text:
    JARVIS v. FLINT & PERE MARQUETTE RAILROAD CO.
    1. Pleading — Variance—Appeal.
    An objection that there was a variance between the declaration and the proofs, and that a recovery was permitted for a different defect than that alleged in the declaration, will not be heard on appeal, where no objection was made to the evidence, and no misunderstanding existed as to the questions involved.
    2. Trial — Instructions.
    The refusal of an instruction is not error where the subject-matter is fully covered by the general charge.
    3. Injury to Brakeman — Violation op Rules — Contributory Negligence — Question por Jury.
    Plaintiff, an experienced brakeman, and familiar with defendant’s road, attempted to uncouple oars moving on the main track at from four to five miles an hour. It was dark, and he ran along on the track between the oars while doing the uncoupling. As he started to go from between the cars he stepped into a hole in the roadbed, and was injured. Defendant’s testimony tended to show that this excavation was at a switch, and was necessary to enable it to be operated; while plaintiff’s testimony was to the effect that the hole was several feet distant from the switch. The rules of the company made it the duty of employés to examine the track where they were required to perform a service, and to satisfy themselves, so far as they reasonably could, as to its safety, and forbade them to enter between cars in motion to couple or uncouple them, except under favorable conditions, such as low rate of speed, absence of frogs, switches, etc., and where good footing could be obtained, and then only when necessary. Held, that, if plaintiff’s contention as to the place of the accident was the true one, the question of his contributory negligence was for the jury.
    4. Appeal — Record—Instructions—Punctuation.
    The punctuation of the stenographer’s notes of an instruction to the jury will not be allowed to alter the plain meaning of the language employed.
    Error to Saginaw; Beach, J.
    Submitted May 8, 1901.
    Decided July 19, 1901.

      Case by William Jarvis against the Mint & Pere Marquette Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Benton Hanchett, for appellant.

      William F. Denfeld (James H. Davitt, of counsel), for appellee.
   Long, J.

This action is brought to recover for injuries received by the plaintiff, a brakeman, while engaged in uncoupling cars on defendant’s road at Flint on the evening of March 13, 1899. Plaintiff was about 30 years of age, and had had 10 years’ experience as a brakeman before going into defendant’s employ. He commenced work for the defendant about the middle of December, 1898, and worked continuously on the road between Saginaw and Plymouth, going out from Saginaw one day, and returning the next day, and generally on the return trip did switching where the accident occurred. He was the head brakeman, and the train was under his control. At the place where the accident occurred, the main track of the railroad extends north and south. On the east side of the main track is a side track running parallel with it. On the main track are two switches, from 25 to 28 feet apart. One leads to the north, connecting with the side track; the other leads to the south, also connecting with the side track. In the train upon which the plaintiff was working, five cars were to be taken out and run over the south switch, and placed upon the side track. These cars were uncoupled from the train, leaving the other cars, forming the rear of the train, with the caboose, on the main track south of the south switch. The train, with the five cars which were to be cut off, was moved forward north of the north switch, and then was backed down to go over the two switches, in order to leave the five cars on the side track south of the south switch. The conductor and the plaintiff were standing about a car’s length north of the north switch, on the east side of the track (that is, on the right-hand side of the train, looking towards the engine), and, as the train moved back to where they were, the conductor pointed out to the plaintiff the place in the train — between what cars of the train- — -the uncoupling was to be made. The plaintiff proceeded to do the uncoupling by going between the cars while they were moving at a speed of four or five miles an hour, and, in doing the work, he was run over by the cars and injured.

His statement as to the manner of the injury is that, when the conductor pointed out the place in the train at which the uncoupling was to be made, he was about a car’s length north of the north switch; that he immediately attempted to pull the pin and make the uncoupling, and in doing that ran along on the outside of the rail until near the north switch; then went inside, and got onto the brake-beam, and rode on it, trying to pull the pin, until he was past the.north switch; that he then got down onto the ground between the cars, and ran along at a slow trot between the rails, trying with his right hand to pull the pin, holding his lantern in his left hand, down near the pin; that the night was dark; that the two cars between which he was going were about three feet apart; that the bottom of the cars was about as high as his thigh; that, just before reaching the south switch, he got the pin out, and went to go from between the cars, and stepped his left foot into a hole beside the east rail, said hole being between the cars, and stumbled; that he tried to catch onto something upon the car ahead of him, but could not do so, and fell across the center of the track, and was injured so that he lost one foot, and one hand was badly hurt. It appears, further, from his testimony, that he did not see the hole into which he stepped, and that he is unable to locate it definitely, except that he says it was beside the east rail and between the switches, and was between the cars; that his feet went down into a hole when he stumbled; that this hole was 13 to 14 inches outside the rail of the main track.

Mr. Frank E. Penny was a brakeman on the same train that night. He testified that he found the plaintiff after the accident a few ties north of the south switch; that he was a few ties — maybe a tie or two — north of the switch; that he noticed the condition of the tracks; that he found cinders between the north and south switch; that it looked to him as if the sectionmen had been working on them; that they were excavating out there to a certain extent,— that is, north of the south switch; he did not know how many ties, but, anyway, six or seven or eight. Conductor McDowell testified upon this point that he saw the plaintiff stumble possibly 20 feet south of the north switch, not south of the south switch; that plaintiff was between the two switches.

The defendant introduced testimony tending to show that there were no piles of cinders there, and that the only excavation or hole on the main track was at the switch, where it was necessary to have a trench for the purpose of drainage; that the dirt and cinders were cleaned out from between the ties so that the switch could be moved. It is undisputed that it was necessary to maintain this condition between the ties at the place where the south switch was located, so that the bars of the switch could move backward and forward between the ties; that the unfilled space between the east ends of the same ties, and the trench to the east from those ties, were necessary for the drainage of the switch; and that these conditions were continuous.

The cause of the accident, as alleged in the first count of the declaration, was a hole or rut into which the plaintiff stepped, as follows:

“ At a point, to wit, 300 feet south of where Hursley street, in the city of Flint, crosses the main track of said company, and at the switch located at that point on said main track, where it became necessary for plaintiff to uncouple the said cars, and along the outside and next to the east rail of the main track of said switch, located as aforesaid, there existed a deep hole or rut, and piles of dirt and cinders at said point, and the same had existed a long time previous thereto, and plaintiff did not see the same; and, as the cars were uncoupled by him, plaintiff stepped out from between the cars so uncoupled, and into the hole, along the outside and under the east rail at the point aforesaid.”

The second count states:

‘ ‘ Said defendant carelessly and negligently allowed its road to be and remain out of repair for a long time, to wit, for a period of a year, prior to the happening of the injury "herein complained of, in that it allowed a large hole or rut, into which plaintiff stepped, and piles of dirt and cinders, as set out in the first count, to be and did remain close up to the outside of the rails, and between the rails, of said main track, for said period. And on the 13th day of March, when it became necessary to place said freight-train cars on the said side track as aforesaid, it became necessary for said plaintiff to go between two of said cars of said freight train to uncouple the same while in motion; and, just as said plaintiff had uncoupled said cars'from said train, he stepped out from between them and into said hole, close up to the outside east rail of said main track, and in the bed of said road, which was about six or eight inches in depth, and into which hole he stumbled, and fell across the main track, just where the side track connects with said main track.”

The court, in its charge to the jury, after stating the action of the plaintiff in going between the cars at the direction of the conductor, said:

“He claims that the hole that he stepped into was a short distance north of the south switch. It is further claimed by the plaintiff that there was a pile of cinders, dirt, gravel, or snow along the outside of the east rail of the track, and within a short distance of such east rail. * * * It is further claimed by the plaintiff that the cinders or ballast was taken from between the railroad ties just north of the south switch to a depth of three or four inches; that the ties at that point were one foot apart, and in some places not that distance, but that they were far enough apart so that a man’s foot could be caught between the ties; that those were the conditions as they existed on the main track. The plaintiff’s claim is that he did not consider it dangerous to make the uncoupling when the train was in motion, running at a rate of speed of from four to five miles an hour, as he knew nothing about a hole existing where he claims he was injured, but supposed it was a safe place to work, and that he did not in any way contribute to the injury.
“ The defendant’s claim is that at the point where the plaintiff claims he was injured, and between the two switches, there was no bole between the ties, on the outside or between the rails; that dirt, gravel, or cinders were filled in between the ties, and that the track was ballasted even with the ties, except at the split switch, where the dirt had to be taken from under the draw-bars between the ties so the switch could be operated; that a small ditch, about three inches deep and about one foot wide, extended from the ends of the ties near the switch to the rails on the west side, so as to drain the water off, so it would not freeze or obstruct the operation of the switch; that this drain was cleaned out, and the dirt carried away; and that there was no pile of cinders, dirt, snow, or ice either upon the east or west side of the track. It is further claimed that the way the plaintiff was injured was by his getting upon the drawbars between the cars, and that, when the cars were uncoupled, the plaintiff fell between them, and was injured; * * * and that, if he fell into a hole, it was at the split switch, and was thrown down, but was not thrown down by stepping into a hole north of the switch. These are questions of fact for you to consider, and not for the court.”

We think this was a fair statement of the controversy between the parties. The plaintiff claimed that the hole existed some little distance north of the south switch, while defendant contended that no hole existed there, and, if there was any hole at all, it was at the switch, and was necessary for its drainage.

