text:
    ATTORNEY GENERAL, ex rel. HARWOOD, v. STILLSON.
    1. Elections — Misconduct oe Inspectors — Excluding Vote oe Precinct.
    Electors are not to be deprived of the result of their votes by the mere mistakes of election officers which do not appear to have affected the result. But, on the other hand, where fraud appears upon the part of the inspectors, the voter must sometimes be deprived of his vote; and this must always be the case where mandatory provisions of the election law are disregarded, if the result would be thereby changed.
    3. Same.
    In quo warranto proceedings to try title to a county office, it appeared that, outside of one township, the relator received a plurality of the votes cast; that, including the vote of said township, as canvassed, respondent had a plurality of 33; that, of the voters in said township who voted at said election, 150 were Hollanders, who were able to converse in their own language; that", before the polls were opened, the inspectors of election appointed a Hollander, who was opposed to the election of relator, to act as interpreter, and he was sworn to perform that duty; that he was thereupon permitted to be and remain, throughout the day, within the railing of the polling place, and to converse freely, in his own language, with said Holland electors, after they had received their official ballots, and before depositing or marking the same, although none of them had requested an interpreter, and the inspectors had not called upon him to act as such. Held, that the vote of the township should be thrown out.

      Quo warranto by the Attorney General, on the relation of John Harwood, against Francis 0. Stillson, to determine the title to the office of commissioner of schools for the county of Newaygo. On demurrer to the replication. Overruled.
    Submitted January 15, 1896.
    Decided February 26, 1896.

      Fred A. Maynard, Attorney General (George Luton and Michael Brown, of counsel), for relator.

      A. F. Tibbitts (Martin Bozema, of counsel), for respondent.
   Hooker, J.

The relator was a candidate for the office of commissioner of schools in the county of Newaygo at the spring election of 1895. A certificate of election issued to Stillson, an opposing candidate, who entered upon the discharge of the duties of the office, and an information was filed, at the instance of the relator, to try the title to the office. It is before us on demurrer to the replication.

The replication alleges that the relator received votes to the number of 1,351, outside of the township of Sheridan, as against 1,148 for Stillson, — a plurality for relator of 203; and that, in that township, the vote as canvassed gave the relator 42 votes, and Stillson 278 votes. The replication alleges that, of the voters in Sheridan township who voted at the election, 150 were Hollanders, who were able to converse in their language; that, before the polls were opened, the inspectors of said election appointed one John Karnemaat, who was opposed to the election of the relat- or, to act as interpreter at the election, and he was sworn to faithfully discharge the duties of such interpreter; that he was thereupon permitted to be and remain, throughout the day, within the railing of the polling place, and he was permitted to, and did, freely converse with the electors who came therein, for the purpose of voting, after such electors had received their official ballots, and before marking or depositing the same; that such conversation was in a foreign language, viz., the Holland language; that, of the 150 Hollanders who voted at such election, no one requested an interpreter; and that said inspectors in no instance called upon him to act as such.

The above diagram, showing the polling place, was attached to the replication, and a statement of the votes for the office of regent was given, which shows that, in tbe township of Sheridan, the candidate for regent upon the ticket upon which relator’s name appeared received 176 votes, while his competitor upon Stillson’s ticket received 102 votes. The replication asserts that such votes were illegal and void, and that the vote of the township should not have been counted, and that the respondent fraudulently and unlawfully holds the office.

It is plain that relator’s, right to the office depends upon the exclusion of the entire vote of the township of Sheridan, and the question of the validity of such vote is raised by the demurrer to the replication. Two questions are involved in the case:

1. Were the ballots of such voters as Karnemaat conversed with void, so that they should have been excluded?
2. If so, inasmuch as it cannot be ascertained how they voted, should the vote of the township have been excluded from the canvass?

We have frequently held that “electors are not to be deprived of the result of their votes by the mere mistakes of election officers, when such mistakes do not indicate that the result has been changed thereby;” and many things may occur that can be treated as irregularities. See People v. Avery, 102 Mich. 572, and authorities cited. On the other hand, where fraud appears upon the part of the inspectors, the voter must sometimes be deprived of his vote. Attorney General v. McQuade, 94 Mich. 439. And this must always be the case where mandatory provisions are disregarded, if the result would be thereby changed.

The statute in question is one which was passed under a clause of our Constitution which emphasizes the necessity of measures for the promotion of purity at elections. It supplanted a law which permitted a voter to vote openly any ballot that he might choose. There was no obstacle to the immediate presence of any number of persons. We should be careless observers of current events, did we not know and recognize the circumstances, of a public character, preceding and attending the agitation and adoption of measures designed to correct the palpable evils connected with our elections as formerly conducted. We must admit that the legislature intended, and the public understood, that thereafter ballots should not be prepared, by the voter or others, before the elector reached the polling place, and that, when he reached there, he was not to be annoyed by importunities or more potent influences calculated to affect or prevent his free, untrammeled action. To this end, expensive booths and utensils were provided, and “a lawful fence” required to remove nim from his fellows. It is now claimed that this is directory, and, unless the injured party can show that a radical departure from the plain provisions of the law actually resulted in a loss of votes to the relator, and a consequent change of result, there is no occasion to disturb the result as declared; and the reason alleged is, not that there is no probability that the relator has suffered, but that he must submit to a probable wrong, lest some voters not-responsible should lose their votes.

We are not disposed to question the rule laid down in People v. Avery where there is a reasonable opportunity for applying it; but, on the other hand, we think that the possible loss of votes is not the greatest calamity that can follow improperly conducted elections. We are not sufficiently credulous to suppose that an election' board could be so ignorant as not to know that the law was transgressed by the course permitted in this case; and, unless we are to put a premium upon such conduct, and invite its repetition throughout the State, we must conclude that some of the voters must lose their votes, through their offending officers. The readiest way to stop fraud and corruption at elections is to see to it that the same is not rewarded by success; and when, by the connivance and procurement of the election officers, the law is, in essential particulars, disregarded, so that candidates and voters lose the benefit of its protective provisions, under circumstances well calculated to produce the belief that such conduct may have changed the result from what it would otherwise have been, there is as great danger of wrong to the individual voter through counting, as excluding, the vote of the precinct. If we were to suppose a case where the booth was dispensed with, or where persons were allowed in the booth with all electors, it would be possible that no fraud was perpetrated, and that the result was in no way affected thereby; but, in the face of the law, such a practice would be only less surprising than such a result, for we all know that there could be but one object for such course. In such a case no one would contend that the election would be valid, and that the vote of the precinct should be counted. The provisions of the law would be. held mandatory, and we think they should be in this instance. The law has attempted to provide uniform and strict regulations for elections. While we are not prepared to say that the vote of a precinct should be thrown out for a failure on the part of the inspectors to attain absolute perfection in the conduct of an election, where, as in this case, the whole body of electors have been subjected to the possibility of a forbidden influence, and a large portion are shown to have been approached in forbidden ways, under circumstances strongly indicating a fraudulent design, the vote of the precinct should be thrown out, if the result would be thereby changed.

The demurrer must therefore be overruled, and the respondent allowed 10 days within which to file a rejoinder.

The other Justices concurred.

       Act No. 190, Pub. Acts 1891, as amended by Act No. 202, Pub. Acts 1898.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    GRAHAM v. CASS CIRCUIT JUDGE.
    1. Libel and Slander — Criminal Complaint — Privile&e.
    A' complaint for larceny, made before a justice of the peace, is privileged, and cannot be made the basis of an action for libel.
    2. Same — Affidavit to Hold to Bail — Sufficiency.
    An affidavit to hold to bail in an action for libel, after setting forth, as the libel complained of, the making by the defendant of a complaint before a justice of the peace charging the plaintiff with larceny, contained the further averment that the defendant afterwards, in divers places in a designated village, and to divers people, repeated the same slanderous words and charges. Held, that, if this latter averment was intended to cover an action for slander, it was not sufficient, being too indefinite, and not purporting to be based upon the personal knowledge of the affiant.
    3. Same — General Appearance — Waiver.
    The attorneys for the defendant in a suit for- libel, after putting in and perfecting special bail and entering the appearance of the defendant, moved to quash and dismiss the proceedings, upon the ground that the affidavit to hold to bail conferred no jurisdiction upon the court to issue the writ or make an order to hold to bail. Held, that the general appearance waived all defects as to the right to maintain the suit for damages, and that the motion was properly denied.

      Mandamus by William Graham to compel Orville W. Coolidge, circuit judge of Cass county, to quash the proceedings in a libel suit commenced by capias.

