author: Bird, C. J.

text:
    HANOLD v. COMMON COUNCIL OF THE VILLAGE OF STAMBAUGH.
    1. Intoxicating Liquors — Municipal Corporations — License-Moral Fitness of Liquor Dealer.
    Under Act No. 291, Pub. Acts 1909, it is not within the province of a village council to reject a liquor dealer’s application for a license on the ground that he had sold liquor to school children. '
    2. Same — Priority—Mandamus.
    The writ of mandamus will issue to compel the village council to reconsider an application to conduct a retail liquor business and to vacate its proceedings in approving the application and bond of another liquor dealer, filed after the date of relator’s application, which was rejected on the ground of moral unfitness, where the number of saloons is limited to nine by law, and nine applications, including the one to be vacated, have been granted.

      Certiorari to Iron; Flannigan, J.
    Submitted September 27, 1910.
    (Calendar No. 24,112.)
    Writ granted November 11, 1910.
    Mandamus by William F. Hanold to compel the common council of the village of Stambaugh to revoke a liquor license and grant relator’s application to sell liquor at retail. An order denying the writ is reviewed by relator on writ of certiorari.
    Reversed, and writ granted.

      Gummiskey & Spencer, for relator.

      A. J. Waffen, for respondents.
   Bird, C. J.

The relator, William F. Hanold, applied to the circuit court for the county of Iron for a writ of mandamus to compel the common council of the village of Stambaugh to grant his application for a liquor license. The circuit judge denied his application, and relator has removed the proceeding to this court for review.

The village of Stambaugh is entitled under the law (Act No. 291, Pub. Acts 1909) to a maximum of nine saloons. Previous to May 16th, the council had granted nine applications for licenses, including one to respondent Stivonski. Stivonski failed to file his approved bond with the county treasurer within the two weeks required by the statute. He filed another application on May 16th. Prior to this, and on April 27th, relator filed his application. At a meeting of the council on May 16th, relator’s application was first considered. Objections were made to its allowance on the grounds, first, that he had sold liquor to school children; second, that he had harbored prostitutes in his place of business. Some testimony was taken before the council tending to prove the first charge. No attempt was made to establish the second one. The relator’s application was denied solely on these grounds. Stivonski’s application was then taken up and allowed. He at once filed his bond, and is now engaged in the business.

It was the opinion of the trial court that relator’s application conformed in all respects to the requirements of the statute; that he was possessed of the qualifications specified in the act; that the action of the council in rejecting the application, for the reasons it did, was unwarranted; and that relator’s application for a license should have been granted, but declined to issue the writ on the ground that to compel the council to approve relator’s application would result in a violation of the law in respect to the number of saloons in Stambaugh. The rule which the legislature has established to guide in the consideration and approval of applications for licenses is, in part, as follows:

'■'■Provided, further, That when an applicant is found to be ineligible under the. terms of this act, or when said applicant fails to furnish a proper bond, or when a license is revoked or determined from any cause, such township board or village or city council shall grant further applications, if any are on file, up to such maximum number, giving preference to those filed on or before April fifteenth, and after that to applications in the order in which the same are filed.” Act No. 291, Pub. Acts 1909, § 39.

Under this provision of law, it was the duty of the council to give relator’s application the preference over respondent Stivonski’s, and, if it appeared that there were no legal objections, it should have been granted. The council had no Jawful authority-to grant Stivonski’s application until relator’s application was withdrawn or denied upon some legal grounds. It is not important whether the charges preferred against relator were established or not, nor is it important whether he had proper notice of them, as the council was dealing with a question entirely outside of its jurisdiction. The legislature has not vested the council with the power and discretion to prefer one applicant to another on account of his moral fitness. See Robison v. Miner, 68 Mich. 555 (37 N. W. 21). The duty which the legislature has placed upon the council is to determine whether the applicant has brought himself within the terms and conditions imposed by the statute. If the applicant has done this, his application should be granted, whatever the view of the council may be as to his moral fitness. The council makes it clear, in its answer to the order to show cause, that it rejected relator’s application on account of the charges and for no other reason. Inasmuch as these charges do not constitute legal grounds for its rejection, we think the relator is clearly entitled to the relief prayed for in this action (Amperse v. City of Kalamazoo, 59 Mich. 78 [26 N. W. 222, 409]), and that he ought not to be deprived of 'it, because the council has, without authority of law, granted the right to another.

The writ will be granted, directed to the village council of Stambaugh to vacate its proceedings approving the respondent Stivonski’s application and bond, and to reconsider relator’s application, and, if found without legal objections, to approve it.

No costs will be allowed against the council, as the trustees undoubtedly acted in good faith in denying relator’s application.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    DETROIT LUMBER CO. v. AUXILIARY YACHT “PETREL.”
    1. Appeal and Error — 'Watercraft Proceedings — Additional Testimony on Appeal — Waiver of Objections.
    In proceedings to enforce a demand against a watercraft, failure of the appellant to give notice of its intention to take additional testimony within 10 days after the filing of the return in the Supreme Court, is waived by the participation of the appellee in taking the testimony, notwithstanding appellant’s neglect to comply, by giving the notice, with Supreme Court Rule 57.

    3. Same — Printing Record — Motion to Dismiss.
    After additional testimony was taken on appeal, the attorney for appellant caused the depositions to be delivered to himself, and without objection of the appellee proceeded to settle a bill of exceptions for the purpose of decreasing the cost of printing, but on failing to agree upon any reduction in the size of the record, submitted the same to the printer, and proceeded with diligence to bring on the cause for hearing. Held that in consideration of the appellant’s diligence, the unsettled nature of the practice, and the participation of appellee’s attorney in the proposed settlement of a bill of exceptions, the motion to dismiss should be denied.
    3. Same — Practice—Depositions.
    After taking depositions for use in the Supreme Court, it was the duty of the commissioner to transmit them to the court, not to deliver them to the attorney for appellant.
    Proceedings by the Detroit Lumber Company to collect a demand against the auxiliary yacht <{ Petrel.” Prom a judgment for defendant, complainant appeals: On motion to dismiss.
    Submitted September 38,1910.
    (Calendar No. 23,321.)
    Motion denied November 11, 1910.

      Trevor & Bumps, for the motion.
    27. T. Berger, contra.

       Adopted May 35, 1909; 155 Mich. xxxi.

   Blair, J.

This matter has been before this court on three previous occasions.- See 153 Mich. 528 (117 N. W. 80); 155 Mich. 350 (119 N. W. 1072, 120 N. W. 749); 156 Mich. 565 (121 N. W. 274). On May 25, 1909, at the time of denying the motion before the court in 156 Mich. 565 (121 N. W. 274), this court adopted Rule 57. See 155 Mich, xxxi (130 N. W. v). On June 8, 1909, and again on August 10, 1909, complainant served upon defendant notice of taking depositions. On the 16th day of August depositions of witnesses on behalf of complainant were taken before a circuit court commissioner, and on September 2d depositions of witnesses in behalf .of defendant were taken before said commissioner. These depositions have never been returned to this court. Complainant’s sworn answer of August 11, 1910, to the motion to dismiss the appeal filed August 10, 1910, shows as follows:

“That complainant duly directed the court stenographer to have said depositions transcribed and reduced to writing, which was done, but complainant did not actually receive such transcribed copies until October 12,1909. The bill of exceptions was then prepared, and a copy of same served on the attorney for the defendant November 2, 1909, and it was not until some time in November or December that a long list of amendments to said bill of exceptions was received by the complainant. Subsequent to receiving such amendments, complainant’s attorney sought defendant’s attorney on at least two occasions to reduce the size of the record by elimination of some of the testimony, which complainant considered immaterial, and it was only a matter of a few months since it was learned that said negotiations would be futile. Complainant has now submitted the entire record to the printer in an effort to bring the matter on before the Supreme Court at the September term thereof.”

Counsel for defendant argues that the appeal should be dismissed for the reasons:

(1) Because the complainant did not comply with Rule 57 in giving notice of its desire to take additional testimony within 10 days after the filing of the return, etc. Inasmuch as defendant participated in the taking of the depositions and also took depositions, such objection isnot tenable, having been waived.
(2) The record has not been printed and served within the time prescribed by said Rule 57.

We agree with the contention of defendant that section 10139, 3 Comp. Laws, applies to such proceedings. Section 10834, 3 Comp. Laws, provides that:

“The proceedings and practice under this act shall be the same as in personal actions at law except as herein otherwise provided, so far as the same may be applicable and the depositions of witnesses may be taken, for the same causes, in the same manner, and with the like effect as in personal actions,” etc.

Section 10826, 3 Comp. Laws, provides:

“The causes shall be considered as in the Supreme Court from the perfecting of the appeal; and at any time within sixty days thereafter, unless the time shall be extended by order of any justice of the court, either party may take testimony, by deposition or commission, in the mode now provided by law in any case, without regard to the place of residence of the witness.”

It was not the intention of this court to abrogate these provisions of the statute, but merely to establish the practice where the statutes were silent. Under section 10139, 3 Comp. Laws, it was the duty of the commissioner taking the depositions to transmit them, when completed, to this court.

Complainant’s attorney appears to have procured the delivery of the depositions to himself and, from the time of such delivery, at least, was responsible for their not being filed with this court.

The attorney for defendant, however, appears to have made no objection to this course, but to have encouraged it by participating in the proceedings for settling a bill of exceptions, for which reason, in view of the statements in the sworn answer as to present diligence and the fact that the practice has not been heretofore settled, we have concluded to dismiss the motion, but with the usual costs to defendant.

