponent is reviewed by contestant on writ of error.
    Reversed.

      G. W. Davis, for appellant.

      Durand & Holland, for appellee.
   Ostrander, J.

Edward Corning died testate November 36, 1908, at Saginaw, Mich. His will was executed December 7, 1907, at Saginaw. He made his will after consulting counsel in Saginaw. His will recited:

“I, Edward Corning, born at the William Corning homestead in the village of Webster, Monroe county, State of New York, and taking my present residence from my brother’s home, No. 150 East 47th street of the city of New York, State of New York, do make, publish, and declare this as and for my last will and testament.”

The provision appointing the executors reads as follows:

“I hereby appoint my said sister, Anna Corning, and Thomas J. Swanton, of the said city of Rochester, N. Y., as my executors of this my will for the State of New York, and my sister, Anna Corning, and Edward W. Glynn, of Saginaw, East Side, Michigan, as executors of this my last will for the State of Michigan.”

After its execution, he deposited his will with his attorneys in Saginaw. After his death they gave the will to the. executor, Glynn, who presented it for probate in the probate court of Saginaw county, Michigan. His co-executrix, Anna Corning, objected to the probate of the will in this State for two reasons:

(1) “Because the deceased was a nonresident of the State of Michigan, and his domicile and home were in the State of New York at the time of the date of said will, and also at the time of his death.”
(2) “The said deceased did not own any real or personal property which was at the time of his death located in the State of Michigan.”

The probate court admitted the will to probate, holding that the deceased left property in Saginaw county, and that this fact gave the court jurisdiction. The contestant, Anna Corning, took an appeal to the circuit court, alleging the same reasons for her appeal. The evidence shows that Mr. Corning lived in Saginaw continuously for about a year previous to his death, and for about two months prior to the execution of the will. The evidence discloses that the deceased had property in Saginaw county, among which was a mortgage executed to him upon land in that county. The case was tried in the circuit court before a jury, to- whom were submitted two special questions:

(1) Was Edward Corning at the time of his death an inhabitant of Saginaw county ?
(2) Did Edward Corning own any estate at the time of his death in Saginaw county ?

To the first question the jury found that Mr. Corning was not an inhabitant of Saginaw county at the time of his death. To the second question they found that he did have property in Saginaw county at the time of his death. The court thereupon entered judgment confirming the probate of the will. No contest was made over the validity of the will.

The question presented is whether the will of a person domiciled in another State, who died leaving an estate within this State, may be admitted to probate here before its validity is established in a proceeding in the courts of the domicile of the testator. The precise point seems to be for the first time now presented for decision in this court. Like the most of the American States, Michigan has an elaborate and very complete system for the administration of estates of decedents. It is to the statutes and to certain general and universally recognized principles supporting local jurisdiction that we must look for an answer to the question. It may avoid confusion to point out, at the outset, that the. jurisdiction of the courts of each State to determine the domicile of a testator is not involved. Such jurisdiction is admitted, or if it is not admitted, is, nevertheless, undoubted. And the right to administer the particular estate is not involved. There can be no doubt concerning the power of the probate court of Saginaw county to administer the estate of this decedent, found within the State, wherever the owner died and whether he did or did not leave a valid will. Whether in any case the effect of admitting a foreign will to be probated may amount to an estoppel, inter partes, is not a question presented. See, generally, Robertson v. Pickrell, 109 U. S. 608 (3 Sup. Ct. 407); Overby v. Gordon, 177 U. S. 214, 223 (20 Sup. Ct. 603); Scripps v. Wayne Probate Judge, 131 Mich. 265 (90 N. W. 1061, 100 Am. St. Rep. 614). Power to admit wills to probate and to grant administration of estates is conferred upon probate courts, generally, by 1 Comp. Laws, § 650, which reads:

“The judge of probate for each county shall have power to take the probate of wills, and to grant administration of the estate of all persons deceased, who were at the time of their decease inhabitants of, or residents in, the same county, and of all who shall die without the State, leaving any estate within such county to be administered; and to appoint guardians to minors and others in the cases prescribed by law, and shall have and exercise all such other powers and jurisdiction as are or may be conferred by law.”

It is further provided in 3 Comp. Laws, §§ 9282-9284, for admitting, in this State, wills of those who were domiciled abroad, and for the manner of disposing of estates of testators domiciled abroad whose wills are so admitted to probate here. These and other provisions of the statutes must be read together. It is plain that the legislature has recognized the right of the courts of the domicile of a testator to conclusively determine the validity of the will, and quite as plain that the courts of the domicile of this testator have made no such determination. It has been repeatedly held that the issue here upon the offering of a domestic will for probate is “will or no will.” We have then these two methods provided by the legislature for admitting wills of deceased persons to probate: One, to try out every issue upon which validity of the instrument depends; the other, to accept the determination of all of these issues by the courts of the domicile of the testator. There is no method pointed out for admitting a will here as valid to the extent of appointment of an administrator of the estate, leaving the question of its validity to be determined at the domicile of the testator. ' It is not conceivable that the courts of this State will inquire about and finally decide that a certain instrument is, or is not, a valid will, subject to having the determination reversed by the courts of any other State. Assuming the right of each State to assert complete jurisdiction in rem over all property of decedents found within the State, including the right to determine, through its tribunals, the validity or nonvalidity of a foreign will, it is equally the right of each State, acting through its legislature, to accept as conclusive the judgment of the courts of the domicile of the testator as to the validity of his will and to permit his property, found in the State, to be disposed of according to the provisions of the will. I find in the statutes sufficient evidence of a State policy which denies to the probate court of Saginaw county the jurisdiction which it assumed when it admitted the particular will to probate. Holding these views, it is not important to refer to and review decisions of courts of other States in which a different view is expressed.

The judgment of the circuit court for the county of Saginaw is reversed, with costs to appellant, and the record is remanded, with directions to the probate court to refuse probate of the will.

Montgomery, C. J., and Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


text:
    MORRILL v. DETROIT & MACKINAC RAILWAY CO.
    1. Negligence — Warning Signals — Instructions to Jury — Railroads.
    All question of the defendant’s failure to warn the plaintiff, an employé of a distinct corporation, who was stationed on defendant’s logging train unloading timber, was withdrawn from the jury by an instruction that no warning was necessary, because the plaintiff knew the train was about to start.
    2. Same — Custom and Usage — Operation of Railroad Cars.
    Testimony concerning the usual movement and jerking of the cars was competent to refute the defendant’s theory and evidence that the usual and ordinary motion of the cars caused the injury.

      3. Same — Jerking Cars in Starting.
    It was sufficiently favorable to the defendant to charge the jury that, if the engineer started the train in the manner that an ordinarily prudent engineer would have done, there was no negligence.
    Error to Alpena; Emerick, J.
    Submitted June 10, 1909.
    (Docket No. 48.)
    Reargued January 10, 1910.
    Decided February 3, 1910.
    Case by Thomas Morrill against the Detroit & Mackinac Railway Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Charles B. Henry (James McNamara, of counsel),, for appellant.

      I. 8. Canfield, for appellee.
   Ostrander, J.

Plaintiff was an employé of the Thunder Bay Boom Company, and defendant railway company was hauling logs from various lumbermen, which were unloaded from its cars by employés of the boom company. On September 16, 1907, when he had been employed for about six weeks, plaintiff was one of six men engaged in unloading logs from a train of 15 cars, 3 cars being unloaded at one time; one man being stationed at each end of each car. The method was to place the cars on the railroad bridge, and, as 3 were unloaded, to move the train so as to bring three other cars into position for unloading. Twelve cars had been unloaded, and the plaintiff had passed to the rear end of the rear car, and stood there awaiting the movement of the train. It is averred in the declaration that it was the duty of the defendant to so run, move,—

“ Operate, and handle its said locomotives, log cars, and log trains that the said employés of said Thunder Bay Boom Company, while so unloading said log cars into said river, would have a reasonably safe place to work, and not start or stop such locomotives, log cars, or log trains so negligently, violently, or suddenly as to jerk said men in tbe said employ of said boom company, as aforesaid, from said log trains or log cars to said bridge or the ground, and to run, operate, and move said trains of log cars at the place aforesaid, while being so unloaded as aforesaid, without negligence, and with reasonable care, so that the men so employed as aforesaid would not be jerked or thrown about or from said cars and injured; that it was the duty of said defendant and its engineers, conductors, and employes of said defendant, when in charge of the running or moying of such log trains, at the place aforesaid, while such logs were being, unloaded as aforesaid, when such trains were standing on such bridge for the purpose aforesaid, to warn said men so engaged, as aforesaid, before starting such trains, and after such warning to start and stop such trains with reasonable care, so as not to jerk or throw such men at work, as aforesaid, around or from said trains to said bridge or to the ground, and cause them to be injured.”

