text:
    SAVIDGE v. VILLAGE OF SPRING LAKE.
    1. Injunction—Diversion oe Public Funds—Suit by Taxpayer.
    A resident taxpayer whose interest is sufficient to confer jurisdiction may maintain a bill in equity against a municipality to restrain a threatened and imminent illegal expenditure of the public funds. Curtenius v. Hoyt, 37 Mich. 583, Putnam v. City of Grand Rapids, 58 Mich. 416, followed.
    2. Same—Estoppel.
    A taxpayer is not estopped to enjoin a proposed illegal expenditure of public moneys by the fact that he made no attempt to restrain a previous expenditure for the same purpose.
    3. Municipal Corporations—Waterworks—Authority to Construct.
    A village council cannot construct waterworks designed both for fire protection and to furnish the inhabitants with water, under Act No. 3, Pub. Acts 1895, chap. 10, §§ 1-3, authorizing the purchase of suitable fire engines, and the sinking of wells and construction of cisterns in the streets and other suitable places, and the making of all necessary provisions for .a convenient supply of water for the use of the department, in view of chapter 11, § 4, prohibiting any village from borrowing or expending any money for the purchase or construction of waterworks unless such action is authorized by a two-thirds vote of the electors of the village.
    Appeal from Ottawa; Padgham, J.
    Submitted February 5, 1897.
    Decided March 10, 1897.
    Bill by Sarah O. Savidge to enjoin the village of Spring Lake and its officers from expending money in the construction of waterworks. From a decree for complainant, defendants appeal.
    Affirmed.
    The object of this suit is to permanently enjoin the defendants from expending money in the erection of waterworks for the defendant village. The facts as alleged in the bill and sustained by the proofs are sufficiently stated in the decree, as follows:
    “ The village of Spring Lake is a municipal corporation of this State, organized under Act No. 3, Pub. Acts 1895. The other defendants above named are the president, treasurer, clerk, and trustees, respectively, of said village. The complainant is a resident and taxpayer of said village, and she is assessed and taxed, to the amount of nearly one-half of the taxable property of said village, and she is interested in the subject-matter of this suit in the amount of more than $100 dollars. Prior to the 19th day of February, 1895, the said village of Spring Lake was incorporated as a village under the general laws of this State, and it had, upon the 19th day of February, 1895, when it became reincorporated under said Act No. 3, Pub. Acts 1895, no system of waterworks whatever. In the latter part of 1895, the village 'of Spring Lake caused to be erected in said village an engine house, placed a pump therein, sank some drive wells, and ' connected the same with said pump, ran some pipe from the pump to the street, and placed a hydrant connecting with said pipe in said street, all at an expense of over $1,500, and this expense was incurred without a vote of the taxpayers of said village. Upon the 8th day of June, 1896, a special election was held in said village of Spring Lake upon the question of bonding the said village in the sum of $5,000, for the purpose of constructing waterworks therein, and said question was decided at said election adversely to bonding said village for the construction of waterworks, the necessary two-thirds not voting therefor. Thereupon, and after the said election, the common council of said village of Spring Lake, without any vote of the.electors of the said village authorizing the same, passed the following resolution : ‘ Resolved, by the common council of the village of Spring Lake, that the committee on waterworks be instructed to contract for from 1,500 to 2,500 feet, more or less, of six and eight inch pipe, for water mains, with hydrants and gate valves, at the lowest price obtainable, and lay the same on State street, east and west from the present hydrant; and that the village clerk is hereby instructed to draw orders for the payment of all or any part of the same, on demand of the president of the village and the indorsement of the said committee.’ Thereupon the said committee took steps for the purchase of the pipe and material mentioned in said resolution, and it was intended to purchase said pipe and material, to draw orders for the purchase of such pipe and material, and to pay such orders.
    “It is further ordered, adjudged, and decreed by the court as follows: That the erection of the engine house, putting in of pumps, sinking of wells, laying of pipes, and putting down of a hydrant in the latter part of 1895, the same being unauthorized by a vote of the electors of the said village of Spring Lake, was, so far as the same was the beginning of a waterworks system, without authority, and that upon the 15th day of June, 1896, the village of Spring Lake had no waterworks system authorized by law; that the material and water pipes specified in said resolution of June 15, 1896, were for the purpose of constructing a waterworks system in the village of Spring Lake; that said resolution was unauthorized and void; that the purchase of the pipe and material mentioned in said resolution could not be made without a vote of two-thirds of the electors of said village voting therefor; and that all orders drawn for the payment of the pipe and materials would be void, and the payment therefor by the village treasurer without authority of law.”
    Decree was entered for the complainant.

      George A. Farr (Thomas S. Jerome, of counsel), for complainant.

      Walter I. Lillie, for defendants.
   Grant, J.

(after stating the facts). 1. It is well settled in this State that a taxpayer in the situation of the complainant is entitled to maintain a suit to restrain the illegal action of a municipality in the expenditure of money. Curtenius v. Hoyt, 37 Mich. 583; Callam v. City of Saginaw, 50 Mich. 7; Putnam v. City of Grand Rapids, 58 Mich. 416.

2. Complainant was not estopped from contesting this action of the council under the rule laid down in Lundbom v. City of Manistee, 93 Mich. 170. The election at which the proposition to raise money for the construction of waterworks was defeated, was held June 8, 1896. The action of the common council to proceed in defiance of this vote was taken June 15th of the same year. Complainant filed her bill on July 2d following. The estoppel is claimed to exist by reason of the action of the council in erecting an engine house, etc., in 1895. The answer to this claim is that there is no proof that complainant knew that the council was illegally expending money for that purpose; but, even if she had such knowledge, this would not estop her to restrain subsequent illegal action for the same purpose.

3. Section 4, chap. 11, Act No. 3, Pub. Acts 1895, prohibits any village to borrow, appropriate, raise, or expend any money for the purchase or construction of waterworks, unless such action be authorized by a vote of two-thirds of the electors of the village voting at the election. Defendants seek to maintain their action under section 1, chap. 8, and sections 1-3, chap. 10. The title of chapter 8 is, “Improvements and Assessments.” Section 1 provides that the cost and expense of improvements, including, buildings, engine houses, waterworks, etc., shall be paid from the proper general funds of the village. This, of course, means that such expenditures must be authorized by law, and that the council can expend moneys therefor only when so authorized. The title to chapter 10 is, “Fires and Fire Department.” This chapter authorizes the council to “purchase and provide suitable fire engines and apparatus for the ex-tinquishment of fires, and to sink wells and construct cisterns and reservoirs in -the streets, public grounds, and other suitable places, and to make all necessary provisions for a convenient supply of water for the use of the department.” This chapter does not contemplate that, under the guise of furnishing fire protection, the council may construct waterworks designed both for fire protection and to furnish the inhabitants with water. Such construction would practically nullify chapter 11. The council illegally used $800 of the highway fund for these waterworks in 1895, and it appears from the evidence that in order to pay for the proposed extension it would be compelled again to use that fund.

The decree was right, and is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    BENNETT v. BUTTERFIELD.
    Personal Injuries—Elevators—Negligence.
    A customer who, without invitation or permission, attempts to enter a freight elevator located in the back part of a store, and designed for the use of employés only, and who is injured by falling down the shaft, cannot recover for his injuries against the proprietor.
    Error to Wayne; Donovan, J.
    Submitted February 10, 1897.
    Decided March 10, 1897.
    Case by Samuel B. Bennett against Harriet A. Butterfield for personal injuries. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Defendant was a dealer in wall paper, other kinds of paper, and stationery. She occupied the ground floor, the basement, and the fifth floor of a store 120 feet long and 40 feet wide. The ground floor was her salesroom, and the fifth floor her storeroom, where she kept duplicate and surplus stocks of goods.. This floor was reached by an elevator, situated in the rear and at one side. It was designed for the use of her employés only, and for the carriage of freight. Wall-paper cases six to seven feet high stood near and in front of the elevator, and with their backs towards it. The elevator was inclosed from floor to ceiling, with double doors opening into the store, and two windows, one on the north and one on the south side, each three feet by seven, and from six to seven feet from the floor. The entrance to it was protected by a gate, sliding in grooves on either side, hung on ropes running over pulleys, and balanced by weights. The gate was raised and lowered by hand. The elevator was plainly marked with the words: “Elevator. Danger. For freight only.” Plaintiff was a painter and paper hanger, and entered the defendant’s store shortly before noon, in a hurry, to buy some wall paper with which to finish a job on which he was then engaged. He had traded at this store for many years, and only once, about six years before the accident, had ridden upon this elevator, but the defendant did not then occupy the store. The day was bright and clear. Plaintiff testified that he entered the store at half-past 11 or a quarter to 12; that he asked a clerk who was there waiting upon a customer where their ingrains were; that he replied, “Upstairs; Will is up there;” that he continued to walk towards the rear, and found Will Fisher about 10 or 12 feet from, and east of, the elevator; that he asked Fisher where the ingrains were; that Fisher replied, “Upstairs, Bennett; we will take the elevator; ” that Fisher walked towards the elevator, plaintiff closely following; that the south door of the shaft was open; that Fisher entered the door and stepped to one side; that plaintiff, supposing that the elevator was there, also stepped in, fell to the bottom of the shaft, 10 or 12 feet, and was injured. The facts are that the elevator was above; that the rope by which the elevator was run was on the inside, and from one to one and one-half feet from the door; that Fisher, with his right foot resting on the timber inside the shaft, his left foot outside, his left arm around the casing, leaned into the shaft, called out, “Elevator,” and reached for the rope. While he was doing this, plaintiff stepped in and fell. The case was submitted to the jury under the usual instructions as to the negligence of the defendant and the contributory negligence of the plaintiff. The jury rendered a verdict for the defendant.

