author: Stone, J.

text:
    CAIN v. MASURETTE.
    1. Brokers — Commissions—Sale—When Effected.

      The word “sale” as used in a contract to pay a broker’s commission upon the sale of property is applicable to a written contract for tbe purchase of the property binding both vendor and purchaser, although a formal deed has not been executed. ,
    2. Same — Commissions—Defective Title — Agent’s Knowledge.
    There can • be no recovery by a real estate broker of a commission contracted for upon a sale where the sale is not consummated because of defects in the employer’s title known or which should have been known to such . broker at the time he contracted for a commission, unless it was t^e intention of the parties that the title should be subsequently perfected by the employer in order to be able to perform.

    3. Appeal and Error — Question for Jury — Conflicting Testimony.
    Where defendant testified and plaintiff denied, in an action to recover an agreed commission for effecting a sale of defendant’s premises, that at the time defendant signed the agreement for such sale he stated to plaintiff that if it required his wife’s signature to the deed he could not give it, held, that a question of fact was presented for the jury, and the court erred in directing a verdict for the plaintiff.
    Error to Wayne; Mandell, J.
    Submitted October 24, 1916.
    (Docket No. 47.)
    Decided April 9, 1917.
    Assumpsit by Earl R. Cain against William F. Masurette for broker’s commissions. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      William Henry Gallagher and Francis T. McGann, for appellant.

      William C. Harris, for appellee.

      On broker’s right to commission on failure of employer’s title, see notes in 3 L. R. A. (N. S.) 576; 24 L. R. A. (N. S.) 1182; L. R. A. 1915E, 714; particularly as to effect of broker’s knowledge of defect, see p. 720 of same note.
      On effect of contract expressly making broker’s right to commissions dependent upon “sale” of property or other condition beyond that ordinarily implied, see note in 29 E. ft. A. (N. S.) 533.

   Stone, J.

This is an action in assumpsit to recover commissions claimed to be due the plaintiff for effecting a sale of certain real estate belonging to the defendant. On April 9, 1913, the defendant, at the solicitation of the plaintiff, signed and delivered to the plaintiff the following writing:

“April 9, 1913.
“I hereby offer to sell to C. M. Harmon, or his assigns lot nine (9) of block eight (8) of Crane & Wesson’s subdivision, said premises having a frontage of thirty-eight (38) feet on the easterly side of Elton Park, and a depth of eighty (80) feet along the northerly side of Elizabeth street, for the sum of thirty-five hundred ($3,500) dollars, payable as follows: One hundred ($100) dollars on the acceptance of this offer, and the balance within ten (10) days after delivery of abstract of title showing good marketable title.
“I also agree to give a good and sufficient warranty deed conveying said premises, free and clear from all incumbrances. This offer will hold good if accepted on or before April 12, 1913.
[Signed] “WM. F. MASURETTE.
“I also agree to pay Earl R. Cain a commission of 3 per cent, of selling price in case he effects a salé under above agreement.
[Signed] “Wm. F. Masurette.”
On April 10, 1913, Mr. Harmon assigned said instrument to Timothy R. Donovan (whom the plaintiff had interested in the property) by the following writing:
“In consideration of one dollar I hereby assign the interest I have in the attached agreement to Timothy R. Donovan.
[Signed] “C. M. Harmon.
“4/10/13.”

On the same day Mr. Donovan sent, by the plaintiff, to the defendant the following acceptance inclosing his check for $100, viz.:

“Detroit, Michigan, April 10, 1913.
“Wm. F. Masurette, Esq.,
“Detroit, Mich.
“Dear Sir: As assignee of C. M. Harmon, I hereby accept your offer dated April 9, 1913, to sell lot nine (9) of block eight (8) of Crane & Wesson’s subdivision, price to be thirty-five hundred ($3,500) dollars, payable in accordance with the terms of your offer and I herewith hand you my check for one hundred ($100) dollars.
“Respectfully yours,
[Signed] “Timothy R. Donovan.”

On April 12, 1913, the defendant received said acceptance and accompanying check, and gave to Mr. Donovan the following receipt:

“$100.00. Detroit, Michigan, April 12, 1913.
“Received of Timothy R. Donovan one hundred dollars, payment on purchase price of my property corner Elizabeth and Elton Park as per agreement.
[Signed] “Wm. F. Masurette.”

All of these negotiations were brought about by the plaintiff.

An abstract was duly furnished showing title in defendant. It appeared, however, that the defendant was a married man. His wife was in France. It further appeared that the defendant and his family had formerly lived in Canada; that at the time of the trial below, which was at the January term of 1915, the defendant testified that except for three months while he was in Windsor, he had lived in Detroit continuously for four or five years; that when he came to Detroit his family went to Paris, France. When the question of making and delivering a deed arose, Mr. Donovan wanted the signature of defendant’s wife to the deed. Upon that subject defendant testified as follows:

“I was to deliver the abstract and deed to his [plaintiff’s] office, and did so. I went there for the purpose of closing the deal. It was not closed on account of not having my wife’s signature. I was willing to sign myself and told them so, but they would not take my deed. They suggested sending the papers to my wife. I did so. She was not willing to sign. She was then in Paris. She had never lived in this city up to that time. She came to this country in August, 1913, and to this city in October of the same year. * * * I am not now the owner of that property. I afterwards sold it and my wife joined in the deed. She was then living in this State. The check that I received from Donovan was returned to him about three months later.”

The defendant also testified that at the time of signing the option agreement, he told the plaintiff that his wife was in Paris, and that if it required his wife’s signature he could not “give it to them;” This was denied by the plaintiff, who testified that he did not learn that defendant was a married man until the latter came to his office to close the deal. Before the close of the evidence, defendant’s counsel offered to show that the wife of defendant had never been a resident of this State prior to August, 1913; that in March, 1910, she lived in London, Ontario, and at that time moved to France and remained there, residing there until August, 1913, when she came to this country; that she received the deed sent to her by her husband, and refused to join in the conveyance, until she returned to this country and examined the transaction. The record is silent as to any ruling upon this offer.

Defendant’s counsel also moved for a directed verdict of no cause of action for the reason that the evidence did not show that the plaintiff procured a purchaser who was ready, willing, and able to carry the deal through, it appearing that no claim was made that the defendant’s wife was a resident of the State at the time the deal was projected, so that defendant’s conveyance itself was sufficient to pass title. Said motion was denied and an exception noted, whereupon the court directed a verdict for the plaintiff for $114.60, being the amount of said commissions and the interest thereon, and a judgment was entered accordingly. There was a motion for a new trial by defendant, alleging error in not directing a verdict for the defendant for the reasons stated, and in directing a verdict for the plaintiff. The motion was denied, and the reasons for such denial were duly filed and excepted to. The defendant has brought the case here for review, and the assignments of error raise substantially the same questions that were raised upon the motion for a new trial, and also that the court erred in not submitting to the jury the question whether or not plaintiff had full knowledge of the fact that defendant was able to give only his own deed to said property.