The negligence of defendant averred is that, disregarding its duty,—

“And, without giving said plaintiff warning that it was about to move said train, started said train and cars up so quickly and violently and negligently that plaintiff, while using due care and diligence, and without any fault or negligence on his part, was jerked and thrown from one of said defendant’s cars to the said bridge and ground, ”

Upon the subject of warning — giving notice that the train was to be moved — the court said to the jury:

“Now, gentlemen, that man was so thoroughly apprised of the fact that they were about to start that train that it would have been idle ceremony for any one to have said to him, ‘We are about to start,’ or ring a bell or blow a whistle. From some source, either what he saw, or for some reason, he had had his attention completely fixed upon the fact that that train was about to start, and therefore the question of whether he had any warning that the train was about to start or not is of no earthly importance in this case.”

All question of a failure to give notice that the train was to be moved was thus eliminated favorably to defendant’s contention. There remained the questions of defendant’s negligence in moving the train, and of the plaintiff’s negligence.

Plaintiff, upon his cross-examination, testified:

“ I had hold for an ordinary start. There was nothing back of me to protect me from falling off. I don’t remember whether I fell between the rails or on the outside of the rails. When I found that I was falling, I tried to jump; put my foot back to catch myself. I stepped back right off the end of the car trying to save myself.”

When the plaintiff rested his case, counsel for the defendant moved for a directed verdict, in presenting which motion he said, among other things, that while there may have been, upon the occasion in question, a considerable jerk in starting the train, it could not be started without a jerk, that the trainmen were handling the train as they ordinarily handled it, and that no person in the position that the plaintiff occupied could avoid the danger of being knocked off by the sudden starting of the train. In overruling the motion the court said that undoubtedly the plaintiff had been employed for such a length of time that he assumed the ordinary risks — the risk of being thrown from the train by any ordinary jerk — but that there might be a degree of negligence on the part of defendant that would absolve plaintiff. If the train was started with an outrageous jerk, entirely outside of the ordinary movement, plaintiff would not he held to have assumed the Tisk.

It is upon the admission of testimony showing the manner in which the trains had theretofore been moved, and upon the charge of the court which is said to have permitted the jury to determine the fact of defendant’s negligence, and the fact of plaintiff’s contributory negligence, or want of negligence, by a comparison of the manner in which the train was moved upon the particular occasion and the manner in which the trains had theretofore been moved, that the assignments of error relied upon are based.

Plaintiff was not an employe of the defendant. It was the theory of defendant that, whatever the movement of the log train upon the occasion in question, it was the usual movement, to which plaintiff had become accustomed, and with reference to which he ought to have acted. And while it was also claimed that the train was, upon the particular occasion, moved in a prudent manner, it was not error, in view of this theory, to admit testimony which tended to prove the manner in which the train had usually been moved.

The charge, considered as it must be in its entirety, is not open to the criticism which is made. It is favorable to defendant in presenting to the jury the duty of the plaintiff to conduct himself with regard for the movements of the train with which he had become acquainted. It was distinctly favorable to defendant in requiring the jury to find that the train was started with a much greater degree of force than had been usual. But the rule is stated, and is repeated, that if the engineer upon this occasion started the train in the manner that an ordinarily prudent engineer would have done, there was no negligence. If he did not, but “started it with a degree of force and speed, and a jerk, that an ordinarily prudent engineer would not have done under the circumstances, the defendant would be negligent. ”

No error appears, and the judgment is therefore affirmed.

Montgomery, C. J., and Hooker, Moore, McAlvay, Brooke, Blair, and Stone, JJ., concurred.


author: Hooker, J.

text:
    MITCHELL v. BILDERBACK.
    1. Frauds, Statute of — Sale of Land — Compromise and Settlement-Parol Agreement.
    An agreement not in writing between the owner of a farm to which he held title by foreclosure subject to redemption, and the person holding the equity of redemption, whereby the parties stipulated to sell the premises and divide the proceeds in proportion to their interests, is unenforceable as to a sale made seven years later, being void under the statute of frauds.
    2. Same — Trusts—Parol Agreement.
    Under the invalid agreement no trust could be created in proceeds which were not then in-existence.
    3. Trusts — Equity—Parol Declaration — Intention.
    To create a trust by a parol declaration, where the donor retains the property, it must be executed by acts and words of a clear and unequivocal character, constituting something more than a mere declaration of intention.
    Error to Cass; North, J., presiding.
    Submitted June 10, 1909.
    (Docket No. 29.)
    Reargued January 10, 1910.
    Decided February 3, 1910.
    Hattie Mitchell presented a claim against the estate of Caiphas Dill, deceased, for an amount held in trust upon the foreclosure of certain mortgages. The claim was disallowed in the probate court, and claimant appealed to the circuit court. A judgment for claimant is reviewed by the administrator on writ of error.
    Reversed.

      Clyde W. Ketcham, for appellant.

      Coy W. Hendryx, for appellee.
   Hooker, J.

The claimant filed a claim against the estate of Dill, which was disallowed by the probate judge. She appealed to the circuit court, where a jury rendered a verdict allowing the claim in full, $1,575. The administrator has appealed.

Outline of Facts. Dill held two mortgages on a farm aggregating $3,500. Mrs. Mitchell held a later mortgage on the same premises for $1,500. Subsequently Dill took another mortgage for $1,000 on the same land. The land was subsequently sold at execution sale, at the instance of a creditor of the mortgagor. The plaintiff purchased this title, and after the expiration of the period of redemption took possession. She also foreclosed her mortgage and bid in the premises; the deed becoming operative by the expiration of the period of redemption on March 19, 1898, subject to Dill’s first two mortgages. Dill foreclosed these two mortgages, and bid in the land, and the foreclosure deeds issued thereon became operative on April 3, 1898. The claim of the plaintiff is based on an alleged oral agreement, made between Dill and herself a short time before the expiration of the period of redemption from his sale and purchase.

The evidence of this transaction consists of the oral testimony of plaintiff’s brother-in-law, Mr. Caster, who testified that he was present and heard the conversation; that plaintiff’s interest in the land would soon have been cut off by the foreclosure title of Dill; that plaintiff and he went to see Dill about it, and she said to him that of course she could redeem from his mortgages, but it was an obligation she did not like to assume, to stand on her rights to redeem, and he replied:

I don’t really want the farm, for I am an old marq and we have a large farm now, to look after, and we really don’t want it.’ That was the argument .of both of them, and they stood there for several visits we made, but finally we made a visit there when there was an agreement entered into that was proposed by old Mrs. Dill, herself. * * *
“As I said, old Mrs. Dill spoke, after hearing the reasons why they didn’t want to take the farm, she said, ‘ Why don’t you sell the farm and divide the money, inasmuch as you don’t either one of you want it?’ She said she could see why Mrs. Middleton didn’t want the farm, ‘ and I know Mr. Dill doesn’t.’ She says, ' Why not sell the farm and divide the money, if you don’t either of you want to stand on your rights ?’ And that seemed to be a new proposition. They hadn’t thought of it, and finally Mr. Dill says — he says, ‘I don’t know why that won’t be a fair way to sell the farm. ’ He says, ‘ We know what we have each got in there.’ He says, ‘ I have figured the interest on all the papers, all the interest,’ and he says, ‘It amounts to a one-quarter interest.’ He says, ‘You take the amount of money we have got in, and we will say nothing about figuring interest.’ He says, ‘ You know what I paid Mr. Schimerhorn ?’ I says, ‘ I know what Mr. Schimerhorn said to me.’ He says, ‘ That' is what I gave, the face of the mortgages.’
“Q. How much?
“A. $3,500. He says, ‘That is what I paid Mr. Schimerhorn.’ He says: ‘ Of course on the mortgage I let him have $1,000; I had $4,500 in the farm, actual money that I have paid in the farm, $4,500,’ and he says, ‘ You have fifteen hundred that you let him have on the third mortgage?’ and he says, ‘It is just three to one,’ and she says, Mrs. Middleton, ‘ I have sixteen hundred in there.’
“Q. What was given to make up the sixteen hundred ?
“A. Well, the execution; she says, ‘I paid the execution to get possession of the farm.’ He says, ‘ That is all right,’ but he says, ‘ Did you figure this when you bought that that would give you possession of the farm, and you would get the execution money back ? ’
“Q. How much was the execution ?
“A. $105, I think, if I remember right; $105, I think was the amount, but they figured it sixteen hundred. ‘But,’he says, ‘I figured we wouldn’t count that; you will get that back just as you figured, and that leaves you fifteen hundred in and me forty-five, and you have got a year for this farm, and have it rented ’ — she had rented to one Mr. Anderson — and he says, ‘ During the year you have a right to sell it, and go on and sell.’ He says, ‘ If you can sell the farm so that we will get our money’ — they both said if they got their money out they would be satisfied. He says: ‘ During the year, if you can sell it so to get our money out of it, sell it. If you can get any money, we will divide in that ratio, if you get more than $6,000, but,’ he says, ‘ if you don’t sell, and I don’t think you will sell it.’ He says: ‘ The seasons have been bad, and the farm has been run, and it doesn’t look good; I doubt whether you will sell it during the year, but if you get a chance, you sell it; we will both waive our rights, and next year,’ he says, ‘ of course, I will go in possession of the farm. If you don’t sell, I will sell it, but one thing I would like to provide about, the farm was run down, and I would like to see the farm fixed up,’and he says, ‘We will if I do come in possession of the farm, and put the proceeds back on the farm until we fix it up a little and clean it up, and it is got a little better.’ He says, ‘ This farm ought to bring a good price, $50 an acre.’
“Q. How many acres of it ?
“A. 160 acres, and then he spoke, he says, ‘ It has been sold once I know of for $7,200, and,’ he says, ‘And no reason to me why, if this farm is fixed up it hadn’t ought to bring $50 an acre, and if it does, it will let us both out,’ and asked her what she thought of that, and she said to him, she hadn’t thought of a proposition of that kind at all, and: ‘I would like to think the matter over a little. I will let you know right away.’ And this was in the middle of the week, and she said to him, she says: ‘ I will think the matter over, and we will drive over Sunday ; I am anxious to get back my money, whether I stand on my rights, or whether I accept this proposition ’ — and he says, ‘All right, take your time,’ and then he spoke to me about it. He says, ‘ What do you think of that proposition, of that kind ? ’ and I said, ‘ It seems to me that is fair enough if you want to dispose of the farm that way. That looks fair enough only,’ I says, ‘ She has only — her time is limited to sell it in, a year, and your time seems to be unlimited. You say when you sell it you will divide ? ’ And I said, ‘ Then it might be a fairly good proposition to you; you don’t care to pay her anything until you do sell it,’ and he says, ‘ That is a little one-sided,’ and he says, ‘Any time you feel I am not trying to sell it, you come over there and we will place it in some disinterested party’s hands, and make the statement to him authorizing him to sell it,’ and that seemed to be agreeable, and she says she would let him know Sunday, and he says: ‘You needn’t do that; it means a livery rig and take you out of the store.’ And he says: ‘ I come to town every Saturday anyway, and I will call at your- house, have to drive right by, and I will stop and get your decision Saturday afternoon, and make up your mind what you want to do about it.' When I went down at supper time that Saturday I remember his rig stood in front of the house, and when I got there, he came out of the house.
“Q. Did you have a talk with him there ?
“A. Yes; he passed the time of day there, and said to me then, Well,’ he says, I guess it is you and I for it; we settled that deal all right.’ I says, ‘ I am glad of it.’ I says, ‘ How have you settled it now ?’ He says: ‘ Just as I went over it; she is to sell it if she can, and if not, I am to sell it. I have got a farm of my own in Silver Creek, and decided to remain there permanently. That she was going back to Springport.’ He said anything that came up, as a matter of opinion in reference to the farm, he could come and see me about it, and it would be the same as though she was there, and he says, ‘ We have decided just as we talked over there, that we are to sell the farm and divide the money.’
“Q. If you found a purchaser during the time she held the record title, she was to make transfer ?
“A. Yes, sir.
“Q. And if after he acquired the record title, he was to sell and transfer and make the division ?
“A. Yes, sir.
“Q. And the matter was determined in that way, at that time ?
“A. Yes, sir.
“Q. Now, this $1,000 mortgage that he held — the $1,000 that he let Mr. Cullinane have on the fourth mortgage, was subsequent or after Mrs. Middleton’s mortgage?
“A. Yes, sir.
“Q. And in this arrangement, do I understand that was to come in and share in the proceeds, too ?
“A. Yes, he figured the amount he paid Cullinane on that mortgage.
“Q. Forty-five hundred ?
“A. Yes, sir; that included the interest he had in the farm; figured in that way.
“Q. Now, during this talk there at the house, was there any talk about her having arranged for the money to redeem his mortgages ?
“Mr. Ketcham: I object to that; immaterial and irrelevant whether she arranged for the money or not.
“Q. And did they have conversation in reference to it ?
“Mr. Ketcham: I object to that; irrelevant and immaterial whether she had talk with anybody about borrowing money.
The Court: Well, if it is part of the same conversation, possibly it bears upon the proposition.
“Mr. Hendryx: It is part of the consideration, and she waives her right to redeem.
“Mr. Ketcham: Note an exception.
The Court: You may take the answer. (Last question read.)
“A. She told Mr. Dill that she had arranged for money for him; that she could take up his mortgage at 6 per cent., and. Mr. Dill says parties told her that they viewed the land, and if the security was good, she could have the money. He said to her, ‘You needn’t bother to go to any trouble to do that. If you conclude to stand on your rights, you can have the money; you can have it at 6 per cent, interest.’”

This talk appears to have been in the winter or spring of 1898. The same witness testified to a conversation with Dill in December, 1905, as follows, on the occasion of his calling to pay his taxes on other property:

“I called his attention to the 160 acres I assessed to him, the Cullinane farm, and he says: ‘Yes, that is one thing I wanted to talk to you about, but,’ he says, ‘ you are pretty busy.’ He says, ‘I suppose you know I have sold the Cullinane farm,’ and I said, ‘ I didn’t see any transfer of the place, but Mr. Swisher living near the place came to my house, saying that a lady in Chicago had written him to ascertain the amount, and that she would send a check, and I presumed from that you had sold it.’ He says: ‘Yes; I have sold that farm.’ He says: ‘That was the bargain; she was to pay the taxes.’ and I says, ‘ I will give him the receipt after receiving the check.’ He says: ‘ I am going back to Ohio.’ I think he said he wanted to go for the holidays. Anyway, I concluded he was going back that day, and he says, ‘ I will return soon to Dowagiac, and I will be in here to settle with Mrs. Middleton,’ and wanted me to have her here, and I said I would get her by telephone, and would let him go, and he says, ‘All right,’ and that was the last I saw of him.
“Q. Now, then, did he ask you anything — what did he say particularly about settling it ?
“A. He asked me if it was necessary for Mrs. Middleton to be here. I says: ‘Yes; of course, I heard the bargain and understand the bargain.’ And he says, ‘All right,’ he would let me know, and I could get her here, and ‘ I will settle with her just as we talked.’
“Q. According to the agreement ?
“A. Yes, sir.
“Q. That would be one-fourth to Mrs. Middleton and three-fourths to Mr. Dill ?
“A. Yes, sir.”

A daughter of this witness testified that she was present at this last conversation.

“Q. Now, will you tell the jury, as near as you can, what the conversation was ?
“A. Do you mean in reference to the Cullinane—
“Q. (Interrupting) Yes, in reference to your auntie’s claim in the Cullinane property ?
“A. He said that he had been down in Ohio, and had to go back again, and he said when he came back he wanted to settle up with Mrs. Middleton about the Cullinane farm. Is that correct?”

These witnesses were contradicted as to the last transaction by two or more men, who testified that they were present on that occasion. Caster was the only witness to the other conversation; both Dill and his wife being dead. Manifestly plaintiff could not testify by reason of the statute.

Dill went into possession on April 3, 1898, when his title matured. He afterwards sold the farm for $6,300, and deeded the premises on October 14, 1905. The claim filed was, “ To proportionate mortgage share of sale of Dennis Cullinane farm in Silver Creek $2,500.” The recovery was for $1,500 and a small amount of interest aggregating $1,575. The theory on which the plaintiff’s counsel rest the right to a verdict is that the proceeds of the farm constituted a trust fund, in which the plaintiff had an interest. We have quoted the substance of the testimony relied on to establish a trust. The alleged agreement to sell this land and divide the proceeds was made in 1898, and was manifestly void under the statute of frauds. That was seven years or thereabouts before the sale of the land by Dill. Therefore there was not at that time a fund in existence in which a trust could be created by parol. In this respect the case is similar to Rapley v. McKinney's Estate, 143 Mich. 513 (107 N. W. 101), which followed Collar v. Collar, 86 Mich. 513 (49 N. W. 551, 13 L. R. A. 621).