But defendant’s counsel contends that the case which was presented for trial, and which defendant was called upon to defend, was an alleged defect in defendant’s road, which was distinctly described and identified by the declaration, but that by the charge of the court recovery was allowed for an entirely different defect. We think this contention cannot be sustained; but, even if there were a variance between the declaration and the proofs, we think the defendant cannot now be heard upon the objection it makes. The controversy between the parties during the whole trial was whether a hole existed north of the south switch. No objection was made by defendant’s counsel to the introduction of any evidence under the declaration. The case was tried on the theory that the declaration alleged that the hole existed at some distance north of the south switch. Defendant’s counsel was not taken by surprise on the. trial when the proofs were offered locating the hole into which plaintiff stepped as at some distance north of the south switch. Had counsel at that time raised the question of variance between the proofs and the declaration, the court undoubtedly would have permitted plaintiff to amend his declaration. Ross v. Township of Ionia, 104 Mich. 320 (62 N. W. 401); Grattan v. Village of Williamston, 116 Mich. 462 (74 N. W. 668).

Several requests were asked by the defendant in reference to the location of the hole, among which was the following:

“ If the evidence does not show that the plaintiff’s injury was caused by his stepping into a hole at that place [that is, a hole located outside of the east rail, at a switch leading from the main track of defendant’s road], the verdict should be for the defendant. The evidence must show the manner in which the plaintiff was injured, or there can be no recovery. The jury are not permitted to guess or conjecture as to the manner in which the plaintiff’s injury was caused.”

This request was refused, and the court charged the jury:

“It was the duty of the defendant to provide a reasonably safe place for the plaintiff to do his work in, and, if you find by a preponderance of the evidence in this case that the defendant failed to keep the track at the place where the plaintiff claims he was injured in a reasonably safe condition, then the defendant is liable, and your verdict should be for the plaintiff, unless you find that the plaintiff in some way contributed to the injury. * * * In determining the question of carelessness and negligence on the part of the plaintiff, the jury will take into consideration all the facts and circumstances proven, including the condition of the track between the two switches described by the witnesses at the place where the plaintiff claims that he was injured, and also what it is claimed he said to the other witnesses. * * * If you should find that the track north of the switch was not ballasted even with the top of the ties, or that there was an excavation or hole, as claimed by the plaintiff, he cannot recover, unless you further find that he was free from negligence; and he must satisfy you of these facts by a preponderance of the evidence. * * * But it is claimed by the plaintiff that he was not injured at the switch, and that the hole in which he claims his foot was caught, and threw him under the car, existed along the main track north of the switch. If this is true, then it was not a risk which the plaintiff assumed, and he is not precluded from recovery upon that ground, providing you find that he is free from negligence.”

We think there was no 'error in the refusal of the request, as the court fully explained the contentions of the parties.

Defendant’s attorney asked the court to charge the jury:

“The railroad company’s rules provided that, before exposing himself to danger, it was the plaintiff’s duty to examine the condition of all machinery, tools, cars, engines, or track that he was required to use in the performance of his duties, and to satisfy himself, so far as he reasonably could, that they were in safe working order, and that it was the plaintiff’s right and duty to take sufficient time to make such examination, and to refuse to obey any order which would expose him to danger. The rules further provided that entering between cars and engines in motion to couple or uncouple them should never be done except under favorable conditions, such as low rate of speed, absence of frogs, switches, guard rails, etc., and where good footing could be obtained, and then only when necessary. The evidence shows that Mr. Jarvis did not obey this rule, and the verdict should be for the defendant.”

The court charged the jury on this point:

“The defendant provided the plaintiff with rules for his guidance and direction, and it was his duty to follow the instructions given. One of these conditions is that it was the plaintiff’s duty to examine the condition of all machinery, tools, cars, engines, and track that he was required to use in the performance of his duty, and to satisfy himself, so far as he reasonably could, that they were in safe working order, and that it was the plaintiff’s right and duty to take sufficient time to make such examination, and to refuse to obey any order which would expose him to danger; and if you find from all the evidence in the case, and the surrounding circumstances, that the plaintiff did not take sufficient precaution in doing his work, he is not entitled to recover; but in considering these questions you are to take the surroundings as they were, and as they have been testified to by all of the different witnesses. Did plaintiff act as a prudent and a cautious man would under like circumstances? * * * The rules further provide that entering between cars and engines in motion to couple or uncouple them should never be done except under favorable conditions, such as low rate of speed, absence of frogs, switches, guard rails, and where good footing could be obtained, and then only when necessary. It is for you to determine, from all the evidence and circumstances in the case, whether the plaintiff violated the rules or not, keeping in. mind the rules that were offered in evidence and read to you; and, if you find that he did not, he is not precluded from recovery upon those grounds. Plaintiff was not compelled to enter between the cars to make this uncoupling from anything that the conductor might have said to him, as the testimony in this case shows that the train was under his direction when he attempted to make the uncoupling. It is for you to say, from all the testimony and circumstances in the case, whether he exercised that care and precaution that a prudent person would in uncoupling the cars as he did, and at the place he did.”

It is contended by defendant’s counsel that the testimony is undisputed that the plaintiff disobeyed these rules. If the plaintiff’s testimony and the testimony of his witnesses be true, that the hole existed outside of the rail of the track north of the south switch, and plaintiff was injured at that place, and not at the switch, as contended by defendant, we think the court was not in error in his charge in reference to these rules. It would have been negligence on the part of the company to leave a hole at the point in the track or roadbed where the plaintiff contends he was injured; and we think it was a question for the jury to determine whether, if the hole was at that place, the plaintiff was guilty of negligence in going between the cars while in motion at that rate of speed, and attempting to uncouple them. It would be no disobedience of the rules to enter there under the circumstances he related. He was an experienced brakeman. It was shown he- was accustomed to couple and uncouple cars in moving trains, if the other conditions were favorable. He had been accustomed to do switching over this track for several months, almost daily, and sometimes twice a day. He must have been familiar with the roadbed between these switches. The switches were from 25 to 28 feet apart. He had a right to believe that the company would keep its main track evenly ballasted between these switches, and he would have been in no more danger in running upon the ground between the switches, even though it was dark, if the company had discharged its duty, than he would have been in any other place- along the roadbed farther away from the switches. If he was injured at the switch,— that is, if the hole existed at the switch, and not at a distance from the switch, — the rule would be very different, and if he entered there it would have been a disobedience of the rules.

In Denver, etc., R. Co. v. Smock, 23 Colo. 456 (48 Pac. 681), it appeared that the plaintiff went before a train moving faster than a walk to make a coupling, and, observing that the link would not enter the drawhead, started to get out, when he was injured. A rule of the company required that employés “must be particular to notice the speed of the cars while moving, and, if at a dangerous rate, no attempt must be made to couple by getting between them.” Of this rule the court said:

“ It requires the utmost care in coupling or uncoupling cars, and directs employés to notice in particular the speed of the cars, and, if moving at a dangerous rate, they are not to attempt to couple them; but it leaves the question of what is a dangerous rate of speed to be determined by the employe.”

And so the rule in the present case does not prohibit the employé from entering between cars to couple or uncouple, but leaves him to judge of the favorable conditions, the rate of speed, and whether or not the footing is sufficient to warrant him in entering between them.

It is said that that part of the charge was erroneous where the court instructed the jury (using counsel’s punctuation):

“ It is for you to determine, from all the evidence and circumstances in the case, whether the plaintiff violated the rules, or not keeping in mind the rules that were offered in evidence and read to you; and, if you find that he did not, he is not precluded from recovery upon those grounds.”

That this is a distinct statement to the jury that if, from all the evidence and circumstances, they found that the plaintiff violated the rules, or did not keep them in mind, those facts would not preclude him from recovery; that this charge took the rules, and the observance of them, out of the case.

We think the learned counsel for defendant entirely mistakes the meaning of this charge. In the stenographer’s notes of the original charge a comma is omitted after the word “not,” making the sentence read as quoted by counsel, and which possibly might have the interpretation contended for by him; but with the punctuation more in accordance with grammatical construction, and in accordance with what was involved in the case, the sentence reads:

“It is for you to determine * * * whether the plaintiff violated the rules or not, [ you, the jury] keeping in mind the rules that were offered in evidence and read to you; and, if you find that he did not [violate the rules], he is not precluded from recovery upon those grounds.”

We think this is the most natural meaning, and that the jury could not have misunderstood it. So interpreted, there is no error in this charge.

From a careful examination of the whole record we are satisfied the case was fairly tried, and that no error of which defendant can complain was committed.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    SCHOLTZ v. FREUD.
    1. Partnership — Evidence.
    Where two persons were sued as partners, and one of them defaulted, his statements, tending to show the existence of a partnership, should have been excluded.
    2. Same — Harmless Error.
    But their admission was not reversible error, the court having instructed that they were not binding on the other defendant-
    S. Same — Instructions.
    In an action to charge two persons as partners, it was error to instruct that “participation in the profits of -'an enterprise is at least some evidence of a partnership between the parties so participating,” where such instruction, taken in connection with what preceded it, would warrant the inference that the finding of a partnership might rest on such evidence alone, without regard to the truth of defendants’ contention that the profits were shared in part payment for a loan from one defendant to the other.
    4. Same — Evidence.
    It was also error to refuse to permit defendants to testify as to the relations existing between them, and as to who were in fact interested in the business, on the ground that the questions called for conclusions of law.
    Error to Saginaw; Snow, J.
    Submitted April 19, 1901.
    Decided July 19, 1901.

      Assumpsit by Otto Scholtz against Julius Freud and Robert McKinney, copartners as the American Potato Flour Company, Limited, for goods sold and delivered. From a judgment for plaintiff, defendant Freud brings error.
    Reversed.

      Humphrey & Grant {Henry M. Butzel, of counsel), for appellant.

      John F. O'Keefe, for appellee.
   Hooker, J.