Counsel for defendant state that the following questions are involved:

(1) Where a broker contracts that he shall be entitled to a commission “in case he effects a sale,” Does his right to commission accrue when a contract to buy and sell is signed, or only when the deal is actually completed and title passed?
(2) When a broker is informed of the character of the title which the vendor is prepared to convey, and is informed that any deal must be dependent upon such title being acceptable, if the purchaser secured by the broker refuses to consummate the deal solely because of such defect in title, Is the broker entitled to his commission?

1. An examination of the authorities cited by counsel, and the weight of authority, satisfy us that the word “sale,” as used in an agreement to pay a broker upon sale of the estate, applies to a written contract for the purchase of the estate binding both vendor and purchaser, although a formal deed has not been made. It is undisputed that defendant accepted Mr. Donovan as a purchaser, thus making a binding contract, and defendant receipted to Mr. Harmon directly for the $100 paid on account of the purchase. It is well that we keep in view the object of this suit. It is for commissions claimed to have been earned by plaintiff. The doctrine is well stated by Mitchell, J., in Francis v. Baker, 45 Minn. 83 (47 N. W. 452), where it is said:

; “If, without any fraud, concealment, or other improper practice on part of the broker, the principal accepts the person presented, either on the terms previously proposed or upon modified terms then agreed upon, and enters into a binding and enforceable contract with him for the purchase of the property, the commission is fully earned. The party presented is then a purchaser, within the meaning of the contract between the principal and the broker, although the sale is not completed or executed by payment of the consideration to the vendor. Rice v. Mayo, 107 Mass. 550; Pearson v. Mason, 120 Mass. 53; Coleman’s Ex’r v. Meade, 13 Bush (Ky.), 358; Love v. Miller, 53 Ind. 294 [21 Am. Rep. 192]; Glentworth v. Luther, 21 Barb. (N. Y.) 145; Simonson v. Kissick, 4 Daly (N. Y.), 143; Keys v. Johnson, 68 Pa. 43. In fact the authorities are all one way on this question, the only apparent exception being Richards v. Jackson, 31 Md. 253 [1 Am. Rep. 49], which, however, might have been decided upon the ground that the party presented had never entered into any enforceable contract of purchase, the written agreement containing a provision giving him the option to release himself of all liability by paying a sum of money as a forfeit. This was the ground upon which Kimberly v. Henderson, 29 Md. 512, was decided.”

An agent undertaking to sell, and one undertaking to find a purchaser, are not to be distinguished, as in either case he is required to do no more than find a purchaser who is accepted, and who enters into a binding contract. McFarland v. Lillard, 2 Ind. App. 160 (28 N. E. 229, 50 Am. St. Rep. 234). See 19 Cyc. p. 243, and cases cited in note, including Whitaker v. Engle, 111 Mich. 205 (69 N. W. 493).

2. As we have said, the object of this suit was to recover for commissions claimed to have been earned by the broker in making a sale. While the weight of authority is to the effect that it is no defense to an action brought by an agent against his principal to recover commissions for negotiating a sale of land that the principal does not hold title to the land, or cannot convey a perfect title (see 19 Cyc. p. 240, and cases-cited in note), yet the decisions generally hold that where a broker, who at the time he makes his contract with the owner, knows of defects in the employer’s title, or who knows of facts sufficient to put a prudent person on inquiry, which, if followed with reasonable diligence, would have resulted in such knowledge, he is not entitled to recover where the sale failed because of such facts, unless it was the intention of the parties that the employer should subsequently perfect his title in order to be able to perform. '4 R. C. L. p. 313, and eases cited in note.

It should be borne in mind that defendant testified that, at the time of signing the option agreement, he told plaintiff that if it required his wife’s, signature he could not “give it to them.” While this was denied by the plaintiff, yet it presented a question of fact that should have been submitted to the jury. Appleby v. Sperling, 194 Mich. 681 (161 N. W. 873).

We are of the opinion that the trial court erred in directing a verdict for the plaintiff, and that it should have submitted this question to the jury under proper instructions. By reason of this error we are constrained to reverse the judgment below. The judgment is reversed, and a new trial granted, with costs to the appellant.

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


source: Caselaw Access Project

author: Kuhn, C. J.

license: Public Domain

text:
    BOARD OF EDUCATION OF THE CITY OF GRAND RAPIDS v. BACON.
    1. Municipal Corporations — “Home Rule Act” — Schools and School Districts.
    The “home rule act” (Act No. 279, Pub. Acts 1909, as amended by Act No. 5, Pub. Acts 1913, 1 Comp. Laws 1915, § 3304 et seg.) provides for changing the territorial limits of cities and villages, and not of school districts. Oollins v. City of Detroit, 195 Mich. 330.
    2. Schools and School Districts — Annexation—Statutes.
    In an action by the board of education of the city of Grand Rapids to recover tuition for attendance in the school district of the city, the court below was in error in dismissing plaintiff’s declaration on the ground that defendant was a resident of the school district of Grand Rapids, where the evidence showed that defendant resided in territory annexed to the corporation of the city of Grand Rapids under Act No. 279, Pub. Acts 1909, as amended (1. Comp. Laws 1915, § 3304 et seg.), but that no action had been taken to annex said territory to the school district of Grand Rapids under Act No. 86, Pub. Acts 1909 (2 Comp. Laws 1915, | 5860 et seg.).

    Error to superior court of Grand Rapids; Dunham, 3.

    Submitted April 6, 1917.
    (Docket No. 81.)
    Decided April 28, 1917.
    Assumpsit by the board of education of the city of Grand Rapids against Frank A. Bacon for tuition. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Mark Norris, for appellant.