Bird, C. J., and Ostrander, Hooker, and Stone,, JJ., concurred.


author: Moore, J.

text:
    GOODFELLOW TIRE CO. v. COMMISSIONER OF PARKS AND BOULEVARDS OF THE CITY OF DETROIT.
    1. Highways and Streets — Municipal Corporations — Right of Aooess.
    The owner of property abutting on a street has ordinarily a right of ingress and egress to and from his property.
    ■ 2. Same — Statutes—Detroit Charter — Mandamus.
    The commissioner of parks and boulevards of the city of Detroit may not deny the application of an abutting property owner to construct a driveway for access from his property to the Grand Boulevard, but should grant a permit therefor, subject to reasonable regulations and requirements, under Act No. 374, Local Acts 1879, and the amendments thereto.
    Certiorari to Wayne; Donovan, J.
    Submitted October 4,1910.
    (Calendar No. 24,099.)
    Decided November 11, 1910.
    Mandamus by Goodfellow Tire Company against Myrtle P. Hurlbut, commissioner of parks and boulevards of the city of Detroit, to compel him to issue a permit to relator to construct a driveway from Grand Boulevard east, to relator’s factory. An order denying the petition is reviewed by relator on writ of certiorari.
    Writ granted.

      May & Dingeman, for relator.
    P. J. M. Hally, for respondent.
   Moore, J.

The relator is a Michigan corporation, whose principal business is that of filling automobile tires •with a composition claimed to render them puncture proof. It also sells and handles automobile accessories. It is the owner of the north 95 feet of the easterly 100 feet of lots 2 and 8 and the southerly 5 feet of lot 1 of Frisbee & Foxen’s subdivision of part of fractional section 31. These lots are at the corner of the boulevard and Woodward avenue in the city of Detroit. Lots 1, 3, and 3 front upon Woodward avenue. On the front 100 feet of the lots a block of stores, three stories high, is erected; at the rear of said stores, and between them and the alley, the relator is erecting a two-story building for the purpose of carrying on its business. Its property fronts on the boulevard. It applied to the respondent for a permit to give access to its building to and from the boulevard by means of two driveways. The commissioner having denied the application for permission to construct the driveways, a petition for a writ of mandamus was filed in the court below, and, on denial of this petition, the cause was brought to this court by certiorari.

The claim of the respondent is stated by his counsel as follows (we quote from the brief):

“ The respondent further says in his answer that under the statute relating to said office of commissioner of parks and boulevards of said city of Detroit, and to the parks and boulevards of said city, he submits he has the sole charge and management and control of said parks and boulevards and of the improvements and maintenance thereof, and he avers it was and is within his exclusive judgment and discretion, as to whether a permit should be issued for the construction of said driveway, and, in the exercise of such judgment and discretion, he refused to issue a permit therefor. This respondent respectfully submits that this court has no jurisdiction to control the exercise of the discretion of this respondent to command him as against his judgment in the premises to issue permits for the construction of driveways on said boulevard or determine when, how, or where said driveways shall be made, and he makes this submission as in the nature of a demurrer to said petition.”

One of the counsel for respondent says in his brief that:

“Almost this identical question here contended for was presented to this court in a case which is entitled Abrey v. Livingstone, 95 Mich. 181 (54 N. W. 714). The jurisdiction of the commissioner in that case and in this is similar, and the act there construed is the act here under consideration. Abrey desired to have ingress and egress from the land under the control of the park commissioners to his land which abutted upon its holdings, and his right for that purpose was denied.”

An examination of that case will show that the act which was construed was not the one before us now, but was Act No. 891, Local Acts 1879. In disposing of the case, Justice Long, speaking for the court, said, in part, as follows:

“The complainants filed their bill in the Wayne circuit court in chancery, setting up that they are the owners of the lands adjacent to these strips, and have a frontage thereon. They procured their titles to these lands after Kanter and wife deeded the approach to the bridge to the city, and now claim that such approach is in its entire width a public street, through which they have the right of ingress and egress from their lands. It is claimed by the defendants that it is their intention to ornament these strips outside of the walks, and, to prevent encroachments thereon, to erect necessary fences or walls along the outer sides of the same. The complainants seek by their bill to enjoin the defendants from erecting and maintaining these fences or walls. Defendants claim that these pieces of land are not a part of the public highway, but that the city may devote them for the purposes of a park, and shut off the approaches from either side. Complainants’ bill was dismissed in the court below, and they appeal. It is contended by counsel for complainants that these parcels of land have always been regarded throughout their entire width by the common council and the board of public works as a street; that the strip of land from Jefferson avenue to the river was purchased for the purpose, and no other, of an approach to the bridge and a continuation or extension of the boulevard to the bridge. This piece of land was purchased by the city under the power granted by the above-named act.”

The court held, in that case, with the defendant, that the land had never been a highway and sustained the contention of the city. The boulevard was called into existence by virtue of Act No. 874, Local Acts 1879. When the boulevard was established, much of it, including the land now belonging to the relator, was in the country outside of the city limits. Section 10 of the act gave to the commissioners the following powers:

“ To adopt plans, for constructing, laying out, improving, ornamenting and beautifying the said boulevard, and shall have a supervisory and superintending control of the execution of such plans. They shall also have a like control and management of the maintenance and care of the said boulevard, and shall have power to make all reasonable rules and regulations concerning the use of said boulevard, and for the protection of the same.”

Section 14 of the act reads:

“Whenever the said boulevard, or any part thereof, shall be opened, either by grant or conveyance, or by proceedings in invitum, the same shall, under such reasonable rules and regulations as shall be adopted by the said board of boulevard commissioners, be common and public, for the uses and purposes of such .boulevard.”

After the city limits were extended so as to take in the boulevard, legislation was had to meet the new conditions. The respondent is the successor of the previous commissioners. The act of 1879 was amended May 24,1895, and May 4,1901. By the act of 1895 (Act No. 436, Local Acts 1895), numerous detailed provisions were added further regulating or empowering the commissioners to regulate the use of the parks and boulevards. For example, prohibiting the bringing or the driving of animals, excepting horses, in the parks and boulevards; limiting the rate of speed, restraining the use of footpaths, grass plats, and other portions thereof, excepting upon carriage drives, by vehicles; preventing the obstruction of roadways, the injuring of property, the destruction of or interference with plants, trees, grass, etc. Heavy traffic was forbidden excepting where there was no alley in rear, and then only to the nearest cross street. Funeral and other processions were prohibited, as was also the playing of games and the speeding of horses, excepting at places designated by the commissioner. The act of 1901 (Act No. 417, Local Acts 1901) provided for a single commissioner of parks and boulevards in place of the board of commissioners and re-enacted many of the sections of the act of 1895, substituting “commissioner” in place of “commissioners” or “board.” In its present form both of these acts contained the following (section 39, Act No. 436, Local Acts 1895; section 39, Act No. 417, Local Acts 1901):

“No person shall dig, remove or carry away any sward, sand, turf or earth in or from any public park or boulevard, and no person shall open or dig up or tunnel under any part or portion of the boulevard without a permit from the commissioner of parks and boulevards, and before granting any such permit the applicant therefor shall be required to deposit with the secretary of said commissioner such sum of money as the superintendent of the boulevard, or such other officer as the commissioner may designate for that purpose, shall estimate will fully cover any expense to be incurred by the commissioner in connection with such opening or tunneling, and the commissioner may make suitable regulations and conditions with respect to issuing said permits. And said commissioner may retain the actual expense, which shall be certified by the superintendent, which may be incurred by the commissioner in connection with any work done by him, for the purpose of restoring any roadways, sidewalks, planting place or other portion of said boulevard, and the secretary shall refund to the person to whom said permit shall be issued the difference, if any, between the amount deposited and the amount so certified by the superintendent. Carriage or drive ways and foot walks connecting with any premises adjoining the boulevard, or hitching posts thereon, shall be allowed only on a permit issued under this section, and the material used in making such ways, walks or posts, shall be determined by the said commissioner.”

It is claimed, under existing conditions the commissioner may deny relator the right to construct any driveway from his premises to the boulevard.

At volume 28 of Cyc. p. 856, it is said:

“An abutting owner has two distinct kinds of rights in the street — the public one, which he enjoys in common with all citizens, and private rights which arise from his ownership of contiguous property. Among the private rights are the right of free and unimpeded ingress and egress to and from his property for himself and animals and goods * * * and the right to have the street kept open and continued as a public street for the benefit of his contiguous property.”

In the same volume, at page 863, it is said:

“Abutting owners have an indefeasible right of access to and from their property to the street.”

In the notes many cases are cited which sustain the text.

Counsel for respondent cite McCormick v. Park Commissioners, 150 Ill. 516 (37 N. E. 1075); but that case is not conclusive in favor of the respondent. Indeed, it is said in the opinion:

“Undoubtedly the owners of lots bordering upon streets or ways have the right to make all proper and reasonable use of such part of the street for the convenience of their lots, not inconsistent with the paramount right of the public to the use of the street in all its parts. Smith v. McDowell, 148 Ill. 51 (35 N. E. 141, 22 L. R. A. 393), and cases cited. In the absence of legislative direction or municipal declaration of what such rights shall be, what is to be deemed a reasonable and proper use will depend, in a large degree, upon the public usage in like instances, and upon the local situation. General use by lot owners, and acquiescence therein by the public and public authorities, may always be resorted to as evidence of what is a reasonable and proper use and of the existence of the right. 2 Dillon on Municipal Corporations, §§ 521, 553, 585, 794; Van O'Linda v. Lothrop, 21 Pick. (Mass.) 292 (32 Am. Dec. 261); Com. v. Blaisdell, 107 Mass. 234; Nelson v. Godfrey, 12 Ill. 22.”