    Submitted January 28, 1896.
    Writ denied February 26, 1896.
    One Nelson J. Crosby made an affidavit for a capias ad respondendum, charging the relator with libel. An order for bail was indorsed upon the affidavit. The relator was arrested, and gave a bond conditioned that he would appear in the action by putting in special bail. The relator furnished a special bail bond, and caused his appearance to be entered by his attorneys. The plaintiff filed exceptions to the special bail bond. After-wards the relator, through his attorneys, moved to quash and dismiss the proceedings upon the ground that the affidavit conferred no jurisdiction upon the court to issue the writ, or make an order to hold to bail. The motion was denied, and the object of this application is to compel the circuit judge to grant the order.

      Howell & Carr, for relator.

      Charles E. Sweet and Spafford Tryon, for respondent.
   Grant, J.

(after stating the facts). 1. The libel complained of consists of a complaint made by the defendant before a justice of the peace, charging Mr. Crosby with larceny of property of the value of |30. The complaint was privileged, and cannot be made the basis of an action of libel. Hart v. Baxter, 47 Mich. 198, and authorities there cited.

It is, however, insisted that the affidavit is good because the defendant is therein charged “to have repeated the same slanderous words and charges in divers places in said village of Cassopolis, and to divers people.” It is evident that the gravamen of the charge is the complaint made before the justice. If the residue of the language of the affidavit is intended to cover an action for slander, it is not sufficient, under the decisions of this court, to justify an order to hold to bail or to imprison. It is too indefinite, and does not purport to be based upon a personal knowledge of the utterances charged upon the defendant. Johnson v. Morton, 94 Mich. 1; People v. McAllister, 19 Mich. 215; Hackett v. Wayne Circuit Judge, 36 Mich. 334; Sheridan v. Briggs, 53 Mich. 569.

2. The court had jurisdiction of the subject-matter, and it is a universal rule that a general appearance waives defects, and gives jurisdiction over the person. Stephenson's Case, 32 Mich. 60, does not apply. He was imprisoned after the writ, and applied for his release bj~ habeas corpus. The question was one of jurisdiction to imprison, and not one of jurisdiction of the subject-matter. The imprisonment might be unlawful, and still the suit for damages be sustained. If this were a motion to discharge the bail bond, that case would apply. The general appearance waives all defects as to the right to maintain the suit for damages. Whatever defects may be found in subsequent proceedings must be taken advantage of upon the pleadings. 2 Enc. Pl. & Prac. 639, and authorities there cited; Wright v. Jeffrey, 5 Cow. 15; Pixley v. Winchell, 7 Cow. 366; Stewart v. Hill, 1 Mich. 265; Wiest v. Luyendyk, 73 Mich. 661.

The writ must be denied.

The other Justices concurred.


author: Per Curiam.

text:
      In re CLANCY.
    Guardian and Ward — Custody of Infant.
    An infant will not be taken from the custody of persons with whom it was placed upon being abandoned by its mother, and given into the custody of its guardian, where, notwithstanding the fact that the mother of the child had been declared an unfit person to have its custody, the guardian has left in her control an infant brother of the child, over whom he has the same rights of Iguardianship, and where there are other indications that he does not make the petition in good faith, for the purpose of securing to himself the exclusive care, control, and education of the child.

      Habeas corpus by William Clancy, Jr., against Arnold Sinon and wife, to obtain the custody of his ward, Marguerite M. Clancy.
    Submitted January 28, 1896.
    Denied February 26, 1896.

      Hawes & Luby, for petitioner.

      Osborn, Mills & Master, for respondents.
   Per Curiam.

This is a proceeding by the writ of habeas corpus to obtain possession of the person of Marguerite M. Clancy, a child between five and six years of age. The father is dead. The mother petitioned for the writ of habeas corpus before J udge Buck, of Kalamazoo county. Testimony was taken before him, and he determined that the mother was an unfit person to have the education, care, and custody of the child, and ordered the child to remain in the custody of Mr. and Mrs. Sinon. The mother then went to Washtenaw county, where she claims to have meanwhile obtained a residence, and filed a petition in the probate court to have William ClanCy, Jr., the relator here, appointed guardian of her two children, and he was so appointed. He thereupon instituted this proceeding. This court made a reference to take proofs as to the good faith of the application, and whether Mr. Clancy was a suitable person to have the custody, education, and care of the children. In July last the child was virtually abandoned by its mother, and left with one Mrs. Mosher. The father soon afterwards applied to Mr. Merrill, the county agent, to find a suitable home for the girl. A temporary arrangement was made with Mrs. Mosher, who kept her four weeks. She then notified Mr. Merrill that she did not desire to keep her longer. He thereupon made arrangements with Mr. and Mrs. Sinon to take'the child.

The mother would be the proper custodian of the child if she were a proper person. The circuit court of Kalamazoo county judicially determined that she is not, and in this conclusion we concur. We are not satisfied that this petition is made in good faith on the part of Mr. Clancy, and that he desires possession for the purpose of taking exclusive care, control, and education of the child. Her mother is living in Ann Arbor, where Mr. Clancy lives; and although he is entitled, under his letters of guardianship, to the same right of possession of the boy as of the girl, yet he has not taken it, and leaves him to the exclusive possession of his mother. That this child should be placed under the proper influences is of the first consideration, and we see no legal obstacle to leaving her under the care of Mr. and Mrs. Sinon, rather than place her where she may be subjected to the influence of her mother, whom the court has found to be an unfit person.

The writ will therefore be denied, and the child remanded to the possession of respondents.


author: Long, C. J.

text:
    CATHRO v. GRAY.
    Specific Performance — When Denied.
    Equity will not enforce the specific performance of a land contract at the suit of a vendee who, having received notice that the contract had been forfeited by reason of his failure to make the payments provided for therein, took no steps for a number of years to enforce any rights that he might have under the contract, but, on the contrary, permitted a subsequent purchaser from the vendor to take possession of the premises, and to make valuable improvements thereon.
    Appeal from Alpena; Simpson, J., presiding.
    Submitted January 29, 1896.
    Decided February 26, 1896.
    Bill by John J. Cathro against Edgar L. Gray and John J. Murphy for the specific performance of a land contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      W. E. Depew, for complainant.

      Edgar L. Gray, for defendants.
   Long, C. J.

In June, 1878, defendant Gray entered into a written contract with the complainant and George Cathro, to sell and convey to them 120 acres of land in Alpena county, for the sum of $420, to be paid in annual payments of $105 each, the last payment to be August 31, 1882. The contract provided that the vendees should pay all taxes and assessments, and all back taxes since and including the year 1873, and, upon full payment being made, the vendor should convey the premises by warranty deed; but, if the payments were not made in full, the payments theretofore made should be forfeited, and the premises, with the improvements thereon, should revert, and the vendor might thereupon re-enter and take possession, or, at his option, .the vendor might enforce the payment of the money due on the contract; but no pine timber was to be taken off without the written assent of the vendor. George Cathro thereafter assigned his interest in the contract to the complainant. Defendant Gray, claiming that complainant, Cathro, had not kept up his payments in accordance with the terms of the contract, treated it as void, and on October 23,1887, entered into a written contract with defendant John J. Murphy for the sale of the lands to him for the sum of $600, the last payment of which was to be made October 25, 1891. After this contract was made, Mr. Murphy entered into possession of the premises, paid the taxes thereon, and has made more or less improvements upon the premises. Complainant now files this bill to enforce specific performance of the contract made with him, and an accounting to ascertain the amount due from him to defendant Gray, and claims to have made certain payments under the contract. The testimony was taken before a commissioner, reported to the court below, and upon such proofs that court dismissed the complainant’s bill. The complainant appeals to this court.

It appears that, after Cathro obtained his contract, he cut and removed from the premises quite a quantity of timber; that he did not keep up his payments, when, in the summer of 1883, Mr. Gray notified him that his contract was forfeited. After this notice was given, the complainant wrote his brother George in reference thereto, and stated in the letter:

“If you want to keep your interest, you will have to send me a power of attorney to act for you. I do not know how you will look on it. As for myself, I would let it go, only it would leave me liable for whatever he might choose to charge me for the hardwood he claims pay for, or defend it by a lawsuit, which I may as well enter first as last.”

