text:
    BOWEN v. PRUDENTIAL INSURANCE CO. OF AMERICA.
    1. Insurance — Execution of Policy — Commencement of Contract — Delivery.
    Under provisions of an application for life insurance stipulating that the policy should not take effect until delivery to the insured while he was in as good health as the application represented and until payment of the first premium, approval and execution of the policy by the insurer which transmitted it to the local agent for delivery, the premium having been paid, was insufficient to sustain an action for the accidental death of the insured during the day that defendant’s agent received his policy for delivery, under instructions, however, not to deliver it unless decedent’s health was satisfactory.

    2. Same — Application—Contract.
    The application by which a party initiates insurance becomes a part of the policy when it is consummated, and is binding on the applicant as to the time when the policy shall become operative; and it is presumed to have been understandingly made.
    3. Same — Conditions—Life Insurance.
    While it is generally held, in the absence of an agreement to the contrary, that actual delivery is not a prerequisite of insurance, provided the contract is otherwise complete and it is evident the parties intended the contract to be effectual without manual delivery, if an agreement that the policy shall not be in force until actual delivery to the insured exists, it is valid and binding.
    4. Same — Constructive Delivery — Policy.
    And where it appeared that the insured, on paying the premium, received a written receipt which contained a clause stipulating that the payment should not be binding if the insurer declined to issue the policy, and a provision in his application also recited that the insurance policy should take effect only when delivered to the insured while he was in good health, the beneficiary could not recover on a policy which was executed and approved by the defendant insurance company and mailed to its manager with advice not to deliver unless the insured was in a satisfactory state of health, and where he received the instrument on the day of the death of insured and afterwards mailed it to the agent who secured the application. There was no constructive delivery, since the instrument was not transmitted to the local agent for delivery without conditions.
    Error to Montcalm; Davis, J.
    Submitted October 9, 1913.
    (Docket No. 13.)
    Decided December 20, 1913.
    Assumpsit by Myrtle E. Bowen against the Prudential Insurance Company of America on a policy of life insurance. Judgment for plaintiff, and defendant brings error.
    Reversed, new trial refused.

      Kleinhans, Knappen & TJhl, for appellant.

      Walker & Fitzgerald, for appellee.

      The authorities on the effect of a stipulation in an application or policy of life insurance that it shall not become binding unless delivered to assured while in good health, áre collated in notes in 17 L. R. A. (N. S.) 1144, and 43 L. R. A. (N. S.) 725.

   Steere, C. J.

Plaintiff brought this action in the circuit court of Montcalm county - to recover the amount of an insurance policy for $1,000, alleged to have been' issued by defendant on the life of her husband, Eugene T. Bowen, who was accidentally killed on the 28th of January, 1911. Deceased resided in Montcalm county, near Howard City, which was his post office address. Said policy is dated the 24th day of January, 1911, and at the time of the death of deceased was in the hands of Charles McCready, State manager for defendant, located at Wichita, Kan. Defendant was and is a foreign corporation organized under the laws of the State of New Jersey, with its home office at Newark in said State, being authorized to do business in the States of Kansas and Michigan, respectively.

The issue presented is whether or not said policy ever became operative. It is claimed by defendant that it had not yet become valid and binding because of nondelivery.

The facts in the case are practically undisputed. Eugene T. Bowen, deceased, made application on December 27, 1910, for insurance in defendant company, naming plaintiff as the beneficiary. At that time his age on his nearest birthday was 34 years; he having been born on June 29, 1876. He asked to have his policy dated on the day he made his application. The application was solicited and taken by an acquaintance of deceased named Van Ostrand, who was a special agent of defendant, apparently with a roving commission, but working under said Mc-Cready, the Kansas State manager of Wichita. Van Ostrand’s home was in Marion, Kan., and his position with defendant was superintendent of agencies under McCready. At the time of making his application Bowen paid Van Ostrand $21.43, which was an amount equal to the first premium on the policy applied for, taking a receipt, which provided that such payment would in no manner be binding on the company, except that it would be returned in case the company declined to issue a policy on the life.of the applicant. A statement of physical examination for insurance made by a local physician not authorized by defendant accompanied the application; but the defendant company required an examination made by its own medical examiner. This examination was had on January 16, 1911, and the medical examiner’s report'duly forwarded to the home office of defendant. After this was received and approved, the policy in question was prepared, dated January 24, 1911, and mailed on that date, with instructions attached, to said Manager McCready, at Wichita, Kan.

It was received by McCready on Saturday, January 28th, some time during the forenoon. He also received about the same time a letter of instructions, dated January 25th relative to an apparent discrepancy between the statements of age found in the application and report of defendant’s medical examiner. This we regard as unimportant, inasmuch as it appears clearly there was no discrepancy in fact; deceased’s nearest birthday having changed between the time of his application and the time of his last medical examination. Attached to the policy was a red slip of instructions to agents such as the company was in the custom of sending with all its policies and a receipt for the insured to sign. The latter was to be countersigned by the agent delivering the policy. The slip also gave directions not to deliver the policy unless the applicant was at the time in> a satisfactory state of health. On the same day this policy was received by McCready, Saturday, January 28th, Bowen was killed, some time between 2 and 3 o’clock in the afternoon, while working in the field near his home in Montcalm county hauling stumps with a team, having apparently been struck by the root of a stump on which he was working. When last seen alive by his father shortly before the accident on the same afternoon, he was in good health, and had been so continuously from the time he made application for insurance. As far as shown his death was entirely accidental. On Monday, January 30th, McCready, having no knowledge of the applicant’s death, mailed the policy, with the red slip of instructions, premium receipt, and letter of instructions relative to the discrepancy in the age to B. D. Van Ostrand, superintendent of agencies, Topeka, Kan.; that being his business address. Forwarding these papers to the agent who secured the application, for delivery to the applicant according to inclosed instructions, was in pursuance of the usual custom of defendant. Bowen being dead when Van Ostrand received these papers, he returned the same to Manager McCready on February 3d, notifying him of the situation, at the same time remitting the amount paid him by Bowen to meet the first premium. This was sent to Bowen’s family on February 24th, with a request for return-of the receipt for same given by Van Ostrand to Bowen on December 27, 1910. This receipt contained the following clause:

“It is understood that this payment is in no way binding upon the said company, except that said company agrees to return the amount mentioned hereon in case the company declines to grant a policy on the life of said applicant.”

This amount was again sent to McCready on April 11th by plaintiff’s attorney, who insisted that defendant was liable upon the policy under a completed contract of insurance.

Plaintiff’s declaration contains two counts; one alleging delivery of the policy on January 28th to plaintiff “or some person for and in his behalf,” the second basing a claim of liability on acceptance of the application and execution of the policy.

Defendant pleaded the general issue, and gave special notice of defense, alleging agreement that there should be no contract of insurance until delivery of the policy, and that the same was never delivered to said Bowen or any one in his behalf prior to his death or at any other time; also giving notice of payment into court of the money received by Van Ostrand from applicant, a tender of which had been kept alive in the meantime.

At the close of plaintiff’s evidence, and again at the close of all the testimony in the case, defendant’s counsel moved for a directed verdict in its behalf on the ground of nondelivery of the policy. This was denied by the court, and verdict directed in favor of the plaintiff on the ground that there had been full performance on the part of deceased, following which the company had 'executed the policy, transmitted it from the home office to its agent for delivery, and therefore, deceased being in a legal position at the time of his death to have demanded and compelled delivery of said policy, the same was valid and binding.

Plaintiff’s claim that approval of the application and execution of the policy by defendant created a liability in the absence of delivery cannot be sustained. In his application over his own signature, Bowen expressly agreed—

“That the policy herein applied for shall be accepted subject to the privileges and provisions therein contained, and said policy shall not take effect until the same shall be issued and delivered by the said company, and the first premium paid thereon in full, while my health is in the same condition as described in this application.”

This is plain language, easily understood. The application was initiative .of the proposed contract, would become a part of it when consummated, was binding on the applicant, and fixed the time when his policy should become operative and his insurance begin. It is presumed to have been understandingly made. Van Buren v. Insurance Co., 28 Mich. 398; American Insurance Co. v. Stoy, 41 Mich. 385 (1 N. W. 877).

While it is generally held, in the absence of an agreement to the contrary, that actual delivery is not a prerequisite of insurance, provided the contract is otherwise complete, and it is evident that the parties intended it should be effectual without manual delivery of the policy, although the ultimate issue of one was contemplated, it is also well settled that—

“If there be a provision or an agreement that the policy shall not be in force until actual delivery to the insured, the contract is not consummated nor the company bound in the absence of such delivery. 1 Joyce on Insurance, § 98.
“A contract of insurance never becomes complete until the last act necessary to be done by either party has in fact been done, although one side or the other may conditionally bind itself by a proposition which, when unconditionally accepted, ripens the negotiation into a contract. In the case of fire insurance contracts there is often a contract before the policy is issued or before it is delivered to the insured; but this is seldom so with life insurance agreements, because there is usually, in the applications as well as the policies, a stipulation that the policy shall not be binding until delivery to the assured while in good health, and payment of the premium by him. Such conditions are valid and binding and will be enforced.” 1 Bacon on Benefit Societies and Life Insurance (3d Ed.), §272.

