author: Steere, J.

text:
    BIALY v. BIALY.
    1. Divorce — Alimony—Permanent Allowance to Wife.
    The court in chanoery in this State has no inherent, common-law power to decree permanent alimony; its authority is purely statutory and is conferred by 3 Comp. Laws, § 8638 et seq., as amended.
    S. Same.
    Alimony, by whatever authority it is conferred, is an incident of marriage, and is based on the underlying principle that it is the duty of the husband to support his wife.
    3. ’ Same — Amount—Husband and Wife.
    In determining the amount of such alimony in gross, the judicial discretion is to be exercised according to this principle of maintenance and support, upon an equitable view of all the circumstances, considering the past relations and conduct of the parties, the health and age of each, whether or not either is responsible for the support of others, the amount and source of the husband’s property, their station in life and manner of living, and what sum Will leave the wife in an equal financial condition to that whioh she would have possessed if the husband’s conduct had been correct and the marriage remained undissolved.
    4. Same.
    While some authorities suggest that a third of the husband’s estate or income would be regarded as an equitable proportion, and others indicate one-half, no definite rule of law can be predicated upon such theories or suggestions, but each case must be determined on its own basis.
    5. Same — Descent and Distribution — Distinctions.
    Out of an estate belonging to complainant’s husband of about $350,000, an award of $100,000 to the wife as permanent alimony was not excessive; nor was the wife entitled to more, on the theory that she should reoeive as large a proportion as she would have received after the death of her husband out of his estate.
    Appeal from Bay; Collins, J.
    Submitted November 7, 1911.
    (Docket No. 55.)
    Decided December 8, 1911.

      Bill by Carrie A. Bialy against Robert C. Bialy for divorce. From a decree for complainant, both parties appeal.
    Affirmed.

      Stoddard & McMillan, for complainant.

      Curtis E. Pierce and Luther G. Beckwith, for defendant.
   Steere, J.

On the hearing of this suit in the trial court a decree of absolute divorce was granted complainant with an allowance of $100,000 permanent alimony, consisting of real estate valued at $2,250 and $97,750 in money. From this allowance both parties appeal; complainant contending it is insufficient, and defendant that it is excessive.

The grounds for divorce alleged in complainant’s bill, which was filed August 20, 1909, are desertion, extreme cruelty, and adultery. Defendant’s answer consists of a concise and categorical denial, in legal form, of complainant’s charges. After issue was joined many and lengthy intermediary proceedings were had, and voluminous testimony was taken, before the commissioner, by deposition and in open court; the printed record consisting of 836 pages. In May, 1910, the case was heard on depositions and testimony taken in open court. Decree was filed January 24, 1911. The testimony discloses that both parties now desire a divorce. In the inception of their troubles defendant had importuned complainant orally and in writing to consent to a legal separation, suggesting that she institute the proceedings. She was opposed to a separation and refused at that time either to get a divorce herself or allow him to do so; but finally, two years later, as a result of his conduct towards her, she filed this bill on her own initiative. No collusion is claimed. Her charge of adultery and claim for heavy alimony do not seem to have been acceptable to defendant. The grounds on which a divorce was granted are not stated in the final decree; but, in his opinion, filed in the case, the court states them as “ desertion and cruel treatment,” and determines it unnecessary to pass upon the other charge in the bill. That charge was and is energetically urged by complainant’s solicitor chiefly for its bearing on the question of alimony, around which the serious work of this litigation centers, and which is the only issue raised in the appeals taken by the respective parties.

At the time of the trial complainant was 52 years of age and defendant 56. The couple have never had children, and it is not shown that either has any one dependent upon him or her. They have resided in Bay City, Mich.; most of their lives. They were married in March, 1877. He was then just getting his start in life, having accumulated by his own efforts a house and lot and other assets collectively worth in the neighborhood of $1,400. He was then clerking in a hardware store in which he had a small working interest, receiving $9 per week and 10 per cent, of the profits of the business, making his income about $20 per week. She was married from her mother’s home and had no property in her own right at that time. Her mother died in 1879, leaving complainant a house and two lots, and she also received about $600 as the proceeds of a will contest in which she was interested. The $600 was invested in a mortgage in her name. In 1881 defendant bought an increased interest in the hardware business, and to raise money for that purpose they together mortgaged the real estate which each owned for 'the sum of $1,800. They were then living in harmony, working together, and he had general charge of the property of both. While the details are not altogether clear, it appears quite satisfactorily that she had property which had come to her by inheritance approximating in value $2,800, and that some of it went into his business and some of it into a home for them. At the time this case was tried she owned in her own right property estimated as worth about $3,800. During his life defendant has, by thrift, industry, business ability, and judicious investmenta, accumulated a fortune of approximately $350,000, consisting of an extensive hardware business, real estate, stocks, bonds, and other assets.

These parties lived together as husband and wife in their home in Bay City from 1877, when they were married, until 1904, when defendant went to Chicago to take charge of a business there in which he had become interested. Thereafter they were separated at intervals until 1907, when all relations as husband and wife ceased. In the early days of their'married life, while he was struggling for advancement in the business world, they seem to have lived happily together, with mutual confidence. He devoted himself assiduously to his business, while she cared for their home. She was a thrifty housewife and managed her domestic affairs economically, doing for many years all her own housework. The tastes and habits of both were simple, prudent, and frugal. After a time, as they became more prosperous, they procured a better home, worth in the neighborhood of $5,000, which they furnished appropriately and moved into. After that time she had help in the house and a horse and buggy for her use; but they continued to live modestly and economically, spending little for pleasures or display. During' the time they lived together their annual expenses for both, including clothing and travel, would probably not at any time exceed $2,000, and much of the time, especially in the earlier years, would be less than $1,500. After they ceased to live together, defendant supplied complainant with means approximating $100 per month. Serious differences manifested themselves between the parties about the time defendant became interested in business in Chicago in 1904, where he went and resided for a time. Complainant contemplated joining him and establishing a home there; but he objected, and insisted on their living apart, as they did much of the time until August, 1907, when he finally refused to live with her as his wife at all. He had been growing tired of his wife, and was desirous of being freed from her. He began soliciting- her for a separation, and endeavored to persuade her to get a divorce from him. Writing to her from Chicago on January 8, 1905, he says:

“ I have been thinking how little attention you get from me and how cold I am to you. * * * We do not go anywhere, and all I care for is work. * * * So I have thought that we would be separated, either annul the marriage, or divorce. * * * ”

In another letter he wrote:

‘ ‘After this I would never feel like living together again, and at the same time it is no fault of yours or anything lacking on your part. * * * I have lost my love and admiration that was once there. * * * I do not want you to come here and live with me. * * * ”

The complainant was opposed to any separation, and solicitous of a reconciliation at that time. Failing in his efforts to persuade her to take the initiative, defendant began divorce proceedings himself in Cook county, 111., in 1901?; but they were not successful. Much of the voluminous testimony is devoted to the causes which brought about this estrangement. It is not necessary to rehearse them here; but one need not read between the lines to discover that defendant had transferred that “feeling of love and admiration that was once there” to other affinities. The facts proven in that connection are very difficult to reconcile with the theory of innocence on his part. That complainant is entitled to a divorce and substantial alimony is clearly shown.

A decree of absolute divorce has been granted separating the parties for life. Defendant has a fortune accumulated during their married life. Complainant has in her own name money and property amounting to between $3,000 and $4,000. She is not shown to be at fault, and is entitled to alimony proportionate to her circumstances and the fortune of her husband. The serious question before us is: What is just and equitable between the parties, in the light of the testimony, under the rules of law applicable to permanent alimony ?

In behalf of complainant it is urged that in a case of this kind, where the wife is blameless and the divorce absolute, there should be either a final division of the estate, treating the same as though the marriage had been dissolved by death, allowing her the rights of a widow as in case of probation of said estate, which in this case would be one-half, or that, having not alone by labor and economy but by contributions from her independent estate materially aided in the accumulation of her husband’s fortune, she should be treated as a partner, equitably entitled to a half of the result of their joint labors on dissolution of that partnership.

In behalf of the defendant it is contended that the amount allowed is excessive and in violation of the elementary principles of alimony which grow out of the obligation to support, arising from the relation of husband and wife; that, though alimony may be allowed in a gross sum and permanent, it should, nevertheless, be limited to the wife’s maintenance for life, corresponding in degree to the support given her while living with her husband, to their social standing and position, general manner of living, taking into consideration also his circumstances and pecuniary ability. It is pointed out that at 53 years of age complainant’s expectancy of life is 18 years, that a much less sum than the amount granted would not only meet all her possible necessities but furnish her during the remainder of her life with comforts and luxuries far in excess of those enjoyed at any time during coverture or before.