Previous to January 1, 1897, a corporation called the “American Potato Flour Company, Limited,” was engaged in the business of manufacturing and selling potato flour, and owned a building in which it carried on business in Saginaw. Robert McKinney was superintendent and owner of an interest in the patent under which it operated, and Michael Keenan was interested as a stockholder. In the year 1896 it contracted for potatoes, and many were delivered and manufactured. Not having money to pay for all contracted, some potatoes belonging to the plaintiff were stored in his name. It was a disputed question whether or not the American Potato Flour Company resumed business; but in the spring of 1897 the business was conducted by some one in the name of the corporation; Mr. Keenan testifying for plaintiff that this name was used by defendants because of the reputation of its product. An arrangement was made to take plaintiff’s potatoes, and they were manufactured and the product sold, and the plaintiff has sued in this action these defendants as the purchasers of his potatoes, and recovered a judgment. McKinney suffered judgment upon default. Defendant Freud has appealed.

The most important question in the case is whether there is any evidence establishing prima facie a partnership. The plaintiff claims, and Keenan testified, that the corporation became insolvent in 1896; that he, Keenan, carried on the business for his sole benefit, under the name of the defendant company, from April 10 to May 20, 1897. Plaintiff asserts that after May 20th Freud and McKinney were copartners, and that he received for 2,264 bushels of potatoes three due-bills, dated, respectively, May 25, $407.75, June 2, $123.25, and July 9, $21. Most of the testimony claimed to show that Freud was a partner consists of conversations with McKinney. McKinney was a defendant, who had permitted his default to be entered. He thereby admitted his liability, and the amount of damages only was to be determined. See 1 Green, Prac. 460. There was therefore no occasion to show the statements of McKinney, and they should have been excluded. As the court told the jury, such statements were not binding upon Freud. Counsel claim that this instruction was equivocal, and contend that it was probably understood to mean that they were not conclusive evidence of partnership against Freud. We think that it would have been better to have given defendant’s fourth request; but the language used should not have been misunderstood, especially as the subject had been mentioned several times during the trial. Many pages of the briefs of counsel have been necessarily devoted to a discussion of the testimony, for the purpose of showing whether or not the question of the existence of a copartnership should have been left to the jury. We cannot elaborate our conclusions, but, after a patient examination of both briefs and record, we are of the opinion that the court could not have done otherwise than submit the question of fact to the jury.

We do not need to discuss the question whether participation in profits alone necessarily makes persons copartners in all cases, as the court did not so charge the jury. It certainly does not. See Dutcher v. Buck, 96 Mich. 160 (55 N. W. 676, 20 L. R. A. 776); Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 616 (65 N. W. 761). The instruction was given that participation in the profits of an enterprise is at least some evidence of a partnership of the parties so participating. Doubtless this instruction was based upon the language used in Dutcher v. Buck, 96 Mich. 163 (55 N. W. 677, 20 L. R. A. 777), where it is said:

“ Much controversy has arisen over the conclusiveness of profit sharing as to the liability to third persons of such profit sharer. The authorities upon that question are not harmonious, even in our own State. All, however, agree that profit sharing is evidence tending to show partnership. It was held in Beecher v. Bush, 45 Mich. 188 (7 N. W. 785, 40 Am. Rep. 465), and in Colwell v. Britton, 59 Mich. 350 (26 N. W. 538), that merely sharing in profits, where third persons have not been legitimately led to believe there was a partnership, does not create one as to them, unless there was one in fact. In hoth of those cases, however, the party sought to be charged as a partner received a percentage of the proceeds as a measure of compensation, — the one as rental, and the other as commission. Both come within the generally recognized exception to the rule laid down by a large number of authorities, that, as to third persons, profit sharing is conclusive as to liability.”

In the present case it was claimed, and there was considerable testimony tending to show, that this profit sharing was in part payment for a loan. The instruction quoted followed the instruction that:

“I submit to you as a question of fact, to be determined from the evidence in this case, whether the defendants, Freud and McKinney, were doing business as co-partners at the time the plaintiff sold and delivered his potatoes; and if you find that they were, and that the potatoes were sold, and as such copartners they purchased plaintiff’s potatoes, then they are jointly liable. If you find it to be a fact, from the preponderance of the evidence in this case, that each of these defendants participated in the profits made from the manufacture and sale of the flour made from the plaintiff’s potatoes, and that they were jointly interested as coprincipals in the purchase of the potatoes, and their manufacture into flour, and sale of the flour, they are jointly liable for the purchase price of these potatoes, even though there were no partnership relations existing between them in reference to this transaction.”

The inference naturally to* be drawn from the instruction that “participation in profits is some evidence,” etc., is that, if there was difficulty in finding that they were jointly interested as “coprincipals,” the fact that they participated in the profits was sufficient evidence of partnership to sustain a verdict in the case. In view of the defense it clearly was not, if the defendants’ testimony was believed.

We think the court was too strict in refusing to permit the defendants to testify what relations existed between them. The witness Keenan was permitted to testify to conclusions in relation to Freud’s interest in the business, although it was not shown that he had any means of information. McKinney certainly knew whether the business was carried on by himself and Freud after May 1st, and whether the corporation was interested in it, but his testimony was rigidly excluded, upon the ground that it involved a conclusion of law. He certainly knew how long the corporation ran the business, and when it ceased, and whether it had an interest in the business in 1897. We think that the defendant Freud was entitled to the benefit of an explicit denial of interest in the potatoes.

Many other questions are raised, which do not call for consideration.

The judgment is reversed, and a new trial ordered.

Moore, Long, and Grant, JJ., concurred. Montgomery, C. J., did not sit.


author: Long, J.

text:
    HILL v. KALAMAZOO PROBATE JUDGE.
    Estates op Decedents — Wills —Election op Widow — Waiver op Allowance por Support.
    A widow, by electing to take under the will of her husband, which gives her a life estate in his realty “in lieu of all other rights, claims, and demands which she may have in or against ” his estate, does not waive her right to an allowance under 3 Comp. Laws, § 9289, for her support during the progress of the settlement of the estate.

      Certiorari to Kalamazoo; Adams, J.
    Submitted June 4, 1901.
    Decided July 19, 1901.

      Mandamus by Manfred Hill, executor of the last will and testament of William Jenkinson, deceased, and William Frakes and Grace Hartman, legatees under said will, to compel James E. White, judge of probate of Kalamazoo county, to vacate an order of allowance for the support of decedent’s widow during the administration of the estate. From an order denying the writ, relators bring certiorari.

    Affirmed.

      Osborn & Mills, for relators.

      A. M. & C. H. Stearns, for respondent.
   Long, J.

William Jenkinson died in January, 1900, leaving a last will and testament, which has been duly admitted to probate. An appraisal of his estate showed about $14,000 in real estate and $15,000 in personalty. Commissioners on claims were appointed, and claims to the amount of $5,800 were presented. The deceased left surviving him a widow and several adult children of a former wife. The will contains the following clause:

“I give and devise unto my wife, Patience Jenkinson, of the village of Vicksburg, for and during her natural life, all the real estate that I may own at the time of my death. The foregoing devise is in lieu of all other rights, claims, and demands which the said Patience Jenkinson may have in or against my estate.”

On December 29, 1900, the widow filed with the probate court the following election:

“In the matter of the estate of William Jenkinson, deceased: Now comes Patience Jenkinson, widow of said deceased, and elects to take under the provisions of the last will and testament of said deceased, said will having been executed on the 31st day of December, 1899, and duly admitted to probate in this court on the 24th day of April, 1900.
[Signed] “ Patience Jenkinson.”

On March 15, 1901, the widow filed a petition in the probate court, praying a weekly allowance to her out of the personal estate of said deceased for the support of herself and family during the progress of the administration and settlement of the estate, as provided by law, and alleged therein that her family consisted of herself only. She prayed an allowance of $25 per week, and sho was awarded by the court $15 per week, to date from the issuing of letters testamentary, and to continue for one year. An application was made to the circuit court of Kalamazoo county by the executor for a writ of mandamus to compel the judge of probate to vacate and set aside this order, on the ground that the probate court had no jurisdiction to make the order, as the widow, by accepting the conditions and provisions made for her in the will, had waived her right to such an allowance. The circuit court denied the writ, and the case comes into this court by writ of certiorari.

Section 9289, 3 Comp. Laws, provides:

“All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts and the expenses of administering his estate; and the probate court may make such reasonable allowance as may be judged necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.”

We think there can be no question but that it was entirely within the discretion of the probate court to fix an allowance, under this statute, for the widow, which sum does not seem to be excessive, and this court has no power to disturb it. Bacon v. Kent Probate Judge, 100 Mich. 183 (58 N. W. 835); Pulling v. Wayne Probate Judge, 85 Mich. 34 (48 N. W. 48).

The order below must be affirmed.

The other Justices concurred.


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    BELDING LAND & IMPROVEMENT CO. v. CITY OF BELDING.
    1. Municipal Corporations — Public Lighting —Right to Contract — Construction of Statute.
    Act No. 186, Pub. Acts 1891 (1 Comp. Laws, § 3437 et seq.), authorizing cities to contract for public lighting, is not limited in its application to cities whose charters provide the manner for letting such contracts, by reason of the proviso therein that the contract shall be entered into in the manner prescribed by the charter, but merely requires a conformity .to any existing charter requirements.
    2. Same — Title to Act— Commercial Lighting — Act Void in Part.
    The act purports as well to give the city the alternative right to construct and operate its own plant, and in such case to supply its inhabitants with lights. Held, that, conceding the provision for commercial lighting not to be within the title to the act, which relates to public lighting alone, the invalid part of the act may be rejected, and the authority to contract for lighting sustained.