Scovel v. City of Detroit, 146 Mich. 93 (109 N. W. 20), is also cited. In the opinion in that case occurs the following:

“In 2 Dillon on Municipal Corporations (4th Ed.), § 656, it is said:
‘“Public streets, squares, and commons, unless there be some special restriction, when the same are dedicated or acquired, are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits of the latter, and because the legislature may have given the supervision, control and regulation of them to the local authorities. The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property rights and easements of the abutting owner, full and paramount authority over all public ways and public places.’”

Our attention has not been called to a case holding that an abutting owner might be deprived of ingress and egress by means of a driveway to and from his property to the highway in front of it. Certainly, when the legislature, in 1879, gave to the commissioners authority “to make all reasonable rules and regulations concerning the use of said boulevard,”, no one supposed they might deny the right of the abutting owner to construct a driveway to the boulevard. The provision in section 89, reading:

“Carriage or drive ways and footwalks connecting with any premises adjoining the boulevard, or hitching posts thereon, shall be allowed only on a permit issued under this section, and the material used in making such ways, walks or posts, shall be determined by the said commissioner ”

—does not contemplate that the permit shall be denied, but the inference is a fair one that it shall be allowed upon, suitable regulations and conditions.

The commissioner, instead of refusing the permit» should have granted it subject to reasonable regulations and conditions as to number, location, plan of construction, and material used therein, and it will be so ordered.

Bird, C. J., and Ostrander, Hooker, and McAlVAY, JJ., concurred.


text:
    LANG v. PRINDLE.
    1. Parties — Husband and Wife — Estates by Entireties — Fraud and Deceit.
    The wife who executed, jointly with her husband a land contract for the purchase of a fruit farm and who caused to be conveyed in part payment for the premises a parcel which appeared of record to belong to a third party, an attorney of the husband, but to which land the wife had previously had title and in which the plaintiff claimed an equity, is a necessary party to an action for fraud of the vendor in mating the sale, where only a small part of the agreed price had been paid, and plaintiff did not attempt to rescind his bargain.
    2. Husband and Wife — Tenancy by Entireties.
    In real property held by husband and wife by the entireties, neither has an undivided interest, but the estate is an entirety which is not defeated or affected by the act or conveyance of either.
    Error to Van Burén; Des Yoignes, J.
    Submitted October 5, 1910.
    (Docket No. 4.)
    Decided November 11, 1910.
    Case by George S. Lang against Eugene E. Prindle for fraud. Judgment for plaintiff; defendant brings er-xor.
    Reversed.

      Anderson & Warner and William J. Barnard, for appellant.

      Thomas J. Cavanaugh and L. A. Tabor, for appellee.
   Moore, J.

This suit was commenced by summons in July, 1908. The plaintiff recovered a judgment for $6,500, which it is sought to review by writ of error.

Negotiations were had between the parties to this litigation running through several months for the exchange and purchase of real éstate. A land contract was finally made in which the following appears:

“Article of agreement, made and concluded this 25th day of September in the year 1905, between Eugene F. Prindle and Emma A. Prindle, his wife, ■ parties of the first part, and George S. Lang and Amelia Lang, as husband and wife jointly, parties of the second part, witnesseth: That the said parties of the first part, or their heirs, executors and administrators, at the request of the said parties of the second part, and in consideration of the money to be paid, and the covenants, as herein expressed, to be performed by the said parties of the second part, hereby agree to sell and convey to the said parties of the second part, all the following described land, situated in the township of Antwerp, county of Yan Burén, State of Michigan, to wit.”

Then follows a description of the land:

“ The sum of $2,500 mentioned below is paid by a deed of certain lands on section 29 of Antwerp township aforesaid deeded byWalrath and wife to Eugene E. Prindle as a part of this transaction, said deed being subject to a mortgage of $1,500 assumed by said Prindle. And it is expressly agreed that if said Prindle is required to pay any more than $1,500 and interest thereon from October, 1905, to settle said mortgage, then said excess and all extra costs and expenses arising on account thereof shall be added to the purchase price of the land described in tbia contract and repaid to first parties hereto according to the terms of this contract, with the privileges and appurtenances thereunto belonging. And the said parties of the second part, for their heirs, executors, administrators and assigns, in consideration of the premises, hereby agree to purchase said land, and to pay as purchase money therefor to the said parties of the first part, their executors, administrators or assigns, the sum of twelve thousand'dollars as follows, viz., $2,500 on the execution and delivery of this agreement. For the payment of the balance ($9,500) second parties agree to deliver all grapes grown on said premises to the Southern Michigan Fruit Association at Lawton, Michigan (or to such other parties as the parties hereto may agree upon). From the proceeds of said grapes second parties shall receive the price of all baskets and packages used in marketing said grapes. Of the balance second party shall receive one-third, and first parties two-thirds each year as payment of principal and interest until all shall be paid in full. Each party shall collect his own share from said association. This contract shall be fully paid on or before twenty years from date, with interest at the rate of six per cent, per annum, to be paid annually on the whole sum from time to time remaining unpaid. And, also, that said parties of the second part will well and faithfully, in due season, pay or cause to be paid, all taxes and assessments, ordinary and extraordinary, for any purpose whatever, that shall be taxed or assessed upon the said land and appurtenances, including the year 1905. * * * It is further agreed that second parties have the option of paying fifty dollars or more on this contract at any time in addition to the amount arising from the grape crop above set forth. * * *
“In witness whereof the said parties hereto have hereunto set their hands and seals the day and year first above written.
“Signed, sealed and delivered in presence of:
“ Lowell A. Parker,
“Yerne M. Palmer,
“Eugene F. Prindle. [Seal.
“Emma A. Prindle. ■ [Seal.
“ George S. Lang. [Seal.
“ Amelia Lang. [Seal.

Then follows the acknowledgment. On the back of this contract appear the following indorsements:

1906, Dec. 4th, As interest-..................-......¡S570 00
1906, Dec 4th, On principal....................... 30 94
1907, Jan. 10, Rebate of 1906........................ 38 50
1908, Feb. 10, On interest of 1907................... 266 54

The deed from Mr. Walrath and wife was made as provided in said contract. The record shows that the land mentioned in said deed was conveyed to Mr. Walrath by Mrs. Lang, and that the record title was never in Mr. Lang. Mr. Lang and his wife entered into the possession of the farm and have been in possession ever since. It does not appear that any payments have been made upon the .contract except those before mentioned.

The following averments are contained in the declaration filéd in the case:

“For that, whereas, heretofore, to wit, on the 25th day of September, A. D. 1905, in tbe county of Van Burén, the said plaintiff, at the special instance and request of the said defendant, bargained with the said defendant to buy of the said defendant a certain tract of land situate, * * * and then entered into a land contract with the said defendant for the said purchase of said lands at and for a certain price, to wit, the sum of $12,000, $2,500 of which was paid down by means of a trade and the balance evidenced by said contract, and the said defendant by then and there falsely, deceitfully, and wrongfully and fraudulently, representing the said farm, * * * with intent to defraud, deceive, injure, and damage the said plaintiff and with knowledge of the falsity of said representations so made to the said plaintiff, then and there sold said farm to said plaintiff and procured from the said plaintiff his signature to said contract and procured and induced the said plaintiff to become obligated to him, the said defendant, in terms, conditions, and stipulations set forth in said contract, and caused the said plaintiff to procure the signature of his wife to said contract, all relying upon said false, deceitful, and fraudulent representations so made by the said defendant, and believing such representations and acting upon said false, deceitful, and fraudulent representations in bargaining for said lands and in signing said contract and in parting with his said land in exchange for the lands of the said defendant and in .obligating himself as per the terms and conditions of said contract, whereas, in truth and in fact * * * falsely, fraudulently, and wrongfully deceived and misled the said plaintiff into signing said contract, into turning over to him, the said defendant, the equality of $2,500 in cash and in obligating himself to the said defendant to pay the balance of the agreed purchase price of said farm, to wit, $9,500. * * * Again, all of which statements and representations were false and untrue, he on or about the 25th day of September, 1905, at the special instance and request of the said defendant, duly purchased said farm of and from said defendant at and for the said value of $12,000 and duly paid therefor $2,500 in other property, which was duly accepted by said defendant as payment thereon and duly covenanted and agreed to pay said defendant the balance of said $12,000 then amounting to $9,500, and having so purchased the same went into possession thereof, and during the seasons of 1906 and 1907 tilled and worked the same in a good farmer-like manner, but during both of said seasons, because of the grape vines having been diseased and unproductive, the fruit thereon was not fit for the market or for consumption and became worthless, and the income therefrom was not of the value of the labor and expense of tilling and working the same, whereby and because of which the said plaintiff, for said two years of 1906 and 1907, received and obtained from said farm no income whatever and not sufficient to pay him for the labor and expense laid out in cultivating and working the same, whereby and because of which said misrepresentations and false and fraudulent inducements so held out knowingly and intentionally by said defendant to said plaintiff as an inducement to said plaintiff to cause him to so purchase said farm at and for said sum of $12,000, and because of said plaintiff having been so misled and fraudulently deceived by said defendant’s publication and statement, by relying thereon, and so purchasing said farm, he has suffered great loss and damage in a large sum of money, to wit, in the sum of $10,000, wherefore he brings suit,” etc.