Our chancery courts have no inherent, common-law power to decree permanent alimony. Perkins v. Perkins, 16 Mich. 162. The authority is purely statutory, and is conferred by chapter 232, 3 Comp. Laws, supplemented by Act No. 259, Pub. Acts 1909; the latter simply being a requirement that all questions of dower shall be disposed of when divorce is granted and some provision in lieu thereof included in the decree.

The most important provision of the divorce law bearing on the questions before us, and which gives the court its power to act, is section 8638, 3 Comp. Laws, which is as follows:

“ Upon every divorce from the bond of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate real and personal, to be paid to her in gross or otherwise as it shall deem just and reasonable, having regard to the ability of the husband and the character and situation of the parties, and all the other circumstances of the case.”

In that connection section 8639 provides that, when the marriage shall be dissolved and a divorce decreed for various acts of misconduct on the part of the husband, the Wife shall be entitled to dower in the lands in the same manner as if he were dead.

In the case at bar there are no children of the marriage committed to complainant’s care and custody, and, so far as disclosed by the record, no one dependent on either of the parties. Within the scope of discretionary power given to the court, he was authorized and required to decree her such alimony as he deemed “just and reasonable, having regard to the ability of the husband and the character and situation of the parties and all other circumstances of the case.” To disturb his decree we must find that he either acted in violation of the statute or some rule of construction applicable to it, or that in the exercise of the broad discretion conferred upon him he has failed to discern what under the law was just and reasonable.

While this is a statutory award, of permanent alimony in a gross sum, under a decree of absolute divorce ending the domestic relations and community of interests, the significance of such an award should not be lost sight of. Alimony, by whatever authority it is conferred, is an incident of marriage, and based on the underlying principle that it is the duty of the husband to support his wife, not necessarily to endow her. Primarily it signifies, not a certain portion of his estate, but an allowance or allotment adjudged against him for her subsistence, according to his means and their condition in life during their separation, whether it be for life or for years. In practical application an award of permanent alimony in a gross sum may result in a division of the husband’s estate; but the controlling element not to be lost sight of is his compulsory contribution for her support and maintenance under obligations of the marriage contract.

The judicial discretion afforded by the statute is to be exercised, according to this established principle of maintenance and support, upon an equitable view of all the circumstances of each particular case; but there is no absolute rule for limiting this discretion unless it be abused. The court should take into consideration the past relations and conduct of both parties, the health and age of each, whether or not either is responsible for the support of others, the amount and source of the husband’s property, their station in life and manner of living, and especially, in view of all the testimony in the case, what sum will leave the financial condition of the wife during her life not inferior to what it would be if the husband’s conduct had been correct and the marriage undissolved.

In an examination of the cases cited by counsel, and many others, bearing on the award of permanent alimony, while they are instructive and helpful, we fail to discover any specific case which can be taken as a perfect precedent for the one at bar. In the very nature of these proceedings, where such broad discretionary powers are conferred and exercised, we find the familiar saying that no two cases are alike particularly illustrated. Some authorities suggest that, while no two cases are exactly alike, a basis of one-third of the husband’s income or estate might be regarded as a matter of course proportion to start with in considering permanent alimony, grading upward and downward according to the circumstances of the particular case. English and American authorities are to be found indicating that view. In Hamilton v. Hamilton, 37 Mich. 603, Justice Cooley, while deeming the award of one-half as excessive, speaks favorably of one-third as a proper allowance in that case. Such methods are, however, little more than suggestions and cannot be properly termed even a matter of course rule of law.

Authority also can be found tending to support complainant’s claim that a moiety may be considered as a basis in some instances, on the theory of a life partnership; alsos that the divorce should be treated as though death had dissolved the marriage, and the estate may thereupon be divided accordingly.

A basis of one-half or even more might be just and equitable in a case where a large proportion of the property came from the wife, or her business ability and special efforts were largely instrumental in acquiring it. In this State, however, as a matter of law, business partnerships between husband and wife are not recognized, and on the facts in this particular case we think the trial court correct wherein he says:

The financial history of the defendant is that, starting as a poor boy, he has, by practically his unaided efforts, from the exercise of his ability to make and save money, accumulated a large fortune. * * * I do not believe that the contribution to the capital of the two by the wife has been a material factor in the accumulation of this fortune. Many who have larger contributions have decreased, rather than increased, their fortunes. The result in this case is rather the effort of rare, born, educated, and exerted power to make and save money.”

Neither can we adopt the proposed fiction that the husband is to be considered as dead by reason of the divorce, and distribution of his estate should be forthwith had. As a figure of speech it may be said that he is dead to her, but to adopt it as a legal fiction under which homicide by marriage and divorce is recognized and the estates of erring husbands distributed to divorcees would be to offer a premium on progressive matrimony. Legal fictions, though handy, are dangerous tools. When it actually comes to administering the estate of her husband, a wife must wait until he is actually dead. The wronged wife can always secure separate maintenance and legal protection without absolute divorce.

While it may be computed, under the wife’s expectancy of life, that a smaller sum would maintain her in comfort, as well supplied with all the comforts and luxuries as she has heretofore been, we cannot think that the award in this case is excessive. The delinquencies of the husband, and his financial circumstances, entitle her to an amount which will assure her beyond question generous and liberal support during her remaining years, according to her and his station in life. The learned circuit judge manifestly spent much time and thought upon this case. He saw and heard the witnesses, and familiarized himself with the testimony during the progress of a long trial. We think he attuned his discretion to proper rules, with a comprehensive and equitable view of all the questions involved. Our conclusion is that the award of alimony was reasonable and just under the circumstances and situation of the parties.

The decree is affirmed, without costs, except that each party will pay one-half the cost of printing the record.

Ostrander, O. J., and Moore, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    GREACEN v. BUCKLEY & DOUGLAS LUMBER CO.
    1. Attachment — Corporations—Venue.
    It is the policy of the law to require all suits to be brought in the county where either plaintiff or defendant resides.
    2. Same — Statutes.
    Under 3 Comp. Laws, § 10468, an attachment may issue in a county where the plaintiff resides against a corporation defendant which has its principal place of business in a different county, upon an affidavit showing such facts, though it does not show any of the usual grounds for attachment as required by 3 Comp. Laws, §§ 10555, 10556.
    8. Same — Statutes.
    Although provisos in statutes are usually intended to limit or qualify what precedes them, the proviso added to the act which prescribes the manner of service of writs upon corporations, by Act No. 242, Pub. Acts 1887, providing that “in any county of the State where said plaintiff may reside other than the one wherein the principal office of such corporation may be located, a writ of attachment may be the first process against such corporation,” etc., extends rather than restricts previously existing remedies against corporations.
    Certiorari to Kalkaska; Lamb, J.
    Submitted November 7, 1911.
    (Docket No. 59.)
    Decided December 8, 1911.
    Attachment by James Greacen against the Buckley & Douglas Lumber Company. Defendant moved to dissolve the writ for alleged insufficiency of plaintiff’s affidavit. An order denying said motion is reviewed by defendant on writ of certiorari.
    Affirmed.

      Wilson, Wilson & Rice, for appellant.

      Ernest O. Smith, for appellee.
   Ostrander, C. J.

The suit was begun in the circuit court by attachment, the affidavit for the writ was made by the plaintiff, and the only reason for issuing the writ stated therein is that the defendant is a Michigan corporation with principal offices located in the county of Manistee, in this State, and the plaintiff is a resident of the county of Kalkaska. Real property of defendant situated in Kalkaska was levied upon by the sheriff and appraised. Defendant appeared specially, and moved to quash the writ and dissolve the attachment, because no sufficient ground for issuing the writ was stated in the affidavit therefor. The motion was denied.

The question is whether 3 Comp. Laws, § 10468, authorizes a proceeding in attachment against a domestic corporation, debtor, when and for the sole reason that the plaintiff, creditor, resides in a county other than the one where the debtor’s principal office is located. It has not before been presented in this court. It was contended in Michigan Dairy Co. v. Runnels, 96 Mich. 109 (55 N. W. 617), that the statute as amended had the effect of denying the remedy, as against domestic corporations, except in the cases specified in the statute. The contention was not sustained; The section of the statute in question appears as section 3 in chapter 116 of the Revised Statutes of 1846, reading:

“Suits against corporations may be commenced by original writ of summons, or by declaration, in the same manner that personal actions may be commenced- against individuals, and such writ, or a copy of such declaration, in any suit against a corporation may be served on the presiding officer, the cashier, the secretary, or the treasurer thereof; or if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner, as the court in which the suit is brought may direct.”

