author: Grant, J.

text:
    GOODSPEED v. HILDEBRAND.
    1. Trial — Conduct of Counsel.
    An unjustifiable attack by counsel upon a witness on the cross-examination, held reversible error.
    2. Conditional Sale — Replevin—Instructions.
    Plaintiffs sold defendant a stock of goods under a contract retaining title until paid for, and providing that defendant should make daily reports of sales, turning over the cash received, the same, after payment of store expenses, to be credited on the purchase price; that debts should not be incurred nor credits extended without plaintiffs’ consent; and that, on failure to comply with any provision of the contract, plaintiffs might repossess themselves of the stock. In replevin, plaintiffs relied on a violation of the provisions of the contract, as to whieh the evidence was conflicting. The court instructed the jury that if defendant was paying for the stock within a reasonable time, and was not otherwise in default, plaintiffs could not recover. Held, error, there being no question of reasonable time involved.
    Error to Washtenaw; Kinne, J.
    Submitted April 25, 1902.
    (Docket No. 109.)
    Decided September 17, 1902.
    Replevin by Herschel Goodspeed and Delbert C. Good-speed, copartners as Goodspeed & Son, against George Hildebrand. From a judgment for defendant, plaintiffs bring error.
    Reversed.

      A. J. Saioyer (Clark, Durfee & Allor, of counsel), for appellants.

      J. W. Bennett, Arthur Brown, and M. J. Cavanaugh, for appellee.
   Grant, J.

Plaintiffs brought replevin to recover a stock of goods for a violation of the following contract, dated July 21, 1898:

“ The said George Hildebrand agrees to buy the tailoring stock and fixtures belonging to Goodspeed & Son, as per invoice, and on the following conditions: To pay down, as security for faithful performance of.contract, three hundred dollars. To report each night amount of sales, and upon what terms were made, together with stock number of goods sold; and to turn over amount of cash received. Settlements to be made every week, and, after store expense is paid, the said Goodspeed & Son to place balance, if any, to credit of said George Hildebrand, to apply on purchase price of goods. No outside debts to be made on credit of store, and no credits given, without sanction of said Goodspeed & Son. Any failure in performance of this contract or agreement on the part of said George Hildebrand forfeits all rights and all payments made; and, furthermore, if said George Hildebrand fails to comply with all the conditions of this contract or agreement, the said Goodspeed & Son have the right to enter said store and repossess said property without process of law, and said George Hildebrand hereby waives any right of demand for said goods. The said stock of woolens, trimmings, fixtures, etc., to remain absolutely the property of Goodspeed & Son until paid for. Inventory of said stock and fixtures to be made every six months, and same reported to Goodspeed & Son; and the said Goodspeed & Son hereby have the privilege of checking and proving said inventory at their option. The said George Hildebrand is not to sell this contract or agreement without the written consent of said Goodspeed & Son.”

We think the attack made by the defendant’s counsel upon Delbert C. Goodspeed in his cross-examination, and the remarks made to him by one of the attorneys, were unjustifiable, and constitute reversible error, within Gould v. Gregory, 126 Mich. 594 (85 N. W. 1077); Coan v. Township of Brownstown, 126 Mich. 626 (86 N. W. 130); People v. Gotshall, 123 Mich. 474 (82 N. W. 274); and many other decisions of this court. It is unnecessary to quote these questions. They are of the same character as those in the cases cited, and equally as prejudicial.

The court instructed the jury that, inasmuch as the contract did not provide any specific time for the full payment of the stock, a reasonable time was intended, and if they should find that the defendant was paying for such stock of goods within a reasonable time, and that that time had not arrived when the suit was brought, and defendant was not otherwise in default, they must find for the defendant. ■ There was no question of reasonable time involved. No claim was made by the plaintiffs that defendant did not act within a reasonable time. They based their suit upon the violation of the provisions of the contract, upon which there was a sharp conflict of testimony. Were this the sole error in the case, we might hold that it was not prejudicial, but-we decide the point in view of another trial.

Judgment reversed, and new trial ordered.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BENTON HARBOR TERMINAL RAILWAY CO. v. KING.
    1. Railroads — Condemnation Proceedings — Jury—Employment of Stenographer.
    In condemnation proceedings under the union railroad depot act (2 Comp. Laws, § 6356 et seq.), the jury is not bound to employ a stenographer to take the testimony.
    2. Same — Failure to Reduce Testimony to Writing.
    The failure of the jury in such a proceeding to reduce the testimony to writing is not reversible error, where appellant's' request that it be so taken was coupled with a demand that a stenographer be employed for that purpose.

      3. Same — Separate Parcels op Land.
    It is not error for the jury to hear testimony as to several distinct parcels of land at the same time.
    4. Condemnation Proceedings — Appeal — Evidence — Public Necessity.
    Where the record on appeal in a condemnation proceeding does not contain all of the testimony, it cannot toe said that there was no evidence of public necessity.
    5. Same — Qualifications op Jurors.
    On appeal in condemnation proceedings, an objection that the record does not show that the jurors were residents of the county will be disregarded, where appellant appeared and took part in the trial without raising any question as to the qualifications, of the jurors.
    6. Same — Arguments op Counsel — Waiver.
    Where the jury in a condemnation proceeding unanimously voted not to hear arguments of counsel, but the record fails to show that appellant insisted upon his right so to be heard, the case will not be reversed.
    Appeal from Berrien probate court; Ellsworth, J.
    Submitted April 11, 1902.
    (Docket No. 92.)
    Decided September 17, 1902.
    Condemnation proceedings by the Benton Harbor Terminal Railway Company against Alexander C. King and Julia King. From a judgment for petitioner, respondents appeal.
    Affirmed.

      Gore & Harvey, for appellants.

      Kelley & Chase, for appellee.
   Moore, J.

This is an appeal from an order of the probate court approving the findings of a jury in condemnation proceedings brought under the provisions of 2 Comp. Laws, §§ 6361-6366, inclusive. The petition averred that petitioner was a body corporate organized under Act No. 244, Pub. Acts 1881; that its capital stock had been subscribed as required by the act; that it had surveyed its depot grounds and the route of its proposed tracks, made a map, etc., and filed it in the register’s office.

“Your petitioner further shows that the lands and properties hereinafter described are required and necessary for the purpose of its incorporation, and that the taking thereof is necessary for public use, to wit, for the purpose of your petitioner’s incorporation in constructing, operating, and maintaining its said railway freight and passenger depots, with the necessary railroad tracks, dock and wharf properties, and the appurtenances thereto, and as and for a right of way; that under this petition the said Benton Harbor Terminal Railway Company seeks to acquire title as and for a right of way, by special proceedings under the statute of the State of Michigan in such cases made and provided, to the following described pieces or parcels of land, situated in the county of Berrien and State of Michigan.”

Then followed a description of nine different parcels of land, with a statement as to who owned them, respectively, .with a further statement that the petitioner had been unable to acquire title to the lands, and asking for the appointment of commissioners “to ascertain and determine the necessity for taking and using each of said parcels of land, and all of said land, by your petitioner, for the purpose aforesaid, and, if they deem the same necessary to be taken for the purpose aforesaid, to ascertain and determine the damage or compensation which ought justly to be paid by your petitioner to the several parties interested therein, and to each of them, in manner and form as required by law.”

An order was made by the court, which was served upon all the respondents. On September 20, 1901, Weldon Bros, entered their appearance for Charles W. Hall. Gore & Harvey entered their appearance for Alexander C. King and Julia King, William S. Dunbar and Alice T. Dunbar, and William Hamilton, Angelina G. Hamilton, and Theodore W. Hamilton. Motion on behalf of all the respondents was made to dismiss the proceedings because :

“1. The petition is filed under an act to authorize the incorporation of companies for the construction of union railroad stations and depots, with the necessary connecting tracks, and. the management of the same (Act No. 244, Pub. Acts 1881, approved June 9th); and said petition fails to show that it is filed on behalf of any company or companies whose existence and business render the condemnation of lands necessary for the purposes stated in said act.
“2. Said petitioner, as incorporated, is not entitled to the lands prayed for in its said petition, for the reason that the property sought to be condemned is not for ‘union railroad stations and depots,’ but it affirmatively appears to be for general railroad purposes, as stated in paragraph 4 thereof.”