The contract between the parties is dated September 25, 1905. This suit was brought in the fall of 1908. The points relied on for reversal are:

“(1) Errors in admitting testimony as to matters not material and tending merely to prejudice the defendant before the jury.
(2) Errors in admitting testimony as to representations not set forth in the declaration.
“ (3) In permitting testimony in contradiction of the record tending to show that Amelia Lang was not the owner of the Claus place, and that she made no claim that defendant had committed any fraud upon her individually; and in permitting the introduction of the contract, in evidence, and in overruling defendant’s claims as to the fact of plaintiff and his wife being owners of the land involved by entireties, and in refusing defendant’s request to charge in that particular as to the plaintiff’s right to recover under the contract.
“(4) Error in the measure of damages as submitted in the charge of the court.
“(5) Error in denying defendant’s motion for new trial on the ground that the verdict was excessive.”

In our view of the. case it will be necessary to consider only the third of these groups. It already appears that the written contract is made by Mr. and Mrs. Prindle as parties of one part, and by Mr. and Mrs. Lang as parties of the other part. It may be well to quote here some of the testimony of Mrs. Lang. She testified, in part, as •follows:

“ He (Prindle) talked to my husband at our home about the farm we now own, yes. Said that it was a good farm, was the best in the neighborhood all around Law-ton ; that they had started on a very low ebb, and they had worked very hard, so hard that he had injured his health; but now he had got his farm, so that they were fixed comfortably for life, in fact, he had made a big income. Yes, I am sure it was $4,000. He said he would like us to buy the farm; that we would be very satisfied, have a good home, have plenty to do with, if we went there, and we would be comfortable for life. The neighborhood was nice and the people of Lawton — well, we were in a nice neighborhood, and he was sure we would be satisfied if we made up our minds to purchase it from him. * * * In fact, he represented to us that, if we took the farm, it was so useful a farm we could get everything we wanted to live on there; that it would produce everything that we wanted to keep the farm going. He just spoke of his farm and the advantages of it, and how it was situated and just generally speaking of the farm as any one would tell, describe a property to some one else that didn’t know anything about it. I don’t remember seeing any booklet at that time. He said that some people were unfortunate enough to have their grapes situated so that they were right in the frost line; that some of them would year after year be frozen up and all the prospect of a crop would be destroyed. * * * I remember of the paper writing coming to my home at one time; yes, sir. I couldn’t say whether Mr. Prindle handed it to my husband downtown, or whether he sent it by mail. We had it there in the house; yes, sir. After that Mr. Prindle came there several times. The first time he came after we had this contract, he stayed over night. He came several times and stayed. He always made our house his place that he used to come and stay when he was in the city, and spent the night with us. * * * He came and stayed with us the night before he went to Texas, and he came and slept the night after he came from Texas, and the next morning as he was getting ready to return to Law-ton he said: ‘ Mrs. Lang, I am not going to be in a hurry to get rid of my farm. I can make $4,000 income on my farm, and I cannot do that on any farm that I have seen. Mine is a mighty good farm, and I am not going to get rid of it in a hurry.’ I said: 'Mr. Prindle, I wonder that you want to get rid of such a farm, if it is as good as you say.’ He says: Mrs. "Lang, I don’t, except it was on account of my poor health. I thought when we had that house built that we never would leave that house for good unless I was carried out ’ — meaning unless he died and would have to be carried away. He said he thought Mr. Lang was pretty slow in coming and settling up affairs, and I replied: ‘ Mr. Lang will settle things just as soon as he possibly can, but this matter of the insurance on the Claus farm has to be cleared up before things can be settled properly, but just as soon as ever we can settle and arrange things satisfactorily to every one, we will do it. * * * I came down to Lawton with my husband to look at the farm. We put up at the Hotel Giddings the night, and the next morning Mr. Prindle came down with a surrey, and he took us to the Claus farm that we then owned — it was ours. We looked over the farm. Then he took us up to his farm, and showed us his grapes, and all of it, and went through the house, and I remember one instance, sir. There was a lovely crop of grapes there, and there were grapes loose on the ground, and my husband said to him: ‘ What are those grapes on the ground ? ’ And he says: * Why, the vines are so heavily laden with grapes that they can’t carry all the grapes, and those you see on the ground are those that have dropped off simply because the vine cannot nurture them.’ Those grapes on the ground were dried and shriveled. They were black. They had not dropped off to any great extent. The bunches were full. It was a lovely show of grapes there. My husband, Mr. Prindle, and I were alone. * * * When we went into the house, there were peaches in grape baskets placed along the kitchen, and Young’s wife mentioned to Mr. Prindle would he take his share; that was all they had that year, and I believe there was about 18 baskets, because I remember that Mr. Prindle’s share we packed into the surrey and took home to Mrs. Prindle. Mr. Prindle said that year the peach crop had been a failure. He didn’t say anything with reference to the condition of the peach trees. * * * In September when we were there looking at the farm, after we looked at the farm, we returned to Lawton for dinner. We were staying at Prindle’s home. We came to Paw Paw that same day in the evening. We stayed in Paw Paw about three-quarters of an hour. We got back to Lawton just before supper time. The question came up again about this farm, and he was getting anxious about it. Of course we were saving all we had, all the available money we had, to put in the farm. We told Mr. Prindle that. I said: ‘ Mr. Prindle, are you sure that one-third of the grape crop will be sufficient to pay all the running expenses of this farm ? ’ And he said: ‘ Mrs. Lang, you will have plenty to do with.’ Then I says: ‘ I have got another question to ask you. Supposing that such a thing should happen that two-thirds of the crop there wouldn’t be sufficient to pay the interest on this place, what then ? ’ ‘ Then, Mrs. Lang, he says, * I couldn’t get my money. I would have to wait for it any time to the end of the 20 years, until all should be paid. ’ Before that he had talked over the arrangement and the bargain upon which he was going to let us have the land; yes, sir.”

It is true that she testified that the Claus farm was her husband’s and that she made no claim against defendant for damages; but it is impossible to read the record without reaching the conclusion that Mrs. Lang was as much interested in the transaction as was her husband. The doctrine of tenancy by the entireties is discussed at length in the cases of Dickey v. Converse, 117 Mich. 449 (76 N. W. 80, 72 Am. St. Rep. 568), and Fowles v. Hayden, 130 Mich. 47 (89 N. W. 571). In these cases many authorities are cited. We content ourselves with the following quotation from Fowles v. Hayden, supra:

“In Speier v. Opfer, 73 Mich. 35 (40 N. W. 909, 2 L. R. A. 345, 16 Am. St. Rep. 556), it is said:
‘“In this case the property to be improved and benefited was held by husband and wife jointly, and not as the separate property of the wife. Only at the death of the husband could the wife claim it as her separate property. During the lives of both, neither has an absolute inheritable interest; neither can be said to hold an undivided half. They take by entireties, and at the death, of the wife the whole passes at once to the husband. Manwaring v. Powell, 40 Mich. 371; Allen v. Allen, 47 Mich. 74 (10 N. W. 113); Ætna Ins. Co. v. Resh, 40 Mich. 341. Neither has such a separate interest that he or she could sell, incumber, or devise, or which his or her heir could inherit. Vinton v. Beamer, 55 Mich. 559 (22 N. W. 40); Fisher v. Provin, 25 Mich. 347. It is an entirety, in which both take the same and inseparable interest. Neither can affect the other’s rights by a separate transfer, and whatever wilL defeat the interest of one will defeat the other’s. Vinton v. Beamer, supra.’
“In Dickey v. Converse, 117 Mich. 449 (76 N. W. 80, 72 Am. St. Rep. 568), there isa citation and review of the many authorities, making it unnecessary to call attention, to them here. In that case it is said:
‘“This speoies of tenancy grows out of the unity of husband and. wife, and is unlike that of joint tenants, who are each seised of an undivided moiety. The husband and wife are each seised of the whole, and not of undivided moieties. Hardenbergh v. Hardenbergh, 18 Am. Dec. 378 (10 N. J. Law, 43), note.’
“ It was held this rule applied to the crops growing upon the land, as well as the land itself.”

It will be observed that the declaration does not allege, and the proofs do not disclose, that plaintiff parted with anything because of the alleged fraud and deceit except the $2,500 farm which was traded, the record title to which was never in him. The averment is that because of the fraud and deceit the plaintiff entered into the contract and persuaded his wife to sign the same. Mrs. Lang is just as much bound by the terms of this contract as is Mr. Lang. It is difficult to see how the wife can be disassociated from the contract which is the basis of the transaction. The situation as disclosed by the record shows that almost nothing has been paid upon the contract except the deed of the $2,500 farm, the record title to which was in the wife. Plaintiff and his wife both signed the contract. Instead of rescinding the contract and surrendering the farm, they retain the same and have had the use of it all these years. Cooley on Torts, p. 8, note; Larsen v. Groeschel, 98 Ind. 160; Hallett v. Gordon, 122 Mich. 567 (81 N. W. 556, 82 N. W. 827). In the meantime the plaintiff has recovered a judgment against defendant of $6,500 for damages. To state the case is to show its injustice. Whatever interest was obtained by reason of the contract was shared by the wife as much as by the husband. We think the wife was a necessary party to the suit.

Judgment is reversed, and a new trial ordered.