      Maynard, Freeland & Munshaw, for appellee.
    This is an appeal from an order sustaining a motion to dismiss a declaration in a suit brought by the plaintiff to recover tuition from the defendant for his three children now attending the public schools of the "school district of Grand Rapids.” The defendant denies liability, because he asserts that he and his three children are residents within the territorial limits of the "school district of the city of Grand Rapids,” and that therefore the children are entitled to attend school without payment of tuition. The facts, which are undisputed, are thus stated in the brief of counsel for the plaintiff and appellant.
    “August 28, 1916, the ‘school district of the city of Grand Rapids,’ by virtue of its organic act (title XIV, Act No. 593, Local Acts 1905), was a municipal school corporation having jurisdiction of the public schools within the territorial limits of the ‘city of Grand Rapids.’ The territorial limits of the school corporation and the city corporation were then identical. On that date, ever since, and now, the defendant and his three children were residents outside of those limits, namely, within the territorial limits and jurisdiction of ‘school district No. 9, fractional, Wyoming and Paris townships,’ a school corporation organized under the general school law of Michigan.
    "August 29, 1916, by virtue of proceedings taken under Act No. 279, Pub. Acts 1909 (1 Comp. Láws 1915, §'3304), home rule act, a portion of ‘school district No. 9’ aforesaid was annexed to the corporation of the ‘city of Grand Rapids.’ The portion so annexed included the residence of defendant and his children. Defendant and his children, therefore, from August 30, 1916, to the present time have been and now are residents of the ‘city of Grand Rapids.’ They claim also to be residents of the ‘school district of the city of Grand Rapids,’ asserting that the annexation to the ‘city’ worked ipso facto annexation to the ‘school district of the city.’ At the opening of plaintiff’s schools in September, 1916, defendant applied to have his children admitted to the public schools located within the territorial limits of the ‘school district of Grand Rapids’ as they were prior to the alleged annexation. The children were admitted. They have since attended those schools. During all this period of their attendance, ‘school district No. 9, fractional, of Paris and Wyoming townships,’ had and maintained in the annexed territory a primary, grammar and high school, which defendant’s children might have attended without payment of tuition, had their parents so desired. Plaintiff has demanded payment of the tuition for said children at the rates fixed by its rules for nonresidents of the district. Defendant has refused to pay, claiming to be exempt as a resident of the ‘school district of Grand Rapids,’ within which his children now attend school.”
   Kuhn, C. J.

(after stating the facts). The only question in this case, it is agreed, is whether the defendant, after the annexation and by virtue thereof, became a resident of the “school district of the city of Grand Rapids.” It seems to us that this question is squarely answered by the recent decision of this court in Collins v. City of Detroit, 195 Mich. 330 (161 N. W. 905), which opinion has been handed down since the filing of the briefs by counsel in this case. It was there said:

“A change in the territorial limits of the municipality of the city of Detroit of itself can have no effect upon the school districts within the annexed territory, nor upon the school bonds covering said districts. They will be affected only when action is taken by the several township boards and a committee of the Detroit board of education, under sections 10062-10066, 4 How. Stat. (2d Ed.), (2 Comp. Laws 1915, §§ 5860-5864). We have repeatedly held that education in this State is not a matter of local concern, but belongs to the State at large. Board of Education v. City of Detroit, 30 Mich. 505, 510; Attorney General v. Thompson, 168 Mich. 511 (134 N. W. 722). The ‘home rule act,’ itself relating to the annexation of territory, provides (sections 5447-5450, 2 How. Stat. [2d Ed.]) (1 Comp. Laws 1915, §§ 3309-3312), for the changing of the territorial limits of cities and villages, not of school districts.”

The charter of the city of Grand Rapids, here in question, contains the following provision:

“Sec. 439. The city of Grand Rapids, as it may from time to time exist, shall constitute and be one school district. The board of education of the city shall be its school board. In all respects where not modified by this act, such district and such board shall be subject to and governed by the general school laws of this State from time to time in force.”

It is urged that it was the legislative intent, both expressed and necessarily implied, that Grand Rapids as a school district and Grand Rapids as a municipal corporation should be identical in scope; that the express intent is shown by the section of the charter above quoted, and the implied intent is shown by the interrelations of the school system and the municipality as expressed in other parts of the charter. It must be borne in mind, however, that the charter act was passed in 1905, and that the legislature, by Act No. 86, Pub. Acts 1909 (2 Comp. Laws 1915, § 5860 et seq.), made special provision for altering the boundaries of school districts in cities, and by section 5 of the act repealed all acts or parts of acts conflicting with its provisions. The “home rule act” of 1909, as amended by Act No. 5, Pub. Acts 1913 (1 Comp. Laws 1915, § 3304), the title of which is “An act to provide for the incorporation of cities and fór revising and amending their charters,” provides for changing the territorial limits of cities and villages, and not of school districts.

We think it follows that proceedings to change the boundaries of the “school district of Grand Rapids” should be had under Act No. 86, Pub. Acts 1909. The circuit judge erred in dismissing the declaration, and his order so holding is reversed, with costs to the appellant.

Stone, Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: Brooke, J.

text:
    HOWARD v. HOWARD.
    Cancellation of Instruments — Deeds—Competency of Grantor • — -Sufficiency of Evidence.
    On. a bill for tbe cancellation of a deed evidence held, sufficient to show that plaintiff was competent, notwithstanding her age, at the time she executed such deed, to execute it.
    Appeal from Clinton; Searl, J.
    Submitted April 6, 1916.
    Docket No. 26.)
    Decided May 31, 1917.
    Bill by Lucinda Howard, by her guardian, Jefferson E. Eddy, against Dewey S. Howard and Eunice E. Howard, minors, to set aside a deed. From a decree for plaintiff, defendants appeal.
    Reversed, and bill dismissed.

      Walbridge & Kelley (E. H. Lyon; of counsel), for plaintiff.

      William M. Smith, for defendants.
   Brooke, J.

This case was argued, submitted, and assigned at the April term, 1916, and was reassigned at the April term, 1917. The bill of complaint was filed January 3, 1914, by Lucinda Hoyvard, as plaintiff, by her guardian, Jefferson E. Eddy, against Dewey S. Howard and Eunice E. Howard, plaintiff’s minor grandchildren, children of her deceased son, John E. At the time the bill was filed the plaintiff was 81 years of age, and it is alleged therein that for the last 8 years and upwards “she has been weak and feeble both mentally and physically.”

. The bill prays for a decree canceling a certain deed, bearing date June 24, 1910, and recorded June 30, 1910, by the terms of which the plaintiff deeded to her grandchildren a farm of 80 acres. The deed contains the following provision:

“This deed is given in family settlement, second parties being the grandchildren of the first party, said first party being the survivor under the joint deed of said lands to herself and husband. She reserves to herself the right to use, occupation, and control of said premises during the term of the natural life of first party.”

