text:
    BIRCHARD v. BOARD OF HEALTH OF THE CITY OF LANSING.
    Nuisance — Pesthouse—Health — Powers of Health Board — Lansing Charter — Injunction.
    The provisions of the charter of the city of Lansing, making it the duty of the board of health of said city to locate and maintain a pesthouse, did not vest it with the power to locate said pesthouse in a thickly settled residential district, where it would be a nuisance, but the discretion lodged in said board is to be exercised by it in determining between different lawful locations.
    See notes in 5 L. R. A. (N. S.) 1028; 18 L. R. A. (N. S.) 260; 25 L. R. A. (N. S.) 228.
    Appeal from Ingham; Collingwood, J.
    Submitted October 24, 1918.
    (Docket No. 60.)
    Decided December 27, 1918.
    Bill by Emma Birchard and others against the board of health of the city of Lansing and another to enjoin the maintenance of a hospital for contagious diseases. From a decree dismissing the bill, plaintiffs appeal.
    Reversed, and decree entered for plaintiffs.

      Cummins & Nichols (C. W. McGill, of counsel), for plaintiffs.

      Samuel H. Rhoads, City Attorney, and Carl H. Reynolds, Assistant City Attorney, for defendant board.

      Joseph II. Dunnebucke, amicus curias.

   Fellows, J.

This bill is filed to restrain the maintenance in a residential district of a pesthouse, or as it is sometimes denominated in the record, a detention hospital for the treatment of infectious diseases. The case was heard and an opinion filed in the court below directing the dismissal of the bill prior to the handing down of the opinions of this court in Barth v. Hospital Ass’n, 196 Mich. 642, and Saier v. Joy, 198 Mich. 295 (L. R. A. 1918A, 825). The decree not having been entered, a reargument of the case was had and a further opinion was filed in which it was recognized that these cases were controlling of the instant case, were it not for the fact that these cases deal with rights between individuals, while in the instant case the defendant is acting under certain charter provisions of the city of Lansing, which not only authorize but make it the duty of defendant board of health to locate and maintain such an institution; and it was the opinion of the trial judge that such provisions justified and authorized the board to select the present site and there maintain the institution in the absence of arbitrary action in so selecting it, which was not found to exist here. The bill was accordingly dismissed.

In this court it is not seriously urged, cannot be, that the cases cited do not control this case unless a different rule should obtain where the institution is located and maintained by a public board of health. We held in these cases that while the institutions involved were not nuisances per se, they became such by reason of their location in a residential district. We recognized that there might be no actual danger if properly conducted, but that their maintenance in close proximity to the home would create such dread and fear in the mind of the normal person as—

“would destroy the comfort, the well-being and the property rights of the plaintiffs,”

— depressing the mind and lowering the vitality of the normal person, rendering one more susceptible to disease, and reducing the value of the property so situated; and in each of the cases this court decreed injunctive relief. In the instant case there is much testimony tending to show that a pesthouse may be so conducted, and well-regulated ones are, as to cause no actual danger to nearby residents.. But substantially all the experts who testify to this effect agree that their opinion is not shared by the general public, and that the normal person has a horror and dread of a pesthouse, and a fear of infection from proximity to it.

It must be borne in mind that we are not here dealing with the question of immunity of a municipality from an action for damages when in the discharge of a State agency, as was the case of Nicholson v. City of Detroit, 129 Mich. 246 (56 L. R. A. 601), nor with a contest between two municipalities as to the location of a pesthouse as was Township of Summit v. City of Jackson, 154 Mich. 87 (18 L. R. A. [N. S.] 260). Here the question involved is the protection of private rights by injunction against a public board authorized and required by the charter to perform certain duties. Nor are we dealing with an emergency caused by epidemic of an infectious disease. The detention hospital, or pesthouse, here involved is permanent in character and the injury caused continuous The charter provisions, so far as important here, are as follows:

“The said board of health has hereby conferred upon it, and may exercise all the powers and authority vested in health boards and health officers by the general laws of the State. * * *
“The said board of health shall have power, and it shall be its duty, to take such measures as shall be deemed effectual to prevent the entrance of any pestilential disease into the city; * * * to establish, maintain and regulate a pesthouse or hospital'at some place within the city or not exceeding three miles beyond its bounds. * * *
“And from time to time to do all acts, make all regulations, and pass all resolutions, which it shall deem necessary or expedient for the preservation of health, and the suppression of disease in the city, and to carry into effect and execute the powers hereby granted.” Lansing Charter 1913, §§ 288, 294.

On behalf of defendant board of health it is insisted that under these provisions it is a State agency, vested with large discretionary powers; that in the exercise of an honest judgment it selected the site in-question and that its decision is final and may not be reviewed by the judicial branch of the government, except in case of a clear abuse of that discretion. On the other hand it is urged that the discretion of the board is limited to the selection of a lawful site, one where the institution will not by reason of its location be a nuisance; that it may not under the power conferred inflict injury upon the individual or invade private rights. Upon this subject the authorities are not in accord.

A leading case on. the subject is Mayor, etc., of Baltimore v. Improvement Co., 87 Md. 352 (40 L. R. A. 494, 67 Am. St. Rep. 344, 39 Atl. 1081). This was a case brought by the owner of adjoining lands to. restrain the public officials from the use of premises owned by the city for the detention of a leprosy patient. The defense as here was that the officials were maintaining the pesthouse under plenary power conferred by the State. The court said:

“However broad, therefore, may be the powers of a municipality to erect and maintain hospitals and pesthouses for the segregation and treatment of contagious and infectious diseases, and however necessary their exercise may be, they must, generally speaking, be exerted and put into operation subject to the no less well-defined right of the individual to possess and enjoy his unoffending property without the molestation of a nuisance. It cannot be pretended that the city authorities could, even under their comprehensive powers, locate a pesthouse in the midst of a thickly settled community. * * *
“The mere power to erect and maintain hospitals and pesthouses does not imply or include the further power to erect and maintain them in such a way or at such a place as will cause injury to others. * * *
“Assuming at this point that leprosy is a contagious disease which is a menace to the health of a community, and assuming also that the mayor and city council through its health department were about to utilize this 20-acre tract of land for the first time for the erection of a pest house thereon for the reception of this particular patient, there can, in view of the legal principles just discussed, and in the light of the facts to which allusion has been made, be no doubt as to right of the Fairfield Improvement Company to invoke the restraining aid of a court of equity to prevent the establishment of such a nuisance.”

In the case of Thompson v. Kimbrough, 23 Tex. Civ. App. 350 (57 S. W. 328), an action was brought by the officers of a school district to restrain the maintenance of a pesthouse in proximity to the school building. The defendants made the contention as here that the decision of the health authorities, there the commissioners’ court and health officer, as to the location of the pesthouse was final. The court thus stated the claim:

“The further contention is made, that the law invests the commissioners’ court, in connection with the county health officer, with exclusive and final jurisdiction in the matter of establishing and maintaining pest houses and detention camps to prevent the spread of smallpox and other infectious and contagious diseases, and that the exercise of this jurisdiction is not subject to review by any judicial tribunal.”

After considering the statutory provisions involved, the court said:

“The authority of the commissioners’ court to proclaim quarantine, and to have it established, maintained, and enforced through the county physician, is not brought in question by this suit. It may, and perhaps should be, admitted that the exercise of that authority is not subject to review by judicial tribunals; but it does not necessarily follow that all the acts of the officers and agents of the county in relation to the subject-matter are beyond the reach of judicial authority. The authority of such court to proclaim and cause the enforcement of quarantine does not carry with it the arbitrary power in the officers and agents of the county to unnecessarily violate the rights of others. The existence of such authority does not imply that the officers and agents of the county may establish and maintain a nuisance, either public or private, not necessary to the end to be accomplished.”

The language of Lord Watson in the case of Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193, 212, decided by the house of lords, is quite persuasive as bearing upon the construction to be given the language here under consideration. He said:

“And I am disposed to hold that if the legislature, without specifying either plan or site, were to prescribe by statute that a public body shall, within certain defined limits, provide hospital accommodation for a class or classes of persons labouring under infectious disease, no injunction could issue against the use of an hospital established in pursuance of the act, provided that it were either apparent or proved to the satisfaction of the court that the directions of the act could not be complied with at all, without creating a nuisance. In that case, the necessary result of that which they have directed to be done must presumably have been in the view of the legislature at the time when the act was passed.
“On the other hand, I do not think that the legislature can be held to have sanctioned that which is a nuisance at common law, except in the case where it has authorized a certain use of a specific building in a specified position, which cannot be so used without occasioning nuisance, or in the case where the particular plan or locality not being prescribed, it has imperatively directed that a building shall be provided within a certain area and so used, it being an obvious or established fact that nuisance must be the result. In the latter case the onus of proving that the creation of a nuisance will be the inevitable result of carrying out the directions of the legislature, lies upon the persons seeking to justify the nuisance. Their justification depends upon their making good these two propositions — in the first place,. that such are the imperative orders of the legislature; and in the second place, that they cannot possibly obey those orders without infringing private rights. If the order of the legislature can be implemented without nuisance, they cannot, in my opinion, plead the protection of the statute; and, on the other hand, it is insufficient for their protection that what is contemplated by the statute cannot be done without nuisance, unless they are also able to shew that the legislature has directed it to be done. Where the terms of the statute are not imperative, but permissive, when it is left to the discretion of the persons empowered to determine whether the general powers committed to them shall be put into execution or not, I think the fair inference is that the legislature intended that discretion to be exercised in strict conformity with private rights, and did not intend to confer license to commit nuisance in any place which might be selected for the purpose.”

