author: Ostrander, J.

text:
      In re FLYNN’S ESTATE.
    1. Infants — Notice—Sale of Real Property — Statutes.
    The sale of an infant’s property was irregular, requiring the court to refuse confirmation, unless the minor’s parent or near relative was notified, under 1 Comp. Laws, § 534.
    2. Same — Guardian.
    Though her next friend, appointed by the court, was the infant’s stepfather and the father of three other children having an interest in the property that was sold, the sale was unauthorized unless the record showed notice served on her father or other near relative.
    3. Same — Ratification—Acquiescence—Estoppel.
    Nor was a statement contained in the report of sale made by the infant’s guardian, that she received a portion of the proceeds after attaining her majority, sufficient evidence to establish her approval or ratification of the sale, so as to estop the infant from opposing confirmation.
    4. Same — Purchaser—Public Sale.
    The purchaser at special guardian’s sale of a ward’s realty is presumed to have had knowledge of the proceedings.
    Appeal from' Dickinson; Flannigan, J.
    Submitted April 5, 1912.
    (Docket No. 44.)
    Decided July 11, 1912.
    John Friedrich applied to the circuit court for the county of Dickinson, in chancery, for an order to sell the real estate of May Flynn and three other infants, and was appointed guardian and required to give a bond, pursuant to 1 Comp. Laws, § 536. Sale was made under the order of the court. After a period of ten years had elapsed the guardian reported the sale to the court for confirmation. From an order confirming said sale, May Williams, née Flynn, personally and as guardian of the remaining infants, appeals.
    Reversed.

      Hanchette & Lawton, for appellant.

      Cook '& Pelham, for appellees.

      Upon the application of May Flynn, an infant of the age of 16 years, and of John Friedrich, who applied for and on behalf of Joseph A., Josephine C., and Constance Friedrich, minor children of John Friedrich, the circuit court for the county of Dickinson, in chancery, on July 16, 1901, made an order appointing the said John Fried-rich, next friend of said infants, “for the purpose of making application to this court in behalf of said infants under the provisions of section 534 of the Compiled Laws of the State of Michigan for 1897, for the sale of real estate, of which said infants are seised in fee, situate in said county,” describing it. On the same day the court, upon the petition of said infants, by their said next friend, made an order appointing the said John Friedrich guardian of said infants in relation to the proceedings upon said petition, and requiring him to file a bond running to said infants in the penal sum of $1,000, conditioned as required by section 536 of the Compiled Laws of 1897; said bond to be approved by the court and filed. The order provides further that the proofs with reference to the matter of the application be taken in open court.
    The petition describes the real estate belonging to said infants; says that the same was acquired by descent from their mother, who died intestate; gives a description of the improvements upon said real estate; avers that no taxes had been paid on the premises since the year 1896, and that the delinquent taxes amounted to upwards of $100; that petitioners had no money to pay the taxes or to redeem the premises from sales thereof for delinquent taxes, nor to make necessary repairs; that it was intended to sell the premises and use the proceeds to purchase lands for farming purposes and to remove to said newly purchased lands with said next friend and father; that the interests of the petitioners would be substantially promoted by such sale. The asserted value of the real estate was $600 to $700. On the same day that these orders were made, testimony was taken in the matter of the said petition, and the bond of the guardian was presented, approved, and filed. A decree was granted, which was followed by an amended decree, entered on the 16th day of October, 1901. It is recited in the first decree that it appears to the satisfaction of the court that the allegations of the petition are true, and that the interest of the petitioners will be substantially promoted by the sale of the said real estate. It is ordered that the guardian in the name of the said infants, upon the payment to said guardian for the use of said infants of $1,000, execute and deliver to any person who will purchase the same a deed of the said real estate; the proceeds of the sale to be accounted for to the court.
    The amended decree finds that in the first decree it was through a clerical error that the words “one thousand” (referring to the sum to be received upon the sale of said real estate) were placed in said decree; that what should have been inserted were the words “six hundred and fifty,” and the remainder of the decree was in form amended to correspond with this language. On October 6, 1911, the said John Friedrich filed a report of said sale with said court. The report is verified in the State of Arizona as of September 29, 1911. In substance and effect the report is that, on the first day of July, 1905, said guardian made a deed of said real estate to Isabel D. Palmer, of Iron Mountain, conveying all the right, title, and interest of said infants in and to the said real estate for a consideration of $650, which was paid as follows: $275 in cash, and the promissory notes of said grantee for $375, dated July 1, 1905, payable in certain installments set out in the report, with interest, payment of which said notes was secured by a mortgage on the land conveyed; that the mortgage and notes were sold for $375 on August 21, 1905. The purchase price is accounted for in said report as follows: Taxes paid to the amount of $28.60; for a quitclaim deed, $100; for plumbing and sewerage in and about the premises sold, $104; to May Flynn, now May Williams, after she became 2Í years of age, $100; and that the guardian has in his possession for the benefit of said infants the further sum of $325. Under date January 8,1912, the court made an order in said matter approving and confirming said report, with leave to the guardian to apply to the court for further directions as to the application and disposition of the moneys received by him upon the sale of said premises. It does not appear what, if anything, was presented to the court with the report of sale, or what, if any, objections were made to the confirmation thereof. From this order May Williams, née Flynn, for herself and, as is recited in the notice, as guardian of Joseph A. and Constance Friedrich, has appealed to this court. It is not made to appear that May Williams is guardian of the other infants.
    It is claimed that the sale was invalid for the following reasons:
    “ (1) There is no showing that the court required or obtained any proof that the guardian or the near relatives of May Flynn had any knowledge of the intention to make the application, or that the court directed notice of the application to be given to the guardian or other relatives of May Flynn.
    “ (2) The petition does not show that it was necessary or proper either for the support or maintenance of such infants, or that the interest of the infants required or would be substantially promoted by the disposition on account of any part of said property being exposed to waste or dilapidation or on account of its being wholly unproductive, or for any other peculiar reason or circumstance.
    “(3) The testimony does not show any necessity to dispose of this property, or that the interest of the heirs would be substantially promoted by such disposition.
    “(4) The order or decree authorizing the sale, contrary to the intent of the statute, authorizes the making of a deed without first requiring the report of the sale as contemplated by the statute.
    “(5) The decree was not executed within a reasonable time; the amended decree was filed and entered on the 16th of October, 1901, and the sale was made and deed executed in July, 1905; this delay in effect nullifies the decree.
    “(6) The decree does not authorize the acceptance of a mortgage, and the acceptance by the guardian of part cash and part note secured by mortgage is not such a performance of the decree as to make the deed valid.
    “(7) No report was made or account rendered to the court for the proceeds of the sale of the property, as commanded in the decree, and no report was filed of said sale until six years thereafter.”
   Ostrander, J.

(after stating the facts). The statute (1 Comp. Laws, § 534) requires an application for the sale of real estate of an infant to be made by the guardian of the infant, if there be one, and, if not, then by a next friend authorized to act as such by the court. There is the proviso that, if the application be made by an infant — as distinguished from an idiot or lunatic — the appointment of a next friend shall be made on his petition, but, before authorizing a next friend to act for him, the court shall require proof that the parents, or other near relatives if he have no parents, have knowledge of the intention to make such application. And, unless it appears that “ such persons have knowledge of such intention, may direct notice of the application to be given to such guardian, parents, or other relatives.”

It appears that, in conformity with the statute, the infants petitioned for the appointment of a next friend. The person nominated was father of three of the infants and was stepfather of the fourth, who is the appellant. It does not' appear that he was either guardian or near relative of the appellant. The inference drawn from the record is that he was neither. Therefore, before authorizing any one to act as next friend for her, the court should have required proof that her parent, if she had a father, or her near relatives, if she had any, had knowledge of the intention to make the application. And we construe the statute as requiring this proof to be matter of record, at least by recital, as requiring the fact to appear affirmatively. The general jurisdiction of courts of chancery in respect to infants, their persons, and estates is not the jurisdiction which was invoked or was exercised. The proceeding is a special one. As has been pointed out, the statute limits the power of the court in appointing a next friend. If there was no next friend appointed pursuant to law, there was no valid application for a sale of the real estate, so far as the interest of appellant therein is involved. As jurisdiction to order the sale does not appear, the sale, as to the appellant, was ordered and made without authority.

The statement in the report of sale that appellant received $100 of the. proceeds of the sale after she was 21 years old, and the fact that considerable time elapsed after she became of full age without action on her part, if it is a fact, is the only evidence that she acquiesced in or approved the action of her stepfather after attaining her majority.

The purchaser at the sale knew that she was purchasing from a special guardian, and is presumed to have had knowledge of the proceedings. Re Petition of Axtell, 95 Mich. 244, 248 (54 N. W. 889). While it may be true that appellant has money derived from her special guardian for which she should accQunt to some one, we percálve no legal ground for holding that she is, upon this record, estopped to object to a confirmation of the sale. Of the four infants whose interests, are affected by the sale, May Williams alone has attained majority. We cannot consider the recital in her notice of appeal that she is guardian of the other, or any of the other, infants. We regard her as the sole appellant.

It is not necessary to discuss other objections which are urged. We feel obliged to set aside the order of confirmation, and it is so ordered. Appellant will recover costs of this appeal from the appellee.