      Ervin Palmer and George Gartner, for appellant.

      Dickinson, Thurber & Stevenson, for appellee.
   Grant, J.

(after stating the facts). The theory of the plaintiff is that he was invited into a place of danger without warning, and without proper guards at the entrance to protect him. This was not a passenger elevator, and unless plaintiff was invited into it he cannot recover. The jury, by their special verdict, have settled this question against the plaintiff, and they could not, under the evidence, consistently have found otherwise. Mr. Fisher, plaintiff’s witness, who was not in defendant’s employ at the time of the trial, flatly contradicted him, and testified, not only that he did not invite him, but that he did not know that plaintiff was following him. The elevator did not run between 12 and 1 o’clock. Fisher was in a hurry to go to the fifth floor to get some goods to fill an order before it stopped. Mr. Williams, the clerk whom plaintiff first addressed, and Mrs. Leahy, the customer upon whom Williams was waiting, also flatly contradict plaintiff. These witnesses testified that, when plaintiff asked Williams where the ingrains were, Williams replied that he would soon be through, and would wait upon him. Without objection, the following special question was submitted to the jury, “Do you find the facts in relation to plaintiff’s going to the place where he was injured to be as testified to by George Williams, Mrs. Leahy, and William Fisher?” to which the jury answered, “Yes.” The fact is therefore established that plaintiff attempted to enter the elevator without invitation, or permission. He alone is responsible for the accident and the injury, and cannot recover. Bedell v. Berkey, 76 Mich. 435 (15 Am. St. Rep. 370); Pelton v. Schmidt, 97 Mich. 231; Severy v. Nickerson, 120 Mass. 306 (21 Am. Rep. 514); Victory v. Baker, 67 N. Y. 366; Gibson v. Sziepienski, 37 Ill. App. 601.

Many alleged errors are assigned, but they do not affect the evidence upon which the jury based their special finding. It is unnecessary, therefore, to discuss them.

Judgment affirmed.

The other Justices concurred.


text:
    FARR v. CITY OF GRAND RAPIDS.
    Municipal-Corporations—Issuance of Bonds—Implied Powers —Construction of Charter.
    A charter provision empowering a city to construct electric light works, limited by a proviso that the power shall not be construed to authorize the incurring of any indebtedness against the city unless by vote of the electors, does not, byirn; plication, confer the power to borrow money and issue bonds for such purpose especially if, in other sections of the charter containing similar provisions, such powers are expressly conferred under carefully-defined limitations as to the manner in which they shall be exercised.
    Appeal from superior court of Grand Rapids; Burlingame, J.
    Submitted February 10, 1897.
    Decided March 10, 1897.
    Bill by John S. Farr and others against the city of Grand Rapids and its officers to restrain the issuance of bonds for the erection of an electric light plant. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.
    The purpose of this suit is to restrain the defendants from issuing bonds to the amount of $150,000 for the erection of an electric light plant. The resolution authorizing the submission of the question to the vote of the electors of the city was adopted March 12, 1894, and the proposition was carried at the election of April 2d, following. On September 24th of the same year, the -council adopted a resolution for the issue of the bonds, which the mayor vetoed. The resolution was not carried over the veto. In February, 1895, the council again voted to issue the bonds. This action was vetoed, and the veto sustained. March 4th, following, a new resolution was introduced for the issue of the bonds, but was lost. June 10,1895, a contract for lighting the city for two years, commencing June 27, 1895, was adopted and approved. February 3, 1896, the council adopted a resolution for the issue of bonds to the amount of $150,000, for the erection of a lighting plant. This resolution was approved by the new mayor, and the authorities were proceeding to sell the bonds when this suit was instituted. A general demurrer was interposed, which the court overruled, and entered a decree for a permanent injunction.

      Thompson & Temple (Taylor & Eddy, of counsel), for complainants.

      Henry J. Felker, for defendants.
   Grant, J.

(after stating the facts). The action of the council is contested on two grounds:

1. That the city had no power to issue the bonds.

2. That, if such power existed, it was exhausted by the action of the mayor and council in thrice refusing to issue bonds.

The power of the city in the matter is based upon section 29 of title 3 of the charter. This section authorizes the city to acquire by purchase, or to construct, operate, and maintain, works for the purpose of supplying the city with electric lights for the lighting of its streets, etc.; “ Provided, that nothing in this section contained shall be so construed as to authorize the incurring of any indebtedness against the said city of Grand Rapids, for any of the purposes in this section specified, unless the qualified electors of said city, voting thereon in their respective wards, shall have authorized the incurring of such indebtedness by a majority of their votes cast at any regular election, or at any special election called for the purpose of voting upon such question.”

It will be observed that this section does not expressly authorize the borrowing of money or the issue of bonds. This is conceded. The defendants’ position is that the power to incur indebtedness necessarily implies the power to borrow money, and to issue evidences of indebtedness therefor, payable in the future. It seems unnecessary to cite authorities to the proposition that, in order to imply the existence of the power, it must be essential to the exercise of the function under which the municipality is acting. The rule is universal. Detroit Citizens’ St. R. Co. v. City of Detroit, 110 Mich. 384; Stebbins v. Judge of Superior Court, 108 Mich. 693; Bogart v. Township of Lamotte, 79 Mich. 294; Taylorv. Railway Co., 80 Mich. 77. Another rule is that, in construing one provision of a charter, it is important to consider other provisions upon the same or similar subjects. If similar power is conferred by other sections of the charter, and it is found that the legislature has carefully limited the power of the council in borrowing money and issuing bonds, it would naturally follow that the power granted to incur indebtedness would not confer unlimited power to borrow money and issue negotiable evidences of debt therefor, payable at any time in the future, and at such rate of interest as the municipality might determine. We recognized and applied the above rule in construing a clause of the Constitution in the case of Sterling v. Regents of University, 110 Mich. 369. Sections 20, 22, and 28 of title 5, sections 3 and 24 of title 6, and section 12 of title 10, of the charter, contain provisions authorizing the city of Grand Rapids to borrow money and issue evidences of debt therefor. In all these provisions the power of the city is carefully defined and limited as to the amount, the length of time the bonds are to run, the rate of interest, and the amount for which the bonds are to be sold. When these provisions are considered, the conclusion seems irresistible that the legislature, in conferring the power to incur indebtedness under section 29 of title 3, did not intend to confer upon the city unlimited power to borrow money and issue bonds therefor.

Now, it is clear that the authority to purchase or construct an electric light plant does not necessarily imply the power to borrow money, and to issue negotiable bonds or other evidences of indebtedness payable at a future time. It is entirely consistent with the idea that the money therefor shall be raised by taxation, which is the usual method when any other is not pointed out by the statute. The power to borrow money is held not to authorize a municipality to issue its negotiable bonds. Brenham v. Bank, 144 U. S. 173. It is, however, unnecessary to approve that rule in this case. No authority to borrow is either expressed or implied. The danger from the exercise of this power unchecked by charter provisions is well stated by Justice Bradley in the majority opinion in Mayor v. Ray, 19 Wall. 468. This opinion and decision are commended by text writers. Dill. Mun. Bonds, 14; Burr. Pub. Secur. 195. The learned counsel for defendants cites decisions which hold to the contrary, but they are against the clear weight of authority. The above decisions are exhaustive upon the subject, and we deem it unnecessary to further discuss it.

The decree of the court below was correct, and is affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    MERSEREAU v. MILLER.
    1. Taxes—Proceedings Against Delinquent Lands—Validity of Decree—Signature of Clerk.
    The provision of section 67 of the tax law of 1893 (Act No. 206), that the decree in proceedings for the sale of delinquent lands shall be “countersigned by the clerk,” is sufficiently complied with where the decree is signed by that officer as “register,” since the proceeding is on the equity side of the court, and the clerk is register ex officio.

    2. Same—Tax Record—Copy of Decree—Sufficiency of Certificate.
    It is sufficient, also, that the certificate to the copy of the decree annexed to the tax record, in which such officer describes himself as “county clerk and register in chancery,” is signed by him as “register,” although the section cited further provides that the certificate shall be made by the “county clerk.”
    3. Same—Constitutional Law—Courts of Record.
    The fact that, by the terms of said section, the tax record, to which the decree refers for a description of the lands affected and for the amounts decreed against them, is to be delivered to the county treasurer, in whose office it is to remain “ except as needed in the office of the county clerk,” does not render the act unconstitutional, as relieving the court from the necessity of entering a complete decree, to be retained in its own custody, since the court may at any time repossess itself of the tax record.
    Error to Schoolcraft; Steere, J.
    Submitted January 13, 1897.
    Decided March 10, 1897.
    Ejectment by John D. Mersereau against August C. Miller and others. From a judgment for plaintiff on verdict directed by the court, defendants bring error.
    Affirmed.

      Clark & Pearl and Dan H. Ball, for appellants.

      C. W. Dunton (C. R. Brown, of counsel), for appellee.
   Montgomery, J.

This is an action of ejectment, to recover lot 1 of section 34, township 42 N., range 16 W. Plaintiff’s title is a tax deed, made under a decree entered under Act No. 206, Pub. Acts 1893. The plaintiff recovered, and defendants bring error.

1. Complaint is made that the decree entered was countersigned by the register. The statute provides that the decree shall be signed by the judge and countersigned by the clerk. The county clerk is, by virtue of his office, register in chancery. The proceeding is on the equity side of the court, and we think it is no defect that the title of “register” is used in place of “clerk.” The register in chancery is the clerk of that court, although the title which he assumes is register, and the identity of the person is unquestioned. A similar objection is made to the certificate annexed to the tax record, in the body of which the clerk describes himself as county clerk and register in chancery, and signs the certificate, “Ed. Ashford, Register in Chancery.” We think this was sufficient.