Motion to dismiss proceedings was denied. Answer of Chai'les W. Hall was filed. Mr. Hall demanded a jury," and one was summoned. After the jury was sworn, Mr. Hall demanded a separate trial, which was denied. After the jury was sworn, the following occurred: V. M. Gore, one of the attorneys for the respondents, demanded of said jury that the testimony be taken in writing, and that a stenographer be employed to take the testimony offered in the case. The court thereupon instructed the jury that a stenographer was not necessary, unless they desired the services of such stenographer, and the jury could take such testimony themselves as they wished. Mr. Gore excepted to the remarks of the court. No further action on this matter was taken. The jury were then provided with paper for the purpose of making such notations as they desired. Several witnesses were sworn upon the part of petitioner. The attorneys expressed a desire that the jurors visit the premises. They did so. After viewing the premises, three witnesses were sworn on behalf of the petitioner. Several witnesses were sworn upon the part of the respondents.

On convening at 1:30, the jury expressed a desire to hear no more testimony, unless the parties had proofs on new points. Mr. Gore remarked they would offer no more testimony, as they did not wish to offer testimony unless the jury desired to hear it. The court asked Mr. Gore if he desired the respondents King or Dunbar to testify. Mr. Gore replied he did not. Mr. Weldon desired to introduce further proofs, and the following-named witnesses were sworn and testified on behalf of the respondent Charles W. Hall: Seeley McCord, J. N. Norrington, and F. E. Avery. Testimony then closed. The jury'declined to hear arguments of counsel. A vote of the jury was then taken by the court, which resulted in a unanimous vote declining to hear arguments of counsel. The jury were then instructed by the court that it was their duty first to find whether it was necessary to take the private property described in the petition in this cause for the use and benefit of the public for the proposed public improvement, and, if they found that the taking of this property was necessary, they should make a return to the court in writing that the taking of the property was nec-. essary, and fixing the compensation and damages to be paid to the persons owning such property for the property taken for this purpose described in the petition. The jury then retired to a private room in charge of Martin Dwan, deputy sheriff. At 11 o’clock p. m. the jury rendered their verdict in writing, signed by all of said jurors, finding said proposed public improvement to be necessary, and awarded the compensation to be paid for such property as therein described as follows: William Hamilton, Angelina G. Hamilton, Theodore W. Hamilton, $850; Alexander C. King, Julia King, $150; Charles W. Hall, $450; William S. Dunbar, Alice T. Dunbar, $150. The Hamiltons did not appeal. The others did. The three cases involve practically the same questions.

It is said:

“1. The respondents were denied their rights and greatly prejudiced by the refusal of the jury to take the proceedings in writing, as' required by law, upon request of the respondents.
“2. The respondents were prejudiced by the jurors proceeding to hear all the testimony concerning the several tracts of land jointly, and rendering one finding thereon, instead of obeying the statute, and determining the necessity for taking each parcel separately.
“3. There was no evidence of public necessity for taking the said lands.
“4. It nowhere appears in the record that the jurors were residents of the county of Berrien.
“ S. The jury refused to hear the arguments of counsel, and the jury determined the question of public necessity and the important question of damages without any instructions from the court or counsel with reference to the elements of damage the jurors should take into consideration in such case.”

The record shows the request was not simply that the testimony be taken in writing, but was coupled with a request that a stenographer be employed. When the jury were told by the judge that a stenographer was not necessary unless the jury desired it, counsel did not then request that the testimony be taken in writing, but appeared to acquiesce in letting the matter pass. There is nothing in the statute which requires the jury to employ a stenographer ; and it is not made to appear that the jury refused to have the testimony reduced to writing.

As to the action of the jury in hearing testimony as to the several descriptions of land, the jury followed the requirements of section 6363.

As to the third objection, the testimony is not all before us, and we cannot say there was no evidence that there was a public necessity to take the land.

As to the suggestion that the record does not show that the jurors were residents of Berrien county, that objection was not made in the court below, but the parties appeared and took part in the trial. If in fact the jurors had not been residents of Berrien county, it is altogether likely the objection would have been made before the trial proceeded. It is too late to raise that question now.

As to the suggestion that counsel had a right to be heard by the jury before they rendered their verdict: The jury had viewed the premises, and had listened to such testimony as the parties presented. It does not appear that the respondents insisted upon the right to be heard by counsel. The record does show that considerable testimony was taken after 7:30 o’clock in the evening, and the verdict of the jury was rendered.at 11 o’clock at night. There is nothing in the record to show that, if counsel had insisted upon being heard, the jury would have refused to hear them. We are not called upon to say whether, under the statute, it would be error for the jury, after they have viewed the premises and listened to the witnesses, to refuse to hear counsel when counsel insist upon being heard.

The record discloses an attempt to comply with all the essential provisions of the statute, and we think there was such compliance. Fort-Street Union Depot Co. v. Jones, 83 Mich. 415 (47 N. W. 349), and cases there cited.

The judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


text:
    BENTON HARBOR TERMINAL RAILWAY CO. v. DUNBAR.
    Railroads — Condemnation Proceedings.
    Case ruled by Benton Harbor Terminal Railway Co. v. King, ante, 377.
    Appeal from Berrien probate court; Ellsworth, J.
    Submitted April 11, 1902.
    (Docket No. 93.)
    Decided September 17, 1902.
    Condemnation proceedings by the Benton Harbor Terminal Railway Company against William S. Dunbar and Alice T. Dunbar. From a judgment for petitioner, respondents appeal.
    Affirmed.

      Gore & Harvey, for appellants.

      Kelley & Chase, for appellee.
   Moore, J.

The facts in this case are precisely the same as in the case of Benton Harbor Terminal Railway Co. v. King, ante, 377 (91 N. W. 641), and this case is governed by that.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


text:
    BENTON HARBOR TERMINAL RAILWAY CO. v. HALL.
    Condemnation Proceedings — Evidence—Appeal.
    Where the record on appeal in condemnation proceedings does not contain the testimony, an objection that there was no evidence to sustain the averment of the petition that petitioner had been unable to acquire title to the land will not be considered.
    Appeal from Berrien probate court; Ellsworth, J.
    Submitted April 11, 1902.
    (Docket No. 94.)
    Decided September 17, 1902.
    Condemnation proceedings by the Benton Harbor Terminal Railway Company against Charles W. Hall. From a judgment for petitioner, respondent appeals.
    Affirmed.

      Weldon Bros., for appellant.

      Kelley & Chase, for appellee.
   Moore, J.

Nearly all of the questions involved in this case are disposed of in the case of the same petitioner against King, ante, 377 (91 N. W. 641), and are governed by the opinion in that case. There are some questions, however, which need to be referred to here. It is claimed :

‘ ‘ There is nothing in the petition which shows that the land condemned, or any part of it along .said route, is intended for station grounds; nor was there any evidence tending to show the necessity of the lands, aside, than for general railroad purposes.”

The petition is too long to set out in full here, but a reference to it shows a full compliance with the statutory provision as to what it shall contain.

It is claimed there was no evidence that the petitioner had been unable to acquire title to the land. That statement is averred in the petition, and, as the testimony taken before the jury is not before us, we are unable to say there was no evidence of the fact.

Judgment is affirmed.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


text:
    CARLEY v. JENNINGS.
    1. Appeal — Evidence—Photographs.
    Photographs which were not presented in the court below will not be considered on appeal.
    2. Water-Courses — Obstruction—Injunction.
    Equity will enjoin' a lower proprietor on a stream from so obstructing it as to cause the water to set back onto the lands of an upper proprietor.
    Appeal from Menominee; Stone, J.
    Submitted April 24, 1902.
    (Docket No. 140.)
    Decided September 17, 1902.
    Bill by Ira Oar ley against Llewellyn A. Jennings to restrain the obstruction of a water-course. From a decree for complainant, defendant appeals.
    Affirmed.

      Norwood Bowers, for complainant.

      Sawyer & Waite, for defendant.
   Moore, J.