A contract of insurance rests upon and is controlled by the same principles of law applicable to any other contract. What the contracting parties intended, mutually agreed to, and their minds met upon, is the measure of their obligations. They could agree that the policy, though approved and executed, should have no effect until delivered, or till a certain . time had arrived, or until some other condition had been performed, and when this is established the courts have no authority to make the contract binding upon either party contrary to their intention and the terms of their express agreement.

Here it was plainly agreed in writing that the policy in question should not take effect until issued and delivered to Bowen while he was in as good health as when he applied for the insurance.

It is contended in behalf of plaintiff that under the circumstances shown there was in contemplation of law such constructive delivery of the policy as complies with the terms of the contract.' This is based on approval of the application, execution of the policy, and mailing it to the general agent in Kansas for delivery. Numerous cases are cited where it has been held that, if the premium is paid or acknowledged, and the policy, signed in accordance with the application, transmitted to the applicant or the company’s agent for delivery, the contract is complete, although the insured failed to receive it; the agent, in case it was sent to him, being regarded as agent or trustee for the insured. Most of the cases so holding are readily distinguishable from the one before us in the particular that the contract of insurance is bare of any provisions that the policy shall not become operative until the same is delivered to the insured while in good health, and it was therefore forwarded for unconditional delivery; the contract being complete in all its essentials, and nothing remaining to be done but put it into the hands of the insured. The principle deducible from those authorities is thus stated, in 1 May bn Insurance (4th Ed.), § 60:

“To constitute a delivery of a policy, it is not necessary that'there should be an actual manual transfer from one party to the other. The agreement upon all the terms, and the issue and transmission to the agent of a policy in accordance therewith, for delivery without conditions, is tantamount to a delivery to the insured.”

Can it be said here' that the policy was transmitted to the agent for unconditional delivery? While the word “issued” is often loosely used in relation to the execution and transmission of a document, issuing and delivering are in this connection equivalent legal terms. A policy of insurance is the formal, written instrument in which a contract of insurance is embodied, and in its nature such as to be within the general rule of law that a contract in writing cannot be varied or altered by parol testimony. When the contract provides that it shall not be operative until the instrument is delivered to the assured, delivery means, as in case of delivery of muniments of title, a surrender of possession and control, the transfer of the instrument from the grantor to the grantee, or some person in Ms behalf, in such a manner as to deprive the grantor of the right to recall it at his option. Bouvier’s Law Dictionary. There are two essentials to such a delivery — an intention to deliver, and an act evincing a purpose to part with control of the instrument. It is difficult to gather such intention from the undisputed facts in this case. The contrary is the natural inference. The policy was not mailed to the insured, who lived in Michigan, nor to a local agent there, but to the general manager of defendant in Kansas, under whom the canvasser who secured the application worked, and who also resided in Kansas. It was sent from the head office to a subordinate office of defendant in due course of business and according to the general custom, addressed to the manager under whom the soliciting agent acted, accompanied by positive written instructions that it should not be delivered to the applicant except upon certain conditions, one of which was that he should be in as good health as when he applied for insurance. This condition the applicant knew of, and had consented to as a part of his contract. It is true that he would not be bound by any secret instructions to the agent, of which he had no knowledge, and in relation to which he had not contracted; but of this condition he did have knowledge ' and had so contracted. That he knew his application was tentative, at the option of defendant, and subject to certain conditions, and that in the regular course of business some time must elapse before his insurance would become effective if finally granted, is clearly indicated. Defendant had once refused to accept the application without a further medical examination, to which he had subsequently submitted, in Howard City, Mich., but 12 days before his death, and the physician’s report had thereafter been forwarded to defendant’s office in Newark, N. J. The instructions sent with the policy are competent and persuasive evidence of an intent tending to negative the claimed inference, from its being mailed to the Kansas manager as a step towards ultimate delivery, that it was in effect sent to the local agent for “delivery without conditions.” Usage and accompanying instructions are proper to be taken into account as aids in discovering intent when considering the question of delivery.

Bowen did not receive the policy, and had no notice that his application was accepted during his lifetime. On the day of his death, and shortly before it occurred, the policy was received in Wichita, Kan., by McCready, who had nothing to do with taking the application . and no previous dealings with Bowen. There were no personal relations between them in connection with placing the insurance which made McCready Bowen’s agent to receive and hold the policy for him. Busher v. Insurance Co., 72 N. H. 551 (58 Atl. 41). Van Ostrand, who had conducted the negotiations, was the only representative of defendant Bowen knew or was known to. To him naturally, and according to the usual custom of defendant, would be intrusted the duty of closing the contract and delivering the policy. He did not receive it until over two days after the applicant’s death, and certainly could not become the agent of one then deceased.

In the numerous cases which have been passed upon by various tribunals where it was shown insurance policies had been forwarded to local agents for delivery, the courts, in determining whether or not there was a constructive delivery and completed contract, have, as a rule, recognized and been guided by the distinction between those cases in which, pursuant to a completed contract, the policy had been forwarded for unconditional delivery and those where, by the terms of the contract, something yet remained to be done by the agent as a condition precedent to delivery.

Authorities are to be found where the claim of constructive delivery has been sustained under the particular facts shown in special cases in which the local agent, through whom the application was made, having received a policy for conditional delivery, after ample time and opportunity in which to act, neglected or failed to make the delivery. The leading cases along that line, and which it is contended are controlling here, are New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 42 L. R. A. 88, 69 Am. St. Rep. 134), and Unterharnscheidt v. Insurance Co. (Iowa), 138 N. W. 459.

In the latter case the application contained a provision that the insurance should not take effect unless the policy was delivered and accepted during the lifetime and good health of the applicant. The applicant resided in Sioux City, Iowa, and transacted the business with a resident agent of the defendant. A policy dated July 8, 1910, was mailed from» the home office of the company to the local agent in Sioux City, with an accompanying letter of instructions not to deliver the same “unless settlement has been received and applicant in good health.” The letter bore date July 19, 1910, and would reach him in due course of mail not later than July 20th; but the local agent left Sioux City July 15th, and did not return until August- 7th following. The letter, with policy inclosed, was delivered at his office, and remained there unopened until his return. Some days after it was delivered at the agent’s office the applicant sickened, and died August 2, 1910. Without attempting to review and reconcile, or fully accepting as applicable to this class of cases, all that is said in that opinion, we fully indorse the controlling, fundamental principle there declared that a party cannot take advantage of his own wrong nor profit by his own delinquencies, upon which ground the decision could well rest under the circumstances shown. It also finds support in an Iowa statute referred to. Among other things, the court said of delivery to an agent:

“It is quite obvious that this may or may not be true according to the circumstances under which the policy is placed in the agent’s hands. If the premium is paid when the application is presented, and such application is approved and policy executed as of that date, and nothing remains but to deliver the paper to the insured, it may well be held that the sending of it to the agent to be by him given over to such insured person constitutes a sufficient delivery in law. To say the least, the neglect or omission of the agent under such circumstances to perform the manual act of placing the policy in the hands of the insured will not serve to suspend or postpone the obligation of the company upon its contract. In other words, delivery in law is not necessarily manual delivery. * * * In other words, the applicant had complied with all the requirements of the contract on his part and was entitled to receive the policy. He was not responsible for the voluntary absence of the agent, and his rights cannot be abridged or lost by the failure of the agent to perform his duty in the premises. * * * Our statute relating to life insurance provides that, where an .applicant submits to medical examination by the company’s physician, and is pronounced a fit subject of insurance, such company, in the absence of fraud, shall be estopped from pleading that the insured person ‘was not in the condition of health required by the policy at the time of the issuance or delivery thereof.’ Code, § 1812. No fraud is pleaded, and none is shown in testimony.”

In New York Life Ins. Co. v. Babcock, supra, which is quoted from extensively and followed in the Unterharnscheidt Case, Babcock made application for insurance to the local agent at Dalton, Ga., where both resided. He paid the first year’s premium, and took from the agent a receipt therefor, which provided that the company assumed no responsibility except to return the money, unless, among other things, the policy was issued, and delivered to him while in good health. The application which he signed- contained no such condition. In its opinion the court intimates that the condition in the receipt as to delivery while in good health was no part of the contract, but thereafter discusses certain aspects of the case as though it was. The application was approved, and a policy executed and mailed to the local agent at Dalton for delivery, without instructions and unconditionally so far as shown. It was received by the local agent about 2 p. m. November 30, 1895. Babcock’s office was near by the agent’s; but no effort was made to deliver the policy to him, and it remained in the agent’s possession until after Babcock’s death, he having been shot and killed in his office on the afternoon of December 1, 1895. The court, after declaring the rule that “the fundamental question to be determined in legal construction of all contracts is, What was the real intention of the parties?” discussing the condition in the receipt, said:

“Assuming that this condition constitutes a part of the agreement between the parties, it then becomes a material question as to whether or not such delivery was effected before the death of the insured. This is also a question of intention, and must be determined from the facts and circumstances in this case. * *
* On the other hand, where a person parts with dominion and control over a thing by transmitting it, for example, through the mails or otherwise, with the intention that it shall pass unconditionally into the hands of another, and in the course of transportation it has become lost, the delivery is nevertheless complete in law.”

The court then, after reviewing numerous authorities and discussing them at length, apparently concludes from the facts in the case before it that the company intended to and did forward the policy to its local agent for unconditional delivery, saying:

“When his application was accepted at the home office in New York, and a policy issued thereon was placed in the mails for the sole purpose of ultimately reaching his hands, the company parted with its possession and control of the paper. The intention to deliver was complete.”