2. It is strenuously contended that the law is unconstitutional, for the reason that it contemplates that the chancery court, which by the Constitution is a court of record, shall not be under the necessity of entering a complete decree, to be retained in its own custody, but that the tax record is to go out of the possession of the court, and into the possession of the county treasurer. A similar provision has been upon the statute books for many years, and this question has never before been directly raised, although the law has been upheld in numerous decisions. We are cited in the brief of counsel to a criticism of a similar provision of the law of 1882 in the opinion of Mr. Justice Campbell in the State Tax Law Cases, 54 Mich. 406. We think, however, that there is no such excess of legislative authority in the provisions of this law as justifies us in declaring the act unconstitutional. The statute (section 67) provides that—

“ The decree shall be signed by the judge and countersigned by the clerk. Immediately after the entry of such decree, the county clerk shall make a certified copy thereof, and annex the same to the tax record. He shall thereupon deliver such tax record to the county treasurer, in whose office the same shall remain, except as needed in the office of the county clerk.”

It is apparent that it was not the purpose to withdraw from the control of the court this tax record. It is only to remain in the office of the county treasurer when not needed in the office of the county clerk, which is the office of the court, and we have no doubt of the power of the court at any time to possess itself of the tax record for any purpose for which it may be required. While it might have been wiser to provide for duplicates of this tax record, we think the evident purpose was that the tax record should remain a part of the records of the court, and subject to its control, and that the law is not, for the reason suggested, unconstitutional.

None of the other questions discussed are, we think, open to consideration, within the rule laid down in Muirhead v. Sands, 111 Mich. 487.

The judgment will be affirmed.

The other Justices concurred.


text:
    CRONIN v. FIRE ASSOCIATION OF PHILADELPHIA.
    1. Insurance—Pleadings and Proofs—Variance.
    In an action for the use of R. upon a fire-insurance policy for §1,500, it appeared that §500 was on a building, and that the loss on the building was payable to R., mortgagee, as his interest might appear. The declaration alleged that defendant insured plaintiff and R., mortgagee, as the interest of the latter should appear, and that the insured building was burned, whereby the plaintiff, and R, as such mortgagee, had sustained damage to the amount of the policy; concluding with an averment of damages to the plaintiff. Held, that, in the absence of a demurrer, the declaration was not open to the objection that it averred that the plaintiff and R. were jointly entitled to recover the entire amount of the loss; and that there was, therefore, no variance between the contract declared upon and the policy offered in evidence.
    2. Same—Special Defenses—Notice.
    An insurance company cannot avail itself, in an action upon a policy, of a stipulation therein which was intended to avoid its promise by way of defeasance or excuse, unless it has given notice of such defense under its plea of the general issue. So held where the insurer sought to defend upon the ground that the plaintiff had violated the conditions of the policy in that he had failed to give notice of foreclosure proceedings, had allowed the building insured to remain unoccupied, and had ceased to use the premises for more than 10 days before the fire.
    3. Same—Evidence-—Question for Jury.
    Whether a policy of insurance was issued on the written application of the insured,' so as to make the representations therein contained binding upon him, or was in fact issued upon the mere oral application of a mortgagee protected by the policy to the extent of his interest, was a question for the jury, where the insured, although testifying that the written application was made by him to an agent other than the one who signed the policy, admitted that the signature to the application forwarded by the latter was his, and such application had the stamp of defendant’s manager thereon, bearing date as of the day preceding that on which the policy was issued, and the mortgagee testified that he made an oral application to the agent signing the policy, and a few days later received the same and paid the premium.
    4. Same—Misunderstanding—Rights of Mortgagee.
    If the policy was in fact based upon the written application, the fact that the mortgagee supposed that it was issued upon his oral application only, and that he was thereby misled to his prejudice, would not deprive the insurer of the right to avail itself, by way of defense, of a misrepresentation in the written application, in an action for the mortgagee’s benefit brought in the name of the insured.
    5. Same—Terms oe Policy—Packages.
    Milk cans are “packages,” within the meaning of a fire-insurance policy covering merchandise contained in a creamery building, “consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages.”
    Error to Shiawassee; Smith, J.
    Submitted October 21, 1896.
    Decided March 17, 1897.

      Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Bose, against the Fire Association of Philadelphia, on a policy of insurance. From a judgment for plaintiffs on verdict directed by the court, defendant brings error.
    Reversed.

      Mark Norris, for appellant.

      Walter McBride, for appellees.
   Montgomery, J.

This is an action on a fire policy for $1,500,— $500 on a two-story frame, shingle-roof creamery building and additions; $800 on engine, boilers, fixed and movable machinery, fixtures, tools, etc.; $200 on merchandise, consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages. The loss on the building was, by the terms of the policy, made payable to Milton M. Rose, mortgagee, as his interest might appear. The property was completely destroyed by fire, and on the trial the plaintiffs recovered a verdict, by direction of the court, in the sum of $1,449.30.

A preliminary question is raised as to the sufficiency of the declaration, the point being that there was a variance between the proofs and the declaration. We think this objection not tenable. It is alleged in the declaration that by the policy the defendant did insure plaintiffs and Milton M. Rose, mortgagee, as the interest of the mortgagee should appear, against loss or damage by fire, etc. It is further averred that the building was burned and destroyed by fire, whereby said plaintiffs, and Milton M. Rose as mortgagee, have sustained damage to the amount of $1,500. It concludes with an averment of damages to the plaintiffs, and, we think, could not have been misleading. The point appears to be that the averment that plaintiffs and Rose sustained damage to the amount of $1,500 amounts to an averment that they were jointly entitled to recover that sum. But we think, in view of the previous statement, that it could not be so construed. It is stated that the defendant did insure plaintiffs and Rose, mortgagee, as his interest might appear. There was no demurrer to the declaration, and we think it sufficient.

The principal defenses attempted were:

First. That the policy was issued upon a written application, containing representations of facts material to the i’isk, which were violated.

Second. That the assured ceased to operate the creamery for more than 10 days prior to the fire.

Third. That foreclosure proceedings were commenced to the knowledge of the assured.

Fourth. That the building insured was unoccupied, and so remained for 10 days prior to the fire, without the consent of the company indorsed upon the policy.

None of these defenses, except that based upon the representations contained in the application for the policy, are set up in the pleadings by the defendant, and the point is made that the defenses were not open. We think these defenses could not be considered, under the pleadings. See Residence Fire Ins. Co. v. Hannawold, 37 Mich. 103; Cassacia v. Insurance Co., 28 Cal. 628; Coburn v. Insurance Co., 145 Mass. 229. Defendant’s counsel cites Morley v. Insurance Co., 85 Mich. 210, in which case it was said:

‘ ‘ When the declaration is upon a written contract, under a plea of the general issue the defendant may show, upon cross-examination of plaintiff’s witnesses or otherwise, a noncompliance with any of the conditions of the contract which will defeat recovery.”

This language must be construed with reference to the subject being dealt with, and, so construed, it is evident that by “conditions” was meant conditions precedent. The true rule is stated by Mr. Justice Devens, in Coburn v. Insurance Co., supra, which is: “Stipulations added to a contract, which are intended to avoid the defendant’s promise by way of defeasance or excuse, must be pleaded in defense, and must be sustained by evidence. They are in the nature of provisos.” The defenses in the present case relating to the failure to have the fact of foreclosure proceedings indorsed, the cessation of use, and the want of occupancy of the building, are by way of confession and avoidance, and should have been pleaded specially at the common law, and, under our practice, should have been noticed under the general issue.

As before stated, the breach of representations contained in the application was fully set up in the notice. This defense depended for its validity upon two considerations : First, whether the application offered in evidence was, in fact, the basis of the insurance, or whether, on the other hand, the policy was issued upon a distinct oral application; and, second, whether there was a material misrepresentation. Neither of these questions was submitted to the jury. We think there was error in these rulings.

One of the plaintiffs testified as follows: “ Q: When you were getting out this insurance, did you make application in writing ? A. I made application to Mr. Chapell. I could not swear what company it is.” He was then shown the application in question, which was directed to the defendant company, and admitted that the signature to the same was written by himself. On. redirect examination, it is true, he testified that he made the application to Chapell, and not to Mr. Cooper, the agent who signed the policy, and that he never had any conversation with Mr. Cooper about this application; and the plaintiffs produced as a witness Mr. Edward Rose, who testified that he went to the office of Cooper, and made an oral application, and that Cooper replied that he would submit the question to the Philadelphia Company; and that a few days later he received the policy, and paid the premium on it. It appears by the record that a previous talk had been had between Rose and the plaintiffs about making an application for some insurance in the defendant company. The written application signed by the plaintiff bore date December 5th, has the stamp of defendant’s manager in Chicago, bearing date December 6th, and the policy was issued December 7th. We.think, under all the testimony, the question of whether the policy was issued on a written application was one of fact for the jury. If such an application was before the agent of the company at the time he wrote the policy, the presumption is almost irresistible that the policy was written based upon that application. It is the Cronins who sue here, upon a contract running to them. Rose saw fit to accept such a contract, and, if this was based upon a written application, and so understood by defendant’s agent, certainly the plaintiffs ought to be bound by it. If Rose was misled to his prejudice, it is possible that a remedy may be open to him to the extent of his interest in the policy; but his remedy, if any, would not be by an action on the policy in the name of the assured, but he would be forced to resort to either an action on the case or a court of equity. But that question is not now before us. If it is established that the application is to 'be treated as a part of the policy, the testimony in this record would seem to indicate a breach of the representations contained in the application.

It is claimed that the judgment was excessive. There was included in the judgment, under the clause insuring “merchandise, consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages,” an item of $91.50 for milk cans. It is claimed that the word “packages” is not broad enough to include packages in which the materials and supplies are to be placed, but only relates to the packages for the manufactured article, such as cheese and butter. The word is used in connection with materials and supplies, and, we think, is broad enough to include the milk cans.

