author: Fellows, J.

text:
    HARRISON v. GRIER.
    1. Bills and Notes — Action—Defenses—Bona Fides.
    Unless the subsequent purchaser of a note establishes that he Is a dona fide holder thereof, the note Is open to the defenses available as between the original parties.
    2. Same — Evidence—Question fob Jury.
    Evidence held, to present a jury question as to whether plaintiff was a dona fide holder of the note sued on.
    3. Evidence — Credibility of Witnesses — Question for Jury.
    The credibility of testimony and the force to be given to it are questions for the jury.
    4. Trial — Instructions.
    In determining whether there is error in a court’s charge, the charge must be considered as a whole.
    5. Appeal and Error — Questions Not Raised on Trial.
    The question of what law governs the contract involved may not be raised for the first time on appeal.
    Error to Wayne ; Murphy, J.
    Submitted October 4, 1917.
    (Docket No. 9.)
    Decided December 27, 1917.
    Assumpsit in justice’s court by Charles W. Harrison against John A. Grier on a promissory note. There was judgment for plaintiff, and defendant appealed to the circuit court. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      James G. McHenry, for appellant.

      Earl Lovejoy, for appellee.
   Fellows, J.

The Lyon-Taylor Company was a co-partnership located at Iowa City, Iowa. Its traveling salesman called on defendant, a druggist, and a contract or order was signed, similar in its essentials to the contract involved in the case of Boston Piano & Music Co. v. Seckinger, ante, 312 (164 N. W. 263). Attached to the contract so that it could be detached was a note for the purchase price.

Charles W. Harrison, the plaintiff, claims to be an accountant. He lives at Iowa City, Iowa. He claims to have loaned to the Lyon-Taylor Company $1,000 upon a note not produced in evidence, and to have taken defendant’s note as a part of the collateral security for this loan. He claims to be a holder in due course.

Defendant makes the same defense to the contract as was considered in the Seckinger Case, and insists that plaintiff is not a bona fide holder of the note. The trial court held that the contract was void and unenforceable between the original parties, and submitted to the jury the question of whether plaintiff was a bona fide holder of the note. There was verdict and judgment for defendant, and plaintiff brings the case here.

The court was correct in holding that the contract was unenforceable between the original parties. The question is ruled by the Seckinger Case. We there held a similar contract was void; that, while not a lottery, strictly speaking, it had all the vices, all the appeals to cupidity, all the seductiveness of a lottery, was contrary to public policy, and unenforceable between the original parties. Unless plaintiff established that he was a bona fide holder of the note, it was open to the defenses between the original parties. John Schweyer & Co. v. Mellon, 196 Mich. 590 (162 N. W. 1006).

Plaintiff insists that he has so conclusively established his bona fides as that the court should have taken this question from the jury and directed a verdict in his favor. We cannot agree with this contention. A reading of the 28 pages of plaintiff’s cross-examination clearly demonstrates that there was ample testimony falling from his own lips to justify the jury in finding not only that he took this note in bad faith, but that his taking of this and other notes from the Lyon-Taylor Company was a part of the scheme of that company, and a method adopted by the company to enforce collection of notes given on these unenforceable contracts.

We do not pass on the credibility of this testimony or what force should be given it. These were questions for the jury. Nor can we, without being unnecessarily prolix, undertake to detail it. Suffice to say .that, among other things, he admitted, on cross-examination, that for several years before he took this note he did the auditing work of the Lyon-Taylor Company and its allied companies, that for several years he had been taking customers’ paper of that company, and that he had lawsuits, not infrequent, growing out of such paper in which defenses were made. We think it was for the jury to determine whether he did not learn what the business of the company was when he audited it, or become conversant with its modus operands from the several lawsuits he had growing out of its customers’ paper. When somewhat hard pressed, he admitted that the money loaned the company was not his money, but belonged to other parties, but declined to state who they were, and refused to produce the note given at the time of the claimed loan, claiming that it was privileged. It is. not pointed out wherein the transaction partook of that sanctity which surrounds the confessional, or communications between physician and patient, or attorney and client, so as to be shielded by the cloak of privilege which encompasses them. Without going further into detail, let it be said that the court did not err in submitting this question to the jury upon all the facts found in this record.

Error is assigned upon excerpts from the charge. Excerpts from a charge must be considered in connection with what precedes and what follows them. The charge must be taken as a whole. When so taken and so considered, we think the rights of the plaintiff were fully protected in the instant case. The jury was told that suspicion that something may be wrong was not sufficient to defeat recovery; that facts upon which knowledge or notice were claimed must be brought home to plaintiff; that defendant was entitled to a verdict if plaintiff was a holder in bad faith, and plaintiff was entitled to recover if a holder in good faith. These thoughts were elaborated upon in a charge which could not have left the jury in doubt as to the legal rights of the parties. Such requests as plaintiff was entitled to, have given were either given as requested or covered by the general charge.

Plaintiff further claims that the contract is an Iowa contract, and must be governed by the laws of that State. We are unable to find that this question was raised in the court below, and therefore find it unnecessary to discuss it.

No error to the prejudice of the plaintiff, appearing in this record, the judgment is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    FLAX v. MUTUAL BUILDING & LOAN ASSOCIATION OF BAY COUNTY.
    1. Mortgages — Foreclosure by Advertisement — Conflicting Equities — Equity.
    A statutory foreclosure is not adapted to cases where there are conflicting equities; such equities can be properly considered and protected only in a court of equity.
    2. Same.
    Whether there are conflicting equities in the matter of the foreclosure of a building and loan association mortgage by advertisement involves the entire question.
    3. Building and Loan Associations — Mortgages—Foreclosure— Statutes.
    Section 10007, 2 Comp. Laws 1915, does not forbid the foreclosure of a building and loan association mortgage by advertisement, and such right of foreclosure is expressly granted by the general statute, 3 Comp. Laws 1915, § 14949, relating to foreclosures by advertisement, where there is a power of sale.
    4. Same — Mortgages—Foreclosure—Accounting.
    On the foreclosure of a building and loan association mortgage there is no more necessity for an accounting than in any other case where money is borrowed and partial payments made from time to time.
    5. Same.
    It is a question of fact whether, on foreclosure of a building and loan association mortgage by advertisement, contiguous pieces of land should have been sold as one parcel.
    6. Same.
    Under the evidence and the statutes, held, that the separate sale-of contiguous pieces of land, under foreclosure of a building and loan association mortgage by advertisement, was proper.
    7. Same.
    The notice of foreclosure sale by advertisement under a building and loan association mortgage and the sheriff’s deed covered both the land and its appurtenances and were sufficient to include an easement appurtenant to the land without a specific sale and description thereof.

      8. Mortgages.
    The fairness and good faith of a foreclosure sale under one mortgagor by advertisement is not impeached because no information was given of prior mortgages at the sale, where the mortgages were all of record.
    9. Same — Foreclosure by Advertisement — Notice.
    A notice of foreclosure sale by advertisement need not allege the existence of prior mortgages.
    10. Same.
    Where a bill attacking a foreclosure sale by advertisement under a building and loan association mortgage does not ground the claim, that the amount stated in the notice of sale was excessive, on improper methods of computation, the trial judge may, within his discretion, permit submission of sworn computations by counsel on argument.
    11. Same — Foreclosure—Maxims—Applicability.
    The maxim “de minimis non curat lex,” held, applicable to a claim that the amount stated in the notice of foreclosure sale under a building and loan association mortgage was excessive.
    12. Same — Foreclosure—Excessive Claims — Bona Fides.
    Excessiveness in the amount claimed in the notice of foreclosure sale by advertisement will not necessarily invalidate the sale, provided the claim is made in good faith.
    13. Same — Foreclosure—Redemption—Extension of Time.
    Where the period of redemption has not expired at the time of the filing of a bill to set aside a mortgage foreclosure sale by advertisement, and it is extended by stipulation until 30 days after the decree in the trial court, the right to redeem will expire at the end of the 30-day period if the mortgage sale is not set aside as void.
    14. Usury — Intent.
    To constitute the charge of usury, there must be an intent to do something which is in violation of the statute.
    15. Same — Building and Loan Associations — Mortgages—Taxation — Exemption.
    A building and loan association mortgage which bears interest at the highest permissible rate is not usurious because of a provision that the borrower shall pay any tax.assessed upon, it, such provision being mere surplus-age, in view of 2 Comp. Laws 1915, § 10011, exempting sucb mortgage from taxation..
    16. Same.
    Mortgages held by. building and loan associations are exempt from taxation under 2 Comp. Laws 1915, § 10011.
    Appeal from Bay; Coumans, J.
    Submitted June 11, 1917.
    (Docket No. 34.)
    Decided December 27, 1917.
    Bill by Charlotte Flax against the Mutual Building & Loan Association of Bay County to set aside the foreclosure of a mortgage, and for an accounting. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      Frank S. Pratt (Cooley, Hewitt & Wixson, of counsel), for plaintiff.

      T. E. Webster (F. W. DeFoe, of counsel), for defendant.
   Stone, J.

This case is in this court upon the appeal of the plaintiff from a decree dismissing her bill of complaint. By her bill filed September 9, 1914, she avers:

That on April 30, 1900, she was the owner of several parcels of land in Bay City, described as follows: Parcel No. 1, lot No. 1, of block 4, Jennison’s Second addition; parcel No. 2, lot No. 3, of block No. 165, late Portsmouth; parcel No. 3, being a part of lots 3 and 4, block 50, plat of Lower Saginaw, as represented .upon the accompanying plan attached to plaintiff’s brief, which, while not in evidence, fairly shows the parcels composing what is called the laundry property; together with the perpetual use and right of way, in common with the other occupants of said lots 3 and 4, in and to the private way extending along the west end of said land and on the southerly 12 feet of lot 4; parcel No. 5, lot No. 9, of block No. 14, Fraser’s First addition; parcel No. 6, lots 6 and 7, of block 47, Daglish division of Portsmouth.