A statutory provision of that State is also referred to as having an important bearing; the court saying:

“But the contract may be otherwise proved, and when it is shown to be in writing, it is ordinarily binding upon the company, though there should be no delivery whatever, either actual or constructive, of the policy, and though it should remain in the hands of the company. This principle is settled by the provisions of our statute, which declares:
“‘Such contract [fire insurance], to be binding, must be in writing; but delivery is not necessary if, in other respects, the contract is consummated.’ Civil Code, § 2089.
“By section 2117 of the Civil Code the same principle is made applicable to life insurance.”

In the concluding paragraph of its opinion the court says:

“In any view then that we take of this case, whether the receipt given by the local agent to the applicant constitutes a part of the contract of insurance or not, the defendant company was liable. The insured had complied with every condition and had done everything required of him in order to obtain insurance upon his life. The company had unconditionally accepted his application and issued a policy to be unconditionally delivered to him. That policy was received by its local agent who, through negligence or in disregard of his obligations both to his company and to the other contracting party, failed, without excuse and without authority, to hand the policy to its real owner. In consequence of this failure and negligence, the company contends it is not liable. It thus seeks to take advantage of the wrong of its own agent, by virtually pleading his negligence as a defense to this action.”

The strong, sound, underlying principle in both of the foregoing decisions, and which standing alone justifies the results reached, is that the defendants could not escape liability by relying on their own wrongs, and are estopped by their misconduct and negligence, or that of their local agents through whom the applications were made, from denying a delivery which they should have made,' and therefore the court could and did say that there was a constructive delivery.

The facts here differ in material particulars from those shown in the two cases just referred to, and we have no such statutory provisions in this State as gave support to those decisions. We find nothing in this case to take it out of the general rules applicable to insurance contracts as digested, from prevailing authorities cited, in 25 Cyc. pp. 718, 719. It is there said:

“Likewise the placing of the completed policy in the hands of the agent for delivery without condition to the insured completes the contract, although the actual delivery by the agent to the insured is not made before the death of the insured. But if the- delivery to the agent of the company is with the understanding that it is to be delivered by the agent to the insured only after the performance of some condition, then until the condition is performed and it becomes the duty of the agent to deliver the policy to the insured the contract is not completed. * * * It is a usual condition of a life insurance policy that the delivery shall not be effectual to create a binding contract unless the insured is alive and in. good health when the policy is delivered and the first premium paid, and under such conditions the death of the insured before the delivery of the policy will prevent its becoming effectual. And this is true, even in the absence of such a condition, if the policy is not to take effect until delivery, for the death of the insured makes a subsequent contract with him impossible.”

A leading case supporting the rule that conditional delivery to the agent is not delivery to the applicant is McCully’s Adm’r v. Insurance Co., 18 W. Va. 782, in which deceased applied to the local agent of his home city, Wheeling, W. Va., for a policy of $1,000 life insurance. The application which he signed contained a provision that “this application shall be completed by delivery of the policy.” A policy was sent to the local agent about September 1st. It contained a provision that it should take effect when countersigned by the local agent. It was not countersigned by the agent, nor ever delivered to the applicant, who was taken ill after the policy was received by the agent, and died on September 28th. Various questions were raised in the case; but it was disposed of on the ground that there was no completed contract of insurance because the policy was not countersigned by the agent nor delivered to the applicant. The court said in part:

“All of these conditions, whether wise or not, reasonable or unreasonable, are within the power of the insurer to impose; The insurer is not bound to accept the proposal made, and may impose such additional requirements to create the contract, as it sees fit. * * *
“The applicant in this case agreed that no contract should be consummated except upon delivery of the policy. This was a most important stipulation. Many troubles might arise between the application and the delivery, which would induce the company not to contract. The party’s health might fail, his habits might become such as to make him an undesirable person to insure.' It might be ascertained that the answers made in the application to important questions were untrue. * * * It seems to me, therefore, that, if the.policy in this case had not in fact been delivered to McCully, no contract had arisen between him and the company. * * *
“In no view of this case can I see that a contract was at any time consummated between the parties. The mere sending of the policy to the agent did not make the contract. Beyond the policy itself there was no evidence of a willingness to contract. It is unlike those cases where there was an antecedent completed contract, and the policy was but the mere formal expression of the previous contract. * * * McCully had no notice, actual or constructive, of the acceptance of his proposal; and according to the authorities at any time before such notice, if there had been an acceptance, it could, have been withdrawn. The conditions upon which by the terms of the policy it was to take effect, were never complied with; and the negotiations between the parties were never terminatéd by a mutual agreement between them.”

That case was more favorable to plaintiff than this in the particular that the policy was in the hands of the local agent through whom the business had been transacted at a time when the applicant was alive and well; while here the special agent who took the application was not located in the same town, or State, and did not receive the policy during the applicant’s lifetime. There is nothing in this case to indicate that Bowen was in any way deceived or misled, or that he understood he would be insured until his policy was delivered to him while in good health as agreed in his contract.

We are constrained to hold, under the documentary history and undisputed facts of this case, that the tentative contract of insurance was never consummated by delivery of the policy to the applicant during his lifetime.

The judgment is therefore reversed, and no new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WEADOCK v. SWART.
    1. Evidence — Trial—Conclusion.
    A question which called for the conclusion of a witness was not erroneously ruled out at the trial, where the facts on which it was based were before the jury and they could draw all proper inferences.
    2. Innkeepers — Hotels — Locks — Negligence—Stolen Property —Evidence—Admissions.
    Where the plaintiff brought an action for the value of his watch and charm that had been stolen from him while he lay asleep and his companion was temporarily absent from the room of defendant’s hotel, and the evidence showed that there was only one key to the room so that the lock could only be fastened on the outside by the other guest in leaving, the court erred in refusing to admit testimony relating to admissions made by a detective and the secretary employed in the hotel, tending to show that other robberies had been committed shortly before, which was unknown to either guest: it was material on the questions of suitability of the locks and plaintiff’s contributory negligence.
    3. Constitutional Law — Innkeepers—Validity op Act — Statutes.
    Act No. 42, Pub. Acts 1905 (2 How. Stat. [2d Ed.] § 4204), limiting to $250 the liability of an innkeeper who maintains in his establishment a suitable safe for the deposit of valuables, is not invalid as class legislation.

    4. Innkeepers — Guests—Liability por Theft — Negligence.
    That plaintiff, who occupied a bed in the same room with his companion on an outing trip, paid the hotel bill for both on the morning after his property was stolen, being afterwards reimbursed, did not charge plaintiff with the duty of taking notice that his friend had left the room, although he was asleep at the time and knew nothing about the matter; the trial court erred in charging the jury that plaintiff must take notice of what the other guest was doing.

      §. Same — Ornaments—Damages.
    And plaintiff was entitled to recover for the loss of an Elk’s emblem attached to his watch chain up to the statutory limit of $250 for both watch and charm.
    Error to Wayne; Mandell, J.
    Submitted November 25, 1913.
    (Docket No. 17.)
    Decided December 20, 1913.
    Case by John C. Weadock against William C. Swart and others for the loss of property stolen in a hotel belonging to defendants. Judgment for defendants. Plaintiff brings error.
    Reversed.

      Thomas A. E. Weadock, for appellant.

      McNamara & Scallen, for appellees.

       The question of the effect of a statute limiting innkeeper’s liability for goods not delivered into his custody is discussed in a note in 22 L. R. A. (N. S.) 577.

   Moore, J.

This case has already been before this court, and is reported in 163 Mich. 602 (128 N. W. 734, Ann. Cas. 1912A, 959). Upon the second trial the case was submitted to a jury, which returned a verdict in favor of defendant. A reference to the opinion when the case was here before will make a long statement of facts unnecessary. In addition to what is there stated, it should be said that plaintiff testified upon the second trial that when the room was assigned to him he did not know there was but one key, and that he supposed the lock upon the door was an ordinary lock which could be locked or unlocked from either the inside or the outside of the door by the key that went with it; that he locked the door before going to bed. He also testified, in substance, that he was asleep when Mr. Loranger left the room, and did not know that he was about to leave the room.

The first assignment of error was based on the court’s exclusion of the question: “In case of two men occupying the same room, how could they get in or out with such locks as that?” — referring to the lock that was in fact on the door. This was objected to as incompetent and immaterial, and the court said:

“The Court: I will exclude it. Note an exception for plaintiff. An inference can be drawn from a statement made as to the possibility.”

We do not think this was error because the lock had been fully described, and the jurors could draw all proper inferences.

The second assignment of error is based on the court’s excluding the question whether anything was said next morning, after the robbery, about other robberies in the Cadillac hotel shortly before this one. The house detective and secretary of the hotel were then discussing the robbery complained of here with the plaintiff. This was directed to what the hotel authorities said. If it was a fact that recent robberies had occurred which had not been traced, and two guests were put into a room with a lock having but one key, and so made that, if one guest left the room though but for a moment, he could not lock the door as he went out, without making a prisoner of his fellow guest, and the guest about to leave the room, learning the situation as to the lock, which was unknown to the sleeping guest, and to avoid locking him in, left the door unlocked whe<p. he was to be absent but a few moments, and the fact of recent robberies was known to the landlord, but unknown to either guest, neither of whom was told of this situation, these facts bore, not only upon the suitability of the locks, but also upon the question of the negligence of the guests.