Moore, C. J., and Steers, MoAlvay, and Brooke, JJ., concurred. Blair, Stone, and Bird, JJ., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    GRIGGS v. VILLAGE OF RED JACKET.
    1. Bills and Notes — Check—Indorsement—Equity — Right to Possession — Municipal Corporations — Forfeiture — Bona Fide Holder.
    Complainant and two associates entered into an arrangement with, a village to erect a gas plant. As an earnest of their intentions complainant' drew a certified check which one of his associates deposited with the village clerk. Later a franchise was granted to the promoters by the village providing for a bond of $1,000 to secure the performance of the provisions of such franchise, in lieu of which bond the parties agreed to treat the check as security. Failing to obtain necessary financial aid, the promoters abandoned their efforts and complainant wrote to the clerk for the check, which that official refused to deliver to him until the mayor and council directed. At a later time one of the complainant’s associates who had caused the check to be deposited with the village clerk requested the village to order the certified check indorsed over to a creditor of his own. The council complied with his request, and complainant filed a bill to restrain the indorsee’s bank, which had cashed the check, from collecting it, and to obtain possession of the instrument. No action had been taken by the village to forfeit the $1,000. The bank claimed to have received the check for collection only. Held, that neither it nor the indorsee to whom the village transferred it were holders in due course, and that complainant was entitled to possession.
    2. Municipal Corporations — Treasurer —Indorsement—Statutes.
    The treasurer of a village is the custodian of its funds, etc. (1 Comp. Laws, § 2731), but has no authority to indorse over to a third party a certified check deposited to secure performance of a contract or franchise.
    Appeal from Oakland; Krskine, J., presiding.
    Submitted April 4, 1912.
    (Docket No. 30.)
    Decided July 11, 1912.
    Bill by Albert G. Griggs against the village of Red Jacket and others for an iniunction and other relief. From a decree for defendants, complainant appeals.
    Reversed.

      Lillis & Hymers and George A. Safford, for complainant.
    P. H. O’Brien, W. J. Galbraith, and W. J. MacDonald, for defendants.
    The complainant and J. W. Martin and George F. Brondige made an agreement, under and according to which Martin was to go to Calumet, Mich., and procure, if possible, a gas franchise in Calumet and Lake Linden, the expenses of the adventure to be borne equally by the three, and the profits,' if any, to be divided equally. Later a fourth person became a party to the agreement. The community known generally as Calumet is in fact three separate municipal bodies, including the village of Red Jacket, the village of Laurium, and a part of the township of Calumet. While negotiations for a franchise in Red Jacket were pending, and to meet a query made by some of the officers of the village as to the financial ability of Mr. Martin and his friends, the complainant drew, had certified, and delivered to Mr. Martin, who, in turn, delivered it to the village clerk of Red Jacket, a check for $1,000, in words and figures as follows:
    “Rochester, Mich., Sept. 28, 1904.
    “The Bank of Rochester, Unincorporated. Burr and Newberry, Bankers. Pay to the order of the village of Red Jacket $1,000.00 one thousand dollars.
    [Signed] “Albert G. Griggs.
    “Certified, Burr & Newberry, Sept. 28, 1904.”
    The record of the proceedings of the common council of Red Jacket of the meeting held October 4, 1904, contains the following:
    “A rider to the gas franchise of J. W. Martin relative to flat rate of $1.25 per 1,000 cubic feet, together with a certified check for $1,000 on the Bank of Rochester, Mich., was presented.

      “Motion by Wickstrom that rider be attached to franchise, and that certified check be placed in the hands of the village clerk, until and pending the action on the franchise. Carried.”
    November 1, 1904, a franchise was granted to Joseph W. Martin, his associates, successors, or assigns. By its terms the ordinance was to take effect upon the filing with the clerk within 90 days of a bond in the sum of $1,000 and the acceptance of the grantee thereof in writing, and, if the acceptance and bond were not filed within 90 days, the ordinance was to become void and of no effect. It contained also the following:
    “Sec. 2. The said grantee, or his associates, successors or assigns, shall begin the work of laying the gas mains and pipes in said village May first, after the date of the filing of the acceptance of this ordinance by the grantee, as hereinafter provided, and September 1st, after the filing of such acceptance, shall have completed and in operation a system furnishing gas as herein contemplated, to an extent sufficient to supply both sides of Fifth, Sixth, Oak and Pine streets therein, and in case said work is not begun within said time, or shall not be completed to the extent aforesaid and within the time above limited, all rights hereunder shall be forfeited and all the privileges hereby conferred shall cease, unless the common council shall by resolution extend such limitations. And the said grantee, his associates, successors or assigns, shall file with the clerk of said village, at the time of filing his acceptance of this ordinance, a bond in the sum of one thousand dollars ($1,000) to the said village of Red Jacket, with sufficient sureties to be approved by the council, conditioned that they will commence and complete said work to be performed as above, within the time to be specified in this section.”
    “Seo. 11. All the requirements and obligations upon the grantee, his associates, successors or assigns, by this ordinance are made conditions hereof, for breach of any of which all rights conferred by this ordinance may be forfeited by the said common council, provided that such forfeiture shall not take place if within ninety (90) days after notice given by or under the direction of said common council to said grantee, his associates, successors or assigns, they shall comply with the conditions or terms or perform such obligations for breach of which, or default in which such notice is given.”
    December 24, 1904, Mr. Martin sent a communication to the mayor and common council, reading:
    “ I hereby accept gas ordinance granted me by your Hon. body, and you hold our certified check of $1,000 (one thousand dollars), which we agree to forfeit to the village of Red Jacket if we do not live up to every letter of said gas ordinance.”
    The communication was signed, “Joseph W. Martin.”
    Later Martin indorsed his acceptance upon a copy of the ordinance, which also bore the signature of the village by its proper officers. November 7, 1905,-Mr. Martin requested an amendment extending the time for beginning the work until May 1, 1906, and for the completion of the system until September 1, 1906. The request was refused. October 11,1905, the complainant wrote to the clerk of the village, and the clerk received a letter in which he states, in substance, that it was impossible, for reasons which are mentioned, to successfully finance the deal; that he is assured that the council did not intend to “hold any one up in this matter,” and asks a return of the certified check in order to release the funds tied up thereby. The letter contains this sentence:
    “You will readily understand that the depositing of the check could scarcely be termed a compliance with the terms of the franchise, and as I wish to secure the release of the funds represented by the check, I make the above request.”
    The clerk answered this letter, promising to take the matter up with the mayor, and saying that some action of the council would be necessary before the request could be complied with. On October 19, 1905, Mr. Martin wrote to the mayor and common council of the village of Red Jacket, requesting that they make no disposition of the $1,000 certified check—
    “Deposited asa guarantee in the gas matter of the Copper Range Gas Company, until such time as the question is fully settled in Calumet. I supposed that check was put in good faith & want it to stay there & it may be that in the near future your Hon. body will secure for your constituents that which you and they have tried so hard for — an up to date gas plant, with a reasonable rate. Trusting these lines will meet your entire approval, I am.”
    Again, July 9,1907, Martin wrote to the president of the village of Red Jacket a letter reciting the fact that the council held a certified check that he deposited with the village clerk for $1,000, that the plant was not built, but that he saved the Calumet people many dollars by the low rate which his hard work made it possible for the community to get; that, if his associates had done as they agreed, he would have built the plant. He then requested the Red Jacket common council to indorse the certified check in favor of Mr. John R. Ryan, “ and with the low rate for gas that the village has in the face of what they were about to pay for & Mr. John R. Ryan paid in full I feel that only justice will be done.” The check was later delivered to John R. Ryan, with the following indorsement:
    “ Pay to the order of John R. Ryan, Calumet, Mich.— Village of Red Jacket, per N. F. Kaiser, Village Clerk.”
    Mr. Ryan deposited it August 14, 1907, with other checks and cash in the National Bank of Calumet, and it appears that he checked against his account an amount sufficient to withdraw from the bank the credit balance thus created, and his checks were paid. In the usual course of business the certified check was forwarded for collection, payment was refused by the certifying bank, and the check was returned to the First National Bank of Calumet. Complainant, the drawer of the check, filed his bill in the circuit court for the county of Oakland, in chancery, naming as defendants the village of Red Jacket, John R. Ryan, Charles A. Burr, Arthur F. Newberry, copartners as the Bank of Rochester, praying, among other things, that he be decreed to be the owner of and entitled to the possession of the check, that it be ordered delivered up to him to be .canceled, that the defendants the village of Red Jacket and John R. Ryan be restrained from attempting to collect, assign, negotiate, or dispose of the said certified check, and that Burr and Newberry be enjoined from paying the same to any person other than complainant. Later,, the bill of complaint was amended by making the First National Bank of Calumet a party defendant. Each of said defendants answered the bill. No defendant asks for affirmative relief against complainant or against any other defendant.
    It is asserted in the answer of defendant Ryan that the village of Red Jacket indorsed the check and delivered it to him upon the written order of Joseph W. Martin, who was the person who deposited it with the village. He proceeds to set out the facts concerning an indebtedness due and owing to him from said Martin, amounting to upwards of $800, to pay which, he alleges, the cheek was transferred to him. He negotiated the check, he says, to the First National Bank of Calumet in due course of business; the amount thereof being placed to his credit by the said bank and withdrawn by him. The answer of the village of Red Jacket, signed by its solicitor, also asserts that the check was transferred to Ryan upon the written order of Martin, who had deposited the check; that complainant had no transactions with the village. The First National Bank of Calumet claimed in its answer that it was the lawful holder and owner of the check, that it bought it of Ryan, and paid him for it, in due course of business. It appears that in February, 1906, Mr. Ryan, formerly, and when the franchise was granted, president of the village, wrote to complainant, stating that the council had decided to keep the thousand dollars, but suggesting that he might be able to get the check from the village, pay the indebtedness of Martin to himself, and turn the balance over to Griggs. Complainant did not consent to this. When the check was turned over to Ryan, he gave a receipt to the village, hereinafter set out, and the village clerk wrote Martin, advising him that the check had been turned over to Ryan, and that the check had been forfeited for failure to comply with the conditions of the franchise. It is said that the action on the part of the clerk was authorized at an informal meeting of the council held in August, 1907, of which meeting no record was made. The receipt was spread upon the minutes of the council at a meeting held September 3, 1907, and on October 1st following, at a regular meeting of the council, these minutes, as the record indicates, were read and approved. The record made in the council proceedings of September 3d was the following:
    “Assignment of the $1,000 certified check deposited by J. W. Martin, et al. to J. R. Ryan, the action of the village clerk pertaining to the assignment of the $1,000 certified check, and as noticed in the following receipt was declared ratified and approved:
    “ ‘Calumet; Mich., Aug. 13, 1907.
    “ ‘Received of the village of Red Jacket, Mich., certified check on the Bank of Rochester, Unincorporated, Burr and Newberry, Bankers, in the sum of one thousand dollars (51,000.00), dated at Rochester, Mich., September 28th, 1904, signed by Albert G. Griggs, and made payable to the village of Red Jacket, and bearing certificate as follows: “Certified, Burr and Newberry, Bankers, September 28, 1904.” ’
    “Said above-described check was indorsed as follows:
    “ ‘ Pay to the order of John R. Ryan, Calumet, Mich. Village of Red Jacket, per N. F. Kaiser, Village Clerk.’
    “ This certified check was made payable to John R. Ryan at the instance of Joseph W. Martin, of Detroit, Mich., in letter of said Joseph W. Martin, dated July 9th, 1907, on file in the village of Red Jacket clerk’s office, and is the identical check deposited with the village clerk of the village of Red Jacket by the said Joseph W. Martin as a guarantee of good faith in the matter of complying with the conditions of a certain gas franchise granted to the said Joseph W. Martin by the village of Red Jacket on the 1st day of November, 1904, and which said check was forfeited for failure of the said Jos. W. Martin, to comply with the conditions of said franchise.
    [Signed] “John R. Ryan, Calumet, Mich.”