The evidence is wanting as to a subsequent contract. The parties never met afterward, and the only semblance of a subsequent declaration of a trust was the alleged statement to Caster, made seven years later, that he “ was going to Ohio, but would return soon to settle with Mrs. Middleton, * * * and would settle with her just as we talked.” This was not said to the plaintiff, nor to an agent of hers. There is not the least evidence that Dill ever made a new contract or agreement or promise with or to plaintiff. On the contrary, the record conclusively shows that he did not. Rapley v. McKinney's Estate, supra; O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511). We said in Hamilton v. Hall's Estate, 111 Mich. 291 (69 N. W. 484):

“But it is contended that in order to establish a parol trust the evidence must be very clear and satisfactory, and find some support in the surrounding circumstances and in the subsequent conduct of she parties. This rule is sustained in Crissman v. Crissman, supra [23 Mich. 216], as well as in Allen v. Withrow, 110 U. S. 119 (3 Sup. Ct. 517); Bailey v. Irwin, 72 Ala. 505; 1 Perry on Trusts, §§ 77, 86. To create a trust where the donor retains the property, the acts or words relied upon must be unequivocal. Young v. Young, 80 N. Y. 422 (36 Am. Rep. 634); 27 Am. & Eng. Enc. Law (1st Ed.), p. 56, and cáses there cited. And this rule applies with peculiar force where it is claimed that the donor constituted himself trustee. Williamson v. Yager, 91 Ky. 282 (15 S. W. 660, 34 Am. St. Rep. 184). In Beaver v. Beaver, 117 N. Y. 421, 428 (22 N. E. 940, 6 L. R. A. 403, 15 Am. St. Rep. 531), which was cited with approval by this court in O’Neil v. Greenwood, 106 Mich. 572 (64 N. W. 511), it was held that, ‘ to constitute a trust, there must be either an explicit declaration of trust, or circumstances which, show beyond reasonable doubt that a trust was intended to be created.’ The mere declaration of an intention or purpose to create a trust, which is not carried out, is of no value, and a mere agreement or statement of an intent to make a gift in the future is not sufficient. It must be such that from the time it is made the beneficiary has an enforceable equitable interest in the property, contingent upon nothing except the terms imposed by the declaration of the trust itself.”

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., and Ostrander, Moore, Mc-Alvay, Brooke, Blair, and Stone, JJ., concurred.


author: Hooker, J. Hooker, J. Stone, J.

text:
    CASE v. CASE.
    1. Divorce — Extreme Cruelty — Refusal to Cohabit.
    A complete refusal of a defendant to cohabit with her husband during a period of nearly three years constitutes extreme cruelty.
    2. Same — Collusion.
    No evidence of collusion warranting the court in denying a decree for divorce is presented by a showing that the husband consulted a lawyer concerning his right to a divorce .and his wife thereafter refused for about three years to perform her marital duties, or by the fact that the parties adjusted their property matters by an agreement of the husband to pay her alimony in a lump sum. Hooker, J., dissenting.
    Appeal from Oakland; Smith, J.
    Submitted June 11, 1909.
    (Docket No. 55.)
    Decided September 21, 1909.
    Motion for rehearing submitted October 8, 1909.
    Granted November 5, 1909.
    Reargued January 4, 1910.

      (Docket No. 1.)
    Opinion vacating the former opinion filed February 3, 1910.
    Bill by Jesse O. Case against Clara E. Case for a divorce. From a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Andrew L. Moore, for complainant.

      Perry & Lynch, for defendant.
   Hooker, J.

This bill was filed by the husband against the wife for divorce, and was taken as confessed, and heard under a stipulation; an agreement being also made providing for the payment to her of $2,150 alimony contingent on complainant’s obtaining a decree of divorce. The records and files of the court showed that he had been previously divorced at the suit of a former wife. The circuit judge caused the defendant to be subpoenaed, and her testimony was taken. He concluded that some of the charges in the bill were false, and intimates that her refusal to cohabit with him was due to his expressed desire for a divorce. We may add to that the fact that she does not oppose the divorce, and apparently made her testimony as nearly harmless to him as she could. We are far from certain that a money consideration was not the cause of this, and that in this sense at least the proceeding was not collusive.

The learned circuit judge who saw and heard the witnesses was in a better situation to judge of the case than we, and while, if believed-, the complainant’s testimony might have justified a decree in his favor, we are not so sure that he is so deserving as to make it incumbent upon us to reverse his decree. The law makes divorce dependent upon connubial wrong, not mere incompatibility, and courts can only follow and enforce the law. Owing to the fact that in most divorce cases the relations of the parties have become so strained that there is a mutual interest if not a mutual desire that a divorce be decreed, there is frequently much difficulty in ascertaining the truth, and, so long as the present rules of law continue, it is in keeping with their spirit to require clear proof of misconduct, and absence of collusion before granting divorces upon the testimony of the complainant on bills taken as confessed.

The decree is affirmed.

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

on rehearing.

Hooker, J.

This cause has been argued before the full bench, upon a rehearing granted on motion of the complainant. The bill filed in the cause contains allegations which, if proved, might justify a decree if the acts were without cause. The circuit judge saw the parties and heard their testimony, and he states unqualifiedly that the defendant is a refined and educated woman, that the complainant’s testimony was false in more than one particular, and that the only ground upon which a divorce could be granted was her refusal to cohabit with him, which she admits for two years or more. The testimony fully warrants the judge in believing that both parties desired him to grant this divorce. It is plainly perceptible from the atmosphere of the case, and the apparent disinclination of the defendant to place any impediment in the way. But the decree was not based on collusion in either court. The defendant’s testimony, however, warrants the inference that she took interest in his affairs and cohabited with him until about two years ago:

“The Court: And he further says that from appearances you took no interest™ his business affairs. Is that true?
“A. Well, since when ? I have not taken much interest in it for two years. Since I commenced to know that we could not live together I have not taken so very much interest in affairs.
Q. How long has it been since you did not take any interest in his affairs ?
“A. Since he came up to see Mr. Moore about getting a divorce. About two years ago, pretty nearly.
Q. Now, he states that you did not treat the hired help properly, and that you did not cook for them and treat them properly. Was that true, the latter part of your married life ?
“A. Yes, sir, for the last two years. Before that I treated them properly, but since the last two years I don’t claim to have.
“Q. Now, he speaks of his brother coming there, and you treated him in such a manner that he had to go away ?
“A. Yes, that is true.
The Court: What was the trouble with his brother and his people ?
“A. No particular trouble except that I did not like him, and I knew he was not there for any good. I thought he came there for a visit, and I did not care particularly about waiting upon him, and thought he had as much time to make his bed as I did.
“Q. Did you tell Mr. Case that you did not want him there ?
“A. No, I did not say much of anything to him. I told my husband before that I did not care to entertain his brother any more. I did not make his bed. * * * I suppose there is some truth in it probably. I don’t know exactly what he means by decent. I tried to be decent to him. I don’t quite understand his meaning. He knew the time the meals were always ready. I rung the bell, and if he heard it he would come. I ate my meals alone quite frequently. I do not like to quarrel at the table, and'so I ate alone. I know that it takes two to quarrel. * * *
Q. One principal charge was that you refused to room with him. What was there about that, and since what year ?
“A. I don’t know as there was any particular cause for it. I don’t know. I commenced to so thoroughly dislike the man I could not occupy the same room with him.
“ The Court: And you refused because of this personal dislike to cohabit with him and to occupy the same room with him for how long, two years ?
“A. Yes, sir.
“Q. And that has been continuously ?
“A. Continuously, yes.
“Q. How long ago was it that a divorce was talked by you parties ?
“Jt. Why, two years, is it not ? He suggested getting a divorce. We have agreed on a settlement of our property matters. I do not see any other course to take. I knew he was coming to see his attorney and talking with him about a divorce.
“Q. It is because of that talk, is it not, that you filed no answer or appeared in this case ?
“A, Well, I don’t think I have any grounds. I did not care to make any defense to it.”