For the error pointed out, the judgment will be reversed and a new trial ordered.

The other Justices concurred.

       Rehearing granted May 4, 1897. Former decision affirmed (no opinion filed) November 8, 1897.


author: Moore, J.

text:
    GRASSER & BRAND BREWING CO. v. ROGERS.
    1. Principal and Surety—Extent op Liability.
    One who becomes surety for the purchase price of goods under a contract for their sale in car lots is not liable for purchases made by his principal in quantities of less than a car load.
    2. Same—Application op. Payments.
    Payments made by one indebted for merchandise, without direction as to their application, and which are credited generally upon his account, will, in an action against a third party as surety for the payment of the purchase price of a portion only of the goods, be applied upon the indebtedness in the order of the creation of the several items thereof.
    Case made from Clare; Dodds, J.
    Submitted January 13, 1897.
    Decided March 17, 1897.

      Assumpsit by the Grasser & Brand Brewing Company against Jay R. Rogers and Alfred J. Doherty, as surety, upon a contract for the purchase of goods. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Samuel Kohn (Charles S. Northup, of counsel), for appellant.

      C. W. Perry, for appellees.
   Moore, J.

March 20, 1890, the plaintiff made a contract with defendant Rogers to sell him “all the lager beer he may need, in car lots, at five dollars per barrel, delivered on board the cars at the city of Toledo, at the rate and price of five dollars per barrel.” Rogers, on his part, agreed to use his best endeavors to market the beer, ‘ ‘ and that he will pay for the beer so delivered, in car lots, by remittance or honoring and paying drafts drawn on him therefor, in such manner that he * * * shall not be indebted to said Grasser & Brand Brewing Company at any one time for more than the price of one lot or shipment; that is to say, that, upon making any order for beer, he will remit or honor and pay the sight draft drawn on him to the full amount of all indebtedness then existing.” Defendant Doherty became surety for the performance of the contract on the part of Rogers, limiting the amount for which he would be liable to $1,000. Two days after this contract was made, one car load of beer, consisting of 250 quarter-barrels, was shipped to Rogers. This was the only car-load lot shipped. Other beer was shipped to Rogers in smaller quantities than car-load lots, as ordered by him. The value of all the beer shipped him was $910.50. He made remittances,' which were credited upon his account, amounting to $517.14, leaving a balance due to plaintiff from Rogers of $393.36, for which amount this suit was brought. It was shown that, if beer was shipped in smaller quantities than car-load lots, the freight was proportionately much higher. Defendant Doherty claimed that he was liable only for the beer sold in car-load lots, and that, as the remittances would more than pay for the car load that was shipped, he was not liable. The judge sustained the defendant in both positions. Plaintiff appeals.

There are but two questions involved:

First. Was Doherty liable for any of the beer except that which was sold in car-load lots ? He had a right to choose the terms of the agreement into which he entered. His agreement was in relation to sales which were made in and to be paid for in car-load lots, and in no other quantities. A surety can insist that he will not be bound except upon his own terms, and his obligation cannot fairly be extended beyond the scope of his written agreement, as, under the statute of frauds, his agreement must be in writing. Johnston v. Township of Kimball, 39 Mich. 187 (33 Am. Rep. 372); Bullock v. Taylor, 39 Mich. 137 (33 Am. Rep. 356); Locke v. McVean, 33 Mich. 473; Michie v. Ellair, 60 Mich. 73; Ferguson v. Davis, 65 Mich. 677; Fay & Co. v. Jenks & Co., 93 Mich. 130.

The other question is: Did the court err with reference to the application of payments ? The contract provided that payment should be made for one lot of beer before another was sent. Payments were in fact made more than sufficient to pay for the car load which was sent. The car load of beer was the first beer sent. In Chapman v. Com., 25 Grat. 721, the rule is stated as follows:

“A payment by a debtor who owes several debts to a creditor is to be applied to one or the other of the debts, as follows:
“First. The debtor may direct the application at or before the time of making such payment; (and such direction may be given expressly or by implication.
‘ ‘ Second. If the debtor gives no such direction, then the creditor may make the application according to his plea'sure, and he may make it either at the time of such payment, or afterwards, before the commencement of any controversy on the subject; but, the application being once made, it cannot be changed without the consent of all the parties.
“Third. Such application by a creditor may also be made either expressly or by implication. If he enters the debits and credits in a general -account, as they occur, this will be considered, in the absence of evidence to the contrary, as a general application of the credits to the debits in the order of time in which the debits occur, thus paying first the debt first due.
“Fourth. If neither the debtor nor the creditor makes the application, then the law will make it according to the circumstances of each particular case; and, if there be no other controlling circumstance, the application will be made according to the order of time, paying first the oldest debt.”

We do not think the court erred in his disposition of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    NEWCOMB v. LOVE.
    Trespass—Possession—Evidence.
    In an action of trespass qu. cl., it conclusively appeared that defendant had made use of the land for farming purposes for several years, that it lay on his side of the fence built by him to mark the boundary line, and that plaintiff acquired his alleged possession by breaking through the fence, and was immediately ejected by defendant. Held, that the possession of the defendant was established, and that verdict should have been directed in his favor.
    Error to Grand Traverse; Corbett, J.
    Submitted January 15, 1897.
    Decided March 17, 1897.
    Trespass guare clausum fregit by Henry. C. Newcomb against Isaac Love and Abram Love. From a judgment for plaintiff, defendants bring error.
    Reversed.

      M. B. Pulcipher, for appellants.

      Foster & Crotser, for appellee.
   Moore, J.

The farm of the defendant Isaac Love is north of and adjoining the farm of the plaintiff. No formal survey had been made of the division line until May, 1892; though years ago Mr. Love ran a line, and set a stone, which was called a “corner stone,” and a fence, which was treated as the line fence, had existed for a number of years. In 1892, Mr. Tuller was employed by Mr. Newcomb, Mr. Love, and others, to make a survey of the line between the farms. There was a discrepancy between the government plat and the field notes. The parties agreed in writing that the surveyor might make the survey according to the official plat, giving to each man his amount of land as sold by the official plat. The surveyor ran the line according to the agreement, and it was found that the line fence was two to four rods farther north than the line established by the survey. The fences were afterwards removed to the line as found by the survey. The portion to be built by each party was assigned to him, and each one built his portion of the fence; and Mr. Love took possession of the strip, and' put it into crops. Afterwards a road was laid out on the south side.of the line fence, and a strip taken from Mr. New-comb’s land, for which Mr. Newcomb was paid. In the spring of 1895, Mr. Newcomb became dissatisfied with the line as established by Mr. Tuller, and attempted to take possession of a portion of the strip, and succeeded in plowing a portion of it. The parties are not agreed as to what was done at that time. It is the claim of the plaintiff that Mr. Love assented to plaintiff’s right to' occupy the strip, and agreed later to remove the fence. The defendant denies this, and says he notified plaintiff that he must not do anything more to the land; that he was the owner of it; that he should not yield his title until he was compelled to do so by the law. The record shows without dispute that the defendant put in the land plowed by the plaintiff to beans, and harvested the crop. On or about: the 20th of September, 1895, in the absence of the defendant, the plaintiff, with his hired man, broke through the fence built by the defendant, and commenced to' plow a portion of the strip. ■ They had plowed two or three furrows when Isaac Love and his son discovered them. The defendants at once came to where the plaintiff and his man were at work, bringing clubs with them, and notified the plaintiff that he was a trespasser, and must leave. The plaintiff inquired if they intended to use the clubs, and they answered they intended to use all the force necessary to put the plaintiff out. He and his hired man then withdrew, and plaintiff sued defendants in an action of trespass. The defendants asked the court on the trial to direct a verdict in their favor, for the reason that trespass would not lie against one in the actual possession, claiming to be the owner. The court declined to so instruct the jury, but left it for the jury to decide whether the defendants were in the actual possession of the land or not. They found that the plaintiff was in possession, .and returned a verdict in his favor of six cents. Defendants appeal.

The rule is well settled that trespass to real property cannot be maintained unless the plaintiff had actual or constructive possession of the property when the trespass was committed, and nevei when the possession of the property was in the defendant. Ruggles v. Sands, 40 Mich. 560; Carpenter v. Smith, Id. 639; Miller v. Wellman, 75 Mich. 353; Wood v. Railroad Co., 90 Mich. 212; Kinney v. Ferguson, 101 Mich. 178. The plaintiff testified, upon the examination of his own counsel, that after the Tuller survey Mr. Love took possession of the strip of land, and had occupied it ever since; that he had cropped it three times; that, on the 20th of September, he had part of it into wheat, and was at that time occupying the land; that, between the 3d and 20th of September, he had a talk with Mr. Love, who said he had possession of the land, and he calculated to hold it; and that he did maintain possession of it. After he had rested his case, he attempted to correct his testimony, by swearing that, at the time Mr. Love and his son came with the clubs, he (the plaintiff) was in possession. But in that same connection he testified that he got possession by breaking open the fence built by Mr. Love, and that, as soon as Mr. Love found him there, he threatened, with clubs in his hands, to put the plaintiff off. His testimony, taken together, indicates conclusively that Mr. Love was in the occupancy of the premises; that they were broken into by plaintiff; and that he at once was driven off by Mr. Love. There is nothing in the plaintiff’s testimony, or that of any other witness, that will warrant any other inference than that the defendants were in possession of the land at the time of the alleged trespass.

Judgment should be"re versed, with costs, and the cause remanded to the court below.