This is an appeal from a decree m chancery. Ira Carley, complainant, is the owner of 40 acres of land. Llewellyn A. Jennings, defendant, is the owner of the 40 acres lying directly south of the Carley 40, and separated from it by a highway running east and west. The contention of the complainant is that there has always been a stream of water entering his 40 from the swamp on the east near the north end, and' running south and west and across the south line of said 40, flowing onto and across the land of Jennings; that Jennings dammed this stream, causing the water to back up on the land of Carley, causing him damage. The defendant claims that no such natural stream ever existed, but that the lowest part of the swamp on the two 40’s was that part now crossed by the highway, and that the water always accumulated there at its greatest depth, and flowed upon his land only in small quantities, until the ditches which were dug concentrated the water at that place; and that only in time of flood did the water overflow his end of the swamp, which was higher than the road. The complainant asked to have the defendant enjoined from setting the water back upon his land. The case was heard in open court. The circuit judge filed written findings, which, after stating the pleadings, are in part as follows:

“ After listening to the evidence and the arguments of counsel, I viewed the premises in company with the parties and their solicitors, in order that I might more clearly appreciate and understand the evidence. The principal controversy upon the hearing was whether there was originally and by nature a brook or stream across the said lands of the parties, respectively. A highway has existed for more than 20 years, running east and west upon the section line between the complainant’s said land and that of the defendant. More than 20 years ago a corduroy road was built on the low land between these two 40’s, and a culvert was placed there, substantially where the culvert stands today. From the point on complainant’s said land where his present ditch exists, and near the northeast corner thereof, to where the same empties into the highway on the south line, at the highway and above the culvert, there is a gradual fall; but the decline is slight, and probably does not exceed one foot. By a clear preponderance of the affirmative evidence it was shown, and I find, there was a natural stream or place where the water flowed down over complainant’s said land, and across the road at and under the culvert, and onto defendant’s said land, before either of said parcels of land was cleared or improved. The water in this stream or brook did not run at all seasons of the year. It was what was termed by some of the witnesses a ‘swamp’ stream or brook. Its banks were, I am satisfied, open and defined in places, and in other places the stream ran under the roots and fallen timber, coming out again where the ground was open.' The same condition exists now above where the water enters the complainant’s land. Both parcels of land have been cleared, and from that of complainant the stumps and roots have been taken. Since clearing his said land, the complainant has dug a ditch uniform in size and depth along the course of what was the original stream. This is evident from the appearance of the surface. There is no evidence that there were sinkholes or low places of any considerable size upon complainant’s said land, but at the south line, where the ditch exists, it is somewhat depressed, and it is the lowest point of land on said lot. I do not think that the complainant, in the clearing of his land and straightening the stream, has increased the flow of water across his premises. In fact, I think the flow is lessened by the clearing up of the ground, except in case of heavy rains or freshets. It is undisputed that the land of the defendant in question lies below that of the complainant, and that the water, in its natural course, passes from the north to the south, and goes onto defendant’s land, and naturally can go nowhere else. Defendant denies that there was any natural watercourse here, but it appears from his own testimony that, after the stones and obstructions were placed in the ditch •on his premises, the result was to set back the water, and raise it upon the lower part of complainant’s lands. And. he admits that, in times of high water, the flow was south from the complainant’s high land onto that now owned by him.- It is the settled law of this State that the natural flowage of water from the upper estate is a natural servitude which the owner of the lower estate must bear.
“ The natural condition south of the culvert was a matter that was much in controversy on the hearing. The complainant claimed that, upon the line of the present ditch, there was a natural bed or stream, while the defendant contended that no natural channel existed south of the culvert, but that complainant dug the ditch there. The culvert opening having existed there for more than 20 years, it is natural to suppose that, at least in time of high water, there would be some escape of water below. Barney Corcoran testified that in 1894 (being the year of the labor riots in Chicago) he was employed by complainant to do something below the culvert on' the south side. * * * I think that the evidence of this witness as to the existence of a channel below the culvert down .to the fence and onto the defendant’s land was corroborated by the witnesses Burton and Hanley, who both testified to clearing out the stream below the culvert before Corcoran worked there in 1894, and that there was a natural waterway there. So I think, from the testimony of the above-named, and of many other, witnesses, it was shown by a clear preponderance of the evidence that the channel existed substantially as it is now from the culvert down onto defendant’s land, about 15 feet from the fence, for many years.
“ It appears that refuse stuff from a mill had been hauled onto the corduroy bridge, and from time to time in high water it had been carried below, and had filled up the old channel on Jennings’ land, and that Corcoran, at a point from 12 to 20 feet below the fence, left the old channel, and dug a new ditch. Since 1894 the stumps have been pulled in that vicinity, and the former condition of the surface has been much changed. The old channel on defendant’s land having been filled with refuse matter, Corcoran dug a new ditch from about 15 feet south of the fence some distance, and until he found what would seem to be the bed of the stream. I do not think that complainant had any right to change the location of this natural stream, even though the channel had been filled by the action of the natural causes. Complainant has the right to have the water pass away from his land and onto and over defendant’s land in its natural way, but he had no right to dig an artificial channel, even near the old one. Defendant claims by his pleadings and testimony that it is a damage to him to have the water flow down this ditch dug in 1894, and wants it (the water) to remain on the land. I am wholly unable to appreciate the’ claimed benefit. But so long as he does not disturb or interfere with the natural flow of the water that comes down from complainant’s land, I do not think that the complainant can justly complain.
“ It is undisputed that, before the filing of the bill of complaint, the defendant caused to be placed in the channel just-below the highway fence, and on his premises, a quantity of stpne, damming the flow of water, and causing it to be set back upon the lower part of complainant’s land. I find that this obstruction was placed in the old channel, which was cleared out by Corcoran in 1894. While complainant is entitled to the natural flow of the water below this old channel, I think that defendant has a -right to fill up the new ditch, dug in 1894, where it left the old channel, so long as he does not raise the water in the old channel, or interfere with the natural flow below. From the evidence I find that the old channel was left and departed from by Corcoran, in 1894, at a point in the present stream Í5 feet below the highway line and fence. After thé bill was filed, complainant removed most of the stone from this old channel, and at the time of the hearing that part of the stream was practically unobstructed. The water which had been set back upon complainant’s premises by the said obstruction escaped downstream, when such obstruction was removed, in a large measure; but the land of complainant has been somewhat affected by the water standing on it in the early part of May. The season has been wet, and the present condition of complainant’s land near his south line at the ditch, in fact, is owing to this fact. It is difficult to estimate the damage caused to complainant by the conduct of the defendant. Though the amount of damage may not easily be estimated, and in fact in a given season may be small, yet I think that the complainant is entitled to enjoy the natural flow of the water in the old channel on defendant’s land, and the defendant should not be allowed to in any way dam or set back the water therein, and should not interfere with the natural escape of the water below the old channel. In my judgment, the law of the case is set forth by our Supreme Court in the cases of Boyd v. Conklin, 54 Mich. 583 (20 N. W. 595, 52 Am. Rep. 831), and Leidlein v. Meyer, 95 Mich. 586 (55 N. W. 367):”

Some photographs are attached to the supplemental brief of the solicitor for complainant, which were not presented in the court below. They will not be considered here.

Counsel for defendant insist the learned judge reached wrong conclusions in relation to the facts, and that under the law the defendant had a right to do all that he has done and all that he proposes to do. The trial court had the great advantage which comes from seeing and hearing the witnesses. He also viewed the premises. It would not be practicably or profitable to attempt to state in this opinion all that is contained in the record. Leaving out of consideration the advantage of seeing the witnesses and the premises, of which we have already spoken, we think the record, as it appears here, fully justifies the decree which was made in the court below.

The decree is affirmed, with costs.

Hooker, C. J., Grant and Montgomery, JJ., concurred. .


text:
    PEOPLE v. BRESSLER.
    1. Seduction — Time of Offense — Election.
    When evidence has been introduced for the purpose of proving, and tending directly to prove, an act of seduction at the time alleged in the information, the prosecutor will be deemed to have elected that date, and the jury will not be allowed to convict on evidence of an offense committed on a prior date.
    2. Same — Presumption of Chastity.
    It will be presumed that the complaining witness in a prosecution for seduction was chaste at the time of the alleged offense, but this presumption may be overcome by showing previous acts of intercourse.
    3. Same — Unohastity—Reformation.
    Where the evidencé showed repeated acts of intercourse up to August 1st, it will not be presumed that the woman had reformed by the 19th of the same month, the date of the alleged seduction.