The language of Justice Hooker in Kerlin v. Swart, 143 Mich. 228. (106 N. W. 710), is in point:

“If the defendants knew the condition of the fire escape, as it must be presumed that they did, and the plaintiff did not, as seems probable, they owed it to him to protect him from its dangers, by seeing that they were made known to him, thereby apprising him that more than ordinary care was required, unless such dangers were obvious. The fact that there had been an entrance there would have been unimportant, had the caution been given in another way, but, on the other hand, information of the theft would have tended to produce the effect of adequate care. As the defendants were insisting that the thief entered through the window, and that it was made possible by the neglect of plaintiff to fasten it, it was proper for him to excuse his failure to lock the window by saying that he had no occasion to resort to unusual and apparently unnecessary precautions.”

The other questions involved relate to the charge of the trial judge. The jury were instructed that in .no event could there be a recovery for an amount in excess of $250. Counsel say this was wrong, for the reason that Act No. 42, Public Acts of 1905 (2 How. Stat. [2d Ed.] § 4202), is class legislation, and for that reason is unconstitutional. This is the same act that was before us when this case was here before. Like legislation has been in existence a long time, and we are not inclined to sustain this view of counsel for the appellant.

As bearing upon the question of plaintff’s contributory negligence the judge charged the jury, among other things, as follows:

“With regard to that question the plaintiff in this case urges that in what he did, going as a guest in company with his associate and friend, that he acted as an ordinarily prudent man would have acted under like circumstances. That is his claim, stated in different language; that he was not guilty of any negligence that might have contributed to the result. That claim of his, however, is stoutly and strenuously contested by the other side, and they urge just as strenuously that the circumstances of his remaining in the room when the door was unlocked was an act of negligence on his part, and that an ordinarily prudent man would not have acted in a similar way under similar circumstances. That is a disputed question of fact, and I charge and instruct you that if you are satisfied from the evidence in the case that the circumstances as revealed by the evidence show negligence on the part of the plaintiff, the plaintiff cannot recover for any of the articles he seeks in this case to recover for. If, however, you are satisfied by a fair preponderance of evidence, and the burden is upon him to establish his case that he acted on his part as an ordinarily prudent man would have acted under similar circumstances, then he can recover for the value of the watch and the chain and the $12 in money, and if, further, he has established by a fair preponderance of evidence that the lock on this door is not a suitable lock, and I use the word ‘suitable5 because it is the word used in the statute, then he can recover, further, for the value of this charm. If he has failed to do that, there can be no recovery for that. If it has been shown by the evidence, or to put it in another way, unless he has shown by a fair preponderance of evidence that he was free from contributory negligence on his part, he could recover for nothing in this case. If he has shown by a fair preponderance of evidence all the things I have said were necessary to show in order to recover, he should recover for all the things suitable to be taken to his room which would not be necessary to be deposited in the safe. It is undisputed with regard to the ornament that there was a suitable vault furnished for the use of guests, and it is undisputed' that there were suitable and proper notices of that fact published in the various rooms and corridors of the Hotel Cadillac, but it is in dispute whether a suitable lock and bolt was furnished on the door in question, and if you determine that question that is in dispute as to the suitable lock, and you find in favor of the plaintiff — that is, that there was not a suitable lock or bolt furnished — and, further, that he was free from contributory negligence, he could recover for that ornament. Otherwise, of course, he could not. _
_ “I have been requested to charge you by the parties in this case, and I have covered both of them. I will give you the plaintiff’s fourth request, that a watch and chain in common use are not jewelry; a watch is neither a jewel nor ornament, as these words are used and understood in common parlance. I think it is not necessary for me to go further with that. It is the duty of an innkeeper to provide honest servants. I think that goes without saying.
“The burden of proof is upon the plaintiff to show that he availed himself of the protection and use of the locks and bolts on room 169 while occupied by him on the night of July 2d, and the morning of July 3, 1906, and used ordinary diligence in the protection of his property.
“If you find from the evidence in this case that plaintiff’s loss was occasioned by reason of his own negligence, then your verdict will be for the defendant.
“Under the evidence in this case there can be no recovery for the loss of the Elk’s charm, valued at $200, which it is admitted by the plaintiff was a solid golden jewel, unless you find the lock and bolt furnished on the door of the room was not a suitable one under all the circumstances of the case.
sfc ❖ M: * * *
“Mr. T. A. E. Weadock: I call your honor’s attention to what the Supreme Court said about keys and locks, and the fact that this room was to be occupied by two men.
“The Court: I think that is a subject for argument, rather than a subject of instruction. * * * With reference to the question of the suitableness of the lock in question, it is for you to take into consideration, and you should take into consideration, all the surrounding circumstances and the necessity of the peculiar situation that has been revealed by the evidence-in this case. You understand what a lock and a bolt is. You will understand that a lock without a key is useless under certain circumstances and conditions, and these matters and all other matters concerning the situation that a guest in that hotel might be put in, whether alone or with a companion, will be taken into consideration by you in determining the question which is a disputed question of fact of the suitableness of the locks and bolts upon the door of the room that was occupied by Mr. Weadock on the night in question.
“Mr. T. A. E. Weadock: I except to the refusal to charge as requested by the plaintiff, and to the charge on the subject of the ornament, and estimating the part of the watch chain as an ornament, and I except to the charge that in no case could the recovery exceed $250. I except to the charge on the subject of suitable locks, and I except to the charge on the subject of contributory negligence.
“Whereupon the jury retired, but not having agreed on a verdict, the said jury was brought in at 4 o’clock p. m., in the absence of plaintiff’s counsel.
“The Court: Have you agreed upon a verdict?
“Foreman: No, your honor.
“The Court: What is the difficulty; is it a question of law or fact?
“A Juror: It is hard to say.
“The Court: I cannot help you if it is a disputed question of fact.
“A Juror: It is a question of fact.”

(The court then dwelt upon the importance of having a verdict.)

“I feel obliged to send you back.
“A Juror: Could you explain a little more fully contributory negligence?
“The Court: Contributory negligence is that class of negligence which arises in a case where a person who seeks to recover is himself guilty of negligence. As applied to the facts and theories in this particular case, it means this: Mr. Weadock claims that he was careful and prudent in what he did. The other side claim that if there was a loss sustained by Mr. Weadock, it was sustained by reason of his own negligence. Now, if after scanning and studying all of the evidence in the case, you reach the conclusion that Mr. Weadock was negligent, then that kind of negligence would be in law contributory negligence; that is, if it contributed to bringing about the result which followed. His claim is that he acted in everything that is disclosed by the evidence in a careful and prudent way, or as an ordinarily prudent person would, under like circumstances; that is, like circumstances that have been shown by the evidence to have existed would have acted. The claim, on the other hand, is just to the contrary. They claim that the record of what occurred at that hotel on that morning disclosed that Mr. Weadock was negligent; that he was careless, and did not act as an ordinarily prudent man would have acted under like circumstances. They claim that he, should have gotten up and locked the door, and if that door had been locked this robbery would not have occurred, and the loss would not have occurred. His answer to that is that he was asleep at the time. They claim that if his companion was to leave the room, he should have been awakened so the door could have been locked. In determining whether the charge of contributory negligence is established, you should take into consideration everything that has been said here from the witness stand that will show you what the real situation was, and then say whether, under- the circumstances, Mr. Weadock acted as an ordinary man should act. If you answer that question no, then he cannot recover in this case. If you answer it yes, then you have to consider the other principles of law that I have stated.”

Counsel for appellee says — we quote from the brief:

“I assume, as a legal proposition, that the act of the plaintiff’s roommate was his own act, so far as this case is concerned, for the reason that it was the plaintiff who applied for and to whom this room was assigned and subsequently paid for it. If he chose to have his friend, Mr. Loranger, share it with him, that was his concern, not ours; and, for the purpose of this case, Mr. Loranger’s acts are his acts.”

We hardly think this position is justified by the record. It is true the record leaves the question in doubt as to who registered. It does appear that the two guests desired to be assigned to a room with two beds in it, and that at this time nothing was said about the key. It also appears that when the plaintiff had occasion to go to the room for the night, he was told Mr. Loranger had gone to the room, and that he found him there, and that plaintiff locked the door before retiring. It is also true plaintiff testified that he paid the full hotel rate for both Of them the next morning, but he explained that this simply happened; that Mr. Loranger was not his guest; that they were both going the same trip for an outing, and that each one paid his own bills; that when it happened as it did this morning to be convenient for one to pay for both, they afterwards adjusted it so that each one paid his own bills. This being the situation, we think the judge erred in charging in effect that the plaintiff must take notice of what Mr. Loranger did when he had no notice of what he was doing, or about to do, or failed to do. This put upon the plaintiff too high a degree of care.

There is one other subject to be alluded to, and that is the Elk’s emblem. The evidence is that this had been given to the plaintiff by his fellow Elks, that it was the insignia of the order, and served to identify him at a glance as a member; it was attached to his watch chain, which in turn was attached to the watch. The question of liability for the loss of this emblem was not raised when the case was here before, but we think it may be regarded as part of the equipment of the watch, for which a recovery might be had, but the total liability to be limited to $250.

For the reasons stated, the case is reversed, and a new trial ordered.