It was amended in 1887 (Act No. 242, Pub. Acts 1887), so as to read as follows :

“Suits against corporations may be commenced by writs of summons or by declaration, in the same manner that personal actions may be commenced against individuals, and such writ or a copy of such declaration in any suit against a corporation shall he served on the presiding officer, cashier, secretary, or treasurer, or any other officer or agent of such corporation, or by leaving the same at the banking house or office of such corporation, and may be served in any county of the State where the plaintiff resides: Provided, that in any county of the State where said plaintiff may reside, other than the one wherein the principal office of such corporation may be located, a writ of attachment may be the first process against such corporation, which shall be served in the same manner as other writs of attachment issuing out of the court wherein suit is commenced, and upon the return of such service being made such corporation shall be deemed to be in court, and the like proceedings, as near as may be, shall be thereupon had as in cases of suits against individuals. All acts or parts of acts inconsistent herewith are hereby repealed: Provided, further, that the attachment proceedings as herein provided for shall not apply to railroad companies or corporations whose right of way, or any part of the same, is within the boundaries of the State of Michigan, nor to navigation companies or corporations.”

The general policy of our laws requires all suits to be brought in the county where one or other of the parties resides. Domestic corporations, like individuals, have a location or residence in some county of the State. Some of the statutes which provide for the organization of domestic corporations provide also for the manner in which process of the courts shall be served upon them, and in that respect must be followed. Dewey v. Manufacturing Co., 42 Mich. 399 (4 N. W. 179). And, while appearance may waive the failure to serve process in the manner pointed out by the statute (Thompson v. Benefit Association, 52 Mich. 522 [18 N. W 247]), seasonable objection to the jurisdiction would require the suit to be dismissed (Detroit, etc., Ins. Co. v. Saginaw Circuit Judge, 23 Mich. 492).

It appears in the petition for the writ of certiorari that defendant corporation is doing business under the provisions of Act No. 232, Pub. Acts 1903; that the location of its office for the transaction of its business is at the city of Manistee, in the county of Manistee; and that it has no office in the county of Kalkaska. By section 30 of the-act under which it is incorporated it is provided that while-such corporations may lawfully establish an office or offices without this State in the United States, and may-hold stockholders’ and directors’ meetings thereat, it shall always have one business office in this State, and that-service of any notice or process may be made upon the-agent in charge of such office which shall be binding upon, such corporation. By section 13 of the act, every corporation existing thereunder may sue and be sued in any court of law or equity, with the same rights and obligations as a natural person.

The statute involved here (section 10468) is general in its terms and operation, applying in all cases except in those-where a special and exclusive method of service of process, is provided for. It will be perceived that, until the proviso is reached, the amendment clearly relates only to the method of service of process, and is evidence of a legislative intention to place domestic corporations more nearly upon a footing with individuals in respect to obtaining-jurisdiction over them in counties other than those in which they are located.

Provisos in statutes are supposed to be intended to limit,, or qualify, what precedes them. This proviso, if our examination of the statutes has been exhaustive, contains the only express provision of the law for the issuing of writs of attachment, out of courts of record, in suits against domestic corporations. In practice, attachments had been issued against domestic corporations under the general statute. 3 Comp. Laws, §§ 10555, 10556. That statute permits attachments against debtors to be sued out in plaintiff’s county or in defendant’s county, if the debtor has property subject to attachment in the county, and section 10560 requires execution of the writ to be completed by service upon the defendant in the county in which the property is seized if to be found there, and if not so found, then in any county. According to the proviso, writs of attachment against domestic corporations “ shall be served in the same manner as other writs of attachment issuing out of the court wherein suit is commenced. * * * ” We must remain in some doubt concerning the real purpose which this proviso was intended to serve. Assuming that the purpose of the whole amendment was in harmony with the evident purpose of the section as it stood before amendment, namely, to provide for the maintenance of suits against domestic corporations in counties other than the counties of their residence, this purpose is served without construing the provision as one stating a ground for attachment not contained in the general statute governing such actions. This is true if we treat the first proviso as declaratory merely of the right to attach the property of domestic corporations, a right which the second proviso denies as against certain corporations. But the assumption itself is not well supported by the language of the provisos. The language is not apt to limit or qualify that which precedes it. According to the practice prevailing at the time, the creditor of a domestic corporation, residing in a county other than the one in which his debtor resided, needed no new legislative sanction for proceeding by attachment in his own county if the debtor had property there subject to attachment. And, unless some privilege arising from the fact of residence was to be given to the creditor, no good reason can be assigned for mentioning plaintiffs residing in a county “other than the one wherein the principal office of such corporation may be located.” It was said in Michigan Dairy Co. v. Runnels, supra, referring to this proviso:

“ It cannot be doubted, we think, that this was intended to extend, rather than to restrict, remedies against such corporations.”

And again:

“ The provision * * * for attachment in counties other than the home office of the corporation is an enlargement of the remedy. * * *”

No enlargement of the remedy was accomplished unless the fact of residence in and of itself gave the right to the writ. The language employed best sustains this idea of the legislative purpose. We feel obliged to hold that the affidavit for the writ in the case at bar was sufficient in law. It will be so certified to the trial court.

Steere, Moore, Brooke, and Stone, JJ., concurred.


author: Stone, J.

text:
    NEWCOMB-ENDICOTT CO. v. FEE.
    1. Corporations — Partnership—Estoppel —Debtor and Creditor — De Facto Organization.
    Plaintiff was not entitled to hold as a copartnership the members of a corporation, which had, at the time the debt was incurred, filed its articles of incorporation with the secretary of State, but had omitted to file the same with the county clerk as required by Act No. 282, Pub. Acts 1908, upon evidence showing that goods were sold to the company by its name, and plaintiff’s agents did not know whether the defendants were a corporation or a partnership, and that plaintiff did not extend credit to the defendants as copartners, or rely on their having previously dealt with plaintiff as a partnership; plaintiff was estopped to question the defacto existence of the corporation.

    2. Same.
    Since the statute contemplates the complete organization of the association and the election of officers before the recording of the articles, failure to file the articles of association with the county clerk did not prevent the corporation from having legal existence except as to the State, which alone could object to its carrying on business.

      3. Same.
    Where an attempt has been made to organize a corporation under a valid act, and the question is one of regularity merely, parties recognizing its legal corporate existence by dealing with it have no right to object to any irregularity in such organization.
    4. Same.
    Two things are necessary to be shown in order to establish a corporation defacto, viz.: (1) The existence of a charter or some law under which a corporation with the powers assumed might lawfully be created; (2) a user by the party to the suit of rights claimed to be conferred by such a charter or law. Eaton v. Walker, 76 Mich. 585 (43 N. W. 640, 6 L. B. A. 102).
    5. Same — Evidence.
    If the law exists and the record exhibits a bona fide attempt to organize under it, very slight evidence of user beyond this is all that can be required.
    Error to Wayne; Codd, J.
    Submitted November 8, 1911.
    (Docket No. 70.)
    Decided December 8, 1911.
    Assumpsit in justice’s court by Newcomb-Endicott Company against Robert L. Eee and others for goods sold and delivered. Plaintiff recovered and defendants appealed to the circuit court. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Luman W. Goodenough and Irvin Long, for appellant.

      Barnes & Stowers, for appellees.

       Partnership liability of stockholders in case of defective or illegal incorporation, see note in 17 L. R. A. 549.

   Stone, J.

This case originated in justice’s court, where the plaintiff recovered a judgment, and the defendants appealed to the circuit court.

In the first count of the declaration the defendants are sued as copartners, doing business as Fred J. Pound Company. It is alleged that they were indebted to the plaintiff for the price and value of a bill of goods amounting to 1117.90, sold and delivered to the defendants by the plaintiff.

The second count alleges that the Fred J. Pound Company was a corporation organized and existing under the laws of the State of Michigan, and was indebted to the plaintiff in the above sum for goods sold and delivered to the said Fred J. Pound Company. It is further alleged that the defendants were directors of said corporation during the months of January and February in the year 1909, and during the first 10 days of the month of March, 1909; that it became the duty of such directors, in accordance with the statute, during the months of January and February, and during the first ten days of the month of March, 1909, to join in the making of an annual report of the affairs of the Fred J. Pound Company, the said corporation. It is further alleged that the defendants, well knowing their duty in this behalf, neglected and refused to join in the making of such report during the time above alleged, and continued to so neglect and refuse to join in the making of such report until the 31st day of March, 1909, when their report was made; and the plaintiff alleges that, in accordance with said statute, said defendants became and were liable for all debts of the said corporation, and especially for the debt aforesaid, incurred in the month of July, 1908, to which declaration is added the common counts in assumpsit.

Upon the trial of the case in the circuit court, William H. Anderson was produced as a witness for the plaintiff, and testified that during the years of 1908 and 1909 he was the bookkeeper of the plaintiff, and that the goods sued for were installed in Pound & Co.’s Inn. He did not know who ordered them; witness was not the selling party; that he extended the credit to Pound & Co. in June and July, 1908; that he knew that the defendant Fee was connected with the company. Witness was not familiar with the form of the organization of the company. He did not know whether it was a corporation or a partnership. Defendants’ counsel, when asked if he would admit the amount of the bill, answered as follows:

“ We cannot deny it. We will have to admit it. We will show Mr. Pound bought them, and we suppose it is all right.”