The other Justices concurred.


author: Hooker, J.

text:
      In re LAMBIE’S ESTATE.
    Executors and Administrators —Settlement oe Estate —Refusal to File Account.
    An estate is properly assigned to the sole devisee, and the executors discharged, where the latter have refused to file their account, in obedience to an. order of court, after the parties in interest have adjusted the affairs of the estate to their satisfaction.
    Error to Wayne; Carpenter, J.
    Submitted January 15, 1897.
    Decided March 17, 1897.
    John H. Thomas and Charles Cameron, executors of the last will and testament of Francis Lambie, deceased, appealed from an order of the probate court closing the estate and discharging the executors. The order was affirmed in the circuit court, and the executors bring error.
    Affirmed.

      John Galloway (George H. Prentis, of counsel), for appellants.

      Gray & Gray, for James Lambie, sole devisee.
   Hooker, J.

The probate court for the county of Wayne made an order, upon application of the sole devisee under the will of Francis Lambie, deceased, requiring the appellants to file their final account in said court within five days after being served with notice. This they refused tb do, and, after hearing counsel for the appellants in opposition, an order was made by said court that the residue of the estate be assigned to James Lambie, the petitioner, and that Orla B. Taylor, special administrator, and John H. Thomas and Charles Cameron (the appellants), be discharged from all further liability as such, and that the estate be closed. An appeal was taken by these appellants to the circuit court, where the order was affirmed.

The decision of the court seems to proceed upon the theory that the estate is settled, except the claim of the appellants, which it was their duty to present and have passed upon by the probate court; that, while there was a just claim, it was impossible for the court to determine the amount except by an adjustment of their accounts; that, up to the date of the trial at circuit, they had filed no account, nor had they made any excuse for their failure to do so, except that the estate was not in readiness to settle, and that they had" a right to proceed with the settlement. The parties in interest appear to have adjusted the affairs of the estate to their satisfaction, and were entitled to know the amount due to the executors, and have' it paid, so that the estate could be distributed. The executors have no interest in an estate after the debts are paid, and those entitled to the property have adjusted the matter between themselves, further than to receive their compensation and be discharged. The executors have refused to file their account in obedience to the order of the court, and we think that it was proper to refuse to keep the estate open longer for their accommodation.

The orders of the circuit and probate courts are affirmed, with costs, and it will be certified accordingly.

The other Justices concurred.


text:
    CANFIELD v. CITY OF JACKSON.
    1. Personal Injuries—Pleading—Damages—Evidence.
    Evidence that the plaintiff in an action for personal injuries sustained a withering of the flesh about the thigh and hip, induced by partial paralysis, is admissible under ,a declaration alleging that plaintiff’s spine was severely and permanently injured, and that she was otherwise severely hurt, bruised, and wounded, and became and was sick, lame, and disabled.
    2. Municipal Corporations—Defective Sidewalks—Evidence-Notice.
    In an action against a city for injuries due to a defective sidewalk, evidence as to the condition of the walk in the vicinity of the place where the accident occurred is admissible upon the question of notice. Will v. Village of Mendon, 108 Mich. 251, Moore v. City of Kalamazoo, 109 Mich. 176, followed.
    3. Same—Defenses—Waiver.
    An objection that the plaintiff in an action against a city for injuries due to a defective sidewalk failed to comply with a provision of the charter requiring all claims to be presented to the common council for allowance is not available as a defense when raised for the first time by motion for a new trial.
    4. Trial—Instructions.
    A refusal to give a requested instruction is not reversible error if the law in relation to the subject-matter of the request is correctly stated in the general charge.
    5. New Trial—Newly-Discovered Evidence.
    The law requires of parties care, diligence, and vigilance in securing and presenting evidence at the trial; and a motion for a new trial on the ground of newly-discovered evidence will be overruled unless it is shown that the evidence in question has in fact been newly discovered, that the failure to produce it at the trial was not due to a lack of reasonable diligence, that it is not cumulative merely, and that it is of a character calculated to render a different result probable on a retrial of the cause.

      Error to Jackson; Peck, J.
    Submitted January 13, 1897.
    Decided March 17, 1897.
    Case by Helen F. Canfield against the city of Jackson for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      J. A. Parkinson, for appellant.

      Blair, Wilson & Blair, for appellee.
   Moore, J.

The, plaintiff recovered a judgment for injuries received because of a fall upon a defective sidewalk. The defendant appeals, and assigns as error the admission of testimony bearing upon the question of the extent of the injuries received by the plaintiff. It was alleged in the declaration that the plaintiff “ stepped into one of said holes, and was thereby thrown and fell to and upon the said sidewalk and the ground there, and thereby the spine of said plaintiff was severely and permanently injured, and she was otherwise severely hurt, bruised, and wounded, and she became and was sick, sore, lame, and disabled, and so remained,” etc. We think the declaration was sufficiently broad to warrant the introduction of all the testimony which was received.

The plaintiff was allowed to show the condition of the walk at and in the vicinity of the place where the accident occurred at the time of and prior to the accident. It is claimed this was error. The decisions of this court justified the admission of the testimony. Will v. Village of Mendon, 108 Mich. 251; Moore v. City of Kalamazoo, 109 Mich. 176.

The refusal of the trial judge to give some of the defendant’s requests to charge is assigned as error. In his general charge the court gave correctly the principles of law in relation to which he was requested to charge, and we have repeatedly held that it is not error to decline to give a particular request, if the general charge correctly states the law in relation to the subject-matter of the request.

This suit was commenced August 1, 1894. It was tried in November, 1895. The charter of Jackson contained a provision reading:

“The council shall audit and allow all legitimate claims against the city; and, when required by the common council, every account shall be accompanied with an affidavit of ■ the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just; and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are indorsed or referred to in such account or claim. And every account shall exhibit in detail all the items making up the amount claimed, and the true date of each. It shall be a sufficient defense in any court, to any action or proceeding for the collection of any demand or claim against the city, that it has never been presented to the council for allowance; or that the claim was presented without the affidavit aforesaid, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.”

Neither by the pleadings nor at the trial was any attempt made to defend against plaintiff’s claim for the reason that it had not been presented to the common council. In December after the trial the circuit judge was asked to grant a new trial because the plaintiff had not presented her claim to the common council before suing it. We do not think it necessary for us to decide whether the charter provision is to be construed as controlled by the case of Lay v. City of Adrian, 75 Mich. 442, or by Springer v. City of Detroit, 102 Mich. 303. The defense sought to be interposed was a legal defense. The city and its counsel must be presumed to know the law. No one knew better than they whether the claim of plaintiff had been presented to the common council or not. Whatever the facts were, they knew them at the time of the trial. The attention of the court was not. called to this defense during the trial of the case. It is too late now to seek to interpose it.

A second motion for a new trial was made on the ground of newly-discovered evidence. The motion was overruled. We think properly so. “A motion for a new trial, upon the ground of newly-discovered evidence, is not regarded with favor. The policy of the law is to require of parties care, diligence, and vigilance in securing and presenting evidence.” Elliott, App. Proc. § 857. To entitle one to a new trial upon this ground it should be shown: First, that the evidence, and not merely its materiality, be newly discovered; second, that the evidence be not cumulative merely; third, that it be such as to render a different result probable on a retrial of the cause; fourth, that the party could not with reasonable diligence have discovered and produced it at the trial. Hayne, New Trial & App. §§ 88-92, and many cases there cited; Gray v. Barton, 62 Mich. 186. Defendant failed to make such a showing as to entitle it to a new trial.

Judgment is affirmed.

The other Justices concurred.


text:
    McELROY v. O’CALLAGHAN.
    Trover—Owners in Common—Demand and Refusal.
    The owner of an undivided half interest in personal property cannot maintain an action for its conversion against the owner of the other half interest because of the latter’s refusal either to buy the former’s interest or to surrender exclusive possession; nor can the action be sustained by evidence that a demand was made for joint possession, where it is not shown that this demand was refused.
    Error to Menominee; Stone, J.
    Submitted February 3, 1897.
    Decided March 17, 1897.
    Trover by Charles T. McElroy against John O’Callaghan and another. From a judgment for plaintiff, defendant O’Callaghan brings error.
    Reversed.

      Cook & Pelham, for appellant.

      Sawyer & Waite, for appellee.
   Grant, J.

Trover for the undivided half of a portable sawmill. The sole question in the case is whether there was any evidence tending to legitimately show a conversion by the defendant O’Callaghan of the plaintiff’s undivided half of the property. The mill had been shut down, and had not been used for some time. The shed over it had fallen in. The small articles had been removed, but by whom does not appear. Defendant took the boiler and engine and a few other articles, and removed them to the mill of the defendant the Laing Lumber Company, where the boiler and engine had been used for a short time. The court directed a verdict for the defendant company, but submitted to the jury the question of conversion by defendant O’Callaghan.

While plaintiff was upon the stand, the court, properly-recognizing that the question must depend upon what was said, instructed the witness to state the conversation, to . which the witness replied:

"I asked him for my interest in the mill, or the mill, to which he refused both.
"Court: What did he say ?'
“A. He would not give me possession of it, nor pay me for my interest.
"Court: What, if anything, did he say?
“A. He did not recognize my interest in it.
Counsel: I would like to have the conversation.
"Court: Yes, as near as you can get at it. What did he say about it?
“A. I don’t hardly mind the wording of what he said. I think he said he would not give me anything for my interest.
“Counsel: Did he, or did he not, refuse to recognize your interest in the mill ? ”

Objection being made to this question, the court ruled it out, as calling for a conclusion, and the court continued the examination:

“Q. You went and spoke, I suppose, about this mill?
“A. Yes, sir.
“Court: And you said you wanted your interest in it, or the mill, or you wanted a settlement ?
“A. Yes, sir, to which he said 'I shall pay nothing.’
“Court: Is that the substance ?
“A. That is the substance of it. When he refused to pay me anything for my interest in the mill, then I asked if I could not have the mill, to which he refused.
“Court: What, if anything, did he say about your interest, and what he proposed to do with it, if anything ?
“A. Well, the position he took was that he had possession of the mill, and it was his.
“Court: You,should give us the substance of what he said. If you cannot give the language, give the substance.
“A. I can give you the substance of what he said; that was that he would not give me the mill, nor any compensation for my interest in the mill.
“Court: You think that was what he said?
“A. I demanded joint possession with, him for the mill, but did not get it.”