Ostrander, Hooker, McAlvay, and Stone, JJ., concurred.


text:
    PASTORINO v. PALMER.
    Reformation of Instruments — Mistake—Evidence.
    Under conflicting testimony, in a suit to reform a lease and to correct a mutual mistake, the opinion and decree of the lower court that the evidence failed to disclose a mutual mistake with such a degree of certainty as to justify reformation, is sustained.
    Appeal from Wayne; Hosmer, J.
    Submitted October 6,1910.
    ( Docket No. 10.)
    Decided November 11, 1910.
    Bill by Domenico Pastorino and Louis Schiappacasse against Thomas W. Palmer and Friend Palmer for the reformation of a lease. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Bowen, Douglas & Daman, for appellants.

      Chamberlain, May, Denby & Webster, for appellees.
   Moore, J.

In May, 1897, the complainant Pastorino entered into a written lease with Friend Palmer for the store known as No. 82 Woodward avenue, to be occupied as a fruit store. The lease was drawn by Otis Scott, the agent of Friend Palmer. The other complainant became surety for the payment of the rent. Mr. Pastorino took possession of the premises, and paid the rent from month to month until July, 1898. After that date, he failed to pay his rent, and a notice to quit was served upon him October 10, 1898. Some time after that he vacated the premises. In June, 1899, Friend Palmer sold his interest in the lease and his claim against the surety to Thomas W. Palmer, who, in September, 1901, commenced suit to recover for the unpaid rent. The bill of complaint was filed in this cause in February, 1902. For some reason the case was not pressed to hearing, and from a decree made in June, 1909, the case is brought here by appeal.

The substance of the bill of complaint is that, when the lease was drawn, it was orally agreed that no competing business should be allowed in the block where the store was situated, that this agreement was to be put in the lease, that it was violated, and it is claimed that complainants were injured and should not be requred to pay the rent.

Among other things prayed is the following:

“(a) That the lease or contract may be opened, and that the court cause to be inserted therein, as one of the conditions thereof, the condition or agreement between said Pastorino and said Friend Palmer or his agent, as in this bill set forth, viz., that the said party of the first part, the defendant Friend Palmer and the said Thomas W. Palmer, as assignee of said lease, should rent to no one else any store, stores, or parts of said Merrill block or building for the purpose of carrying on a business such as your orators represented themselves as desirous of carrying on, viz., the retail sale of fruits, soda water, nuts, candy, cigars, etc.
“(b) That this court will cause the contract, marked ‘Exhibit A,’ attached to this bill of complaint, to be opened, and will insert therein a paragraph showing the scope of the business which it was understood your orator Pastorino desired to carry on relative to the variety of stock intended to be carried as it shall be proven to have been understood between the parties, and that no other party should be allowed to carry on any similar business on the above described premises during the occupancy of said premises by complainant Pastorino.”

It was prayed that the surety might be released. There was also general prayer for relief. In discussing the bill of complaint, the circuit judge, who saw and heard the witnesses, expressed himSelf in part as follows:

“ Now I have listened to the testimony of Mr. Schiappacasse as it was originally given, and the testimony of the complainant in this case, Mr. Pastorino, and I have had the testimony read to me on the hearing yesterday. I am perfectly willing to believe that Mr. Schiappacasse and Mr. Pastorino expected at the time of the lease that there should be no competition by reason of letting any other premises in the Merrill Block for a similar purpose, but I am not satisfied from the testimony which has been adduced in this ease that there was that mutual mistake which the law can rectify. It was to be leased for a fruit store according to the terms of the lease, and I am not satisfied from the testimony which is here offered that it was understood by Mr. Scott exactly what was comprehended by the term fruit store, or exactly what was expected, that the parties there should carry on, and I am not satisfied that the evidence which has been presented in this case is so clear or so convincing that it affords an opportunity for a court of equity to decree a reformation of the lease.”

He then spoke of what had been done, and what had not been done, and found there had been laches on the part of complainants. There is a sharp conflict in the testimony. The language of the lease is not uncertain. Mr. Scott, who apparently has no interest in the controversy, swears positively that the written lease contains all of the agreement between the parties. Friend Palmer died before the case was heard. The conduct of the complainant Pastorino is not consistent with the complainants’ present claim. It would profit no one to reproduce here in detail the testimony. It does not disclose fraud upon the part of anybody. We agree with the trial judge that it fails to disclose a mutual mistake with any such degree of certainty as would justify a court in changing the written contract entered into by the parties. See section 859, Pomeroy’s Equity Jurisprudence; Shepard v. Shepard, 36 Mich. 173; Burns v. Caskey, 100 Mich. 94 (58 N. W. 642); Kinyon v. Cunningham, 146 Mich. 430 (109 N. W. 675).

This conclusion must decide the case so that it is unnecessary to enter into the question of laches.

The decree is affirmed, with costs.

Bird, C. J., and Ostrander, Hooker, and McAlváy, JJ., concurred.


author: Stone, J.

text:
    INGERSOLL v. DETROIT & MACKINAC RAILWAY CO.
    1. Damages — Survival Aot — Statutes—Amount Reooverable.
    In an action by an administrator for the wrongful death of defendant’s employé, neither damages for loss of time or pain and suffering, caused by his injury prior to his death, are recoverable, where the cause of action arose under Act No. 89, Pub. Acts 1905, limiting the amount recoverable to the pecuniary loss suffered by those who were entitled to share in his estate.
    2. Same — Persons Dependent — Death by Wrongful Aot — Negligence.
    Although deceased had a wife and infant whom he had abandoned before his death, and whom he never supported, the law imposed upon deceased a duty to support them and the administrator was entitled to recover for their benefit the probable amount of contributions, whether voluntary or forced, that the widow and child might be expected to have received from him during his expectancy.

      Error to Ogemaw; Sharpe, J.
    Submitted October 7, 1910.
    (Docket No. 7.)
    Decided November 11, 1910.
    Case by Elbert V. Ingersoll as administrator of the estate of William Quigley, deceased, against the Detroit & Mackinac Railway Company for the negligent killing of the deceased. A judgment for defendant entered by the court on the opening statement of plaintiff’s attorney is reviewed by plaintiff on writ of error.
    Reversed.

      De Vere Hall, for appellant.

      James McNamara and Charles B. Henry (Guy D. Henry, of counsel), for appellee.
   Stone, J.

The declaration with the rule to plead in this cause was filed January 12, 1909, and set forth in due form actionable negligence on the part of the defendant resulting in the injury to, and death of, deceased, and due care on his part, claiming damages in the sum of $20,000 to himself, in consequence of such injuries, from his loss of earnings, and the pain and suffering that he endured during his lifetime. It also claimed damages in a similar amount for the pecuniary injury sustained by the widow and child as next of kin by reason of being deprived of means of support, and contributions that deceased would have made to them had he lived. After service the defendant appeared and pleaded the general issue.

At the trial the case was disposed of by the court upon the opening statement of plaintiff’s counsel of what he proposed to prove. That statement was, in substance, that the suit was brought by plaintiff as administrator of the estate of William Quigley, deceased, one who was employed by the defendant as brakeman on its line of road extending from Gooder, in Ogemaw county, north into Oscoda county; that on November 6, 1906, after dark, he was acting as brakeman on the front end of a train being pushed southerly from Oscoda county into Gooder, and it is the claim of plaintiff that this injury arose through the negligence of defendant, as set forth in the declaration herein, and that as a result of such injuries William Quigley died on November 24, 1906, at Rose City, in Ogemaw county. Here counsel for plaintiff made a statement offering to show the death of said William Quigley as a result of such injuries, the appointment of plaintiff as his administrator, the several acts of negligence set forth in the declaration causing the injury to, and death of, deceased, and his want of contributory negligence, and then passed to the subject of damages. He offered to show that at the time of his injury Mr. Quigley was of good health, and about 30 years of age, married to the young girl referred to in the declaration, when she was about 16 years of age, at Two Harbors, near Duluth, in the State of Minnesota; that this marriage was a forced one, brought about because deceased had seduced the girl, and was arrested and confined, and then lawfully married under the laws of that State; that later he had deserted and abandoned her; that there was one child as the result of such marriage, being the one referred to in the declaration; that the widow and child are both still living at Milwaukee, Wis.; and that she had no means of support, other than deceased would either voluntarily contribute, or that which could be forced from him under the law, other than such as her father and her family may contribute. At the time deceased was so injured and died, Mrs. Quigley did not know where he was, and-he had never contributed anything either to her support or that of the child; but the marriage was a lawful one, and was so treated and regarded, and she is the lawful widow, and the child is the lawful child of such marriage.

Plaintiff’s first contention is that, based on that lawful marriage relation, such widow and child are entitled to have damages assessed with reference to his death for the reason that the law would compel him to contribute to their support, to her during her life, and the child during its minority, and that by his death she and such child lost this resource which the law gives them, whether it was a-voluntary or involuntary contribution; that contributions are of two characters, one that which the law compels by reason of either the common law, or some statutory declaration arising out of the relationship of the parties, and another which exists by voluntary support given by the deceased to some other next of kin; that the widow and child belong to the first of these, and the fact that no contributions have been made in the past does not deprive them of the right to have damages arising from the death of deceased now assessed; that, as to the second, where the law does not supply forced contributions, it would be necessary to show some act of the deceased, either of contributions in the past, or some situation which would warrant reasonable expectation of contributions in the future, before damages could be assessed. But in this case, and in so far as this branch of the claim of damages is concerned, the plaintiff stands squarely on the legal ground that both the statute and common law of Minnesota, where> the marriage took place, of Wisconsin, where the widow and child resided at the time of the death of plaintiff’s intestate, and of Michigan, where the death took place, compel him to support his wife and child, and this furnishes a basis on which damages may be assessed.