It is unnatural for such a state of affairs as complainant claims to have existed without any cause. Yet he professes entire ignorance of any reason for her conduct. It requires some credulity to believe this. Moreover, when we examine the testimony quoted, we find that there was a reason for her dislike and refusal to cohabit. A refusal to cohabit may be ground for divorce on the ground of cruelty, but not when the refusal is based on the expressed desire of a spouse for a divorce, accompanied by visits to a lawyer with that object in view. While the writer of this opinion is profoundly impressed that it would be for the benefit of both parties and the public that incompatibility such as is here shown should itself be a ground for divorce, it is doubtful if the consensus of public opinion would approve. Certainly legislation has not advanced so far, as was said in the original opinion. And courts are expected to enforce the law, not make it. We know that there is great laxity in divorce litigation. It is a matter of current comment by the public and the press. Yet the law only authorizes it on proof of certain connubial wrongs. Evidently the circuit judge was convinced that the greatest wrongdoer was the husband, and I am not convinced that he was not. Under these circumstances, I cannot consistently assent to a reversal of this case. The decree should be affirmed.

Stone, J.

I am unable to concur with Justice Hooker in this case. In my opinion the complainant has, by his bill and evidence, made a showing that entitles him to a decree of divorce. The parties were married on May 12, 1903. The complainant had been before twice married. His first wife died upwards of 21 years ago. He was married to his second wife in 1888. In 1899 she obtained a divorce from him on the grounds of extreme cruelty and habitual drunkenness. In his bill of complaint in this case, the complainant states his grounds pf divorce to be that the defendant, shortly after she came to his home, manifested a surly, sullen, and ugly disposition; that the second week she was there she came to the table five days in succession and did not speak to the complainant or any one else, and that she would often have spells when she would not speak to any one; that she was not satisfied with the conditions of the home, but continually found fault with the complainant, with the home, and with the surroundings; that in the winter of 1903-4 she threatened to go away and leave the place, and that she often repeated this threat. And again, in the fall of 1904, she threatened to leave and vacate, stating that she had a son and she could go and live with him. And during the years of 1903 and 1904 there were many occasions when she would not speak to the complainant for days, and there were often many occasions when she would not get his meals, nor meals for the men employed about the farm; that about the 1st of August, 1904, defendant left the home of complainant for about four weeks; that in the fall of 1904 complainant went to one of the neighbor’s homes on an errand, and when he came back to his home defendant was angry and in a state of excitement, and that she there accused complainant of running after bad women, and said that he was chasing around after that class of people in the neighborhood. Complainant alleges that this accusation was wholly false and unwarranted; and yet, in spite of that fact, it was repeated subsequently by defendant on several occasions; and defendant accused complainant of visiting houses of ill fame in the city and resorting with that class of people. All of which complainant states was wholly false and entirely uncalled for; that in the winter of 1905 defendant often said to complainant that she did not care anything for him, or for any of his people. She had stated repeatedly that she would rather live alone, and stay alone. And when asked why she remained at complainant’s house, she stated she would stay simply to annoy him and make him trouble.

The bill further charges that about the month of March, 1908, defendant fitted up in the home of complainant a room, and that from that time on she refused to cohabit with complainant, to sleep with him, or to occupy the same room with him; and that she has continued to sore-fuse from that time until the time of filing of the bill, and that she repeatedly stated that she would not cohabit with complainant in the future, and that she would not occupy the same room with him, and insisted that she would have nothing to do with him whatever; that on some occasions the defendant refused to get meals for complainant, or for the hired help; that she would leave the home without notifying complainant and not return at meal time; that on some occasions she would sit at the table for a part of the meal time, and on others would refuse to sit at the table at all; that as soon as her meals were over she would go to her room and remain there; that she would refuse to sit with complainant and companion with him, or in any way act toward complainant as a wife should towards her husband; that on several occasions complainant would have to go to neighbors for his meals, and that he has been obliged to get meals at his neighbors for the hired help; that on one occasion she refused to cook for the threshers, when they had threshers at the farm. Complainant was obliged to get the threshers’ meals at his neighbor’s and pay for them. On many occasions she left the home without leaving any provisions prepared, and would go away for days without giving any warning to complainant that she was going away, and without leaving anything for complainant or hired help to eat while she was gone. The bill of complaint was taken as confessed after personal service of a subpoena and appearance by her solicitor. The testimony of the complainant fully sustains the allegations of the bill, and is corroborated in many instances by several witnesses. It is only fair to say, however, that he is not corroborated as to his claim that the defendant accused him of consorting with lewd women.

By order of the court the defendant was examined as a witness in the case. Her testimony fully sustains the charge of complainant that she had refused to cohabit with him for upwards of two years. Justice Hooker has quoted some of her testimony. She further testified as follows:

“Q. Do you know of your husband going over to the neighbors and getting meals on various occasions ?
“A. I can’t tell you. I was not there. I don’t know whether he did or not.
“Q. He said the reason he went was because you did not get his meals at home. Is that true ?
“A. I presume it is, very likely, if he did not eat at home he would go away.
The Court: The principal charge was this: Excuse me, I am able to state it without reading the testimony. One principal charge was that you refused to room with him. What was there about that, and since what year ?
“A. I don’t know as there was any particular cause for it. I don’t know. I commenced to so thoroughly dislike the man I could not occupy the same room with him.
“ The Court: Was it because of any physical condition on his part ?
“A. Oh, no.
The Court: The lack of cleanliness ?
“A, He was not particularly clean by any means.
“Q. What was the real reason? The principal reason?
“A. Well, I don’t know. There were so many little reasons. I suppose I could have endured him if I had liked him at all.
“Q. It was largely because of your personal dislike? You did not like the man ?
“A. I don’t know.
“Q. Was it because of anything he had done himself personally, associating with other people ? Anything of that sort ?
“A. Oh, no.
“Q. With other women, for instance ?
“A. Oh, no. We never had any trouble about that matter.
“Q. Was there any trouble between you and him because of the use of intoxicating liquor ?
“A. No, he did not use intoxicating liquor.
The Court: Did he when you married him?
“A. No.
‘ ‘ The Court: He quit before that ?
“A. Yes.
“ The Court: And you refused because of this personal dislike to cohabit with him and to occupy the same room with him for how long, two years ?
“A. Yes, sir.
“Q. And that has been continuously ?
“A. Continuously, yes.
“Q. I would like to ask you this question as to whether or not you think it is possible for you and Mr. Case to live together as husband and wife now or in the future ?
“A. I do not.
Q. Would you live with him ?
“A. No, I don’t think I would. I could not the way I feel now about it.
“Q. You have got very decided views on that subject, I take it?
“A. Yes, sir.
“Mr. Lynch: You never made a charge, as I understand it, about your husband being intimate with other women around there ?
“A. No, I never entertained any suspicion of anything of that kind.
“Mr. Moore: During the time you have ceased to cohabit with Mr. Case has there been any period when you did occupy the same room with him ?
“A. No, there was not.
“Q. After the room which you spoke of — your room— was fitted up by yourself, that was occupied to the exclusion of Mr. Case ?
“A. Yes, sir.
“Q. During that period covering something like two years do you know of any time when he was ever in your room, either day or night ?
“A. No, sir. I recall the occasion when the threshers were there. They were fed at the neighbors.
“The Court: How long ago was it that a divorce was talked by you parties ?
“A. Why two years, is it not ? He suggested getting a divorce. We have agreed on a settlement of our property matters. I do not see any other course to take! I knew he was coming to see his attorney and talking with him about a divorce.
“Q. It is because of that talk, is it not, that you filed no answer or appeared in this case ?
“A. Well, I don’t think I have any grounds. I did not care to make any defense to it.
“Mr. Lynch: And did I not state to you at the time you employed me that you had no grounds for divorce against Mr. Case, when we talked over the case.
“A. Yes, sir. And then we talked over an adjustment of the alimony matter.”

There can be no doubt that the evidence in this case fully sustains the charge that the defendant has utterly refused to cohabit with the complainant for upwards of two years, that she has so refused persistently and continually. She gives no reason for this except that she came to utterly dislike the man, and that she could not endure him. It is true she states that some two or three years ago the complainant consulted a lawyer with reference to a divorce. This seems to have come to her knowledge, and she made it the occasion for refusing to cohabit with him. I do not think that it can be said that he had not the right to consult with a lawyer, if he claimed his wife was not performing her marital duty. Nor do I believe that that can be urged as a ground of justification for her subsequent conduct. It is true this man’s second wife had obtained a divorce from him. This the defendant does not complain of. She does not claim that she was deceived in the matter in any way, but states frankly that while the complainant had not told her of this divorce, yet he supposed his sister had told her, and she made no complaint of it. There was no claim of collusion in the court below, nor is there any in this court. Neither is there any evidence to warrant such a claim. The fact that the wife gives a cause for divorce by refusing to cohabit with her husband is no evidence of collusion. The question of the refusal to cohabit as a ground for divorce is not a new proposition in this State. This court has, in numerous cases, sustained the doctrine upon the ground of-extreme cruelty. Menzer v. Menzer, 83 Mich. 319 (47 N. W. 219, 21 Am. St. Rep. 605); Whitaker v. Whitaker, 111 Mich. 202 (69 N. W. 1151); Campbell v. Campbell, 149 Mich. 147 (112 N. W. 481, 119 Am. St. Rep. 660); Donaldson v. Donaldson, 134 Mich. 291 (96 N. W. 448).