The claim by defendant Gray is that Cathro thereafter did nothing in reference to the lands, made no further payments under his contract, and that the whole matter *was ended so far as Cathro was concerned, when, in 1887, he (the defendant) made a contract of sale of the lands to defendant Murphy; that, before Murphy purchased, he had a talk with Cathro in reference to these lands. At first Cathro claimed some interest in them, and produced a contract; but Mr. Murphy testified that, upon examining it, he found that it described other lands than those in controversy here, and that Cathro then said to him that, if he wanted to go on and make a farm of it, he would never bother him; that he would likely see Mr. Gray, and settle the difficulty with him. Mr. Murphy claims that, with this understanding, he went into possession of the premises, made valuable improvements thereon, paid the contract price, and paid the taxes for the years 1887-1889; that these premises were adjoining those occupied by Mr. Cathro; and that Cathro saw him year by year making improvements, and made no objection thereto until about the time of the filing of this bill.

We are satisfied from an examination of the testimony that Mr. Cathro failed in making his payments in accordance with the terms of his contract, and that Mr. Gray had the right in 1883 to terminate it; that Cathro did not seek thereafter to enforce the terms of his contract, and that Mr. Murphy, in 1887, in making the purchase, acted in good faith; that Cathro knew of Mr. Murphy’s purchase; and that, while he claims that from year to year he made objections to Murphy’s possession, he took no steps to enforce his claimed rights, but permitted Murphy to expend money in improvements.

The decree of the court below must be affirmed, with costs.

The other Justices concurred.


text:
    BOTSFORD v. CHASE.

    1. Slander — Evidence—Financial Standing oe Dependant.
    Evidence of the financial standing of the defendant in a civil action for slander is admissible to show the influence his word would have in the community.
    2. Same — Pleading—Evidence.
    Where the gravamen of the claim laid by the plaintiff in an action for slander is that, by reason of the false and defamatory statements of the defendant, plaintiff’s neighbors and friends have refused to have business dealings with him, and that he has been compelled to resign his position as manager of a corporation, and to sell his stock therein, evidence that upon such sale plaintiff received the full value of his stock is properly excluded as immaterial.
    3. Same — Malice.
    In an action for slander, evidence of other slanderous statements than those alleged in the declaration, made during the course of the same conversations, and being of the same general character, is admissible to show malice and ill feeling on the part of the defendant.
    4. Appeal — Presumptions.
    Where the record on appeal does not show that all of the testimony is returned, it will be presumed that there was evidence justifying the instructions to the jury.
    Error to Kalamazoo; Buck, J.
    Submitted January 17, 1896.
    Decided February 26, 1896.

      Case by James E. Botsford against Nehemiah Chase ■ for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      A. M. Stearns and Hoivard & Boos, for appellant.

      E. M. Irish and N. H. Stewart, for appellee.

       Rehearing denied March 11, 1896.

   Long, C. J.

Plaintiff, with defendant and other persons, at Kalamazoo, in the year 1892, organized what is known as the Botsford Paper-Mill Company, as a corporation. The capital stock was $100,000. The plaintiff took $10,000 of the stock, and defendant also became a large shareholder therein. The plaintiff became the general manager of the company, and the defendant its president. The whole capital stock was paid in, and the mill built and equipped in April, 1893. It was then discovered that the capital stock was not large enough, and it was increased to $120,000. Thereafter it was increased to $150,000. This $50,000 was not paid in, when the plant was mortgaged for that amount. Some feeling grew up between the parties in reference to the management of the concern; and defendant contends that plaintiff, when about to organize the corporation, represented that he was a practical paper-mill man, of large experience, and that $100,000 would be ample capital stock to build the plant and furnish sufficient working capital; that, relying upon this, he had taken $10,000 of the stock, and induced his friends to take the balance, aside from what the plaintiff took, — when in fact the plaintiff was not a practical mill man, and had had no experience whatever in paper making. Frequent meetings of the board of directors were held, and the plaintiff contends that at these meetings, and in the presence of other parties and at other places, the defendant made certain false, slanderous, and defamatory statements of and concerning him. This action 'was brought to recover damages for such defamatory words. On tbe trial the plaintiff had verdict and judgment for $5,000. Defendant brings error.

The defamatory statements, as laid in the declaration, are:

“ He has attempted to bribe me to keep still.”
“ He has attempted to bribe me to keep still, by agreeing to give me too high a price for paper frames.”
“I offered to make the paper frames for 12 cents apiece, and he paid me 16 cents.”
“ He agreed to pay me 16 cents, and would have paid me 19 cents, or any other price I would have asked, in order to have me keep still.”

The declaration alleges that, previous to the time of such conversation, the plaintiff had made a certain contract for paper frames, in behalf of the paper-mill company, with defendant, for a fair and reasonable price, and that by the language aforesaid the defendant meant, and intended to have the public and the persons interested in said corporation to understand, that the plaintiff agreed to give the defendant a higher price for said paper frames than they could be bought for in the market, and so give it in fraud of the rights of the company, for the purpose of bribing the defendant to keep still about and conceal some act of the plaintiff, which act defendant meant, and intended the public and said persons should infer, the plaintiff had done against the interests of the said corporation.

The declaration further alleges that the defendant further stated of and concerning the plaintiff: “He is dishonest and incompetent;” also, the words:

“I have looked Botsford (meaning plaintiff) up, and find his record is not good.”
“I am informed that he has failed in business East.” “ He does not dare to own any property. Everything is in his wife’s name.”
“The Botsford Paper-Mill Company is gone to the dogs, and, unless we get Botsford out, we are gone.”
“Botsford is dishonest.”
“He has bribed me, by making a contract to furnish slats to the company, and I have papers in my pocket to prove it.”
“Botsford is not fit to manage the mill.”
“He does not understand his business. There is no head or tail to the business.”
“Botsford is rotten.”

The declaration then alleges that the defendant intended by the expression, ‘ ‘ Botsford is dishonest and incompetent,” that the plaintiff was dishonest and incompetent in the management of such business, and as a business man in his said trade, occupation, and business as aforesaid; and that, by reason of the premises,' the plaintiff was compelled to resign his position as manager of the company, and to sell his stock in the corporation. It appears that at the request of the board of directors, after the difficulties arose, both parties resigned their positions, and the defendant purchased from the plaintiff his shares of stock, paying par value therefor.

Of the errors claimed, which were argued in this court, we think but three need be discussed:

1. The court charged the jury as follows:

“If. the jury find that the slanderous words were spoken by defendant against the plaintiff, then, in estimating the plaintiff’s damages, they may take into consideration the wealth and standing of the defendant in the community, with a view of determining the weight and influence which his false statements may have had in injuring plaintiff.”

It is contended that there was not a particle of evidence introduced on the trial showing, or tending to show, that the defendant was a man of wealth, and that the above charge, taken in connection with remarks of counsel on the trial, calling the defendant a “bloated paper-mill baron,” prejudiced the defendant before the jury.

The rule is well settled in this State that the pecuniary standing of the defendant in a civil action for slander may be shown, to prove the influence his words would have in the community. Brown v. Barnes, 39 Mich. 211. That case has been.cited with approval many times, and the rule there laid down has at all times since been followed in this court. We are unable to say in this case that there was no testimony which would warrant the instruction. It was shown, as appears by the record, that the defendant was a large owner of stock in this corporation. But, aside from this, the record does not purport to contain all the evidence taken on the trial, and there may , have been other evidence which warranted the court in giving the charge complained of. Just what led up to the remark of counsel above quoted, the record does not show. It may have been in answer to remarks of counsel on the other side. It.may also be said that the record does not disclose that the attention of the trial court was called to these remarks, and there does not appear to have been any exception taken thereto.

2. On the trial the plaintiff contended that he had been largely instrumental in organizing the corporation, and in securing and establishing trade and business therefor, and that, by reason of the alleged slanders, his relations with the corporation were broken off, and he was compelled to resign his position and sell his stock. He testified that he had had 13 years’ experience in the general paper business, — buying, selling, and jobbing; that he was engaged about three months in organizing this corporation, before it became a corporation, and; that-the construction took nearly a year; that the company then ■commenced making paper, and continued about three months; that his salary was to commence at $3,000 a year, when it got to making paper; and that he was paid that salary monthly until the time of his being compelled to resign his position. He also testified, substantially, that the defendant made statements to the board of directors and others that he was rotten to the core; that he had attempted to bribe him (the defendant); that he was dishonest, and incompetent to run the business; that the defendant refused to pay the balance of his subscription, but made the proposition that he would do so, and furnish, capital stock for the company, if the plaintiff would resign; that it was thought by the board and by himself that, unless some reconciliation could be made, the enterprise would go down; and that, therefore, to prevent this disaster, he offered to sell out his stock, and did sell it to the defendant. It is claimed that it was under these circumstances, and through the false, slanderous, and defamatory statements of the defendant, that the committee of stockholders appointed by the company requested him to resign.