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


text:
    COBBS & MITCHELL v. BOYNE CITY TANNING CO.
    Sales — Contracts—Interpretation.
    Under an agreement for the purchase of hemlock bark taken from lands in the lower peninsula, which produces better bark than that obtained from timber in the upper peninsula, the contract providing that the price should he determined by the average contract price paid by tanners in certain specified markets in their first large contracts for the year, the price paid for bark obtained from the southern peninsula should be the basis, and not the price of bark from • the northern peninsula, which was less valuable.
    Error to Kent; Brown, J.
    Submitted October 10, 1913.
    (Docket No. 14.)
    Decided December 20, 1913.
    Assumpsit by Cobbs & Mitchell, a corporation, against the Boyne City Tanning Company for goods sold and delivered. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Clapperton, Owen & Hatten (J. E. Converse, of counsel), for appellant.

      Norris, McPherson & Harrington, for appellee.
   Moore, J.

Plaintiffs have been selling to defendant hemlock bark since 1901, on an average of something more than 2,000 cords a year. In 1910 the plaintiff delivered 886 1/128 cords. There was paid thereon $8,500. A dispute arose as to the balance due. Litigation followed, and the case was tried before the judge, who made findings of fact and law and gave judgment in favor of the plaintiffs in the sum of $1,335.93. The case is brought here by writ of error.

The suit involves the construction of a written contract, the material parts of which are as follows:

“Witnesseth: That whereas, said party of the second part contemplates the erection and operation of a tannery at Boyne City, Michigan, and desires to secure a supply of hemlock bark from time to time for the purpose of carrying on his tannery operations, and whereas said party of the first part hereto, are the owners of land in various counties contiguous to Boyne City, which lands contain a. considerable amount of standing hemlock, it is therefore agreed by and between the parties:
“(1) And whereas, the Boyne City & South Eastern Railroad have agreed with said Cobbs & Mitchell, Inc., to accept said first party’s hemlock bark, on cars at the junction point of said first party’s railroad with the Thumb Lake Branch of said Boyne City & South Eastern Railroad, and to deliver said bark, during the life of this agreement, at fifty cents per cord to the tannery siding of the tannery at Boyne City, Mich., to be erected by W. S. Shaw as aforesaid:
“That the said first parties in consideration of the agreements by said second party, hereinafter contained, to be performed by him, hereby agree that they will sell to said second party such hemlock bark as may be peeled by them from year to year from said lands contiguous to Boyne City — except in case lumber conditions should be such that said first parties may consider it to their disadvantage to cut and peel hemlock in any one year, and also excepting such bark as may be taken from lands owned by said first party east of the Michigan Central Railroad, and such bark as may be peeled from lands which are naturally tributary to the Grand Rapids & Indiana Railroad — said bark to be delivered to said second party f. o. b. cars at tannery siding at Boyne City, Michigan (at a price to be determined and based on the average contract price of the tanners in Chicago, Kenosha, Milwaukee, or other principal tannery points, when they are making their first large contracts for the current year, after deducting the sum of ten cents per cord for loading from cars over rail vessel), which ten cents per cord shall not be allowed in case vessel men at any time during the life of this contract shall eliminate said charge in taking bark from the docks at Boyne City to the above points, and, after deducting the cost of transportation from Boyne City to the above points, such cost of transportation to be determined by the average cost of transportation by vessel during the months of July and August in the year preceding the year in which said bark is to be delivered. In case the parties to this agreement shall be unable to agree upon the price and cost of transportation, under the terms and conditions heretofore provided, then each party shall select a competent person to act for them in determining such price, and iri the event of said two persons being unable to agree upon the price under the terms and conditions herein provided, then said two parties shall select a third person agreeable to both of them and said third person, or a majority of the three shall fix and determine the price to be paid for said bark for such year.
“All such bark shall be properly cured and shall be good, sound, merchantable hemlock bark, cut four feet in length and piled as flat as is customary for such bark to be piled, and to be as free from broken bark as possible. Any bark delivered short in length, curly or mouldy, or otherwise inferior to sound bark, shall be taken at a reduced price. All bark is to be carefully loaded on flat cars in two tiers, lengthwise of the cars, to be loaded not less than 6 ft. 6 in. high; the measurements and inspection of said bark to be determined by the agents of the respective parties hereto, on board cars at tannery, proper deductions being made for short and curly bark and other defects.
“(2) Said party of the second part agrees to buy the bark of said first parties as provided in paragraph 1 ” etc.

There was testimony in the case that, when the contract was made, there was marketed in the towns named in the contract hemlock bark from Wisconsin and from the Lower Peninsula of Michigan, and that there was marketed there small quantities from the Upper Peninsula of Michigan. There was also testimony to the effect that, when the dispute arose, large quantities of bark from the Upper Peninsula found its way into these markets, and that the bark from those localities is not so valuable as the bark named in the contract because they give a smaller cord of bark, and from the Upper Peninsula it is winter bark upon which is snow and ice, and that better results are obtained from the Lower Peninsula bark.

The plaintiff claimed that, under the provisions of the contract, the price of the bark in controversy in this suit delivered in 1910 should “be determined by the average contract price of the tanners in Chicago, Kenosha, Milwaukee or other principal tannery points, when they are making their first large contracts for the current year,” based upon bark from the Lower Peninsula of Michigan only; that, if the defendant’s interpretation should prevail, it would allow him to purchase No. 1 bark with full cords at a price of cull bark, with a smaller cord, and it ought not to be contended this is a fair or correct interpretation of the language used in the contract.

It is the claim of appellant that in 1910 his attention was first called to the fact that large contracts for bark were being made between Upper Peninsula dealers and purchasers in the markets named, whereupon he investigated the situation, and, finding that to be true, he immediately called the attention of the parties under the contracts thereto and insisted, in the settlement for the plaintiff’s product in 1910, that those contracts should be included in determining the average price under the contract in this case. He insists that the contract contained no limitations whatever as to the territory from which the bark received in the market centers, named, should come; that the contract is clear, unambiguous, unequivocal, and expresses an intention, and therefore presents nothing for judicial interpretation; and that under the contract the price of bark delivered in 1910 should be determined by the “average contract price of the tanners m Chicago, Kenosha, Milwaukee, or other principal tannery points, when they are making their first large contracts for the current year” without limitation as to the territory from which bark under those contracts should come.

In deciding what construction should be given to the contract, it may be well to illustrate: Suppose that because of the cutting away of the forests the timber line had receded to the north, and because of climatic conditions, or for other reasons, the bark stripped from the northern hemlock contained so greatly an increased percentage of tannin as to command a much higher price than the southern grown; would it be claimed that the plaintiffs should benefit because of the higher price for the more valuable bark? On the other hand, suppose the demand for bark has increased much more rapidly than the supply, so that purchasers are obliged to take what they can get, and are now buying bark of a quality for which there was no market when the contract-under consideration was made; should it be claimed that under such circumstances the price paid for the inferior bark should be considered as a factor in deciding what is the average contract price which should control this contract? To ask these questions is to suggest an answer. In rendering judgment for the plaintiff, the trial judge construed the contract according to the contention of the plaintiff. We think this was the proper construction.

Judgment is affirmed.

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


author: Kuhn, J.

text:
    PARKER v. DAVIS.
    Brokers — Commissions—Procuring Cause op Sai®.
    Whether real estate brokers were entitled to their commissions for procuring a purchaser for defendant’s flat was a question of fact, upon testimony of the purchaser that she had no dealing with the brokers, that her husband, who had been looking for certain real property and had been shown the flat in question by plaintiffs, informed her of the flat, and she had dealt directly with the owners: the question as to the procuring cause could not be determined as matter of law, because the brokers had shown the premises to the purchaser’s husband, or upon the disputed testimony of plaintiff’s solicitor that he had interviewed the wife and stated terms and the price asked by the defendants.

    Error to Wayne; Mandell, J.
    Submitted October 10, 1913.
    (Docket No. 15.)
    Decided December 20, 1913.
    Assumpsit by Harry J. Parker and others, copartners as Parker, Schunk & Fry, against Oliver H. Davis and Ida Davis for brokers’ commissions. Judgment for defendants. Plaintiffs bring error.
    Affirmed.

      Keena, Lightner, Oxtoby & Oxtoby, for appellants.

      Fred H. Warren, for appellees.

       On tbe question as to when real estate broker is considered as procuring cause of sale or exchange, see note in 44 L. R. A. 321.

   Kuhn, J.

The defendants were the owners of a duplex flat on Euclid Avenue West, in the city of Detroit. They lived downstairs and rented the upper flat. The property, when ready for occupancy, in August, 1908, was listed for sale with Harry J. Parker, who later became a member of the plaintiff firm, with whom the property was listed for sale at $7,000, exclusively, for three months, with 3 per cent, commission to be paid for its sale. Upon the expiration of the three months, the property was listed with other real estate firms and the price was reduced to $6,500. The plaintiffs advertised the property and showed it to various persons and, among others, to Mr. Arthur E. Root. Mr. Schunk, of the plaintiff firm, about October, 1909, called on Mr. Root, and they visited the property. Several weeks later, he claims he went to call on Mr. Root and met Mr. and Mrs. Root on a street car and talked with them about the sale of the property, and that is the only time, it is claimed, that he talked with Mrs. Root concerning it. Mr. Schunk claims he called on Mr. Root several times after that but did not make any deal with him. He then turned the property over to one of his salesmen, named Hungerford, who does not claim that he saw Mr. Root personally with reference to the property but claims that some time in the early part of 1910 he called at Mr. Root’s residence and saw and had a talk with Mrs. Root about the flat and made a price of $6,500 on it. This is denied by Mrs. Root, who testified that she never saw him until they were in court as witnesses.