It is not necessary to discuss the question as to whether such conduct would amount to wilful desertion. It seems to me that where there has been a complete refusal on the part of the defendant to cohabit with the complainant for a period of nearly three years — a continuous and positive refusal — the only basis of the refusal being that she did not like the complainant, this conduct constitutes extreme cruelty within the meaning of our statute, and warrants a divorce from the defendant in such a case.

It will be observed from her testimony that the wife makes no charge of drunkenness or consorting with lewd women on the part of the complainant. She distinctly testifies that during her married life he had not drank at all. So far as this record shows, the complainant had fully reformed from the drink habit.

It is true that the circuit judge saw and heard the witnesses and the parties, but it seems to me that he is not warranted in some of the conclusions which he drew in the case, and that these conclusions are not supported by the testimony. The mere fact that this man’s second wife had obtained a divorce from him should not be any reason why he might not have a standing in a court of equity in such a case as this, especially where there is no claim that he has been guilty of the same offense towards the present- spouse.

In view of the opinion of Justice Hooker, it has seemed to me necessary to set forth, somewhat fully the claim of the complainant in his bill of complaint, and the somewhat extended testimony of the defendant. In my judgment the decree below should be reversed, and one entered in this court granting a divorce to the complainant.

Montgomery, C. J., and Ostrander, Moore, McAlvay, Brooke, and Blair, JJ., concurred with Stone, J.


text:
    BLISS v. TYLER.
    1. Creditor’s Suit — Bill in Aid oe Execution — Attachment — Judgments.
    Neither a creditor’s bill nor a bill in aid of execution is sustainable upon a judgment in attachment against a nonresident, wherein the jurisdiction of the court depended on the debt- or’s ownership of the land attached and where the bill of complaint avers that legal title thereto was taken in the name of a third person, for the convenience of the debtor.
    2. Same — General Relief.
    A bill of complaint in which it is claimed that certain property of a nonresident debtor has been impounded by the creditor in attachment proceedings, cannot be sustained as a bill for impounding equitable assets based on the ground of continued absence from the State.
    Appeal from Saginaw; Kendrick, J.
    Submitted October 21, 1909.
    (Docket No. 133.)
    Reargued January 5, 1910.
    Decided February 3, 1910.
    Bill by Allaseba M.'Bliss and Lorenzo T. Durand, executors of the last will and testament of Aaron T. Bliss, deceased, against Carrie B. Tyler and Fred B. Tyler to set aside a deed, and for authority to sell said property under a fieri facias. From a decree overruling a demurrer to the bill, defendant Carrie B. Tyler appeals.
    Reversed, and remanded.

      John A. McKay (William J. Gray and Lorenzo T. Durand, of counsel), for complainants.

      Jonathan Palmer, Jr. (ETbridge F. Bacon and George W. Weadock, of counsel), for appellant.
   Ostrander, J.

The bill in this case was filed by Aaron T. Bliss in his lifetime, and the suit was continued in the names of his executors. The'bill alleges that complainant obtained, July 3, 1906, a judgment in an attachment suit against the defendant Fred B. Tyler, in the circuit court for the county of Saginaw, for $16,685.91; thatsaid Fred B. Tyler, formerly a resident of Saginaw, has resided continuously for 10 years in the city of Paris, France, and has not meantime returned to the State of Michigan; that previousto the rendition of said judgment, Fred B. Tyler was the owner in fee simple of the real estate described in the bill; that title to said real estate was, for convenience, taken in the name of Silas W. Tyler, and that said Fred_ B. Tyler was the equitable, legal, and beneficial owner of said real estate; that said judgment remains in full force and effect; that complainant caused a writ of fieri facias to be issued and delivered to the sheriff, with instruction to levy upon the real estate and personal property attached in said judgment proceeding; that on July 3, 1906, the sheriff levied upon said real estate; that on February 4, 1904, the defendant Fred B. Tyler caused his agent and trustee, Silas W. Tyler, to make a conveyance in fee of said, real estate to his wife, the defendant Carrie B. Tyler, also of France, for a pretended consideration of $1 and other valuable considerations; that said conveyance was a mere sham, made with intent to defraud complainant and other creditors of Fred B. Tyler; that Fred B. Tyler paid the consideration for the deed to Silas, and that neither Silas nor Carrie B. Tyler paid anything for said conveyance; that said Carrie B. Tyler holds the land in trust for said Fred B. Tyler for his use and benefit, and for the purpose of preventing a levy and sale of the same under and by virtue of said execution; that said Fred B. Tyler has no personal or real estate in said State of Michigan, except the land and personal property described in said writ of attachment, upon which the sheriff could make a levy. Complainant prays for an answer under oath by the defendants, and that they answer several interrogatories specified therein; that the complainant be authorized to proceed on the said writ of fieri facias, and that the sheriff be directed to advertise and sell the said premises for payment and satisfaction of said judgment, and that said deed to said defendant Carrie B. Tyler be declared null and void. The defendant Fred B. Tyler did not appear, and an order pro confesso has been entered as to him. Defendant Carrie appeared and demurred to the bill, and the demurrer was overruled September 21, 1908. Her default for not answering was regularly entered November 11, 1908. Subsequently she attempted to appeal from the decree on demurrer to this court, and her appeal was dismissed because not taken in time (156 Mich. 640 [121 N. W. 292]). She then applied to the circuit court to extend the time for taking an appeal. An order was granted to that effect, and the case is now. before us on her appeal.

She alleges eight grounds of demurrer, which may be considered under three heads:

(1) That the court had no jurisdiction to render the judgment at law.
(2) That the bill cannot be maintained as a creditor’s bill because no execution was returned unsatisfied in whole or in part.
(3) That the bill cannot be maintained as one in aid of execution because the title of Fred B. Tyler to the land was equitable and not legal.

It appears that the judgment of complainants in the attachment proceedings is based, not upon any persona] service of process, but upon the levy of the writ upon real estate. The judgment is not conclusive against the defendant Fred B. Tyler, and the execution issued to collect the same can be levied only upon the property attached. 3 Comp. Laws, § 10577. This was the practice pursued. Complainants do not occupy the position of judgment creditors who can find no property of the judgment debtor to satisfy their demand, and they have therefore no right, as judgment creditors, to a general discovery of concealed assets and equitable interests in property belonging to the debtor. The bill cannot be sustained asa judgment creditor’s bill.

Nor can it be sustained as a bill in aid of execution. The execution does not run against the property of the debtor generally. The record title to the land levied upon was never in the debtor. The interrogatories, already referred to, require defendants to state whether Fred B. Tyler did furnish the money to Silas W. Tyler to purchase the premises; whether he instructed Silas W. Tyler to convey to defendant Carrie B. Tyler; whether Carrie paid anything for said conveyance. Complainants put in issue the essential fact upon which the judgment rests, namely, the ownership by defendant Fred B. Tyler of the premises attached. In other words, a judgment which can affect nothing but the land which has been attached, which is obtained by asserting that a particular person owns the land, is made the basis of. a proceeding in equity to determine whether that person did own the land. It is a proceeding to determine whether the title to land rested where it had to rest in order to entitle complainants to the judgment. I do not understand how complainants can stand upon the judgment, and yet tender an issue upon the very fact upon which the judgment rests; nor how they are aided by the fact that the facts which are well pleaded are admitted by the demurrer.

As the case is presented upon general demurrer to the bill, and the demurrer was overruled at the circuit, we have examined the allegations of the bill for the purpose of determining whether a case for equitable interference is made out. We have concluded that in its present form, although the appointment of a receiver is asked for, it cannot be sustained as a bill for, the impounding of equitable assets of a debtor against whom, because of his continued absence from the State and residence abroad, no legal proceedings can be instituted. See Earle v. Kent Circuit Judge, 92 Mich. 285 (52 N. W. 615). A sufficient reason for this conclusion is that complainants allege that they have impounded the particular property, the title to which is in dispute, in legal proceedings, which have resulted in a judgment binding the property. The sixth ground of demurrer is good, and the demurrer should have been sustained.