On the trial Mr. Buckhout was called as a witness by the defense, and testified that he was one of the stockholders of the concern, and had general supervision over it after the plaintiff resigned. He was asked by counsel to state the situation of the company, and what the stock was worth, in April or July, 1893, and answered:

“I don’t think'I could state that.
“Q. You sold some stock afterwards, didn’t you?
“A. Yes, sir.
“Q. You knew of some being bought and sold ?
“A. Yes, sir.
“Q. And you knew all about the assets and liabilities of the concern ?
“A. Yes, sir.
liQ. I would like to get your best judgment as to the value of the stock about that date.”

This was objected to, and the objection sustained, the court stating:

“If, on reflection, he has a judgment, he can state it; but I do not think it should be stated until he expresses some knowledge as to its value. * * * I think you should first show that he has knowledge of the market value; that is, of his own opinion.”

The question was then asked:

“You may state, Mr. Buckhout, whether or not you have any knowledge of its market value.
“A. Well, I cannot say that I have. It is a pretty difficult matter to answer a question of that kind.”

He was then asked if he knew of any stock being offered for sale in July, 1893 (this was about the time the plaintiff sold his stock to the defendant), and at what price. He answered that he had known of some being bought and sold; but, under objection, the court excluded the answer as to the price, on the ground that it would not be competent to show what a part of the stock was bought and sold for. It is insisted that the market value could not well be shown; that the stock had no market value; but that, for the purpose of showing that the plaintiff was not injured in selling his stock at par to the defendant, the defense should have been permitted to show that other stock was bought and sold for less than par.

There is no allegation in the declaration that the plaintiff was compelled to sell his stock at less than its par value; but the complaint is that, by reason of the false, slanderous, and defamatory words of the defendant, divers of his neighbors and citizens, to whom his innocence was unknown, had, on account of such grievances, refused to deal or have business transactions with him; and also, by means of the premises, “the said office and relations which the said plaintiff held to the said Botsford Paper-Mill Company are broken up and destroyed, and the said plaintiff was compelled to resign his said position, and to sell his stock in the said corporation,” to his great damage, etc. In other words, the gravamen of the claim is that by reason of the false, slanderous, and defamatory statements, his friends and neighbors refused to deal or to have business transactions with him, by means of which he lost his position, and was compelled to sell his stock; not that he was compelled to sell it at a sacrifice. Plaintiff had bought the stock, and paid par value for it. He sold it to the defendant for just what it cost him; and that he was compelled to sell it at all, and lose his place as manager, was what he complained of. The defendant was apparently ready and willing to buy, if the plaintiff would resign his management of the corporation; and this resignation, according to the plaintiff’s theory, was brought about by the defamatory statements of the defendant. The defendant himself testified that he offered to purchase the stock, and pay in the balance of his subscription, if the plaintiff would get out. Under these circumstances, it is apparent that what other stock sold for about that time was wholly immaterial.

3. "While the plaintiff was on the stand as a witness, he was asked to state what the defendant said about his keeping a false set of books. This was objected to, and the court admitted it solely on the ground that it bore on the question of malice. These words were not laid in the declaration, but appear to have been uttered in conversations with the plaintiff. The court was. not in •error in admitting this testimony. Newman v. Stein, 75 Mich. 405. While this testimony would not be admissible as a substantive cause of action, it was admissible to show the ill feeling which defendant had towards the plaintiff, and as tending to show malice. The jury were instructed that this testimony could be considered only as bearing upon the question of malice. There was no error in this.

Some contention is made that the slanderous words were not proved as alleged. As the record does not purport to contain all the evidence given on the trial, we are unable to determine that there was no testimony tending to prove the words laid in the declaration as having been uttered by the defendant.

Complaint is made also of the refusal of the court to charge as requested, and to the charge as given. We think the court was not in error in refusing the requests, "and that the substantial rights of the defendant were fully protected under the charge as given.

The judgment must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    STARLING v. SUPREME COUNCIL ROYAL TEMPLARS OF TEMPERANCE.
    1. Mutual Benefit Associations — Change oP Certificate— Consent of Member.
    A mutual benefit society which issues a certificate to a member providing for payment in case of total disability resulting from a specified cause cannot, without his express consent, change his contract by the adoption of a by-law excluding such cause of disability, although the member has agreed in his certificate to observe “all the laws, rules, and regulations of the society.”
    2. Same — Loss of Membership.
    A member of an order which is social as well as beneficiary, whose lodge is disbanded for lack of members, and whose transfer card is refused by the other local lodge, is not bound, in order to retain the benefits conferred by his certificate of membership, to unite with a foreign lodge, but may send his assessments direct to the supreme body.
    3. Same — Total Disability — Instructions.
    In an action on a certificate of insurance payable in case of total disability to follow any avocation, an instruction that the fact that a man may work continuously for a few months is not conclusive evidence that he can follow some avocation is not prejudicial to the defendant, where the jury are explicitly instructed that, if the plaintiff can follow any line of employment, he cannot recover, and that the question of his ability to do so is one solely for the jury.
    Error to Wayne; Hosmer, J.
    Submitted January 28, 1896.
    Decided February 26, 1896.

      Assumpsit by Adolphus F. Starling .against the Supreme Council of Royal Templars of Temperance upon a benefit certificate. There was a judgment for plaintiff, to review which defendant sued out a writ of error. Plaintiff died pending the hearing on appeal, and the cause was revived in the name of his administrator, John G. Starling.
    Judgment affirmed.

      J. H. Tatem, for appellant.

      Powell & Johnson, for appellee.
   Moore, J.

The defendant is a fraternal and mutual benefit association, composed of social and beneficiary members, with a membership of 13,000. Its beneficiary fund is derived from monthly assessments paid by its members. The certificate of insurance issued to the plaintiff provides, among other things, that the beneficiary, at the death of the insured, shall be entitled to the sum of $1 from each and every active member in good standing, not to exceed 2,000 members, or if the insured shall become totally disabled for life, so as to prevent his following his own or any other avocation, he shall, upon satisfactory proof of such total disability, be entitled to one-half of the above-mentioned amount, the remaining one-half- to be paid at the time of his decease, provided he shall comply with all the laws, rules, and regulations of the order. On the back of the certificate was indorsed the following:

“Total disability shall consist of the following conditions :
“1. An injury which shall produce complete, total, and permanent disability from following any avocation.
“2. Paralysis so extensive as to produce absolute disability to follow any avocation, and which is conclusively permanent.
“3. Rheumatic or gouty arthritis, followed by permanent anchylosis, so extensive as to produce total disability.
“4. Entire and hopeless loss of useful vision.
“5. Hopeless and irremediable insanity.”

In July, 1890, the plaintiff was stricken with paralysis, which, he claims, totally disabled him for work, and entitled him to the sum of $1,000, according to the terms of his certificate, and, inasmuch as his claim was not paid, he brought this suit in 1893.

It is claimed, by way of defense, that in 1890, and before this suit was brought, the causes of total disability were reduced to three: (1) Entire and incurable loss of vision; (2) entire loss of both arms, or both legs; (3) hopeless and incurable insanity, — and that, inasmuch as the plaintiff had agreed to observe the rules and regulations of the order, this change of causes of total disability would prevent his recovery for the total disabilty growing out of the paralysis. It has been held that, where a mutual benefit society issued to a member a certificate of insurance, the subsequent adoption of a by-law by the society could not modify or change the contract of insurance without the express consent of the member. Grand Lodge A. O. U. W. v. Sater, 44 Mo. App. 445; Insurance Co. v. Connor, 17 Pa. St. 136; Becker v. Benefit Society, 144 Pa. St. 232; Morrison v. Insurance Co., 59 Wis. 162. To the same effect is Becker v. Insurance Co., 48 Mich. 610.

It is also claimed that plaintiff is not entitled to recover, for the reason that, at the time of the commencement of this suit, he was not a member of the order. It seems to be established by the record that plaintiff, who was a resident of Detroit, was a member of Enterprise Council, of Detroit, until it broke up for want of members. He then obtained a transfer card from the supreme council at Buffalo, and deposited it with the North Star Council at Detroit. It was refused by that council. It is claimed by the defendant that, if the Detroit councils refused to receive him, he was under obligations to unite with a council in Grand Rapids or Buffalo. As this was a social 'as well as a beneficiary order, such a construction is unreasonable. The plaintiff sent payments of all assessments of which he had notice to the supreme council, at Buffalo, which received them for more than two years after he claims to have become totally disabled. The plaintiff had done all he could, and all he was bound to do, to retain his membership, and was not in fault.