It appeared that the bill had never been paid. On cross-examination the witness testified that he had no personal knowledge what individual bought the goods; that he was asked for credit for the P. J. Pound Company by some one, and he extended credit to the P. J. Pound Company. Witness did not go to the county clerk’s office to find out whether Pound & Co. had filed their articles of association or not. Witness testified that the plaintiff sent statements every two or three months to P. J. Pound & Co. The plaintiff, on re-examination of the witness, offered in evidence the articles of association of the Pred J. Pound Company. The articles show that the three defendants, as incorporators, desiring to become incorporated under the provisions of Act No. 232, Pub. Acts 1903, known as the “ Manufacturing and Mercantile Act,” executed and adopted the articles of association in due form. The articles were signed by the three defendants, and duly acknowledged on the 5th day of June, 1908, before a notary public.» It appears that the articles of association were filed with the secretary of State June 15, 1908, and duly recorded, and that they were filed with the county clerk on March 22, 1909. There was no evidence that the defendants had attempted to carry on business as copartners prior to the execution of the articles above referred to.

Defendant Pee testified that he was president and stockholder of the P. J. Pound Company; that he recollected when the articles of association were executed, and signed the articles; that he supposed they were duly filed, and that he left them with Mr. Bock to be filed; that Mr. Bock was one of the directors. Defendant Bock testified that the articles were duly executed, that they were sent to the secretary of State; that, when they came back, they were copied in the secretary’s record book; that the articles were filed with the county clerk some time in March, 1909; that Mr. Pound was the manager of the said company.

At the close of the testimony counsel for plaintiff made a motion to direct a verdict for the plaintiff, for the reason that the articles of association were not filed in accordance with the statute of the State of Michigan, providing that a corporation shall transact no business until its articles of association have been filed in the office of the secretary of State and with the clerk of the county where the corporation has its principal office — in both places; that the undisputed testimony shows that the articles were filed in the office of the secretary of State June 15, 1908; that the bill for which this suit is brought was contracted in July, 1908, and the articles of association were not filed in the office of the county clerk until March, 1909; and that in the meantime the corporation did carry on business in violation of the. statute, and that these defendants should be held as copartners.

The trial judge held that the corporation was a de facto corporation when the articles were filed in the office of the secretary of State, that the corporation de facto was in existence at the time the credit was extended, and that the credit was extended to the company, and not to the individuals. In his charge to the jury the trial judge used the following language:

“The plaintiff alleges that the copartnership was in existence by reason of their not having filed articles of incorporation in the office of the county clerk until after the credit had been extended. The undisputed testimony shows that the gentlemen named signed articles on the 5th day of June, and that on the 15th day of June those articles were filed with the secretary of State at Lansing. After that time, in the month of July, that year, credit was extended by the Newcomb-Endicott Company to Fred J. Pound Company upon their books as shown in the testimony. I believe that the testimony shows that credit was extended, not to the various defendants individually, hut to Fred J. Pound Company. While it possibly may be that the company had not fully completed all of the requisites of incorporation, and had not filed their articles in the county clerk’s office, still I charge you that they were at that time a corporation de facto under the laws of the State of Michigan, as I understand them, and a person dealing with a corporation de facto is estopped from denying its validity. I charge you that this suit should have been brought for these goods against the Fred J. Pound Company, a body corporate. Your verdict should be for the defendants, no cause of action.”

A verdict was thereupon returned for the defendants, and the judgment followed.

The plaintiff has brought the suit here by writ of error, and the errors relied upon by the appellant in the brief of counsel are:

(8) That the court erred in denying the motion of plaintiff’s counsel, at the close of all the evidence, to direct a verdict for the plaintiff, for the reason that the defendants, not having complied with the statutes of the State of Michigan in regard to filing the articles of association in the office of the county clerk of Wayne county, were not entitled to carry on business as a corporation, and were copartners at the time the articles mentioned in the bill of particulars were purchased.
(4) That the court erred in holding that a corporation de facto was in existence at the time credit was extended, and that credit was extended, not to the individuals composing Pound & Co., but to the de facto corporation.
(5) That the court erred in directing the jury to return a verdict for defendants of no cause of action.

Counsel for plaintiff in his brief says that the only question involved is whether the plaintiff can hold defendants liable as partners for the goods purchased before they had recorded their articles of association with the county clerk. It is the claim of plaintiff’s counsel that recording the articles of association is a prerequisite to corporate existence. The act in question provides as follows:

“ Before any corporation, organized under this act to operate in this State, shall commence business, the president shall cause the articles of association to be recorded at the expense of said corporation in the office of the secretary of State of this State, and in the office of the county clerk in which, such operations are to be carried on.” [Act No. 232, § 9, Pub. Acts 1903.]

The plaintiff insists that this prohibits business dealings in the corporate name, and under corporate liability until the conditions therein specified — i. e., the filing of the articles both with the secretary of State and the county clerk — have been fulfilled. He cites in support of this position Whipple v. Parker, 29 Mich. 369. In that case Justice Christiancy, who spoke for the court, said, on page 379:

“But there was no proof of the filing of the articles with the secretary of State, as required of corporations of this kind before they are allowed to commence business. Comp. Laws 187Í, § 2838. And it was probably for this reason (for the record does not show the ground) that the objection was made that there was no legal evidence of incorporation. But whether this statute does not recognize the corporation as in existence before the filing of the articles, and whether the want of such filing before commencing business is not an objection which can only be made on behalf of the State, as we are inclined to think; or whether the defendant as a member, participating in the formation and in the business of this corporation de facto, was not estopped from denying its incorporation (Swartwout v. Railroad Co., 24 Mich. 389), and whether there was not legal evidence of the corporation, are questions not necessary to the decision of this case, and I do not propose to consider them.”

In 10 Cyc. p. 253, we find the following:

“A corporation defacto exists when there is: (1) A charter or statute under which a corporation with the powers assumed might have been organized. (2) A bona fide attempt to organize a corporation under such a charter or statute. (3) An actual user of the corporate powers or some of them which might have been rightfully used by such an organization. Such being the proper conception of a corporation de facto, it follows that a substantial compliance with the law in effecting a corporate organization is not necessary to constitute the body and corporation de facto, because that makes it a corporation de jure.”

It will be noted that there is no claim in this case that the plaintiff extended credit to the defendants as copartners, because the witness Anderson distinctly testified that he was not familiar with the form of the organization or company, and that he did not know whether it was a corporation or a partnership. There is no evidence that prior to the attempted incorporation the defendants ever did business as copartners, or jointly in any manner. In the case of Whitney v. Wyman, 101 U. S. 392, a Michigan statute similar to the one in question was before that court. In that case the corporation was organized under the statute of this State, which authorized mining and manufacturing companies to be created pursuant to its provisions. There the articles had not been filed with the secretary of State, or the county clerk at the time of giving the order. They were afterwards filed in both offices. The statute declared that they should be so filed before the corporation could commence business. The court, speaking through Mr. Justice Swayne, after referring to the point made by counsel that the corporation at the date of the order was forbidden to do any business, not having then filed its articles of association as required by the statute, said:

“ The restriction imposed by the statute is a simple inhibition. It did not declare that what was done should be void, nor was any penalty prescribed. No one but the State could object. The contract is valid as to the plaintiff, and he had no right to raise the question of its invalidity.”

It seems to us that the trial judge was correct in holding that the plaintiff was dealing with a corporation de facto, and it cannot be said that the plaintiff supposed that it was dealing with copartners, for it clearly appears that it did not know whether it was dealing with copartners or with a corporation. In Swartwout v. Railroad Co., supra, this court held that, in the case of the associates in the corporation de facto and those who have had dealings with it, there is a mutual estoppel resting upon broad grounds of right, justice, and equity, which prevents the former from denying, and the latter from disputing, the incorporation. Jhons v. People, 25 Mich. 502.

Although the proposition finds some support in the authorities cited by counsel from other States, we cannot agree with counsel for appellant when he states that, until the recording of the articles of association with the county clerk, the Fred J. Pound Company could have no corporate existence. By the act itself it is provided that the president shall cause the articles of association to be recorded. The statute therefore contemplates the complete organization of the association and the election of officers before the recording of the articles, and we think that the better doctrine is that the State only can interfere, in a case such as the one with which we are dealing.

There is no claim of fraud or false representation here. And it seems to us that it is undisputed that there was a bona fide attempt to organize a corporation under the statute. Where an attempt has been made to organize a corporation under a valid act, and the question is one of regularity merely, parties recognizing its legal corporate existence by dealing with it have no right to object to any irregularity in such organization.