The following authorities will be found instructive on the questions involved in this case: Cherry v. Williams, 147 N. C. 452 (61 S. E. 267, 125 Am. St. Rep. 566, 15 Ann. Cas. 715); Kestner v. Homeopathic Hospital, 245 Pa. 326 (52 L. R. A. [N. S.] 1032, Ann. Cas. 1916A, 123, 91 Atl. 659); Anable v. Board of Com’rs of Montgomery Co., 34 Ind. App. 72 (71 N. E. 272, 107 Am. St. Rep. 173); Everett v. Paschall, 61 Wash. 47 (31 L. R. A. [N. S.] 827, 111 Pac. 879, Ann. Cas. 1912B, 1128); Stotler v. Rochelle, 83 Kan. 86 (29 L. R. A. [N. S.] 49, 109 Pac. 788); Harper v. City of Milwaukee, 30 Wis. 365; Gilford v. Babies’ Hospital, 21 Abb. New Cas. 159 (1 N. Y. Supp. 448).

But we think plaintiffs’ contention finds support in the former adjudications of this court. In Pennoyer v. City of Saginaw, 8 Mich. 534, this court held a municipality liable for the continuance of a nuisance created by it. In Cubit v. O’Dett, 51 Mich. 347, it was said:

“The highway overseer no doubt has a discretion in deciding how and where he will expend highway labor; but it is a discretion limited by the rights of individuals, and when he invades those rights, he becomes liable.”

In the recent case of Attorney General v. City of Grand Rapids, 175 Mich. 503 (50 L. R. A. [N. S.] 473, Ann. Cas. 1915A, 968), this court, reversing the-decree of the court below, found that the defendant: by emptying sewage into the Grand River created a-nuisance to lower riparian owners and the public, and: entered a decree for injunction as prayed in the bill..This court there quoted with approval from the case of Spokes v. Board of Health, L. R. 1 Eq. 42, the following:

“What difference can it possibly make as to the commission of an illegal act, whether a man acts on behalf of thousands or on behalf of himself only?”

The case much relied upon by the trial judge in. reaching the conclusion he did was Upjohn v. Richland Township, 46 Mich. 542 (39 Am. Rep. 16, note). That case like this was an equity case, which this court considers de novo, but its facts were materially different. The claimed nuisance there was a cemetery. The defendant sought to increase the size of its cemetery by the use of additional grounds across the road from the original grounds. There was some doubt as to whether there was as much contemplated danger from such addition as from a nuisance the complainant was maintaining on his own land.. But in that case the complaining party had purchased his premises after the original cemetery was established. If the cemetery was a nuisance, he had gone to the nuisance. Here the nuisance has been brought to the complaining parties. But in that case, while this court recognized the broad discretion vested in boards of health, it at the same time recognized the power of the court of equity to enjoin injury to private rights by them.

We conclude that the provisions of the charter under consideration do not vest in the defendant board of health the power to locate a pesthouse in a thickly-settled, residential district, where, by reason of its location, it would be a nuisance, and where its permanent maintenance would work continuing damage to adjoining and nearby property and would result in the destruction of the home in its comfort and well-being ; and that the discretion lodged in the board is a discretion to be exercised by it in determining between different lawful locations.

It follows from what has been said that the decree of the court below must be reversed and one here entered in conformity with the prayer of the bill. Plaintiffs will recover costs of both courts.

Bird, Moore, Steere, Brooke, Stone, and Kuhn, JJ., concurred. Ostrander, C. J., did not sit.


source: Caselaw Access Project

author: Fellows, J.

license: Public Domain

text:
    YOUNG & CHAFFEE FURNITURE CO. v. CHAFFEE BROTHERS FURNITURE CO.
    1. Trade-Names — Similarity of Names — Confusion—Statutes— Injunction.
    The hames “Chaffee Brothers Furniture Company” and “Young & Chaffee Furniture Company” are not so nearly similar as to be liable to cause uncertainty and -confusion to arise in violation of section 9018, 2 Comp. Laws 1915, and a court of equity should not issue the stringent writ of injunction upon the bare possibility of confusion by the careless and indifferent reader.
    2. Same — Incorporation—Secretary of State.
    The question as to whether confusion would arise is one for determination in the first instance by the secretary of State, although his determination is not final.
    3. Same — Monopolies—Unfair Competition — Equity.
    The law does not favor monopolies, and honest competition should not be stifled or prevented; it is unfair competition which courts of equity prevent by injunction.
    4. Same — Right to Use Family Name — Deception of Public— Estoppel.
    Generally speaking, one has the right to use his own name in his business; but he may not use it in such a way as to lead the public to believe that they are dealing with another, or that his wares are the wares of another; and he may dispose of the right to use his name in connection with a certain business so as to be estopped from claiming the right to its use in that business.
    5. Same — Sale of Business — Estoppel.
    Where one brother owned stock in plaintiff corporation, engaged in the furniture business, and two other brothers were employees of plaintiff, sale of said stock without any covenant not to use family name, held, not to estop them from using their own name in the furniture business in such way as not to mislead the public.
    6. Same — Master and Servant — Employees’ Reputation, Right to Benefit of.
    While defendants were in the employ of plaintiff it was entitled to the benefit of their experience and reputation for honesty and integrity, but when they left its employ such right ceased.
    7. Same — Confusion—Unfair Competition — Evidence.
    Evidence held, not to establish that defendants have so used their family name in the name of defendant corporation as to lead a person of ordinary intelligence to believe that he was dealing with plaintiff corporation, or as to exceed the boundaries of fair competition.
    Appeal from Kent; Perkins, J.
    Submitted October 11, 1918.
    (Docket No. 42.)
    Decided December 27, 1918.
    Bill by the Young & Chaffee Furniture Company against Chaffee Brothers Furniture Company and others to restrain the use of a trade-name. From a decree dismissing the bill, plaintiff appeals.
    Affirmed.

      H. Monroe Dunham, for plaintiff.

      Stuart E. Knappen and Wykes & Averill, for defendants.
   Fellows, J.

In 1896, Robinson J. Young and Guy W. Chaffee formed a copartnership under the firm name of Young & Chaffee Furniture Company, for the purpose of conducting a retail furniture business on Ottawa street in the city of Grand Rapids. The business seems to have quite largely consisted in the sale of furniture and house furnishings on the installment plan, and to have been successful. Defendants, Glenn D., Owen R., and Burt K. Chaffee, were brothers of Guy W. Glenn D. commenced to work for the firm about 1898 or 1899, and Owen R. and Burt K. about 1901 or 1902. None of them had to do with the management of the affairs of the. partnership or the succeeding corporation later organized, except that upon the death of Guy W., about August 1, 1913, Burt K. became manager for the balance of the year. Owen R. left the employ of the concern, about 1908 and went to Oregon. On September 22, 1909, the present plaintiff was organized as a corporation under the laws of this State with $280,000 capital stock, divided into 1,800 shares of common stock and 1,000 shares of preferred, each of the par value of $100. The corporation succeeded to and took over the business of the old firm. Defendant Glenn D. Chaffee owned no stock in the corporation. Defendant Burt K. Chaffee actually owned no stock in the corporation, although 10 shares owned by his brother, Owen R., was at one time placed in his name. Defendant Owen R. Chaffee owned 71 shares of common stock and 20 shares of preferred; at one time he was elected a director of the company, but by reason of his absence in Oregon did not attend meetings.

The record fairly discloses that during the lifetime of Guy W. Chaffee he was the dominant factor in the business, and that after his death others interested in the corporation assumed its control. A few months after his death the services of Glenn D. and Burt E= were dispensed with. In January, 1914, defendants Owen R. and Burt K. Chaffee formed a copartnership under the firm name of Chaffee Brothers Furniture Company, and opened up a retail store on Division street, where they engaged in business similar to that conducted by plaintiff on Ottawa street. They had but a' small amount of ready money, but it seems to be admitted on all hands that they had a reputation for honesty and probity in Grand Rapids and vicinity which aided in their venture. Their business also was a success. In July, Owen R. sold his stock in plaintiff company, and the following fall, defendant Chaffee Brothers Furniture Company was organized as a corporation under the laws of this State, with $15,000 common and $10,000 preferred stock. The common stock and $3,000 of the preferred was issued in equal shares to defendants Owen R. Chaffee, Burt K. Chaffee, and Arnold G. Lockerby.