It is charged in the bill that at the time of the execution and delivery of said deed the plaintiff had no other property, and that the life estate preserved therein was insufficient to provide her actual and necessary expenses during the remainder of her life. It is further charged therein that at the time of the execution of said deed said plaintiff was mentally incompetent to make, execute, and deliver the same. Defendants by their guardian answered, denying the material averments of the bill, and by way of cross-bill assert that they are entitled to a dismissal of the plaintiff’s bill, not only upon the ground of the validity of the deed made by the plaintiff on June 24, 1910, but likewise by virtue of a deed made by the plaintiff and her husband, Stephen M. Howard, November 28, 1906, by the terms of which the same lands as those described in the deed of June 24, 1910, were conveyed by said plaintiff and her husband to said defendants, subject to a life estate therein to their father, John E. Howard. That deed contained the following provision :

“This deed to remain in escrow until after the death of the survivor of the above-named grantors.”

After a hearing upon proofs taken in open court a decree was rendered by the court below setting aside both the deed of June 24, 1910, and that of November 28, 1906. From this decree defendants appeal.

It appears from the record that plaintiff and her husband, Stephen M. Howard, had occupied the farm in question for a great many years as a homestead. They had two children, John E., the father of defendants, and Eliza, who married Samuel Leonard in 1869. On February 24,1904, Stephen M. Howard, then holding complete title in fee to the lands in question, caused the same by appropriate conveyances to be placed in himself and wife as tenants by the entireties. He owned at this time besides the farm in question a house and lot in the village of Grand Ledge valued at about $1,000. At one time he and his wife, the plaintiff, made a deed of the farm to the son, John E., and a deed of the house and lot in Grand Ledge to the daughter, Eliza. These deeds were placed in the custody of Clark & Latting, attorneys, with instructions that they should not be recorded until after the death of both grantors. On November 28, 1906, the plaintiff and her husband went to Clark & Latting and canceled said deeds, and there executed a deed by the terms of which the life estate of the farm went to the son, John E., and the fee to the defendants herein. That was the condition of title to the farm in question at the time of the death of Stephen M. Howard, which occurred on the 10th day of October, 1907. About a year and a half later, and on February 19, 1909, plaintiff made and executed a will by the terms of which she divided the household effects between her grandchildren and her daughter Eliza, and divided the farm in question equally, giving one-half to her daughter Eliza, and one-half to defendants herein. Mr. Lat-ting, the scrivener who prepared said will, was a member of the firm of Clark & Latting, with whom the deed of November 28, 1906, had been deposited. He testified that he advised the plaintiff that he had great misgivings as to her right, her husband, Stephen M. Howard, then being dead, to make a disposition of the real estate covered by the deed. She at that time insisted, however, and the will was executed Thereafter Mr. Latting wrote across the face of said deed the word “Canceled,” and permitted the deed to be taken to plaintiff, in whose presence the following memorandum was written upon the deed:

“On account of my son’s death I have canceled this deed and it shall be of no effect,”

—which memorandum was signed by the plaintiff, and the deed was returned to the custody of Mr. Latting. John E. Howard, the son; had died in May, 1908. On June 16, 1909, less than four months after the execution of said will, plaintiff secured the same from Mr. Latting, in whose possession it had remained after its execution, and destroyed it, and on June 24, 1910, about a year later, executed the deed for the cancellation of which the bill in this case is filed.

The record shows that during the years 1908, 1909, and 1910 one Frank Shadduck had been aiding the plaintiff in the conduct of her affairs. He was a Free Mason, as was likewise Stephen M. Howard, in his lifetime, and his attentions and assistance to this old lady, the plaintiff, seem to have been prompted by a desire to render such fraternal aid as was possible. Referring to the making of the last deed, this witness testified:

“She said she wanted to deed that property again to Dewey and Eunice. I said, ‘Mrs. Howard, I don’t think it is necessary.’ ‘Well, well,’ she says, ‘you know they scared me, and they made me make out a paper I did not want to, and they made me make out a paper,’ and she says, ‘Don’t you know I went over and got that paper, and I burned it up,’ and she says, T don’t know, now; maybe I ought to deed that over again. I want that property left just as Pa and I had it.’ I says, ‘if you are sure that is the case,’ I says, T will take the matter up with the judge of probate.’ I took the matter up with Judge Merrill: I think perhaps she and I had three or four different conversations in regard to the matter, teasing me to see it was' done before something happened, or she might die. I finally came to Judge Merrill and had a talk with him; Judge Merrill drew that paper after talking with me; that paper is dated the 24th day of June, 1910, and is in the judge’s handwriting. That is the time it was drawn. The judge gave it to me. I took it to Quincy. L. Taylor. The certificate on the deed is the 28th day of June. That is the day I went to see Mr. Taylor by request of Mrs. Howard. I took her there and she asked Mr. Taylor to read the deed. I told her the deed was in Mr. Taylor’s hands. I had left the deed with him before that, before I went for Mrs. Howard that day at Quincy L. Taylor’s. When I and Mrs. Howard were there he read the deed by her request, and she re-read .it. She says, ‘That is just as I want the property.’ I lasked Mrs. Howard if she was sure that was just what she wanted, and she repeated over several times, ‘Why, yes; yes; yes.’ She says, T told you all the time that is just the way I wanted it.’ She says we'had better have it recorded so that they could not anybody get it away from her. We were at Taylor’s on that occasion perhaps half an hour. It might have been an hour. It was in the daytime. We left the deed with Mr. Taylor to be sent and recorded. Mrs. Howard ordered Mr. Taylor to have the deed sent back to me. She gave that direction that day to Mr. Taylor in my presence, and the deed was returned from the register of deeds’ office to me.”

Mrs. Quincy L. Taylor, who was present at the time of the execution of that deed, testified as follows:

“I should think they were there from half to three-quarters of an hour. The deed was written out and she had to sign it before Mr. Taylor and Mr. Taylor read the deed to her. Mr. Shadduek he brought her there, Mr. Frank Shadduek; and he was very particular that she should understand just exactly what she was doing, so Mr. Taylor read the deed all over to her, and there was some little business particulars of it that she didn’t understand, and he re-read it, and then he said to her, ‘Are you doing this, Mrs. Howard, of your own free will?’ and she said, ‘Yes, sir; or else I should not do it.’ I think the deed was written out before she came; I think it was. Of course, I didn’t read the deed, but I heard it read. I sat there and heard it read, and she talked about what property she wanted it given to two grandchildren, as I remember it, and that the deed was made out to those children, as I understood it.”

The decree was entered on February 9, 1915, and the plaintiff died October 18, 1915. It is clear from a perusal of this record that the effort to set aside the deed of June 28, 1910, was made, not in the interest of the plaintiff, but for the benefit of her daughter, Eliza, and at the instance of Samuel Leonard, her husband, who guaranteed the costs of the proceedings to the old lady’s guardian.