That in April, 1909, plaintiff purchased parcel No. 4 as represented on said plan, together with the perpetual use and right of way as above stated. The several descriptions of land will hereafter be referred to by the parcel numbers, as above stated.

That said parcel No. 3 had upon it a one-story and basement brick building erected by plaintiff, and which for a long time previous to plaintiff’s purchase of parcel No. 4 had been used and occupied by her as a laundry, and it became expedient to acquire said parcel No. 4 for use in said business, in connection with parcel No. 3, and that after said purchase, the two parcels were'occupied and used as one parcel by plaintiff in said business.

That commencing in April, 1900, plaintiff from time to time negotiated certain loans from defendant, and secured the same by mortgage on said land as follows:

No. 1, mortgage, dated April 30, 1900, on parbels
No. 2, mortgage dated June 15, 1900, on parcel 3... 2,500
No. 3, mortgage dated March 11, 1903, on parcels 2, 3, 5, and 6 for.............................. 200
No. 4, mortgage dated March 4, 1904, on parcels 1, 3, 5, and 6 for................................. 300
No. 5, mortgage dated September 28, 1904, on parcels 1, 3, 5, and 6 for.......................... 300
No. 6, mortgage dated March 9, 1905, on parcels 1, 3, 5, and 6 for............................... 200
No. 7, mortgage dated October 7, 1905, on parcels 1, 3, 5, and 6.................................. 200
No. 8, mortgage dated February 14, 1906, on parcels 1, 3, 5, and 6 for............................... 300
No. 9, mortgage dated June 29, 1907, on parcels 1, 3, and 5 for................................... 1,500
No. 10, mortgage dated April 22, 1909, on parcels 1, 2, 3, and 4 for................................. 825

The following is a rough plan showing the lay of the two parcels comprising the laundry property. It is not drawn to scale, but is relatively in proportion.

WATER STRE.ET

All of said mortgages except No. 1, in addition to the land, covered by apt description all of the fixtures and fixed and movable machinery, tools, and appliances in the building on parcel No. 3 used in plaintiff’s laundry business.

That with each of said several mortgages plaintiff subscribed for a certain number of shares of capital stock of said defendant, executed to said defendant the usual obligation or bond, and she received from it a passbook in the usual form for the entry of payments on each of the several stock subscriptions and mortgages.

The bill avers that about January 1, 1908, upon inquiry, she was informed by defendant that the balances then owing upon all of said loans theretofore made amounted to $4,085.38, and that about April 17, 1911, she was furnished by defendant with a statement that the total amounts then owing by her upon the four mortgages then remaining unpaid amounted to $2,905.37 on January 1, 1911. The plaintiff states that she made the usual weekly payments in the way provided for the repayment of loans by defendant, until the latter part of 1913, at which time she stopped making payments, because she became convinced that many payments which she had made had not been properly credited to her, and because she was informed at that time by defendant that her total indebtedness upon said mortgages was about $3,000, that in the meantime she was informed by the defendant that the said mortgages Nos. 3, 4, 5, 6, 7, and 8 had been paid in full, and that she surrendered to defendant the passbooks issued to her upon said loans, and that the same were then in defendant’s possession.

Plaintiff further stated that since the making of mortgage No. 1 she had sold'all of the real estate owned by her and above described, excepting parcels Nos. 1, 3, and 4, and that all of the proceeds of such sales, with the exception of some small amounts, were paid over to defendant to apply on her said mortgage indebtedness, and that particularly, about April 1, 1907, she sold her laundry business, including machinery, for $4,000 to John A. Bedworth ■and Robert McQuater, and received a cash payment of $2,000, all of which was paid by said purchasers to the defendant to apply upon her indebtedness to it, and that afterwards, and on or about June 1, 1908, having previously repurchased the said laundry business, together with the tools and machinery, from said Bedworth and McQuater, she again sold the same to George C. Horrell and Jabez R. Pittsley for $3,000, the entire proceeds, of which sale were paid to said defendant, at different stated times, to apply on her said indebtedness.

It is averred that during all of the time of plaintiff’s said dealings with defendant, Thomas E. Webster had been the attorney and secretary thereof, and that in all of plaintiff’s transactions with defendant, and in the sale of her several parcels of real estate, and in the sales of her laundry business said Webster had also acted as her attorney, and that most of her papers and vouchers bearing upon said several transactions were left by her with said Webster, and were then in his possession and control, and that she was unable to procure the same after repeated applications, and that on or about February 1, 1914, she again applied to said defendant through said secretary for information as to the state of her accounts with it, and was informed by said Webster that her total indebtedness to defendant aggregated about $3,000, and when she asked for a statement showing the amounts paid by her on said several loans, she was informed by said Webster that it would require too much time and work on the part of defendant to furnish her with such statement, and none had ever been furnished.

Plaintiff charged in her bill that many large payments had been made upon her said indebtedness to defendant, which had not been credited to her, and that, instead of owing $3,000, she did not owe to exceed the sum of $500, or thereabouts, that in February, 1914, the defendant claimed that of the above-described mortgages Nos. 1, 2, 9, and 10 were still in force, and that the other six had been paid, and that on February 11, 1914, defendant commenced a foreclosure of said mortgage No. 10, by advertisement, that the first publication was February 12, 1914, in the Bay City Democrat (a copy of which notice was attached to the bill), and that it was claimed in said notice that there was then due and owing upon said mortgage $1,588.65 principal, premium, and interest, and insurance and taxes paid by defendant; and it is averred that plaintiff was not indebted upon said ■ mortgage to exceed $500, and that, pursuant to said notice the defendant, on May 9, 1914, through the sheriff of said county, sold the said .parcels Nos. 1, 3, and 4, the same being bid in by defendant as follows:. Parcel 4 for $300, parcel 3 for $700, parcel 1 for $700.84 — a total of $1,700.84, which was the amount claimed to be due and owing upon said mortgage; including all expenses chargeable against said premises. A deed was made by the deputy sheriff who conducted the sale, which deed was deposited with the register of deeds on May 14, 1914 (a copy of which was attached to the bill). In such deed no mention was made of said right of way, nor was the same mentioned at the sale. It was averred that, although it was claimed by defendant that said mortgages Nos. 1, 2, and 9 were still in force, and in part at least unpaid, and the said parcels of land so sold were, in fact, sold subject to any sums that might be owing and unpaid upon said prior mortgages, no statement or announcement was made at the time of such sale by defendant of the amounts claimed to be owing upon said prior mortgages. It was further averred that said lands so sold were worth much more than the sums at which the same were bid off at such sale, and that said parcel No. 1 was worth at least $2,500, and Nos. 3 and 4, together with the rights of way belonging thereto, were worth at least $3,000, that said defendant then claimed that said foreclosure proceedings were regular and legal, and that upon the expiration of the time allowed for redemption, under the statute, all of plaintiff’s right, title, and interest therein would be absolutely foreclosed and cut off.

The bill further charges that said foreclosure proceedings were irregular, illegal, and void, for the following reasons:

(a.) That said parcels 3 and 4, being contiguous, and occupied and used as one parcel, should have been sold as one parcel.

(6) That the rights of way described in said mortgage and notice of sale should have been offered for sale, and sold as a part of such single parcel composed of the two parcels Nos. 3 and 4.

(c) That the purchase of said mortgaged property by the mortgagee was not fair and in good, faith, but was unfair and unjust.

(d) That the amount claimed to be due in said foreclosure notice was grossly in excess of tie true amount of the indebtedness, even if there was anything then owing on said mortgage.

(e) That the prices at which the several parcels were sold to defendant were entirely inadequate, much less than the real value thereof, and were oppressive and unfair.

(/) That the said foreclosure notice did not disclose the fact of the prior incumbrances; nor did it state that the sale would be made subject thereto.

(g) That no statement or announcement was made at such sale disclosing the fact of the prior incumbrances, nor of the amount of same.

Plaintiff in her bill alleged that she was ready and willing and offered therein to pay defendant any and all sums which the court might determine to be equitably and justly owing by her to defendant, and that she had not made any tender for the reason that she had found it impossible to determine in what amount, if any, she was indebted. And she charged that she had paid all of said mortgage, and had overpaid. She prayed that specific answer be made as to certain items; that the defendant come to a true and just account touching the amounts owing to it upon the four mortgages Nos. 1, 2, 9, and 10; that all of the foreclosure proceedings be set aside and held for naught, including the sheriff’s deed; that she be granted a reasonable time in which to pay the amount, if any, which the court might find she was indebted to the defendant upon said mortgages; and that defendant be decreed to pay her any sum which might be found due plaintiff. And there was the prayer for general relief.

The defendant answered very fully and specifically, but claimed no affirmative relief; and upon the issue thus formed the case went to a hearing before Judge Collins on February 25, 1915. The hearing, however, was not closed, and in December, 1915, application was made to amend the bill of complaint. This was opposed, but on December 30, 1915, Judge Collins entered an order allowing the proposed amendments, being paragraphs 24a, 245, and 24c, and the prayer in paragraph Ilia. These amendments introduced into the case new questions.

By paragraph 24a plaintiff claimed that all of said mortgages contracted for the payment of interest at a rate in excess of the rate limited by law and that in consequence thereof, all of said contracts were usurious, and defendant was not entitled to recover any interest thereon, and plaintiff was entitled to have all payments made by her apply on the principal of said indebtedness.