On cross-examination, the witness said the substance of the conversation was that defendant said he would not pay or deliver possession, and that he was willing to abide by that as the substance of the conversation. The defendant testified that plaintiff told him he ought to load the mill, and put it on the cars for him; that he had made no money up there (where plaintiff had formerly used it), and he thought it would be only fair that defendant should give him the entire mill as it was, which defendant refused to do, but offered to take $150 for his interest, and load it on the cars for the plaintiff. This was all the testimony there was bearing on the question of conversion. We do not think it was sufficient to sustain the verdict. Defendant was under no obligation to surrender exclusive possession. It is time, plaintiff testified he demanded joint possession, but he did not testify that this was refused. The court should have directed a verdict for the defendant.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Hooker, J. Hooker, J.

text:
    PATNODE v. DARVEAU.
    Fraudulent Conveyances—Equitable Mortgage.
    A deed which, though intended merely as security, is absolute in form, will not, if executed for the purpose of delaying creditors, be adjudged an equitable mortgage at the solicitation of the debtor.
    ON REHEARING.
    1. Fraudulent Conveyances—Homestead.
    Since a debtor’s homestead is not subject to the claims of creditors, a conveyance of it for the purpose of placing it beyond their reach does not preclude him from having the deed declared a mortgage, if the circumstances justify such relief.
    2. Rehearing—Evidence—Affidavits.
    An affidavit filed.in the Supreme Court upon rehearing cannot be considered as evidence in the cause.
    3. Same—Costs.
    Costs upon rehearing were disallowed where the former decision was vacated upon facts that were not called to the attention of- the court upon the original hearing.
    Appeal from Alpena; Kelley, J.
    Submitted February 5, 1897;
    original opinion, for reversal, March 17, 1897.
    Rehearing granted April 27, 1897;
    final opinion, vacating former decision, July 13, 1897.
    Bill by Adolphus Patnode against Solomon Darveau and the Alpena County Savings Bank to declare a deed a mortgage, and to redeem. From a decree for complainant, defendants appeal.
    Affirmed.

      Joseph H. Cobb, for complainant.

      J. D. Turnbull, for defendants.
   Hooker, J.

The complainant was the owner of a building and a stock of goods. Upon the former was a mortgage of $400, held by a Mrs. Slee, and he was indebted to other persons. He made a deed of the premises to the defendant Darveau, and afterwards, within a short time, sold the stock of groceries, and paid his unsecured debts, with slight exceptions, and furnished the defendant Darveau with $360, with wliich, and $40 of his own money, Darveau paid the mortgage, and took an assignment of it to himself. The complainant claims that the bill in this cause is a bill to declare the deed a mortgage, and to redeem, and is based on the theory that the deed was given to secure Darveau for the amount of said mortgage, upon his agreement to pay it, and the further sum of $100, which he was to receive for his assistance in preventing a threatened foreclosure of the mortgage, and in assisting the complainant in regard to his other affairs. The bank is made a party by reason of its interest in the premises by virtue of a mortgage for $300, given to it by the defendant Darveau.

The answer of the principal defendant denies the allegations of the bill, and alleges that the premises were deeded to him in pursuance of a purchase for $800.

The evidence shows to our complete satisfaction that, up to a few days before the mortgage was given to the bank, both parties treated the deed as security for an amount which complainant owed to Darveau. They do not agree as to their negotiations' regarding a settlement. Complainant claims that, on discovering that Darveau had made the mortgage to the bank, he asked the defendant Darveau to deed the property to him, and take security for what was his due; but Darveau refused. On the other hand, Darveau testified that he was always willing to receive the amount his due, and deed the property; that the complainant finally wanted to sell him the place, and, when asked what he wanted for it in cash, he said the balance of the $800 (that sum being named in the deed as the consideration). To this Darveau replied that he would not give it, but would give him $300 cash, and a second mortgage for the remainder, but complainant would not take a second mortgage, and they parted. Darveau further testified that later in the day they agreed upon the bargain, and that there was $300 due the defendant Darveau, which he was to have a week to borrow on the place, and, if he did not get it in a week, the complainant would get it elsewhere; but defendant borrowed it at the savings bank. To do this, he paid $12 for an abstract, which increased the amount due him; and he then concluded that he would either keep that money himself, and deed the premises, or he would give complainant a mortgage for $500, which complainant agreed to, and accepted upon the promise that defendant Darveau should have the bank mortgage discharged. The evidence shows that complainant knew what he was doing, and he says that he took the mortgage because it was all that he could get. He recorded it at once, and from that time on to the time the suit was begun—a period of several months—the parties had talks about a settlement, with a view to payment of the defendant Darveau, and his redeeding the property. Meantime $275 of the amount borrowed lay in the bank, Darveau holding a certificate of deposit for it, $25 having been taken by him in cash when the money was borrowed. We are impressed with the belief that the only obstacle to a settlement was a disagreement as to the amount due the defendant Darveau. The affair culminated in this suit. From a decree for the complainant, the defendants appeal.

There is much to support the claim that the real purpose for which this deed was made was to protect the complainant from loss through an attack by his creditors, which seemed imminent. He unqualifiedly says so more than once in his testimony, and the testimony of the defendant Darveau corroborates it. It is not clear that he designed to ultimately defeat his creditors, and he was attempting to sell his goods, that he might pay, and succeeded in doing so; but it is evident that he was endeavoring to gain time by putting his property into defendant Darveau’s hands, and there is evidence that he desired to do the same with the stock. Under the well-known rule, equity will not undertake to relieve the complainant by setting aside a conveyance made for such a purpose, or doing it indirectly by treating as a mortgage a fraudulent deed. Perhaps the complainant knew this when he made sure of the $500 mortgage upon the new deal. This was a valid transaction, and, as we understand it, the defendant Darveau professes to be willing to cause the other mortgage to be discharged. Just why it has not been done does not appear. It would seem that he should do so, but we cannot make a decree to that effect upon this record.

The decree is reversed, and the bill is dismissed, with costs of both courts, but without prejudice to further proceedings with reference to the discharge of said mortgage.

The other Justices concurred.

ON REHEARING.

Hooker, J.

As will be seen by the former opinion in this cause (ante, 127), complainant’s bill was dismissed not because of the righteousness of the defendants’ conduct and claims, but because of what appeared to be a design to hinder creditors. Afterwards our attention was called to the fact that the property in controversy was the homestead of the complainant, and a rehearing was granted to consider the question. We cannot consider the affidavit filed as evidence in the case, but we think the evidence in the record, though slight, is sufficient to warrant us in finding that the property was a homestead, and it necessarily follows, under our decisions, that the complainant was at liberty to make such disposition of it as he chose, as it was not subject to the claims of creditors, and his intent would not affect his rights. The bill does not mention the fact that this was a homestead, and it was perhaps unnecessary, as it became important only in answer to the defendants’ claim that the conveyance was in fraud of creditors. Upon consideration of this point, we are of the opinion that our former decree did an injustice, and it- is therefore vacated, and one will be entered affirming the decree of the circuit court, with costs. As our attention was not called to the homestead question until the motion for rehearing was made, no costs upon rehearing will be allowed.

The other Justices concurred.


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    JEHLE v. BROOKS.
    1. Mortgages—Foreclosure—Deficiency.
    A defendant in foreclosure cannot, in proceedings for the issuance of an execution for a deficiency, call in question the validity of the decree.
    3. Same—Decree—Taxes and Insurance.
    Taxes and insurance moneys paid after the commencement of foreclosure proceedings, and before the decree therein, are properly included in the amount for which foreclosure is awarded, where the mortgage provides for their payment, and that the amount so paid shall be a lien.

      8. Same—Personal , Liability—Notice—Chancery Rules.
    A purchaser of mortgaged property, who is made a defendant in foreclosure proceedings as one having or claiming to have an interest in the premises as subsequent purchaser or incumbrancer or otherwise, as provided by Chancery Rule No. 91, against whom a personal decree is sought, and who is notified of that fact as provided by Chancery Rule No. 122, is sufficiently advised of an intent to hold him personally liable for a deficiency after sale; it not being required that the bill should in such cases specifically allege the facts from which the personal liability is sought to be established.

      4. Same—Assumption on Mortgage Debt.
    A provision in a deed of mortgaged land, warranting the premises except as to the mortgage, which the grantee “assumes,” renders the grantee personally liable for the mortgage debt.
    Appeal from Kent; Grove, J.
    Submitted February 4, 1897.
    Decided March 17, 1897.
    Bill by Fritz C. Jehle against Harry A. Brooks, impleaded with Henry Principaal and Mary Brooks, to foreclose a mortgage. Defendant Harry A. Brooks appeals from an order awarding an execution for a deficiency.
    Affirmed.

      Frank W. Hine, for complainant.

      Everett D. Comstock, for appellant.
   Moore, J.