      This record was not made by order of the council. No motion was made, no resolution passed, concerning it. The court below found that it was the understanding that the check should be held by the village in lieu of a bond; that Ryan was not a bona fide holder of the check, having taken it for an antecedent indebtedness; that the First National Bank of Calumet had no knowledge of the purpose for which the check was given, but claimed to have received it for collection only, which fact and the age of the check were sufficient to put the bank upon inquiry; that the turning of the check over to Ryan was unauthorized; and that no formal action was taken by the village to forfeit the check. But the court was of opinion that the village was entitled as against complainant to hold the check as stipulated damages for nonperformance of the franchise obligations, and that its action in indorsing the check to Ryan could not be questioned by complainant, a nonresident of the village, and not a taxpayer therein. It was suggested by the court that the answers be amended so as to lay the ground for such a defense. Accordingly the village amended its answer, asserting therein the right of the village to hold said check as liquidated damages for failure of the franchise grantee to comply with terms of the franchise. The bank and Ryan also amended their answers. A decree was entered dismissing the bill of complaint.
    Aside from the question of the bona fides of the First National Bank of Calumet, the position of defendants is well stated in the brief filed for all of them, as follows:

      “ Of the action of the clerk in turning the check over to John R. Ryan, Joseph W. Martin had due notice. Before the clerk turned the check over to Mr. Ryan, he was ordered to do so at an informal meeting of the council at which the president and all the council were present. They all acquiesced in this course, and at the next regular meeting, which occurred on the 3d of September, 1905, the action of the clerk in turning the check over to Mr. Ryan was fully ratified and affirmed. So, if any affirmative action of the council was necessary, such action was had. It may have been irregular, but, if it was irregular, Mr. Griggs has no right to complain in regard to it. If the check was forfeited, it makes no difference to him what the details were about the manner in which the council affirmatively took action looking toward declaring the check actually forfeited. However, we contend that all of the circumstances demonstrate that the village of Red Jacket accepted and retained the check in the same spirit and for the same purposes for which it was deposited — in lieu of a bond. We further contend that the check was automatically forfeited by the failure on the part of the complainant and his associates to construct the plant, and that whether the village of Red Jacket collected the check and turned the money into the treasury or turned the check over to Mr. Ryán is a matter in which the complainant is not concerned. Nor does the fact that the council immediatedly acted upon an order given by Martin detract in any way from the strength of this position. If the council for its own protection acted in pursuance of an order from Martin, the person by whom the check was deposited, rather than upon its own legal right (at least as against Griggs) as the owner of a forfeited check, it does not follow that the complainant can take advantage of this course on the part of the village. The village of Red Jacket was not bound at its peril to determine whether the check was actually forfeited. If the council was willing that the defendant Ryan should have the check in payment of Martin’s indebtedness to Ryan, it was an element of additional safety, as far as the village was concerned, to depend, not only upon the forfeiture of the check, but also upon the order of Martin. In any event, the complainant is in no position to complain of the action of the council. He saw fit to have his check certified and placed in the hands of his agent, whom he said had full authority to represent him. He cannot complain if his agent was able to secure with a forfeited check the payment of an indebtedness incurred in and about the promotion of the enterprise. The check was properly forfeited as liquidated damages on account of the failure of the grantee, Joseph W. Martin, to perform the conditions of the grant.”
   Ostrander, J.

(after stating the facts). It is immaterial, in the view I take of the case, whether there was or was not a mutual understanding of the village and the grantees of the franchise that the certified check was to be left with and held by the village in lieu of, or in the place of, the bond which the ordinance required to be given. If the check was not so received and so relied upon, it should have been returned to the maker upon his request. If it was so received, the right of the village was to forfeit it and collect it. Perhaps an authorized attempt to collect it would be sufficient evidence of an intention to forfeit it to the village. This question, however, is not for determination. Assuming that the village had the right to forfeit the check as liquidated damages, it has not done so, and more than six years has elapsed since its right accrued. The check is not in the possession or control of the village. Clearly, the common council would have no right to give the check away by formal or informal action, whether it belonged to the village or to complainant. I reject, as unsupported, the claim that any one supposed that Mr. Martin had the right to use the check to pay his private debt to Mr. Ryan. Complainant, the drawer of the check, was known to Ryan and to the village authorities as a person interested in the gas franchise. He was one of the associates of Martin. The check was drawn and certified to be held by the payee thereof for a special purpose. Martin was never a transferee of the check. It is clear that Mr. Ryan knew all of the circumstances. He had asked complainant, the drawer of the check, to consent to have it used to pay Martin’s debt. The village authorities had been requested by the drawer of the check to return it to him. They were informed by Martin that he wished the aid and cooperation of the village to pay his debt to Ryan. He received such aid and co-operation; Ryan being active in that behalf, and the beneficiary thereof.

The First National Bank of Calumet received the check with notice that it had been drawn and certified for three years, was payable to a municipal corporation, and was indorsed by the clerk of the municipality. The clerk of the village had no general power to transfer checks, certilled or other, payable to the village. The treasurer of the village is the custodian of its money and evidences of value. 1 Comp. Laws, §§. 2731-2738. The question is not whether there was mala fides in accepting a check, apparently good, properly transferred. It is whether the payee of the check appeared to have indorsed it. The authority of the clerk to make the indorsement was not apparent, and did not, in fact, exist. Beyond this, there is testimony strongly tending to prove that the bank took the check for collection, relying upon the indorsement of Ryan and his responsibility, and did not take it as a transferee, for value. I conclude there are no innocent transferees of the check whose rights are to be protected.

We have then this situation: No party in interest, excepting the complainant, seeks affirmative relief. The check, the subject-matter of the controversy, is held by one who has no right as against any one but Ryan to collect it. Complainant created the fund to pay the check, which he drew and deposited for a special purpose with the village authorities. The check has been wrongfully diverted. Either the village or the complainant is entitled to its possession and to the fund created to pay it. The village has never claimed it, has taken no steps to forfeit it. Not only has it not forfeited it, but upon this record, by its original answer, it disclaimed ownership, and by its amended answer has declined to ask for any relief. I do not mean to intimate that the action of the clerk and councilmen which has been referred to was sufficient to divest the village of its property, if it claimed the check as property. But the last statement from the village in its answer and the argument made in its behalf are calculated only to perpetuate a fraud upon either the village or the complainant. The extent to which the answers of the village, signed only by its solicitor, may be held binding upon the village, is not discussed in the briefs, and I shall not consider the proposition. The village is not in possession of the check. It does not appear that it ever will have the possession and control of it.

I do not agree to the conclusion reached by the learned trial judge that complainant has in any event no interest in the check and the fund evidenced by it. He had the right to have the check and fund used for the purpose for which the check was made and deposited. When he filed his bill, it appeared that it had been diverted, and that the village had never asserted the right to keep it as its own. The village does not now assert the right to have the check restored to it and to then proceed to forfeit it and to recover its damages. It declines, upon this record, to pursue the check or the fund. Under the circumstances, I see but one course to pursue, which is to grant complainant the relief prayed for in his bill, leaving the village to its remedy against those who participated in the diversion of its property.

The decree below is reversed, and a decree will, be entered in this court for complainant, with costs of both courts.

Moore, C. J., and Steere, McAlvat, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Brooke, J.

text:
    WILDEY v. GILLETT.
    1. Mechanic's Liens — Notice—Statement—Statutes.
    Failure of the contractor to furnish to the owner of a building constructed under contract a statement under oath. of the amounts due to laborers, materialmen, etc., as provided by 3 Comp. Laws, § 10713, is fatal to his claim of lien.
    2. Same.
    That all laborers have been paid before the hearing, does not make compliance with the statute unnecessary in case of a complainant who commenced suit ten days before the expiration of the time for other claimants to file liens and who 'filed his lien 40 days before such expiration.
    3. Same — Construction.
    The lien statute being in derogation of the common law, must be strictly construed up to the time when the lien attaches.
    4. Same — Equity—Answer.
    Defendant’s statement in his answer, that the bill of complaint did not show performance of all conditions prerequisite to enforce the lien under chapter 296 of the Compiled Laws, etc., sufficiently raised the defense relied upon.
    Appeal from Ottawa; Padgham, J.
    Submitted April 5, 1912.
    (Docket No. 39.)
    Decided July 11, 1912.
    Bill by Torrant Wildey against Alva Gillett for the foreclosure of a mechanic’s lien. From a decree for complainant, defendant appeals.
    Reversed.