The decree below is reversed, anda decree will be entered in this court sustaining the demurrer, remanding the record, and giving complainants 40 days in which to amend, if they desire to do so. Appellant, Carrie B. Tyler, will recover costs of both courts.

Montgomery, C. J., and Hooker, Moore, McAlyay, Brooke, Blair, and Stone, JJ., concurred.


author: Blair, J.

text:
    BLISS v. SAGINAW CIRCUIT JUDGE.
    Appeal and Error — Extension of Time for Appeal — Chancery 'Practice — Effect of Dismissal from Supreme Court on a Subsequent Extension — Mandamus.
    After the dismissal of an appeal to the Supreme Court, because the claim of appeal was not filed in time, it is discretionary with the circuit court to extend the time for filing the claim of appeal on terms, and mandamus will not issue to vacate such an extension for cause shown.

    Mandamus by Allaseba M. Bliss and Lorenzo T. Du-rand, executors of the last will and testament of Aaron T. Bliss, deceased, to compel William R. Kendrick, circuit judge of Saginaw county, to vacate an order extending the time for taking an appeal.
    Submitted October 5, 1909.
    (Calendar No. 23,528.)
    Writ denied February 3, 1910.

      John A. McKay ( William J. Gray and Lorenzo T. Durand, of counsel), for relators.

      Jonathan Palmer, Jr. ) George W. Weadoclc and Elbridge E. Bacon, of counsel), for respondent.

       Act No. 340, Pub. Acts 1907.

   Blair, J.

This court having dismissed an appeal from an order overruling a demurrer (Bliss v. Tyler, 156 Mich. 640 [121 N. W. 292]), on the ground that the appeal was not timely, respondent entered an order extending the time for taking an appeal, which has been taken, and is now pending in this court and on the docket for hearing at the present term. The relators applied to this court for a peremptory writ of mandamus requiring respondent to vacate his order extending the time for appeal. An order to show cause issued, to which respondent has filed his return. At the time of making the order, the court gave the following opinion:

"The Court: This is a matter that appeals tome as one wherein a misunderstanding of the law upon instructions from his client has honestly miscarried. Mr. Palmer, as the, agent and attorney in one sense of Carrie B. Tyler, was instructed to do all things that would protect her rights and interests in this matter, as an attorney, and use his ability as an attorney, but he fell short of the mark, and he did not in my judgment do those things, and what has been demonstrated by the court, he failed to perform his duty as a lawyer and file his notice of appeal in proper form. It is certainly the policy of all courts of justice, and especially of courts of chancery, to permit a hearing in a case if it can be reasonably done, to the end that they may have the matter considered upon the merits. I confess it is in many ways a close case. It appeals to me as along the line of a very close condition of facts, as presented. But I believe it is my duty at this time to grant the motion of extending the time, on condition — and I think they should answer for their failure to understand the law better, and act promptly, but as it appeals to me, there should be an extension of time for 30 days, and that the proponent of the motion should pay a solicitor’s fee of $15. Upon the payment of that, that they be permitted to make an appeal.”

The showing in support of the motion for leave to appeal fully supports the decision of the circuit judge. Merriman v. Jackson Circuit Judge, 96 Mich. 603 (55 N. W. 1021); Witham v. Clinton Circuit Judge, 150 Mich. 568 (114 N. W. 337); De Lisle v. Wayne Circuit Judge, 158 Mich. 16 (122 N. W. 362).

The writ is denied, with costs.

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


author: Montgomery, C. J.

text:
    SISSON v. LAMPERT.
    1. Constitutional Law — Civil-Damage Aot — Statutes — Title.
    The act for the regulation of the manufacture and sale' of intoxicating liquors is not in violation of the Constitution of 1850, art. 4, § 20, providing that no law shall embrace more than one object which shall be expressed in its title, in that it provides a civil remedy for the violation of the statute. 2 Comp. Laws, §§ 5379-5446.
    2. Intoxicating Liquors — Civil-Damage Action — Evidence.
    Testimony concerning the intoxicated condition of the deceased on the day he was killed is admissible in an action against a saloonkeeper for damages sustained by his wife on account of his death.
    3. Same — Evidence — Hypothetical Questions — Saving Questions por Review.
    An objection that a hypothetical question is too long does not make the point that it contains facts which are not supported by the evidence.
    4. Same — Habits oe Deceased — Sureties’ Liability.
    Testimony concerning the habits of the deceased in the use of intoxicating liquors during the period prior to the execution of the defendant’s bond, is admissible for the purpose of showing the illegal nature of the sales and the right to exemplary damages.
    5. Same — Evidence—Cross-Examination.
    The exclusion of testimony, on cross-examination of the plaintiff, offered to show a conspiracy by proving an agreement to divide the proceeds with one witness, is not prejudicial error where the question had been previously asked and answered and the purpose was not indicated to the trial court.
    Error to Kent; Perkins, J.
    Submitted November 8, 1909.
    (Docket No. 177.)
    Decided February 3, 1910.
    Case by Adella M. Sisson against Theodore Lampert, principal, and Andrew Hill and Richard Havinga, sureties, and Robert W. Swayze, principal, and Vard S. Raymond and Henry W. Booth, sureties, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      E. J. Doyle (Francis A. Stace, of counsel), for appellants.

      John J. McKenna, for appellee.
   Montgomery, C. J.

This action was brought against two saloon keepers, one maintaining a place of business at Ada, Kent county, and the other at Lowell, in the same county. The bondsmen of each are joined in the action. The action is to recover damages caused by the death of the plaintiff’s husband while intoxicated intoxication having been induced by liquors sold by the two different dealers, as found by the jury. The plaintiff recovered a verdict of $8,000, and the defendants bring error.

The first contention made is that the statute (Act No. 313, Public Acts 1887, being chapter 138, §§ 5379-5446, 2 Comp. Laws) is unconstitutional, and particularly that section 20 of the act, providing a civil remedy , is unconstitutional as not within the title. The title of the act is:

“An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors, and malt, brewed, or fermented liquors, and vinous liquors in this State,” etc.

It is claimed that this violates article 4, § 20, of the Constitution of 1850, which provides that no law shall embrace more than one object, which shall be expressed in its title. There are many cases in which this court has declared that the effect of this constitutional provision is to restrict legislation to one general object expressed in the title, and that it is no infringement of this section to embody any provision germane to and reasonably collateral to the general object expressed. Under a title of an act to regulate the sale of intoxicating liquors any provision which' relates to the regulation of such sale, and provides either a civil or criminal remedy, is clearly within the constitutional provision thus interpreted.

A case very much in point is that of Fortin v. Electric Co., 154 Mich. 316 (117 N. W. 741). The title to the act there under consideration was: “An act to regulate the operation of electric cars within the county of Bay.” The act contained a provision for a civil remedy and also a penal provision. It was said:

‘ ‘ The title to the act is sufficiently broad to cover the subject. It is obvious that an act to regulate the operation of electric cars would have, under that statement, for its purpose the protection of those who are called upon to make use of such cars, as well as others with whom such cars might come in collision.”

The case is rested in part upon the analogy of the statute here under consideration and the one there considered. It was said: -

“ In the case of Robison v. Miner, 68 Mich. 549 (37 N. W. 21), it was held that there was but one general purpose indicated by this title.”

It is claimed that error was committed in permitting various witnesses to testify as to the intoxicated condition of the deceased on the day when it is alleged that his death resulted from his condition. This testimony was entirely competent under the authorities. Cook v. Insurance Co., 84 Mich. 12 (47 N. W. 568); State v. Cather, 121 Iowa, 108 (96 N. W. 722); People v. Eastwood, 14 N. Y. 566; Edwards v. City of Worcester, 172 Mass. 105 (51 N. E. 447); and Dimick v. Downs, 82 Ill. 572.

It is next claimed that the court erred in submitting hypothetical questions to Dr. McCormick, for the reason, that it is now urged that the question embodied facts of which no testimony had been offered. We find, however,, upon examination of the record, that this distinct point was not made. It was objected that the question was too' lengthy, but the facts embodied in the question, of which it is now claimed no testimony was offered, were not pointed out so that the trial court would have the opportunity of examining the stenographer’s minutes and correcting it. We think the objection was not well taken.

Objection was also made to the testimony showing the habits of deceased as to the use of intoxicating liquors prior to the year when these defendants became bondsmen for the two dealers, and prior to the date in question. We think this testimony was competent as tending to show that Sisson was a man in the habit of getting intoxicated, and thus showing that the sales made to him on the day in question were illegal. The court expressly limited the testimony to this purpose, and for the purpose of bearing upon the question of exemplary damages. No error was committed in this ruling.