As this court said in Eaton v. Walker, 76 Mich. 585 (43 N. W. 640 [6 L. R. A. 102]):

“Two things are necessary to be shown in order to establish a corporation defacto, viz.: (1) The existence of a charter, or some law under which a corporation, with the powers assumed, might lawfully be created. (2) A user by the party to the suit of the rights claimed to be conferred by such a charter or law. U. S. Bank v. Stearns, 15 Wend. [N. Y.] 314. If the law exists, and the record exhibits a bona fide attempt to organize under it, very slight evidence of user beyond this is all that can be required. M. E. Church v. Pickett, 19 N. Y. 487.”

Both of these requisites appear in the instant case.

We think the trial judge was justified in directing a verdict for the defendants, and the judgment of the circuit court is affirmed.

Ostrander, C. J., and Steers, Moore, and Brooke, JJ., concurred.


author: Brooke, J.

text:
    McKENZIE v. LYNCH.
    ' 1. Contracts — Illegality — Husband and Wife — Adultery— Compromise of Action for Criminal Conversation.
    A contract effecting a compromise of a threatened action for oriminal conversation, providing that the complaining husband should do no act whereby the matter should acquire any publicity whatever, is void as against public policy, and as an attempt to deprive the husband of his right to institute criminal proceedings.
    3. Same.
    While a husband or wife may settle a civil right of action for damages for alleged adultery with the other spouse, no settlement of a criminal prosecution can be effected, and an action for damages will not lie for breach of the contract so compromising the same.
    Error to Shiawassee; Miner, J.
    Submitted November 8, 1911.
    ( Docket No. 65. )
    Decided December 8, 1911.
    Assumpsit by George A. McKenzie against James Lynch for breach of contract. Judgment for plaintiff. Defendant brings error.
    Reversed, and no new trial ordered.

      A. L. Chandler and George E. Pardee, for appellant.

      Odell Chapman and S. Q. Pulver, for appellee.
    Plaintiff brought suit against the defendant for a breach of the covenant contained in the final clause of the following contract:
    “Whereas, the within named James Lynch, of the city of Owosso, Michigan, claims to have a right of action for damages against the within named George A. McKenzie, of Owosso township, Shiawassee county, Michigan, for criminal conversation and alienation of affections which he alleged happened on Dec. 20th, 1909, and on divers other days and times prior to that date, commencing about Aug. 1st, 1908; and whereas, the said Jas. Lynch is about to commence an action for damages against the said George A. McKenzie in the circuit court for said county of Shiawassee.
    “Therefore, in order to settle said difference, it is hereby mutually agreed that in order to avoid any litigation and any publicity and possible ignominy (hereby not admitting or denying a right of action or legal guilt or liability) the said Geo. A. McKenzie has agreed to pay to said Jas. Lynch in cash the sum of seven hundred dollars ($700.00) in settlement of said matter and to avoid any litigation, &c., as aforesaid.
    “And the said Jas. Lynch hereby accepts the payment of said sum and hereby acknowledges the receipt of same, and same to be in full, complete and absolute satisfaction and discharge from any and all claims of right of action for damages against said McKenzie for said matters as aforesaid, and the said Geo. A. McKenzie is hereby released and discharged and absolved from any further claims whatever, growing out of said alleged criminal conversation and alienation of affections.
    “And the said Geo. A. McKenzie hereby releases and discharges the said Jas. Lynch from any and all claims or rights whatsoever of any kind, nature and description, growing out of said trouble or any other matter and hereby receipts for and acknowledges full and complete satisfaction for any and all such claims he may now have.
    “And the said Jas. Lynch hereby agrees that he will not say anything of or concerning this settlement to one Ed. McDonald, or to any other person, or do anything whereby this matter will acquire any publicity whatever.

      “In witness whereof, the parties have hereunto set their hands and seals in duplicate this 24th day of December, A. D. 1909.
    “ G. A. McKenzie.
    “ Jas. Lynch.
    “Witness:
    “George E. Pardee.”
    It appears that four days after executing the foregoing agreement, defendant filed a bill for divorce against his wife, in which he charged her with having committed adultery with the plaintiff on December 20, 1909, and upon divers other times, and that upon the trial of said divorce case he caused the contract to be produced, read in evidence, and offered as an exhibit. Plaintiff in his declaration avers that the sole consideration for the payment of the $700 was the agreement on the part of the defendant that he would in no manner make said agreement public; and, further, that by violation of said agreement “ plaintiff has become greatly injured in his good name and reputation and feelings.” Defendant filed a plea of the general issue, and gave notice that upon the trial he would show that the money was paid to settle a meritorious cause of action, and to free plaintiff from litigation ; and, further, that plaintiff was in fact guilty of the offense with which defendant had charged him. Plaintiff recovered a judgment for $1,300, which defendant reviews by writ of error.
   Brooke, J.

(after stating the facts). There can be no doubt that, under the decisions of our own State, a husband or wife, wronged as this defendant claims to have been, may settle his or her civil right of action for damages for the wrong. Briggs v. Withey, 24 Mich. 136; Lyon v. Waldo, 36 Mich. 345. But it is equally clear that such wronged husband or wife may not settle a criminal prosecution for the wrong of the guilty spouse. In Lyon v. Waldo, supra, the court, while divided as to the propriety of granting the innocent wife the relief sought, were unanimous upon the foregoing proposition. It was there held that to affirm this power of settlement in the innocent party would lead to innumerable and enormous abuses, and would be intolerable.

It is true that the legislature, in limiting the prosecution of the guilty spouse to a proceeding instituted upon the complaint of the wronged husband or wife, seems to have recognized the fact that the interests of society are not best subserved by indiscriminate prosecutions for this offense. And it is equally true that the innocent party will often suffer in silence, rather than endure the odium of a public prosecution with its necessary incidents of scandal and disgrace. These considerations, however, have no tendency to establish the contention that, because the innocent one may, at will, prosecute or refuse to prosecute, he or she may therefore make of that right a subject of barter and sale. Such a contract is void as against public policy, and a breach thereof affords no right of action. Case v. Smith, 107 Mich. 416 (65 N. W. 279, 31 L. R. A. 282, 61 Am. St. Rep. 341), and cases cited; Clark v. Ricker, 14 N. H. 44; Treat v. Jones, 28 Conn. 334.

Is the last clause of the contract above set forth susceptible of the construction that thereby the defendant intended to deprive himself of his right to institute criminal proceedings against the plaintiff ? We think it is. Defendant there agrees to do no act, whereby this matter will acquire any publicity whatever.” It is clear that defendant thereafter could not become complaining witness, in a criminal proceeding against plaintiff, without giving publicity to the matter, thus violating his contract as to silence and concealment.

The judgment is reversed, without a new trial.

Ostrander, C. J., and Steere, Moore, and Stone, JJ., concurred.


text:
    WEGNER v. HERKIMER.
    1. Fraud — Rescission—Tender—Damages.
    In an action for fraudulent representations that defendant was the owner of the entire interest in a land contract in which defendant had only a half interest, and which he exchanged for a stock of goods belonging to plaintiffs, it was not necessary for plaintiffs to rescind the transaction or tender back an assignment of the contract; their measure of damages would equal the difference between the value of the contract interest as represented and its actual value.
    2. Same — Laches—Limitation oe Actions.
    Laches would not bar the action, which was brought within nine months after the fraud and within about a month after discovering the falsity of defendant’s representations; no delay within the limit of the statute of limitations would be a defense to the action.
    3. Same — Pleading—Variance.
    Although some of the representations alleged in plaintiffs’ declaration would not warrant a recovery, it is not necessary to prove all the allegations, but if proof of any material fraudulent representation is presented, plaintiffs are entitled to recover.
    4. Same.
    Representations that defendant had paid $800 for the contract, that he owned the entire interest therein, and that everything had been paid on the contract up to date, were material and might properly be found by the jury to have influenced plaintiffs.
    5. Same — Principal and Agent.
    Evidence of conversations between plaintiffs and a person held out as his agent by defendant was properly received.
    A. Same — Evidence—Market Price.
    Plaintiffs’ testimony as to the market value of a stock of furniture which they exchanged for the land contract was not improperly received to rebut defendant’s claim that they had misrepresented the value of the stock.

      7. Same — Instructions to Jury.
    A charge to the jury which, considered as an entirety, was full and fair and sufficiently submitted to the jury the issues in the case was not objectionable.
    Error to Cass; Des Voignes, J.
    Submitted November 8, 1911.
    (Docket No. 63.)
    Decided December 8, 1911.
    Case by Oswald Wegner and wife against George R. Herkimer for fraud and deceit. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Gore & Harvey, for appellant.

      Clyde W. Ketcham (W. J. Barnard, of counsel), for appellees.
   Stone, J.