      Gleland & Heald (Wm. J. Gillette, of counsel), for appellant.

      Lillie & Osterhous, for appellee.
    Complainant, a carpenter, built á bam for defendant, and, being unable to secure a settlement after completing his work under his contract, he filed a mechanic’s lien on September 7, 1910, with the register of deeds of Ottawa county, and made service of his statement and claim of lien upon the defendant the following day. On October 7, 1910, he filed his bill of complaint to foreclose the lien, annexing thereto a statement showing a balance due him of $240. Defendant filed an answer to this bill, denying the material averments therein contained, and, in addition, in paragraph 8 set out the following:
    “And this defendant submits unto the court that the said complainant hath not in or by his said bill of complaint made or stated such a case as doth or ought to entitle him to any relief in a court of equity, because the said bill of complaint does not show that the said complainant has done and performed those acts necessary to be done under the laws of the State of Michigan to entitle the complainant to a lien upon the premises described in said bill of complaint, and particularly that the said complainant has not done and performed those acts necessary to be done as provided in chapter 296 of the Compiled Laws of 1897, and the amendments thereto, entitled ‘An act to establish, protect and enforce, by a lien, the rights of mechanics and other persons furnishing labor and material for the building, altering, improving, repairing, erecting or ornamenting of buildings, machinery, wharves and other structures; and repeal all acts contravening the provisions of this act.’ And of this defense this defendant hopes that he may have the same benefit as if he had demurred to said complainant’s bill for that cause.”
    Thereinafter, by way of cross-bill, defendant claimed damages from complainant for an alleged breach of the contract, the amount thereof being placed at $428.40. The prayer for relief follows:
    “This defendant therefore prays that he may by this answer have the same benefit as if he had filed a cross-bill in this cause, and that the said complainant may come to an account with this defendant as to the amount due this defendant for damages as above set forth, and that said complainant may'be decreed to pay the same to him forthwith, together with his reasonable costs and charges in this suit sustained.
    “And this defendant further prays that he may have such further relief and such other relief in the premises as shall be agreeable to equity and good conscience.”
    At the conclusion of the complainant’s case, the following occurred:
    “ Mr. Clelcmd: I move that the bill of complaint be dismissed for the reason that the complainant, who is shown by the bill of complaint and the contract to be the original contractor, didn’t make out and serve upon the owner the affidavit required to be made under section .4, being compiler’s number section 10713 of the Compiled Laws of 1897. Wildey was a contractor, and not a materialman. His affidavit claiming a lien was sworn to on the 7th day of September, 1910, and charges that the performance of labor was commenced on the 26th day of May, 1910, and that the last of the labor was performed on the 18th day of August, 1910. The lien was filed in the office of the register of deeds, as shown by the bill of complaint, on the 8th day of September, 1910, and the copy was served upon Gillett, the defendant, on the same day. It therefore appears that the memorandum of lien was filed about 40 days before the time for filing liens would expire, and that the bill of complaint, which was served on the 7th day of October, 1910, was filed 11 days before the time for filing liens had expired. Wildey employed a number of laborers to assist him in the work, and the statute is made to protect the owner from needless litigation. We therefore move the dismissal of the bill of complaint, and shall be glad to submit proofs.
    “ Mr. Osterhous: I will offer to show by the register of deeds of this county that no liens have ever been filed against the property of Mr. Gillett, defendant in this suit, by any laborer employed by Torrant Wildey under his contract in question here, or by any materialman from whom Wildey did or may have purchased materials that went into the construction of this barn under this contract.

      “Mr. Cleland: We admit that no liens have been filed. (Counsel for both parties argued the motion, and it was denied by the court.)”
    Defendant then offered a defense upon the merits, and the court below entered a decree in favor of complainant in the sum of $226 and interest, making the same a lien upon the premises under the statute. In his written opinion filed in the case the trial judge says:
    “ The most serious question .in the case is the one relating to notice to the owner to be given under section 4 of the lien law [Pub. Acts 1891, p. 230]. It is admitted by complainant that he hired laborers to help him on the job, and did not give the notice required by said section 4, when he drew his pay, or at any other time. I am satisfied that it was never required of him by defendant, and the matter was overlooked by both parties. It appeared, however, at the trial, and was conceded by both parties, that all laborers had been paid by complainant, and that no one had or could file liens, as none existed. I am therefore of the opinion that this case comes within the spirit of the opinion rendered by Judge Hooker in Barnard v. McLeod, 114 Mich. 73 [72 N. W. 24].”
    From the decree entered, defendant appeals.
   Brooke, J.

(after stating the facts). We may say that we quite agree with the learned circuit judge in his disposition of this case, unless, as contended by defendant, it must be held that the failure of complainant to serve the requisite notice under 3 Comp. Laws, § 10713, is fatal to the whole proceeding. The latter part of that section reads:

“Until the statement provided for in this section is made, in manner and form as herein provided, the contractor shall have no right of action or lien against the owner, part owner or lessee on account of such contract.”

It is conceded in this case that the claim of lien was filed 40 days before the laborers in the employ of the contractor would have been barred from filing claims of lien, and the bill was filed to enforce the lien 10 days before the expiration of such time. We are clearly of opinion that this case is ruled by the following decisions: Sterner v. Haas, 108 Mich. 488 (66 N. W. 348); Martin v. Warren, 109 Mich. 584 (67 N. W. 897); Barnard v. McLeod, 114 Mich. 73 (72 N. W. 24); Wiltsie v. Harvey, 114 Mich. 131 (72 N. W. 134); Dittmer v. Bath, 117 Mich. 571 (76 N. W. 89); Kerr-Murray Manfg. Co. v. Power Co., 124 Mich. 111 (82 N. W. 801).

It is said on behalf of complainant that the rule laid down in these cases has been modified by this court in Walker v. Syms, 118 Mich. 183 (76 N. W. 320), and Bollin v. Hooper, 127 Mich. 287 (86 N. W. 795). In the first case cited the action was assumpsit commenced more than two years after the building was completed and accepted, and long after any subcontractor, laborer, or material-man could claim a lien. Moreover, the court in that case said:

“ The plaintiff in this case is not attempting to assert a lien under the mechanic’s lien law.”

In Bollin v. Hooper, supra, the action was likewise assumpsit, and the question was not raised in the trial court. See, also, Adams v. Brick & Block Co., 154 Mich. 448 (117 N. W. 932, 129 Am. St. Rep. 484). The lien statute, being in derogation of the common law, must be strictly construed at least to the point when the lien attaches. Hall v. Erkfitz, 125 Mich. 332 (84 N. W. 310).

It is the claim of complainant that the defendant did not apprise him until the trial of the cause that he intended to avail himself of the defense now insisted upon. We think that the portion of the answer quoted supra was sufficient.

The judgment must be reversed, and the bill of complaint dismissed, with costs of both courts.

Moore, C. J., and Steers, McAlvay, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Moore, C. J. Ostrander, J.

text:
    PEERLESS PATTERN CO. v. GAUNTLETT DRY GOODS CO.
    1. Injunction — Adequate Remedy at Law — Contracts.
    A bill for specific enforcement of a contract to buy patterns exclusively from complainant and for an injunction to restrain defendant from buying of other pattern manufacturers, should not be dismissed on demurrer raising the objection that the remedy of specific performance would be impracticable, so long as the negative part of the contract can be enforced by injunction, but the remedy of enforcing the contract specifically may be denied if, in the court’s discretion, it appears at the hearing to be impracticable.
    2. Same — Statutes—Public Policy.
    The contract is not void as against public policy or as in viola, tioh of Act No. 829, Pub. Aots 1905.
    Appeal from Washtenaw; Kinne, J.
    Submitted April 8, 1912.
    (Docket No. 58.)
    Decided July 11, 1912.

      Bill by the Peerless Pattern Company against the Gauntlett Dry Goods Company for specific performance of a contract. From an order overruling á demurrer to complainant’s bill, defendant appeals.
    Affirmed.

      Edward B. Benscoe, for complainant.

      George S. Wright and A. J. Sawyer, for defendant.
   Moore, C. J.

This is an injunction bill and one for specific performance of a contract. A demurrer was interposed to the bill of complaint. It was overruled, which action is sought to be reviewed here.

The complainant is the maker of paper patterns. The defendant is the proprietor of a large dry goods store. A written contract was made between the parties, the material parts of which are as follows:

“City or Town — Milan.
“State......Mich.
“The Peerless Pattern Company,
“ 192J to 200 Greene Street,
“ New York City.
“(1) Please send us an assortment of Peerless patterns including the May, 1911, issue, amounting to $200.00 at 5 cents each pattern, payable as follows: $100 in thirty days, and the balance $100 to remain as a standing debit during the term of this agreement at 4 per cent, interest per annum, payable semi-annually. * * *
“(5) We will reorder at least once each week, all patterns that we sell, so as to keep our assortment complete. We will offer and display the patterns for sale on the main floor. We will not handle directly or indirectly any other make of pattern. We will pay for all goods on or before the tenth day of the month following the month of shipment and will pay all transportation charges to and from your New York office.
“ (6) It is understood that you are to exchange at full purchase price all patterns in our stock that you discard in January and July for other patterns to be reordered by us thereafter. After the return by us of such discarded patterns, if our remaining stock exceeds the amount of our original assortment we may return you the excess of such sum in Peerless patterns purchased from you to be selected out of our stock by us; such return excess patterns to be credited to our exchange account at full purchase price. * * *
“ (7) This order is to take effect on acceptance by you and to remain in force for a term of five years from the date of the first shipment to us from term to term thereafter unless either party shall give notice of desire to cancel in writing within thirty days before the expiration of any term. If such notice is given by us, we will continue the agreement for four months thereafter in order to give you an opportunity to transfer the account. * * *
“ Purchaser’s Name,
“The Gauntlett Dry Goods Co.
“ Date March 2, 1910.
“Accepted: The Peerless Pattern Co.,
“By E. L. Genth.”