In the fall of 1915 defendant Young became interested in defendant company. It is to be inferred that he bought some of the preferred stock. Mr. Young sold his stock in the plaintiff company to the controlling interest; the exact date of the sale does not appear but it is to be inferred that it was after he made his investment in defendant company and the following spring. He does not appear to have been active in the plaintiff corporation, and there is no substantive proof that he was or is active in defendant corporation.

This bill was filed May 18, 1916, and seeks to restrain defendants from the use of the words “Chaffee Brothers” as a part, of the corporate name, and from advertising or doing business under a name containing such words, or other words which are likely to lead the public to believe that it is dealing with plaintiff. From a decree dismissing the bill plaintiff appeals. seeking a,reversal on the following grounds:

“First. Because of the statute of the State of Michigan, the same being section 9018 of the Compiled Laws of Michigan 1915, which provides as follows:
" ‘The name assumed and by which the corporation shall be known in law; provided, No name shall be assumed already in use by any other existing corporation of this State, or corporation lawfully carrying on business in this State or so nearly similar as to lead to uncertainty and confusion.’
“Second. Because the defendants have violated the duty to use their name so as not to prevent confusion between their house and goods and the house and goods of the plaintiff in the same business.
“Third. Because of the similarity of names, defendant’s use of its corporate name is causing unfair competition as against the plaintiff.”

A comparison of the names of these two corporations does not persuade us that from,the names alone uncertainty and confusion is liable to arise. We think the person of ordinary intelligence would quite likely assume from the two names that they were not one aiid the same company. That there might be some confusion to the careless or indifferent reader of them is possible. But a court of equity should not issue its stringent writ of injunction upon such bare possibilities. We are impressed that relief under this statute alone should not be had. Michigan Savings Bank v. Dime Savings Bank, 162 Mich. 297 (139 Am. St. Rep. 558); Detroit Savings Bank v. Highland Park State Bank of Detroit, 201 Mich. 601; Supreme Lodge K. of P. v. Improved Order K. of P., 113 Mich. 133 (38 L. R. A. 658). The secretary of State evidently was not impressed that confusion would arise; and while his determination is not final it is a question for his determination in the first instance.

The remaining questions may naturally be solved together. The law does not favor monopolies. Honest competition should not be stifled or prevented. It is unfair competition, unfair trade, which courts of equity prevent by injunction. This case must stand or fall upon the question of whether this record makes out a case of unfair traded It was stated by the master of the rolls in the case of Croft v. Day, 7 Beav. 84:

“It has been very correctly said, that the principle, in these cases, is this: that no man has a right to sell his own goods as the goods of another. You may express the same principle in a different form, and say that no man has a right to dress himself in colours, or adopt and bear symbols, to which he has no peculiar or exclusive right, and thereby personate another person, for the purpose of inducing the public to suppose, either that he is that other person, or that he is connected with and selling the manufacture of such other person, while he is really selling his own. It is perfectly manifest, that to do these things is to commit a fraud, and a very gross fraud.”

One may dispose of the right to use his name in connection with a certain business; he may so circumscribe himself as to be estopped from claiming the right to its use in that business; but generally speaking one has the right to use his own name; he may not use it in such a way as to lead the public to the belief that they are dealing with another, or that his wares are the waxes of another; he may not by any artifice so use his name as to deceive the public into the belief that his establishment is the establishment of another, thereby bringing to himself profit not properly appertaining to himself and his business, and thus inflicting damage on his competitor. It was said by Justice Devens, speaking for the court in Russia Cement Co. v. LePage, 147 Mass. 206 (17 N. E. 304, 9 Am. St. Rep. 685):

“A person cannot make a trade-mark of his own name, and thus debar another having the same name from using it in his business, if he does so honestly, and without any intention to appropriate wrongfully the good-will of a business already established by others of the name. Every one has the absolute right to use his own name honestly in his own business for the purpose of advertising it, even though he may thereby incidentally interfere with and injure the business of another having the same name. In such case the inconvenience or loss to which those having a common right to it are subjected is damnum absque injuria. But although he may thus use his name, he cannot resort to any artifice or do any act calculated to mislead the public as to the identity of the business, firm or establishment, or of the article produced by them, and thus produce injury to the other beyond that which results from the similarity of name.”

It was said by Lord Esher, master of the rolls, in Turton v. Turton, L. R. 42 Ch. Div. 128:

“Therefore the proposition goes to this length; that if one man is in business and has so carried on his business that his name has become a value in the market, another man must not use his own name. If that other man comes and carries on business he must discard his own name and take a false name. The proposition seems to me so monstrous, that the statement of it carries its own refutation.”

In Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manfg. Co., 37 Conn. 278 (9 Am. Rep. 324), it was tersely stated:

“The ground on which courts of equity afford relief in this class of cases, is the injury to the party aggrieved, and the imposition upon the public by causing them to believe that the goods of one man or firm are the production of another.”

The rule was thus broadly stated by Chief Justice Fuller in Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118 (25 Sup. Ct. 609):

“We hold that, in the absence of contract, fraud, or estoppel, any man may use his own name, in all legitimate ways, and as the whole or a part of a corporate name.”

The following authorities will be found instructive on the subject. Burgess v. Burgess, 3 De Gex, M. & G. 896; Meneely v. Meneely, 62 N. Y. 427 (20 Am. Rep. 489); Walter Baker & Co. Ltd. v. Baker, 87 Fed. 209; Pillsbury v. Flour Mills Co., 12 C. C. A. 432, 64 Fed. 841; Gilman v. Hunnewell, 122 Mass. 139. We forbear further citation of authorities from other jurisdictions. Many of them were collected and discussed in Williams v. Farrand, 88 Mich. 473 (14 L. R. A. 161), in both the prevailing and dissenting opinions. Justice Champlin, in his dissenting opinion in that case, expressly stated (page 542):

“I think the complainants’ case rests entirely upon the fact that the parties were once copartners, and that the defendants sold to the other members of the firm the entire business, including a lease of the premises, and the good-will of the business; and that it was to continue as a going concern in the same line of business.”

An exhaustive note on this subject will be found in 17 C. C. A. at page 579. An examination of any considerable number of the cases on this subject will demonstrate that the rules here adverted to have quite uniformly been followed; where there has been an apparent deviation, the peculiar facts of the case in hand, rather than a change of doctrine, will be found to be the cause.

Our own decisions are in entire accord with those of other jurisdictions. The cases cited by plaintiff do not in any way conflict with the prevailing doctrine. They have been disposed of on their own peculiar facts. In Lamb Knit Goods Co. v. Lamb Glove & Mitten Co., 120 Mich. 159 (44 L. R. A. 841), Mr. Lamb assisted in the organization of the complainant, and for a valuable consideration a former company, in which he was interested, transferred not only its physical assets but also its good will to the new compahy. It appeared that he had not expressly sold the exclusive use of his own name, but it was held that he was estopped under the facts of the case from claiming that the company did not take its name rightfully, and under the facts found to exist in that, case, including the proven fact that the public actually had been deceived, an injunction was decreed. This case was followed and upon substantially the same conclusion of facts an injunction was likewise decreed in Penberthy Injector Co. v. Lee, 120 Mich. 174. In both cases there was actual deception to the public generally and the trade, and in both cases the doctrine of estoppel was applied.

In Myers v. Kalamazoo Buggy Co., 54 Mich. 215 (52 Am. Rep. 811), the retiring members of the co-partnership had sold for a valuable consideration their interest in the good will of the copartnership; thereafter they organized a corporation under a name so similar to that under which the old firm did business as to mislead the public; they located their plant within a few feet of that of the old partnership, and put out advertising matter of a character to lead the public to believe it was dealing with the old firm. The doctrine herein announced applied to the facts of that case, required the granting of injunctive relief.

In People’s Outfitting Co. v. People’s Outlet Co., 170 Mich. 398, the case was heard on demurrer to the bill. It was held that taking the allegations of the bill as true a case for equitable relief was made out.

Finney’s Orchestra v. Finney’s Famous Orchestra, 161 Mich. 289 (28 L. R. A. [N. S.] 458), was a controversy over the right to use the name Finney. Complainant was a corporation organized by the members of the orchestra who had by a voluntary association continued the business several years after the death of Mr. Finney. They were 23 in number. Defendant was organized by three members who had withdrawn from the association. None of the members of either orchestra appear to have borne the name of Finney. Disposing of the case upon the facts it was held that defendant’s claim was not supported by proof and the prayer of the bill was granted.

In Gordon Hollow Blast Grate Co. v. Gordon, 142 Mich. 488, this court again applied the doctrine herer tofore discussed to the facts of that particular case. The facts found were:

“The testimony leads fairly to the conclusion that defendants designed by use of the partnership name, by the connection of the partnership name with the names of articles manufactured by the partnership, and by advertising matter, to mislead the public and to injure the business of complainant, to the profit of the partnership business. To some extent what was designed has been accomplished”

—and the decree of the lower court was modified and affirmed.