Passing to the second ground of right of recovery, as stated, the injury took place on November 6, 1906, and plaintiff will show by the proofs that deceased was an intense sufferer from that time until the time of his death, November 24th following. This fact will be disclosed by the testimony of the nurse who was in attendance during 12 of the intervening days, and at the time of his death; and, on the right to assess damages which accrued to deceased by reason of such injury between said days, plaintiff will show that there was in force in this State, at the time of this injury and death, the survival act, being section 10117, 3 Comp. Laws, and the limited liability act, being Act No. 89, Pub. Acts 1905. That under the survival act deceased had a right of action for the 18 days’ time that he lost between his injury and death, and, in addition to such right, he had a right under the survival act to recover for the pain and suffering that he endured during that time, and that the jury should consider and determine what would be reasonable compensation for such loss of time, plus the pain and suffering so endured. In this statement is excluded all right of action for any prospective damage which would accrue during the probable life of deceased, by reason of his death on November 24, 1906, planting plaintiff’s right squarely upon the survival act, which gave deceased during his life the right to recover for the two elements of lost time, pain and suffering, which latter will be shown were large and substantial in amount, and which counsel described in detail. With reference to the effect of Act No. 89, Pub. Acts 1905, it was the claim of counsel that it affected the third element of prospective damages only, and that as to this it was to be measured by the contributions that would probably thereafter be made, the same as under the death act.

At the close of said opening statement, counsel for defendant moved the court to direct a verdict for defendant, for the reason that the opening statement of counsel for plaintiff contained no basis upon which the jury could assess damages. Defendant’s motion was granted, and verdict and judgment were directed and entered for defendant. The plaintiff has brought error, and by proper assignments of error two questions are presented:

(1) Did the court err in refusing to permit the jury to assess damages in favor of plaintiff under the survival act (section 1011?, 3 Comp. Laws) for the time lost after the injury, and before the death of deceased, and for the pain and suffering then endured by him ?
(2) Did the court err in refusing to permit the jury to assess damages in favor of the plaintiff under Act No. 89, Pub. Acts 1905, for contributions, voluntary or forced, that would probably have been made by deceased, in favor of the widow during her probable life, and the child during its minority, for the probable life of deceased, and in directing a verdict ?

We shall consider these questions in the order named.

It will be borne in mind that the plaintiff’s intestate was injured November 6, 1906, and died November 24, 1906, while Act No. 89, Pub. Acts of 1905, was in force. No action was brought by deceased, and this action was begun by the administrator January 12, 1909. We have no doubt that Act No. 89, aforesaid, fixes absolutely the measure of damages to be recovered, in case of liability. We are of opinion that this question is answered against the contention of plaintiff by the case of Norblad v. Railway Co., 156 Mich. 697 (118 N. W. 595). That was a well-considered case. There was a motion for rehearing which delayed its publication in the report. In the meantime Walker v. Traction Co., 156 Mich. 514 (121 N. W. 271), was decided, and the Norblad Case cited. We must adhere to the doctrine announced in these cases, and hold, that the circuit judge decided correctly upon this question.

This brings us to the consideration of a more difficult question. The plaintiff claims that even under Act No. 89, aforesaid, the court erred in its refusal to let the jury determine what pecuniary loss the widow and child sustained by reason of the death of the husband of the one, and the father of the other. The circumstances of the case are peculiar. It appears that the marriage was lawful, that the child was born as a result of such marriage, and that at the time the deceased was injured and died the wife did not know where he was, and that he had never contributed anything to her support nor that of the child. The plaintiff contends that contributions of a husband and father may be voluntary, or they may be forced; that the law would compel decedent to contribute to the widow during her life, and to the child during its minority; that by death she and the child lost this resource which the law gives, whether it was a voluntary, or an involuntary, contribution; that the common and statute law of Minnesota, where the marriage took place, of Wisconsin, where the widow and child resided at the time of the death, and of this State, where the death took place, would compel the decedent to support his wife and child; and that this furnishes a basis on which damages may be assessed by the jury, just as the court could assess damages, or fix liability, against decedent, had he been arraigned before it for a failure to contribute to their support. The defendant urges that no basis for damages was furnished in the opening statement of counsel; that the wife and child had no reason to expect the husband and father to contributed their support; that damages must be proved by the circumstances, by capacity to earn, and by disposition to contribute pecuniarily to the aid.

The question, under the circumstances here presented, appears to be a new one in this State. In Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205, Chief Justice Cooley said :

“The damages recoverable in a case of this nature * * * are to be assessed with reference ‘ to the pecuniary injuries resulting from such death. * * * ’ They have no regard * * * to any moral obligations which may have rested upon the deceased to supply their wants. If the moral obligation to support near relatives were to be the criterion, we might take their poverty into account as bearing upon the extent of this obligation; but as this may or may not have been recognized, and, if recognized, may have been imperfectly responded to, it is manifest that it can be no measure of the pecuniary injury the family received, or was likely to receive, from the death. What the family would lose by the death, would be what it was accustomed to receive, or had reasonable expectation of receiving in his lifetime.”

Should it be said in this case, as a matter of law, that the wife and child had no reasonable expectation of receiving any aid from decedent in his lifetime ? To sustain the position of the circuit judge would require us to so hold.

It is urged by defendant that there was no basis for assessing damages. Had decedent been proceeded against to compel him to support his wife and child, the same difficulty would have been encountered; and yet we think the court would have had no difficulty, after learning all of the facts, to fix a reasonable basis from which to determine the amount. Had this man been killed by a negligent act, an hour after his marriage, and before he had ever contributed a cent to the support of his wife, would it be contended that she had not suffered pecuniary loss thereby ? It would seem not. What would be the basis of assessing damages in such a case? We think that they would be determined by showing the circumstances, and by evidence of the probabilities, under proper rules, as in suits brought by parents to recover damages in case of the negligent death of a young child, who had never earned a dollar. Rajnowski v. Railroad Co., 74 Mich. 20 (41 N. W. 847). In this case it appears that the husband had abandoned his wife through no fault of hers.

Similar questions have been before the courts of other States. In 6 Thompson’s Commentaries on the Law of Negligence, at section 7054, the rule is stated as follows:

“The widow is not prevented from maintaining an action for the death of her husband by negligence, by the fact that she is living in separation from him, unless she has forfeited the right to support from him by leading an abandoned life. Nor will a child be prevented from recovering for the death of his father by the fact that the father had lived away from home for many years, and had not contributed anything to the support of his wife or child” — citing many of the following cases.

In the case of Ft. Worth, etc., R. Co. v. Floyd (Tex. Civ. App.), 21 S. W. 544, it appears that James H. Floyd and the plaintiff were married at New Albany, Ind., on the 25th day of February, 1887, having met for the first time on the preceding day. A separation soon followed. Early on the morning of April 6th of the succeeding year-the husband was killed in a railroad collision at Alvord, Tex. About one month thereafter the surviving wife (this plaintiff) was found to be an inmate of a house of prostitution. She brought this suit for the benefit of herself and the mother of deceased for damages on account of the alleged negligent killing. The court held that the wife had forfeited her right to support from her husband, and that the evidence failed to show any reason on her part to expect that he would ever again have contributed towards her support had he not been killed. It was held that here the wife had trampled every claim to marital obligation under foot, and that, while there might be a case of such misconduct on the part of her husband as would preclude this defense, no such case was presented in the record. This case seems to have turned upon the fact of the misconduct of the wife, whereby she forfeited all right to expect aid from her husband.

Gulf, etc., R. Co. v. Delaney, 22 Tex. Civ: App. 427 (55 S. W. 538). This was an action for damages for wrongfully causing the death óf a brakeman, William Delaney, and the verdict allowed $5,000 to the widow of the deceased, and a like amount to a son by a former divorced wife, which son was 10 years old at the time of his father’s death and not shown to have ever received any support from the father. The second wife and this child joined as plaintiffs. The court says:

“Deceased was earning $60 per month at the time of his death, was 31 years old, and was strong, healthy, temperate, and industrious. He had been divorced from his first wife, the mother of his only son. No children were born of the second marriage. To allow the son $5,000 as actual damages upon the showing that the son had never received anything from his father seems to us like allowing a large sum of money where nothing would probably have been received had the deceased lived, and we hesitate to approve so large a verdict merely for the loss of the abstract right of the son to claim a support from his father; but we are unable to distinguish the case from that of Railway v. Culpepper, 19 Tex. Civ. App. 182 (46 S. W. 922). The case in this respect was thus stated in that opinion:
" ‘ One Culpepper, before his marriage with appellee, had been divorced from his first wife, the mother of Chris and Maud, by a decree which gave to him the custody of Chris and made no provision as to Maud. At the time of the father’s death Chris was 12 years and Maud 10 years of age. Maud remained with her mother, who is still living. The evidence showed that Culpepper devoted his earnings to his wife and son, and there was no proof that he contributed to the support of his daughter. We are of opinion that Maud Culpepper was entitled to recover, since she had the legal right to support from her father, of which she was deprived by his death’ ” — citing many Texas cases.

Houston, etc., R. Co. v. Bryant, 31 Tex. Civ. App. 483 (72 S. W. 885). This is an action for damages alleged to have arisen upon the death of Will Bryant, instituted by his parents and his widow, Lila Bryant. The appellant requested the following charge:

“If from the evidence you believe that the plaintiff, Lila Bryant, widow of Will Bryant, voluntarily abandoned her husband with the fixed purpose of never returning to him and wholly repudiated the relation of wife to Will Bryant, and had determined not to receive any benefits or aid from him had he lived, then his death under such circumstances inflicted no injury upon her; and, consequently, though you may believe Will Bryant’s death was the result of negligence on the part of defendant, no recovery can be had by her.”