This is an appeal from a decree rendered in a proceeding for a personal decree and the issuing of an execution for a deficiency in a foreclosure case. The original foreclosure proceeding was commenced by the complainant against all the defendants in this proceeding. The mortgage which was foreclosed was made by Henry Principaal. His grantee sold to Harry A. Brooks. The defendant Mary Brooks is the wife of Harry A. Brooks. Harry A. Brooks was brought in as a subsequent purchaser. His interest was stated in the bill of complaint as required by Chancery Rule 91. The subpcena contained an underwriting, as required by Chancery Rule 122, claiming a personal decree against Harry A. Brooks and the maker of the mortgage. Harry A. Brooks was personally served with the subpoena. None of the defendants appeared in the case. Their defaults were entered; a decree was rendered; the land was sold. It did not bring enough to pay the amount of the decree, and a petition was filed for a personal decree and the issuing of an execution against Harry A. Brooks and Henry Principaal. Proper service was had upon Harry A. Brooks. He appeared and answered in the proceeding. A decree was rendered against him for the deficiency, from which decree he appeals.

All the errors assigned have been considered, though we may not discuss them all here. It has been repeatedly held that the validity of the decree cannot be questioned in this proceeding. Ransom v. Sutherland, 46 Mich. 489; Wallace v. Field, 56 Mich. 3; Haldane v. Sweet, 58 Mich. 429; Corning v. Burton, 102 Mich. 96. It is urged, however, that as there was no averment in the bill of payment by complainant of taxes and insurance, and as an amount was included in the decree of foreclosure for insurance and taxes paid by complainant, the decree was invalidated, and can be questioned in this proceeding. The record shows these amounts were paid after the bill was filed and before the decree, and were included in the report of amount due. The mortgage provided for the payment of taxes and insurance, and that the amounts so paid should be a lien, and we think it was proper to include the amounts so paid in the decree. Payne v. Avery, 21 Mich. 524; Vaughn v. Nims, 36 Mich. 297; Howe v. Lemon, 37 Mich. 164; Johnson v. Van Velsor, 43 Mich. 208; Hanford v. Robertson, 47 Mich. 100; Walton v. Hollywood, Id. 385.

It is urged that the bill of complaint did not allege such facts as showed a personal liability on the part of Harry A. Brooks to pay any portion of the mortgage debt, and that a personal decree for the deficiency is void, and can be attacked in this proceeding. The interest of Harry A. Brooks was stated in the bill of complaint in the language required by Chancery Rule 91. The bill of complaint prayed for a personal decree against him for the deficiency. He was advised, as required by Chancery Rule 122, that a personal decree was prayed for against him. If he desired to contest the rendition of a personal decree, he should have appeared in the original proceeding. The deed conveying title to Mr. Brooks contained these words, after the warranty clause: “ Except a mortgage of twenty-six hundred dollars, given by Henry Principaal to Fritz C. Jehle, which second party assumes.” It is claimed by Mr. Brooks that this is not such an agreement as makes him responsible for the debt secured by the mortgage, or for any deficiency upon the foreclosure of the mortgage. If the proceedings were in a condition which would allow him to raise the question, we could not agree with him in his construction of this language. We think it an assumption of the mortgage debt, and an agreement to pay it. Schley v. Fryer, 100 N. Y. 71; Winans v. Wilkie, 41 Mich. 264; Corning v. Burton. 102 Mich. 86 and cases there cited.

We do not discover any prejudicial error in the proceedings. The decree is affirmed.

The other Justices concurred.


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    WEISER v. WELCH
    1. Durbss per Minas—Release.
    A mother who is induced by threats to release, for a consideration, a claim for damages upon which suit is pending, in order that she may save her son from a criminal prosecution, is under duress.
    2. Same—Abatement oe Suit.
    A release of a claim for damages, obtained from plaintiff in the absence of her attorney, by means of duress and fraud, does not operate to abate a pending suit.
    3. Same—Tender.
    Plaintiff’s delay of three months in tendering back the consideration received is held not to have been prejudicial to the defendant, the tender having been made before trial, and the jury having been instructed that the amount received by plaintiff must be deducted from their verdict.

      4. Intoxicating Liquors—Civil Damages—Evidence.
    Plaintiff in an action for selling intoxicating liquor to her son may show her situation and condition, her dependence on him, the amount earned by him before he became addicted to the use of liquor, his failure to obtain employment after-wards, if traceable to his drinking habit, and that he has been seen upon the street in a state of intoxication during the time defendant is claimed to have sold him liquor.
    5. Trial—Witnesses—Incompetent Answers.
    An objection that an incompetent answer was received to a proper question will not be considered on appeal, where no motion was made to strike out the answer.
    6. Intoxicating Liquors—Sale to Minors — Exemplary Damages.
    Exemplary damages may be recovered under the civil-damage act (3 How. Stat. § 2283e3), at the suit of a parent, for an unlawful sale of liquor to a minor child.
    Error to Ionia; Davis, J.
    Submitted February 5, 1897.
    Decided March 17, 1897.
    Case by Louisa B. Weiser against Patrick Welch, a saloonist, and Herbert Babcock and Andrew Haberstumpf, his bondsmen, under the civil-damage act. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Chaddock & Scully, for appellants.

      E. A. Horrigan and George E. Nichols, for appellee.
   Grant, J.

Defendant Welch was a saloon keeper in the city of Ionia. The other defendants are his bondsmen. Plaintiff was a widow 60 years of age, and for several years a helpless cripple. She owned a small homestead, which was mortgaged. Her son, Burton,-a minor, was her chief support. Her claim is that her son squandered his money in Welch’s saloon, became frequently intoxicated, and that she was thereby injured in her means of support. For this she brought suit, and obtained verdict and judgment.

1. The chief defense is that she had settled this suit, and executed a release and “satisfaction of all claims for damages, both actual and exemplary.” This settlement was made about three months before the trial, and while the suit was at issue and pending. Proofs on her part are ample to show that this settlement was brought about in the absence of her attorneys, by threats on the part of the agents of the defendants that her son would be prosecuted criminally unless she settled the case, and that affidavits for his arrest were already made; and that she executed the release and satisfaction solely because of such threats, and to save her son from prosecution. She desired to consult her attorneys before making the settlement, but was urged and advised by the defendants’ agents not to do so. Upon ascertaining the situation, her attorneys advised her that she was not bound by the settlement. Shortly before the trial, she, through her attorneys, made tender of the $130, the sum paid in settlement. Her evidence was sufficient to sustain a finding by the jury that the settlement was obtained by duress and fraud. It is recognized as duress when a mother is induced by threats to do an act in order that she may save her son from criminal prosecution. Schultz v. Culbertson, 46 Wis. 313; Bussian v. Railway Co., 56 Wis. 325; McCormick Harvesting Machine Co. v. Hamilton, 73 Wis. 486; Cribbs v. Sowle, 87 Mich. 340, 348 (24 Am. St. Rep. 166), and authorities there cited. The jury having found that the release was obtained by duress and fraud, it did not operate to abate the suit.

2. The plaintiff acted with sufficient diligence in tendering back the money received, and the court was correct in so instructing the jury. In fact, there are many cases which hold that no tender is necessary. O’Brien v. Railway Co., 89 Iowa, 644; Sanford v. Insurance Co., 11 Wash. 653; Chicago, etc., R. Co. v. Lewis, 109 Ill. 120; Mullen v. Railroad Co., 127 Mass. 86 (34 Am. Rep. 349); Chicago, etc., R. Co. v. Doyle, 18 Kan. 58; Allerton v. Allerton, 50 N. Y. 670. The court instructed the jury to deduct from the amount of their verdict, if they found for the plaintiff, the sum of $130.

3. It was competent for the plaintiff to introduce evidence showing her situation and condition; her dependence upon her son; the amount he earned before he became addicted to the use of intoxicating liquors; his failure to obtain employment afterwards, if traceable to his drinking habit; the amount he had in the bank and had earned at various times; and that he had been seen upon the street in a state of intoxication during the time it was claimed defendant Welch sold him liquor. Such testimony was therefore properly admitted. Horn v. Smith, 77 Ill. 381; Black, Intox. Liq. § 308.

4. Burton was asked if he applied at a certain place for work, to which he replied that he did, and could not get it. When the question was objected to, counsel for plaintiff stated that he expected to show that Burton was refused work on account of his drinking habits. The court thereupon admitted the answer to the question: ‘ ‘ Bid he [the person to whom Burton applied] tell you why ?” Answer: “Not particularly.” The question, under the statement of counsel, was competent. If the answer was incompetent, the defendants should have moved to strike it out. Not having done so, they cannot now complain. Baumier v. Antiau, 79 Mich. 509, 516.

5. Complaint is made that the court instructed the jury that plaintiff might recover exemplary or punitory damages. The statute (3 How. Stat. § 2283e3) provides for such damages, and the instruction given is fully sustained by Larzelere v. Kirchgessner, 73 Mich. 276, and Peacock v. Oaks, 85 Mich. 578, 581.

We find no error upon the record, and the judgment is affirmed.

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


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    HAMILTON v. PARK & McKAY CO.
    1. Contracts—Unpatented Device—Royalties.
    An agreement for the payment of royalties to the inventor of an unpatented device pending the issuance of a patent, in consideration of an exclusive right of sale, is valid and enforceable.
    2. Same—Construction—Patents.
    A contract by which the inventor of a certain device binds himself not to make, manufacture, or sell, or to transfer the right to any other person than the other party to the contract, and which definitely fixes the time when payment of royalty thereon shall begin at one year from the date when the device is modeled and ready to be put on the market, and which authorizes such other party in case a jiatent is not granted, or in case it is decided not to be valid, to declare the contract ended, requires the payment of the royalty from the time specified, although the patent has not been granted at that time.
    3. Same—Rescission—Effect of.
    The rescission of such contract by the inventor for failure of the licensee to make payment of royalty at the time stipulated in the contract does not preclude the former from recovering the royalties already earned.
    4. Same—Minimum Liability.
    One who, in consideration of the exclusive right of sale of a device, contracts to pay the inventor a royalty of §1 each “on not less than 1,000” of such articles for each year, is bound to pay royalties of at least §1,000 a year, regardless of the number of articles sold.
    Error to Wayne; Hosmer, J.
    Submitted February 11, 1897.
    Decided March 17, 1897.