An examination of these cases demonstrates that we have in each of them applied the rule here announced to a different and varying state of facts, and that this court is in accord with the prevailing doctrine, both in this country and in England.

Do the facts established by this record authorize the relief sought? There is no claim that the defendants Chaffee have by express contract transferred to plaintiff the exclusive right to use their family name; there is no claim that they have expressly covenanted not to use their family name in the furniture business in Grand Rapids. But one of them owned any stock in plaintiff company, and he but a comparatively small amount. When he sold it he did not either expressly or impliedly covenant not to engage in the furniture business under his own name or any other name. Defendants Chaffee were but employees of the company, paid for their services as other employees were, earning their wage as other employees did. Have they so circumscribed themselves as to be estopped from using their own name in the furniture business in Grand Rapids ? We think not. It is pointed out by the plaintiff that they have acquired experience and a reputation for honesty and integrity while in the employ of the plaintiff; and it is urged that they should not be permitted to use such experience and reputation against their former employer. While they were in the employ of the plaintiff it was entitled to the benefit of their experience and their reputation. But when they left its employ the right to such experience and reputation ceased.

It is urged that great confusion has arisen by the use of the name adopted by the corporate defendant and considerable testimony to this effect of a general character was introduced by the plaintiff. We are not impressed from an examination of all the testimony, including the exhibits, that outside of some petty annoyances, such as telephone calls and an occasional small payment of money to plaintiff, which belonged to defendant, that there has been any considerable amount of confusion, or that plaintiff has suffered annoyance consequential in any amount when the amount of their business is considered. Plaintiff’s managers seem to have prepared for this lawsuit by filing such evidence of confusion as they were able to collect over some period. Their exhibits show that in several instances letters asking extension of time from persons owing defendant company came to plaintiff; around a dozen orders for goods specially advertised by defendant were received by plaintiff. In only one instance do these exhibits show dealing with defendant company under the mistaken belief that the party was dealing with plaintiff. Plaintiff’s managers seem to have appropriated the business offered in the letters and filed them all for future reference. Plaintiff advertised its store as “The Big Store.” When defendants’ store was first started it was called “The New Store.” Plaintiff insists this was done to lead the public to the belief that it was a branch of plaintiff’s establishment. Defendants insist they called their place of business “The New Store” because their goods were all new and to attract trade which preferred new goods, and to differentiate from plaintiff’s business. They insist that they are anxious, even more so than plaintiff, to avoid the impression that they are in any way associated with plaintiff’s business. They show that they have not for some time advertised their store as “The New Store,” and their exhibits show that in their advertising matter they state, “We are not connected with any other store.” Plaintiff states this was not done until this suit was started, but admits that this expression is now constantly used. Plaintiff shows that goods belonging to defendant company have been delivered at its store, but the proofs show that this caused defendants more inconvenience than it did plaintiff. We are satisfied that the confusion shown is inconsequential in amount, and that it is not due to any artifice on the part of the defendants or any of them. Plaintiffs proofs have not established a cause for équitable relief. It is not necessary for us to consider the question raised by plaintiff that while one may use his own name in a business he may not confer that name upon a corporation, as we are satisfied that defendants have not so used their family name in the name of this corporation as to lead the person of ordinary intelligence to believe he was dealing with plaintiff company, nor that defendants have exceeded the boundaries of fair competition.

We find no reason to disturb the decree of the court' below and it is affirmed, with costs.

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


text:
    DANIELSKI v. LUKOMSKI.
    1. Trial — Credibility of Witnesses — Question for Jury.
    The credibility of witnesses is for the jury.
    2. Evidence — Admissibility—Estimates—Weight of Evidence.
    In an action for damages for breach of contract in installing a furnace, that witnesses estimated the- cost of properly installing same instead of measuring pipe and figuring new material and necessary labor accurately, while a proper subject of argument to the jury, did not render such, testimony inadmissible, its weight being for the jury.

      Error to Wayne; Mayne, J., presiding.
    Submitted October 23, 1918.
    (Docket No. 40.)
    Decided December 27, 1918.
    Assumpsit in justice’s court by Julia Danielski against John Lukomski and another, copartners as Lukomski Brothers, for breach of a contract for the installation of a heating plant. There was judgment for defendants and plaintiff appealed to the circuit court. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Atkinson & Northmore, for appellants.

      Samuel H. Crowl, for appellee.
   Fellows, J.

Defendants agreed for the sum of $450 to install a heating plant in plaintiff’s residence. It was to be done in a first-class manner. A heating plant was installed and the contract price paid. Plaintiff, claiming that the plant was not installed in accordance with the contract, brought this suit and recovered a judgment of $250. Defendants bring the case here asking for a reversal on two grounds:

(1) That there was no sufficient evidence to take the case to the jury; and

(2) That the verdict was against the weight of the evidence.

An examination of the record in the case satisfies us that defendants are quite wrong in both contentions. If the testimony of the plaintiff, her son, and her tenant is believed, and their credibility was for the jury, the plant never worked from the day it was first put in operation and was worthless. In addition to this testimony plaintiff produced two witnesses, both of whom were, and for many years have been, engaged in the plumbing and heating business; both of whom examined the plant, testified to many defects, what was necessary to be done in order to make it workable, and estimated the expense it would cost to produce such result. That they did not measure the length of the piping they concluded should be taken out and larger size substituted, and that they estimated what it would cost for new material and labor to make the plant comply with the contract instead of going over it with a rule and accurately figuring each item was a proper subject of argument to the jury, but it did not render their testimony inadmissible or make the question one of law for the court.

One of the defendants was sworn and a heating engineer was also called by them. Both these witnesses gave testimony contradictory to that given by plaintiff and her witnesses. The case was one of fact; the charge of the court was a fair one, is not objected to, and left to the jury the questions to be determined. The verdict is not against the weight of the evidence.

The judgment is affirmed.

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


text:
    NOBLE v. PIRSON.
    1. Sales — Contracts—Refusal of Goods — Reasons—Evidence.
    In an action by tbe seller for damages for tbe breach of a contract of sale, where tbe buyer refused a car load of hoops and staves because not in accordance with contract, enumerating specific defects in the hoops, it was admissible for him to show that the staves were not in accordance with the contract.

      2. Trial — Directed Verdict — Inferences.
    Upon a motion to direct a verdict, the testimony most favorable to tbe other party, together with such legitimate inferences as may be drawn from the established facts, must be accepted.
    3. Same — Customs and Usages — Evidence—Question for Jury.
    Contradictory testimony as to what the trade understood by the term “red gum fruit barrel staves,” held, to present a question for the jury.
    Error to Cass; Des Voignes, J.
    Submitted October 24, 1918.
    (Docket No. 122.)
    Decided December 27, 1918.
    Assumpsit by William K. Noble against John Pirson for breach of a contract for the purchase of certain hoops and staves. Judgment for defendant. Plaintiff brings error.
    Affirmed.

      Hendryx & Mosier, for appellant.

      E. Bruce Laing, for appellee.
    After some preliminary correspondence, on June 11, 1913, plaintiff wrote defendant, a dealer in cooperage stock, quoting prices and offering to sell him certain stock. The letter contained the following:
    “Mill run 28% inch red gum fruit barrel staves cut 6 to 2, 9/16 inch bilge, $7.75 per thousand; mill run 17% inch hardwood heading 6% cents per set; number one six-foot coil elm hoops, $10.90 per thousand F. O. B. Newfane, New York.”
    On June 23d defendant sent plaintiff the following telegram:
    “Ship car mill run heading 8,000 set 17% inch. One large car mill run staves 28% inch. One car number one hoops, 50,000. Ship quick. Delivered Newfane, New York.”
    The heading after being loaded in cars was burned and is not involved in this case. Fifty thousand hoops were shipped from Fostoria, Ohio, from a plant controlled by plaintiff, and a car containing 64,700 staves was shipped from New Madrid, Missouri. On July 11th defendant wired plaintiff from Lockport, New York, as follows:
    “Customers will not accept hoops or staves. Leaving four o’clock. Answer.”
    To this telegram plaintiff replied:
    “Don’t understand your wire. Quality both staves and hoops all right. Both shipped on your order and we expect you take delivery at once.”
    On the same day Mr. Pirson wrote Mr. Noble two letters, one from Lockport and the other after he had arrived at his home in Stevensville, Ontario. In the first of these letters he speaks of having sent the telegram and enumerates defects in the hoops. The second letter contains the following language:
    “If your stock had been as you guaranteed it to be I could have made a few dollars. As it is neither you nor I will make anything as there will be car services charged until you move them.”
    Other correspondence passed between the parties, but defendant refused to take the stock and plaintiff resold the same at a loss, for the recovery of which he brought this action, resulting in a verdict and judgment for the defendant.
   Fellows, J.