      Exceptions before judgment from Cass; Carr, J.
    Submitted May 8, 1902.
    (Docket No. 145.)
    Decided September 17, 1902.
    Hiram Bressler was convicted of seduction.
    Reversed.

      Cassius M. Eby, for appellant.

      Horace M. Oren, Attorney General, and Ulysses S. Eby, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the crime of seduction. He has brought the case here on exceptions before sentence. The information charged that the offense was committed August 19, A. D. 1900. The complaining witness testified to the commission of the offense upon that date. After she had given this testimony, the following occurred:

“ Q. Did he visit you recently after the 19th of August, at the time he was to your house on Sunday night?
A. Well, I don’t know. I think he stopped maybe once a week as he went through town.
“Prosecuting Attorney: Will I be permitted—
The Court: Now, you wish to show when the defendant stopped going to see the complainant ?
Prosecuting Attorney: Yes, your honor.
“The Court: And Mr. Eby objects to that. I think that fact alone may be shown.
“Mr. C. M. Eby: They make the election of the 19th of August, f 900.
The Court: Yes; they are bound by that. But this is tending to corroborate, that is all; and I permit you to show just that fact.”

On the cross-examination the witness testified to having had sexual intercourse with respondent the 1st of August, and upon several occasions prior thereto, she relying upon his promise to marry her. After the testimony was all in on the part of the, people, the respondent moved the court for his discharge, for the reason that the testimony of the complaining witness showed she was not a chaste woman on the 19 th of August, when it was charged in the inf ormation and proved on the direct examination the sexual intercourse occurred. Upon the argument of this motion the following occurred:

“The Court: Well, that is not alleged, you know. You select the 19th of August, and you are confined to that date, under the authorities. Now, if they had intercourse the day before, willingly, there is no seduction on the 19,th. The element of seduction is an inducement to seduce, whereby a chaste woman is seduced, — has intercourse. Now,’ of course, if a young girl promised to be engaged to marry, and the man took advantage of the promise, and persuades her, and she consents, why that is seduction. But if that thing has been going on for some time before that, when did the seduction commence? It commenced at the first intercourse, if it was done by virtue of the promise.
“Prosecuting Attorney: Well, if I understand your honor, that is'the evidence in the case. She testified—
'The Court: You are not allowed to use that evidence in the case. You are bound tjy the date you select, and you select the 19th of August. You are permitted to show familiarity prior to that as corroboration of her story, but you can’t show a crime on any other day than the 19th. There are authorities when you elect a date you are bound by it, and that is the date alleged in your papers all the way through. I asked about it at the time, if you selected a date, and if the 19th was named in the complaint and information.”

The judge held the motion until the following Monday, when he overruled it. At the same time, against the objection of respondent, he allowed the complaining witness to be recalled, and to testify to an act of seduction occurring June 24, 1900. No proof was offered on the part of the respondent.

The judge was requested to charge, among other things, as follows:

“ If thejuryfind thatthe partieshad sexual intercourse at any time prior to the time alleged, then the jury must find, beyond a reasonable doubt, that the girl had reformed, and was a virtuous woman, at the time of the so-called seduction. And the burden of proving such reformation is on the prosecution. If the people haven’t so proven to your satisfaction beyond a reasonable doubt, then your verdict must be, ‘Not guilty.’ ”
“If the jury find the prosecutor elected the 19th of August, 1900, as the date of seduction, before any testi|mony was introduced, then they are bound by that date, rand cannot select some other date upon which they can ask a conviction; and, if you find the prosecutrix was not virtuous on the 19th of August, 1900, you must acquit.”

Which requests were refused, and the court charged the jury as follows:

“Seduction may be defined to be the act of persuading or inducing a woman of previous chaste character to depart from the path of virtue by the use of any species of arts, persuasion, or wiles which are calculated and do have that effect, and resulting in her ultimately submitting her person to the sexual embraces of the person accused. If, in this case, you find that the girl Meta Blanche was before and on August 19, 1900; of chaste character and virtue, and if the respondent, by arts, persuasion, wiles, and promise of marriage, induced her to depart from the path of virtue and to submit to the sexual embraces at that time, this would constitute seduction.
‘ ‘ In order to constitute the offense and convict the defendant, you must be satisfied from the evidence, beyond a reasonable doubt, that on the 19th day of August, or about that time, this girl yielded her person and her virtue to defendant by reason of a promise to marry, made by respondent at the time, and without which she would not have yielded to his embraces.
‘ ‘ If the parties had intercourse for the first time on the 24th day of June, and you are satisfied, beyond a reasonable doubt, that at that date the girl was chaste and pure, and that she yielded her virtue to respondent at that time because of a promise to marry made by the defendant, then the defendant is guilty of seduction, and may be convicted in this case.”

The question presented is whether, under an information charging the offense to have been committed August 19, 1900, and after testimony has been given for the purpose of proving the commission of an offense upon that date, testimony can be given tending to prove the commission of an offense in june, and the jury be allowed to convict upon the latter testimony. It is claimed upon the part of the people that the prosecuting attorney made no election of the date upon which he would rely for conviction. A reference to the record will show that the attorneys and the court understood there was an election. Not only was the offense charged as having occurred August 19th, but, with the presumption of chastity which the law throws around every woman, when the direct examination of the complaining witness was ended, if the jury believed her statement, the offense charged in the information was fully proven as of August 19th. It was not until the complaining witness was cross-examined that it developed that the offense was not committed. It was not a question of mistake in the date. An act of sexual intercourse occurred August 19th, but the cross-examination developéd that the parties had like intercourse, whenever opportunity offered, all through the summer, and so recently before August 19th that it could not be said the presumption was that the woman had reformed. After this had developed upon the trial, it was then sought to show acts in June, upon which a conviction was asked and permitted. We do not see how the case can be distinguished from the cases of People v. Jenness, 5 Mich. 305, and People v. Clark, 33 Mich. 112. In these cases the principles involved are so fully discussed that we do not deem it necessary to repeat the discussion.

The verdict is set aside, and a new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    PEOPLE v. PHILLIPS.
    1. Pure-Food Laws — Colored Oleomargarine — Constitutional Law.
    Act No. 22, Pub. Acts 1901, entitled “An act to prevent deception in tbe manufacture and sale of imitation butter,” which prohibits the sale of oleomargarine colored in imitation of yellow butter made from pure milk or cream of the same, is constitutional.
    2. Same — “Yellow Butter” Defined.
    The term “yellow butter,” as used in said act, means any butter produced from pure milk, or cream thereof, having a perceptible shade of yellow.
    Exceptions before judgment from Kalamazoo; Adams, J.
    Submitted May 8, 1902.
    (Docket No. 153.)
    Decided September 17, 1902.
    John W. Phillips was convicted of having colored oleomargarine in his possession, with intent to sell it.
    Affirmed.

      Frank F. Knapp en and E. M. Irish, for appellant.

      Sheridan F. Master, Prosecuting Attorney (Dallas Boudeman, of counsel), for the people,
   Moore, J.

The respondent was convicted of having on hand with intent to sell, and offering for sale, oleomargarine, colored in imitation of yellow butter, contrary to the provisions of Act No. 22 of the legislature, passed at the session of 1901. It is claimed by respondent that this law is unconstitutional, and is an invalid law. That question was decided in the very recent case of People v. Rotter, ante, 250 (91 N. W. 167), against the contention of respondent, and need not be discussed here.

It is urged as a matter of defense (and we quote from the brief of counsel) :

“That the statute is only aimed against the imitation of a substance which the legislature recognize as yellow butter, and—
“1. The court should take judicial notice that all butter with a trace of yellow in it is not the yellow butter of commerce.
“2. That if this is not true as a proposition of judicial notice, and the court cannot know it, then the respondent should have been allowed to prove, if he could, that there was such a usage of commerce.
“3. That the statute is vague and indefinite in not defining the elements of the statutory crime it attempts to carve out of an act innocent per se, in that it gives no standard for determining what the color of yellow butter is that is not to be imitated.”