By paragraph 246 it was averred that said mortgages and loans numbered 1 and 2, which were made on the 80th day of April and the 15th day of June, 1900,(respectively, provided for the payment of a premium at the rate of 5 cents per week upon each share of stock and each $100 of the loan, that said premium so contracted for was not determined or arrived at by competitive bidding amongst the persons applying for or desiring loans at such times, as required by law, and that said premiums on said loans of 5 cents per week per share were bid by the secretary of defendant,, and were uniformly required of all parties who procured loans at such times, and that plaintiff was told and informed by defendant that in order to procure said loans she would have to pay said premium of 5 cents per week per share, which was done, and that by reason thereof the contracts for the repayment of the first and second loans were both usurious, and that in consequence thereof defendant was not entitled to recover any interest on said loans, and plaintiff was entitled to have all payments made by her applied to the payment of the principal, and was entitled to recover from defendant all payments in excess of the principal sum of said loans upon an accounting.

By paragraph 24c it was stated that all of said loans were secured by mortgages upon the same properties or some of them, so far as the same were owned by plaintiff, at the time of the respective loans, excepting the last, the loan of $825 on April 22, 1909, which was also secured by parcel No. 4, which was bought from the proceeds of said loan at or about the time the loan was negotiated, and that after the first of said loans each successive loan was really .an increase of, and an addition to, the original loan of April 30, 1900; the mortgages and obligations made at the time of the procuring of the successive loans being made in order to stipulate and agree upon the increased amount.

Paragraph Ilia, of the amended prayer was to the effect that in stating • said account defendant be required to apply all payments upon said mortgages which were made and had theretofore been applied in payment of interest thereon to and upon the principal of said mortgages.

The defendant fully answered said amendments, denying the several averments. Further testimony was taken, and the case treated as submitted, except that briefs were to be filed. In the meantime Judge Collins died. On October 24, 1916, the case came on to be argued before Judge Coumans upon the testimony which had been taken before Judge Collins. Plaintiff’s counsel, at that time, against the objection of defendant’s counsel, was permitted to testify relative to certain computations claimed to have been made from the books and schedules produced by defendant.

It is the claim of the plaintiff that the mortgage was not properly forecloseable by advertisement. There is no doubt of the correctness of the claim that a statutory foreclosure is not adapted to cases where there are conflicting equities, and that these can be properly considered and protected only in a court of equity. But it does not follow that a building and loan association mortgage cannot be properly foreclosed by advertisement. Whether there are conflicting equities in a given case involves the entire question. We think there was nothing to distinguish this particular mortgage from any other given to such association. There is nothing in the statute which forbids such foreclosure. Section 10007, 2 Comp. Laws 1915.

Such right is expressly granted by the general statute relating to foreclosures by advertisement, where there is a power of sale. Section 14949, 3 Comp. Laws 1915; Gage v. Sanborn, 106 Mich. 269 (64 N. W. 32); Northern Michigan Building & Loan Ass’n v. Fors, 190 Mich. 69 (155 N. W. 736).

There is no more necessity for an accounting in case of such a loan than in any other case where money is borrowed and partial payments made from time to time. Many such sales have been made in the State, and many titles depend upon the validity of such foreclosures. There is no merit in the claim.

Should parcels 3 and 4 have been sold as one parcel? This involves a question of fact. It is undisputed that this property was not occupied and used as one parcel at the time of the sale, and had not been for a number of years. The property had not been used as a laundry for a number of years prior to the foreclosure, and the boiler and all laundry machinery had been removed, and the temporary building taken down. During most of this intervening time parcel 4 was rented to the Jennison Hardware Company and used by it for storage, in connection with its business. The laundry building proper was rented to another tenant, and used as a secondhand store. It also appears that parcel 4 was not covered by any of the other three mortgages, while all of the other property was. In view of these facts, and under the statute and authorities cited by plaintiff, the sale was properly made in parcels.

Was the sale void because the right of way in the alley was not specifically sold and described in the sheriff’s deed? We do not understand how plaintiff has any cause for complaint in this regard. If the easement was of value, and was not sold, it still belongs to her, free from the mortgage, which was satisfied by the sale. But it seems clear that this easement was appurtenant to the dominant estate, and a description of it was unnecessary, and that it was effectually conveyed as appertaining to the lands described.

“Where an easement is annexed or appurtenant to land, it passes as an appurtenance, with a conveyance or devise of the dominant estate, and need not be specifically mentioned in the deed or will.” 14 Cyc. p. 1184.

See, also, Walz v. Walz, 101 Mich. 167, 170 (59 N. W. 431) ; Lathrop v. Elsner, 93 Mich. 599 (53 N. W. 791); Smith v. Dresselhouse, 152 Mich. 451 (116 N. W. 387); Bean v. Bean, 163 Mich. 379, 397 (128 N. W. 413).

As the notice and the deed covered both the land and its appurtenances, both were sufficient to include the easement.

Was defendant’s purchase fair and in good faith? The mortgages were all of record in the office of the register of deeds. If no information was given of prior mortgages, the plaintiff was not injured thereby. The.giving of such information would, of necessity, tend to lower the price, and not raise it. The fact is that only Mr. Webster, the secretary of defendant, and the deputy sheriff were present at the sale.

Should the notice of foreclosure have alleged the existence of the prior mortgages? We know of no such requirement or practice. It is urged that the notice should have advertised the sale of an equity of redemption. But plaintiff did not have a mere equity of redemption in this land, because the prior mortgages had not been foreclosed. She was still the owner of the legal title. Counsel for plaintiff quotes from 27 Cyc. pp. 1468, 1469, but fails to quote the preceding sentence:

“If the notice attempts to describe the state of the title, it must be done with exactness.”

Was there an excessive amount claimed in foreclosure notice? There is considerable controversy between counsel as to what is properly before the court upon this subject. It is apparent from the original bill that plaintiff claimed the amount demanded was excessive and asked for an accounting because certain large payments specified in the bill were not credited to plaintiff and entered upon the passbook, as it was claimed they should have been. .Plaintiff now urges under this subdivision that the amount stated in the notice was excessive because of errors in the passbook entries, due to improper methods of computation. It is said by defendant that the bill gives no intimation of such a claim, and that it was not made an issue on the taking of proofs. It does appear that upon the final appearance of the parties b'efore Judge Coumans counsel for plaintiff asked leave to submit, as a part of his argument,' certain computations that he had prepared covering each loan. Pie was sworn as to their correctness, and the computations were submitted. We think that this-was within the discretion of the circuit judge! These computations deal with small fractions. We have examined the statements and computations with care, and are of the opinion that they have to do with fractions of a cent, and that it was practically impossible to figure out the weekly rates so that the total of a period of years will exactly equal 7 per cent. It will sometimes be a trifle more, and sometimes, a trifle less. In any event it was a small sum arising from the use of a common method of computation, and should be disregarded. It seems to us that, if the maxim, “de minimis non curat lex,” should ever be applied, it should be applied here. As illustrating the character of the claims, it is urged that the notice of sale was published 13 times, and it is said 12 times were sufficient and a corresponding reduction should be made in the advertising charge. The authorities cited in plaintiff’s brief do not support the statement that an excessive claim in the amount due in the notice voids the foreclosure.

“A mortgage sale is not necessarily invalid because more is claimed than is in fact due (Klock v. Cronkhite, 1 Hill [N. Y.], 109), provided the claim is in good faith (Jencks v. Alexander, 11 Paige [N. Y.], 619). The excessive claim would be a circumstance only of more or less importance according to its magnitude, or apparent want of good faith, if attempt was made to redeem afterwards.” Millard v. Truax, 50 Mich. 343 (15 N. W. 501).

See, also, Damon v. Deeves, 62 Mich. 465 (29 N. W. 42) ; Emmons v. Van Zee, 78 Mich. 171, 175 (43 N. W. 1100); First State Bank v. Day, 188 Mich. 228, 236 (154 N. W. 101); 27 Cyc. p. 1469.

The period of redemption had not expired when the bill was filed, and when the period was about to expire defendant entered' into a stipulation extending the period of redemption until 30 days after the decree below. Unless the sale is to be set aside as void, the plaintiff’s right to redeem must be held to have expired.

Was plaintiff entitled to an additional credit of $1,~ 000 from the proceeds of the sale of the laundry to Bedworth and McQuater? This presents purely a question of fact, upon conflicting testimony. We shall not repeat the testimony here, but content ourselves with saying that a careful examination of the evidence leads us to the conclusion that the plaintiff has not sustained the burden of proof resting upon her, and we agree with the conclusion of the court below.

It is claimed that the mortgage was usurious, and that therefore plaintiff is entitled to have all interest payments applied on the principal of the several loans.

We are satisfied from the evidence that there was no intention to collect a higher rate of interest than the law allowed — no device or scheme on the part of defendant to collect usury. To constitute the charge of usury, there must be an intent to do something which is in violation of the statute. Green v. Grant, 134 Mich. 462, 467 (96 N. W. 583); Becker v. Headsten, 137 Mich. 478 (100 N. W. 752); Archibald v. Thomas, 3 Cow. (N. Y.) 284; 39 Cyc. pp. 919, 933, 969, 970.

“Where the amount of interest erroneously allowed is insignificant, it has been held, under the doctrine of de minimis, not to require correction.” 22 Cyc. p. 1570.

Plaintiff claims that mortgages 1 and 2 are usurious on the ground that the defendant, instead of allowing competitive bidding for the funds of the association, established a fixed premium, which all applicants were required to pay. This claim could not affect the validity of this foreclosure, unless mortgages 1 and 2 have been overpaid, and such overpayment can rightfully be applied on this mortgage; the provision relative to competitive bidding having been repealed before this mortgage was executed.

There is no controversy as to the rule established by the cases cited by plaintiff. In our opinion, the plaintiff has wholly failed to prove that the defendant’s funds were not offered to the highest bidder. In fact, there is, in our opinion, a clear preponderance of the evidence upon this subject in favor of the defendant’s claim. We shall not further discuss the question.