Complaint is made of the charge of the trial judge. The record shows that the avocation of plaintiff was cutting leather in a shoe factory, which required a steady hand; that, after 1890, his condition was such that he could not longer follow it. There was some testimony that, for a short time in 1892, he had acted as an inspector of sidewalks. After the trial judge had charged the jury properly as to the law, this occurred:

“Mr. Powell: May it please the court, your honor has not defined what ‘ following an avocation ’ would be. I don’t know whether you see fit to do that or not.
“The Court: I have not been requested to, in that respect. I will say, on that subject, that following an avocation, perhaps—
“Mr. Tatem: It is not a question of law, your honor.
“The Court: I think that is so, largely. But I will say this, with reference to that: The fact that a man may carry a bucket of coal, or may carry a stick of wood, or perhaps may run a lawn mower over a lawn, will not, in itself, necessarily show that he is competent to follow some avocation. The fact that a man may work for a few moments, even though, perhaps, he may work for a few months, will not, necessarily, — it is not conclusive evidence that he can follow some avocation. But, if you find that he can perform some kind of employment, — if you find, as suggested by the counsel in this case, that he could keep a newspaper stand, or a peanut stand, or could do any work, or follow any line of employment,— why, then, gentlemen of the jury, under those circumstances, he would not be entitled to recover. But you must remember it is not for me to say what inference shall be drawn from the evidence in this case. You have heard the evidence. It is for you to draw the inference of fact, and nqt for the court.”

The court had fully charged the jury that, to entitle the plaintiff to recover, he must be totally disabled from following any avocation, and he again repeated that charge, and left it entirely for the jury to draw the inference of fact.

The judgment of the court below is affirmed, with costs.

The other Justices concurred.


text:
    LAUZON v. BELLEMEUMER.

    Settlement&emdash;Concltjsiven ess.
    A contract whereby one of the parties agrees to accept a specified amount “in full satisfaction of all claims of every nature” against the other is conclusive as to any existing claim, where there is no evidence of fraud or mutual mistake.
    ' Error to Gogebic; Haire, J.
    Submitted January 29, 1896.
    Decided February 26, 1896.

      Assumpsit by Bruno Lauzon against Paul Belleheumer for board and office rent. From' a judgment for defendant on verdict directed by the court, plaintiff brings-error.
    Affirmed.
    The defendant was indebted to the plaintiff for board and office rent in the sum of $260.60; unless he is precluded from recovering by. the following agreement of settlement :
    “ Whereas, differences have arisen between Bruno Lauzon and A. Lauzon and P. E. Belleheumer, touching certain alleged misconduct on the part of the said Belleheumer towards the said A. Lauzon: In consideration of the premises, and on condition that the said Lauzon shall release and acknowledge full satisfaction for and on -account of all actions and causes of action which they, or either of them, may have on account of the matter aforesaid, or for or on account of any other matter or thing of any kind or nature, the said Belleheumer agrees to pay to the said Lauzon the sum of $500, the same to be applied on a certain mortgage executed by the said Lauzon and running to said Belleheumer upon certain real estate situate in the city of Ironwood, aforesaid; and, upon the execution of this agreement by said Lauzon and his said wife, the said Belleheumer shall deliver to them his receipt for said sum of $500, to be applied as above set forth; and the said Bruno Lauzon and A. Lauzon, his wife, hereby agree to accept and receive the same in full satisfaction of all claims of every nature as aforesaid.
    “In witness whereof, we have hereunto set our hands, the day and year first above written.
    “Bruno Lauzon. “Angelina Lauzon.
    “ Signed and executed in my presence:
    “Frank F. Kutts.”
    At the conclusion of the plaintiff’s proofs, the court directed a verdict for the defendant.

      Thomas Kissane and M. M. Riley, for appellant.

      Charles E. Miller, for appellee.

       Rehearing denied May 6, 1896.

   Grant, J.

(after stating the facts). The contract, in its express terms, covers the account for which this suit is brought. It is, however, insisted on behalf of the plaintiff, that the account for board and rent was not intended to be settled by this agreement, but only the insult which it is claimed was offered by the defendant to plaintiff’s wife. Plaintiff testified that, in the negotiation pending this agreement, nothing was said about this ■account, and it is urged that he had the right to submit to the jury the question of fraud in its execution. Plaintiff testified to no false representations. He admits that the agreement was read to him, and does not claim that any portion of it was suppressed or erroneously read to him. A settlement cannot be set aside upon the ground that one of the parties did not understand it. The agreement upon its face was a clear settlement of all the accounts between the parties up to its date. There was no ambiguity in it, and nothing to be misunderstood. The evidence fails to make out a case of fraud or mutual mistake. The rule governing this case is fully stated in Pratt v. Castle, 91 Mich. 484, 487.

Judgment affirmed.

The other Justices concurred.


text:
    ROHDE v. BIGGS.

    1. New Trial — Discretion oe Circuit Judge — Review on Appeal.
    The fact that the circuit judge, in denying a motion for a new trial on the ground that the verdict was against the weight of evidence, stated that, had the case been submitted to him, he might have taken a different view of the testimony than that adopted by the jury, is not a sufficient reason for holding that he erred in denying the motion.
    2. Pleading — Inconsistent Counts — Election.
    Upon the failure of a building contractor to carry out his contract, his bondsmen took up the work, and carried it forward to completion. The contractor died before the work was finished, and the interest of his estate in the contract was assigned to his bondsmen. In a suit brought by them upon the contract, one of the counts of the declaration averred the making of the contract, the faithful and full performance of its terms by the contractor, the existence of an indebtedness to him by reason thereof at the time of his death, and the assignment to the plaintiffs. Another count averred that the contractor abandoned the contract, and that plaintiffs thereupon assumed to complete the same, in consideration of which defendant promised to pay them the unpaid portion of the contract price. Held, that plaintiffs were entitled to recover the balance of the contract price in any event, and that the refusal of the court to compel them to elect upon which count they would rely was not prejudicial error.
    3. Principal and Surety — Building Contract — Abandonment.
    The sureties on the bond of a building contractor have the right to complete the contract where it is abandoned by the contractor.
    Error to Washtenaw; Kinne, J.
    Submitted January 15, 1896.
    Decided February 26, 1896.

      Assumpsit by Louis Rohde and Anthony Wagner against William Biggs to recover a balance alleged to be due on a building contract. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Thomas A. Bogle (Thompson & Harriman and M. J. Cavanaugh, of counsel), for appellant.

      Charles B. Whitman, for appellees.

       Rehearing denied March 24, 1896.

   Long, C. J.

The facts in this cause and the questions involved on the trial are so fully covered by the charge of the court that we adopt it as a statement of the case, as follows:

“In October, 1890, the defendant, Mr. Biggs, had a contract for the erection of certain buildings in Ann Arbor, known as the ‘University Hospitals.’ Part of this work he sublet to other contractors, and among the number was one John Lucas, to whom he let the contract for doing the mason work on those buildings. By the terms of this subcontract, Mr. Lucas agreed to finish the buildings on or before October 1,1891. For some reason, but what that may be does not appear on this trial, Mr. Lucas failed to carry out his contract; and in the latter part of September, 1891', he retired, — withdrew from the work. A little later on the plaintiffs in this suit, who were his bondsmen, came forward, and, in place of Mr. Lucas, proceeded to complete the contract. Mr. Lucas died some time in December, 1891. Due administration has been had of his estate, and his widow has been appointed administratrix, and whatever claim she may have had in this matter has been assigned to the plaintiffs.
“After the buildings were completed, differences arose between the plaintiffs and defendant respecting these matters, and this suit is the result of their dispute and misunderstandings. It is undisputed that the original contract, between Mr. Lucas and the defendant, for this mason work, called for the sum of $30,939.84. The plaintiffs in this suit, in part as assignees of the administratrix of John Lucas, and in part in their own right, seek to recover whatever balance of said contract price remains unpaid, and also seek to recover for certain extras in the line of labor, material, etc., alleged to have been furnished by Mr. Lucas- in his lifetime, and by plaintiffs after they assumed to complete this contract; and they claim a balance of some $2,900. The defendant controverts many of these propositions or claims by the plaintiffs, and insists that nothing remains unpaid on this matter; but that, on the other hand, there is a balance due him, on a full and fair accounting between him and the plaintiffs. I think he-claims a balance of some $700.
“If you shall find that the said John Lucas, in his lifetime, and the said Wagner & Rohde, between them, completed this mason work, and furnished the materials therefor, upon said hospital buildings, the plaintiffs are entitled to recover the contract price — namely, $30,939.84 —therefor, less any payments which were made by the defendant thereon either to said Lucas or to plaintiffs, and also less the value of any materials or labor furnished by said Biggs towards the completion of said mason work, and also lessj any. authorized deductions by reason of changes which were beneficial to the plaintiffs; and the plaintiffs are further entitled to recover the value of any labor or material which might be furnished, either by said Lucas or by these plaintiffs, beyond and in addition to the mason work provided in the original contract between Biggs and Lucas, towards the construction of said hospitals. In addition to whatever amount you may find to be due the plaintiffs under their contract with said Biggs, you should allow to these plaintiffs, as assignees, the value of any extras which were furnished by said Lucas in the construction of said hospitals, and, in addition thereto, the value of any extras which you may find, by the evidence, were furnished by the plaintiffs upon said hospital building.
“Something has been said upon the question, when the case was opened, by plaintiffs or defendant (or both of them, possibly), as to whether or not the defendant was damaged by the failure of Lucas to complete- the contract within the time named. Whether or not the defendant was damaged is not material in this case, because there is no evidence of any specific damage, and the defendant in this case could recover none. There is no claim now, on the part of his counsel, for any specific damage that he has sustained by reason of the failure of Lucas to complete his contract; but, in that connection, I give you a request of defendant, as follows: ‘ It is an undisputed fact in this case that Lucas abandoned his contract with Mr. Biggs before its completion, and there is no evidence in the case that such abandonment was due to any default on the part of defendant, Biggs.’
“In this contract between the University and Mr. Biggs there is this clause: ‘Mr. Biggs agrees to do, or cause to be done or furnished, any additional work and material, ordered by competent authority, at the same rates or prices as shown by the schedule for the same kinds of labor or material. Mr. Biggs also agrees to allow the University for any reduction or omissions of work or material required by the contract, and not furnished at the rates shown by the schedule.’ That appears in the contract between the University and Mr. Biggs. Now, I say to you, here is a very proper and a very ordinary provision in such contracts. So, if there is any increased labor or material, Mr. Biggs should have pay therefor at the same prices, and, if there are changes made that lessen the cost, the University shall have the benefit thereof. Now, as far as that applies to this case, if you find, from the evidence, that this same (or a similar) arrangement or understanding was had between Mr. Biggs and Mr. Lucas, or that they acted upon such understanding or arrangement, and regarded it as binding upon them, then, while Mr. Biggs must pay for all extra labor and material furnished by plaintiffs or Mr. Lucas, he is likewise entitled to credit for any decrease of labor or material, or reduction in the same, by reason of changes directed by the superintendent, Mr. Reeves.
“In order for the plaintiffs to recover under the contract between Lucas and the defendant, the plaintiffs must satisfy you, by a fair preponderance of the evidence, ■that, through the administratrix of Mr. Lucas and his bondsmen, the plaintiffs in this suit, this contract has been substantially performed; and in order to recover for said labor and materials they must satisfy you, by the same preponderance of evidence, that they are entitled to recover for them; and this, gentlemen, will constitute the claim of the plaintiffs. The defendant must establish the amount of his payments, his deductions, and his set-offs by a fair preponderance of evidence. His payments, his alleged deductions, and set-offs will constitute his defense, and his claim for a balance in his favor. The defendant is not entitled to any allowance by way of set-off for any changes in the mason work in said hospital buildings, where no arrangement, understanding, or agreement was effected for a deduction from the amount which said Lucas was to recover under his contract with said Biggs. It depends upon whether there is an understanding or arrangement or not.
“There has been considerable testimony and discussion with regard to the claim of the defendant to a right for credit for a decrease in the cost of plastering. It appears, by the original contract between Lucas and Biggs, that Lucas was to lath and plaster the buildings at the schedule price of 25 cents a yard, and I think all parties agree this was a fair price. It seems that a change was agreed upon, and, in place of common plaster, adamant was used; and while Mr. Lucas, under the contract, would have furnished the common plastering, Mr. Biggs, in fact, furnished the adamant, and he claims a credit of 7 cents a yard therefor. Mr. Lucas furnished the lath and the labor in putting on the adamant, and plaintiffs claim that it required more lath and more labor; while Mr. Biggs claims there was a clear saving of 7 cents a yard. Gentlemen, this question you must determine from all the evidence submitted to you. If it proved to be a benefit to Lucas and his bondsmen, and there was a fair understanding that Biggs was to have credit for this, and you find a credit is due, you will award him credit accordingly. On the other hand, if you find no credit was due, then none should be allowed. In determining the value of doing the plastering after the change from common to adamant and soapstone finish, the cost of the material furnished by defendant, Biggs,— the cost of the adamant, — is wholly immaterial; and if you should find that the cost of doing that work, after such change, was less than it would have been, the defendant is entitled to the gain of such diminished cost.
“ Defendant also makes a claim for superintending the completion of the work after the death of Mr. Lucas. This question you must also determine from all the evidence submitted. If you find, from the evidence, that such sei’vices were rendered, and were rendered at the request of plaintiffs, with the understanding that defendant was to receive compensation therefor, or were rendered under such circumstances that he had a right to expect pay, then he can recover what those services are reasonably worth; but, if no such request was made by plaintiffs, or either of them, or if these services were rendered under such circumstances that defendant had no right or reason to expect compensation, then, of course, he has no claim for recovery in this case.”

The plaintiffs recovered judgment for #2,500, and defendant brings error.

1. The contention of the defendant is that, under the undisputed testimony in the case, the plaintiffs were not entitled to recover. It appears that, after verdict, defendant made a motion for a new trial, and, among other reasons for the same, alleges: (a) Because there was no evidence in said cause to support the verdict; (b) because the verdict is against the weight of evidence. This motion came on to be heard in the court below, and the court, in overruling it, said:

“It is possible that, had this case been submitted to me, I might have taken a different view of the testimony than the one adopted by the jury; but, howsoever that may be, the issues were submitted to them, and I think there was evidence from which they might fairly reach the conclusioñ indicated by their verdict, and therefore I do not feel warranted in interfering with the judgment rendered.”

Exceptions were taken to the decision, and it is here insisted that the court was in error in not granting the new trial.

Counsel submit a statement which is claimed to contain all the undisputed items on both sides of the account, and which shows a balance due the plaintiffs of only #912.75. We have with considerable care looked over the items of account stated in the brief, and are unable to agree with counsel that these are all conceded or undisputed items. Many of these items, both of debit and credit, seem to have been in dispute; and there appear to be items of account for which plaintiffs made claim on the trial that are not in the account as now made up and presented in brief of counsel, as well as much dispute in the testimony about the correctness of the credits which defendant now sets up. The statement of account now presented here does not appear to have been presented to the court below on the motion for a new trial. As appears by the record, the only papers submitted to the court below were those used on the trial, and the testimony there taken. A statement of account is now presented which we are asked to say is the true account between the parties. The respective claims of the parties were very fairly left to the jury to determine, and we are not able to say, from this record, that the jury were wrong in the amount found due.

2. It is contended that the court was in error in not ■compelling counsel to elect upon which count they would rely on the trial. We think there was no error in this. If the counts were inconsistent with one another, the case was submitted upon the right theory. The work was commenced and partly completed by Lucas. He failed to carry out his contract, when the plaintiffs, who were his bondsmen, and had guaranteed the performance of it, took up the work, and carried it forward to completion. Lucas died before the completion of the work. An administratrix was appointed, who assigned all interest which the estate had in the matter to the plaintiffs. In the first count of the declaration, it is alleged that Lucas and defendant entered into a contract; that Lucas faithfully and fully performed all the duties and obligations imposed' upon him by the same; that, at the decease of Lucas, the defendant was indebted to him in a large amount for labor performed and materials furnished under said contract; that this indebtedness had been assigned to plaintiffs by the administratrix of said Lucas. The fourth count alleges that Lucas abandoned the performance of the same contract; that plaintiffs assumed the part of Lucas in said contract as to the completion thereof, in consideration of which defendant undertook and promised to pay plaintiffs the part of the consideration stipulated in said contract unpaid to Lucas, in monthly installments, and in the same manner as prescribed in said contract between said Lucas and defendant; and that plaintiffs did immediately enter upon the performance thereof, etc. It is said that the plaintiffs, upon the trial, claimed that, upon this agreement, and in their own right, they were entitled to recover the indebtedness due to Lucas, and unpaid to him at his decease. Just how these allegations could in any manner injure the defendant it is difficult to see. Plaintiffs were asking to recover the contract price only, in any view of the case. They were entitled to recover either as assignees of the claim' or by reason of the agreement upon the part of the defendant to pay. TJpon the trial they exhibited their assignment of the claim, and upon that theory were permitted to recover the amount due Lucas, as well as the amount due for completion after Lucas died. There was not, nor could be, any double recovery. They were entitled to recover, in any event, what there might be found due to Lucas as well as the amount due for completion of the contract, together with the cost of the extras, in conformity with the contract. If there was an abandonment of the contract by Lucas, the sureties on his bond had the right to go on to completion. This right seems to have been recognized by Mr. Biggs, and the plaintiffs proceeded with the work. No claim was made for damages in any other sense than as the right to recover what the contract called for.