The trial judge charged the jury upon that branch of the case as follows

“It is not necessary in this case for the people to have proved that the respondent himself colored the oleomargarine, if you find beyond a reasonable doubt that it was colored. The offense is just as complete, so far as this is concerned, if the respondent purchased oleomargarine colored as above indicated. The offense, as above stated, consists of having the oleomargarine colored, as before indicated, in his possession, with intent to' sell the same, or in exposing it for sale; and if the respondent sold- it in the same condition as he bought it, that would be no defense in this case. The respondent, gentlemen of the jury, is not charged in this information with selling this article; and if you find, beyond a reasonable doubt, he sold it, as claimed by the people in the testimony offered, you may consider this fact on the question of whether respondent had, or did not have, the article in his possession for the purpose of selling it, and you must not consider it for any other purpose. If you find, beyond a reasonable doubt, that respondent did sell the article mentioned in the information to the parties claimed by the people, that would satisfy the statute upon the question of intent to sell.
“ It is not necessary in this case, to entitle the people to a conviction, that the oleomargarine should have been colored to represent any particular kind of yellow butter; that is, such yellow butter as the statute mentions, and as I have indicated to you the statute mentions. If the coloring was put into it, and by using such coloring the oleomargarine was in imitation of light yellow butter, such as the statute mentions, — that is, yellow butter produced from pure, unadulterated milk, or cream from the same,— the offense is committed just the same as if it had been colored to represent darker yellow butter. If you find beyond all reasonable doubt in the testimony in this case, and under the instructions given, that the oleomargarine —if you find it to have been oleomargarine — was colored in such a manner as to be in imitation of any kind of yellow butter, that would satisfy the statute upon the requirement of the question of color. ‘Yellow butter’ I define to be any butter produced from pure, unadulterated milk, or cream of the same, having a yellow color. It is necessary, in order for the jury to convict the respondent, for you to find, beyond all reasonable doubt, that the article in the package sold was colored in imitation of yellow butter produced from pure, unadulterated milk, or cream of the same. If you find beyond a reasonable doubt, under the testimony in this case, that there was some coloring matter in this article, still if you find there was not enough coloring matter in this article to cause it to look like yellow butter having a perceptible shade of yellow, said butter having been produced from unadulterated milk or cream from the samé, then you must acquit. But if you find, beyond a reasonable doubt, there was coloring matter in said article, and sufficient coloring matter therein to make it look like yellow butter, having any» perceptible shade of yellow, said butter having been made from unadulterated milk or cream from the same, that would be sufficient, so far as the requirement of the statute upon the question of coloration is concerned.”

We think this was a proper construction of the language used in the statute.

The conviction is affirmed, and the case remanded for further proceedings.

Hooker, C. J., Grant and Montgomery, JJ., concurred.


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    PEOPLE v. VOORHIS.
    1. Intoxicating Liquors — Taxation—Manufacturers—Discrimination — Interstate Commerce.
    2 Comp. Laws, § 5379, imposing an annual tax of §500 on the business of selling brewed or malt liquors at wholesale, but providing that no person paying a manufacturer’s tax of §65 a year on such liquors shall be liable to pay a wholesaler’s tax thereon, does not so discriminate against a nonresident manufacturer maintaining a selling depot in this State as to render the law repugnant .to the interstate commerce clause of the Federal Constitution.
    2. Same — Wholesalers.
    A manufacturer of brewed or malt liquors in another State cannot sell his product at wholesale from a warehouse in this State without paying a wholesale dealer’s tax. 26 U. S. Stat. 313.
    3. Same.
    Any manufacturer of brewed or malt liquors, who establishes a warehouse for the sale of his liquors at any other place than his brewery, must pay the wholesaler’s tax provided by 2 Comp. Laws, § 5379.
    4. Same — Sales at Brewery.
    The right to manufacture liquors necessarily implies the right to sell the same at the manufactory; and the provision of the statute that “no person paying a manufacturer’s tax on brewed or malt liquors shall be liable to pay a wholesale dealer’s tax on the same ” neither enlarges nor restricts his right to sell his product.
    Exceptions before judgment from Delta; Stone, J.
    Submitted May 8, 1902.
    (Docket No. 155.)
    Decided September 17, 1902.
    Clayton Yoorhis was convicted of violating the liquor law.
    Affirmed.
    Respondent was convicted of the offense of selling and offering for sale brewed and fermented liquors at wholesale without having paid the tax as required by sections 5379, 5380, 3 Comp. Laws, which read as follows:
    ‘ ‘ That in all townships, cities, and villages of this State there shall be paid annually the following tax upon the business of manufacturing, selling, or keeping .for sale by all persons whose business, in whole or in part, consists in selling or keeping for sale, or manufacturing, distilled or brewed or malt liquors, or mixed liquors, as follows: * * * Upon the business of selling only brewed or malt liquors at wholesale or retail, or at wholesale and retail, five hundred dollars per annum; * * * upon the business of manufacturing brewed or malt liquors for sale, sixty-five dollars per annum. * * * No person paying a manufacturer’s tax on brewed or malt liquors under this act shall be liable to pay a wholesale dealer’s tax on the same.
    “Wholesale dealers shall be' held and deemed to mean and include all persons who sell or offer for sale such liquors and beverages in quantities of more than three gallons, or more than one dozen quart bottles, at any one time to any person or persons.”
    The case was tried before the court without a jury, under the following stipulated facts:
    “ That the Minneapolis Brewing Company is a corporation organized and existing under the laws of the State of Minnesota, with its home office and principal business situated at the city of Minneapolis, Minn.; that the business of the said Minneapolis Brewing Company is that of brewing beer and selling and offering the same for sale at wholesale, and as a part of its said business sales were made in the State of Michigan; that, at the time and before the complaint was made in this cause against the said defendant, the said Minneapolis Brewing Company had a cold-storage building situated at the city of Gladstone, in said county of Delta, which was used for the purpose of storing beer therein belonging to the said brewing company, and that at that time there was a large amount of beer stored therein; that the said defendant, Clayton Voorhis, was under the employ of the said brewing company, upon a salary, and received the sum of $100 per month for his services while working for said brewing company; that it was the duty of the said Clayton Yoorhis to unload all the beer from the cars as it arrived at the city of Gladstone, and to store the same in the said cold-storage building, and to deliver the said beer from the said cold-storage building to several and different saloon keepers, in the city of Gladstone, from day to day, as it was required by said retail dealers in their regular course of business, to collect the pay for the same, to collect all bottles and kegs, and reship them to the said brewing company at Minneapolis, Minn., and to do any other work or business required by the said Minneapolis Brewing Company to complete all sales to retail dealers.
    “And it is further stipulated and agreed that the said Clayton Yoorhis has no title or interest in and to said beer,' or the business of selling or delivering said beer to the said retail dealers, and was not in any way interested in said business, except by working for said brewing company upon a stated salary; that, under the terms of said employment with the said brewing company, the said Clayton Yoorhis did receive kegs and bottles of beer upon the cars, and place the same in the cold-storage building as aforesaid, and deliver said beer from time to time, as stated in the complaint in said cause, to the retail dealers in the said city of Gladstone, and received and collected the pay therefor, and remitted the same to the said Minneapolis Brewing Company; and that neither the said Minneapolis Brewing Company nor the said Clayton Yoorhis ever has paid any tax in the State of Michigan, as provided by section 1 of Act No. 313 of the Public Acts of 1887, and never has received nor applied for any license as provided by said section.
    “It is further expressly understood and agreed by and between said parties that this stipulation shall be used in said cause upon the trial thereof as evidence against the said Clayton Yoorhis, and that the facts herein stated are admitted to be true by said Clayton Yoorhis, he, the said Yoorhis, denying that any license is required to be taken out by him by the terms of said statute.”
    Cr. It. Empson (Gobh & Wheelwright, of counsel), for appellant. -

      Horace M. Oren, Attorney General, and John Cummiskey, Prosecuting Attorney (Roger Irving Wykes and Judd Yelland, of counsel), for the people.
   Grant, J.