Finally, it is claimed that all of these mortgages were usurious because each contained a clause that the borrower should pay any tax assessed upon the mortgage, while the loan itself bore interest at the highest legal rate. This clause, we think, was mere surplusage, because the mortgages held by these associations are, and always have been, exempt from taxation. Section 10011, 2 Comp. Laws 1915; National Loan & Investment Co. v. City of Detroit, 136 Mich. 451 (99 N. W. 380).

The question here presented is controlled by Union Trust Co. v. Radford, 176 Mich. 50 (141 N. W. 1091). That case presented the question whether the mortgages of the trust company were exempt from taxation. It may be said that was the only question on both the original and the rehearing. Here that question is settled by the statute and the case cited.

After a careful examination of this somewhat intricate record, we are of the opinion that the learned chancellor reached the correct conclusion, and the decree of the court below is affirmed, with costs to the appellee.

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


text:
    TOWNSHIP SCHOOL DISTRICT OF WAKEFIELD v. MacRAE.
    1. Evidence — Admissibility—Contracts—Alterations.
    In an action by a school district on a sewer tunnel contractor’s bond to recover damages for failure to complete the tunnel through a hill, evidence of one who, with the engineer of plaintiff, examined the ground where the proposed tunnel was to be constructed before the contract was signed and was shown where the end was to be, and that, as constructed, it came out at a point some distance further away so as to make the tunnel longer, was inadmissible to show that the course of the tunnel was altered after the execution of the contract, where it appeared that such circumstance did not occur in the presence of the contractor, and he knew nothing of it when he signed the contract, and the engineer might have been mistaken or some other event might have transpired.
    2. Trial — Instructions—Striking Out Testimony.
    It is error to give an instruction, the only basis for which is stricken testimony.

      3. Contracts — Mistake of Engineer — Breach of Contract.
    The act of an engineer in starting a tunnel contractor’s foreman at what he erroneously believes is the correct point, necessitating the construction of a longer tunnel than that covered by the contract, does not constitute a breach of the contract.
    4. Same — Breach—Failure to Perform — Rescission.
    The mere fact that'there is a controversy between a tunnel contractor and a school board and its engineer as to whether certain work should be done is no excuse for the failure of the contractor to go ahead and complete the work under the terms of the contract at a certain rate per foot as claimed by him where such work would merely mean an extension of the tunnel.
    5. Same — Construction—Duty of Court.
    It is the duty of the trial court to construe a written contract.
    6. Same — “More or Less” — Question of Law.
    The term “more or less” as used in a tunnel construction contract in referring to the number of feet the tunnel is to be driven, is an expression which shows that the parties are to run the risk of gain or loss, as there might happen to be an excess or deficiency in the estimated quantity.
    7. Same — Construction—Breach—Rescission.
    Where the facts are not in dispute it is for the court to determine what is a substantial compliance with a construction contract.
    Error to Gogebic; Collingwood, J., presiding.
    Submitted June 26, 1917.
    (Docket No. 65.)
    Decided December 27, 1917.
    Assumpsit by the township school district of the township of Wakefield against Albert D. MacRae and another for the noncompletion of a sewer contract. Judgment for defendant MacRae.. Plaintiff brings error.
    Reversed.

      William S. Baird and Herbert M. Norris, for appellant.

      James A. O’Neill, for appellees.
   Stone, J.

The plaintiff is a township school district embracing the township of Wakefield, in Gogebic county. It is the claim of plaintiff that it is now governed by Act No. 117 of the Public Acts of 1909 (2 Comp. Laws 1915, § 5909 et seq.). The said township, and therefore the plaintiff school district, embraces a large territory 'consisting of several geographic townships, and includes the village of Wakefield,.which is located upon the south and east sides of Sunday Lake.

In August, 1914, there were in this school district ten schoolhouses, four of which were located within the village of Wakefield and three of these being then in actual use for school purposes. The said village had no sewer system, and the sewage from these last-named schoolhouses was being emptied through pipes, into Sunday Lake. This was finally forbidden by the authorities of the village; whereupon the board of education of plaintiff took up the subject of the construction of a sewer system to take care of the sewage from its schoolhouses, and particularly those then emptying their sewage into said lake. At a meeting of said board held on July 28, 1914, it voted to construct a sewer. J. M. Goldsworthy was engaged as engineer for the sewer work at a commission of 2 per cent, of net cost. He laid out the sewer through the village of Wakefield, around the east end of Sunday Lake to the north side thereof, where it was to empty into a tunnel to be driven through the hill on the north side of the lake, where said tunnel would open into a deep ravine, and a proper fall could be obtained. This tunnel was also to extend back from a point where the sewer emptied into it, to Sunday Lake, so as to afford an opportunity for lowering the lake in case of high water. A shaft was to be sunk at the place where this sewer would discharge into the tunnel. The board of education determined to let the contract for driving the tunnel separate from the other sewer work, and accordingly, on August 21, 1914, advertised for bids for constructing this, tunnel, bids to be received for both an 8x8 tunnel and an 8x10 tunnel. The notice, among other things, stated that:

“For further information inquire of E. R. Hillis, Secy., or Ed. Niehold, Pres.”

These bids were received on August 29, 1914, at which time the board of education met and considered the bids received. At this meeting it was determined to construct the tunnel 8x10 feet in size, and, the bid of defendant MacRae being the lowest, he was awarded the contract at the price of $9.95 per linear foot. Prior to the advertising for bids the engineer had prepared and filed with the secretary of the board of education plans and profiles for the construction of this tunnel. A written contract was forwarded to said defendant to be signed. Inclosed with this contract was a copy of the profile of the proposed tunnel that was on file with the secretary at the time the bids were called for, which showed the tunnel that was to be constructed to be approximately 1,200 feet in length.

Under date of September 8,1914, a written contract was entered into between the board of education of the plaintiff and defendant MacRae for the construction of this tunnel, it being described in the said contract as follows:

“To excavate, dig, and construct a tunnel approximately twelve hundred (1,200) feet in length, more or less, through the hill north of Sunday Lake, in the township of Wakefield, in Gogebic county, Michigan, at the place shown by the plans and profiles therefor, now on file in the office of the secretary of said board of education. Said party of the first part shall excavate, dig, and construct said tunnel in accordance with the plans, profiles, and specifications therefor now on file in the office of the secretary of said board of education, which said plans and profiles are hereby expressly made a part of this contract, and a copy of which said specifications are hereto attached, marked Exhibit ‘A,’ and made a part thereof.”

A copy of the specifications was attached to the contract. The specifications stated:

“Total length of tunnel 1,200 linear feet, more or less.”

The contract further provided that the work should begin thereunder within ten days and should be completed within a period of not to exceed eight months from the date of the contract. It also provided for a bonus of $10 per day to be paid to Mr. MacRae for each day remaining between the date of the completion of the work and the expiration of said limit of eight months, and also for a penalty of a like amount for each day said work should remain incompleted after the expiration of said time limit.. The contract also provided for the furnishing by «defendant Mac-Rae of a bond of $11,940 for the faithful performance of said contract, and also a bond in a like amount for the payment of all material and labor claims.

In accordance with said contract, defendant Mac-Rae caused to be executed by himself, as principal, and by the defendant iEtna Accident & Liability Company, as surety, a bond for the faithful performance of said contract in the amount above named. The bond provided that no change should be made in the plans, specifications, terms, covenants, and conditions of such contract which should increase the amount to be paid the principal more than 20 per cent, of the penalty of the instrument, without the written consent of the surety.

Defendant MacRae started work upon the tunnel under said contract about September 15, 1914, when Mr. Goldsworthy, the engineer, gave Mr. Solberg, who was foreman for Mr. MacRae, the location for starting the work on the north side of the hill. It was necessary to sink a shaft at the point where the sewer was to open into this tunnel in order to get a starting point for this tunnel work on the south side of the hill. A considerable part of the work of sinking this sháft was done by defendant MacRae under separate agreement, and was paid for by the plaintiff. Defendant MacRae also began excavation of the tunnel from this shaft as soon as it was sunk to the necessary depth, and work was proceeded with from both ends towards the center of the hill.

Defendant MacRae continued his work from about September 15, 1914, until the night of March 13, 1915. Estimates of the work done were furnished at regular intervals by the said engineer in charge, and payments were made by the plaintiff to the said defendant of 80 per cent, of the contract price for work done, 20 per cent, being retained pending completion of the work in accordance with the terms of the contract. These estimates and the school warrants and payment thereof are all shown in the record. A large part of the last estimate was paid to a justice of the peace to satisfy garnishee judgments against defendant Mac-Rae. The defendant MacRae never did any work on this tunnel after said 13th day of March. Due notice was. given the ¿Etna Accident & Liability Company, as surety, of the discontinuance of the work, and on May 13, 1915, being five days after the expiration of the time for completing the work under the contract, the secretary of the board of education sent, by registered mail, an official notice to both the defendants that the work of constructing this tunnel had not been completed, that a default had occurred on the part of defendant MacRae, and that there still remained a considerable amount of work to be done, for which said plaintiff would hold said defendants responsible.

The defendant the ¿Etna Company acknowledged receipt of this notice, and under date of June 1, 1915, Mr. Niemeyer, manager for said company, notified the president of the board of education that the surety upon the bond did not intend to proceed, or procure others to proceed, with the performance of the contract. Thereupon the plaintiff proceeded to advertise for bids for completing the tunnel, and at a meeting held on June 15, 1915, the board of education received bids and let the contract for completing the tunnel to W. S. Peters, the lowest bidder, for $21.25 per linear foot, together with additional compensation of $1,200 for finishing that portion of the work which was only partially completed by MacRae. In accordance with these proceedings a contract was entered into with Mr. Peters, and the work of finishing the tunnel was thereafter completed under this contract, and payment made to Mr. Peters therefor.