(after stating the facts). We do not understand it to be claimed, at least it cannot be successfully claimed,- that upon this record there was no evidence that the hoops were defective, of an inferior grade, and did not comply with the contract in the particulars claimed by the defendant in his correspondence and testimony. But it is claimed that, so far as the question of recovery for the loss on the staves is concerned, two reversible errors were committed. As we understand, it is counsel’s claim that the court erred in the admission of evidence that the staves did not comply with the contract and that’ the court should have directed a verdict for the loss on the staves.

Under the first of these propositions, it is pointed out by counsel that specific defects in the hoops were enumerated, and it is urged that having given as reason for declining to accept the stock specific objection to the hoops, defendant cannot show that the staves were not in accordance with the contract, and Ginn v. W. C. Clark Coal Co., 143 Mich. 84, and Providence Jewelry Co. v. Bailey, 159 Mich. 285, are cited. There should be no doubt as to the correctness of the rule laid down in these decisions, that where one, after having full opportunity to examine the article shipped, rejects the same on specific grounds, the other party has the right to act upon the assumption that it is upon these grounds alone that the party relies. The difficulty with the application of that rule to the instant case grows out of the fact that defendant’s refusal to accept the stock, as appears by the correspondence, was based upon more than one reason. It included as one of the reasons that the stock was not as plaintiff had guaranteed, a claim that the stock did not comply with the contract. Having based his refusal, in part at least, on the ground that the stock did not comply with the contract, we think it was admissible for him to prove that it did not comply with the contract. Plaintiff could not have been misled in any way. When he sent his telegram in reply to the one received from defendant, he asserted that “quality both staves and hoops all right.”

It is insisted by plaintiff’s counsel upon the second proposition that “red gum fruit barrel staves” has a specific meaning to the trade and includes not only staves manufactured from red gum, but also staves manufactured from timber growing in the same locality. They insist that this is conclusively proven, and that it is also conclusively proven that the staves furnished complied with the term “red gum fruit barrel staves” as understood by the trade; hence, they urge the court should have directed a verdict. There was testimony to support the plaintiff’s claim just mentioned, but it was not undisputed. Upon a motion to direct a verdict, the testimony most favorable to the other party, together with such legitimate inferences as may be drawn from the established facts, must be accepted. A few excerpts from the testimony will be sufficient. Mr. Hampton, a manufacturer of cooperage stock and barrels, was called as a witness by the plaintiff. On cross-examination he testified as follows:

“Q. What do you understand to be the meaning of red gum fruit barrel staves? What would you expect in a car ordered under specifications of that sort?
“A. Red gum is a kind of timber grows in the south and southwest.
“Q. Would you expect any other timbers in there other than red gum? *
“A. Well I wouldn’t expect any other timber that was not equally as good.
“Q. Well it wouldn’t be a carload of red gum fruit barrel staves if it had other timber in there, would it?
“A. Well, not entirely, no.”

The staves in question were afterwards sold to L. J. Eckler, who manufactured them into barrels. He testified:

“I examined it myself and worked on it for two weeks myself. This car contained red gum and mixed timber staves other than red gum. It is a usage in the trade that we get the kind of timber we pay for. When we order red gum we expect red gum and no other kind of. timber.”

Mr. Lester Le Fever examined the car of staves at Newfane, New York. He testified:

“Q. State what you found when you inspected this car?
“A. Would say they were a mixed car.
“Q. What further did you find?
“A. I thought they were bastard staves.”

There was other testimony in the case tending to dispute plaintiff’s claim and to support the claim of defendant. It was not error to refuse, to direct a verdict foi the plaintiff for the amount of his loss on the staves.

The judgment is affirmed.

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


author: Per Curiam.

text:
    IDEAL FURNACE CO. v. INTERNATIONAL MOLDERS’ UNION OF NORTH AMERICA. APPEAL OF MURRAY.
    1. Appeal and Error — Moot Case.
    Where defendant was adjudged guilty of contempt and fined, which he paid, there is nothing before this court for determination, on appeal, defendant having by his own act discharged the order.
    2. Same — Jurisdiction—Dismissal.
    This court should, of its own motion, decline to consider cases it has not the power to determine.
    3. Costs — Dismissal on Court’s Motion — Jurisdiction.
    Costs will not be awarded to appellee, on dismissal on court’s own motion, where no motion was made to dismiss from appellate court for want of jurisdiction.

      Appeal from Monroe; Gilday, J.
    Submitted October 22, 1918.
    (Docket No. 96.)
    Decided December 27, 1918.
    Bill by the Ideal Furnace Company against the International Molders’ Union of North America, Andrew Murray and others for an injunction. Andrew Murray was adjudged guilty of contempt of court and fined $10 which was paid and an appeal perfected from said order.
    Appeal dismissed.

      S. Homer Ferguson, for plaintiff.

      Entenza & S'pillane, for appellant.
   Per Curiam.

On April 6, 1917, defendant Andrew Murray was adjudged guilty of contempt of court and fined $10 which was then paid. Later he filed claim of appeal and perfected the same. After the submission of the case in this court we requested briefs from counsel upon the right of the defendant to appeal from the order which had been- satisfied, and upon the power of the court to hear and determine the case. Such briefs have been filed. They have been read with care and all authorities cited have been examined. We are convinced that upon this record the questions are purely academic; that no real and substantial controversy is before us; that the order of the court below haying been satisfied and the fine paid no relief can be now granted appellant. The defendant by his own act has discharged the order entered by the court below. There is nothing before us for determination People v. Leavitt, 41 Mich. 470; Powell v. People, 47 Mich. 108; City of Ishpeming v. Maroney, 49 Mich. 226; State v. Conkling, 54 Kan. 108 (45 Am. St. Rep. 270, 37 Pac. 992); Washington v. Cleland, 49 Or. 12 (124 Am. St. Rep. 1013, 88 Pac. 305); Town of Batesburg v. Mitchell, 58 S. C. 564 (37 S. E. 36); 3 C. J. p. 358 et seq. This court should, of its own motion, decline to consider cases it has not the power to determine. J. F. Hartz Co. v. Lukaszcewski, 200 Mich. 230; Bolton v. Cummings, 200 Mich. 234; Miller v. Johnson, 201 Mich. 535. The appeal will be dismissed but without costs. Maxfield v. Freeman, 39 Mich. 64; First Nat. Bank of Pt. Huron v. Mellen, 45 Mich. 413.


text:
    GARDINER v. STUDEBAKER CORPORATION.
    1..Trial — Credibility of Witness — Undisputed Evidence.
    Where there was no evidence, either direct or circumstantial, that an accident happened in any other way than as testified to by witness, the court below was not in error .in refusing to submit the question of his credibility to the jury.
    2. Same — Negligence—Evidence—Question for Jury.
    In an action for personal injuries caused by defendant’s motor truck to a girl four years of age, resulting in her death, the happening of the accident alone is not evidence of negligence of defendant sufficient to take that question to the jury.
    3. Same — Burden of Proof — Prima Facie Case — Question for Jury.
    A plaintiff suing for damages based on defendant’s negligence is bound to prove his cause of action, and must make a prima facie case of negligence before he is entitled to take the judgment of the jury.
    See notes in 26 L. R. A. (N. S.) 435; 32 L. R. A. (N. S.) 1177.
    Error to Wayne; Hosmer, J.
    Submitted October 10, 1918.
    (Docket No. 29.)
    Decided December 27, 1918.
    Case by Harry M. Gardiner, administrator of the estate of Bernice Gardiner, deceased, against the Studebaker Corporation for the alleged negligent killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Clarence P. Milligan, for appellant.

      Stevens T. Mason, for appellee.
   Fellows, J.

From this record it appears that defendant has at least two plants in the city of Detroit. The distance between them is five or six miles. It transports material from one to the other by auto trucks, which have trailers attached to them. The usual route taken passes along McGraw avenue, an east and west street, said to be 26 or 28 feet wide from curb to curb at the place of the accident herein involved. Plaintiff’s decedent, a little girl lacking one week of being four years old, was so seriously injured by one of these trucks that she died within a few hours. The declaration in this action brought by plaintiff, father of deceased, as administrator, under the “survival act,” counts upon the negligence of defendant as the proximate cause of her death. Upon the trial plaintiff called as an adverse witness under the statute the driver and cross-examined him at length. He testified that the accident occurred about half past 10 in the forenoon; that he was going from plant No. 1 to plant No. 3 with a load of automobile tops, proceeding west on McGraw. The truck consisted of a new six-cylinder Studebaker without the touring body, upon which the trailer attachment was placed; the trailer was about 20 feet long and was somewhat wider than the automobile proper. He testifies that he was going from 8 to 10 — 10 to 12 miles an hour; that he was on the right (north) side of the street; that he proceeded across Linwood avenue; that the little girl came out from behind a vehicle, variously called in the record a “mud wagon,” a “mud hack,” a “dump wagon”; that she came from the south; that he sounded his horn., applied his brakes, turned his machine to the right; that “she kept running right in”; that he reached out and pushed her back from the machine. Subsequent events tend to show that she was run over by the trailer. He testifies that but- for the dump wagon he would have seen the child. There is no other testimony as to how the accident happened. There is testimony that there were tracks of the automobile wheels on the curb, but this tends to corroborate the driver’s testimony that he turned his machine to the right in attempting to avoid the accident, rather than to disprove it.