The learned judge who heard the case, in the court below said:

“If this case were to be determined entirely on the proposition's to whether Mrs. Howard was or was not competent to transact ordinary business when these deeds were made, there is room for the argument made herein that a preponderance of the evidence shows that she was competent, at least at times, but I do not deem it necessary to decide that question.”

We have read this record with care, and are of opinion that the competency of this old lady plaintiff on June 24, 1910, to execute the deed in question was established by an overwhelming preponderance of the evidence. It is true that 414 years later, when the case was heard, her mental condition had so far deteriorated as to make it impossible for her testimony to be taken. The learned circuit judge in his opinion further said:

“This old lady at and before the time this last deed was made had become old and infirm, peculiar and erratic. She was not then insane, but, in view of what happened to her mind later, she was then verging toward insanity. * * *

“At the time this deed was made she had no advice from any attorney as to her rights, nor was she advised by any one, unless possibly by Shadduck, who was then acting as guardian of these infant defendants. However honest Mr. Shadduck may have been, he could not in law act in the interest of his wards and at the same time act for Mrs. Howard. Even where no fraud is shown the- law looks with suspicion on such transactions. Green v. Knoch, 92 Mich. 26 (52 N. W. 80); Zimmermann v. Insurance Co., 110 Mich. 399 (68 N. W. 215, 33 L. R. A. 698).

“The deed was drawn by Judge Merrill, but he did not see Mrs. Howard, and he must have received all his instructions from Shadduck. It is hardly conceivable that any attorney of standing would have advised Mrs.Howard to enter into such an arrangement, and it is quite probable that, had she applied to Judge Merrill, he would-have told her not to -do so; at least, he would have advised her that she was parting finally with all the property she had except the use thereof, and that she must pay all taxes as life tenant, and that if she should become so infirm before her death as to need personal attention before her death, she would have no way of securing the same. None of these things were told Mrs. Howard, nor was she cautioned in any way against, this exceedingly unwise move on her part. From her previous experience she undoubtedly thought she had the right to cancel this deed the same as the others. She was not mentally strong at the time this deed was made. She probably paid little attention to the reading of the deed by the justice. At any rate she parted with valuable property as a gift without fully understanding her legal rights and without realizing that she might come to want because of her act.
_ “I find that the proceeds of the farm are not sufficient to care for this unfortunate old lady, and, under all the evidence here, this deed should be set aside and held for naught, and the title to the property restored to her.”

With these conclusions we are not in accord. While it may be true, as stated by the circuit judge, that at the time the deed was executed in 1910 the plaintiff was “then verging toward insanity,” it would in the same sense be true to say that she was verging toward insanity ten years before that time. She was neither insane nor incompetent at the time said deed was executed. While Mr. Shadduck, who had the deed drafted by Judge Merrill at her request, was not a lawyer, it is entirely apparent from this, record that he was a disinterested and fair witness, and that he acted in that behalf solely upon instructions of plaintiff. She knew exactly what she wanted to do, and she took the necessary steps to carry out her instructions. There is apparently no evidence in the record to justify the conclusion of the court below that:

“She undoubtedly thought she had the right to cancel this deed the same as the others. * * * She probably paid little attention to the reading of the deed by the justice.”

Such evidence as the record contains distinctly negatives both these conclusions. The deed was read in her presence, and she repeatedly expressed herself .to the effect that the disposition of the property made thereby was just as she desired it. She herself insisted that the deed be placed of record. This fact, in our opinion, negatives the conclusion of the trial court that she thought she had a right to cancel it the same as the others.

The conclusion of the court below that “the proceeds of the farm are not sufficient to care for this unfortunate lady, under all the evidence here,” is open to question. Fred Howe, one of plaintiff’s witnesses, testified that the farm was a fair 80, worth $5,000, and that:

“A. It certainly would in my judgment, 80 acres of land; 40 acres of land ought to take care of any person.
“Q. What do you say as to whether you could take that farm and do that?
“A. I think I could.
“Q. Suppose you or any other man was guardian of that woman, take that farm and have it worked on shares- or rent it and have it handled in some proper way, whether or not that farm will maintain and take care of that woman and pay the man who looks after it a reasonable compensation?
“A. It certainly will.
“Q. Is there any reason on earth why it should not?
“A. I cannot see why 80, one-half of it would not take care of one person; it is a pretty good 80, an average 80, not in the best of cultivation, but land that could be made good quick.”

There was other evidence in the case to the effect that the proceeds of the farm would not be adequate to provide the plaintiff with a constant individual attendant, but, even if the conclusion of the learned trial judge is upon this point sound, it is not controlling of the issue under the testimony in this case. We find that the disposition of the farm provided for in the 1910 deed was but a reassertion of plaintiff’s settled intention, as evidenced by the deed executed by herself and husband in 1906. It is asserted by counsel for defendants that defendants’ title may likewise be rested upon the validity of the deed of 1906. Having concluded that their title under the 1910 deed is unassailable, it becomes unnecessary to pass upon the validity of the 1906 conveyance.

The decree of the court below is reversed, and a decree will be entered in this court dismissing plaintiff’s bill, with costs.

Kuhn, C. J., and Stone, Ostrander, Bird, Moore, afid Steere, JJ., concurred. Person, J., took no part in the decision.


author: Fellows, J.

text:
    LADIES OF THE MODERN MACCABEES v. ILLINOIS SURETY CO.
    1. Principal and Surety — Fidelity Insurance — Construction of Contracts.
    A corporate surety for hire, unlike a gratuitous surety, cannot invoke the rule of strictissimi juris.

      2. Insurance — Action on Policy — Notice of Defense — Pleading.
    A surety on an indemnity bond is not required to give notice in its plea of the defense that action was not brought within the time stipulated in the bond, where the bond, which is attached to the declaration, on its face indicates such fact.
    3. Same — Fidelity Insurance — Limitation oe Time for Suit— Validity — Public Policy.
    The provisions of an indemnity hond limiting liability thereon to losses which shall be discovered within six months after the officers, whose defalcations are insured against, cease to occupy their positions and within six months after the expiration of the bond, and requiting suit to be brought within one year after the termination of the bond, are not against public policy, and are valid and enforceable.
    4. Same — Fidelity Insurance — Renewal—Separate Contracts.
    Where a hond of indemnity contains a renewal provision that the bond may, at the option of the company, he continued for subsequent years, by issuing a certificate of continuation duly signed and attested by its proper officers and with its corporate seal attached, and a new consideration is paid for such continuation, the original bond and its renewal constitute two different contracts.
    Error to St. Clair; Tappan, J.
    Submitted June 7, 1916.
    (Docket No. 13.)
    Decided May 31, 1917.
    Rehearing denied September 28, 1917.
    Assumpsit by the Ladies of the Modern Maccabees against the Illinois Surety Company upon an indemnity bond. Judgment for plaintiff., Defendant brings error.
    Reversed.