This suit was begun October 30, 1915. It was originally claimed by the plaintiff that the contract in question embraced that portion of the tunnel leading back from the shaft above mentioned to Sunday Lake, while defendant MacRae denied that this, was included in his contract. Upon the trial of the case the plaintiff withdrew this portion of its claim, and asked for damages. for failure to construct the tunnel from the shaft to the northern outlet only. The plaintiff also withdrew its claim for a penalty of $10 per day for all time after May 8, 1915, during which the tunnel was in-completed.

The total length of the tunnel as finally completed from the shaft to the outlet on the north side of the hill is 1,356 feet. Of this distance defendant MacRae either fully or partially completed 796 feet, leaving 560 linear feet in the center of the hill untouched.

It was the claim of the plaintiff that a considerable part of the work done by defendant MacRae was not of the proper size, in that the tunnel was not high enough. It was estimated and testified to by the engineer in charge that the amount to be excavated under this partially finished portion amounted altogether to the equivalent of 54 linear feet of tunnel, which amount was deducted in the estimates of the engineer. As stated, defendant MacRae was paid for the work done by him, less 20 per cent, which was retained according to the terms of the contract pending the completion thereof. The total amount of such payments, as shown by the record, was $5,794.88, and the amount retained was $1,448.72, and a small balance left after paying the garnishee judgments.

The plaintiff claimed a net damage, after crediting the 20 per cent, and other item, of $5,493.38. In addition to this, plaintiff claimed damages for extra expense in constructing the balance of its sewer system on account of water accumulating therein and delaying the work, and making it more expensive, and also causing plaintiff to be put to great expense in removing this water, on account of failure to finish the tunnel in accordance with the contract, and thus afford an outlet for such sewer system.

The court refused to allow plaintiff to introduce testimony upon the point last above mentioned, upon which ruling error is assigned.

The defendant MacRae, by his notice under his plea, claims in defense of this action, among other things, that he was prevented from performing his contract with plaintiff, in that, after the making and execution of said contract, and without the knowledge and consent of said defendant, the plaintiff wrongfully, fraudulently, and with intent to deceive said defendant, so altered the position, lines, direction, and location of said tunnel as to increase the length thereof and the time necessary for its completion, and sought to require him to construct such tunnel in such changed position and direction; also that the engineer employed by said plaintiff to direct said work, with the knowledge and consent and at the direction of the plaintiff, at the inception and during the progress of said work, fraudulently and with intent' to deceive this defendant established false and incorrect lines, and gave false directions for the construction of said tunnel, and sought to, and did, by such deception and misrepresentations, induce and require this defendant to construct said tunnel on said false and incorrect lines, to his great damage, and in violation of the terms of said contract; also that said plaintiff and its engineer in charge of said work wrongfully, fraudulently, and in violation of the terms of said contract sought to compel and require said defendant to do and perform additional work, digging, and tunneling at great cost and expense and time to this defendant, which said work was not included in said contract, and fraudulently and wrongfully sought and attempted to require, and did require, the performance of such additional work as a condition precedent to the acceptance of said work included in the contract, and of the payment of the moneys due and to become due the said defendant thereunder; that on account of said fraudulent acts and said breach of contract on the part of said plaintiff said defendant Mac-Rae was relieved from said performance, and was entitled to receive a reasonable value for the work done, notwithstanding the terms of said contract, and he also gave notice of set-off.

The defendant the iEtna Company gave notice of substantially the same defense, except as to set-off.

The trial resulted in a verdict and judgment against the plaintiff and in favor of the defendant MacRae in the sum of $11,319.02.

Upon the trial of the case much evidence was offered by both parties and received upon the issue as thus made. The defendant called as a witness one James W. Oxnam, who was permitted to testify, over the objection and exception of plaintiff’s counsel, that a few days before the letting of the contract for the construction of this tunnel, and after bids had been called for, he visited and examined the ground through which the tunnel would extend in company with Mr. Goldsworthy, the engineer, and that at that time Mr. Goldsworthy took the witness, and his companions around to the north side of the hill and showed him where the north end of the tunnel was to be, and that after the tunnel had been started, and after defendant MacRae had quit work, the witness went back and examined the premises, and found that the tunnel as actually constructed did not come out at the place where Mr. Goldsworthy told him it would come out, but that it came out between 200 and 300 feet northeast from that place, and that the effect was that the tunnel was longer.

At the close of the testimony the plaintiff requested the court to charge the jury as follows:

“(2) I charge you that under the terms of that contract the defendant MacRae was obliged to build a tunnel through the hill north of Sunday Lake, 8 feet by 10 feet in size, for the distance of 1,200 feet, more or less, and that the words, 'more or less,’ as used in this contract, mean the number of linear feet of tunnel that the plaintiff might require for its necessities as an outlet for its sewer system, and that the difference between 1,200 feet and 1,356 feet, the distance that the tunnel actually was constructed, was a reasonable distance for the plaintiff to extend its work over 1,200 feet, and that'the extension of the tunnel that distance by the plaintiff was not sufficient to constitute a breach of the contract on the part of the plaintiff, and that such extension alone on the part ‘of the plaintiff would furnish no excuse or justification for the defendant MacRae quitting his work or abandoning his contract.
“(10) In this case it appears from the evidence that defendant MacRae contracted to construct a tunnel approximately 1,200 feet in length, more or less. It further appears that this tunnel when fully completed was somewhat longer than 1,200 feet, the evidence on the part of the plaintiff showing it to be 1,356 feet long, and the evidence on the part of the defendants showing it to be - feet in length. In this connection I charge you that it was the distinct understanding of the parties, by the use of the words ‘more or less’ in the contract, that the agreement in regard to the length of the tunnel in question should not fix the precise number of feet the tunnel should be constructed, and that the intent was that some deviation from a length of 1,200 feet should be allowed. The actual length of this tunnel, according to the .evidence of either plaintiff or that of the defendants, is well within the limits to which such deviation might properly extend.
“(13) I further charge you that any change in the contract of plaintiff with defendant MacRae made after the execution thereof and by mutual consent, and any such change in the plans, specifications, terms, or conditions for performing any work under such contract, which did not increase the amount to be paid said defendant MacRae more than 20 per cent, of the penalty of the bond furnished, would not vitiate said contract or release the surety upon said bond.
“(15) I further charge you that, if you find the course of such tunnel was changed, after the execution of the contract and bond in evidence in this case, with the consent of the defendant MacRae, and such change did not increase the amount to be paid MacRae more than 20 per cent, of the amount of the penalty of the bond given, then both the defendants are liable to the plaintiff for all damages arising from the failure of defendant MacRae to complete his said contract.”

All of which requests to charge were refused.

The court charged the jury, among other things, in the following language:

“In this case the contract says, or the contractor MacRae agreed, ‘to construct a tunnel for a distance of approximately 1,200 feet, more or less, through the hill just north of Sunday Lake, in said township.’ As a matter of fact, it is admitted that the tunnel as laid out and as finally constructed along the lines, on which Mr. MacRae was. constructing it while he was at work was 1,856 feet long, and the defendant Mac-Rae tells yoü that he did not know that the tunnel was to be of that length, that he deemed it to be 1,200 feet, and when he found that the tunnel was to be 1,356 feet long, he abandoned it, and his claim is that the tunnel for which he contracted was to be 1,200 feet long, and that somehow after the contract was' let the course of that tunnel was so changed that it increased the length of the tunnel 156 feet.
“(7) Now, gentlemen, one of the questions for you to determine under the evidence in this case is: Was that tunnel changed? If it was not changed, and if Mr. MacRae contracted to build the tunnel which afterwards proved to be 1,356 feet long, and you find under this contract that ‘approximately 1,200 feet, more or less,’ would describe and define such a tunnel, then Mr. MacRae has no defense, and you would find for the plaintiff. If you find that Mr. MacRae was induced to take a contract to dig a tunnel 1,200 feet long, and that ‘approximately 1,200 feet, more or less,’ means 1,200 feet, and no more and no less, and that the tunnel as constructed was required to be 1,356 feet long, then you come to the question as to why he abandoned the contract. But in the first place, gentlemen, you have to determine under the evidence in this case and from your experience as men of affairs whether a contract which states ‘approximately 1,200 feet, more or less,’ could be a binding contract for a tunnel which was 1,356 feet long.
“(8) So you see there are two questions that you must determine before you come to the third and final question, which I shall give to you. As I say, the first question is: Did the contract as signed by Mr. Mac-Rae cover a tunnel which proved to be 1,356 feet long? And the next question is: Was the course of that tunnel changed after the contract was let, and was it done fraudulently and wrongfully, and was it such a material change that the defendant was justified in annulling and throwing up the contract?
“(9) After answering those questions to your satisfaction, if you find that the change was made, and it was such a material change as would justify a contractor in throwing up the contract, or if you find that the term in this contract ‘approximately 1,200 feet, more or less,’ would not cover a tunnel which was 1,356 feet long, then you come to the third question, and really the most important question of all: Did Mr. MacRae abandon the contract because of that fact? I mean: Did Mr. MacRae abandon the contract because the course was fraudulently changed? If you find that the course was fraudulently changed, and you find that Mr. MacRae had reason to abandon it, that it was such a change that it would affect the contract in such a way that he had a right to abandon it, and that he actually did abandon it for that reason, then you would consider the damages to the defendant, and the measure of damages in that case would be what the work which he performed, the nearly 800 feet, was actually worth, less what was paid to him. You have those figures. It is not necessary for me to repeat them.”

There was a motion by plaintiff for a new trial, based on the refusal of the court to give plaintiff’s requests to charge, and on the charge of the court as above indicated, and that the verdict was against the great weight of the evidence, and was grossly excessive and unreasonable. The motion for a new trial was denied, and exceptions duly taken. The plaintiff has brought error, and the questions discussed are properly raised by appropriate assignments of error.