The bill of complaint, after the formal part thereof, set out the making of the contract. It avers: That complainant entered upon the performance thereof; that defendant failed and refuses to perform its part thereof; that it began selling the patterns of a rival concern, and prayed:

(2) That the said defendant, the Gauntlett Dry Goods Company, its attorneys, agents, and servants, may be restrained by an injunction of this honorable court from selling or handling, directly or indirectly, during the term of said contract or agreement, any make of pattern other than that of your orator.
“ (3) That the said defendant, the Gauntlett Dry Goods Company, its attorneys, agents, and servants, may be decreed specifically to perform all and singular the terms, conditions, and stipulations of said agreement, by it to be performed, and it be compelled to order and buy from your orator and expose for sale, as by said agreement stipulated, the said patterns of your orator, your orator being ready, willing and able, and hereby offering specifically to perform said contract or agreement as on its part stipulated to be performed.
“(4) That your orator may be decreed to recover from the said Gauntlett Dry Goods Company, the said defendant, for the price and value of goods, patterns, fashion guides, and fashion books prepared for the defendant and shipped to it, amounting in the neighborhood of $300.”

A prayer for general relief followed.

It is claimed the demurrer should have been sustained because:

First. It appears from the allegations in the bill of complaint that the complainant has a full, adequate, and complete remedy at law. That if the allegations therein contained are true, the only relief to which complainant is entitled is a money judgment at law for damages.
Second. It appears from the contract for which suit was commenced and which contract is made a part of the bill of complaint, that defendant was prohibited from entering into any such contract for the reason that all such contracts are declared.to be against public policy, illegal, and void.

We consider the questions in the order stated:

First. In support of this contention counsel cite Grand-champ v. McCormick, 150 Mich. 232 (114 N. W. 80); Detroit Trust Co. v. Old National Bank, 155 Mich. 61 (118 N. W. 729), and many other cases. An examination of these cases will show they are not controlling in this case. The case at bar is more like Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60 (51 N. E. 408, 43 L. R. A. 854, 68 Am. St. Rep. 749), where, among other things, it is said:
“ But, even if, upon a trial of the action, specific performance of the contract in its entirety were refused as impracticable, still the bill should be retained as one permitting an injunction, in the sound discretion of the court, to restrain the defendants from violating the negative and severable covenánt of the Siegel-Cooper Company, that it would not ‘sell, or allow to be sold, on its premises, during the duration of this (the) contract, any other make of paper patterns’ than those of the plaintiff. The learned appellate division, one of the judges dissenting, overruled the demurrers on this ground, holding that the court should extend its remedy as far as it is able and thus prevent the principal defendant not only from making money by breaking its agreement, but from inflicting a double wrong upon the plaintiff, by depriving it of the right to sell, and conferring that right on a business competitor. We think this is a sound and just conclusion, because it will compel the Siegel-Cooper Company to either perform its agreement, or lose all benefit from breaking it and at the same time will shield the plaintiff from part of the loss caused by the breach, if persisted in. Lumley v. Wagner, 1 De G. M. & G. 604; Donnell v. Bennett, L. R. 22 Ch. Div. 835; Montague v. Flockton, L. R. 16 Eq. 189; Singer Sewing Machine Co. v. Union Buttonhole & E. Co., 1 Holmes, 353 [Fed. Cas. No. 13, 904]; Chicago & A. R. Co. v. New York, L. E. & W. R. Co. [C. C.], 34 Fed. 516, 531; Goddard v. Wilde [C. C.], 17 Fed. 846; Western Union Tel. Co. v. Union Pacific R. Co. [C. C. ], 3 Fed. 433, 439; Western Union Tel. Co. v. Rogers, 43 N. J. Eq. 311 [11 Atl. 13].

“The injunction, when granted, may not be absolute, but may be based on some equitable condition that will prevent either party from taking advantage of the other, such as the waiver by the plaintiff of the breach of the contract by the principal defendant. The question raised by the demurrer does not relate to any matter of discretion or propriety, but to the power of the court to grant any relief, conditional or otherwise. We are satisfied with the opinion below upon the subject, and should adopt it as our own without comment, but for a point not thus far considered, which seems to us a conclusive answer to the demurrers, and which, if overlooked, might lead to some confusion. The action is for the specific performance of a lawful contract, duly executed by both parties thereto. It is capable of performance by both, and there is no reason for nonperformance by either. A court of equity has jurisdiction of such actions, and the complainant sets forth the contract — readiness to perform on one side, a refusal to perform on the other, and facts showing no adequate remedy at law. A complete cause of action is, therefore, alleged, and the only reason for not awarding general relief to the plaintiff is that its nature is so complicated as possibly to require a multiplicity of orders by the court in its efforts to superintend the details of an extensive and peculiar business. This fact does not deprive the court of jurisdiction, but justifies a refusal, in its sound discretion, to exercise it. It confers no right upon either party. The court does not refuse to act because the defendants object to its acting, for it would refuse, under the circumstances, if both parties requested it to proceed; but it refuses because the execution of its decree would require protracted supervision. It is the difficulty of enforcing, not of rendering, judgment, that causes it to hesitate. The office of a demurrer is to sweep away a defective pleading, and in the case before us it attacks the substance of the complaint; yet the complaint is good in substance, for it sets forth a cause of action in equity. While it is true that the court, in its discretion, may not hear the cause, or, after a hearing, may refuse relief owing to the difficulty of enforcing its decree, still this does not make the complaint defective, nor authorize a general demurrer, which ‘must be founded upon an absolute, certain, and clear proposition that, taking the charges in the bill to be true, the bill would be dismissed at the hearing.’ Beach on Equity Practice, § 225. Upon the facts before us, it is in the power of the court to enforce the agreement the same as in the case of railroad contracts, but the difficulties attending the enforcement are so great that the court would ordinarily refuse to undertake it, as there is no public interest involved. As there was complete jurisdiction and a perfect cause of action against both defendants, the demurrers must be overruled. Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451 [51 N. E. 301].”

See, also, St. Regis Paper Co v. Lumber Co., 173 N. Y. 149 (65 N. E. 967); McCall Co. v. Wright, 198 N. Y. 143 (91 N. E. 516, 31 L. R. A. [N. S.] 249); Powell v. Dwyer, 149 Mich. 141 (112 N. W. 499, 11 L. R. A. [N. S.] 978); Buckhout v. Witwer 157 Mich. 406 (122 N. W. 184); 22 Cyc. pp. 769-771.

Second. Is the contract void as against public policy ? An answer to this question in the negative is found in Buckhout v. Witwer, supra,, and the cases cited therein. We do not think the case is within the inhibition of the statute. (Act No. 329, Pub. Acts 1905.)

The decree of the court below is affirmed, with costs, and defendant is given 20 days in which to answer.

Steere, Brooke, and Stone, JJ., concurred with Moore, O. J.

Ostrander, J.

I concur upon the ground that the contract in question is not in restraint of trade within the meaning of the statute.

McAlvay, J., concurred with Ostrander, J. Blair and Bird, JJ., did not sit.

       Counsel did not refer to or rely on the similar statute; i. e., Act No. 229, Pub. Acts 1905. REPORTER


author: Moore, C. J.

text:
    AYLESWORTH v. CAMP.
    1. Vendor and Purchaser — Forfeiture—Cancellation—Payment — Equity.
    The vendor of land incorrectly described by land contract, under whioh defendant was never put in possession, is not equitably entitled upon default and forfeiture to retain the land and to have a decree canceling the contract and authorizing him to retain the first payment.
    2. Same — Costs—Tender.
    The purchasers, after refusing to execute a quitclaim deed for the vendor, who tendered them back the first payment and who was entitled to such deed in order to clear up the record title, could not recover costs on appeal although the court modified the decree in their favor.
    Appeal from Berrien; Coolidge, J.
    Submitted April 9, 1912.
    (Docket No. 75.)
    Decided July 11, 1912.
    Bill by John J. Aylesworth and another against Elisha J. Camp and others for the cancellation of a land contract and to remove a cloud from complainants’ title. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      I. W. Biford, for complainants.

      Cady & Andrews, for defendants.
   Moore, C. J.

The complainants were the owners of a certain farm and resort property situated in Berrien county on the shore of Lake Michigan. The defendant was dealing in real estate as an agent and broker. On February 22, 1907, the complainants agreed upon a contract for the sale of this block of land, which contained about 60 acres, to the defendants for the consideration of $15,000. A land contract was drawn and signed by the parties, the description in which described only 10 acres. At the time of the signing of this contract, $400 in cash was paid. The land contract provided for an abstract of title. Some questions arose about the title. Later it was discovered that the description in the land contract was wrong. In the meantime the land contract had been put upon record, but the vendors never gave possession. During the differences between the parties the vendors offered to -return the $400 if the vendees would execute to them a quitclaim deed. The vendees offered to return the contract, but declined to execute the quitclaim deed. In the meantime the vendors had sold to other parties some of the 60 acres of land which should have been described in the land contract. This bill was filed to cancel the contract as a cloud on complainants’ title and to forfeit the $400 payment. The defendants answered and filed an answer in the nature of a cross-bill asking that the land contract be reformed so as to correctly describe the 60 acres of land, and contained an offer to pay the money due on the contract into court, and asked for a decree for specific performance. An answer was interposed to the cross-bill. A replication was filed, and the case was heard before the judge in open court. He entered a decree as prayed by the complainants. The case is brought here by appeal.