      Lincoln Avery, for appellant.

      John B. Mcllwain, for appellee.
    This case was submitted on briefs at the June, 1916, term and was reassigned at the April, 1917, term. Plaintiff is a fraternal beneficiary association, incorporated under the laws of this State. Its subordinate lodges are known as “hives.” Each hive has a “finance keeper,” whose duty it is to collect assessments and per capita tax from members and remit the same to plaintiff, also to collect and disburse dues for the subordinate “hives.” While the sum collected by each “finance keeper” is not large, in the aggregate many thousands of dollars pass through their hands. In order to insure the payment and accounting of .these sums collected by the “finance keepers,” the plaintiff applied to and, for an agreed premium, was given a bond by the defendant, a surety company incorporated under the laws of the State of Illinois and authorized to do business in the State of Michigan. The bond was dated December 22,1910, and by its terms became operative March 1, 1911, and extended to March 1, 1912, with provisions for renewal which we shall presently relate. It indemnified plaintiff and the subordinate “hives” from loss, “which loss shall be discovered within six months after the officer, on account of whom claim may be made, shall cease to occupy his position, and within six months after the expiration of this bond.” The eighth clause of the bond is as follows:
    “In the event of any suits at law or proceedings in equity, brought to recover any claim under this bond, the same must be instituted within one year after the termination of this bond, or any period to which it may be continued, or within one year after the officer on account of whom loss has been sustained ceases to occupy the office covered by this bond.”
    The provision with reference to renewal is as follows :
    “This bond may be continued for subsequent years at the option of the company, by issuing in favor of the obligee a continuation certificate or certificates duly signed and attested by its authorized officers with its corporate seal attached.”
    Pursuant to this last-quoted clause, the bond was renewed for a second year. The renewal certificate contains the following:
    “This continuation is granted upon the condition that the representations of the employer made to the company at the time said bond was issued, are to be taken as continuing warranties, and that such of said warranties, as applied to the system of accounting, examinations and audits, as set forth therein, have been strictly adhered to and will be strictly adhered to, and that all examinations and audits therein mentioned have been and will be made, and that the employers know of no reason why the company cannot safely continue its risk on behalf of said employee. It is also conditional on the part of the company that its liability under said bond and this continuation together shall not exceed the amount of said bond.”
    The plaintiff has auditors, who, among other duties, audit the accounts of the “finance keepers.” Many audits were conducted by these officers showing shortages of “finance keepers” of subordinate “hives.” Several of these audits covered the period.from March 1, 1911, to March 1, 1913, and the auditors- who were called as witnesses were unable to state whether the shortages occurred in the period from March 1, 1911, to March 1, 1912, or the period from March 1, 1912, to March 1, 1913, and the court (the case being tried without a jury) was unable to determine from the proofs the exact amount of shortage that occurred in either of the two periods, but found that a portion of such shortage occurred in each period, that the total amount of such shortage was $833.06, which, with interest, amounted to $952.95. He concluded, as matter of law, that inasmuch as the bond by its terms provided for its continuation, and the certificate of continuation provided that all warranties and representation of plaintiff should continue, therefore the bond, as to plaintiff, should be a continuing obligation, and the bond and its renewal did not constitute two obligations, but were to be treated as one. He therefore declined to follow the contention of defendant that plaintiff could not recover for shortages during the period from March 1, 1911, to March 1, 1912, by reason of the fact that the suit was not brought until November 24, 1913, more than a year after the termination of the first period, and rendered judgment for the total shortage, with interest.
   Fellows, J.

(after stating the facts). The defendant’s brief is practically devoted to the discussion of the controlling question, and we shall only consider this question: If any defect exists in the pleadings, the circuit court may, in its discretion, cure it by amendment. It must be and is conceded by the defendant that, inasmuch as it is a corporate surety company executing the bond for a money consideration and engaged in such business for profit, it is not entitled to invoke the rule of strictissimi juris, as might be done by a gratuitous surety. People v. Traves, 188 Mich. 345 (154 N. W. 130); American Fidelity Co. v. State, 128 Md. 50 (97 Atl. 12); People v. Cochrane, 264 Mo. 581 (175 S. W. 599); Standard Salt & Cement Co. v. Surety Co., 134 Minn. 121 (158 N. W. 802 (and authorities there cited); Southwestern Surety Ins. Co. v. Davis (Okl.), 156 Pac. 213; State Agricultural, etc., Society v. Taylor, 104 S. C. 167 (88 S. E. 372); Young v. Bonding Co., 228 Pa. 373 (77 Atl. 623). Its business is essentially an insurance against risk and is commonly called, and properly so, “fidelity insurance.” The obligation sued upon may more properly be termed a contract of insurance, rather than a bond, as it *is called in the record and briefs; but, as the latter term is used throughout the case, we will so style it. > All defenses available to gratuitous sureties may not be available in case of corporate sureties for profit, but such defenses as would be available in actions on contracts of insurance are available here.

It will be noted from the statement of facts that the bond (so called) covered the period from March 1, 1911, to March 1, 1912; that the renewal certificate covered the period from March 1, 1912, to March 1, 1913; that the court was unable to determine the shortage in the respective periods; that the suit was not instituted until November 24, 1913, over a year and nine months after the expiration of the first period; that many of the audits did not take place until after March 1, 1913; and that therefore the shortage was not discovered until more than six months after the expiration of the bond. It is insisted by the defendant that this is not a continuing obligation, that the renewal for the second period constituted a separate contract, and that inasmuch as this action was not brought until more than a year after the termination of the first period and the first contract, and the shortages were not discovered until more than a year after the termination of the bond, it must fail as to the shortage occurring during that period; that the amount of such shortage not being determined, or determinable from the record, the judgment must be reversed in its entirety.

The defendant is not insisting upon the statute of limitations; if it were, it would be necessary to give notice under its plea. It is insisting upon a limitation of the period within which suit may be brought, which limitation, if defendant is correct in its contention, appears upon the face of the bond which is made a part of the declaration. It therefore was not necessary for the defendant to give notice of a defense which was patent from the declaration.