There are many assignments of error relating to the admission of testimony. We have, after careful examination, reached the conclusion that none of the rulings of the court relating to the reception of testimony amounted to prejudicial error, except that part relating to the testimony of the witness Oxnam. The circumstance testified to by Oxnam took place many days before the. contract was signed. It was offered as tending to show that the course of the tunnel was changed after the execution of the contract. It did not tend to show that. The circumstance did not occur in the presence of defendant MacRae, nor did he have any knowledge of it when he signed the contract. The trial court at first stated an excellent reason for ruling this testimony out when it at first refused to receive it:

“It doesn’t show the change from the defendant’s course. Mr. Goldsworthy might have been mistaken that day, or some other event might have transpired.”

The court erred in later receiving this testimony, and doubtless its effect was damaging to the plaintiff.

We are also of the opinion that the trial court erred in charging the jury in the language above quoted from the charge. Some testimony had been received upon the trial relating to the meaning, or construction that should be given to the words “more or less.” The trial court finally struck out that testimony, so that there was no evidence before the jury as to the meaning of the term “1,200 feet, more or less,” and yet the court submitted to the jury the question whether a contract which states approximately “1,200 feet, more or less,” could be a binding contract for the tunnel, which was 1,856 feet long.

The undisputed evidence shows that the defendant MacRae never went to the northern terminus of the tunnel to make any examination until after work had begun. He claims that he and Mr. Hillis, the secretary of the board, examined the south end of the tunnel, and went a short distance up the hill, and had a conversation as to the general course of the tunnel. It does appear that the engineer, Mr. Goldsworthy, placed defendant MacRae’s foreman at work at the north terminus of the tunnel, and that the work proceeded from that point without any complaint on the part of the defendant MacRae. The object and purpose of the tunnel is clearly expressed in the contract, and there can be no doubt that the purpose was to dig and construct a tunnel through the hill north of Sunday Lake for the purpose named. There is evidence in the case that one could not tell by an inspection of the plans, profiles, and specifications the exact location on the ground of the tunnel, without actual measurement. If Mr. Goldsworthy, in good ■ faith, started the defendant’s foreman at work at a given place, and it turned out that by reason of the beginning of work at such place the tunnel was 1,356 feet long instead of 1,200 feet, this fact alone would not constitute a breach of the contract, if done, as we say, in good faith on the part of the engineer, he believing as he testifies, that that was the correct -point. There is a good deal of conflict in the evidence in the case upon this subject. It is the claim of the engineer that the location never was changed from the first, and in this he is contradicted by the defendant MacEae. If, however, on the other hand, it should turn out that because of the cheapness or low price of the contract per foot the engineer, thinking he would lengthen and change the tunnel, acted fraudulently and dishonestly in the matter, and insisted that this was the starting point and course that should be pursued in the construction of the tunnel, then it might be reasonably said that there was a breach of the contract.

There seems to have been some controversy between the defendant MacEae and the school board and the engineer whether MacEae’s contract extended south from the shaft to the lake, the defendant MacEae insisting all the time that this was not a part of his contract, the others asserting that it was. This did not prevent defendant MacEae from proceeding to finish his work in accordance with the terms of the contract. We have looked in vain in this record for any evidence that the plaintiff, ever forbade or prohibited the defendant MacRae from proceeding to finish his job in accordance with the contract. There is considerable force in the claim of plaintiffs counsel that defendant MacRae was looking for an opportunity to throw, up this job because of the low bid which he made.

We are of the opinion that the trial court should have construed the words “approximately 1,200 feet in length, more or less, through the hill north of Sunday Lake,” and should have instructed the jury that, if the engineer in good faith pointed out as the correct place for the northern terminus of the tunnel, the place where said defendant’s foreman commenced work, and said work was commenced there without objection on the part.of said defendant’s foreman, that fact would not vitiate the contract, or justify the said defendant in abandoning it, even if it turned out that the length of such tunnel was thereby made 1,356 feet, instead of 1,200 feet. It should not have been left to the jury to say that this was such a material change that the said defendant would be justified in annulling and throwing up the contract, even if it was a change in the terminus of the tunnel, if made in good faith by the engineer, and acquiesced in by the representative of said defendant. It was the duty of the court to interpret the written contract. The terms “approximately” and “more ©r less,” as contained in this contract, have certain well-settled legal meanings. The term “more or less,” as used in such contracts, is held to be an expression which shows that the parties were to run the risk of gain or loss, as there might happen to be an excess or deficiency in the estimated quantity. 27 Cyc. p. 913; Holland v. Rea, 48 Mich. 218 (12 N. W. 167) ; F. B. Holmes & Co. v. City of Detroit, 158 Mich. 137, 141 (122 N. W. 506) ; Cabot v. Winsor, 1 Allen (Mass.), 546; Brawley v. United States, 96 U. S. 168.

In F. B. Holmes & Co. v. City of Detroit, supra, this court said:

“We find no difficulty in ascertaining the prime object and purpose of these parties as expressed in the writings considered. They had in mind so many barrels of cement as the operations of this department would require during this period. * * * The clause ‘5,000 barrels of Portland cement, more or less/ was the expression of an estimate subject to the controlling object of the agreement expressed m the words of the contract, ‘all the Portland cement that may be required by the city of Detroit and ordered by the department of public works,’ the last clause expressing the method required to secure the delivery of the property to defendant.”

See cases there cited.

In Cabot v. Winsor, supra, it was held that the words “more or less” in a broker’s note for the sale of goods as follows: “Sold to N. W. for account of S. C. five hundred bundles, more or less, gunny bags” — do not create a latent ambiguity, or authorize the introduction of parol evidence by the purchaser to show an understanding between the parties that he was to have either more or less than the number specified, as might reasonably be found necessary to fill a ship, although it appeared that both parties knew at the time of the purchase that the goods were bought for the purpose of filling a ship, and that it was uncertain what number would be necessary. And if the facts are not in dispute, it is for the court to determine what is a substantial compliance with the contract.

In our opinion, it was error for the court to submit to the jury as a fact the question:

“Did the contract as signed by Mr. MacRae cover a tunnel which proved to be 1,356 feet long?”

The case was a close one upon the facts, but we think there was a case for the jury. We think that plaintiff’s 2d, 10th, 13th, and 15th requests to charge should have been granted, and that there was reversible error in the charge as given.

We have examined the other assignments of error, but find no reversible error except as above pointed out.

The judgment of the circuit court is reversed, and a new trial granted, with costs to the appellant.

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


author: Fellows, J. Stone, J.

text:
    HOWARD v. LOVETT.
    1. Trade-Names — Theaters—Unfair Competition — Injunction-Evidence.
    On a bill to enjoin the use of the alleged trade-name “Mercedes” by defendants, a rival vaudeville company, in an act produced by them, one of the defendants, a woman, and who bore such name, having been formerly a member of plaintiff’s company, evidence held, to show that the word “Mercedes” was used to designate the actress in plaintiff’s production and not as the name of the act. Stone and Bird, JJ., dissenting.
    2. Injunction — Equity—Discretion of Court.
    The writ of injunction is not a writ of right, but its issuance rests in sound discretion, and such discretion should not be moved where the party applying does not bring his case within equitable principles, does not show superior equities that are entitled to protection at the hands of a court of equity, and does not make such a case as moves the conscience of the court to grant the relief.

      Appeal from Wayne; Perkins, J., presiding.
    Submitted June 15, 1917.
    (Docket No. 58.)
    Decided December 27, 1917.
    Bill by Joseph B. Howard against George Lovett, ’Elizabeth M. Crane and others to enjoin the use of a trade-name. Defendant filed a cross-bill to establish her right to said name. From a decree for plaintiff, defendant Crane appeals.
    Reversed, and bill and cross-bill dismissed.

      George W. Bates (Leo M. Butzel and Charles A. Wagner, of counsel), for plaintiff.

      Angelí, Bodman & Turner, for appellant.

       On right of members of organization to protection in use of name which their efforts have made valuable, see note in 28 L. R. A. (N. S.) 458.
      On limitation of right to use one’s own name as a trade-name, see notes in 1 L. R. A. (N. S.) 660; 28 L. R. A. (N. S.) 934; L. R. A. 1916C, 255.

   Fellows, J.

I do not agree with Mr. Justice Stone in his conclusion in this case. Plaintiff’s name by birth was Joseph Cohen; when only a youngster, he appropriated to himself the name of Joseph B. Howard, one Joseph Howard being somewhat prominent in the theatrical world; later plaintiff, by certain proceedings taken in the courts at Chicago, caused his name to be changed to Joseph Mercedes. Defendant had always been called by her family and friends Mercedes, or an abbreviation thereof, and was so known and called by plaintiff. I am convinced from this record that the performance here involved, and which is only a clever trick by its producers, was gotten up by the joint efforts of plaintiff, defendant, and defendant’s father. I do not place credence in all the testimony of either of the parties, and feel that we should look beyond the oral proofs to documentary evidence, which may be corroborative of the claims asserted. The plaintiff admits that the act is not original with him, or original with the present generation; that he got the idea from a book on magic; that it probably appeared in books before he was bom. Upon his cross-examination a book was submitted to him, and on examination of it he admitted that it contained the idea of this trick. He was asked to turn to the fly leaf, and there appeared “J. M. Crane,” who he admitted was the father of defendant. Mr. Crane was a newspaper man on a prominent Chicago paper; had been dead for some time. In view of the fact that plaintiff’s testimony is not consistent with defendant’s, or with itself, I am inclined from this circumstance to give credence to the idea of joint action by these three people in getting up this act.

I am not strongly impressed by the testimony of the witness who said that she “was a palmist at one time, and sang,” and who testifies that in 1908, in the winter time, plaintiff called at her house three or four times to get her to work for him in this mind-reading act, and told her that he was going to call the act “Mercedes.” She admits that she could not play the piano, which was an absolute essential to the act, while in an affidavit, sworn to by her and filed with the bill of complaint for the purpose of obtaining a temporary injunction, she fixes the conversation in the year 1909, in the summer time. In this affidavit she gives as the reason she did not enter the employ of plaintiff, not the fact that she could not play the piano, but that they “were unable to agree upon proper terms.”