      3. Same — Repeal of Statute — Prior Aot Subsequently Taking Effect.
    The act was not affected by Act No. 115 of the same session, relating to the same subject, which, while taking effect at a later date, was passed at an earlier one.
    4. Same — Special Charters.
    The act is applicable to a city operating under a special charter subsequently enacted.
    5. Same — Prerequisites to Contract.
    Under the act, tho adoption of a resolution of expediency, or a submission to a vote of tho electors, is not a prerequisite to the right of the council to contract for the furnishing of lights.
    6. Same — Limitation on Amount of Liability.
    A charter provision forbidding the incurring of any liability, in addition to that provided for by the annual appropriation bill, during the year for which the appropriation was made, will not prevent tho city from entering into a contract for lighting under the act in question; the utmost effect that can be given to such provision being to prevent any payments for lighting for the remainder of the fiscal year.
    7. Same — Contract with Promoters of Corporation.
    Under the act, a city may lawfully contract with the promoters of a corporation thereafter to be organized.
    8. Same — Competitive Bidding.
    There is nothing in the act which requires the proposed contract to be submitted to competitive bidding.
    Appeal from Ionia; Daboll, J., presiding.
    Submitted May 9, 1901.
    Decided July 19, 1901.
    Bill by the Belding Land & Improvement Company against the city of Belding, its mayor and common council, tho Citizens’ Light Company, and the Spencer Electric Light & Power Company, to enjoin the carrying out of a municipal contract. From a decree dismissing tho bill, complainant appeals.
    Affirmed.

      George E. & M. A. Nichols and I. L. Hubbell (John W. Champlin, of counsel), for complainant.

      Morse & Locke, for defendant city.

      Dwight G. Sheldon and Myron H. Walker, for defendant Citizens’ Light Co.
   Hooker, J.

The complainant is a resident of Belding, in this State, and some of its larger stockholders are interested as stockholders in a concern, presumably a corporation, known as the Spencer Electric Light & Bower Company, which was engaged in the business of commercial lighting in the city. In.the year 1898 the city advertised for bids for street lighting, and the Spencer Electric Light Sc Power Company made a proposition, which it after-wards withdrew, when another offer was accepted, and a conditional contract was made with some citizens to form a corporation, erect a plant, and furnish street lights for a stipulated price. The bill in this cause was filed to enjoin the carrying out of the contract, and was dismissed upon the hearing. The complainant has appealed.

The grounds upon which complainant asks relief are (1) that the council has not authority to make the contract, under the law; (3) that it has not complied with the law; and (3) that there was collusion between the council or its members and the persons with whom they sought to contract, to prevent competitive bidding.

There are two sources from which Belding might derive authority to make its contract — First, its charter; second, Act No. 186, Pub. Acts 1891 (1 Comp. Laws, § 3437 et seq.). Either is sufficient, if authority can be found in it. Act No. 186 is an independent act, and is held to apply to all cities of the prescribed class which were in existence when it was passed, or have been created since. It is contended that it cannot apply to a city whose charter does not provide the manner for letting contracts for public lighting, which it is said the charter of Belding does not. This seems to us a forced construction; a more reasonable one being that it applies to all cities, but requires conformity to charter requirements when they exist. The letting of a contract for a period of 10 years is not so complicated a transaction as to require specific provisions for so doing. In the absence of charter provisions, the council may make a contract with any one whom it chooses.

It is also contended that this act is unconstitutional, because, by providing that cities may do commercial lighting when they erect municipal plants, it is made broader than the title. We think that commercial lighting may be essential to make a municipal plant self-sustaining, and that a provision for it might, perhaps, be within a reasonable construction of such a title. But we find it unnecessary to decide this question, for the reason that such provision might be eliminated, and leave a valid act. It has no importance, therefore, in this case, because the city has not attempted to build a plant. We are of the opinion that it is not affected by Act No. 115 of the same session, which was passed earlier, though it took effect later. Counsel cite no authority for the claim that an act given immediate effect is repealed by one passed earlier, but not given immediate effect. We doubt if such authority can be found.

It is claimed that Act No. 186 cannot apply to Belding, which has a special charter, passed two years after the enactment of Act No. 186. See Act No. 313, Local Acts 1893. We see no difference in this respect between a city specially chartered and one organized under the provisions of the general statute. As said of the waterworks statute, to which this is analogous, in the case of Menominee Water Co. v. City of Menominee, 124 Mich. 395 ( 83 N. W. 130), the act “is a substantive and independent enactment. The city having availed itself of its provisions, the act stands a part of its charter, as a separate chapter dealing with the specific subject. * * * When so read, the case comes directly within the principles laid down in Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234).” We think these cases conclusive of the question of power under the act, if the steps taken entitled the council to act under it. It is complainant’s claim that, before it could do so, it was necessary to submit' the question whether or not the electors would avail themselves of the provisions of the act, and that this could only be done upon a petition of 100 freeholders, and a resolution which gave the electors the opportunity to determine whether they would have a contract or a municipal plant. Section 2 of Act No. 186 should be reasonably construed. It adopts Act No. 5 of the Session Laws of 1870; but as that act nowhere alludes to contracts, and was designed only to provide for the erection of municipal plants, it should not and cannot be held to prescribe a method for contracting. Moreover, said section 2 provides that the council shall havo power to take action under Act No. 186 whenever it shall by resolution declare it to be expedient to acquire or construct, or whenever it shall deem it expedient to contract. This it may do by virtue of section 1, which makes it lawful for any city to construct or purchase or contract at such times and on such terms as the common council shall direct. But section 2 puts some limitations on this power, and an important one is that, if the council contracts, it must be in a method that conforms to its charter, and for not less than three nor more than ten years. Having thus provided for contracts, a restriction is placed upon the power to purchase or construct a plant, by providing that the council shall, after having by resolution declared the expediency, submit the question of purchase or construction to a vote of the electors. What was the object of section 3 ? Obviously, to impose a duty upon the council where the others gave power, and to compel action whenever 100 freeholders should petition for it. This act does not require a resolution of expediency, nor is a vote of the people necessary, before a contract may be made. The council may lawfully make a contract whenever it deems it expedient, and the making of the contract would be a sufficient declaration of expediency.

It is unnecessary to discuss the questions based alone on the authority of the charter itself, including limitations on, the power to contract liabilities. So far as applicable to the case, those questions are covered by our previous rulings in cases cited in- the briefs of counsel. Counsel attempt to distinguish this case from those of Monroe Water Co. v. Heath, 115 Mich. 277 (73 N. W. 234), and Ludington Water-Supply Co. v. City of Ludington, 119 Mich. 480 (78 N. W. 558), upon the ground that in those cases the charter only prohibited excessive indebtedness, whereas in this the word “liability” is used. An examination of section 14, chap. 29, Act No, 313, Local Acts 1893, will show a limitation on the prohibition. It is confined to the fiscal year, and is as follows;

“After the passage of the annual appropriation bill, no further sums shall be used, raised, or appropriated, nor shall any further liability be incurred for any purpose, to be paid from the general fund or street-district fund, during the fiscal year for which the appropriation was made, unless the proposition to make the appropriation shall be sanctioned by a majority vote of the electors voting upon the proposition at the next annual city election, or at a special election to be called therefor by the council.”

We are of the opinion that this provision does not forbid a contract for lighting under Act No. 186. Menominee Water Co. v. City of Menominee, supra. If it is true, as claimed, that the fiscal year ends in May, and that the council had appropriated all of its funds for that year, and could not appropriate more after making the annual appropriation, the council might not be authorized to pay bills for lighting incurred before May 1, 1899, which was probably as early as a plant could have been put in operation. However that may be, it would be a matter between the contracting parties. If no payment was made before that time, the owners of the plant only would be injured, and they are not here complaining.

The council might lawfully contract with private persons who should agree to furnish the light through a corporation to be thereafter organized. We need not concern ourselves with the questions that might arise between the city and corporation. Its contract was with the promoters, if counsel choose to call them such. It knew no other party, and need not unless it should choose to do so, unless the proposed corporation should ratify the action of its promoters, and bind itself as contemplated by the contract.

We discover nothing in Act No. 186 which requires a competitive bid. Substantially, however, there was one, if the complainant’s proposition was a bid; for the bid accepted was, as we understand it, a lower one than complainant’s,1 and competition was only prevented by its withdrawal.

Tho remaining question relates to the question of fraud and collusion between the council and the successful bidders. We are unable to find any evidence of a corrupt bargain, and agree with the learned circuit judge, who saw the witnesses, that the contract should not be held void upon that ground.

The decree is affirmed, with costs.

The other Justices concurred.

      J. e., the Spencer Electric Light & Power Company’s.


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    CITIZENS’ LIFE-INSURANCE CO. v. COMMISSIONER OF INSURANCE.
    1. Benefit Sooieties — Life Insurance — Statutes.
    2 Comp. Laws, §7217, defining the term “life-insurance companies,” within the meaning of the'statutes; and sections 7221, 7522, providing that the first-mentioned section shall not apply to co-operative and mutual benefit associations, — do not prevent such an association from being considered as a life-insurance company, within a general statute relating to such companies.
    Same — Discrimination Between Policy Holders.
    2 Comp. Laws, § 7219, prohibiting life-insurance companies from discriminating between insurants of the same class as to rates, dividends, or benefits, or from paying or allowing any rebate of premium, or other valuable consideration not specified in the policy, as an inducement to insurance, is applicable to co-operativ.e and mutual benefit associations organized under 2 Comp. Laws, § 7497 et seq.