The other errors assigned do not need discussion. The case was fully submitted to the jury upon the merits, and we find nothing in the record which calls for a reversal of the case.

The judgment must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
      In re MERRIMAN’S APPEAL.
    1. "Wills — Mental Competency op Testator. — Delusion—What Constitutes.
    A delusion is a belief in a fact for which there is no foundation.
    3. Same — Evidence.
    A mother died testate. No intention was at first entertained by the heirs to contest the will. Later, a contest was decided upon; and, later still, a son, who had been named as one of the executors, and who was a beneficiary under the will, employed an attorney to see that the will was probated. The father persisted in continuing the contest, which caused some bitterness between him and the son. The son died testate, leaving only a small portion of his estate to his father. The father, who, under the statute, would have been the sole heir of his son, contested the will, on the ground, among others, that the deceased cherished an insane delusion regarding him, arising from his continued contest of the mother’s will. It was in evidence that the son felt a pride in ■ • ■ the trust reposed in him by his mother in naming him as one of the executors of her will. Held, that it could not be said that the belief of the son that his father was trying to wrong him by contesting his mother’s will had no foundation, and was a delusion.
    8. Same.
    Statements made by a testator after the execution of the will, tending to show that he then entertained an insane delusion against a relative, are inadmissible to prove the existence of a delusion at the time the will was made, where the transactions to which they related were likewise subsequent to the will. Haines v. Hayden, 95 Mich. 883, distinguished.
    4. Same — Undue Influence — Presumptions.
    The failure of a testator to give all of his property to his near relatives, with some of whom he was not on good terms, raises no presumption of undue influence.
    5. Same — Instructions.
    A request for an instruction that, if the testamentary dispositions of the decedent’s property are unnatural or unjust, that, of itself, is an evidence of undue influence, is properly refused.
    6. Same — Mental Capacity — Non-expert Witnesses.
    The weight of the opinion of a non-expert witness as to the mental capacity of a testator depends upon the opportunity he has'had to form an opinion.
    7. Same — Undue Influence — Evidence.
    Evidence that one who formerly lived in ¡the testator’s family was without means, and was therefore a more natural object of his bounty than legatees named in the will, is inadmissible to show lack of testamentary capacity or undue influence.
    8. Same — Appearance op Associate of Deceased.
    Testimony that a person charged with having exerted undue
    influence over the testator “always looked rather shy, and generally confused, as though he wanted to dp something he was ashamed of,” is inadmissible, not being confined to any particular occasion where his appearance was a part of the res gestae.

    9. Same — Evidence as to Testamentary Capacity.
    Testimony that the testator was a young man of average intelligence is competent to show testamentary capacity.
    10. New Trial — Misconduct of Jurors.
    A verdict in a civil suit will not be set aside because two of the jurors drank beer during the recess of the court, and did acts tending to show that they were not men of good moral character, where such misconduct was not incited by or known to the prevailing party or his counsel, and did not directly influence the action of the jurors.
    11. Same — Affidavits of Jurors.
    A verdict cannot be impeached by the affidavits of jurors as to conduct indicating bias on the part of a juror, or the exercise of undue influence by one juror upon another, whether such conduct occurred in the jury room, or elsewhere during a recess of the court.
    Error to Jackson; Peck, J.
    Submitted January 10, 1896.
    Decided February 26, 1896.
    Dwight Merriman appealed from an order probating the will of Howard L. Merriman, deceased. The will was again sustained in the circuit, and, a motion for new trial having heen denied, contestant removed the cause to this court by writ of error.
    Judgment affirmed.
    Pringle, Hewett & Henigan (Wilson & Cobb, of counsel), for appellant.
    Blair, Edwards & Blair (Thomas E. Barkworth and Benton Hanchett, of counsel), for proponents and appellees.
   Montgomery, J.

Appellant has brought here for review the proceedings had in the circuit court on appeal from the probate of the will of Howard L. Merriman, deceased. On a trial before a jury the will was adjudged a valid will. The objections to the probate of the will stated in the appeal from the probate court are that the deceased was possessed of an insane delusion in regard to the appellant, the father of the deceased, which delusion deprived the deceased of testamentary capacity; and that the alleged will was obtained by undue influence exercised upon the deceased. On the trial in the circuit, the circuit judge submitted to the jury the question of whether the deceased possessed testamentary capacity, and also the question of undue influence, but held that there was no testimony in the case fairly tending to show the existence of an insane delusion. The charge of the court upon the subject was as follows:

“I instruct you, in this regard, that if, independent of this question of mental delusion, you find the testator to have been of sound mind, the evidence is insufficient to prove such an insane delusion as would, considered independently, and standing alone, vitiate the will in question. It is, however, proper for you to consider the evidence bearing upon the question of the claimed insane delusion, in connection with all the other evidence bearing upon these questions, in determining whether the testator was in fact of sound mind when the will was made, and whether the will was the result of undue influence practiced upon him. ”

Counsel for contestant contend that the testimony tended to show “that, after his mother’s death, Howard Merriman felt wronged and aggrieved by her will, and agreed with his father that it should be contested; that he changed his mind, and wanted to support it, and that a feeling grew up on his part against his father, because he (the father) continued in his purpose to contest the will; that this feeling became intense and morbid; ” also, that some months after the execution of the will “he fell into a passion, and swore and cried, and insisted that his father was trying to cheat him out of that money, — trying to rob him,' — and that Walter Bennett had looked it up, and he knew how it was down there; he knew it was a regular scheme; and that he would put his father behind the bars, if necessary.”

Mrs. Merriman, the mother of Howard and wife of Dwight, died June 10, 1892, leaving a will containing bequests to charitable institutions, and named Howard as one of the executors. It appears that at first there was no intent to contest the will, and Dwight Merriman offered to go on Howard’s bond when he should qualify as executor. Subsequently it was agreed that the will should be contested, and, as the testimony of contestant tends to show, Howard agreed with his father and sisters that the will should not be sustained; but he, later on, determined that the will should be sustained, and employed an attorney to do so. That this litigation, in which Howard and his father took opposite sides, caused some bitterness between them, is manifest, but is no more manifest from Howard’s course than from language used towards him by his father,1 which bitterness could alone excuse, and which was calculated to leave a sting which would cause, in the mind of Howard, towards his father, a sense of wrong which it would be a wide stretch to call a delusion. A delusion is a belief in a fact for which there is no foundation. It cannot be said that the belief of Howard that his father was trying to wrong him by contesting his mother’s will had no foundation. It is said that Howard would have received more from his mother’s estate if her will had been set aside; but it is in evidence that he took pride in the trust reposed in him by his mother in naming him as executor, and, if he became convinced that the will of his mother was properly made, it is certainly not evidence of an insane delusion that he felt that his father, in attempting to defeat the will, was guilty of a wrong, and a wrong against Howard himself, if it can be considered that a dutiful son can have an interest in carrying out the last wishes of a deceased parent. So, as regards the statement which Howard made after the making of the will, implying that his father was trying to cheat him, it can be said of this that Dwight Merriman delayed in turning over to Howard his money, and while such a judgment of his father was harsh, and perhaps unwarranted, it cannot be said it had no foundation in fact. Furthermore, this delusion, if it existed, could not have influenced the making of the will, for it was not shown to have existed until months after the will was executed. So far as it had any tendency to show general mental incapacity, it was submitted to the jury.

We are convinced, by a careful examination of the record, that the circuit judge was right in holding that there was no evidence tending to show an insane delusion. The testimony of the statement of Howard that his father was trying to rob him is not, within the ruling of Haines v. Hayden, 95 Mich. 332, admissible. In this case the statement was not only made after the making of the will, but related to transactions which had taken place after the will was made; and if, by any stretch, it can be said that a misjudging of the transaction amounts to an insane delusion, it certainly does not tend to show a delusion existing months before. In Haines v. Hayden the alleged delusion was as to a supposed fact, which, if it existed, antedated the making of the will; and the testimony was admissible, not for the reason that any delusion which found lodging in the mind after the will was executed would defeat the will, but as tending to show that the particular delusion did exist in the mind of the testator at the time that the will was made.