The court held that this charge was properly refused; that it was a clear invasion of the right of the jury to pass upon the facts and determine whether the wife was damaged by the death of her husband.

Under the circumstances of this case, should not the question of what, if any, sum might the widow and child be reasonably expected to receive from the deceased, have been submitted to the jury ? Can it be said as matter of law that the wife would never learn the whereabouts of her husband and proceed against him for support ?

De Garcia v. Railway Co. (Tex. Civ. App.), 77 S. W. 275, was a suit to recover damages for the death of plaintiff’s husband, and to set aside a judgment. The plaintiff, after setting up her cause of action against the company on account of the ’death of her husband, Alcario Garcia, alleged that he had left surviving him by a former marriage two minor children, naming them, and that they had, therefore, in the same court, through their next friend, instituted suit for damages and recovered a judgment. Fraud and collusion were charged against the minors and the defendant to defeat the claim of the widow. It appeared that several years prior to his death Alcario Garcia was married to the plaintiff, Josephine. In a former suit it had been found that the plaintiff widow had not, for more than two years prior to the death of the husband, received any pecuniary aid from him, and was not receiving any pecuniary aid from him at the time of his death, and would not have received any pecuniary aid from him had he lived. This court held that it was incumbent upon the children to act in good faith with those joined with them in the suit; that the wife, so long as she had not acted in any way to forfeit it, was entitled to support at the hands of her husband; and that a party wrongfully killing him cannot deprive her of damages by a plea that the husband had not been fulfilling the duties he owed his wife.

In Dallas, etc., R. Co. v. Spicker, 61 Téx. 427 (48 Am. Rep. 297), a judgment of #5,000 was awarded in favor of the wife for the death of her husband. The defendant asked the court to charge the jury that if the husband had left his wife and had no further communication with her, and the jury believed from the evidence that he had abandoned her for good, and at the time of his death she had no reasonable expectation of deriving any aid or advantage from the continuance of his life, then she would be entitled to but nominal damages. In holding that the defendant was not entitled to such request, the court said:

“ Henry Spicker (the husband) may have left his wife for a year or more before his death, and after leaving her may have had no further communication with her, and may have intended never to return to her, or contribute to her support; yet so long as the marital relation existed, without reference to the will of the husband, the wife not being shown to have forfeited her right thereto by her own wrong, she was entitled to a decent support in accordance with their station in life from her husband. The marital relation created this right, and it would have continued to exist so long as the relationship continued; and so, without reference to the will of the husband. There is no legal presumption that such relation would ever have been dissolved prior to the time when one of the parties thereto, in the ordinary course of events, would have died. The wrong of the appellant terminated the relationship, by causing the death of the husband prior to the time when, in the ordinary course of events, he would have died, and thereby deprived the wife of that pecuniary support and benefit which the law would have entitled her to from her husband so long as they remained husband and wife.”

Baltimore, etc., R. Co. v. State, for Use of Chambers, 81 Md. 871 (32 Atl. 201). This was an action brought in the name of the State, as plaintiff, for the use of the widow and child of John W. Chambers, who was killed by what is alleged to have been the wrongful act, neglect, and fault of the defendant corporation. There was a verdict for the plaintiff and judgment thereon, from which the defendant has appealed. The court says:

“ The appellant’s sixth prayer contained a proposition which we think is not sustained either by reason or authority. It asks the court for instruction that if they find that the decedent had been separated from his family for a period of about 12 years immediately preceding his death, and that he had contributed nothing to the support of his wife or infant child during that period, that then the plaintiff was only entitled to nominal damages. In this we do not concur. The marital relation still continued to exist between the parties at the time of the death of the husband; and, whilst they had not, for the period stated, lived together as man and wife, her legal rights had suffered no change or impairment. It is very clear from the testimony in the record that the wife had not by her own wrong forfeited her right to a decent support from her husband in accordance with her station in life. The marital relation created this right, and it continued to exist in law to the death of the husband; and this, too, without reference to the will or wishes of the husband.”

See, also, note to Eichorn v. Railroad, etc., Co. (La.), 3 Am. & Eng. Ann. Cas. 103.

It is the claim of the plaintiff that the question here is analogous to the one presented to this court in Clinton v. Laning, 61 Mich. 355 (28 N. W. 125), where a father brought action against the sellers of liquors to recover damages for loss, by being compelled to support an adult son given to drink, who became intoxicated at defendants’ tavern and sustained injury. It was there held that contributions, whether voluntary or forced, may be included as an element of damages.

We are of opinion that the second question should be answered in favor of the plaintiff, and that the circuit judge should have permitted the case to go to the jury, under the proposed evidence, to determine as to the liability of defendant; and, if any was found, to assess damages, if any, for the contributions, voluntary or forced, that would probably have been made by deceased in favor of the widow during her probable life, if not exceeding the probable life of decedent, and for the child during its minority.

For the error pointed out, the judgment is reversed, and a new trial granted.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, j.

text:
    MINTZ v. JACOB.
    1. Election of Remedies — Inconsistent Theories — Assumpsit.
    The commencement of an action upon one of two inconsistent claims amounts to an election, and, although the action may be discontinued and recommenced, the plaintiff may not maintain suit upon the abandoned theory.

      2. Same — Fraud—Waiver of Tort — Assumpsit.
    It is not an election, which would bar a subsequent action of tort, for plaintiff to commence in assumpsit under 3 Comp. Laws, § 10421, for fraud in obtaining money through false pretenses.
    3. Same — Constitutional Law.
    A statute permitting a plaintiff to commence an action, based upon fraudulent representations or conduct, in assumpsit, is within the legislative authority.
    4. Same — Estoppel.
    No estoppel arises from plaintiff’s attempt to commence an action of assumpsit by capias under 3 Comp. Laws, § 9998, so as to bar or defeat a subsequent action ex delieto for the same fraud, after being nonsuited in the original cause.
    Error to Wayne; Hosmer, J.
    Submitted October 6, 1910.
    ( Docket No. 9.)
    Decided November 11, 1910.
    Case by Samuel Mintz against Ben B. Jacob for fraud. Judgment for defendant on motion to quash the writ. Plaintiff brings error.
    Reversed.

      Philip A. McHugh and William Henry Gallagher, for appellant.

      Miner, Anhut & Chaddock (John Miner, of counsel), for appellee.
   Hooker, j.

Claiming that defendant had aided and abetted one Rappapord in securing, through false pretenses, from the plaintiff, a sum of money to be used by the latter in redeeming certain alleged diamonds, then in pawn to the defendant, plaintiff brought assumpsit under 3 Comp. Laws, § 10421, on September 8, 1909, commencing the action by capias. The writ was afterward, and on October 4, 1909, quashed for failure to file a declaration. A voluntary nonsuit was thereupon submitted to by plaintiff, but the order was not entered. On October 7, 1909, a new and similar action was begun, whereupon defendant pleaded the pendency of the former action, and this plea was sustained, and the writ quashed. On January 12, 1910, plaintiff instituted an action of trespass on the case for the same fraud and deceit. Capias issued, and defendant was arrested for a third time. The defendant’s counsel thereupon moved the court to quash the writ and vacate the order holding defendant to bail, upon the ground that plaintiff had by his first two prosecutions in assumpsit elected his remedy, and was thereby precluded from thereafter suing in trespass on the case for the same cause, which it is maintained, is a different and inconsistent remedy.

“(10421) Section 1. The people of the Stateof Michigan enact, that in all cases where, by the fraudulent representations or conduct of any person, an injury has been or shall be produced, either to the person, property or rights of another, for which an action on the case for fraud or deceit may by law be brought, an action of assumpsit may be brought to recover damages for such injury, and in all such cases a promise shall be implied by law to pay all just damages arising from such fraud or deceit, and may be so declared upon.”

The affidavits for capias and the declarations in the three actions were similar, if not identical, in the description of the wrong sued upon, and the measure of damages in all would be the same. Under the statute referred to, it was optional with the plaintiff to select either form of action. It is settled by our decisions that, where a plaintiff has a choice between inconsistent claims, the commencement of action upon one theory constitutes an election, and, while he may discontinue and sue again upon the same claim, he cannot be allowed to sue upon an inconsistent claim. Thus one who sues for the price of a horse sold by him, or for damages, for a breach of the contract cannot, after discontinuance or defeat, maintain an action of trover for the unlawful conversion of the horse, or replevin for its unlawful detention. The reason is apparent. Having affirmed the contract and the ownership of the defendant by the first suit, trover or replevin would be an inconsistent claim. This rule is not confined to instances where the actions are assumpsit and an action ex delicto. After assumpsit for a breach of contract, another action of assumpsit to recover the consideration paid on the contract upon the ground of rescission will not lie when the plaintiff had a choice of remedies. It is the inconsistency of the demands, which makes the election of one right of action an estoppel against the subsequent assertion of the other, and not the fact that the forms of action are different. Doubtless resort to one remedy may be conclusive of the exercise of a choice between inconsistent claims, and constitute an estoppel, but we think not in this case. At common law an action of assumpsit would not lie in this case, and this declaration would be bad on demurrer, for it sets up and relies on the fraud, and does not state a cause of action resting on contract. There would be no estoppel by the attempt to bring assumpsit, for the reason that there was no right to bring assumpsit, and plaintiff might afterwards sue in case.