      3. Same.
    Such section (7219) is violated where an insurance company-contracts to pay one of its officers a stated percentage of its premium receipts, with the understanding that the same shall be apportioned among certain persons, to be known as a “Board of Reference,” as an inducement to their becoming policy holders in the company. State Life Ins. Go. v. Strong, 127 Mich. 346, followed.
    4. Same — Right to Continue Business — Authority op Insurance Commissioner.
    Under 2 Comp. Laws, § 7517, providing that, on the filing of the annual statement of a benefit association, if the insurance commissioner shall find that the association is still organized and doing business conformably to law, he shall issue his certificate authorizing it to continue the business, the commissioner may withhold the certificate on finding that the association is allowing rebates in violation of law; and this though the following section provides for the institution of proceedings by the attorney general in such case.
    5. Mandamus — When Lies — Proposed Violation op Law.

      Mandamus is a discretionary writ, and will not issue to enable relator to accomplish a violation of the statute.

      Mandamus by the Citizens’ Life-Insurance Company to compel James V. Barry, commissioner of insurance, to issue a certificate renewing relator’s authority to do business.
    Submitted June 4, 1901. '
    Writ denied July 19, 1901.

      Henry C. Walters (John W. McGrath, of counsel), for relator.

      Horace M. Oren, Attorney General, for respondent.
   Hooker, J.

The relator is a domestic co-operative or mutual benefit association, to which the respondent, the State commissioner, has refused to issue a certificate, which in this proceeding it asks a mandamus to compel. The relator was organized in October, 1899, under Act No. 187 of the Public Acts of 1887. Tho reason given for such refusal is that, upon investigation required by law, respondent has found that relator is not doing business in. conformity to law, and therefore he is not at liberty to issue such certificate. A more detailed statement is found in respondent’s answer. It states that the relator, soon after its organization, and prior to June 6, 1900, promulgated a plan of doing business which involved the appointment of a “Board of Referenco,” as it was called, consisting of an indefinite number of persons, who, in consideration of appointment upon said board, became members and policy holders, with the alleged duty to give such information as they might possess concerning the plans, purposes, methods, and management of the company, etc., and entitled to receive certain compensation from the company, in the shape of a definite percentage of a fund set apart from the premiums for that purpose. The answer sets up that the respondent is informed and believes that such payment was in the nature of a rebate of the premium upon the policies of the several and respective members of the board, and in violation of section 7219 of the Compiled Laws, commonly called the “Anti-Rebate Law.” It states, further, that respondent’s predecessor took the same view of this contract, and forced relator to discontinue the plan; and that thereupon, and on June 6, 1900, relator resorted to a su'bterfuge to accomplish the same thing, by entering into a contract with one Miller, its president, whereby it agreed to pay to said Miller, for the period of 30 years, in monthly installments, a sum equal to 5 per cent, on its entire gross premium receipts upon policies of insurance, with the contemplation and understanding that Miller should enter into contracts with persons designated by him, to be known as “references,” who should receive a pro rata proportion of said fund as an inducement to taking'insurance, and substantially as a rebate upon their premiums. The following is a copy of the contract:

“This agreement, made and entered into this sixth day of June, 1900, by and between the Citizons’ Life-Insurance Company, a corporation existing under and by virtue of the laws of the State of Michigan, party of the first part, and Albert Shakespeare Miller, of the city of Detroit, in the county of Wayne and State of Michigan, party of the second part, Witnesseth: That whereas the said party of the second part has been chiefly instrumental in organizing the Citizens’ Life-Insurance Company, in formulating the plan of insurance adopted by said company, in preparing the articles of incorporation, by-laws, rules, regulations, and forms of procedure, preparing applications for insurance preparatory to a license being granted the company, in securing the co-operation of the other gentlemen connected with said company, and in advancing money on account of expenses of organization and incorporation :
“ In consideration whereof the party of the first part, in payment for the services so rendered, hereby agrees to refund to the party of the second part, his heirs, administrators, or assigns, a sum equal to five per cent, of the entire gross premium receipts of said company upon policies of insurance issued by it, to be paid in monthly installments, as said premiums are received, for a period of thirty years from and after the date of the incorporation of said party of the first part.
“In witness whereof the said party of the .first part has by its secretary and treasurer, who have been duty authorized so to do, exécuted this agreement, and has affixed its corporate seal, on the day and year first above named.
[Signed]- “Citizens’ Life-Insurance Company,
[Seal.] “By George B. Miller, Secretary, and
“Cyrenus G. Darling, Treasurer.
[Signed] “ Albert Shakespeare Miller.”

The answer states further that said Miller proceeded to enter into contracts with policy takers similar in substance and form to the contract previously made by the company, whereby such policy holders receive a payment or rebate of 5 per cent, of their premiums, and that such contracts are still made, and that fraudulent representations are made to obtain them, to' the effect that such board of reference will be limited to a small number, viz., 12, and that the pro rata proportion of said sum to which each will be entitled will be a considerable amount of money, whereas said contracts are made with half of the policy takers, or more; that relator has been informed of these facts, if it did not already know them, and persists in operating its said plan. No issue was made upon this answer, and we must take it as true.

Relator contends:

1. That the anti-rebate law does not apply to companies organized under Act No. 187 of the Laws of 1887.

2. That the facts do not show a violation of the anti-rebate law, if it does apply to them.

3. That the law does not permit the insurance commissioner to withhold his certificate when the annual report is filed, but provides for the institution of proceedings by the attorney general.

The first proposition is based upon 2 Comp. Laws, § 7221, which was passed in 1877, and provides that certain sections (i. e., 10 and 29) of an act mentioned (one being section 7217) shall not be construed to apply to or in anywise affect mutual benefit and co-operative associations, organized or to be organized. The anti-rebate law was passed in 1889. 2 Comp. Laws, § 7219. We understand that counsel claim that co-operative and other benevolent associations should not be considered within the term “life-insurance companies,” which term is defined by section 7217. The anti-rebate law provides that no “life-insurance company,” etc.; so that, if relator cannot be called a life-insurance company, it is not affected by it.

If we give relator the benefit of its contention regarding section 7217, and say that it does not apply to this corporation, we do not necessarily conclude that it is not a life-insurance company. Unless the propriety of calling it a life-insurance company depends only on section 7217, we are not precluded from considering it such. If we treat section 7217 as obliterated or repealed, — and that must be the extent of the effect of sections 7221, 7522, — what is the status of the relator? It may still be a life-insurance company, if its organic act so provides, or, in case that is silent, if it falls within the settled definition of life-insurance companies, which we think that it does, within the authorities cited by counsel for respondent. We quote from his brief: Bacon, in his work on Benefit Societies and Life Insurance (2d Ed., § 52), says:

“It follows from the foregoing adjudications that all benefit societies, whether corporations or mere voluntary associations, are, strictly speaking, insurance organizations, whenever, in consideration of periodical contributions, they engage to pay the member or his designated beneficiary a benefit upon the happening of a specified contingency. * * * It may be also asserted as a general principle that wherever or whenever a benefit society, paying a benefit to the beneficiaries of its deceased members, claims to be exempt from the operation of certain laws applicable to persons or companies doing a life-insurance business, it can only safely base such claim .upon express provisions of its charter or of the statutes exempting similar organizations from such liability. The association, may be benevolent and charitable, and only incidentally provide benefits for its members or their beneficiaries; but, nevertheless, when it contracts to pay a certain sum to the appointees of its members upon their decease while in good standing, in consideration of certain contributions made by such members while living, it is doing a life-insurance business. We shall find, as we proceed further to discuss the questions concerning the contracts and liabilities of benefit societies, that many of the principles of the law of life insurance are applied to these societies, because they are in some respects simply life-insurance companies, doing business on a plan only partially different from that of regular life-insurance organizations.” .

In Rensenhouse v. Seeley, 72 Mich. 603 (40 N. W. 765), it is said:

“These associations, whether corporations or mere voluntary associations, are, strictly speaking, insurance organizations, whenever, in consideration of periodical contributions, they engage to pay the member or his designated beneficiary a benefit upon the happening of a specified contingency. Although they may also partake of the nature of fraternal societies, yet, whether the benefit be paid for sickness or to accumulate a fund out of which payments are to be made to beneficiaries of deceased members, the contract falls within the definition of an insurance contract; that is, an agreement by which one party, for a' consideration, promises to make a certain payment of money upon the destruction or injury of something in which the other party has an interest. Com. v. Wetherbee, 105 Mass. 149; Franklin Beneficial Ass’n v. Com., 10 Pa. St. 357.”

People’s Mut. Ben. Soc. v. Lester, 105 Mich. 716 (63 N. W. 977); Miner v. Benefit Ass’n, 63 Mich. 338, 341 (29 N. W. 852); Bolton v. Bolton, 73 Me. 299; 1 Joyce, Ins. § 346.

We think the anti-rebate law (section 7219) applies to the relator.

The second point is settled by the recent case of State Life Ins. Co. v. Strong, 127 Mich. 346 (86 N. W. 825), in which we held a note given for a policy void because the policy was issued in violation of the anti-rebate law. The contract was similar to this one in many respects.

In answer to the third contention it would be enough to say that, inasmuch as upon this record it appears that relator is not complying with the law, we cannot be expected to aid it in its intended violation by the discretionary writ of mandamus; but we think that section 7517 provides for the issue of a certificate only when from the statement, and the examination if one is made, the commissioner shall find that the company is still organized and doing business in conformity to law.

The writ is denied, with costs.

The other Justices concurred.