The charge of the court defining the degree of mental capacity requisite to enable one to make a valid will was full and clear, and followed the previous holdings of this court.

Criticism is made of the charge upon the subject of undue influence. The court charged as follows:

“Undue influence is such influence as suppresses the volition of the testator, and constrains him to give expression to the will of another, instead. Undue influence need not be proven by direct evidence, but may be inferred from circumstances; and, in determining this question, you should take into account the confidential relations existing between the testator and Walter A. Bennett, who, with others, is charged with having exercised such influence; the opportunities of said Bennett and others to exercise an influence over the testator; the fact that this will was made without the knowledge of the natural heirs of the deceased; changes shown by the evidence, if any, between the testator’s declared intention and the provisions of the will; any unnatural provisions the will may contain, if there are any; and all the circumstances surrounding the testator at the time this will was executed.”

Contestant proposed charges as follows:

“It is to be presumed that the testator, being of sound mind and free volition,, will, in general, bestow his property on his next of kin, and'will not disinherit his heirs.”
‘ ‘ If the testamentary dispositions of deceased’s property are unnatural or unjust, this, of itself, is an evic[ence of undue influence.”

The first of these requests was clearly inapplicable to the facts in this case, for the reason that it ignored the fact, shown by the undisputed testimony, that the relations between the deceased and his next of kin were strained; and it is clearly going too far to say that the failure to give all his property to his near relatives, under such circumstances, raises a presumption of undue influence. The latter request is faulty in that it involves the proposition that an unjust disposition of one’s property is presumptively the result of undue influence, and because the question of injustice is to be determined by the judgment of the jury. Such a rule is inconsistent with the right of an owner to do what he will with his own. In Wallace v. Harris, 32 Mich. 380, 397, it was said:

“The line between due and undue influence, when drawn, must be with full recognition of the liberty due every true owner to obey the voice of justice, the dictates of friendship, of gratitude, and of benevolence, as well as the claims of kindred, and, when not hindered by personal incapacity or particular regulations, to dispose of his own property according to his own free choice.”

Numerous errors are assigned upon the admission and rejection of testimony. Error is assigned upon the statement of the circuit judge, in his charge, as follows: “The opinions of others, sworn to upon the stand, are not controlling upon the jury. They are advisory and persuasive, merely.” This clause, by itself, does not convey a correct idea of what the circuit judge said upon the subject. The whole clause is as follows:

“You may consider, also, in reaching a conclusion upon the subject, the testimony given by these witnesses who have expressed their opinions upon the subject of his mental competency. The opinions of others, sworn to upon the stand, are not controlling upon the jury. They are advisory and persuasive, merely. And, other things being equal, the judgment of a witness depends, so far as its value is concerned, upon the advantages which he has had as a basis for expressing his judgment. The judgment of a man who knew no more about Howard Merriman than you do would be no better than your own, and no aid to you; so it is not allowed at all. The rule is, however, and the court has proceeded upon it in this case, that any persons' who had some knowledge of him, so as to enable them to form some judgment, might swear to their opinion of his capacity or incapacity, and have their testimony considered by the jury. In considering the opinions of these witnesses, you should remember what the evidence has shown as to their equipment, so to speak, to express opinions, how much they knew of him, what their acquaintance with him was, and what it covered, and so be able to give such value to their testimony as it really deserves.”

This, taken as a whole, could not have misled the jury. In effect, the rule stated is that the weight of an opinion depends upon the opportunity the witness has had to form such opinion, and this is the correct rule.

A Mrs. Beach had formerly lived in the family of the Merrimans, and had been named as a legatee in the will ■of Mrs. Merriman. She was asked as to her financial condition, and that of her husband; the avowed purpose being to show that, because of her lack of means, she would have been a more natural object of Howard’s bounty than those named in his will. This was excluded. It is a startling proposition that the will of a testator may be defeated by showing that, among his] acquaintances, there were those more in need of funds than those named ■as legatees. The ruling was right.

Mr. Bennett is charged with having exerted undue influence. A witness for contestant testified: “As to Mr. Bennett’s manner, he always looked rather shy, and .generally confused, as though he didn’t know, — wanted to do something that he was ashamed of, or something.” This testimony, as given, was not confined to any particular occasion where the appearance of Mr. Bennett was a part of the res gestae, but was general, and was properly ¡stricken out.

The testimony offered to show, by those who were intimately acquainted with the deceased, that he was a young man of average intelligence, was competent, and responsive to the testimony put into the case by contestant.

We discover no error committed on the trial. The court guarded carefully all the rights of the contestant, both in the reception of evidence and in the instructions to the jury.

A motion for a new trial was made and denied. Error is assigned upon the rulings made. The grounds stated relate, in part, to misconduct of jurors during the trial, and to acts showing a bias of certain jurors, and a disposition to prejudge the case. These facts were shown by affidavits of other jurors of the panel. The admissibility of their affidavits will be considered later on. The other grounds are that two of the jurors drank beer during the recesses of the court, and did acts tending to show that they were not men of good moral character. The circuit judge found that it did not appear that either of these jurors drank during the time that court was in session, and that it did not appear that their misconduct was incited by, or known to, proponents or their counsel, and, in effect, that their misconduct did not unfit the jurors for the performance of their duty, except as it showed them to be wanting in that sense of duty to themselves and the county which is to be expected of those called to perform the important office of determining rights between litigants. The jurors were part of the regular panel, and, under the circumstances, we are of the opinion of the circuit judge, — that, at least in a civil case, inasmuch as the alleged misconduct did not directly influence’the action of the jurors, a new trial should not be granted for this reason. The acts charged against them no more affected their conduct as jurors than as if they had taken place before they were called to serve, and it would be unsafe to set aside a verdict on the ground of such misconduct occurring before the jury is called, when discovered after the verdict.

The .circuit judge held that the affidavits of the jurors were not admissible to impeach their verdict, and this ruling involves the most important question covered by the motion for a new trial, and a question by no means free from difficulty. It is the universal rule that the affidavits of jurors are not admissible to impeach their verdict by showing misconduct in the jury room; but as to the other facts occurring during the trial, at a recess of the court, the authorities are not agreed. The great weight of authority, however, as well as the reason for the rule, supports the contention that, at least as to the question of whether any influence is exerted by one of the jurors unduly upon his fellows, or whether his conduct indicates bias, public policy forbids the proof of such claim by the affidavits of fellow jurors. The reasons for the exclusion of such affidavits are stated to be because it would make it possible for a juror, by his own oath, to impeach his solemn act by affidavits, and would open the door for the defeated party to tamper with the jury. We are not able to see why these reasons do not apply with equal force to facts known only to the jurors, which occur during the trial, whether they occur in or out of the jury room. The cases upon this point are numerous, and the text writers in general agree upon the rule which excludes such affidavits. Hirsh, Jur. § 623; Proff. Jur. § 408. In Thomp. & M. Jur. § 440, note, the case of Deacon v. Shreve, 22 N. J. Law, 176, is cited as holding that, while the affidavit of a juror cannot be received to show his own misconduct, it may be shown by the oath of a fellow juror who is not inculpated therein. The authors say, “We have not found this qualification of the rule in any other case, and do not think it is sound.” The broad rule of exclusion is maintained by the following, among other, authorities: Williams v. Montgomery, 60 N. Y. 648; Bartlett v. Patton, 33 W. Va. 71 (5 L. R. A. 523); Com. v. White, 147 Mass. 76; Sanitary District of Chicago v. Cullerton, 147 Ill. 385; Johnson v. Allen, 100 N. C. 131; Taylor v. Garnett, 110 Ind. 287. The affidavit of a juror may be received to show what took place in open court, and generally to sustain his verdict. And in Tennessee the affidavits of the jurors are received generally to impeach the verdict. In Iowa, Kansas, and Nebraska, affidavits of facts which are said not to inhere in the verdict are held admissible, at least to the extent of admitting affidavits to show that outside influence — that is, other influence than that of members of the panel — was exercised; and such was the case of Mattox v. U. S., 146 U. S. 140, which case adopts the rule in Woodward v. Leavitt, 107 Mass. 453, that a juror may testify to extraneous influence. In so far as the doctrine of Iowa, Kansas, and Nebraska goes beyond this rule, it is shown to conflict with the great weight of authority. Thomp. & M. Jur. §§ 452, 453. The Massachusetts court subsequently defined what was meant by “extraneous influence,” and it is clear that by this was not meant improper communications between jurors themselves, whether in the court room or out of it. Com. v. White, 147 Mass. 76. We think the affidavits were properly excluded.

We discover no error. Judgment affirmed.

The other Justices concurred.