The provisions of the bond limiting liability thereon to losses which shall be discovered within six months after the “finance keepers” ceased to occupy their positions and within six months after the expiration of the bond, and requiring suit to be brought within one year after the termination of the bond, are valid and enforceable provisions. Lyons v. Surety Co., 243 Mo. 607 (147 S. W. 779); Granite Bldg. Co. v. Saville’s Adm’r, 101 Va. 217 (43 S. E. 351); Lombard Invest ment Co. v. Surety Co., 65 Fed. 476. It is for the interest of the parties to these indemnity contracts, and to the public generally, that defalcations of parties holding positions of trust and confidence should be promptly discovered and stopped, and those guilty of such defalcations promptly dealt with. . Provisions tending to bring about such results are not against public policy, but are valid and enforceable.

Do the bond and renewal constitute one contract? If so, this judgment should be affirmed; if not, it should be reversed. We think this question is foreclosed in this jurisdiction. In the early case of Brady v. Insurance Co., 11 Mich. 425, this court had under consideration a policy of insurance which provided for renewals in the following language: “This insurance may be continued for such further time as shall be agreed upon” — to all legal intents and purposes of substantially the same effect as is found in the bond in the instant case; the policy was renewed from year to year for several years. The question before this court was whether such renewals constituted a new contract. This court said:

“We have no doubt that each renewal of the policy was a new contract. Each was upon a new consideration, and was optional with both parties. At the expiration of the year over which the original policy extended, the obligation of the insurer was ended,, and it was only by the concurrence of the will of both parties that the obligation could be continued. This concurrence is manifested by the payment of a consideration by the one party, and a renewed promise by the other; and an obligation revived or continued under such circumstances, is an original obligation. It must be asked for by the one, and may be assumed or refused by the other; and the policy, which is its evidence, is therefore only continued by the positive act of both parties. This is according to the terms of the policy, and of the certificate of renewal; and the fact that the insurance company, by the very terms of the certificate of renewal, required payment therefor, and that such certificate should be countersigned by the resident agent before it should become operative, shows that the company regard the renewal as a new contract, made at their option, and dependent in some degree upon the judgment and knowledge of such agent! Thus, if the agent should find the property depreciated in value, or ■the risk increased from any cause, he could refuse to countersign the renewal receipt, and the promise by the company to renew the policy would be thereby terminated. Now, it is very clear that all such contracts must be mutual, and that where a right is reserved to a party to renew or dissolve an obligation, the determination of such party to renew an expired contract, if accepted by the other, makes an original contract.”

In accord with this holding will be found: De Jernette v. Fidelity & Casualty Co., 98 Ky. 558 (33 S. W. 828); Frost on Guaranty Insurance (2d Ed.), § 40. Not in accord with it will be found: First Nat. Bank v. Fidelity & Guaranty Co., 110 Tenn. 10 (75 S. W. 1076, 100 Am. St. Rep. 765); American Bonding Co. v. Morrow, 80 Ark. 49 (96 S. W. 613, 117 Am. St. Rep. 72); 14 R. C. L. p. 1320.

Unless we are prepared to overrule this case the defendant’s contention must be sustained and the case reversed. We do not feel called upon to overrule this case. Not only has it stood without question, as the law of this State, for over 50 years, but its reasoning is forceful and appeals to us as announcing sound rules of law. Only by a meeting of the minds of the parties is a contract effectuated. Under the stipulations of the bond in the instant case, the renewal did not automatically take place. The plaintiff had to apply for, and the defendant accept, a continuance of the obligation. Neither could compel action on the part of the other. When the plaintiff applied for, and the defendant accepted, the application, both parties became bound for a new term. It was a new contract; its conditions were the same as the original bond, but it covered a new period, was for a new consideration, and sprang into existence by the affirmative action of both parties.

Construing the original bond and its renewal as two contracts, as we must under the authority of the Brady Case, we are bound to construe clause 8 of the bond, quoted in the statement of facts, as requiring that the action brought for defalcations during the life of the bond shall be brought within one year from the termination of bond, and that actions for defalcations, during the continuance of the bond, shall be brought within one year from the termination of the term or period of such renewal or continuance during which they occurred. No other construction can be indulged in if the renewal constitutes a new contract, of which we entertain no doubt.

There is some testimony in the record which tends to show that the parties negotiated with reference to plaintiff’s claim and that defendant agreed to adjust it, and it is. said that defendant is estopped from here insisting upon this defense. But the case was not tried in the court below upon the theory of estoppel, and there are no findings of fact which would permit us to dispose of it upon that theory.

Defendant, in the court below, submitted requests for findings of fact and conclusions of law which’ clearly raised the controlling question. The trial court disposed of the case upon that controlling question and upon an erroneous view of the law.

It follows that the judgment must be reversed, and a new trial granted. Defendant will recover costs of this court.

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


author: Ostrander, J.

text:
    PEOPLE v. WATSON.
    Physicians and Surgeons — Violation of Statutes — Information —Sufficiency.
    An information under Act No. 237, Pub. Acts 1899, as amended by Act No. 368,' Pub. Acts 1913 (2 Comp. Laws 1915, § 6724 et seq.), defining wbat acts constitute the practice of medicine, charging that respondent “unlawfully did engage in the business of practice of medicine, and did practice medicine, within the meaning of Act No. 237 of the Public Acts of the State of Michigan for the year 1899, and the amendments thereto, without before so doing having complied with the provisions of said act” and its amendments, “that is to say, without being then and there the lawful possessor of a certificate of registration or license issued by the board of registration in medicine,” etc., is bad because the general words employed do not fully set forth all of the assignments necessary to constitute the offense; the subject-matter is defined by the statute by descriptive words not employed in the information; and a person may innocently do some things embraced in the definition given in the statute.
    Exceptions before judgment from the superior court of Grand Rapids; Dunham, J.
    Submitted June 15, 1916.
    (Docket No. 131.)
    Decided May 31, 1917.
    J. Alton Watson was convicted of unlawfully engaging in the practice of medicine.
    Reversed and defendant discharged.

      Edward N. Barnard, Prosecuting Attorney, and William K. Chute, Assistant Prosecuting Attorney, for the people.

      C. G. Turner, for defendant.
   Ostrander, J.

The information alleges that respondent on July 22, 1914, and—

“on divers days and times between that day and the 28th day of July, 1914, at the city of Grand Rapids, in the county of Kent aforesaid, unlawfully did engage in the business of practice of medicine, and did practice medicine, within the meaning of Act No. 237 of the Public Acts of the State of Michigan for the year 1899, and the amendments thereto, without before so doing having complied with the provisions of said act” and its amendments; “that is to say, without being then and there the lawful possessor of a certificate of registration or license issued by the board of registration in medicine,” etc.