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    REAM v. ROBINSON.
    1. 'Tenancy in Common — Foreclosure—Purchase by Co-Tenant — Rights of Parties.
    A purchase by a tenant in common of the common property at foreclosure sale inures to the benefit of his co-tenants, though he did not acquire his original interest jointly with them, and was not in possession at the time of the sale.
    2. Same — Aooountingi—Appeal.
    Evidence reviewed, and held to establish the claim that a conveyance by defendant to his son was antedated, to enable defendant to escape his accountability to complainants as a tenant in common with them; and the rights of the several parties were adjusted on the basis of the existence of that relationship.
    Appeal from Newaygo; Palmer, J.
    Submitted June 5, 1901.
    Decided July 19, 1901.
    Bill by Etta Ream and Daniel Boyden against Issachar N. Robinson, Albert M. Robinson, and Rachel Holbrook to set aside a deed, and for an accounting and a partition. From a decree dismissing the bill, complainants appeal.
    Reversed.

      F. W. Cook (Martin JRozema, of counsel), for complainants.

      George Luton, for defendant
   Hooker, J.

In 1871 David W. Boyden died intestate, leaving a farm of 27 acres to his three children, Etta Ream, David W. Boyden, and Daniel Boyden, subject to the rights of his widow, their mother. In 1880 the widow, now Rachel Holbrook, as administratrix of her deceased husband’s estate and in her own right, mortgaged the premises for $275. On December 2, 1897, defendant Issachar N. Robinson obtained an assignment of this mortgage to one Julia M. Rice, for whom he was, and for some time had been, acting as agent. On October 5,1891, there was due on this mortgage the sum of $460, and upon that day Etta Ream paid $60 upon it, and on April 26, 1892, she paid $80, and on June 5, 1893, $30 more, making a total of $170 paid by her. David W. Boyden paid $45 upon it. Daniel paid nothing. Mr. Norton, a tenant, paid $136 to apply on the mortgage and interest. At the time Julia M. Rice bought it, the complainants claim that there was but $232 due upon it, and that Etta Ream had paid more than one-third of the mortgage, and interest computed to the time of hearing this cause in the circuit court.

On December 24, 1897, defendant Issachar N. Robinson bought the interest of David W. Boyden for $75. This was 22 days after he took an assignment of the mortgage to Julia M. Rice. About three weeks later he began foreclosure proceedings by advertisement, using, by permission, the name of another as attorney, but attending to the business himself, and at the sale bid the property in for himself. Immediately after bidding in the property, he wrote the following letter to Mrs. Ream:

“Fremont, Mich., April 19, 1898.
“Mrs. Ream: That mortgage on the 40 acres in which you hold an interest was foreclosed, and I bid in the land, and if you wish to give me a quitclaim deed for $75, the same that I paid your brother David, I will give you that amount. I have talked with your brother Daniel, and he says he will sell his interest for the $75 if you wish to sell yours. The land is in very poor shape, and has so many milkweeds on it, and continual cropping and not putting anything back has made it in very poor shape, so this is all I feel that I can afford to pay.
“Very respectfully,
“I. N. Robinson.”

Mrs. Ream then employed an attorney, and negotiations extending over some months ensued. Being unwilling to sell for $75, she tried to buy his interest for a similar sum, and finally offered him $125 for it. Although it had costt him but $75, he refused to accept it, and, although he now pretends to have parted with his title, he was careful not to inform her or her attorney that he did not own it. A few days before the redemption would expire, Mrs. Ream’s attorney learned that she had paid more than one-third of the amount due on the mortgage, and, the deed from David W. Boyden to Issachar N. Robinson being of record, he asserted to Robinson that his foreclosure title inured to her benefit, because they were tenants in common. He testified that he told Robinson that, if he wanted to cut her off, he should have had the purchase at the mortgage sale made by some one else. According to the witness, he did not deny his ownership of the David W. Boyden interest, and finally offered $100 for Mrs. Ream’s interest, as a present. The witness testified that he said that he still owned it, in answer to the direct question. A day or two. before the expiration of the period for redemption, a quitclaim deed of an undivided third of the premises was presented, with the request that he execute it. This he refused. Thereupon a bill of complaint was filed, and on May 13th or 14th an answer was filed, alleging that Robinson had quitclaimed his interest to his son, about 10 days after he bought from David W. Boyden, for $100 in cash. Thereupon complainants withdrew the suit, and filed the bill in this case, asking that the quitclaim deed to the son be declared void and set aside, and that an account be taken between the tenants in common, and that payment be decreed and partition had. Both Robinson and son answered.

A part of complainants’ testimony has been stated. This is corroborated by the testimony of Mrs. Ream; also by that of Mr. Johnston, to whom Issachar said, in April, 1899:

“I don’t know what real claim they have on me to pay on this matter, because I have bought the mortgage, and I already hold one-third interest in the property; but I will make her a present of a hundred dollars. ”

The register of deeds testified that on May 3, 1899, the deed was recorded; that, a short time before, he had a talk with Issachar N. Robinson about the land that had been foreclosed, and was told by him that he owned a third of it; that he told him he had made a mistake in bidding it in, inasmuch as he was a tenant in common. Robinson told him nothing about the deed to Albert at that time. The examination continued as follows:

Q. Didn’t he, while he was there, say something to you relative to the feasibility or the idea of executing a quitclaim deed to his son, or to somebody, of the one-third interest, and getting a deed back ?
“A. Not that I remember of.
Q. Don’t you remember a remark of that kind by him ?
“A. No; I don’t think I do.
‘ ‘ Q. Haven’t you any recollection of that ? Something of that nature was said by one or the other of you?
“A. Well, I wouldn’t want to swear to it. There possibly might have been something said in that direction. To the best of my memory, I think there was a little something said about it, but I wouldn’t want to be— I wouldn’t want to swear to it, but to the best of my recollection there was something said about a quitclaim deed; but that is not a matter I would care to take my oath upon.
Q. Your recollection is not very clear upon it ?
“A. Not very clear upon it.
Q. But is your recollection to some extent, also, that the remark was that the deed would be dated back ?
“A. No; I don’t remember anything about it. As I said, I wouldn’t want to swear to it.
Q. Your recollection is not that he said that he had already made a quitclaim deed ?
“A. No; he said nothing about that, as I remember of.
Q. Nothing to that effect ?
“A. No.
Q. But your recollection is that he then claimed to be the owner of one-third, and also the purchaser ?
“A. Yes, sir; that is what the understanding was.
Q. Between both of you ?
“A. As I understood it, he owned a one-third interest, as I understood it, in the land there, and foreclosed the mortgage on the other part, or the whole part, rather.
Q. And he said nothing to disabuse your mind of that idea ?
“A. No, sir.
Q. And did not at any time until the deed was recorded ?
“A. I don’t know as he ever said anything about it.”
On cross-examination the testimony was emphasized:
“ Q. Well, that day he didn’t state to you personally that he owned that one-third interest; you knew that from the records in the office ?
“A. Yes, I think he did, Mr. Luton; I think he said he owned a one-third interest in the land, and he had bought out one of the boys. Of course I knew, when the deed came in, that was a fact anyway.”

The substance of these conversations was denied by Robinson, while he and his wife and his mother-in-law, and the notary, who was a farmer and preacher, living at some distance in the country, testified to the execution of the deed at the time stated. Albert, to his credit, was not a witness, nor does he appear to have taken any part in this defense, further than by a joint answer, for which we are charitable enough to believe that he is in no wise responsible.

The most that can be claimed for this defense is that Issachar N. Robinson devised this scheme to acquire title to the premises for a low price by lulling Mrs. Ream into security by the thought that he was a tenant in common, which he knew that she believed prevented cutting off her interest, until it should be too late to redeem. He bought the mortgage for and in the name of a client, and immediately foreclosed it, though he knew Mrs. Ream was striving to pay it. He resorted to artifice, upon his own theory, to prevent redemption, for he does not deny that he omitted to inform her or her attorney of what he now says was the true state of the title. He says he was paid $100 for his title by his own son, yet within 10 days thereafter he proceeded to cut this off by foreclosure. He says he intended to deed it to him afterwards, if he should reimburse him. His wife testified that she understood about this matter, in fact drew some of the papers, and was ‘‘ particularly interested in it.” She understood her son bought it as an investment. She thought they could buy out the heirs, or they could get title on foreclosure, and then deed it to him. She said: “I particularly cared to have all of the title come through us.” She “didn’t want her husband to give it to the boy right out, because she wanted the boy to use his own money. He had been in college, and wasn’t posted in Business matters, as men ought to be.”

We are not impressed by the version of the alleged deeding to Albert, in preference to the more probable one shown by the testimony of complainants’ witnesses. It is urged upon the part of defendants that Issachar N. Robinson was under no obligation to pay this mortgage, and had a legal right to purchase this land, and that the title so acquired would not be held for the benefit of his co-tenants, to whom he owed no duty, not having acquired his interest under the same deed, and not being in possession. There are many authorities which recognize this exception to the general rule, although others refuse to do so, and Michigan decisions are accredited with a tendency to approve the exception; it having been held that a co-tenant may, under some circumstances, assert adverse possession. But the case seems to be within the rule of Damm v. Damm, 91 Mich. 424 (51 N. W. 1069), which appears in all important respects a similar case.

The decree of the circuit court is reversed, and a decree will be entered in this court setting aside the quitclaim deed to Albert M. Robinson, declaring that the complainants and Issachar N. Robinson are the owners in fee of the premises in equal shares of an undivided third each, subject to the right of dower of Rachel Holbrook; the shares of defendant Robinson and complainant Daniel Boyden each being also subject to a lien in favor of complainant Etta Ream for the amount of $28.15; and that Daniel Boyden’s share be subject to a lien for $165.20 in favor of the defendant Issachar N. Robinson; all sums to draw interest from June 5, 1900; and that the complainants recover costs of both courts against the defendants; and that the cause be remanded to the circuit court to enforce said liens and partition the premises by appropriate proceedings.