It was stated in open court upon the argument here that counsel for appellants would be content if the decree was reversed as to the forfeiture of the $400. After the hearing in the lower court, the trial judge filed a written opinion, in which the following statements appear:

“ It seems that the abstract of title was returned once or twice to complainants and some corrections made. The abstract of title which complainants finally delivered to Camp or his attorney was delivered April 25, 1907. This was kept by the defendant until August 19, 1907. The objections made to the abstract by defendant’s attorney I do not regard as valid. Besides there was an unreasonable delay in making the objections and returning the abstract. It is evident that defendant knew long before August 19, 1907, just what title complainants could fur. nish and ascertained whether it was satisfactory. * * * The defendant or his attorney well knew, or ought to have known, that complainants had a good title by record to all but 10 acres by adverse possession. The objection under the circumstances was frivolous. My opinion is that the delay in keeping the abstract about five months and in coming to no conclusion was unreasonable and inexcusable. It was not made in good faith by the defendant Camp. A notice that the contract was forfeited was served by complainants on defendant some time before suit was commenced. It appears that the defendant offered to throw up the contract if the $400 was paid back to him, but for some reason refused to make a quitclaim deed to complainants. The complainants, believing that Camp did not intend to buy the lands or was unable to find a purchaser, sold certain portions of the land to other parties evidently in good faith. It also appears that complainants have built three cottages and made other improvements on the lands at a cost exceeding $1,400. It would be impracticable and unreasonable to require complainants, under the circumstances, to accept the payment of $13,600. * * * It is my opinion that the complainants have suffered damage from the delay of defendant; that the defendant was guilty of unreasonable delay in not tendering payment of the contract installments and in not accepting the abstract. I therefore find that the complainants are entitled to keep the $400 as damages, and that they are also entitled to a decree canceling the contract with costs of suit to be taxed.”

In the record the following appears:

“The defendant concedes that the abstract showed-a merchantable title when the same was completed and delivered to the defendant August 19,1907, and the defendant makes no contest on that ground.”

And we have not been able to find that an abstract showing merchantable title was furnished before that time.

If this is correct, it is evident the trial court was in error about the delay after the abstract was furnished. In addition to this, there are two important facts that bear upon the equity of allowing complainants to keep the $400: First, complainants were to sell 60 acres of land to defendants. The land contract delivered by them described but 10 acres of land. Second. The complainants have never delivered possession of the land and now seek to have the land contract canceled, and it was canceled. We do not think it is equitable to allow them to have the use of the land all the time, to have the land contract canceled, and to keep the money paid. See Ford v. Wright, 114 Mich. 122 (72 N. W. 197). The decree as to the $400 should be reversed, and the complainants, as a condition of having the land contract canceled, should be required to repay the $400 with legal interest from the date of its payment.

As before stated, complainants offered to return this $400 if defendants would give a quitclaim deed of the land, and, though they had putthe land contract on record, defendants declined to give the quitclaim deed when the return of the land contract would not remove the cloud upon the title. Under these circumstances, we will not allow costs to either party.

The decree of the court below will be modified as indicated herein and affirmed.

Steere, MoAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit


author: Steere, J.

text:
    DE CARIE v. MARKS.
    1. Attachment — Appraisers — Disinterested Freeholders — County Clerk.
    Having no interest in the outcome of litigation, the clerk of the court is not disqualified from acting as appraiser of attached property.
    2. Same — Certified Copy.
    Omission by the sheriff of his certificate that the copy of the writ and inventory was a true copy, etc., is not fatal to the validity of service of process upon defendant in attachment proceedings, under section 10560, 3 Comp. Laws.

      Certiorari to Presque Isle; Emerick, J.
    Submitted April 10, 1912.
    (Docket No. 51.)
    Decided July 11, 1912.
    Attachment by Oliver De Carie against Mores Marks. An order overruling a motion to quash the service of process is reviewed by defendant on writ of certiorari.
    Affirmed.

      Gonnine & Conmine, for appellant.

      I. S. Canfield, for appellee.
   Steere, J.

This is a proceeding in certiorari, in which defendant asks this court to review and reverse the action of the circuit court of Presque Isle county in denying a motion to set aside service upon said defendant of a writ of attachment, and to quash said writ.

On September 3, 1910, plaintiff, De Carie, sued out, from the Presque Isle county circuit court, a writ of attachment against defendant, Marks, returnable on October 24, 1910. On those dates and for more than 20 years prior thereto said defendant was not a resident of Presque Isle county, but had resided continuously in the county of Iosco, Mich. The alleged grounds for issuing said writ were that defendant had fraudulently contracted the debt and incurred the obligation to recover which suit was brought. On said 3d day of September, 1910, the sheriff of Presque Isle county, under said writ, levied upon certain real estate belonging to the defendant, located in said county of Presque Isle, making an inventory thereof and causing it to be appraised under the statute by two freeholders of the county, one of whom was the county clerk. On the hearing of said motion before the circuit court of Presque Isle eounty on January 9, 1911, there was produced and put in evidence the original files in said cause, including the writ of attachment, with returns of the sheriffs of Presque Isle and Iosco counties, as to the manner in which they had executed and served the same.

To said original writ of attachment was annexed the original affidavit upon which said writ was issued; also, the original certificate of attachment, inventory, appraisal, and oath of appraisers. Attached to said original writ was also the return of said sheriffs thereto. Said return by the sheriff of Presque Isle county was full and complete, stating in detail the various steps taken by him in levying upon certain real estate, making an inventory thereof, and causing the same to be appraised under said writ, containing, among other things, the following:

“And I do further return that I retained the said annexed writ of attachment in my hands from the date of its issue up to and including the 24th day of October, 1910, the return day thereof, and during all of said time made diligent search and inquiry for the within named defendant, Mores Marks, and after such search and inquiry, as aforesaid, I could not find said defendant within Presque Isle county so as to make personal service upon him of the said writ, inventory, and appraisal aforesaid; and I further certify and return that the said Mores Marks has no place of residence, or last place of residence within said Presque Isle county at which place I could leave with any person a true and certified copy of the said writ of attachment, together with a true and certified copy of the inventory and appraisal of the property so levied upon by me, as aforesaid; and that thereafter and on the 19th day of October, 1910, I caused George H. Hadwin, sheriff of Iosco county, Mich., being the county wherein said Mores Marks, defendant, lives, to personally serve true and certified copies of the annexed writ of attachment, affidavit, levy, inventory, and appraisal, aforesaid, upon said defendant, Mores Marks, at Au Sable, in the county of Iosco, State of Michigan. The return of said sheriff of Iosco county is hereto annexed and herewith returned.
“ Charles Pagels, Sheriff.”

Which return of the said Iosco county sheriff, so attached, is as follows:

“ State of Michigan, County of Iosco — ss.:
“ I hereby certify and return that on the 19 th day of October, 1910, I served the hereto attached writ of attachment, inventory, and appraisal on the defendant, Mores Marks, therein named, by delivering to said Mores Marks, defendant, at Au Sable, in the county of Iosco, true and certified copies of the annexed writ of attachment, affidavit, levy, inventory, and appraisal, and at the same time exhibited to said defendant, Mores Marks, the signature of the clerk on said original writ and the seal of the court impressed thereon.
“Fees, $2.60.
“Geoege H. Had win,
“ Sheriff of Iosco County.”

Upon the hearing of said motion to quash the writ of attachment, counsel for defendant produced and put in evidence the papers served upon said defendant by the sheriff of Iosco county on October 19, 1910, as proof that the copy of said writ served upon him was not certified by the attaching officer as required by the statute. The copy served was an exact copy of the original writ and affidavit upon which the same was issued, and had annexed thereto the same certificate of seizure and inventory, oath to appraisers, and appraisal as were attached to the original; said inventory and appraisal being as follows:

State of Michigan, County of Presque Me — ss.:
By virtue of the annexed writ of attachment wherein Oliver E. De Carie is plaintiff, and Mores Marks is defendant, I have this day seized certain lands, tenements, goods, chattels, moneys and effects, of which the following is an inventory made by me, viz.:
INVENTORY.
Appraised Value.
E. £ of lots 1 and 2 in block 4 according to the original plat of the village (now city) of Onaway, Presque Me
oounty, Mich. .........................................$2,500 00
Lot 4 in block 9 in Young’s Add. to the village (now city)
of Onaway, Presque Me Co., Mich.................... 1,000 00
Dated this Sd day of September, A. D. 1910.
Charles Pagels, Sheriff of Presque Me County.
Eugene D’Vinoent,
L. J. Malloy, Appraisers.

On the reverse side of the inventory in each case appeared the oath of the appraisers, subscribed by them and sworn to before said sheriff of Presque Isle county. The circuit judge certifies and returns, in relation to the copy of the writ and other attached papers, so served upon said defendant, that the signature to the above-quoted certificate of seizure and inventory and to the jurat of appraisers “ was the genuine signature of Charles Pagels, sheriff ” of Presque Isle county ¿ and that—

“ There was also indorsed upon said copy a true copy of the original appraisement of the property named in said inventory and signed by said appraisers, Eugene D’Vincent and L. J. Malloy.”

Printed legal forms were used for these proceedings, and upon the back of the inventory of the copy served upon defendant was the following printed form, with dates written in, but unsigned:

“State of Michigan, County of Presque Isle — ss.:
“ I do hereby certify that the annexed paper is a true copy of a writ of attachment to me directed and delivered and now remaining in my hands, and that the forgoing is a true copy of the inventory made by me of the lands, tenements, goods, chattels, moneys, and effects which I have seized by virtue of the said writ.
“ Dated this 3d day of September, A. D. 1910.”

The omission of the sheriff to sign this certificate is the principal and most serious defect relied upon by defendant.

The method of service as made upon defendant by the sheriff of Iosco county at the request of the sheriff of Presque Isle county was not premature and is sustained by Skeels v. Oceana Circuit Judge, 119 Mich. 290 (77 N. W. 996); provided no defect is shown in the papers served.

The contention in defendant’s behalf that the attachment was invalid is narrowed by the argument of his counsel to the following reasons:

(a) Because one of the appraisers was the county clerk of Presque Isle county, who issued the writ and is, for that reason, an interested party.