The testimony of another witness, much relied upon by plaintiff, that shortly before Labor Day, 1910, he saw a banner at plaintiff's “Temple of Knowledge” upon which was painted two women, one named “Mercedes” and the other “Vera,” is not of probative force of plaintiff’s claim. It is the'claim of defendant that arrangements had been made some time before that for the production of the act, and, while plaintiff insists he did not know the defendant by any other name than Miss Crane, and did not know her given name, a letter was shown him on cross-examination, which he admits having written, addressing her as “Dear Friend Merc.” The letter was written in the spring of 1910, several months before the banner was painted. Under these circumstances, this painted banner is as consistent with defendant’s claim as it is with plaintiff’s.

When these parties produced the act, the advertising used and which appears in the record as exhibits, convinces me that the name “Mercedes” was not used as the name of the act, but of the actress. I quote from one of these exhibits:

Mr. Joseph B. Howard Offers
The Bewildering Sensation of the Hour “MERCEDES”
The Psychic Wonder Call Your Name!
SHE WILL Read Your Mind!
Answer Your Questions!

The parties continued together until defendant was forced by plaintiff’s conduct towards her to sever relations with him, when she telegraphed her father for money and returned to Chicago. Thereafter, when defendant appeared on the stage, she appeared under the name of “Mercedes,” although plaintiff claims his attorney prevented her from giving this performance.

I cannot reach the conclusion from plaintiff’s advertising matter found in this record that the act was called “Mercedes.” It was the actor, not the act. I quote three of these advertising bills offered by plaintiff to substantiate his claim. The first one at the Lyric Theater:

Mr. Joseph B. Howard presents
The Bewildering Sensation, of the Hour “MERCEDES”
Startling Sensational Mind Reader LA PIANISTE DE MYSTERIE Presenting an Act that Amazed and Mystified the Entire World.

The second one, at the Garrick Theater, reads:

The Season’s Greatest Sensation “MERCEDES”
The Psychic Wonder She Will Tell Your Name Read Your Mind — Answer Your Questions.

The third one, at Keith’s Theater, in Boston, is as follows:

“MERCEDES”
Accompanied by the Marvelous Mystic, Mile. Stantone, in Their Unparalleled Occult Revelation THE MUSICAL ENIGMA
Mercedes Transfers in Silence by Telepathic Waves to Mile. Stantone Any Musical Selection Suggested by the Audience.
MOST EXTRAORDINARY POWER POSSESSED BY MAN.

I am convinced that the claim now asserted by plaintiff that “Mercedes” was the name of the act performed by him is an afterthought on his part, and that “Mercedes” was used to designate the performer, instead of the act performed.

But there is another feature of this case which I think should work its reversal. It is said that plaintiff has built up a valuable business in giving this performance, which should be protected by a court of equity. I realize that a certain degree of latitude is allowed in praising one’s wares; but there is a limit to all things. The methods used by this plaintiff to establish his reputation and build up his business were not such, to my mind, as appeal to the conscience of a court of equity for relief through that court by the strong arm of a writ of injunction. We may lay aside the fact that the performance sought to be protected is a trick pure and simple, that the so-called “thought transfusion,” “mind reading,” or “psychic wonder,” is simply the carrying out of a carefully devised code, understood alone by the performers; that, while it amuses and interests, it at the same-time deceives the public. All these may be laid aside while we examine the methods used by the plaintiff to establish his reputation. I quote from one of his press notices, published after he had appropriated to himself the name “Mercedes”:

Mercedes’ Life Story.
The life of Mercedes reads like a page from a book of fiction, teems with adventure, and is colored with real romance. Mercedes is, of course, a nom de theatre. It was chosen by the young man, who is mystifying the world with his peculiar demonstrations of telepathy, because it was the name of his mother, a Spanish lady. In reality Mercedes’ name is Joseph Howard. His father, a Scotchman, wedded to a Spaniard, met reverses which necessitated the son seeking employment at a very early age. They lived in Chicago, and young Joe, or Mercedes, as you shall call him hereafter, found work in a factory. It was hard grinding toil and the boy’s only relief — for he had the temperament and soul of an artist — was found at night-time, when he resorted to his room or to the homes of his friends and the companionship of his beloved violin. Near neighbor to him lived Nellie Stantone, whose parents were French. She and Mercedes were playmates from childhood and when the young man played his violin it was Nellie Stantone who thrummed out his accompaniments on the piano.
One day while at work in the Chicago factory Mercedes’ third finger on the left hand was caught in a machine and smashed to a pulp. Blood poison set in and the boy’s life was despaired of. For weeks he raved in delirium, but when convalescence came he sought the home of his girl friend, and as he lay, frail and sad, upon a couch, while she sat at the piano, the inspiring notes of his favorite violin solo rang through his thoughts. For weeks in his fever-tortured agony, this last piece he had played upon his violin was constantly with him. Hardly realizing what he was saying on his first day out, he turned to Miss Stantone, and said: “Nellie, I wish you would play that piece for me. It’s haunted me.”
Years of Very Hard Study.
The girl whirled around on her piano stool instantly and began to play Gounod’s “Ave Marie.” Mercedes was startled, for he had not mentioned the name of the selection. They were both children, and, had the boy failed to mention the incident to his father, it probably would have been forgotten, and what is now regarded as a scientific revelation might have been lost to the world. Mercedes’ father was a great reader. He had heard a lot about telepathy and so he insisted that there should be a trial of the boy’s powers. After much practice Mercedes and Miss Stantone brought their experiments to a successful conclusion. Mercedes thought of a selection he wished her to play and she played it without having any communication by word or sign from her violinist friend. This practice was kept up incessantly in spite of opposition from the young woman’s family, for they believed that young Mercedes possessed some evil power over their daughter ana they at length forbade the boy and the girl to meet. They did meet clandestinely, however, and tried out their skill in divers ways. At length the girl’s family discovered these secret meetings, and, to rid of the incubus of the boy’s evil influence, as they termed it, packed up their chattels and removed to Battle Creek, Mich. Mercedes’ father, too, tired of the young man’s persistence and gave him a sound thrashing one day that seems to have been the turning point in Mercedes’ life. He ran away from home, went to Battle Creek, and sold newspapers on the streets for a living. He suffered a serious illness, was taken home, and, upon his recovery, his family being advised to allow him to pursue his bent, he was now unmolested in the pursuit of the secret of telepathy.
There were years of study, and finally, three years ago in Chicago, a public performance which made everybody talk of the strange occult influence of this boy over the girl at the piano. Since then Paris and London and the entire continent of Europe have been startled by the strange performances of this boy and girl, and now America is sitting up and taking notice of the strange things they are accomplishing.

Admittedly there is not one statement in this entire article that is true, or that even approximates the truth. To put our approval upon such methods, by-protecting with a writ of injunction a business built upon such a foundation, would, to my mind, disregard that maxim of equity that is hoary with age — that he who comes into a court of equity must come with clean hands. The writ of injunction is not a writ of right, but its issuance rests in sound judicial- discretion; that discretion should not be moved where the party applying does not bring his case within equitable principles, does not show superior equities that are entitled to protection at the hands of a court of equity, does not make such a case as moves the conscience of the court to grant the relief.

I am persuaded that neither of these parties has shown such a clear right to the exclusive use of the name “Mercedes,” in connection with this performance, as would justify this court in enjoining either, as against the other, from continuing to entertain, amuse, and deceive the public by it.

I think both the bill and cross-bill should be dismissed, with costs to the defendant.

Kuhn, C. J., and Moore, Steere, and Brooke, JJ., concurred with Fellows, J. Ostrander, J., concurred in the result, dismissing the bill.

Stone, J.

(dissenting). This case is in this court on the appeal of the defendant Elizabeth M. Crane from a decree entered in the court below in favor of the plaintiff. There is some confusion in the statement of facts by counsel, due to the statement of those facts only which are favorable to their position, and the omission of those relied upon by the other party. The learned circuit judge, who heard the case and who saw and heard the witnesses testify, filed a written opinion, which is sustained by the record. It states the claims of the parties and the questions involved so clearly that a portion of it is quoted as a statement of the case:

“The plaintiff claims that he is entitled to the exclusive use of the word ‘Mercedes/ in connection with the production of a certain vaudeville play, which he claims he has been producing for the last five years and upwards; that he_originated the word ‘Mercedes/ in connection with this act, and applied it to the act, and has continued to apply it to the act during those years; that the act has been very successful, and is now producing a large income for himself and those associated with him; that the act is well known, and is produced only at the best vaudeville theaters in this country as a headliner, so-called.
“The defendants claim that the word ‘Mercedes’ is Miss Crane’s middle name; that her name is Elizabeth Mercedes Crane; that she became associated with the defendant Lovett something less than a year ago in the production of a play or act similar to the production of the plaintiff’s, but which varied somewhat by some additional features which have been added to the act; that her part in the production is substantially the same now, under the direction of Mr. Lovett, as when she was associated with the plaintiff in 1910. She claims that she was the essential feature of the act as produced by the plaintiff, when he produced this particular play in 1910. She claims that she was instrumental in originating it, that her father had more or less to do with the origin of this particular act, and that when she and the plaintiff began producing it they were partners, she receiving one-half of the net proceeds of their joint venture; that for some time the plaintiff and the defendant Crane continued to produce this act, until finally disagreements arose which separated them; she returning to her home in Chicago, and obtaining employment elsewhere.
“The plaintiff denies that there was any partnership between the parties, in this: That the act was exclusively his idea, that he employed the defendant Crane to assist him in the production of the act, and that that is as far as she had any connection with it. After the separation of the parties, the plaintiff employed another lady to take Miss Crane’s part, and from that time on, the act itself, not the performer, was called ‘Mercedes/ and the word ‘Mercedes’ has been applied to the act itself from that time on, and until this day.
“It seems, from the testimony of the defendants, that the defendant Lovett conceived the idea of putting on a similar act, as I have said, a year ago; that he employed Miss Crane to assist him in producing the act, which is, in substance, the same act, in its essential features, as the act of the plaintiff; that a trial performance, or a series of performances, was given in Chicago, later in Davenport, then in Winnipeg, and still later in Cincinnati. The advertisements that were used in Cincinnati are before the court. 'At first the act was called ‘Concentration/ but the advertisements in Cincinnati show that emphasis is given to the word ‘Mercedes/ in connection with the name ‘Crane.’ Advertisements of the defendants’ performance, that were distributed in Detroit recently, also give emphasis to the word ‘Mercedes/ which is the feature word of the advertisement. The word ‘Crane’ is placed in small letters in all of these later advertisements, and it is because the plaintiff claims that the defendants are unduly using the word ‘Mercedes/ thereby taking away from him that which he claims is his own, that this proceeding is instituted, and the plaintiff claims that the defendants should be restrained absolutely from using the name ‘Mercedes’ in connection with their production.
“The defendants, on the other hand, claim that, because the name ‘Mercedes’ is the middle name of Miss Crane, she has a right to use it in connection with the production of the defendants, and because of the further right, which was hers, and which she never abandoned, while she was associated with the plaintiff, when her middle name was used in connection with the plaintiff’s production at that time. And the defendants pray that the plaintiff be restrained from the use of the name ‘Mercedes/ and that he be required to account for the profits that he has made. Both sides ask, in other words, for a permanent restraining order, each against the other, and for an account of the profits each may have made out of the use of the word ‘Mercedes.’
(Counsel for plaintiff here announced that they did not ask for an accounting.)
“I think I have sufficiently stated the substance of the pleadings and claims, so that the real issue involved may appear clearly to all of us. This is as to whether the plaintiff may exclusively use this word ‘Mercedes’ in connection with his. vaudeville production. It was conceded by both sides at the beginning of the hearing that that was substantially the issue to be determined by the court. There is. no complaint against the defendants by the plaintiff that, in the production of this particular vaudeville act by them, they may use the word ‘Concentration,’ or any other word they may choose to select. It is the use by the defendants of the word ‘Mercedes’ that must be determined. I think it appears beyond question that the word ‘Mercedes,’ in connection with this particular vaudeville act, has become a valuable asset to the plaintiff, and would be a valuable asset to the defendants, if they could appropriate it and use it. The fact that it is a valuable asset is the fact which leads both parties into a court of equity to restrain the other from its use.
“The principal contention of the defendants that the word ‘Mercedes’ is a part of Miss Crane’s name, and therefore they have an exclusive right to use it, is not controlling by any means. A name may be used without question, if the use of it does not infringe upon the rights of another, in the prosecution of his business, whereby the public is likely to be misled, as has been said by counsel.
“This question of the right to use names in connection with one’s own business — particular names, proper names, common names, any name — has been before the courts a number of times, in this and other States. It seems to me that the question involved here has been determined by the decisions of our own court, and it is not necessary to go outside of Michigan to find the law fully and completely stated. The case of Lamb Knit Goods Co. v. Lamb Glove & Mitten Co., 120 Mich. 159 (78 N. W. 1072, 44 L. R. A. 841), is a case where the use of a proper name was enjoined, under the circumstances shown there, because its use by the latter concern, in the judgment of the court, would lead to confusion; the public would be misled iii dealing with the two institutions, and would be unable to determine, by the use of that name, which of the two they were really dealing with. In a case that arose in this city, I think (Penberthy Injector Co. v. Lee, 120 Mich. 174 [78 N. W. 1074]), a similar question arose, and the use oí the word ‘Penberthy’was enjoined.
(The court then referred to Michigan Savings Bank v. Dime Savings Bank, 162 Mich. 297 [127 N. W. 364, 139 Am. St. Rep, 558.])
“It seems to me that the law is so well settled along this line that it is hardly worth while to discuss it, or to argue it. The books are full of cases in which parties have been restrained from using their own names, in a way to appropriate the good will of a business already established by others under that particular name, and that is this case exactly. Assuming all that the defendants claim to be true, still it appears undisputed that, from 1910 down to the present time plaintiff has used the name ‘Mercedes’ in connection with this particular production, and that it has been during these five years that the name has achieved its notoriety, its importance, its association with the act itself —its popularity, its money-making qualities. It also appears that within the past eight months the defendant Lovett, in connection with Miss Crane, who was formerly associated with the plaintiff, produced a similar act, and used Miss Crane’s middle name, which happens to be ‘Mercedes,’ as featuring principally the act.
“It does not make any difference whether up to 1910, while Miss Crane was associated with the plaintiff, she was called ‘Mercedes,’ and designated as ‘Mercedes’ upon the advertisements of the plaintiff, or not. She claims that is the fact. The plaintiff claims that the word ‘Mercedes’ was used to designate the act, but that is not very material. The fact is that for five years the act itself has been described as ‘Mercedes,’ and that it has gained its popularity, its popular favor as an act, known as ‘Mercedes,’ and, as I have said, during the last year the defendants have been using this word, and I think unlawfully. * * *
“An injunction, plain, simple, and in few words, will be issued, restraining the defendants, and each of them, from further use of the word ‘Mercedes’ in connection with their production.”

The decree adjudged that the plaintiff, since the 10th day of August, 1910, had been, and then was,

“the sole and exclusive owner of the trade-mark and trade-name of ‘Mercedes,’ as applied to that alleged psychic performance of thought transference as performed by the said Joseph B. Howard, which consists of a woman, blindfolded, playing upon the piano on the stage such musical selections as may have been communicated to her by alleged thought transference through the agency of the said Joseph B. Howard, which said selections of music were made by some person in the audience, and, after having informed the said Joseph B. Howard of such selections, such persons then ask the blindfolded woman, at the piano, to play such selections, who thereupon plays the same.”

It adjudged that the defendants had no right therein or title thereto, but had unlawfully infringed upon the rights and property of the plaintiff therein. It enjoined and restrained the defendants from using the name “Mercedes,” or any combination thereof, in relation to the said psychic performance as stated, and from giving any public or private performance of the same under said name “Mercedes,” and from giving any such performance under the name “Concentration,” in connection with or under the name “Mercedes,” and from using the name “Elizabeth Mercedes Crane” in connection with the name “Concentration” as applied to such performance, either wholly or in part, and from advertising or making any public performance thereof, under the name “Mercedes,” or that of “Concentration,” in connection with the name “Elizabeth Mercedes Crane,” or that of “Mercedes Crane,” either wholly or in part, or in any other combination of names containing the word “Mercedes,” or that of “Concentration,” as so applied, or any variation thereof whatsoever, and that the defendants, and each of them, do henceforth refrain from using said word “Mercedes,” or that of “Concentration,” in connection with the name “Elizabeth Mercedes Crane,” either wholly or in part, in any signs, advertisements, labels, cards, letter heads, or other ways whatsoever, or in any manner calculated or tending to infringe upon plaintiff’s exclusive title aforesaid. The cross-bill of defendants was dismissed.

Upon the argument of this case I was in doubt whether the evidence warranted the finding and decree below. A careful review of the evidence and examination of the exhibits have satisfied me that the trial court reached the correct conclusion. There is an irreconcilable conflict in the evidence, especially in that of the plaintiff and the defendant Crane. It is the claim of the plaintiff that as early as 1908, while he was conducting a performance in which the girl on the stage identified articles handed him by persons in the audience, he conceived the idea of a musical transference act like the one in question. His testimony on this point is corroborated by that of two other witnesses. It is undisputed that he then spoke of calling the pianist in the act “Mercedes;” that he adopted the name from that of the betrothed wife of the Count of Monte Cristo, of which he had read. Applying the rule suggested by appellant’s counsel that “trade-names are acquired by adoption and user, and belong to the one who first used them and gave them a value” (38 Cyc. p. 765), we think that it appears that plaintiff originated the name and first used it in connection with the act in question. It is true that he did not use it until the year 1910, when he employed Miss Crane as pianist. We do not think that any partnership existed, and it does appear that he paid Miss Crane wages, and continued to use the name in connection with the act, after Miss Crane left his employment; and he continued to use it down to the time of the hearing in the court below. In our opinion it is not significant or important that Miss Crane’s middle name is Mercedes, nor that she was addressed as “Mercedes,” or “Merce,” or “Merc,” by her friends, instead of “Elizabeth.” Nor do we think it important or controlling that Miss Crane used the name “Mercedes” in another and different act after she left the employment of the plaintiff, as appears by her exhibits on pages 170 and 171 of the record.

We are of the opinion that it appears that the plaintiff has rightfully been using this name in connection with and to advertise this act since 1911, and has given the act its present standing before the public, and that he should therefore be protected in its exclusive use. In addition to the cases cited by the circuit judge the following have a bearing upon the use of names: Gordon Grate Co. v. Gordon, 142 Mich. 488 (105 N. W. 1118); Dayton v. Imperial Sales & Parts Co., 195 Mich. 397 (161 N. W. 958).

It is urged that the injunction is too broad. The court below enjoined the use of the name “Elizabeth Mercedes Crane,” or any combination of that name with the word “Mercedes,” in connection with this particular act, as described in the decree. Personally, Miss Crane can use her name as she sees fit, except that she cannot use it in connection with this act, or any similar act. If the injunction is to have any practical effect, it should stand as ordered. We are of the opinion that there was ample evidence to sustain the finding of the court below, and that the correct conclusion was reached.

The decree of the circuit court should be affirmed. The plaintiff should recover his costs of this court against the defendant Crane.

Bird, J., concurred with Stone, J.