The exceptions mentioned in the act are negatived. Motion was made to quash the information, upon the grounds that (1) it charged no offense; (2) the act relied upon defines the term “practice of medicine,” and (3) the statutory elements of the defense are not set out, nor any specific acts of respondent, nor (4) any description of the offense, within the meaning and intent of the státute. The motion was overruled, and the objection preserved and insisted upon by various motions made during the progress of the trial. Expressing grave doubts concerning the sufficiency of the information, the trial court permitted testimony to be taken, and a verdict was returned. Other exceptions are relied upon, but, as I think the information bad, they need not be referred to.

The information is bad because (1) the general words employed therein do not fully set forth all of the assignments necessary to constitute the offense; (2) the subject-matter of the offense is now defined by the statute by descriptive words, none of which are employed in the information; (8) a person may innocently do things embraced within the definition given in the statute. In People v. Phippin, 70 Mich. 6 (37 N. W. 888), respondent was charged with violating Act No. 167, Pub. Acts 1883, and specifically with advertising and holding himself out to the public as authorized to practice medicine, and that he did practice medicine without the statute qualifications. The act did not define the term “practice medicine” or “practice of medicine,” and did provide (section 6) that:

“Whoever advertises or holds. himself out to the public as authorized to practice medicine or surgery in this State, when in fact he is not so authorized under the provisions of this act, shall be deemed guilty of a misdemeanor. * * *”

It was held that the offense stated and defined in section 6 of the act was alleged in the complaint. In White v. Lapeer Circuit Judge, 133 Mich. 93 (94 N. W. 601) (a complaint made under Act No. 237, Pub. Acts 1899), the charge was in the words of the statute, and was held to be sufficient, upon the authority of People v. Phippin, supra.

Act No. 237, Pub. Acts 1899, was amended by Act No. 368, Pub. Acts 1913 (2 Comp. Laws 1915, § 6724 et seq.), so as to define the practice of medicine. Under former legislation it had been left to the courts to define — piecemeal, it is true, but nevertheless to define — what was the practice of medicine, by determining whether the proven acts of the person accused of violating the statute amounted to practicing medicine. The legislature undertook to make an exclusive and inclusive definition by enacting:

“In this act, unless otherwise provided, the term ‘practice of medicine’ shall mean the actual diagnosing, curing or relieving in any degree, or professing or attempting to diagnose, treat, cure or relieve any human disease, ailment, defect or complaint, whether of physical or mental origin, by .attendance or by advice, or by prescribing or furnishing any drug, medicine, appliance, manipulation or method, or by any therapeutic agent whatsoever.” (2 Comp. Laws 1915, § 6732.)

Here are the elements of the statute offense, a catalogue of the acts constituing “practice of medicine,” the doing of which makes the actor liable to the statute penalty. Under such an act, to charge one generally with “practicing medicine” is not to sufficiently charge him with a wrongful act. Moreover, as will be pointed out, the foregoing statute definition is itself limited by the title of the act and the measure of the police power of the State. Some things within this statute category may be innocently done. In Locke v. Ionia Circuit Judge, 184 Mich. 535, 539 (151 N. W. 625), this court, speaking by Mr. Justice Steere, said:

“This sweeping effort at definition, with all provisions ‘otherwise’ taken into account, would render criminal numerous gratuitous and humane acts of relief and kindness to the suffering common amongst mankind in all ages and places. The police power of the State, though comprehensive, is scarce adequate to compass the possibilities of such a definition, and it is difficult to discern in the title of the act any warning of a purpose to make such a definition a part of the law of this commonwealth.”

And (184 Mich, at page 540 [151 N. W. at page 625]):

“The issue here'is the validity of this information. It turns, in our opinion, upon the two questions of whether that with which the accused is charged can, in common acceptation and as generally construed by the courts, be regarded as engaging in the ‘practice of medicine,’ and whether the title of the act is sufficiently broad to include the same. !If so, the information is good under the original act, irrespective of the amendments.”

The information in that case charged that the respondent did advertise and hold out to the public himself as being able to treat, cure, and alleviate human ailments and diseases, and claiming to be capable of curing diseases and human ailments, and did then and there, for hire and reward, treat for diseases, prescribe for and advise as to health and diagnosis, and give consultation and advice as to health and disease, divers persons, and did then and there attempt to treat, cure, and relieve human diseases, ailments, defects, and complaints of physical and mental origin, by attendance, advice, appliances, manipulations, divers persons, and did then and there treat and attempt to cure of ailments and disease one Albert Hammond and divers other persons then and there consulting him. The people did not claim that respondent made use of drugs, but that he designated himself a “chiropractor,” engaged in practicing the system of that so-called school, treating his patients by manipulation of the spine and the muscles of the back. The opinion proceeds upon the theory that this was the scope of the information.

It will be at once perceived that the information before us may or may not charge respondent with committing an offense, in view of the definition of “practice of medicine” found in the act and the proper scope of the act, as evidenced and limited by its title; because, since the act has been sustained as valid upon certain limitations of the definition, it is no longer sufficient to charge one with engaging in the business of practicing and with practicing medicine, contrary to the provisions of the statute — the law having been held valid only when applied to such acts enumerated therein as “in common acceptation and as generally construed by the courts” are regarded as engaging in the “practice of medicine.” The rule that in indictments and informations for offenses created by statute it is sufficient to describe the offense in the words of the statute, and that where the words of the statute are descriptive of the offense it is safe to follow the language there used, is a rule which has not been observed by the pleader, since the descriptive words found in the present statute are not used in the information. See Tiffany’s Criminal Law (3d Ed.), p. 365; Enders v. People, 20 Mich. 233; Hall v. People, 43 Mich. 417 (5 N. W. 449); People v. Quider, 172 Mich. 280 (137 N. W. 546); People v. Kennedy, 176 Mich. 384 (142 N. W. 771, Am. & Eng. Ann. Cas. 1916A, 895). Moreover, so long as a person may innocently do some things embraced within the definition given in this particular statute, there is additional reason for particularity of statement of the acts committed in order to apprise the accused of the charge sought to be brought against him.

“The rule that an indictment for a statutory misdemeanor is sufficient, if the language of the statute is used in charging the offense, is limited to* cases where such words fully set forth all the assignments necessary to constitute the offense intended to be punished without uncertainty or ambiguity.” Joyce on Indictments, § 389.

I am of opinion that the motion to quash the information should have been granted. It follows that the verdict should be set aside, and the respondent discharged.

Kuhn, C. J., and Stone, Bird, Moore, Steere, and Brooke, JJ., concurred. Person, J., took no part in the decision.