After the accident the driver was taken before the prosecuting attorney and interrogated in the presence of a stenographer. He was also called as a witness upon the coroner’s inquest. The stenographers’ transcripts were offered in evidence. They are not incorporated in the bill of exceptions, but defendant’s counsel conceded they do not show any statement by the witness with reference to the dump wagon. Plaintiff’s counsel argues from this that the credibility of this witness was for the jury; that there arose a question of fact for the jury to determine; that the trial court erred in not submitting such question of fact to the jury and in holding that there was no testimony controverting the testimony of the driver as to the manner in which the accident happened. The difficulty with counsel’s contention and its availability to work a reversal of the case lies in the fact that there is no evidence in the case, either direct or circumstantial, that the accident happened in any other way than as testified by this witness. If plaintiff had introduced evidence showing or tending to show negligence, or had established facts from which an inference of negligence might be legitimately drawn, then the credibility of this testimony and the weight to be given it would be for the jury. But the happening of the accident alone is not evidence of negligence of the defendant sufficient to take that question to the jury. And. unless there was some evidence, either direct or circumstantial, that defendant’s negligence was the proximate cause of the death of decedent, a case was not made for the jury. If we should follow counsel’s contention to its logical conclusion, it would result that by calling an adverse witness under the statute and then producing evidence discrediting him, without any affirmative evidence of negligence, either direct or circumstantial, a case for the jury would be made out. We cannot subscribe to such a doctrine. The plaintiff is bound to prove his cause of action. He must make a prima facie case of negligence of the defendant before he is entitled to take the judgment of the jury. In the instant case he failed to do this. The defendant’s truck was on the right side of the street; there is no evidence of any defect in the brake; no evidence that the driver was exceeding the limit of speed prescribed by the statute or by any ordinance of the city of Detroit; no evidence that the driver did or failed to do anything which produced or would have prevented the accident. The case is clearly distinguishable from Winckowski v. Dodge, 183 Mich. 303, and quite like Barger v. Bissell, 188 Mich. 366. We may well dispose of this case with the concluding portion of the opinion in, that case.

“Drivers upon highways are not held as insurers against accidents arising from negligence of children or their parents, and though in law such negligence in a particular case may not be a defense, as contributory negligence, for a driver also guilty of negligence, the fact of an accident does not establish liability or raise a presumption that the driver is negligent.
“A careful consideration of the record in this case leads to the conclusion that this unfortunate accident occurred as the result of an emergency on the highway which arose through no fault of the driver, and that his conduct, under the circumstances disclosed by the evidence, raises no inference of actionable negligence which makes out a prima facie case.”

The judgment is affirmed.

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


text:
    W. H. WARNER COAL CO. v. NELSON.
    1. Garnishment — Statutory Proceeding.
    The proceeding in garnishment is special and statutory, affording a harsh remedy, and one pursuing it must bring himself within the statute and follow its mandates.
    2. Same — Default—Waiver—Estoppel.
    Where a garnishee defendant did not appear, its consent to an irregular proceeding could not be presumed, and its want of appearance did not waive its right to insist, on motion to set aside the default, upon the provisions of the statute being complied with, nor estop it from insisting that the proceedings were irregular.
    3. Same — Judgment—Statutes—Void Judgment.
    Where a joint judgment against the garnishee defendant and the principal defendant was entered on the same day, the judgment against the garnishee defendant was premature and void, section 10612, 3 Comp. Laws 1897, providing for an interim of at least two days between the judgment against the principal defendant and that against the garnishee.
    4. Same — Process—Pleading—Joint Judgment.
    Where the summons in garnishment proceedings ran against the principal defendant alone, and the declaration counted upon a cause of action against him alone, a joint judgment against the principal defendant and the garnishee is unauthorized by the law, since the liability of the garnishee defendant is contingent upon a preceding judgment establishing liability against the principal defendant.
    5. Judgment — Setting Aside Default — Limitation — Circuit Court Rule.
    The entry of a void judgment after default in garnishment proceedings was not such a proceeding under former Circuit Court Rule No. 126, as to limit the time for setting aside said default to six months, since the words of the rule import valid proceedings.
    Error to Mason; Withey, J.
    Submitted October 18, 1918.
    (Docket No. 84.)
    Decided December 27, 1918.
    Garnishment proceedings by the W. H. Warner Coal Company against Charles Nelson, principal, and the Ludington State Bank, garnishee. Judgment for plaintiff on default. Defendant bank brings error.
    Reversed, and default set aside.

      Robert J. Qwail, for appellant.

      A. A. Reiser, for appellee.
    On February 18, 1915, plaintiff commenced suit against Charles Nelson in the circuit court for the county of Mason by summons. On the same day it filed a proper affidavit and a writ of garnishment was issued against Ludington State Bank as garnishee defendant. The summons was served on Nelson the same day. The return of the sheriff also shows that on the same day the writ of garnishment was served upon the garnishee defendant “by showing the said writ, with the seal impressed thereon, to cashier of said above named garnishee, and at the same time delivering to cashier of above named garnishee a true copy of said writ." On March 17th plaintiff filed its declaration in the suit commenced against Nelson counting on the common counts in assumpsit, and setting up copies of several notes executed by Nelson. On March 20th the default of the principal defendant was entered. No disclosure or appearance of garnishee defendant, Ludington State Bank, having been entered, on March 24th its default was also entered. June 8th judgment in assumpsit was rendered jointly against defendant Nelson and the bank. The judgment recited that “the said Charles Nelson as well as the said Ludington State Bank, did undertake and promise in manner and form as the said W. H. Warner Coal Company hath in their declaration in this case complained against them”; that plaintiff had suffered damages “to the sum of one thousand and forty-five and 32/100 dollars,” and “that the said W. H. Warner Coal Company do recover against the said Charles Nelson, as well as against the said Ludington State Bank, their damages aforesaid” together with costs, and that the “said W. H. Warner Coal Company have execution therefor.” June 14th defendant bank filed a motion to set aside its default and the judgment entered against it, and to permit it to file its disclosure showing no funds in its hands belonging to the principal defendant. The motion was supported by the affidavit of the president and cashier of the bank; that of the president showing that he usually attended to the litigation of the bank (it appears from the record that he is an attorney), that when the writ of garnishment was served he was ill, unable to attend to business and his recovery was gradual, and that when he recovered, the copy of the writ had been lost, and that nothing was then brought to his attention about the garnishment proceedings until he learned from a newspaper on June 11th that judgment had been taken against the bank. The cashier’s affidavit showed among other things that the bank had no money to the credit of the principal defendant when the writ was served nor since that time. It appears that the next session of court was October 4th and the motion was noticed for that day. It was denied. It is to be inferred that the ground was want of an affidavit of merits. On October 5th another motion to set aside the default and. judgment was filed with more amplified showing. This motion came on to be heard October 9th and was met with the objection that under former Circuit Court Rule No. 12 b then in force, six months having expired since the entry of the default the court was without power to grant the motion. This ground of objection was sustained, the court saying:
    “If I could help you, I would, and do it legitimately. The court has no discretion and no power — absolutely none. The default is regular “and the whole record is regular, and there is only a slight error, if at all, and you have corrected it in your own showing. (This evidently referred to the return of the officer.)
    “You slept on your rights and let your remedies die and now the court cannot help you. He is powerless to do so. I would be glad if I could, but I cannot do so.”
    On October 20th an affidavit of merits and a disclosure was filed, and on October 22d plaintiff’s costs in the principal suit were taxed. On December 9th another motion to set aside the default was filed which contained additional reasons by way of certain claimed irregularities in the proceedings. This motion was heard the same day it was filed and was denied. The court also made the following order:
    _ “The joint judgment against the principal and garnishee defendant is hereby set aside as to the garnishee defendant, but may stand at the option of counsel for the plaintiff, as a valid judgment against the principal defendant.”
    It should also be stated that counter affidavits were filed on these various motions, but as the action of the trial judge was based on want of power to consider the motion rather than an exercise of discretion, we deem it unnecessary to detail them. After the entry of the last mentioned order and on December 18th plaintiff filed a motion to correct the judgment entry against the principal defendant so that it might be in proper form a judgment against the principal defendant alone on default and proofs in open court, and also on the same day filed a motion for an order requiring the clerk to enter judgment against the garnishee defendant for the amount of plaintiff’s claim nunc pro tune as of June 8th. These motions had supporting affidavits. The garnishee defendant on January 3, 1916, filed a motion to discontinue the garnishee proceedings on "the ground that plaintiff had failed to proceed to judgment against the garnishee defendant as soon as it was entitled to under the rules and practice. These three motions came on for hearing January 5th. Defendant’s motion was denied and plaintiff’s motions granted. On the same day a judg- ‘ ment in proper form as to defendant Nelson was entered nunc pro tunc as of June 8,1915, and one against the bank nunc pro tunc as of June 10, 1915.
   Fellows, J.