(b) Because the copy of the writ and inventory served upon defendant was not certified to by the sheriff.

The appraisers are required by the statute to be disinterested freeholders. The return of the sheriff and oath taken by the appraisers show them to be such. The only question raised to the contrary is the official position of the county clerk. No authority is cited in support of this contention, but it is urged that he was officially connected with the case and interested to the extent of his fees. We are unable to sustain this objection. The clerk acts only in a ministerial capacity in issuing writs of attachment; as such he has no interest in the result of the suit. His fees are not contingent thereon. Officially the subsequent proceedings are a matter of indifference to him. The duties of a county clerk and those of ar. appraiser, selected and sworn by the sheriff to appraise property in his custody, are not incompatible. We see no reason why the clerk could not, if otherwise qualified, impartially act in such capacity, the same as any other disinterested, resident freeholder.

As to the second objection, counsel contend that the requirement of certification by the sheriff of the copy served is statutory, and hence mandatory.

It must be conceded that proceedings by attachment are statutory in their inception, and, as such, are to be strictly construed. Having no foundation outside the statute, such proceedings, in all things essential, must conform thereto.

Under the return in this case, was the signature of the sheriff to the certificate indorsed on the back of the inventory essential to the validity of service, or can it be said that, without it, there was an essential compliance with the statutory requirement that the sheriff in executing such writ shall, after seizing and inventorying property of defendant, serve a copy of such attachment and inventory, certified by him, upon said defendant if he can be found in the county, or, if not, causing such service to be made by the sheriff of the county wherein the defendant may be found ? The statute does not prescribe the form of certificate, or manner in which the copy of the attachment and inventory are to be “ certified to by him.” Its purpose is manifestly to fully advise defendant of the nature of the proceedings ágainst him and what property has been seized. Were the copy of the attachment and warrant served upon defendant in this case sufficient and properly authenticated to that end ?

It appears from the judge’s return that the sheriff, under his writ, levied on and seized lands of defendant within his bailiwick; that he made an inventory of the same and caused it to be appraised; that two copies of such inventory and appraisal and certificate of seizure, with the oath and certificate of the appraisers, all personally signed by the sheriff and appraisers, were made out, one being securely attached to the original writ and one to the copy thereof served on defendant. Such copy of the writ, with the original duplicate certificates, inventory, and oaths, personally signed, was personally served on defendant before the return day of such writ, by the sheriff of Iosco county, who makes full return of service, certifying that when he made such service he exhibited to defendant the original writ bearing the signature of the clerk and the seal of the court impressed thereon.

In Leonard v. Woodward, 34 Mich. 514, it is said:

“We cannot think the court failed to obtain jurisdiction of the person of the defendant by reason of the omission of the formal certificate to the copy served. The defect was purely formal, and the certificate to the copy inventory which was served with it could not have left the defendant in any doubt regarding the character of the proceeding. It is impossible that he could have supposed the service to be other than a service of authentic papers.”

The regulations prescribed by statute as to the mode of bringing a party into court are designed for his protection and to enable him, being advised, to take means for his defense if he desires. They must be substantially followed to that end.

It appears from the return of the circuit judge that a true copy of the writ of attachment, to which was annexed a true duplicate certificate of seizure and inventory of the property attached, subscribed officially, in his own handwriting, by the sheriff, together with a true duplicate oath and certificate of the appraisers, signed personally by them, the jurat to said oath, administered by said sheriff, also personally signed by him, was personally served on defendant, before the return day, by the sheriff of Iosco county, who returns that he, at the same time, exhibited to defendant the signature of the clerk and seal of the court appearing on the original writ, a copy of which he was serving. As said in Leonard v. Woodward, supra, it is impossible that he could have supposed the service to be other than the service of authentic papers,” and such papers were sufficient to as fully advise him of the nature of the proceedings and the property which had been levied upon as though the signature of the sheriff had also appeared to the formal certificate on the copy of the writ of attachment served. We think the return in this case shows substantial and sufficient compliance with the letter and spirit of the statute to give the court jurisdiction.

The order of the circuit court in overruling said motion is affirmed.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


author: Steers, J.

text:
    DELOSH v. DELOSH.
    1. Vendor and Purchaser — Bona Fide Purchaser — Notice.
    Possession and occupancy of a house and of real estate is notice to all the world of the claims of such tenant or occupant.

    2. Same — Statute oe Frauds — Oral Contract.
    Complainant’s evidence tending to show that he went into possession of a house and parcel of land under an oral contract with defendant, his father, to care for the latter during his life in consideration of a conveyance to complainant, and being contradicted by defendant, who also testified that he was neglected by the son and son’s wife, that he remained away from home most of the time, furnished his son with supplies on numerous occasions, warranted the trial court in holding that the testimony was not sufficiently clear and convincing to justify a decree overturning the record title.
    Appeal from Wayne; Donovan, J.
    Submitted April 9, 1912.
    (Docket No. 76.)
    Decided July 11, 1912.
    Bill by John Delosh against Vincent Delosh and another for specific performance of an oral contract to convey real property. From a decree for defendants, complainant appeals.
    Affirmed.

      George W. Coomer, for complainant.

      Ari E. Woodruff and Frank W. Atkinson, for defendants.

       Possession of land as notice of title, see note in 13 L. R. A. (N. S.) 49.

   Steers, J.

This suit was instituted by complainant to secure title to a part of lot 1 of Peter Perry’s subdivision of a portion of section 20, in town 3 north, of range 11 west, situated on Perry street in the village of Ford, Wayne county, Mich. Complainant alleges its value, as near as he can estimate the same, to be $600. The clear record title to said property is in defendant Remi Reaume, who purchased the same from defendant Vincent Delosh, father of complainant, in December, 1910, for the sum of $650 in cash, receiving a warranty deed therefor.

Complainant has resided upon the premises since November, 1909, and was in possession at the time defendant Reaume purchased it. Reaume owned property adjacent to this lot and was importuned by Vincent Delosh, who claimed to be the owner, to buy it. Reaume testified that he did not know complainant was in possession, but supposed the father, Vincent, was, to whom he understood it belonged; that, having finally consented to make the purchase and agreed upon a price, he employed an attorney to investigate the title, and ascertained that it stood in the name of Vincent Delosh subject to a mortgage for $200 and some accrued interest; that he paid up the mortgage and gave the balance of the purchase price, amounting to $429, to said Vincent; that he first learned of complainant’s claim when he proposed to take possession of the property, the assertion being made that the father had agreed to convey it to the son in return for care and support; this being denied by the father, Reaume instituted proceedings to obtain possession, and complainant filed this bill. He was granted a temporary injunction restraining proceedings at law to evict him pending this suit.

Complainant in his bill asks that the deed from his father to Reaume be set aside, declared null and void, and ordered canceled; that specific performance on the part of his father be decreed, and he be ordered to convey said premises to complainant. Defendants, in their joint answer, deny the allegations of complainant’s bill, allege that Vincent Delosh was the owner of the property in fee simple, without limitation, on or about December 8,1910, when he sold and conveyed the same to defendant Reaume, for a full and adequate consideration, which was paid, said Reaume becoming the owner as purchaser in good faith for full value.

At the hearing of said suit, the testimony was taken in open court and the trial judge, who saw and heard the witnesses, with -opportunity to note their appearance on the stand and manner of testifying, found the testimony so contradictory and unsatisfactory that he was unable to determine complainant had established his contention by such preponderance of evidence as should appear, to justify overturning a record title. A careful reading of the testimony leads us to the same conclusion. It strongly gives the impression that the witnesses on both sides testify recklessly and in the extreme, exaggerating the facts, and so framing their testimony as to sustain whatever the side they testify for desires to establish.

Defendant Reaume’s claim of ignorance that complainant was in possession of the property could avail him nothing, if true. It is undisputed that complainant was residing there all the time, with his family, in possession, occupying it as a home. This was constructive notice to every one of all his rights in the property, whatever they might be. Hommel v. Devinney, 39 Mich. 522; De Veaux v. Fosbender, 57 Mich. 579 (24 N. W. 790).

It is undisputed that complainant moved upon the premises on invitation of his father, and that complainant was at that time in reduced circumstances from sickness and death in his family. Complainant claims an oral contract to sell or give him the property, and that he took possession as owner. The father denies that any such contract was broached or made, and claims that, as an act of paternal kindness, he allowed complainant, through sympathy with his misfortunes, to shelter himself and family there, going into possession as a tenant by sufferance. As to the nature of the bargain and possession taken, complainant testifies:

“Father said, ‘John, you have had bad luck;’ I had lost a girl 14 and a boy between 10 and 11 in five weeks’ time; I had buried both of them; * I will give you that house;’ he says.. ‘ Go and fix up that house and stop payingrent; fix it up, and I will give it to you;’ and he says, ‘ I will make my home with you.’ After that I fixed up the house and went into possession and he lived with me.”

The father testifies as to this transaction:

“He had a house that he had bought, and he had lost two children, and the house was quarantined, and I went and carried some blankets and pillow cases and some bed spreads and put upon the steps; a man named Le Blanc owned the place where he lived. The way he came to my house was: I says, ‘My boy, you are not out of doors. I have a kitchen, and you can live here.’ I says, ‘You can live here in the kitchen a few days anyhow,’ but I said it was sold to Reaume. ' He came to live with me when he was quarantined. * * * I looked at the house since I came back; there has been nothing done to the house. * * * I did not give that property to my son.
By the Court: Q. Did you will it to him ?
“A. No, sir.
“Q. Did you make a bargain with him?
“A. No, sir.
“Q. Did you make a bargain if he would take care of you?
“A. How could that man take care of me when I was left three days under a blanket poisoned to death ? I cannot depend on him.”

Complainant’s wife and three other witnesses gave testimony as to conversations in which the old man said he had given the place to his son.