But our statute gives the right to a plaintiff in a case like this to set up the fraud and deceit, and recover the damages suffered either in an action of case, or, in form, assumpsit, and there is no inconsistency, for in each the same wrong is alleged and the same injury. The legislature has the power to permit recovery for a tort in an action in form ex contractu if it chooses to do so, as we intimated in Hallett v. Gordon, 122 Mich. 573 (81 N. W. 556, 82 N. W. 827), where we ordered a new trial in a case somewhat similar to this. (See, also, Hallett v. Gordon, 128 Mich. 364 (87 N. W. 261). In some States the differences in form of action are abolished, and all declarations or petitions merely allege the facts relied on. This is within the legislative authority, and in our former Constitution the Supreme Court was given authority to make rules with a view to simplifying the practice. Const. 1850, art. 6, § 5. The cases bearing on the question discussed will be found in 2 Michigan Digest, p. 742, under the title “Election of Remedies,” and, in our opinion, fully support the conclusion that we have reached in this case. See 15 Cyc. p. 259 et seq.; 9 Cur. Law, p. 1037; 13 Cur. Law, p. 1397.

Counsel for the defendant urge in further support of their claim that a capias for a cause of action alleged to arise upon contract must be brought under section 9996,3 Comp. Laws, and that such section gives the right to plaintiff to have a capias issued and arrest made without an order to hold to bail being previously indorsed, and the further right to a bond in twice the amount that the plaintiff is entitled to recover, as shown by the affidavit, while section 9998 covers claims for damages other than those arising upon contract express or implied, and in these an order to hold to bail in a discretionary sum to be fixed by the magistrate must precede the arrest, and therefore plaintiff, having first elected to proceed under the former, is now estopped to commence under the latter, section. The sections read as follows:

“(9996) SEC. 13. Personal actions arising upon contract, express or implied, may be commenced by capias ad respondendum only to recover damages for any breach of promise to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment, or in case of fraud or breach of trust, when the plaintiff, or some one in his behalf, shall make and attach to such writ an affidavit, stating therein that the plaintiff has a claim for damages against the defendant for the cause of action stated in the writ, and upon which he believes that the plaintiff is entitled to recover a certain sum, being more than one hundred dollars.”
“ (9998) Sec. 15. Personal actions maybe commenced by capias ad respondendum, in cases of claims for damages other than those arising upon contract, express or implied, where an order for bail shall be endorsed on the writ by a judge of the court from which the writ issues, or a circuit court commissioner, directing the amount in which bail is to be taken.”

Without implying the correctness of defendant’s claim were the facts as stated above, we have only to look at the several affidavits to see that they are not, and that defendant has nothing but the fact that the action first brought was in assumpsit to support his claim. In each case the affidavit set up fraud and deceit, and made no claim to damages arising on contract. It alleged neither that it arose on contract nor the “ belief that plaintiff was entitled to a sum certain,” as required by section 9996. If we may credit the defendant’s brief, an order to hold to bail as required by section 9998 was obtained in each case, and, in short, it is obvious that plaintiff, was attempting to proceed under section 9998, in each instance, which he had the clear right to do, upon the facts set forth in any one of his affidavits, either in assumpsit or case under the statute (3 Comp. Laws, § 10431). All three actions were identical in substance, differing only in the name. The elements of an estoppel are lacking, and there was no merit in the motion to quash, which should have been denied.

The judgment is reversed, with costs.

Bird, C. J., and Ostrander, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    GEHL v. PITTSBURG COAL CO.
    1. Master and Servant — Safe Place — Proximate Cause.
    No liability for failure to furnish a safe place arises between employer and employé where the unsafe condition consisted of holes that had been cut in a dock upon which the servant was employed, and that were not shown to have contributed ' to his death.
    2. Same — Warning and Instructing Servant — Knowledge oe Servant.
    Failure to warn a servant is not actionable where no evidence tends to show that the servant did not know of the alleged dangers, that he was not warned, or that the negligence caused his injuries.

    3. Same — Covering Cogs — Statutes — Contributory Negligence.
    An employe who was killed in a place of danger to which he voluntarily went, among moving machinery, in a place not intended for men to work, except when the machinery had been stopped, was guilty of contributory negligence which precluded plaintiff’s recovery for the failure of his employer to cover dangerous cogs, under Act No. 113, Pub. Acts 1901.

    Error to Chippewa; Steere, J. Submitted
    October 7, 1910.
    (Docket No. 16.)
    Decided November 11, 1910.
    Case by Minnie Gehl, administratrix of the estate of Albert Gehl, deceased, for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      John W. Shine, for appellant.

      Warner & Sullivan, for appellee.

       As to duty to warn or instruct servant, see note in 44 L. R. A. 33.

       On question of contributory negligence as defense against violation of master’s statutory duty, see note in 13 L. R. A. (N. S.) 1153.

   Hooker, J.

This case is the outgrowth of a distressing accident, in which a young man lost his life. He was fireman on a derrick used for unloading coal from a vessel. The derrick was upon a dock, and he went below the deck or floor of the derrick for some purpose unknown, though the most probable theory is that it was to loosen the bolts in the cylinders of a small steam engine, thus allowing the water to escape and prevent freezing during the coming night. This engine was not in operation at the time, though the machinery of the derrick was, and he was caught and crushed between the cogs of a pinion and of a circle', the operation of which turned the boom or arm of the derrick. The negligence charged was:

(1) Not furnishing a safe place to work.
(2) Not warning deceased of the dangers of the place.
(3) Not covering the gearing mentioned.

The first claim relates to some holes in the dock; but there is no testimony showing that the deceased stepped in any hole, or that they in any way had to do with the accident. The most of them were cut in the dock by the firemen, of whom he was one, for the purpose of putting a hose through to obtain water.

Second. Failure to Warn. We have no evidence that the deceased was not aware of all dangers, nor is there any evidence that he was not warned by defendant. Neither is there anything tending to show that a failure to warn was the cause of the accident.

Third. Failure to Cover the Cogs of the Pinion. It is said that it does not appear that it was possible to cover the gearing in which deceased was crushed, and that there was no legal obligation to protect it in any way further than was done. It is true that it was not in a place where men worked, except as they went below to oil, tighten up, or repair and adjust the machinery, or loosen the cylinders, all of which might have been done with safety, and usually was so done, when the machinery was not in motion. We are not sure that the machinery of this derrick might not be held to be within the provisions of section 8, Act No. 113, Pub. Acts 1901, though there are strong reasons for saying that it is not.

We do not find it necessary to decide that question, however, for the reason that the undisputed proof leaves no room for an inference that the deceased was not, at the time of the accident, voluntarily in a place of extreme danger, which was apparent, and which any person of his age and ordinary sense would have known; and while, under the decisions of Sipes v. Starch Co., 137 Mich. 258 (100 N. W. 447), and Swick v. Cement Co,, 147 Mich. 466 (111 N. W. 110), the application of the statute to this case, were it applicable, would preclude the doctrine of assumption of risk as a defense, these cases do not preclude the defense of contributory negligence. On the contrary, the latter case shows that the statute has not cut off that defense. We therefore feel constrained to say that the undisputed evidence shows that the accident was wholly due to the victim’s own carelessness.

The judgment is affirmed.

Bird, C. J., and Ostrander, Moore, and McAlvay, JJ., concurred.


text:
      In re CHOATE’S ESTATE. BONINE v. GAGE.
    Appeal and Error — Amendment—Facws Arising apter Deoree.
    In a suit in chancery for an accounting in which, on appeal, after a decree for defendant, the circuit judge presented a return showing that an error had been made in the record as to his findings, and on petition of the defendant to present additional facts that affect the merits of the case and that arose after the decree, the record will be remanded for amendment.
    Ira B. Gage, executor of the estate of Nelson F. Choate, deceased, presented his final account in the probate court for the county of Cass. It was contested by his successor, Wilbur G. Bonine, administrator de bonis non. Both parties appealed from the order entered in probate court. A judgment of the circuit court was entered on appeal, charging the executor with the value of certain stock of deceased. Both parties took out writs of error: On motion to remand the record for correction.
    (Docket No. 64.)
    Granted, November 11, 1910.

      James H. Kinnane, for the motion.

      M. L. Howell, contra.

   Moore, J.

The original case was submitted at the June term. It involves the accounting of Mr. Gage as executor of the estate of Nelson Choate, deceased. Certain stock belonging to Mr. Choate came into the possession of Mr. Gage, who became a bankrupt and then resigned as executor. Mr. Gage kept this stock with his private papers in the vault of a bank where he was cashier. The bank failed, and Mr. Kimmerle was appointed trustee in bankruptcy, and took possession of the stock, and refused to give it up. It is sought to have Mr. Gage and his bondsmen pay for this stock upon the basis of what it might have been sold for, less its present value. The circuit judge found in favor of the administrator.

Since the case came into this court the circuit judge has sent in an informal return, to the effect that there is a mistake made in the record as to what his findings were. Mr. Gage, executor, has now filed a petition which states, in substance, that he has now been able to secure the stock, and to bring it into court for the administrator de bonis non, and asks leave to be allowed to do this, or to have the record remanded, with leave to do it in the lower •court.

I think an opportunity should be given to have the return of the judge corrected, and to have the record show the present status of the stock, so that a complete disposition of the controversy can be made.

Ostrander, Hooker, McAlvay, and Brooke, JJ., •concurred.