Mr. Root in December, 1909, bought another flat property and no longer considered purchasing the Euclid avenue flat. About that time Mrs. Root received some money from a relative. She testified that she never told the plaintiffs or any one connected with them that she was desirous of purchasing a flat, and the only real estate man she claims to have spoken to about making a purchase was a Mr. Moon, who tried to interest her in a flat on Westminster avenue in February, 1910. When she told her husband that she did not like this property, he said, “Why don’t you go and look at the Davis flat?” Thereupon she did call at the Davis home, and they made her a price of $6,500 on it. She called there again, and it finally resulted in Mrs. Root purchasing the property for $6,400, and she made the first deposit of $200 on April 26, 1910. It was also agreed that the Davises were to have possession until June 1st, rent free, and they were not to be under any expense in bringing the abstract to date, so that it was figured that it was as good practically as receiving $6,500. No qúestion is raised but that Mrs. Root purchased the property with her own money. This suit was brought to recover a 8 per cent, commission on this amount. At the close of the proofs, counsel for plaintiffs made a motion to direct a verdict, but the matter in controversy was submitted by the court to the jury, and it resulted in a verdict of no cause of action.

The sole question raised in this appeal is, as stated in plaintiffs’ brief:

“Whether or not, under the undisputed testimony in this case, plaintiffs were entitled to their commission upon the sale made by the defendants to Sarah Root.”

As bearing upon the question of whether, under the undisputed evidence, the plaintiffs were the procuring cause of the sale to Mrs. Root, it is necessary to carefully examine her testimony. She testified with reference to her relations with the plaintiffs as follows:

“Q. How did you come to look at that flat?
“A. Mr. Root — -I told Mr. Root I did not really like the flat on Westminster, and he said, ‘Why don’t you go and look at the Davis flat?’ and I said, ‘It is almost too much money;’ and he said it would do no hurt to look at it; and when I went to look at the Westminster flat the second time I stopped and looked at the Davis flat. I found Mrs. Davis home. She made a price of $6,500. I looked through the flat from top to bottom. It was in March. From that time until the 26th of April I was not at the Davis flat. I don’t think during that time anybody talked about selling me the Davis flat. My husband went with me that evening because I did not care to go alone. In the month of March or the 1st of April I finally concluded to buy, if I could get it at my price. The money was paid over and a receipt given, about 8 o’clock, nearly 8 in the evening. It was in the daytime about 11 o’clock in the forenoon that I first saw the Davis flat. I did the talking myself and Mr. and Mrs. Davis, so far as the bargain was concerned. I already made a bargain of $6,400 and they were to stay there until June 1st rent free, and I took the abstract as in the bank. The bargain was carried out. Mr. Hunger-ford certainly never did call or talk to me about buying this fiat. The first time I ever saw Mr. Hunger-ford to my knowledge was when this case was called on in the lower court. I didn’t know.the man until he was pointed out to me as Mr. Hungerford. Mr. Hungerford never called at our place and talked with me about this flat or left with me his card with a memorandum on the back of it and with the price and the street, number, etc. At that time there was another woman living at our house along in the spring of 1910, my sister-in-law. She has always lived with us until this last year. She was there. That was her home. Mr. Hungerford never saw me at the door of my house and talked about the flat. I don’t think he did. If he did, I didn’t know him. I would remember whether he left his card with a memorandum of the street and number, etc. He never did with me. I can’t remember how many times I ever saw Mr. Schunk. I think three different times. I am safe in saying three different times. The first time is the time that Mr. Root went with him to look at the flat, when he wanted to shave before he went out. He came in the house and sat down and waited until he was ready to go. The next time was when he rode down in the car with us. I could not say whether he came in the house then, but I think he did, or he sat out on the porch. He was there, but whether he came in the parlor and sat down I would not say. The first time Mr. Schunk did not say a word to me about buying the flat. He was seeking to sell to Mr. Root. He asked for Mr. Root.
“Q. When he was there this time and you went down in the street car, did you talk about buying the flat?
“A. He didn’t ask me if I intended to buy a flat. I didn’t intend to. He was talking to Mr. Root.
“Q. Did you and Mr. Root and Mr. Schunk have any conversation of any kind or character about the purchase of the flat going down in the street car that day?
“A. I don’t think we did. I don’t remember any. Anything regarding the real estate was talked at the house, so far as I remember. I remember the third time that Mr. Schunk was there. I believe he called there in the evening. It was just before Mr. Root had come home from work and I was getting dinner. I met him at the door, and I don’t know what he said. I think he asked for Mr. Root and spoke about the real estate. I didn’t spend time with him. I was busy. He didn’t come in.
“Q. I want to ask you whether Mr. Hungerford— he has testified that he called on you and that he left you a card with a memorandum; that he was invited to the house and sat down inside the house and talked with you about 15 minutes.
“A, He never did with me. He never was invited in my house by me. If he was it was somebody else. I don’t think any one ever invited him in. I don’t think he was in my house. If he was invited in it was by some other woman. If it was some other woman it was my sister-in-law. No other real estate man or any other person outside of our own family knew that I wanted to buy a flat or was thinking of investing in real estate, except Mr. Moon. Nobody connected with the office of Parker, Schunk & Fry ever called on me or talked with me individually about buying a flat or made me a price on it. It was a direct deal between myself and the Davises.
“Q. When did your money become available for the purchase of this flat? (Objected to as immaterial.)
“The Court: I don’t think it is material but you may answer it.
“A. My money at the time was in the Old Detroit Bank on certificate of deposit. There was some time waiting to carry it out. If I left it there at all I think it was the 21st of May. I would receive interest if I left it there, and if I took it out before I would lose the interest. My husband bought the flat on Bethune on the 9th of December, 1909. That is the date of the deed. So far as I know he was not in the market for a flat after he bought that, not for himself; he talked some to our son. . Our son talked some of buying one. (Objected to.) But that was given up.”

We are of the opinion that by this testimony a clear question of fact was raised as to whether the plaintiffs were the procuring cause of the sale. The plaintiffs were notified by Davis in January, 1910, that they had “lost Root,” as he had purchased other property.

It is not contended that either Mr. Schunk or Mr. Hungerford tried to sell to or considered Mrs. Root as an individual prospect on her own account, separate from her husband; but it is* urged that a broker should be entitled to a commission when he deals with a husband and wife, believing the husband to be the prospective customer and the wife merely to be interested as such, and the wife subsequently concludes to buy on her own account. We do not believe that a definite rule can b.e laid down simply because of this relationship, and it should be decided by the facts in each case. No complaint is made as to the instructions of the court, and we are of the opinion that under the facts of this case the trial court was correct in holding that the controversy presented a question of fact for the jury. See Brooks v. Leathers, 112 Mich. 463 (70 N. W. 1099); Wood v. Smith, 162 Mich. 334 (127 N. W. 277), and the extensive review of the cases on controlling and moving cause in the note to the case of Hoadley v. Savings Bank of Danbury, 44 L. R. A. 321, 333 [71 Conn. 599]).

Judgment is affirmed.

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


text:
    ERNST v. ERNST.
    1. Husband and Wife — Estates by Entirety — Deeds — Quitclaim by Wife — Estoppel.
    By executing, to secure a loan, her sole quitclaim deed of property held by the grantor and her husband as an estate by the entirety, the wife conveyed no interest in the premises: nor did title inure to the benefit of the grantee by reason of the husband’s death and the title thereafter acquired by his wife.

    2. Same — Equity—Lien—Purchase Money.
    No equitable lien on the property was created for the sum paid by the grantee of the joint property, in the absence of fraud or deception on the part of the grantor.
    3. Same — Maxims of Equity — Quieting Title.
    But it should be made conditional to equitable relief, in a suit to quiet title begun by the widow after her husband’s decease, that she repay the consideration received for the deed.
    Appeal from St. Clair; Law, J.
    Submitted October 8, 1913.
    (Docket No. 9.)
    Decided December 20, 1913.
    Bill by Catherine Ernst against Peter Ernst to quiet title to real property. Defendant filed a cross-bill asking for an equitable lien. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Elmer E. StocJcwellj for complainant.

      Walsh & Walsh and C. L. Benedict, for defendant.

      As to the effect of quitclaim deed upon after-acquired title, generally, see note in 35 L. R. A. (N. S.) 1182.
      The authorities on the general question of tenancy by the entireties are reviewed in an extensive note in 30 L. R. A. 306.

   Kuhn, J.

The bill of complaint is filed in this cause for the purpose of removing a cloud from the title of lands which, on the 9th day of December, 1881, were owned by the complainant and her husband, Frederick W. Ernst, as tenants by entirety. On that day the complainant executed to the defendant and cross-complainant, her stepson, a quitclaim deed of the land, for which he gave her $175. Mrs. Ernst and her husband occupied the land up to the date of her husband’s death, January 26, 1910, and she is still in possession through a tenant. She claims that she obtained the $175 as a loan, for which she gave the deed as security, and that she repaid the loan in 1893 by conveying other property to the defendant. It is the claim of the defendant and cross-complainant that he purchased the interest of Mrs. Ernst in the land described in the quitclaim deed, and as a consideration gave her the $175. In his cross-bill he asks the court to decree that this deed placed him in the same position as to the title to the land as that in which Mrs. Ernst stood before the deed was given, and that on the death of Frederick W. Ernst he became the sole owner. He further asks that, if the deed did not convey legal title to the land, the court find that it created an equitable lien which became enforceable on the death of Frederick W. Ernst. The circuit judge held that under the decisions of this court:

“The quitclaim deed of December 9, 1881, * * * conveyed no present title, because Mrs. Ernst had no title that she could convey by her sole act. Neither could she create an incumbrance in this way. Vinton v. Beamer, 55 Mich. 559 [22 N. W. 40]; In re Appeal of Lewis, 85 Mich. 340 [48 N. W. 580, 24 Am. St. Rep. 94]; Naylor v. Minock, 96 Mich. 182 [55 N. W. 664, 35 Am. St. Rep. 595].”