On cross-examination of the plaintiff the defendant asked as to whether a contract had not been made between her and one Wood with reference to the conduct of this suit. This testimony was offered for the purpose of showing barratry. The witness, however, had already testified that she had made her contract with her attorney, McKenna, and had distinctly answered the question as to whether Mr. Wood was to receive any percentage by saying: “I don’t know. I don’t think he is.” The question was then repeated:

“Well, you have stated the terms of the contract. I will ask you if Wood is not to get a percentage of the winnings.”

This was objected to. It is now argued in this court that one purpose of this testimony was to show a conspiracy ; the defendant citing and relying upon Mawich v. Elsey, 47 Mich. 10 (8 N. W. 587, 10 N. W. 57), and Cole v. Railway Co., 81 Mich. 156 (45 N. W. 983). It is manifest that no such purpose was indicated to the trial court. We think no error was committed to the prejudice of the defendant in the rulings of the trial court upon this subject.

The questions relating to the charge of the court are, we think, sufficiently answered by the very recent case of Merrinane v. Miller, 157 Mich. 279 (122 N. W. 82), where the subjects involved are fully discussed.

A motion for a new trial was made and denied. It is contended that the verdict was against the weight of the evidence. We have examined this record with care; and, so far from concurring in the view of defendants’ counsel, we must say that we think the plaintiff made an exceptionally strong case, and that the verdict of the jury was fully justified.

The judgment will be affirmed, with costs.

Ostbandeb, Hooker, Bbooke, and Blair, JJ., concurred.


author: Blair, J,

text:
    BAESSLER v. FOSTER.
    Intoxicating Liquors — Civil-Damage Act— Evidence of Sales —Questions of Law and Fact.
    No error was committed by the trial court, in an action for the death of plaintiff’s husband, under the law regulating the sale of intoxicating liquors, in submitting to the jury as a question of fact whether liquor was sold by the defendant to the deceased on the night he was killed, where the testimony showed that he was drinking in the defendant’s saloon at the time, and the witness and defendant might have seen the deceased from the position in which both were situated, although the facts were disputed.
    Error to Newaygo; Davis, J., presiding.
    Submitted November 10, 1909.
    (Docket No. 141.)
    Decided February 3, 1910.

      Case by Anna Baessler against Frank Foster, principal, and Albert Brandt and John H. Canavan, sureties, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      George E. & M. A. Nichols and Smedley, Hall & Freeland, for appellants.

      Oogger & Broomfield, for appellee.
   Blair, J,

This is an action to recover damages sustained by plaintiff through the death of her husband, alleged to have been caused, or contributed to, by intoxicating drinks sold to him by defendant Foster. Defendant Foster was the keeper of a saloon in White Cloud, Newaygo county, and the other defendants are his bondsmen. The defendant’s saloon was on the south side of Wilcox avenue. The building was about 18 feet wide. The first room from the street was the cigar room, separated from the barroom by- a partition with two screen doors. The bar was at the east side of the barroom. South of the barroom was a cardroom in which drinks were habitually sold. This cardroom was formed by a partition running across from near the south end of the bar. At the west end of the partition an open archway was cut, from six to eight feet wide and about eight feet high.

Two witnesses testified to sales of liquor to plaintiff’s intestate in the morning before his death. Defendant testified that the sales referred to occurred the morning before that stated by these witnesses. A witness testified that between 10 and 11 o’clock of the night in question he saw plaintiff’s husband and one Whiteman standing at the bar, each with one hand on the bar and the other on a glass which appeared to contain lager beer. Whiteman and Foster denied this. Whiteman testified that he bought two glasses of beer by himself and took them back into the cardroom, where he gave one of them to Baessler, and they sat there at a table and drank their beer; that he did not tell Foster for whom he was purchasing the extra .glass; and that he had been in the habit of buying two glasses of beer and taking them out through the cardroom and out the back way to his home near by. Foster testified: That Baessler came into the saloon between 9 and 10 and called for a drink; that he saw that he was a little intoxicated and refused him and sold him nothing afterwards.

“ Then he stepped over by the stove, and talked with some one there, Whiteman or Morris Slade. I paid no attention to what became of him after that. I did not know that he and Whiteman were sitting in the back at the table. * * * One standing behind the bar could not tell who was in the cardroom. I couldn’t see into that room at all, only a small corner of it where the stove was. I think the partition extended about five feet west of the bar between these rooms, so one would have to come from behind the bar out to the end of the partition before they could see into the cardroom. I remember of Whiteman coming into the barroom, and said he wanted two glasses of beer, and I drew them for him. I did not know what he was going to do with them. Before that he had got beer for his wife and taken it out of the back door. He lived back of my building. It was a frequent occurrence for him to come into the back door and get a' pail of beer and take it home through that way, and he had also taken glasses of beer through that way. After I had refused Baessler the beer, I did not notice him again until I started to lock up. He was then sitting in the cardroom with Mr. Whiteman.”

Plaintiff had judgment, and defendant brings the record to this court for review upon two propositions:

First. The court erred in practically withdrawing from the jury by the phraseology of his charge the question of fact whether Foster sold any liquor to Baessler in the morning. We think this contention rests upon a palpable misinterpretation of the charge.

Second. The court improperly submitted the question of alleged sales on the night of said day. The only branch of defendant’s argument in support of this proposition which requires consideration is the contention that the court erred in submitting to the jury as a question of fact whether defendant could see Whiteman and Baessler in the cardroom. There was an abundance of evidence, if the jury gave credit to the witnesses furnishing it, to justify an inference that defendant Foster knew that Whiteman and Baessler were in the cardroom, and we think the question whether a person behind the bar at the north end could see Whiteman at the card table was also an open question for the jury. Defendant’s witness Fried-burg testified: That he and the witness Cannon were in the saloon talking with Foster for 20 minutes or half an hour between 9 and 10—

“We were at the north end of the bar. I saw Baessler sitting by a table in the cardroom. The barroom was separated from the cardroom by a partition with an archway cut through it. The archway is on the west side of the building. A stove was near the archway. I looked by the stove and into the cardroom, and saw Mr. Baessler and Mr. Whiteman sitting in there at a table. I think they could be seen from the north end of the bar. I don’t know what they were doing. I saw two glasses standing on the table. * * * The barroom runs north and s'outh through the building. The bar was on the east side of the saloon. Cannon and I were standing pretty well up towards the north end of the bar. From where we were we could see the table and any one sitting down there. I don’t remember of Baessler or Whiteman getting up from the table while we were in there. The archway went clear to the ceiling. I should think the arch was about eight feet wide east and west.”

The witness Cannon testified: . That he was at the saloon—

“Between 9 o’clock or a little after. I saw Baessler in there. He was sitting at a table in the back room with Whiteman. There was no one else in the room with them. I was in the saloon for probably half an hour. I don’t think that he came out of the backroom while I was there. They were sitting at the table all the time. I don’t know what they were doing. Baessler’s back was to me. I couldn’t tell whether they were drinking or not. Baessler did not come into the barroom while I was there. They were sitting in this back room when I first saw them, and remained there at the table until I left. * * * Ed. Friedburg and I went in together. I had met him on the street. * * * Foster was behind the bar. There was no one else behind the bar. I did not go into the back room at all. There is a big arch cut through between the barroom and the cardroom, and they (Baessler and White-man) sat just through the archway. This arch is about six or eight feet wide, and cut round, as I remember. It does not go up to the ceiling. I should think it was eight or nine feet high, making a space through the archway of six, or eight feet wide and eight to nine feet high. That is open, so you can see into the rear room. I could see them from the front of the bar. I am sure it was Baessler and Whiteman in there. I didn’t look in there very much, because I didn’t pay any attention. If it hadn’t been that the man was killed, I would not have remembered it. I did not see Whiteman or Baessler come out of the back room while I was there. Whiteman was facing east and Baessler to the south. I could not see Baessler’s face. His back was to me. I know Mr. Whiteman had a glass in front of him. I couldn’t see what Baessler had.”

If, as this testimony indicates, Baessler and Whiteman “sat just through the archway” and witnesses at the north end of the bar but on the front or west side could see Whiteman at the west side of the card table “facing east ” and Baessler at the north side of the. card table facing “to the south,” we think the inference that Foster behind the bar at the north end could at least see White-man is a reasonable one. It is apparent that, if the partition at the south of the bar extended out five feet to the west and the table at which Whiteman and Baessler sat was entirely behind the partition, Cannon and Friedburg could not have seen them at all.

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

Montgomery, C. J., and Ostrander, Hooker, and Brooke, JJ., concurred.