This is an action on the case to recover damages by reason of the alleged false and fraudulent representations, made by the defendant, by which he obtained possession of a stock of furniture, invoicing $1,030, from the plaintiffs, on or about July 81,1908. It is alleged and claimed by the plaintiffs that at this time they were the owners of a small stock of furniture at Hammond, Ind., worth the amount above stated; that the plaintiff Oswald Wegner, being desirous of obtaining a farm, was induced to meet the defendant, with a view of exchanging the said stock of furniture for an equity in a farm which the defendant represented that he owned under the assignment of a land contract made to one Elmer Smith by one Arthur E. Rudolphi.

The evidence on the part of the plaintiffs tends to show that they were first visited by one Bixby, who informed them that the defendant had a farm for sale. The plaintiffs gave evidence tending to show that the plaintiff Oswald Wegner accompanied Bixby to Dowagiac, where he had an interview with the defendant; the said plaintiff testified that he told the defendant that he desired to get and go onto a farm, as his health was not good, and he had a large family of seven children; and that he desired to trade his stock of furniture for such a property.

It is claimed that the defendant stated that he had a good farm, and the said plaintiff, in company with the man Bixby, went upon and examined the property; that when they returned to the defendant the defendant there stated that his price for the farm was $2,662 and some cents, and he said, “You are getting it at a bargain at that.”

It is the further claim of the plaintiffs that the defendant represented to the said Oswald Wegner, plaintiff, that there was owing upon the land contract $1,862.42; that that was all that was to be paid after plaintiffs would get it. When asked what the payments were, it is claimed that the defendant replied $200 a year and interest, and that everything was paid up to March, 1909, and that he had receipts to show it, and that he owned all of the land contract, and that he had put $800 into the property or contract.

At this interview, the plaintiff testified that he did not see the land contract to examine it; and, when asked if he would take the place, he replied that he thought he would, but desired first to see his wife. Whereupon the defendant wrote an assignment upon the land contract, which assignment was as follows:

“Dowagiac, Mich., July 31, 1908.
“ This certifies that I, George R. Herkimer, of Dowagiac, Michigan, do hereby assign, sell, transfer and deliver ail of my right, title and interest in the attached contract to Oswald Wagner and Mrs. Hilma Wagner of Hammond, Indiana. Said assignment is made in consideration of one dollar and other valuable considerations.
[ Signed ] “ George R. Herkimer.
“ Mrs. G. R. Herkimer.”

That the defendant delivered this contract to the man Bixby, and said to Bixby:

“You are representing me, and I want you to take this contract and keep it in your possession until the goods are assigned over to me.”

Thereupon Bixby accompanied the plaintiff Oswald Wegner back to Hammond, Ind. The plaintiff Oswald Wegner testified that on his way back to Hammond with Bixby the latter said:

Well, what do you think about it?’ Well, I told him I would like to see this man Rudolphi. He says, ‘ Didn’t you hear what Herkimer had said?’ He said that Rudolphi went to New York, and that he wouldn’t be back, and that he would see him and tell him about the deal, and have him make out a new contract right direct from him to me. Well, I told him that I would like to see Rudolphi myself, and he says, * Why, it isn’t necessary ; and being that is all right, the mayor of Dowagiae, and the doctor with the big practice, he wouldn’t do anything.’ I says, eNo; I don’t suppose he would.’ So I took lots of confidence in that.”

At Hammond it is testified that Bixby, acting for the defendant and as his agent, on the next morning, made certain representations to the plaintiff Hilma Wegner. She testified that she asked to see the contract; that Bixby said:

“Why, it is all right; it is good. I am an attorney, and know the laws of Michigan. I studied the laws of Michigan for 11 years.”

Whereupon it is claimed that he took the contract out, and read the assignment above quoted, but kept the paper in his possession until the bill of sale of the goods had been made and signed.

The plaintiff Oswald Wegner testified that he did not read the contract to see what interest the defendant had therein, but that he relied upon his representation that he owned the whole interest in the contract, and that when the contract was delivered to him in Hammond he did not read it, but gave it to his wife; that he didn’t see any indorsement of interest upon the contract. He claimed that there was not a word said by the defendant about his having only a one-half interest in the contract. It is the claim of the plaintiffs that they relied upon these statements and representations made by the defendant, and that they were false, and that plaintiffs were wholly inexperienced in regard to such matters.

It is the further claim that, when plaintiff Oswald Wegner expressed a desire to see Rudolphi, the owner of the fee in the land in question, and who had made the contract to Elmer Smith, the defendant stated that Rudolphi was in New York, and that when he returned he would tell Rudolphi about the deal, and see him about making a new contract right from Rudolphi to the plaintiffs, which statement as to Rudolphi’s absence it is claimed was false.

It ought to be stated that there was indorsed upon the contract, which contract bore date November 14, 1906, and was received in evidence, the following:

"We hereby assign, sell, transfer and set over to George R. Herkimer our undivided one-half interest in and to the within contract.
[Signed] Elmer Smith.
“ Ruth Smith.”

The plaintiffs claimed and testified that they did not see or read this indorsement, or know of its existence at the time of the trade; and that they relied upon the said representations of the defendant.

These representations, about which the plaintiffs gave testimony, were denied by the defendant, who claims that there was no fraud practiced by him, and that he stated that he had a one-half interest only in the contract, but that he would protect the plaintiffs in the entire interest of Smith, and, although he never tendered to plaintiffs any further assignment as evidence of his good faith in that statement, he testified that, on the 6th day of August, 1908, he obtained from Elmer Smith a quitclaim deed of the premises, and offered in evidence the quitclaim deed.

There is something quite remarkable about this deed. Appellant’s counsel in their brief state the following:

“ On or about the 6th day of August, 1908, the defendant Herkimer obtained a quitclaim deed from Elmer Smith of his right, title, and interest in and to the premises described in the land contract. (See Exhibit B, R. 100.)

This deed conveyed to the defendant the remaining interest in the land contract.”

Turning to the page of the record indicated, we find that the quitclaim deed there set forth — and the only one in the record — does not cover the farm in question, as described in the land contract and plaintiffs’ declaration; nor does it describe any part of such land or premises. The defendant testified that he had no recollection of ever having obtained any other quitclaim deed from Elmer Smith. There is something inexplicable to us in this claim of the defendant. His attention seems to have been called to the description in the deed, and his explanation was not at all satisfactory. In April, 1909, the land contract was foreclosed by Rudolphi, and plaintiffs went out of possession.

The plaintiffs upon the trial recovered a verdict and judgment of $400 damages. The defendant has removed the case to this court by writ of error, and there are many assignments of error.

In their brief the attorneys for the appellant state that the questions involved and errors relied upon are:

“ (1) That the court was in error in receiving testimony under the declaration, for the reason that it failed to allege a tender back, by the plaintiffs to the defendant, of the interest the plaintiffs received under such contract.
“ (2) That the court erred in admitting sundry conversations of the plaintiffs with Harlan A. Bixby, for the purpose of showing that the latter was the agent of the defendant.
(3) That the court erred in its rulings on questions of evidence as presented by the assignments.
i( (4) That the court erred in not directing a verdict for the defendant at the conclusion of the plaintiffs’ case, upon the motion of the defendant.
“ (5) Error is alleged by reason of the inflammatory language of plaintiffs’ attorney in his address to the jury.
“ (6) Error is assigned upon the charge in refusing to charge as requested by defendant, and in granting certain of plaintiffs’ requests, and that the court erred in its voluntary charge to the jury.”

It is the claim of the plaintiffs that the action is based upon the alleged fraud of the defendant, and that the measure of damages is the difference between the thing which the plaintiffs received and the worth of the property and equity therein as represented by the defendant.

The defendant’s counsel insist in their first point urged that before the cause could be commenced there must have been a rescission of the contract and a tender back, by the plaintiffs to the defendant, of the alleged interest which the defendant had assigned. We have examined the cases cited by appellant upon this point, and we do not think that they are applicable. We think that the question is controlled by the following decisions of this court: Warren v. Cole, 15 Mich. 265; Stockham v. Cheney, 62 Mich. 10 (28 N. W. 692). In the last-cited case, suit was brought for the alleged fraud of the defendant in obtaining plaintiff’s money on the sale of land to which he claimed title, and which he agreed to convey, when in fact he had no title at all to 10 acres of the land, and the balance was burdened with an equity of redemption and tax lien, which were not provided against by the defendant, who conveyed the land by a quitclaim deed to the plaintiff. It was held that it was. not necessary for plaintiff to rescind the bargain or tender a deed of the premises back to the defendant before bringing suit; nor was a recovery barred by plaintiff moving onto the land soon after his purchase, from which he had not been evicted or disturbed in his possession. Held, further, that plaintiff was entitled on his theory to a good title, and, failing to get it, could recover the difference between the value of the premises with such a title and their worth with the title he received. See, also, Lenox v. Fuller, 39 Mich. 268; Merrill v. Newton, 109 Mich. 349 (67 N. W. 120); Morman v. Harrington, 118 Mich. 623 (77 N. W. 242).