(after stating the facts). The case is here upon writ of error sued out by the garnishee defendant alone, and we are therefore concerned only in the proceedings against it. We do not find it necessary to consider all the questions raised as we are satisfied that a disposition of one phase of the case is controlling. Appellant insists that the judgment against it was prematurely entered, and that in any event the joint judgment rendered against it and the principal defendant is neither valid nor warranted by law. In considering the question here involved we must take into consideration that the proceeding in garnishment is special and statutory, affording a harsh remedy, and that one pursuing it must bring himself within the statute and follow its mandates: Iron Cliffs Co. v. Lahais, 52 Mich. 394; Weimeister v. Manville, 44 Mich. 408; Ford v. Detroit Dry Dock Co., 50 Mich. 358; Ettelsohn v. Insurance Co., 64 Mich. 331. The statute and rules in force at the time of this proceeding are those to be considered; section 10612, 3 Comp. Laws 1897, provides:

“If the plaintiff obtain judgment against the principal defendant, in the circuit court, and the latter does not, within two days thereafter, serve upon the garnishee notice of motion for new trial, or of his intention to remove the cause to the Supreme Court, the statutory issue shall stand for trial at that term of the court on the docket containing the suit in the order of formation of such issue.”

It is most earnestly insisted by plaintiff’s counsel that Crippen v. Fletcher, 56 Mich. 386, is authority to support plaintiff’s right to proceed at once to judgment against the garnishee defendant unless objection is made and it is said by counsel:

“The garnishee defendant having been in default as well as the principal defendant, both must be held to have consented to the rendition of the judgment upon June 8, 1915, as entered by the clerk in the first instance.”

It is possible that there is some language used in the opinion in the case cited tending to give color to counsel’s claim, but we must consider the question there under consideration and all that was said instead of an isolated excerpt. In that case the trial was held by consent of the parties, and it was held that it could not be urged in this court that it was brought on improperly. After remarking that, “The only question now is whether it affects the jurisdiction to proceed earlier where no one objects,” the court said:

“It is clear enough that the garnishee defendant could not be compelled to go to trial within the two days; and further that, if appellate proceedings should be had by the principal debtor, the garnishee judgment, if rendered, could be stayed by the circuit court until the other was disposed of. But there seems to be no reason why the garnishee defendant may not consent to have the issue as to him tried at any time, and in the present case it is found expressly that both parties came into court ready for trial, and no objection was made below at all. It cannot now be insisted the trial was improperly brought on.”

In the instant case the garnishee defendant did not consent; it had not appeared, and most assuredly where it had not appeared, its consent to an irregular proceeding could not be presumed. Its want of appearance did not waive its right to insist upon the provisions of the statute being complied with, nor estop it from insisting that the proceedings were irregular. The statute provided an interim of at least two days between the judgment against the principal defendant and that against the garnishee defendant. This judgment was therefore prematurely rendered against appellant. A premature judgment is invalid. Vohlers v. Manufacturing Co., 171 Mich. 8 (Ann. Cas. 1914B, 1032). See, also, Peninsular Savings Bank v. Ward, 118 Mich. 87; McGinley v. Mining Co., 121 Mich. 88, and other cases where this court in cases involving the validity of tax proceedings has held that a decree was prematurely entered and void if entered without waiting the five days provided by the following statute:

“If, within the first five days after the day fixed in such notice for the hearing of such petition, it shall be made to appear to the court that any person has been prevented from filing objections to any tax, without fault on his part, such further time may be granted for that purpose as may seem proper, not exceeding five days.” Section 66, Act No. 206, Pub. Acts 1898.

See, also, Liverpool, etc., Ins. Co. v. Grocery Co., 97 Ga. 746 (25 S. E. 828).

Nor are we able to find any warrant for a joint judgment against the principal defendant and the garnishee defendant, either upon the record or as matter of law. The summons ran against the principal defendant alone. The declaration counted upon a cause of action against him alone. So the record does not justify such judgment. Is it authorized by the law? We think not. It is quite universally held that a judgment against the principal defendant must precede the judgment against the garnishee defendant. This is necessarily so, as the liability of the garnishee defendant is contingent upon establishing liability against the principal defendant. Mr. Shinn, in his work on Attachment and Garnishment, page 1112, lays down the rule:

“it is because of the fact that no valid judgment can be entered against the garnishee unless a valid judgment has been first entered against the defendant, that the garnishee is permitted to question the jurisdiction of the court and the validity of the judgment rendered against the defendant.”

And this court has held that there must be a judgment against the principal defendant to justify one against the garnishee defendant. Iron Cliffs Co. v. Lahais, supra; Laidlaw v. Morrow, 44 Mich. 547. A joint judgment cannot be rendered against the defendant in attachment and the garnishee. Fourth Nat. Bank of Cincinnati v. Mayer, 89 Ga. 108 (14 S. E. 891). Indeed, the trial judge apparently thought this judgment was invalid as against the garnishee defendant as he set it aside on his own motion. We are not concerned with the question of whether the judgment may be regarded as valid against the principal defendant and the including of the garnishee as surplusage; the question is, Was a joint judgment warranted? We think not. The trial court so held and we do not understand plaintiff questions this holding.

We now come to the consideration of former Circuit Court Rule No. 12b (131 Mich. XXXV) and the following portion thereof:

“But in cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly entered.”

That this rule applies to garnishee proceedings has been settled by this court. Carpenter v. Judge of Superior Court, 126 Mich. 8; Petley v. Wayne Circuit Judge, 124 Mich. 14; Caille Bros. Co. v. Saginaw Circuit Judge, 155 Mich. 480. That the rule as it stood, both before and after its amendment in 1903, was not available unless the default was a valid one, one duly entered, regularly and properly entered, has also been settled by this court. Turner v. Ottawa Circuit Judge, 123 Mich. 617; McWilliams v. Lenawee Circuit Judge, 142 Mich. 226; McCain v. Wayne Circuit Judge, 187 Mich. 73. In the Turner Case the party was not actually in default. In the McWilliams Case the jurat to a bill for divorce had not negatived collusion. In the McCain Case the return of the officer did not show a proper service, although the return was amended before the hearing of the motion. In each of these cases it was held that the limitation of the rule did not apply. Coming now to the specific questions, do the words “proceedings taken after default on the strength thereof” import valid proceedings, regular proceedings, or do they import invalid and irregular proceedings? Applying the last cited cases we are impressed that the words import valid and regular proceedings. While the entry of a judgment is a proceeding taken on the strength of the default (Carpenter v. Judge of Superior Court, supra; Burgard v. Burgard, 175 Mich. 565), it must be a valid judgment, one regularly entered. In the instant case the only proceedings taken on the strength of the default of the garnishee defendant before its second motion to set aside its default, or its third motion for the same purpose, was the entry of the invalid joint judgment against it and the principal defendant. This was not a valid proceeding, therefore, not a proceeding within the contemplation of the rule. The trial court was in error in holding that he was without power to dispose of the motion on its merits.

We do not overlook Travelers’ Insurance Co. of Hartford v. Kent Circuit Judge, 144 Mich. 687, nor Fasquelle v. Kennedy, 55 Mich. 305. The first of these cases involved the granting of a new trial as matter of favor and whether setting aside the judgment on such application prevented the running of the six-months period. It was held that the rule could not be thus circumvented. The judgment in that case was a valid one, and granting a new trial did not do away with the fact that valid proceedings had been taken on the strength of the default. In the instant case the judgment was not a valid one and was set aside because invalid and not as matter of favor. The second of these cases involved a judgment of a justice of the peace. The judgment against the garnishee defendant was a valid one, the sole question being whether entitling the docket in the names of both defendants was improper and rendered the proceedings void. The record showed that the proceedings in the principal suit and in the garnishee suit were kept separate. It was held that the proceedings were not defective by reason of the caption in the docket. Here we have not a defective caption but a defective judgment.

It follows from what we have said that the case must be reversed and defendant’s motion to set aside its default must be heard and disposed of on its merits. The appellant will recover costs of this court.

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


text:
    HARRINGTON v. OTSEGO CIRCUIT JUDGE.
    Mandamus — Right to Puelic Office — Quo Warranto.
    Where the duly qualified prosecuting attorney of a county was suspended from the practice of the law for six months, and on the expiration of said period he brought mandamus proceedings to compel the circuit judge to set aside an order appointing a prosecutor on the theory that a vacancy existed, held, by a divided court, that quo warranto is the proper remedy, and the writ of mandamus should be denied.
    See note in 19 L. R. A. (N. S.) 57.
    Mandamus by William A. Harrington, to compel Nelson Sharpe, circuit judge of Otsego county, to set aside an order of appointment to the office of prosecuting attorney for said county.
    Submitted October 8, 1918.
    (Calendar No. 28,360.)
    Writ denied December 27, 1918, by a divided court.