      Assumpsit by John H. Hamilton against the Park & McKay Company to recover royalties due under a contract for the manufacture and sale of a certain device. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      The special count of the declaration sets up the following agreement between plaintiff and defendant, dated February 21, 1893:

      “Whereas, John H. Hamilton, of Detroit, Wayne county, Mich., is the inventor and sole owner of a certain new and useful improved syphon jet water-closet, for which he has filed an application for letters patent of the United States, dated * * *, serial No. 443 930; and whereas, the Park & McKay Co., of Detroit, Wayne county, Mich., a corporation doing business under the laws of the State of Michigan, are desirous of acquiring the sole right and license to manufacture, make, and sell said syphon jet water-closet in accordance with the invention set forth in said application, and any and all improvements thereon which said Hamilton shall hereafter make, invent, and patent: Now; therefore, be it known that for and in consideration of one dollar paid, and of the covenants and agreements hereinafter contained, to the faithful performance of which the parties hereto mutually agree and bind themselves, the parties hereto agree as follows:
    “(1) The said Hamilton agrees to and does hereby give and grant unto said Park & McKay Co. the sole and exclusive right and power to make, manufacture, and sell throughout the United States and territories thereof (and any other territory or place where he may now or hereafter have the exclusive control of) the syphon jet water-closet, embodying the principles set forth in said application, and the letters patent which shall hereafter issue therefor, and, he also agrees to give and grant to said Park & McKay Co. a similar license to any , and all improvements on said syphon jet water-closet, and patents for the same, for which he may at any time in the future become possessed of or be the inventor of, subject, however, to the same terms and conditions and royalties as hereinafter set forth.
    “(2) Said Park & McKay Co. agree to pay said Hamilton, or his heirs, executors, administrators, or assigns, as a royalty, the sum of one dollar for each of said syphon jet water-closets sold by said company.
    “(3) Said Park & McKay Co. agree to keep a full and exact account of all sales of said syphon jet water-closets made by them, which accounts shall be open to said Hamilton at his request; and that upon the first days of January, April, July, and October of each and every year to render a true account in writing of all said syphon jet water-closets sold, and to accompany the same with all royalties due, in current funds, during the continuance of this agreement.
    “(4) That said Park & McKay Co. agree to use their best business tact and power to introduce and push and extend the sale of said syphon jet water-closet, and that they will supply the demand therefor at reasonable prices. That, commencing from and after one year from the date that said closet is modeled and ready to be put in the market, said Park & McKay Co. shall pay royalty on not less than one thousand closets for each and every year during.the life of said patent; Provided, however, that this fourth clause is to be suspended during such time as said Park & McKay Co. shall be unable, without fault of their own, to have said closets manufactured for them, either because of strikes of the workmen, combination between the owners of the potteries, or other like cause. It is also understood and agreed that the one thousand closets hereinbefore mentioned includes all closets to be made under contract dated July Hth, 1891, patent No. If58,809; that is, that said one thousand closets means one thousand closets shall be sold under both patents, and not one thousand closets shall be sold under each patent. It is also agreed that if said patent is not granted, or, if granted, if said patent shall be decided to be invalid by any court, said Park & McKay Co. shall have theprivilege of declaring this contract ended.

    “(5) Said Park & McKay Co. agree not to manufacture or sell any other syphon jet water-closet owned by any other person than said Hamilton.
    “ (6) It is further agreed that in case said Park & McKay Co. shall willfully or negligently fail to fulfill any obligation incurred by them in this agreement, that the said Hamilton may terminate any license given to them by giving them written notice thereof; but the said Park & McKay Co. shall have thirty days from the service of such notice in which to fulfill their agreement.”
    It is then averred that said closet was modeled and ready to be put in use on the market on the 31st day of October, 1892, and was put in use and sold on the market by the defendant on that day and since.

      This suit was commenced April 27, 1895. The patent was not issued to the plaintiff until June 18, 1895. Plaintiff introduced the contract in evidence, and gave testimony tending to sustain the other averments of his declaration. The defendant introduced no proofs. On March 6, 1895, plaintiff wrote the defendant, notifying it. that, on account of the failure on its part to pay the royalty stipulated in the agreement, the license to manufacture and sell closets under said agreement was revoked. The court directed a verdict for the defendant, for the reason that the revocation of the license prevented plaintiff from recovering for royalties earned prior thereto. The learned circuit judge held that the plaintiff had two remedies,—either to sue in assumpsit to recover the royalty due, leaving the contract in force, or to forfeit the contract,—and that, if he forfeited the contract, he waived the right to recover for royalties.

      Bowen, Douglas & Whiting, for appellant.

      Alex. D. Fowler, for appellee.
   Grant, J.

(after stating the facts). 1. It is insisted that the plaintiff cannot maintain an action before the issuing of the patent, and that no liability was intended to be incurred until a valid patent had been granted. This was a matter of contract between the parties. The inventor of an unpatented device may make a valid contract for its manufacture, use, or sale. It is no objection to the validity of such a contract that any person may manufacture it until a patent is issued. The vendee or licensee, in the absence of fraud or mistake, must abide by his contract. It was understood by these parties at the time the contract was made that no patent had been issued, and the contract was made with reference to that fact. If, therefore, the defendant contracted to pay a royalty before the patent was issued, the plaintiff is entitled to recover. Ingraham v. Schaum, 157 Pa. St. 88; Hall Manfg. Co. v. American Ry. Supply Co., 48 Mich. 331; Forncrook Manfg. Co. v. Barnum Wire & Iron Works, 54 Mich. 552; Brush Electric Co. v. California Electric Light Co., 52 Fed. 945, 962.

2. Does the contract obligate the defendant to pay a royalty before the issuing of the patent? Upon the answer to this question depends the plaintiff’s right of recovery. We think the question must be answered in the affirmative. Plaintiff bound himself by the contract not to make, manufacture, sell, or to transfer the right to others. The time when the royalty should begin is definitely fixed by the contract at one year from the date when the closet is modeled and ready to be put in the market. It does not depend upon the date of the issue of the patent. It was also contemplated that the patent might not be granted, or, if granted, that it might be decided to be invalid, in which case the defendant was entitled to declare the contract ended. This language is inconsistent with the position that the royalty should begin at the date of the patent. Previous manufacture was plainly contemplated, and the date is averred in the declaration and fixed by the proofs.

3. Did the notice of forfeiture destroy the right to recover for royalties accruing prior thereto ? In support of the ruling of. the court below counsel cites Jewett v. Petit, 4 Mich. 508; Goodspeed v. Dean, 12 Mich. 352; Hubbardston Lumber Co. v. Bates, 31 Mich. 158, 169; Curt. Pat. § 218; Woodworth v. Weed, 1 Blatchf. 165; Woodworth v. Cook, 2 Blatchf. 151. Jewett v. Petit states the familiar rule that when one enters into a contract induced by fraud he must affirm or disaffirm on discovery of the fraud, and that he cannot adopt that which is for his own interest and reject the residue. Hubbardston Lumber Co. v. Bates is a similar case. Goodspeed v. Dean involved the rights of parties to a land contract. Plaintiff, the vendor, after electing to treat the contract as void, sought to recover the amount then due upon the contract. The basis of that decision is the familiar principle, legal as well as equitable, that a party cannot keep his land and have the purchase price too. The citation in Curtis on Patents is based upon Woodworth v. Weed, 1 Blatchf. 165. In that case plaintiff had granted to defendant a license to construct and use one of his machines, for which the defendant gave him promissory notes amounting to |400, payable at different times. Upon failure to pay the first note, plaintiff filed a bill in equity charging that the license and permission to use the machine had become void, and praying for an injunction to restrain its use. A provisional injunction was applied for, which was opposed by the defendant, who filed an affidavit as to his financial responsibility. It was held that the plaintiff might resort to his remedy at law to enforce the collection of the notes, or treat the rights of the defendant as forfeited, and enjoin him from the use of the machine. If it be conceded that that case determined that plaintiff could not maintain an action at law after his election to rescind and enjoin the use, the reason is obvious, viz., the consideration to be paid was an entirety, indivisible into past and future payments. Woodworth v. Cook is a similar case.

None of these decisions are applicable to cases where the licensee agrees to pay a royalty for every machine manufactured and sold, or a specific sum at stated periods. The obligation to pay becomes fixed in such cases the moment the machine is manufactured and sold, or at the time fixed by the contract for the payment of the amounts due for past use or sale. The licensee refuses to pay. The licensor, as he has the right to do, rescinds the contract. Upon what principle of law or logic should the licensor be held thereby to. lose what is honestly his due, and of which the licensee has had the benefit ? The effect of such a rescission must be determined in view of all the surrounding circumstances. Plaintiff is not seeking his property and its price too. He has performed his agreement. Defendant is in default, and indebted for accrued royalties. This case is rather in the nature of a lease where the lessee is in default of his rent. He may Be ousted for nonpayment, but this does not bar an action to recover the rent due. We think the authorities sustain the plaintiff’s right of action. Hurst v. Bookbinding Co., (Com. Pl.) 22 N. Y. Supp. 371; Mayor, etc., of New York v. New York Refrigerating Construction Co., 146 N. Y. 210. The true rule is this: The rescission of a contract as against the party in default does not, in the absence of an agreement, destroy the right to recover royalty or rent which has already been earned. The past-due payments are separable from future payments, and the rescission is neither ab initio nor in toto, but solely in futuro.

4. By the terms of this contract the defendant was under obligation to pay a royalty of at least $1,000 a year, regardless of the number of closets sold. Preston v. Smith, 156 Ill. 359; Beecher v. Stein, 139 Pa. St. 570.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.