We do not think that the plaintiffs were guilty of laches in not bringing this suit before the month of April, 1909. There was testimony that the plaintiffs did not discover this fraud until the month of March before bringing the suit. We do not think that any delay within the statute of limitations can be urged in such a case as this. Dayton, v. Monroe, 47 Mich. 193 ( 10 N. W. 196 ).

It is urged by appellant that the representations alleged to be false in the declaration are not false statements of fact at all; that it was “seller’s talk, pure and simple,” and numerous cases are cited. There are some representations set forth in the declaration, the proof of which would not warrant a recovery. It is not necessary for plaintiffs to prove all of the representations alleged in their declaration in order to recover. If any material fraudulent representation is charged which resulted in the injury to the plaintiffs complained of, they are entitled, upon the proof of the same, to recover, although the declaration may have charged other acts which are not proven. Marquet v. La Duke, 96 Mich. 596 (55 N. W. 1006); Smith v. Railroad Co., 100 Mich. 148 (58 N. W. 651, 43 Am. St. Rep. 440); Warren v. Porter, 144 Mich. 699 (108 N. W. 435); Malkowski v. Olfs, 161 Mich. 303 (126 N. W. 199). We cannot agree with defendant’s counsel that all of the representations testified to in the case were “seller’s talk, pure and simple.” Recognizing the rule that a seller has a right to praise his property and to give his opinion concerning it, we think that the rule cannot be extended to embrace false representations of alleged facts in a case which may be and were relied upon by the purchaser, and became an inducing cause of the trade.

The representation that the defendant had put into this contract the sum of $800 may have had a controlling influence with the plaintiffs in this case; while in other instances such a statement might have had no influence upon a buyer at all. The contract showed upon its face that there was still unpaid thereon the whole face of the contract, save some of the interest. The fact, if it were a fact, that this defendant, a dealer in real estate, as appears by this record, had paid $800 for an assignment of this contract may have had great influence, as to its value, ■with the plaintiffs in this case, who testified that they were entirely ignorant in regard to such matters. Most certainly the representation that he (the defendant) was the' owner of the entire interest in the contract was a material representation; and the same maybe said of the representation that everything had been paid upon this contract up to March, 1909. Swimm v. Bush, 23 Mich. 99; Kost v. Bender, 25 Mich. 515; Nowlin v. Snow, 40 Mich. 699; Maxted v. Fowler, 94 Mich. 106 (53 N. W. 921); Peck v. Jenison, 99 Mich. 326 (58 N. W. 312) ; Short v. Cure, 100 Mich. 418 (59 N. W. 173); Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321 (69 N. W. 722); McDonald v. Smith, 139 Mich. 211 (102 N. W. 668); Hokanson v. Oatman, 165 Mich. 512 (131 N. W. 111).

Error is alleged in the rulings of the trial court, admitting in evidence the conversations between the plaintiffs and Harlan A. Bixby, in the absence of the defendant. In view of the record, wherein it appears by the testimony of the plaintiff Oswald Wegner that the defendant distinctly stated to Bixby, in the presence of said plaintiff, that he (Bixby) was representing him (the defendant) in the transaction, and that all the material things, all the material conversation testified to by the plaintiffs, occurred subsequently to that statement, and pending the negotiations, we do not think the court erred in receiving this testimony.

Error is assigned because the court permitted the witness Oswald Wegner to swear to the fair market value of the goods. In view of the notice of the defendant under the general issue, wherein it was claimed that the plaintiffs had misrepresented the value of the stock of furniture, and in view of this claim of the defendant, we do not think that the court erred in admitting this testimony.

We have examined the assignments of error, relating to the requests to charge, and the charge of the court. We think that the entire charge of the court should be examined and considered as a whole. The charge was very full and fair, and we think properly submitted to the jury the issues in the case, and we find no reversible error relating to the charge.

Lastly, it is urged that plaintiffs’ counsel, in his address to the jury, made use of intemperate and improper language. We have examined this record with some care, and, taking into consideration the action of the trial judge and the character of the language used, in view of our numerous recent decisions upon this subject, we cannot say that there was any prejudicial error here. We do not deem it necessary to cite authorities which are so familiar to the profession on this subject.

We find no prejudicial error in the record, and the judgment of the circuit court is affirmed.

Ostrander, C. J., and Steere, Moore, and Brooke, JJ., concurred.


text:
    KNICKERBOCKER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Negligence — Railroads—Contributory Negligence of Infant Decedent.
    Where it was undisputed that an infant of ten years of age, killed at a railroad crossing, could have seen the approaching train for a space of 70 feet before he reached the rails, the view being unobstructed for a distance of half a mile or more up the track, that he was of ordinary intelligence, had lived in the vicinity of railroad tracks and was accustomed to go about the city and to manage the bicycle on which he was riding when the accident occurred, he was, as a matter of law, chargeable with contributory negligence.

      2. Same — Children.
    While the duty to use care can only be predicated of one who has capacity to understand and ability to perform, and the care to be exercised by children must be in proportion to their age and capacity, the infant is chargeable with' some degree of care for his own safety, and failure to exercise any care is negligence per se.
    3. Same — Gross Negligence — Last Clear Chance — Disregard of Consequences.
    Gross negligence, as applied to conduct which authorizes recovery notwithstanding the contributory negligence of plaintiff, is the intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, or a thoughtless disregard of consequences without the exeroise of any effort to avoid them.
    4. Same.
    It was not gross negligence on the part of the engineer, whose train was running upwards of 20 miles an hour, the brakes being set, and who saw decedent approaching the track on his bicycle at a point where he could have perceived the train if he had looked, though decedent was bent over and did not appear to pay any attention, not to stop the train or to gain complete control of it, since the approach of persons towards the track is not usually evidence of their negligence or of any peril.
    Error to Shiawassee; Miner, J.
    Submitted November 8, 1911.
    (Docket No. 61.)
    Decided December 8, 1911.
    Case by Anna Knickerbocker, administratrix of the estate of Franklin Glenn Knickerbocker, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company and the Grand Trunk Western Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for plaintiff against the defendant the Detroit, Grand Haven & Milwaukee Railway Company, which brings error.
    Reversed, and no new trial ordered.

      Harrison Geer, for appellant.

      A. L. Chandler and George M Pardee, for appellee.
    Franklin Glenn Knickerbocker, ten years and three days old, riding a bicycle on a cement sidewalk on the west side of Glenwood avenue, in the city of Owosso, was struck and killed by defendant’s west-bound passenger train, May 11, 1909, at about 7:15 o’clock in the afternoon. He had crossed a repair track of the Ann Arbor Railway Company, the south rail of which was 71 feet north of the north rail of defendant’s track. The street descends slightly to the south, in which direction .he was riding,-and the sidewalks are substantially level with the roadway. The street is 66 feet wide, with a post and board fence on each side of it between the lines of railway. The bicycle had 28-inch wheels and a 22-inch frame — an ordinary wheel for men — and was equipped with a coaster brake. Decedent was accustomed to ride a bicycle, and, his mother testified, “was perfectly at home on one.” His father had returned from his work, and apparently the lad had taken the wheel for a little run, having left home only about 10 or 15 minutes before he was killed. A witness for plaintiff testified that he was walking on the street with his wife and others, that decedent passed them, and that he saw him, a hundred feet or so away, at the instant when the train struck him. Witness was north of the Ann Arbor track at the time, heard the train, looked, and saw it when it was some five rods east of the street.
    The declaration alleges negligence on the part of the defendant in the following particulars: (1) Disobedience
    of an ordinance regulating the speed of trains in the city; (2) failure to keep a proper lookout for travelers; (3) failure to give proper crossing signals; (4) failure to carry a headlight; (5) the agents of defendant—
    “Negligently, wilfully, recklessly, intentionally, and wantonly, and while and where said agents and servants could see that said plaintiff’s son was not aware of said danger, and while and where said agents and servants could have avoided said injury by using proper effort on their part, failed to give any warnings by placing a headlight on the engine, where the same could be seen, or by ringing the bell or sounding the whistle, or by providing a flagman at said crossing to warn persons about to cross said railroad track, and otherwise failed as aforesaid, to give any warning of the approach of said train, * * * and negligently, wilfully, recklessly, intentionally, and wantonly ran said train at a high rate of speed. * * * ”
    The plea was the general issue.
    Plaintiff having rested her case, the court directed a verdict in favor of the defendant Grand Trunk Western Railway Company, refusing to do so as to the other defendant. Defendant offered testimony, and, having rested, moved the court to direct a verdict in its favor, for the reasons that its negligence had not been shown, or, if any negligence had been shown, it was not the proximate cause of the injury; that the contributory negligence of plaintiff’s intestate had been conclusively established ; that plaintiff’s intestate had been emancipated by his father. The court was of opinion that, in view of the age of the boy, the question of his negligence was for the jury. The question of the gross negligence of defendant was withdrawn from the jury in the charge.
    Defendant preferred, among others, the following requests to charge, which were not given:
    “(6) I charge you that Franklin Glenn Knickerbocker was in his eleventh year at the time of his death; that he had attended school nearly four years, and was about to complete the fourth grade; that he was of sufficient intelligence to go down into the business part of the city of Owosso on errands for his mother, and that he did this for some time; that while there he could protect himself and keep out of the way of cars, vehicles, and the like; and I further charge you that the law required of him that he make such use of his faculties of hearing and sight when approaching the Glenwood avenue crossing as an ordinarily prudent boy of his age, intelligence, and experience would have done; and I further charge you that he did not make such use of his senses of hearing and sight, and was therefore guilty of contributory negligence, and your verdict would be for the defendant.
    “(7) I charge you that plaintiff’s decedent, Franklin Glenn Knickerbocker, was guilty of contributory negligence as a matter of law, and you will return a verdict for defendant.”
    There was a verdict and judgment for the plaintiff. Appellant relies upon errors assigned upon the refusal to direct a verdict, the refusal to give its requests to charge, and the refusal to admit in evidence an ordinance of the city of Owosso, prohibiting the riding of bicycles on the sidewalk.
   Ostrander, C. J.