He made the following supplementary findings of facts, which an examination of this record shows are fully warranted by the evidence:

“First, that the quitclaim deed from Catherine L. Ernst to Peter Ernst, executed in December, 1881, was intended by the parties as a conveyance of the interest Catherine L. Ernst had in the land herein described to Peter Ernst; second, at the time of the execution of the quitclaim deed described in the first paragraph of this finding, Peter Ernst paid Catherine L. Ernst the sum of $175, as a consideration for the interest which they supposed the deed conveyed, which sum has not been repaid to Peter Ernst.”

The circuit judge held the deed void, and made a decree granting the prayer of complainant’s bill. Counsel for defendant and cross-complainant concede in this court that the deed is void, but contend that an equitable lien for the amount paid by the defendant to the complainant should be decreed, and, in the event that this cannot be done, that the payment of this sum by the complainant to the defendant be made a condition precedent to granting relief to the complainant.

The quitclaim deed did not convey the land itself, but merely the interest which the grantor had therein, and the purchaser under this deed did not obtain any better title than that held by the grantor. Hughes v. Jordan, 118 Mich. 27 (76 N. W. 134). And it necessarily follows that a subsequently acquired title did not pass to the grantee. Frost v. Missionary Society, 56 Mich. 62 (22 N. W. 189); Fay v. Wood, 65 Mich. 390 (32 N. W. 614); Gadsby v. Monroe, 115 Mich. 282 (73 N. W. 367).

The complainant, at the time she gave the deed, had no right, title, or interest in the land which she could, by her sole act, incumber in any way, and to hold that the defendant obtained an equitable lien at the time of taking the deed would, in effect, be giving him a mortgage, which it is clear she could not do. He does not claim that he was defrauded or deceived, and, according to his own version, he knew the kind of deed he received and was willing to accept it. The circuit judge was correct in holding that no equitable lien was established.

The complainant, however, has come into a court of equity for relief, and under the familiar axiom that he who seeks equity must do equity, it does seem that relief should not be granted complainant without requiring her to repay what has been paid her. We are satisfied that she received the $175, and has not repaid the sum to the defendant, as found by the circuit judge. The relief she prays for. should be made conditional upon repayment by her to the defendant of the $175 and interest thereon at the legal rate from the time of the payment.

The decree of the court below will be modified accordingly, with costs to the defendant.

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


author: Bird, J.

text:
    McDOWELL v. MECOSTA CIRCUIT JUDGE.
    1. Equity — Decree — Judgment — Opening Default — Petition— Quieting Title.
    Following a decree based on substituted service, defendants filed their petition praying to be heard touching the matter in the decree upon terms, etc., presenting at the same time their answer to the bill, which sought to quiet title to certain real property. The petition asked that the decree be “set aside, altered or amended, as to the court may seem just.” This petition the circuit judge denied on the ground that it did not ask in direct terms to have the default set aside and that the defendants did not present a sworn answer with, the application. Held, that they were erroneously denied the right to make a defense.
    2. Same — Judgment—Default Deceee.
    Under 1 Comp. Laws, §§ 496-498 (4 How. Stat. [2d Ed.] § 12014), the right to appear and answer after the entry of a decree pro confesso based on service by publication . is absolute and the statute is mandatory.
    3. Same — Peactice—Swoen Answeb.
    The provisions of Chancery Rule 7, requiring a sworn answer, do not make it necessary in cases in which the court has no discretion to exercise under the statute; compliance with the statute is sufficient to entitle the defendants to its benefits when the right to defend is absolute, under the statutory provisions.
    Mandamus by Grant S. McDowell and Bertha B. McDowell against Joseph Barton, Mecosta circuit judge, to require respondent to set aside an order denying relators the right to open a default decree.
    Submitted November 4, 1918.
    (Calendar No. 25,745.)
    Writ granted December 20, 1913.
    Rehearing denied June 5, 1914.

      Arthur J. Butler, for relators.

      Broomfield & Worcester, for respondent.
   Bird, J.

The Mecosta circuit judge denied the petition of relators, which prayed for an opportunity to defend a suit in which they had been made parties defendant, and which had proceeded to a decree based upon their default for want of appearance. They now ask this court for a writ of mandamus to compel the circuit judge to set aside the order, with directions to enter one in accordance with the prayer of the petition.

From the record it appears that on October 5, 1911, one Martin Billings filed his bill of complaint in the Mecosta circuit court, in chancery, to quiet his title to certain lands situate in that county. The relators were made parties defendant; but at the time the bill was filed they were residents of the State of Idaho. Service was had on them by publication; their default followed, and a decree was rendered therein on the 13th day of April, 1912. Notice of the entry of the decree was served upon them • by mail soon thereafter, and on the 12th day of June, 1912, relators filed their petition, praying for permission to be heard on the matters involved in the suit. The prayer of the petition was denied, because it did not ask in direct terms to have the default set aside, and because no sworn answer was tendered when the application was made. These reasons prompted the circuit judge to deny the relief sought. We are not impressed that these reasons furnish an adequate ground for denying the relators the right to defend.

The petition, after reciting the several steps which had been taken in the proceeding, concluded as follows:

“Your petitioners, therefore, appear in this honorable court, and ask to be heard touching the matter of said decree upon such reasonable terms as to the court may seem just and in pursuance of the statute in such case made and provided. And your petitioners herewith present their answer to the said bill of complaint, and ask that they may be permitted to file the same in said cause, and that upon the hearing the court will order that said decree be set aside, altered, or amended, as to the court may seem just, and that the court will grant your petitioners such other relief in the premises as to equity shall appertain.”

This prayer reasonably construed in connection with the recitals which preceded it could mean but one thing, and that is that the relators desired an opportunity to file their answer and be heard upon the merits.

The statute (1 Comp. Laws, §§ 496-498, 4 How. Stat. [2d Ed.] §12014), furnishes the rule of practice in such, cases. Sections 496 and 497 read as follows:

“If the defendant against whom such decree shall have been made, unless such decree shall be a decree of divorce, or his representatives, shall afterward appear and petition to be heard, the party so petitioning shall be admitted to answer the complainant’s bill upon paying or securing to be paid such costs as the court shall adjudge, and the suit shall then proceed in like manner as if such defendant had appeared in due season and no decree had been made.”
“The defendant, or his representatives, must so appear within one year after notice in writing of the decree shall have been given to him or them, and within seven years after the making of the decree, when such notice shall not be given.”

These sections have been construed by this court as mandatory (McDonald v. McDonald, 45 Mich. 44 [7 N. W. 230]), and it has been held that the right to defend may be granted without notice to the complainant (Coffin v. Ontonagon Circuit Judge, 140 Mich. 420 [103 N. W. 835]). But it is argued that Chancery Rule 7, which provides for a tender of a sworn answer in applications to set aside defaults, justified the court in refusing the relief sought. That would probably be true as to all applications which come within the discretion of the trial court; but when, as in this instance, the right of defendant is a statutory one a compliance with the terms of the statute is sufficient to entitle him to its benefits.

The relators were entitled to the relief sought, and the writ will issue as prayed. Relators will recover their costs against complainant Billings.

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


author: Ostrander, J.

text:
    WELLMAN v. WELLMAN.
    Divorce — Cruelty—Husband and Wire.
    On appeal from a decree of divorce finding that the complainant wife was guilty of extreme cruelty, conflicting evidence is considered and helá, to sustain the conclusion of the circuit judge.
    Appeal from Wayne; Hosmer, J.
    Submitted November 5, 1913.
    (Docket No. 76.)
    Decided December 20, 1913.
    Bill by Ida E. Wellman against 'Samuel Wellman for divorce. Defendant filed a cross-bill. From a decree for defendant, complainant appeals.
    Affirmed.

      John Miner, for appellant.

      George F. & Peter J. Monaghan, for appellee.
   Ostrander, J.

The parties to this suit were married April 12, 1910, after an acquaintance of five weeks, during which time complainant had acted as housekeeper for the defendant, who was a widower. She left him on the 20th of June, 1910, going into the country a short distance from Detroit, where she worked for 10 days, and until her husband came after her. They then lived together until October, 1910, when she again left him and went to Flint, Mich., where she opened a boarding and rooming house. December 28, 1910, her husband filed in the circuit court for the county of Wayne, in chancery, his bill for divorce from her. He made an affidavit of her nonresidence. December 12, 1911, complainant filed her answer in that cause, in which, protesting her innocence of the charges and delinquencies set up in the bill of complaint, she averred that on the 8th of October, 1911, she met her husband in the city of Detroit, at which time they mutually forgave and condoned the faults, delinquencies, and shortcomings of each other, and agreed to live thereafter and cohabit as husband and wife, agreeably with which arrangement she says they did again live and cohabit together as husband and wife. January 22, 1912, a decree was entered in that cause, dismissing the bill without costs, the decree reciting that the parties have mutually condoned and forgiven their faults, delinquencies, and shortcomings occurring during their married life, and were at the date of the decree living and cohabiting together as husband and wife.