The other Justices concurred.


text:
    MILLER v. TOWNSHIP OF MEADE.
    1. Highways---Defects —Cause of Accident — Question for Jury.
    Plaintiff’s decedent, a boy 11 years of age, and accustomed to driving, was driving a steady team attached to a wagon loaded with lumber, on which he sat. Plaintiff was driving a similar team and load immediately in advance, of that driven by decedent. At a jog in the highway on which they were traveling, there was a culvert, which formed a part of the highway ditch in an intersecting road. From the top of the culvert to the roadbed there was an abrupt drop of six inches; and it was claimed that, by reason of the jog in the highway, it was necessary for the horses to begin turning before the wagon had passed the culvert. Decedent was run over and killed at this place. No one saw the accident, but it was discovered immediately thereafter. Plaintiff testified that his wagon lurched violently when it left the culvert. Just before the accident, decedent’s team was going along in an orderly manner, and it stopped without evidence of fright soon after decedent was run over. Held, that it was for the . jury to say whether decedent was shaken from the wagon by reason of the faulty condition of the culvert.
    2. Same — Contributory Negligence.
    Whether decedent was in the exercise of due care was also a question for the jury.
    3. Same — Previous Knowledge of Defect.
    The fact that plaintiff (decedent’s father) had noticed the dangerous condition of the culvert on crossing the same a few hours previous to the accident, but forgot to warn de- . cedent thereof, did not conclusively establish contributory negligence on the part of plaintiff.

      4. Same — Witnesses—Opinion Evidence.
    Witnesses familiar with the locality, and with the use of wagons, were competent to testify as to the necessity for a wagon coupled for 16-foot lumber to begin turning while on the culvert.
    5. Infants — Action for Death — Value of Services — Evidence.
    In an action for the wrongful death of an infant, persons acquainted with the decedent are competent to testify as to the value of his services.
    Error to Huron; Beach, J.
    Submitted June 5, 1901.
    Decided July 19, 1901.
    Case by Mathias K. Miller, administrator of the estate of Eelix Miller, deceased, against the township of Meade, for the wrongful death of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hiram L. Ghipman (Bacon & Yerkes, of counsel), for appellant.

      W. T. Bope, for appellee.
   Hooker, J.

The plaintiff’s son, 11 years of age, was driving a steady team before a wagon heavily loaded with lumber, upon which he sat. The plaintiff had left him a ■short time before to drive the team, while he should ride with a man employed by him in driving a similar team and load immediately in advance of that driven by the boy. At the place in the highway where the accident involved herein occurred, there was a culvert, which formed a part of the highway ditch in an intersecting road. There was a jog in the highway upon which these persons were traveling, which it is claimed made it necessary for the horses to begin turning before the wagon had passed the culvert. The boy was run over and killed at this spot, and it is plaintiff’s theory that he was shaken from the wagon by reason of an alleged abrupt drop of six inches from the top of the culvert to the roadbed. No one saw this accident, but it was discovered an instant later that the boy had been run over. He died soon after, and this action is brought by the father, as administrator, to recover damages. A verdict and judgment of $800 was rendered, and the defendant has appealed.

Error is assigned upon a failure to direct a verdict for the defendant upon the ground that there was no testimony showing how the accident occurred, and that it should not be ascribed to the defective culvert, in the absence of proof, and for the further reason that there was no proof that the deceased exercised due care. Error is also alleged on the refusal of the court to direct a verdict for the defendant upon the ground of the contributory negligence of the father, who noticed the defect when he crossed the culvert in the morning, yet permitted the son to drive over it in the evening without warning. Error is assigned, also, upon several rulings during the introduction of evidence, and upon the instructions relating to the rule of damages.

Defendant’s counsel cite several cases to the proposition that, where there is no evidence tending to show how an accident occurred, a jury should not be permitted to base a verdict upon speculation and conjecture. That doctrine should not be carried so far as to say that a jury may not base a verdict upon testimony fairly tending to show a probability, as in such instance the case would be beyond the realm of conjecture or speculation. The theory of the plaintiff is a plausible one. He showed a faulty condition of the culvert, and a situation of tracks and ditches that indicated a necessity for the horses to turn the wagon while its wheels were upon or back of the culvert, so that they could not pass squarely over it, whereby the wagon would naturally lurch violently. The first wagon to cross experienced this, nearly throwing the men from the load. The team was steady, and the boy accustomed to driving. The same testimony bore upon the question of the boy’s care. The natural conclusion from these circumstances is that the boy was not negligent. A minute before, his team was going steadily along in an orderly manner, under the guidance of its driver, and it stopped without evidence of fright soon after the boy was run over. It was proper to leave the entire subject to the jury. Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508).

The plaintiff testified that he noticed the dangerous condition of the culvert in the morning, and then forgot about it, and it is said that he was therefore guilty of contributory negligence in forgetting, and leaving the boy to drive over the bad place without warning. The court was requested to direct a verdict upon this ground. Instead of doing so, he gave the following charge upon the subject:

“ The father, who prosecutes this action, has a personal interest in any recovery here; consequently, if he was negligent on this occasion, which negligence contributed to the injury, there can be no recovery in this case. And in this connection you should consider the age of the boy, and the character of the load, and the father’s knowledge of the culvert, if any, and the boy’s experience, the time of day, and everything else in connection with the circumstances, and say whether it was negligence to permit this boy to drive alone over that culvert under the circumstances. The boy himself would only be chargeable with the ordinary care and prudence of an average boy of that age. As I say, the father has a pecuniary interest in this recovery, and if he was negligent, and his negligence contributed to the injury, then there can be no recovery.
“Mr. Bope: May it please the court, in regard to the consideration of the negligence of the father, we would like to have the jury instructed further that the prior knowledge of the defect in the cjilvert, coupled with the testimony of temporary forgetfulness of the defect, would not be proof of negligence.
The Court: Well, that instruction is probably nearly correct. Highways are constructed, and people, by their construction, are invited to travel upon them; and, although there may be defects in them, yet people are not prohibited by that fact from traveling over them. They are held to only reasonable care in traveling where there are defects. While you may take into consideration the fact, as this plaintiff testifies, that he drove over the culvert in the morning and noticed that there was a jolt or jar there, yet he would have a right to drive back over the same culvert, and the mere fact that he had forgotten it was there would not bar his recovery, if he was using ordinary care and prudence in driving at that time. His mere lapse of memory would not bar his recovery, but you may take the whole of the facts into consideration, and say upon the whole testimony and all the facts whether there was negligence upon his part such as would prevent his recovery.”

It was pot dark when the accident occurred, and it is not improbable that the boy saw the condition of the culvert. The court said, in effect, that they had a right to-drive over the culvert, and, if in doing so the boy was using ordinary care and prudence, the forgetfulness of his father, did not contribute to the injury. The request was properly refused; and, while he might have been asked to charge more fully on the subject of forgetfulness (see Bouga v. Township of Weave, 109 Mich. 523 [ 67 N. W. 557]), he was not, and the instructions given were not erroneous.

Several witnesses familiar with the locality and the use of wagons were allowed to testify that, in order to pass safely, it would be necessary for a wagon coupled for 16-foot lumber to begin turning while over or upon the culvert. Others acquainted with the boy were allowed to testify as to the value of his services. We think this testimony was competent, and that the witnesses showed themselves qualified to give opinions.

Some other points are raised, but we think further reference to them unnecessary. The cause was tried with fairness, and a clear and comprehensive charge was given.

The judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    JUDSON v. STONINGTON MINING CO.
    Corporations — Assignment of Stock — Validity.
    J. wrote B., inclosing a blank assignment of certain shares of stock in a corporation, saying that, if she would sign and acknowledge the same, and send it to a specified bank, he would pay her a certain sum; whereupon she sent the assignment to the bank, stating merely that it was forwarded at the request of J. The bank delivered the assignment, but J. did not remit until after B., with knowledge of the delivery, had written several letters requesting payment. When the money was finally sent, B. refused to accept it, and made a new assignment of the stock to a third person. Held, that title .to the stock passed to J. -
    Appeal from Houghton; Streeter, J.
    Submitted June 5, 1901.
    Decided July 19, 1901.
    Bill by James B. Judson against the Stonington Mining Company to wind up its affairs. From an order setting aside a sale hy the - receiver, on the petition of Joseph Croze, .complainant appeals.
    Reversed.
    In May, 1895, complainant filed a bill in chancery to wind up the. affairs of the defendant corporation. It owned the west half of section 10, township 52 N., range 36 W. The land was conveyed to the company in 1854. The company was organized December 1, 1854. Nothing was paid upon the capital stock. There were three stockholders. The number of shares was 20,000. Henry Acker, of Detroit, owned 15,000 shares; one Pomeroy, of Stonington, Conn., 4,000; and one Palmer, of Stonington, 1,000. There is no evidence that anything further was done towards carrying out the purposes of the corporation. The taxes were not paid, and various parties own the tax titles, having obtained deeds from the State. Regular proceedings were taken to wind up its affairs, a receiver appointed, a sale of the land ordered, and complainant, Judson, bought it in for $300. The sale was made August 30, 1898. On November 9,1898, it was confirmed, and a receiver’s deed issued to complainant. On October 25, 1899, petitioner, Croze, claiming to be a stockholder, filed a petition for the vacation of the order confirming the sale. This petition was granted, and from the order or decree setting aside the sale complainant has appealed.

      Chadbourne & Rees, for petitioner.