(after stating the facts). Counsel for respondent state their contention thus:

“ The requirement of the statute, when taken m connection with other provisions of the same act, prescribes a discriminating tax operating to the disadvantage of like products of other States when introduced into Michigan, and is therefore in effect a regulation in restraint of commerce among the States, ‘and as such is a usurpation of the power conferred by the Constitution upon the Congress of the United States.’ It is to be observed that, while by the provisions of section 5379 wholesalers of malt liquors are required to pay an annual tax of $500 in each place where they operate a warehouse or depository, manufacturers of malt liquors, on the other hand, are only required to pay a tax of $65 per annum, and are not required to pay any wholesaler’s license whatever; so that, while the importer of malt liquors into the State of Michigan must pay a wholesaler’s license of $500 in each place where he operates a warehouse or depository for the storage of his product in original packages, the local manufacturer, although operating a warehouse or depository in the same place where the importer operates and maintains his, is not compelled to pay any wholesaler’s license whatever. A burden, therefore, is placed upon the foreign product not borne or sustained by the home producer, and consequently the former cannot compete in the local market with the latter. The discrimination, therefore, in favor of the product of the home brewer is clear; and is just as clear as it would have been if the legislature had declared in express terms that beer not produced or brewed in Michigan, but transported into that State from other States for sale there at wholesale, should be subject to the payment of a tax not imposed upon a similar product brewed or produced at home. This discrimination being clear, no conclusion can be reached except that the statute authorizing and directing the same is repugnant to the interstate commerce clause of the Federal Constitution.”

If the premises assumed by the learned counsel are true, their conclusion inevitably follows; for the statute would then prescribe a discriminating, tax, which has been held by many decisions of the Supreme Court of the United States to be void. The defect in the argument of counsel lies in the falsity of their premises. No manufacturer of brewed or malt liquors can establish a warehouse or depot or place of sale at aqy other place than that of his brewery, and avoid the payment of the tax as a wholesaler. People v. De Groot, 111 Mich. 245 (69 N. W. 248). That case is conclusive upon this point. Certainly the same rule must apply to manufacturers from outside the State as applies to manufacturers within the State.

The right to manufacture necessarily implies the right to sell the manufactured product at the manufactory. One who thus sells the liquors mentioned in the statute, manufactured by him, is not a ‘‘ wholesaler ” of liquors, within the popular or legal definition of that word. The provision that “no person paying a manufacturer’s tax on brewed or malt liquors under this act shall be liable to pay a wholesale dealer’s tax on the same ” neither enlarges nor restricts the right of the manufacturer to sell his product. The statute, without this language, would give him the same right of sale that he has with it, viz., the right to sell his product at his brewery. The manufacturer is entitled to keep his goods in store at the place of manufacture for the purposes of sale when receiving orders, and in so doing is not a “wholesaler,” within the popular or legal definition of that word. “Articles which the consumer recognizes as single the retailer keeps wrapped up in dozens, the wholesaler sends the gross, and the manufacturer supplies in packages of a hundred gross. ” 8 Cent. Dict. Enc., under definition of the word “wholesaler.”

It is manifest from an examination of the various provisions of this act that the legislature intended to limit the right to manufacture or sell at wholesale or retail in but one place without the payment of an additional tax. Before either can do business in any place in any county, he must file with the county treasurer a statement in writing and on oath, giving his name and residence, and the ward, village, or township in which he proposes to carry on the business, whether to manufacture, to sell at retail, or wholesale. One cannot carry on two saloons in the same municipality without the payment of two taxes. A manufacturer cannot maintain two separate breweries in the same municipality without paying two*taxes.

There is no discrimination in this case between the home and foreign manufacturer. Either can freely sell his products upon orders received at his place of manufacture, both within and without the State, and each is subject only, in such manufacture and sale, to the regulations imposed by the law of the State where his manufactory is located. This law places both the home and the foreign manufacturer upon the same basis by providing that when each establishes a warehouse in which he deposits his products for sale, and there establishes an agent to carry on the business of selling, he becomes a wholesaler, and is subject to the laws of the State where he assumes to carry on such business. Such, in fact, is the provision of the act of Congress passed after the case of Lyng v. Michigan, 135 U. S. 161 (10 Sup. Ct. 725), was decided. That act was approved August 8, 1890. It is entitled, “An act to limit the effect of the regulations of commerce between the several States and with foreign countries in certain cases.” It provides that “all fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory, or remaining therein, for use, consumption, sale, or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.” 26 Stat. 313.

Under the stipulated facts, the Minneapolis Brewing Company placed the respondent in charge of selling its product at Gladstone, in the State of Michigan, and sent its product to him for sale. Under the above act the business then came within the control of the people of this State. We think that this question is fully settled against.the contention of the respondent by Reymann Brewing Co. v. Brister, 179 U. S. 445 (21 Sup. Ct. 201). It is there stated (at page 456):

“If they [brewing companies] establish places within the State, distinct from the manufactory, where their goods are to be stored, for the purposes of sale and delivery, and such goods are there sold and delivered, then they become traffickers, within the meaning of the law, and are liable to pay the tax.”

The law involved in that case is substantially the same as the one now before us for construction, and the facts are almost identical with those in this case.

It follows that the conviction must be affirmed, and the court below instructed to proceed to sentence.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


text:
    HALL v. CITY OF KALAMAZOO.
    Replevin — When Lies — Possession oe Property.
    An action of replevin cannot be maintained where plaintiff fails to show that, at the time of suing out the writ, defendant either had the property in his possession or under his control, or was a party to its concealment.
    Error to Kalamazoo; Adams, J.
    Submitted June 4, 1902.
    (Docket No. 3.)
    Decided September 17, 1902.
    Replevin by "William B. Hall against the city of Kalamazoo and Fred Winslow, city treasurer. From a judgment for defendants, plaintiff brings error..,
    Affirmed.

      E. A. Crane, for appellant.

      Harry C. Howard, for appellees.
   Grant, J.

Defendant Winslow, as treasurer of the defendant city, levied upon certain personal property as the property of the Kalamazoo Gas & Electric Company, and sold it, to secure the collection of taxes which had been assessed against the company. Plaintiff, claiming title, brought this action of replevin to recover said property. The property not being found in the possession of either of the defendants, he asked judgment for the value. The case was tried before the court without a jury, and judgment rendered for the defendants.

The court found against all the claims of the plaintiff, and we think correctly. The finding is very long, and it is unnecessary to consider all the points raised. One finding is conclusive against the plaintiff’s right to judgment. Plaintiff failed to show; that the defendants had possession or control of the property at the time the suit was commenced. It is not claimed that the defendants had concealed the property. Mr. Winslow had sold it at public auction. The plaintiff was present by his attorney, and protested against the sale, and was therefore in position to know who bought it, and in whose possession it was. No action of replevin would lie against Mr. Winslow without showing that he either had the property in his possession or under his control, or had been a party to its concealment. A purchaser at an auction sale of personal property for cash presumptively takes possession. At all events, replevin is a possessory action, and the plaintiff must show not only the right of possession in himself, but also the unlawful possession in, or detention and control by, the defendant. Cobbey, Repl. § 64; Hinchman v. Doak, 48 Mich. 168 (12 N. W. 39); Reid, Murdoch & Co. v. Ferris, 112 Mich. 693 (71 N. W. 484, 67 Am. St. Rep. 437).

Judgment affirmed.

Hooker, C. J., Moore and Montgomery, JJ., concurred.


author: Hooker, C. J.

text:
    MERRYMAN v. HALL.
    Negligence — Boiler Explosion — Inspection—Evidence.
    In an action for injuries caused by the explosion of a boiler, where the negligence relied on is a lack of reasonable inspection, evidence showing the construction of the boiler, and that it was not practicable to remove the flues to ascertain the condition of the braces, is admissible for its bearing on the question of whether ordinarily prudent men would make such inspection.
    Error to St. Clair; Whipple, J.
    Submitted June 4, 1902.
    (Docket No. 15.)
    Decided September 17, 1902.
    Case by Frederick I. Merryman against Edmund Hall for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Oscar M. Springer (P. H. Phillips, of counsel), for appellant.

      Avery Bros. & Walsh (Cyrus A. Hovey, of counsel), for appellee.
   Hooker, C. J.

A former review of this cause is reported in 124 Mich. 263 (82 N. W. 881). Upon the last trial it was submitted to the jury upon two grounds of negligence, viz.: First, that of the fireman; second, a want of reasonable inspection of the boiler. The cause is here upon over 100 assignments of error. We have patiently examined each of them, and feel justified in saying, as to some of them, that, if counsel had as carefully examined the record, they could not. have failed to see that they were groundless, and many of them are frivolous. Of them all we find but two that we care to mention specifically, viz., the fortieth and forty-second. The defendant’s counsel sought to show that it was not practicable to remove the flues from the boiler for the purpose of ascertaining the condition of the braces. Again, they sought to show to the jury the construction of the boiler. .This testimony was excluded.