Complainant again left defendant in April, 1912, and she sets up in her bill of complaint that defendant has from the time of her marriage, continued an unremitting and ceaseless course of cruelty towards her, some of the details of which are specified; that his conduct was the cause of her leaving him upon the occasions referred to, and she sets up in addition the conduct of the defendant in filing his bill of complaint against her, which she says set up a series of false, wicked, and groundless charges, and she asks for a decree of divorce from the bonds of matrimony and for alimony. An order was made requiring the defendant to pay her $8 a week, beginning April 20, 1912, to pay the rent of the telephone in the house she occupied, the account of the Detroit Gas Company for gas consumed on the premises, and $40 solicitor’s fee. In June, 1912, the defendant filed his answer in the nature of a cross-bill, which prays that if the court finds the parties are not legally married, their purported marriage may be annulled, and if the court finds that they are married, that a divorce from the bonds of matrimony be granted to the defendant. There was an answer to the cross-bill, replication, the cause came on for hearing December 5, 1912, in open court, and on January 18, 1913, a decree was entered in which it was found that the complainant had been guilty of the several acts of extreme cruelty charged in the answer and cross-bill, dissolving the marriage, and making no allowance to complainant in the way of alimony, but giving her the custody of her minor child. Upon her application to this court, an order was made allowing her $125 for expenses of her appeal, the matter of solicitor’s fees to abide the final result.

An examination of the record has not convinced us that the decree of the court below ought to be disturbed. No children were born of the marriage. Complainant’s story of her life is briefly told. She is 36 years old, born in Germany. She came to the United States in October, 1901, from Berlin, where she had been employed in business. She came-alone and went to Pittsburgh, Pa. She had not been married, but she left an infant daughter in Germany in care of her sister. She was employed for a short time as a nurse and then as housekeeper for a man by the name of Loeblich, whose family consisted of himself and four children. Eight or nine weeks after assuming this position as housekeeper, she married Mr. Loeblich and lived with him for a year and a half, giving birth to a child, which lived á few weeks. Claiming that his treatment of her was cruel, she left him, taking with her some money which belonged to him, and went to Atlantic City. There she was employed for a few wbeks as a waitress, when she went to Philadelphia and accepted a position as demonstrator for the Shredded Wheat Biscuit Company. In course of time she determined to go back to Germany, procured passage, but at Hoboken changed her mind and decided not to go. She went to Jersey City and worked in a bakery, and finally opened a boarding house, before doing which, however, she made a second visit to Pittsburgh, called at Loeblich’s house, and the woman she saw there said to her, “You have no more claim on Mr. Loeblich.” At her boarding house was a man by the name of Bernard Koekock. She married him May 22, 1905, and sent to Germany for her child, who came and lived with her. Learning in June or July, 1906, that Loeblich had not been divorced from her, she sold the property she had accumulated and went to Springfield, Mass., with the child. There she opened a restaurant. Koekock followed her to Springfield, whereupon she sold her restaurant, went to New York with her child, and took passage for Germany. She came back in four weeks, leaving her child with her sister. She landed at Baltimore, worked as chambermaid in a hotel, worked in Washington, D. C., again went to Pittsburgh, and learned that Loeblich had, on April 24, 1907, secured a divorce. She then went to see Koekock and for a time (she is not very definite about it, but from a month to two months) she at night occupied the same room and same bed with Koekock. She left him, and has not seen him since. After that she again traveled as a demonstrator, held a position as housekeeper in Pittsburgh, went to Denver in 1908, and operated a restaurant there, then became housekeeper in a family in Denver, went to Los Angeles, Cal., and was there a housekeeper, lived in this latter place for eight months, and determined to go back to Germany. Arriving at New York and finding she had not enough money for the trip, she went to Detroit. She arrived some time in February, 1910, knowing no one there. She put an advertisement in the newspaper. Defendant answered it, and she was installed as housekeeper in his home March 8, 1910. I have omitted her statements of her reasons and motives for what she did, but this indicates sufficiently the variety and principal events of her life in America before she married defendant. It should be said that she appears by her statement to have been industrious and capable and to have maintained herself.

At the date of the hearing, the defendant was 57 years old. He was born in Port Huron, and had lived in Detroit for 19 years. He is a building contractor, and, according to his own statement, as superintendent of building he erected five stories on the Pontchartrain Hotel, built the gas office building, the addition to Grace Hospital, the addition to Harper Hospital, besides some residences, in the course of seven years. At the time of the hearing he was building Buhl Memorial Building at Harper Hospital. He testified that he had worked practically every day during the seven years, had never had a vacation. He was first married 37 years before the hearing took place, had children, of whom one son is living, now upwards of 30 years of age. His first wife died February 22, 1910. He met complainant by answering her advertisement in the newspaper. He went to see her, and she came to the house to see him and look over the situation. Before their marriage she told him of one man to whom she had been married, and said that she was divorced from him, but did not tell him his name nor the city where she had been married and divorced. It was not until August, he says, that he learned from her brother-in-law that she had been married the second time. He complains that almost from the beginning of their married life the complainant importuned him for money to go to Germany to get her child, or for money to have her child come to Detroit, to make some arrangement about his property which would provide for her; that upon occasions she abused him by speech both vulgar and profane; that, having furnished money to bring her child to Detroit, she constantly importuned him to adopt the child, which he finally did; wanted him to establish a bank account against which she could check, and to make a will of his property in her favor. He insists, also, that she never herself advised him concerning her second marriage, nor satisfied him that she was legally in a position to contract her marriage with him.

I do not believe all that either of these parties testify to, but, as is usual in such cases, there are some facts fairly established by the testimony which control belief and the decision of the principal controversy. While the complainant does not appear to have loitered in any of the avenues which led to marriage, neither is defendant to be excused for contracting a marriage with the complainant, with the knowledge which he had of her, six weeks after his first wife died. Having married in haste, he should, and a man of finer instincts would, have refrained from questioning, in the manner he did, his wife’s right to contract the marriage. He would have discovered the facts himself or have remained silent. It must be considered, however, that the information he had was rather disquieting. Defendant provided well for the complainant. He sent for and finally adopted her illegitimate child. He dismissed his son from his home upon her solicitation. He insured his life in her favor for $2,000. He purchased some property for a home in their joint names, established a bank account in their joint names, against which she had the right to draw checks, he bought her a diamond ring, he sought her out when she first left his home, and induced her to return, he took her back upon her second desertion, dismissing his own bill for a divorce. The work which he did indicates that he was industrious, and if occasionally, as she claims, he drank intoxicating liquors to excess, he seems not to have done so to an extent which interfered with the conduct of his business affairs. He seems to have been a somewhat credulous, easygoing man, attached to the complainant. I do not believe he ever shot at complainant or threatened to do so.

Complainant is clearly a purposeful woman, and is evidently possessed of sincere maternal affection for her daughter. She has the purpose to take care of herself in a worldly way — a purpose commendable in an unmarried woman who has only herself to rely upon, but one which may become sinister and disturbing in the domestic relation. The testimony convinces me that in this direction she has overexerted herself, and has, and has had, no affection for defendant. She has not been sincere and open in her relations with him. One side light upon her character is disclosed by testimony of her husband, which she does not dispute, which is to the effect that on the day she left home for the second time she kissed him good-bye in the morning, expressing solicitude for his safety during the day. They had visited her sister the evening before and had had a pleasant time. At noon she called him on the telephone, asking him at what time he would be at home, and telling him to be careful not to get hurt. When he reached home he found a little note on the table in which she announced, “I am going to sue you for a bill of divorce; I am going to start a restaurant.” She had stripped the house and drawn from the bank the entire deposit which had been put there by defendant in their joint names. She says she drew out the money upon the advice of counsel. He had given her $30 the previous evening. Then she sought, to have defendant establish the old relations with her. He did not seek her, but, as has been stated, he had filed a bill to dissolve the marriage. She had established herself in business at Flint. She need not have returned to a condition of things which she now claims was intolerable.

Balancing the testimony, I am disposed to the conclusion that for the large troubles which these people had, complainant, and not the defendant, is responsible. I am satisfied she did not, before they were married, tell him about her second marriage, certainly not about the fact that she had, knowing as she now claims she did, she was not his wife, lived with Koekock from one to two months. It is true that after complainant left defendant the second time, .and after he had filed a bill for divorce against her after he knew of the fact of her second marriage, they again cohabited as husband and wife, and if he had filed this bill for a divorce and she, desiring to continue the marriage relation, had pleaded condonation, some effect would have to be given to the plea. But this is the third time complainant has left defendant’s home. She charges cruelty from the inception of their married life. Her bill appears to be framed upon the theory, which accords with the general rule, that she is not bound by the condonation because similar offenses to those condoned have been repeated by her spouse. He, in turn, sets up the conduct of the complainant from the beginning of their married life. She has not established the charges she makes. He has fairly established that she continually sought a property arrangement; caused him to be arrested without reason; sought, without good reason, to embroil him with his employer, in whose concern he was also a shareholder; while living with him was plotting to leave him, and, in leaving, to secure his property, deceived him with respect to certain episodes in her life; made their domestic affairs notorious.

A decree will be entered, affirming the decree of the court below, but requiring defendant to pay complainant a solicitor’s fee of $40.

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