      E. C. Chapin, for complainant.
   Grant, J.

(after stating the facts). Both complainant and Mr. Croze claim to own the stock which belonged to Mr. Acker. Each claims to have obtained title thereto by purchase from his heirs. The right of Mr. Croze to interfere depends upon his title to the stock. Mr. Judson, in his bill of complaint, stated that he was the owner of 1,200 shares of the stock; that he did not know of any other stockholders, and, after diligent search and inquiry, had not been able to find any. He subsequently learned of the Acker heirs, — Mrs. Rice and Miss Acker. He thereupon, on March 19, 1898, wrote Mrs. Rice, inclosing a blank assignment of the stock, saying:

“ If you and your sister will sign same and acknowledge it before a notary public with seal, and send same to the City National Bank of Lansing, Mich., we will pay you $20.”

She thereupon wrote to the City National Bank, inclosing the assignment, and saying:

“The inclosed papers are forwarded to you at the request of Judson Bros., Ashland Blk., Chicago, 111., by Anna M. Rice, 187 East Ninth St., St. Paul, Minn.”

The bank delivered the papers to Judson Bros. For some reason they did not remit the $20, and shortly after Mrs. Rice wrote them in regard to it. Judson Bros, replied, explaining the delay, but did not remit. To this Mrs. Rice replied, on the 14th of April:

“Your letter of the 12th inst., received this morning, is satisfactory in its explanation of the delay in payment. Hoping to hear from you again soon, I am, truly yours.”

No other correspondence seems to have passed until February 4, 1899, when one Sanborn, the attorney for Mrs. Rice and Miss Acker, wrote to Judson Bros., stating that, in consideration of the conveyance made by them to Judson Bros., they had agreed to remit her $20, but had not done so up to that date, and requesting them to send a check or draft for the amount. Judson Bros, then remitted the $20 by draft through Mr. Sanborn. Mr. San-born tendered the draft to Mrs. Rice, but she refused it, having, as she stated, made other arrangements. On February 27, 1899, Mrs. Rice and Miss Acker made an assignment of all their right, title, and interest in said stock by power of attorney to one Pierce Butler. On April 24, 1899, Butler transferred the same to Mr. Croze.

We think that whatever title Mrs. Rice and Miss Acker had to this stock passed to Judson Bros, by the assignment to them. Mrs. Rice did not send the assignment to the City National Bank as her agent, with instruction to deliver upon the payment of the money, but with the unqualified statement that the papers were forwarded to the bank at the ’request of Judson Bros. The letter authorized the delivery by the bank to Judson Bros. Under this arrangement the title passed, and Judson Bros, •became indebted for the agreed price. Mrs. Rice recognized the situation by writing to Judson Bros, with knowledge that the bank had delivered the stock to them, and accepted their explanation for the delay. Her attorney again wrote for the money, in response to which letter Judson Bros, remitted. It follows that Mr. Croze, having no stock, was not entitled to interfere.

The decree will be reversed, and the petition dismissed.

The other Justices concurred.


text:
    CITY OF GRAND HAVEN v. UNITED STATES FIDELITY & GUARANTY CO.

      t. Municipal Corporations — Officers—Term of Office — Successors — Qualification.
    Under 1 Comp. Laws, § 2998, providing that city treasurers and certain other officers of cities of the fourth class shall hold their offices for one year from the second Monday in April of the year when elected, and until their successors are qualified, the time between the election of a successor and the time he actually qualifies is a part of the preceding term, though the person elected is his own successor.
    2. Same — Bonds—Liability of Sureties.
    Where the bond of a city treasurer elected to succeed himself is conditioned that he shall well and faithfully perform the duties of his office “for and during the term for which he was elected, and shall account for and pay over all sums of money that shall come to his hands as such treasurer,” the sureties thereon will not be liable for any defalcations prior to the time of the acceptance and approval of the bond by the common council, though it is of a prior date, since the term for which the bond is given does not commence until such bond is so accepted and approved.
    Error to Ottawa; Padgham, J.
    Submitted June 5, 1901.
    Decided July 19, 1901.

      Assumpsit by the City of Grand Haven against the United States Fidelity & Guaranty Company, impleaded with John Cook, upon an official bond. From a judgment for plaintiff, defendant brings error.
    Modified.

      Bundy & Travis, for appellant.

      Walter I. Lillie, City Attorney, for appellee.
   Long, J.

This action is on the official bond, for the second term, of John Cook, city treasurer of the city of Grand Haven, which is incorporated under the general law of this State as a city of the fourth class. The case was referred under the statute, and comes up on the exceptions to the referee’s conclusions of law, which exceptions were overruled by the court below.

It appears that Cook was elected city treasurer of the city of Grand Haven at the charter election held in April, 1898. He qualified, giving bond with individual sureties, and entered upon the discharge of his duties, May 23, 1898. At the next annual election, held in April, 1899, he was re-elected, and qualified on the 18th day of May, 1899, when the bond in suit was filed, and accepted by the common council. The penalty of the bond is $25,000, with the defendant here as surety, which executed it at the city of Baltimore, Md., on May 11, 1899. Prior to the 18th day of May, 1899, Cook had abstraqted from the city funds the sum of $1,706.35, and was at that time a defaulter to that amount, — a fact which was not known then to any one except himself. After that date he abstracted and converted to his own use from the city funds the further sum of $727.84. It is the claim of defendant that it is liable on the bond in suit for the latter amount only, while the plaintiff claims that it is liable for the full amount of the shortage, $2,476.10, and for which amount judgment was rendered by the circuit court.

The bond in suit covers the period of time from May 18, 1899, the date on which it was filed and accepted by the common council, and does not relate back to April 10, 1899, as claimed by plaintiff. Grand Haven is a city of the fourth class, organized under chapter 88, 1 Comp. Laws, in which section 2993 provides:

‘ ‘ The mayor, city clerk, city treasurer, supervisors, and constables shall hold their offices for the term of one year from the second Monday in April of the year when elected, and until their successors are qualified and enter upon the duties of their offices.”

Mr. Cook had not qualified until his bond was accepted by the common council, and he could not enter upon the duties of his second term of office until then. Up to that time he was holding office by virtue of his first election. It is settled by numerous authorities under statutes similar to ours that the period between the election of a successor and the time he actually qualifies is as much a part of the prior term as the preceding period, and that, too, where a party is elected his own successor. Com. v. Hanley, 9 Pa. St. 515; Butler v. State, 20 Ind. 173; People v. Whitman, 10 Cal. 45; State v. Berg, 50 Ind. 500; Lynn v. Mayor, etc., of Cumberland, 77 Md. 453 (26 Atl. 1002); Kimberlin v. State, 130 Ind. 120 (29 N. E. 773, 30 Am. St. Rep. 208). It is also settled that where the statute or the constitution provides that an officer shall hold his office for a stated period, “ and until his successor is elected and qualified,” the sureties on his bond continue liable for his official acts after the expiration of the stated period, and until the election and qualification of his successor. It was expressly held in State v. Kurtzeborn, 78 Mo. 98, that where by statute a constable’s term of office is two years, and until his successor is elected and qualified, the liability of the sureties on his bond will continue after the expiration of the two years, and until his successor is elected and qualified. This rule was expressly laid down in Township of Paw Paw v. Eggleston, 25 Mich. 36; City of Detroit v. Weber, 29 Mich. 24. See, also, County of Placer v. Dickerson, 45 Cal. 12; Wheeling v. Black, 25 W. Va. 266; State v. Wells, 8 Nev. 108; Thompson v. State, 37 Miss. 518.

We think counsel are correct in saying that the bond in the present case does not relate back to the 10th day of April. The language of the bond is not retrospective. The condition is that if “ John Cook shall well and faithfully perform all the duties of said office of treasurer of the city of Grand Haven for and during the term for which he was elected, and shall account for and pay over all sums of money that shall come to his hands as such treasurer,” etc. His second term did not commence until May 18th, and the surety on that bond would be liable only for moneys coming into his hands after his bond was approved.

In Hyatt v. Sewing-Machine Co., 41 Mich. 225 (N. W. 1037), this court held that an antedated bond does not hind the sureties for the period preceding the date of its delivery if its language is not retrospective. The bond in that case was given for the good conduct of one Tuttle as agent of the company. It was said by the court:

“The agreement between Tuttle and the company, together with the bond, were dated, respectively, July 11, 1871, and those parties appear to have regarded the agreement as taking effect at that time. It seems that Tuttle was already acting in the same way under a prior agreement and obligation. The present bond was not executed and delivered until August 23, 1871, — several weeks after the date expressed. During the intervening period it was not in existence, and plaintiff in error vfras not then answerable for .anything transacted. The circuit judge ruled that after its delivery the bond operated retrospectively to the date, and bound the plaintiff in error from that time, and he allowed recovery for transactions perfected in that interval. * * * The question turns on the construction of the obligation, and it must be held to speak from the time it took effect. No other view is admissible now. It is not to'be assumed that the surety intended to become responsible for acts or delinquencies accomplished before he bound himself. Myers v. U. S., 1 McLean, 493 (Fed. Cas. No. 9,996). On the other hand, it is just to suppose that, if the parties had understood that past transactions were to be covered, ‘the bond would have been made retrospective in its language.’ Farrar v. U. S., 5 Pet. 373; U. S. v. Boyd, 15 Pet. 187. Such, however, is not the case. The terms are all future. The language imports an undertaking relative to posterior transactions only, and it cannot he applied to antecedent ones without violating its natural sense. We are therefore of opinion the court erred in applying the bond to matters which arose before it was given.”

See, also, U. S. v. Le Baron, 19 How. 73; Bruce v. State, 11 Gill & J. 382.

It is apparent, therefore, that the defendant can be held liable only for the sum appropriated by Cook to his own use. after the time of acceptance by the council of the bond in suit, which is the sum of $727.84. The judgment of the court below must be reversed, and judgment entered here for $727.84 and interest in favor of plaintiff. The defendant will recover costs of this coúrt, and plaintiff will recover costs of the lower court.

The other Justices concurred.