It may well be doubted whether one who owns a boiler should be expected to remove all of its flues periodically to ascertain whether the braces áre defective, and a jury, before passing upon that question, should be allowed to understand the construction of the boiler, and the usual practice among those using similar ones; for the question is whether ordinarily prudent and careful men would do so. If not, it is not negligence to omit it. This testimony should have been received.

We are constrained to reverse the judgment, but in the taxation of costs the appellant will be allowed but half of the items for printing the record and brief.

Moore, Grant, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    WICKES v. PULFREY.
    1. Appeal — Record—Findings op Fact — Review op Testimony.
    Where the record on appeal in a case tried without a jury contains no findings of fact, the question of whether the testimony supports the judgment will not be considered.
    3. Same — Opening Case After Judgment.
    Where a ruling of the trial court on a request to open the case after judgment to permit the filing of a request for findings does not appear in the record, it. will not be considered on appeal.
    Error to Clinton; Stone, J.
    Submitted June 4, 1902.
    (Docket No. 9.)
    Decided September 17, 1902.

      Assumpsit by Lyman R. Wickes against Columbus E. Pulfrey on an account stated. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Lewis Severance, for appellant.

      Will H. Brunson, for appellee.
   Montgomery, J.

This case is brought before us for review on error. The case was tried before the court without a jury, and resulted in a judgment for defendant. No finding of facts appears in the record.

The plaintiff’s brief is devoted to an argument that a different result should have been reached, the contention being that the testimony was such as entitled the plaintiff to a judgment. It has been repeatedly held that such a question cannot be considered without a finding. Plumer v. Abbey, 39 Mich. 167; Wertin v. Crocker, 47 Mich. 642 (6 N. W. 683); Morgan v. Botsford, 82 Mich. 153 (46 N. W. 230); Township of Cumming v. Schick, 94 Mich. 222 (54 N. W. 40); In re Buchan’s Estate, 100 Mich. 219 (58 N. W. 1003).

In this case it is stated in plaintiff’s supplemental brief that a request was made to the circuit judge, on the day after judgment was entered, to open the case, and permit a request for findings to be filed. This ruling does not appear in the record, and, if open to review by this court in any proceeding, cannot be considered on this appeal.

The judgment will be affirmed.

Hooker, C. J., Moore and Grant, JJ., concurred.


text:
    MEIGS v. BROMLEY.
    Bills aíid Notes — Consideration — Indulgence — Collateral Security — Subrogation.'
    Plaintiff sold a lumber business to one of the defendants, who, as a part of the consideration, agreed to pay certain notes given by him for plaintiff’s accommodation, and bearing his indorsement. The bank holding the notes refused to extend them, and threatened suit unless “ live paper” should be given in their stead; whereupon an arrangement was made by which said defendant paid one-half of each note as it matured, and gave the note of himself and co-defendants for the other half. As each of the latter notes fell due, it was paid by check; a new note for a like amount being given by defendants, and the proceeds placed to their credit. This course was continued for some four years, during which time no effort was made to collect the notes indorsed by plaintiff, and they were not carried on the books of the bank as part of its assets, while defendants’ notes were so carried. Subsequently judgment was obtained against plaintiff on his indorsement, which he paid, and then sued defendants on their notes, claiming to have become subrogated to the rights of the bank. Held, that such notes were supported by a sufficient consideration, and that defendants were liable thereon.
    Error to Mecosta; Palmer, J.
    Submitted June 4, 1902.
    (Docket No. 1.)
    Decided September 17, 1902.

      Assumpsit by Arthur Meigs against Enoch Bromley, Mahlon Carman, and J. Herbert Childs on certain promissory notes. From a judgment for defendants, plaintiff brings error.
    Reversed.

      G. H. Gleason (Arthur Lowell and John T. Glark, of counsel), for appellant.

      A. B. Gogger and M. Broivn {Frank Dumon, of counsel), for appellees.
   Moore, J.

This suit was commenced by declaration, which, omitting the formal part, states in substance as follows: That plaintiff and one Richard G. Peters, during the years 1890 to 1894, were partners doing business under the firm name of Arthur Meigs & Co. It averred the assignment by that firm and by Mr. Peters to the plaintiff of the claim in controversy; that Arthur Meigs & Co., prior to October 1, 1890, were engaged in business, which business was under the care of defendant Mahlon Carman, and on the 1st day of October, 1890, Meigs & Co. sold its business to said Carman, who in part consideration agreed to pay all the indebtedness pertaining to the said business, that he would pay, as they matured, certain notes, aggregating $10,000, made by said Carman, indorsed by said Arthur Meigs & Co., owned by the Big Rapids National Bank, and would protect Meigs & Co. from said notes and their indorsement thereof; and in pursuance of said agreement the said Carman did afterwards pay to the said bank one-half of said notes as they matured by paying one-half of each of said notes as it matured, and for the amount of the other half of said notes the said Carman gave said bank the notes of the said defendants herein as collateral security for the payment of the other half of said notes, which notes defendants have never paid, and because of such nonpayment the bank sued Meigs & Co. and the said Richard G. Peters as a member of said firm of Arthur Meigs & Co. for the said unpaid deferred half of said notes, and recovered judgment against the said Richard G. Peters and said plaintiff for the amount unpaid on the said notes, which judgment the said plaintiff has been compelled to pay, and because of said payment plaintiff became subrogated to the rights of said bank in the said notes of said defendants herein, and became the owner of said notes, and entitled to bring suit thereon.

Other details of the situation were set out in this count, and an averment of damages was made. Then followed all the common counts in assumpsit, with an ad damnum clause attached. Then followed a notice that, under the money counts, two notes would be given in evidence, copies of which were attached. One of the notes reads as follows:

“$2,359.52. Big Rapids, Mich., Oct. 30, 1894.
‘ ‘ Ninety days after date we promise to pay to the order of M. Carman twenty-three hundred and fifty-nine and 92-100 dollars at the Big Rapids National Bank of Big Rapids, Mich., value received, with interest at eight per cent, per annum.
“Bromley, Carman & Childs, M. C.”
Indorsed on the back, “M. Carman.”

The other note read the same except the date and amount.

The defendants pleaded the general issue, and gave notice of special defenses. The defendants Bromley and Childs each filed an affidavit denying the execution of the notes. After the testimony was all in, plaintiff’s attorney asked the judge to direct a verdict in his favor. The judge declined to do so. The plaintiff requested the judge to give a large number of requests to charge. He declined to do this, except as he covered some of them in his general charge. The case was submitted to the jury, which returned a verdict in favor of defendants. The case is brought here by writ of error.

A great many assignments of error are presented and argued by counsel. We do not deem it necessary to discuss many of them. The facts are not at all complicated. Prior to October, 1890, Mr. Carman was employed by Meigs & Co. This company was composed of Mr. Meigs and Mr. Peters. For the purpose of getting funds for their use, Carman had made eight notes, aggregating $10,000, which were indorsed by Meigs & Co., and were discounted at the Big Rapids National Bank. In 1890, Meigs & Co. became embarrassed, and about the 1st of October sold their business to Carman, he agreeing, among other things, as part of the consideration for the sale to him, to pay the eight notes before mentioned. He paid half of the amount due on them in cash, under circumstances which will appear later. The bank later sued the notes, and got a judgment, which was affirmed in this court. The case is reported as Big Rapids Nat. Bank v. Peters, 120 Mich. 518 (79 N. W. 891). A reference to that case will help to understand this one. After that case was decided, Mr. Peters paid the judgment, and assigned his interest in it and the claim against the defendants in this- case to the plaintiff herein.