      William A. Harrington, in pro. per.

      Cummins & Nichols, for Wirt Barnhart.
    Mr. Harrington was duly elected to the office of, and qualified as, prosecuting attorney of Otsego county for the two years’ term beginning January 1, 1917. On July 31st following, in a disbarment proceeding instituted against him, he was suspended from the practice of the law for a period of six months. On August 6th respondent, circuit judge of that circuit, appointed Willis L. Townsend prosecuting attorney for the time being. Mr. Townsend continued to act until February 1, 1918, when he resigned such appointment. On the 11th day of February respondent appointed Wirt Barnhart. By the order of appointment these facts are recited and it is further recited that Mr. Harrington was not performing and had not assumed the duties of the office since his suspension. This petition is filed to compel by mandamus the setting aside of this order. The return of the respondent admits the facts above stated, disaffirms any interest in the controversy other than that cast upon him as an official duty to see that some qualified person should be appointed to discharge the duties of such office; neither affirms nor denies relator’s claims on the law, but states that an opinion of the attorney general on file with the clerk of said county holds that a vacancy existed in said office, which it was respondent’s duty to fill. He returns upon information and belief that a quo warranto proceeding is pending between Mr. Harrington and Mr. Barnhart to determine the title to such office. The return is not traversed. No brief is filed by respondent. Leave having been previously granted by this court, counsel for Mr. Barnhart have filed a brief, which relator moves to strike from the files.
   Fellows, J.

(after stating the facts). The motion to strike the brief of Cummins & Nichols, filed on behalf of Mr. Barnhart, from the files is denied. It was filed by leave of this court. Mr. Barnhart has not filed a petition to intervene in the proceedings which might require notice. This court frequently accepts briefs filed by parties who may be interested in the proper solution of questions submitted to this court for determination. The practice should not’be discouraged. Relator has had ample time to reply to such briefs, as his brief now being considered (his former brief having been stricken from the files as impertinent) was filed several months after that of Cummins & Nichols.

A most casual examination of the statement of facts will disclose that, stripped of all formalities, the question here involved, and the only question involved, is, Who is entitled to hold the office of prosecuting attorney of Otsego county, Harrington or Barnhart? Relator insists that he is the prosecuting attorney of that county by virtue of his election; that his suspension from practice did not create a vacancy; that the only authority given the circuit judge under the facts of the case is that found in section 2412, 1 Comp. Laws 1915, providing for the appointment of a prosecuting attorney for the time being; and that upon the expiration of the period of his suspension he was entitled to be restored to the office with all its rights and perquisities. On the other hand it is insisted that by the suspension of Harrington’s rights to practice law, he thereupon became disqualified to discharge the duties of the office; the same became vacant and that the respondent was required by section 11, article 7, of the Constitution, to fill such vacancy by appointment, and that the appointment of Barnhart was legal.

May this question be determined in this mandamus .proceeding? We think not. There is no great public emergency, no greater than would ordinarily arise in a contest over any office; nor has this court by former adjudicated cases so settled the law as that we may say that Barnhart’s claim is without foundation and but a pretext. While this court has, as matter of favor, permitted the filing of a brief in behalf of Mr. Barnhart, he is not a party to these proceedings, had nothing to do with making the issue and has no control over the case. A quo warranto proceeding is pending between the real parties to this controversy. The title to public office may be tried in quo warranto proceedings, but mandamus is not the proper remedy. People, ex rel. Cuthbert, v. Common Council of Detroit, 18 Mich. 338; Keeler v. Deo, 117 Mich. 1; Ashwell v. Bullock, 122 Mich. 620; Pipper v. Wayne Circuit Judges, 122 Mich. 688; Lachance v. Machinac County Canvassers, 157 Mich. 679; Dickinson v. Cheboygan County Canvassers, 148 Mich. 513; Frey v. Michie, 68 Mich. 323.

The petition for mandamus will be dismissed, but without costs.

Bird, Moore, and Steere, JJ., concurred with Fellows, J.

Ostrander, C. J. I am impressed that the right of the relator to the office ought to be determined in this proceeding and for the reason that no real question of title to office is involved.

1. The prosecuting attorney, Harrington, the relator, was an attorney and counselor at law. It was a necessary qualification for holding the office, which he held by election. His punishment, inflicted by Judge Wiest, did not take away this qualification. He was not disbarred. He remained an attorney, but, for a time, one not permitted to practice his profession. He did not have to be again admitted to the bar when the period of suspension expired.

2. The statute, which demands that the prosecuting attorney shall be an attorney, given the greatest possible effect, in view of the circumstances, operated only to create a disability, for the time being.

3. The disability was removed when the period fixed in the order of Judge Wiest expired.

4. There was no vacancy in the office — the relator was under no disability to perform the duties of the office — when the last order of the court was made. Title to the office came to relator by election. No one in any proceeding instituted for the purpose has questioned his title.

5. The last order made by the court cannot be allowed to so operate as to raise the question of title. It is based upon the assumption that relator had lost title, that there was no one in office. With that order out of the way, and this is a direct proceeding which questions its validity, the whole matter is settled.

The writ should issue.

Brooke, Stone, and Kuhn, JJ., concurred with Ostrander, C. J.


text:
    PEOPLE v. MEYER.
    1. Indictment and Information — Amendment—Variance— Statutes.
    In a prosecution for larceny, where the information alleged that the stolen goods were the property of a corporation, but upon the trial the proof showed that the ownership was in a copartnership, it was proper for the court to allow an amendment of the information, under 3 Comp. Laws 1915, § 15749, defendant being in no way prejudiced, claimed no surprise or unpreparedness, and ashed no continuance.
    2. Same — Amendment—Constitutional Law.
    Said section is not in violation of section 19, Art. 2, of the Constitution, guaranteeing to the accused the right to be informed of the nature of the accusation against him.
    Error to superior court of Grand Rapids; Dunham, J.
    Submitted October 17, 1918.
    (Docket No. 111.)
    Decided December 27, 1918.
    John Meyer was convicted of larceny and sentenced to imprisonment for not less than 2% years nor more than 5 years in the State prison at Jackson.
    Affirmed.

      Ward & Moore, for appellant.

      Cornelius Hoffius, Prosecuting Attorney, and Bartel J. Jonkman, Assistant Prosecuting Attorney (Fred P. Geib, of counsel), for the people.
   Fellows, J.

Defendant was charged in the information with the larceny in the daytime in the store of the Herpolsheimer Company of enumerated personal property of the Herpolsheimer Company of the value of $267.50. It was alleged in the information that the Herpolsheimer Company was a corporation. Upon the trial it developed that the Herpolsheimer Company was a copartnership, composed of William G. Herpolsheimer and Henry B. Herpolsheimer, as trustee. The trial court, over defendant’s objection, permitted the prosecuting attorney to amend the information by alleging the ownership of the property to be in William G. and Henry B. Herpolsheimer as copartners. By seasonable objection, motion for directed verdict and motion in arrest of judgment, defendant questions the validity of this action. It is the only question raised.

The information on its face was in no way defective. The property stolen was the property of the Herpolsheimer Company and was so alleged. The variance between the allegation of the information and the proof consisted in the fact that the Herpolsheimer Company was a copartnership, not a corporation. The variance therefore consisted in the description of the person or body stated to be the owner of the property stolen. Section 15749, 3 Comp. Laws 1915, provides:

“Any court of record in which the trial of an indictment is had, may forthwith allow amendment in case of variance between the statement in the indictment on which the trial is had, and the proof in the following cases: In the names of any county or place stated in the indictment, in the name or description of any person or body stated to be the owner of any property which is the subject of the offense charged, or alleged to have been injured by the commission of the offense, or the Christian or surname of any person, the name or description of any thing, the name or description of any writing, as well records as others, or the ownership of any property described in the indictment, and in all cases whenever the variance between the facts alleged in the indictment, and those proved by the evidence, are not material to the merits of the case.”

The language of the statute is unambiguous and under it the amendment was properly allowed. People v. Courtney, 178 Mich. 137; People v. Brown, 110 Mich. 168; People v. Price, 74 Mich. 37. We can conceive of no case more appropriate for the application of this statute than the instant one. Defendant was in no way prejudiced by the amendment; he claimed no surprise or unpreparedness to meet the case made by the amendment; asked no continuance, and relies solely upon this objection to escape a merited conviction.

Nor are we able to perceive in what manner section 19, article 2, of the Constitution, guaranteeing to the aceused the right to be informed of the nature of the accusation against him, has been offended by this statute of amendments — a procedural statute, a statute enacted in the furtherance of the due administration of the criminal law.

The conviction is affirmed.

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