(after stating the facts). The court erred in submitting to the jury the question of the contributory negligence of plaintiff’s intestate. The fact is undisputed that for a distance of 70 feet before he reached the crossing plaintiff’s intestate could have — must have — seen the approaching train, had he looked. The view was unobstructed; the train could have been seen a half mile or more to the east. He was not riding fast; he was riding down a slightly inclined walk; he was a normal lad, except for a slight deafness in one ear, of average intelligence, used to going about the city, crossing railroad tracks and managing a bicycle. He lived in the vicinity, and had apparently crossed these tracks within a very few minutes. The crossing sign was before him. He was alone, with nothing to distract his attention, intent upon no errand, with no playmates preceding or following him. We must assume, in view of the testimony, that the jury, under the charge of the court, found in his youth excuse for his carelessness. There ought to be no dispute about the governing rules. It is true that “duty can only be predicated of one who has capacity to understand and ability to^perform,” and that the care to be exercised by children, while it must be ordinary care, must be proportioned to their age and capacity.

It was said, Ecliff v. Railway Co., 64 Mich. 196, 202 (31 N. W. 180, 183) :

“Where there is any conflicting evidence as to the danger likely to be incurred, or as to the act or acts in getting in the way or reach of such danger, or as to the age or capability of the child, the question of the contributory negligence of the person injured or killed should be submitted to the jury.”

The rule is a familiar one. Cooper v. Railway Co., 66 Mich. 261 (33 N. W. 306, 11 Am. St. Rep. 482); Baker v. Railroad Co., 68 Mich. 90 (35 N. W. 836); Wright v. Railway Co., 77 Mich. 123 (43 N. W. 765); Lehman v. Steel Works, 114 Mich. 260 (72 N. W. 183). It was further said in the Ecliff Case:

“A boy of 12 years knows as well as an adult that upon the top of freight cars, or in front of the engine, when reversed, betweén that and the cars, is not a safe place when the train is moving. The fact that a boy of that age is more reckless and not as cautious as a man, in the face of such danger, is not of itself enough to excuse him.”

In Henderson v. Railway Co., 116 Mich. 368, 374 (74 N. W. 525), a boy eight years old was injured by a street car. It was said:

“ Witnesses for the plaintiff state that, if the boy had looked in the direction of the car, he could have seen it. It was but common prudence in crossing such a thoroughfare to look, not only for the car, but for any vehicle which might be coming. Injury would have occurred from collision with an ordinary wagon just as surely as from running into this car, and, from the testimony of the lad himself, he had intelligence enough at the time to know this. Why, then, should it be left for the jury to say that he had not ?”

See, also, Trudell v. Railway Co., 126 Mich. 73 (85 N. W. 250); Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535). In the Ecliff, the Trndell, and Per ego Oases, the injured child was trespassing; while in the case at bar, as in the Henderson and in the Baker Cases, the child was rightfully in the highway, crossing the track upon which injury was received. The test to be applied to determine whether the injured person was negligent is not different in either case.

When a child is old enough to be chargeable with some degree of care for his own safety, then—

“As to any given event, a child is responsible for just such care for his own safety as may reasonably be expected of one of his age, development, and intelligence under the circumstances characterizing the particular event.” Secard v. Lighting Co. (Wis.), 133 N. W. 45.

We are left in no doubt concerning the manner in which plaintiff’s decedent was killed. His intelligence and his ability to appreciate the danger which actually threatened, and to avoid it, if seasonably discovered, cannot be questioned. He did not discover the actual danger. Under the circumstances, he was chargeable with some degree of care for his own safety, and it does not appear that he exercised any care. The jury should have been so instructed.

Whether the cause should go down for a new trial depends upon whether, as appellee contends, there was testimony tending to prove the gross, wanton negligence of defendant’s servants. It is certified that the record contains the substance of all of the testimony given at the trial. We do not find in the declaration any allegation that the peril of plaintiff’s decedent was discovered by any of the servants of defendant, after which defendant failed in the exercise of due care. The term “gross negligence” has been used in cases decided by this court, and has a definite meaning, when referred to as authorizing a recovery for a negligent injury, notwithstanding the contributory negligence of the plaintiff. It means the intentional failure to perform a manifest duty, in reckless disregard of the consequences as affecting the life or property of another. It also implies a thoughtless disregard of consequences, without the exercise of any effort to avoid them. Schindler v. Railway Co., 87 Mich. 400, 411 (49 N. W. 670); Denman v. Johnston, 85 Mich. 387, 396 (48 N. W. 565). In Labarge v. Railroad Co., 134 Mich. 139 (95 N. W. 1073), the cases are reviewed, and the doctrine of “ gross negligence,” as stated and defined in Richter v. Harper, 95 Mich. 221, 225 (54 N. W. 768, 769), is approved. In the last-mentioned case, it is said:

“ It is urged by plaintiff’s counsel that the negligence of defendants was so gross and wilful as to excuse concurring negligence on the part of the plaintiff; it being claimed that where the negligence of the defendant is gross or wilful the contributory negligence of the plaintiff is not a defense. This is but another way of stating the doctrine of comparative negligence, which has never obtained in this State. It is true that the contributory negligence of the plaintiff does not prevent recovery in a case where the defendant, who knows, or. ought, by the exercise of the most ordinary care, to know, of the precedent negligence of the plaintiff, by his subsequent negligence, does plaintiff an injury. * * * This rule does not permit recovery, notwithstanding plaintiff’s contributory negligence, hut it recognizes that such discovered negligence of plaintiff, or his negligence which should have been discovered, is not a contributing cause to the injury in a legal sense. This, we think, is the logical statement of the rule as deduced from the authorities.”

See, also, Buxton v. Ainsworth, 138 Mich. 532 (101 N. W. 817).

There was a conflict of testimony concerning the speed of the train; little, if any, actual conflict as to the giving of signals, or as to whether the headlight of the locomotive was burning. Witnesses testified that they did not hear the signals, although in a position where they could have heard them; did not see the burning headlight. Other witnesses testified that the signals were given, and that the locomotive carried a lighted headlight. Glen-wood avenue is the street first reached and crossed by defendant’s trains from the east. It is near the eastern limit of the city. Defendant’s engineer, who drove the locomotive engine upon the occasion in question, was a witness for defendant, and testified that when he first noticed the Knickerbocker boy he was approaching the crossing, and the engine was about 100 feet from the crossing. The boy was 25 feet or 30 feet from the track. The boy appeared to be “ stooped over, had his hands on the handlebars.” “ He didn’t seem to me as though he was paying any attention.” The train had a speed of about 20 miles an hour. No steam was being used, and none had been used for a quarter of a mile. The train was equipped with Westinghouse air brakes. Air had been applied before Glenwood avenue was reached, somewhat reducing the pressure. He put the brake lever into the emergency position and opened the sand box. The whistle had been blown for the crossing, and was not again used before the boy was struck, because there was not time to do more than was done. There were cars stored on the Ann Arbor railway track, which has been referred to, east of Glen-wood avenue, to within 35 feet of the east line of the street. As has been stated, there was a space of 70 feet between the two tracks, in which space, if not before, the boy had opportunity to look, listen, and stop, and in crossing which space he might have been seen, probably, if the engineer had been looking at and for nothing else. But it is not negligence — clearly it is not gross negligence — to fail to stop or to fail to gain complete control of a train of cars, merely because persons are seen approaching the track upon a highway on foot, or with vehicles. Such an approach is not usually evidence of negligence, and such persons are not usually in any peril. No error was committed in refusing to submit the question of “ gross negligence ” to the jury.

The judgment is reversed, and no new trial will be granted.

Steers, Moore, Brooke, and Stone, JJ., concurred.