We are unable to give this testimony much probative force. It was but random remarks in casual conversation with the others; the wife’s testimony was bitter and manifestly exaggerated. She testifies:

“ He was in the habit of being out all hours of the night; he never came home during the time he stayed with us unless intoxicated; it was something terrible what I cleaned after that old man. * * * I might as well say he was drunk every day and at night when he was out, and it was very seldom he would not go out.”

If this was true, what he said was of little consequence. Complainant lived on the premises 13 months before his father conveyed the same to Reaume. What was done and what the relations of the parties were during that time is difficult to determine from the hostile, exaggerated, and conflicting testimony of the witnesses. Complainant claims to have made repairs on the house, and cared for and supported his fathér. The father, though old, is shown to have been able to work and earn wages as a carpenter, at least a part of the time. He claims that he lived away most of the time, working at his trade; that when home, sick, he was neglected; that, instead of the son caring for and helping him, he helped the son, allowing him to occupy the house, and, at times when he returned from work, furnishing vegetables and other provisions. The son and his wife testified the father was an habitual drunkard, filthy, and annoying. The father in return testified bitterly, in unkind and conflicting terms, as to them. Whatever the truth may be, none of the witnesses have made it clear and convincing. From complainant’s own testimony we conclude that his expenditures would not exceed what he gives as the fair rental value of the property during his occupation. No strong, appeáling equities stand out in his behalf. To go over the testimony in detail would serve no useful purpose.

Complainant has not established the alleged contract, nor its alleged performance on his part, by a clear and satisfactory preponderance of evidence. In such case, when considering real estate, the record title must control.

The decree is affirmed, with costs.

Moore, C. J., and McAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair and Bird, JJ., did not sit.


text:
    MARSHALL v. WABASH RAILROAD CO.
    1. Evidence — Negligence—Carriers—Personal Injuries.
    On the trial of a personal injury action, medical testimony based in part on movements of plaintiff, a practicing physician, under tests applied to his feet, knees, and other parts of his body, and expert opinions founded on lack of responsiveness to tests so made, should have been excluded as to all manifestations or want of manifestations within plaintiff’s power to control; since any movement made by him was equivalent to an oral expression, and plaintiff is presumed to know the responses, etc., indicative of his alleged disorders.
    2. Same.
    As to tests to which plaintiff could not control the responses or manifestations, the opinion of the witness showing what could not be controlled and what could be controlled in part was properly received.
    3. Same — Curing Error.
    Defendant did not obviate or waive the effects of the error by introducing like testimony for the purpose of showing that plaintiff could simulate the effects produced by the expert; and the testimony so improperly admitted tended to prejudice defendant.
    A Same — Nonprejudicial Error.
    Testimony having no probative value, not having a tendency to influence the verdict, was not prejudicial to the defense: nor was evidence that plaintiff could not perform his professional labor while he was confined to his bed: but observations of witnesses as to the decreased number of patients that visited plaintiff’s office after his injury were irrelevant.
    6. Damages — -Extent of Injuries.
    To entitle plaintiff to recover damages for apprehended consequences of an injury, there must be such a degree of probability of such consequences as to amount to a reasonable certainty that they will result from it.
    Error to Lenawee; O’Mealey, J.
    Submitted April 8, 1912.
    (Docket No. 71.)
    Decided July 11, 1912.

      Case by Lewis J. Marshall against the Wabash Railroad Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Smith, Baldwin & Alexander, for appellant.

      F. M. Sala and J. N. Sampson, for appellee.
   Ostrander, J.

A judgment for plaintiff upon a former trial of the cause was reversed. Marshall v. Railroad Co., 163 Mich. 88 (127 N. W. 788). It was reversed because of conduct of one of the attorneys for plaintiff and conduct of the court upon the trial. Attention was called to the treatment of a certain witness by the attorney for plaintiff and his argument to the jury as objectionable. And, as to other errors assigned, it was said no reversible error was made out. The cause has been again tried, and the record presented in this court contains more than 500 pages, including 165 assignments of error. In the order in which these alleged errors are presented in the brief for appellant, the first group involves the competency of certain testimony given by medical witnesses called for the plaintiff.

The first witness testified that he was, shortly before the trial, called to examine the plaintiff for the purpose of giving testimony, and not to treat or advise the plaintiff. He was instructed by the court to omit statements made by the plaintiff and actions of the plaintiff, to state the conditions he found, and his opinion only. He stated the result of his examination, his narrative being frequently interrupted by objections, arguments, motions to strike out, and exceptions. The witness had previously testified that the plaintiff was stripped for the examination, that his general outline was noticed, and measurements of his limbs and body on both sides. His gait was tested. He was laid on a couch and his heart, lungs, his eyes, tongue, and lower extremities examined. He was tested for the knee jerk, a sharp instrument was run over the bottoms of his feet, the legs were tested for sensibility to touch, to pain. An electric current was used to test responsiveness of muscles, lie was made to stoop for and arise with objects on the floor, was made to stand with eyes closed, heel to heel. The tests usually employed in making such an examination were used. The witness, who conducted the examination with or in presence of two other medical men, who also gave testimony, expressed certain opinions concerning the condition of the plaintiff. He also stated his opinion concerning the ability of the plaintiff to simulate, in his actions, responsiveness, or the lack of it, to some of the tests applied. The principal objection to admitting this opinion evidence is that it is based, in part, on manifestations, movements, or the lack of movement, which the plaintiff could control. In various decisions of this court, some of which are here cited, attempts have been made to state and apply the rule for receiving and for rejecting testimony of a similar character. Grand Rapids, etc., R. Co. v. Huntley, 38 Mich. 537 (31 Am. Rep. 321); Laughlin v. Railway Co., 80 Mich. 154 (44 N. W. 1049); McKormick v. City of West Bay City, 110 Mich. 265 (68 N. W. 148); Jones v. Village of Portland, 88 Mich. 598 (50 N. W. 731, 16 L. R. A. 437); Comstock v. Township of Georgetown, 137 Mich. 541 (100 N. W. 788); O'Dea v. Railroad Co., 142 Mich. 265 (105 N. W. 746).

In the instant case it may be assumed that the plaintiff knew what responses and manifestations would be indicative of disorder and would best fit with his allegations of injury. Any movement made by him during his examination was an act, a manifestation, equivalent to an oral expression. As to many of the tests, it was the opinion of the witness that the plaintiff could not control the manifestations, as to others, that he might control them in part; and this opinion it was proper to receive, because the jury is presumed to have had no extra knowledge upon the subject. In McCormick v. Railway Co., 141 Mich. 17, 21 (104 N. W. 390), the testimony condemned was the opinion of a medical witness that the plaintiff was not simulating, that being finally, as of course it must be, a question for the jury. The question was not whether the nature of the test or examination precluded the idea of voluntary manifestations.

In cautioning the witness, the court voiced the proper rule to be observed in such cases, a rule so often stated and so long adhered to in this State that it ought not to be misapprehended. See Comstock v. Township of Georgetown, supra. The witness did not observe the admonition of the court. In so far as he obeyed it, the testimony was competent; in so far as it was disregarded, it was not competent. The point is of large significance in this case, because it is one of the principal contentions of defendant that plaintiff suffered no such injury as he alleges and as he himself details. The verdict was a very substantial one. There is much testimony tending to prove that plaintiff’s injuries were never serious, and that their effects are inconsiderable.

To the argument that the defendant introduced like testimony, it is replied that objection was not made to it, and that the testimony for defendant appears to have been introduced for the broader purpose of proving that such manifestations as the plaintiff exhibited could be and were simulated. The jury was not instructed upon the. subject.

It is to be regretted that the cause must go down again for a new trial, but, upon examination of the record, we cannot say the objectionable testimony was not prejudicial.

We notice some of the objections which may be repeated upon another trial. The testimony of a number of witnesses was offered for the purpose of corroborating the estimates made by the plaintiff of the losses sustained by him in his professional business. In favor of much of it, it may be said that it had no tendency to prove the losses claimed, and probably was not regarded as of value by the jury. It needed no testimony to prove that, when plaintiff was not at his office, he could not be doing business in his office, nor that when.he was confined to his bed, as he describes, he could not be visiting patients. No testimony and no argument is required to prove that, if the services of a professional man are not available, he will not have clients, and consequently will not have an income from clients. No one but plaintiff pretends to know what he earned before he was injured and what he has since earned. In so far as his idleness or inability' to carry on his affairs was the result of injuries, for which defendant is responsible, he should be compensated. But the observation of witnesses, and comparisons made by them, of the number of people visiting the plaintiff’s office before and after the alleged injury is, as a basis for estimating his damages, of doubtful value and relevancy.

The hypothetical question put to medical witnesses by counsel for plaintiff is not open to the criticisms which are made, which seem to be aimed at nonessentials. There is, for example, abundant testimony tending to prove that plaintiff’s head was cut and bled somewhat profusely. Whether the wound was produced by falling against the side of the car, a transom, or a parcel rack is not very material. There was testimony in support of the hypothesis that plaintiff had become flat-footed as a result of the injury.

Nor was it error to admit testimony tending to prove a condition of plaintiff, attributable and attributed to the injury, affecting his health and involving probable future ill consequences. The point was considered in Brininstool v. Railways Co., 157 Mich. 172 (121 N. W. 728), and the rule was stated to be — a rule to which witnesses and the jury are carefully confined—

“That, to entitle a plaintiff to recover damages presently for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury.”

We do not consider errors assigned upon the charge as given. We remark, in passing them, that most of defendant’s requests contain statements and recitals which make them objectionable. Other errors assigned are not likely to arise upon a new trial.

The judgment is reversed and a new trial granted. Costs of this appeal will be taxed as though the printed record contained no more than 250 pages.

Moore, C. J., and Steers, McAlvav, Brooke, and Stone, JJ., concurred. Blair and Bird, JJ., did not sit.