Upon the trial of this case Mr. Carman testified, among other things:

“The firm of Arthur Meigs & Co. was composed of Arthur Meigs and Richard G. Peters. At the time of Peters’ failure these notes were all in the bank. I saw Meigs just before then. I was in Grand Rapids. Mr. Meigs proposed to me to turn over the Mecosta business to me by my paying the Arthur Meigs & Co. indebtedness at Mecosta, and that was consummated in that way that afternoon. The first time I went to the bank — the next day or two after Mr. Peters failed — I asked Mr. Comstock if he would extend the time of this paper by my paying a pórtion of it when it became due and the balance some time in the future, and he said he could not accept it in that way; that I could pay whatever I could, but he could not extend any time, or have any extension of time; and I asked him if I could use the paper of Mr. Childs and Mr. Bromley with myself as the maker, and take up the balance of this paper, and he said I could not. I told him that I had not made any arrangement with Mr. Bromley and Mr. Childs to that effect, but thought I could. He said it would not do any good, that I could not do it that way, but, if I could get Mr. Bromley and Mr. Childs to sign papers or notes that they could carry in the bank in the place of the Peters paper, that he would allow me to do it.' I told him I would go home and try and make that arrangement, and then went home, as near as I can state. When I asked Mr. Comstock to accept this paper, he would not take it only to carry in the bank as live paper in place of the Peters paper, as he claimed that after they had carried past-due paper a certain length of time — I think it was six months — it would have to be charged off, and he would certainly have to sue us, or do something, if some such an agreement was not made. He would not let me have the Peters paper unless I would pay it in full. I tried to get the paper at that time, and tried hard, and he would not let me have it.
Q. Whether anything was said between you and the bank president or the bank cashier about the rights of the bank to sue upon this Peters paper ?
“A. They always claimed they had a right to sue on it, and should sue on it. * * *
“At the time I was talking with the president and cashier, I wanted to make an arrangement whereby I could take care of this original $10,000 of Arthur Meigs & Co., as I had agreed to, I could not pay it all as it fell due, but thought I could along in the future, if I could get an extension of time; and I asked Mr. Comstock if I could ..make that arrangement with him, make that arrangement with Mr. Bromley and Mr. Childs to help me out in the indorsement or the signing of these notes. Mr. Comstock would not agree to it, but in our conversation, and telling them what I thought I could do, they said that, if I could get Childs and Bromley to make paper that they could carry in the place of the Peters and Meigs, paper in their bank, with the understanding that there should be no extension of time on the Meigs and Peters paper, and that they still held and would hold Mr. Meigs and Peters responsible, — they would not accept this paper as part payment, or they would not accept the paper as an extension, but they would accept it and carry it in the bank as live paper; and then went on and gave the reason which I stated before, — something about the bank could not carry past-due paper only such a length of time, and it would have to be charged off, and, if it came to that, they would certainly sue me for it if I didn’t do something of the kind. So I went to Mecosta, and got Bromley and Childs to go up there with me, and talked it over with them, and they said they would do anything in reason that they could do, and they went up there, and we finally made an arrangement ■ in that way as the bank proposed, and took the Bromley and Childs paper to carry in the bank, as they stated, as live paper in place of the Peters paper.
Q. State how much you put in as these notes matured.
“A.' As each note matured I gave the bank one-half the amount of the Arthur Meigs & Co. paper in cash, and put in Bromley, Carman & Childs paper for the other half. ❖ * *
Q. Had they told you before that, if you would get Mr. Bromley and Mr. Childs with you, they would not sue you ?
“A. They did not tell me they would not sue me.
Q. They told you, if you would get them, it could run ?
“A. They didn’t say so; no, sir.
Q. They would carry it in place of the other indebtedness ?
“A. Yes, sir.
Q. And these Bromley, Carman & Childs notes were for the half of that original indebtedness ?
“A. Yes, sir; and as each Arthur Meigs & Co. note matured I put in a Bromley, Carman & Childs note for identically one-half of that note, and as each Bromley, Carman & Childs note became due they sent me notice that note would be due at a certain date, and I paid that note when it became due by check, and either paid the discount at the time I put it in or took it up. * * *
“Bromley and Childs went with me to the bank at the time the arrangement was made before any notes were given, — the second time I went. I was engaged with them in business at the Soo. I was myself carrying on the old Arthur Meigs & Co. business at Mecosta. I did not keep a separate bank account for myself and for Bromley, Car-man & Childs. It all went into my bank account. The business was done in the name of M. Carman except from June 1, ’91, to October 20, ’91, when it was done in the name of M. Carman Shingle Co. All the business I had anything to do with was done in that way. Business at the bank was done under the name of M. Carman Shingle Co. from first of June to last of October. After that it was in the name of M. Carman.”

Mr. Bromley testified to substantially the same state of facts as did Mr. Carman. On the cross-examination, among other things, he said:

“Mr. Comstock said that the notes he held of Peters & Co. or Meigs & Co. and Carman were good; that he could collect on them. They had just failed, as I understand it; he knew it, and we knew it, and it was talked over there. I do not know whether he meant that he could collect of Carman. We were to put our notes in there to carry one-half of the Arthur Meigs & Co. paper until that paper was paid, and it was agreed there between us and Mr. Comstock that Mr. Carman should give those notes in that way, and sign all with the firm name of Bromley, Carman & Childs.
Q. Didn’t you understand, at the time you gave this paper, or consented that he should give it, that it would save suit being brought against Mr. Carman on the old notes ?
“A. I think there was something to that effect. Mr. Carman was in business with us at that time in the Carman Shingle Co. business. The difference .in the business he had been carrying on for Mr. Meigs and our business was he bought and sold, while we manufactured and sold. Mr. Comstock said he would take the new paper, but he would not give up the old paper; that he would simply hold it there.
Q. Did he say he did'not want to give up his old security, but he would take this additional security ?
“A. He said he would not give up the old paper.
Q. But he would take this ?
“A. He would take this paper to carry as live paper in the bank.
“ Q. To represent the same indebtedness ?
“A. I suppose so. I did not sign any of the first Bromley, Carman & Childs notes that were given. That was all left for Mr. Carman to do. I think I did sign one when Mr. Carman was away, along in 1891, I think.”

Mr. Childs was also sworn as a witness, and told substantially the same thing. On the cross-examination, among other things, he said:

“ Q. You made an arrangement there, and put your paper in for one-half the old Meigs & Co. paper as it matured ?
‘A. I suppose that is the way Mr. Carman was to use it at proper times.
Q. It was talked about and agreed upon at that time?
“A. Yes, sir.
“ Q. And agreed that he should put that paper in?
“A. Yes, sir.
‘ ‘ Q: He was to sign it how ?
“A. I suppose as Bromley, Carman &• Childs.
“ Q. Was that talked about ?
“A. Yes, sir.
“ Q. It should be signed that way ?
“A. Yes, sir.
Q. That paper was to be carried in that way until the other paper was collected ?
“A. He didn’t say that. It was to be carried as live paper on the books. He didn’t say anything about that at all.
Q. It was to be carried as live paper on the books ?
“A. He said all the time that the other paper was good, though; that he should get his pay out of the other paper.
Q. That he could get his pay ?
“A. Yes, sir.
“ Q. Now, just tell us what he said about liability upon that paper.
“A. Who was liable?
“ Q. On the paper that you gave.
“A. He didn’t say anything.
Q. He said nothing ?
“A. No, sir.
Q. Did Mr. Comstock say anything about any liability on this new paper you were to give ?
“A. No, sir.
Q. Did either of the Comstocks say anything?
“A. No, sir. They were relying on the other paper to get their pay. That was the way they talked all the way through, and we thoroughly understood it that way.
Q. You understood they could collect on the other paper ?
“A: Yes, sir.
Q. But the matter of your liability on this paper was not discussed at all?
“A. No, sir.”

He modified this statement by saying the Comstocks did not understand these notes were to be páid. The version of the bank officers of the transaction was not given.

A large mass of correspondence between the bank and Mr. Carman was put in evidence, which shows that, when a Bromley, Carman & Childs note became due, their note for a like amount was sent to the bank, with a request that it be discounted and credited, and a check for the amount due on the maturing note was inclosed, with a request that it be received as payment of the maturing note, which note was canceled, and sent to Mr. Carman. This course was continued from October, 1890, until October, 1894, when the two notes involved here were given, and all the other Bromley, Carman & Childs notes were surrendered.

We do not deem it necessary to express any opinion as to whether the oral testimony was competent or not, nor to decide whether certain portions of the charge were proper. There was no ambiguity about the letters. When the testimony was all in, there was no doubt about the authority of Mr. Carman to make these notes. Carman, Bromley, and Childs were all present when the arrangement was made that he should put these notes in the bank just as he did do. It is impossible to read the record without reaching the conclusion that the bank was insisting upon the notes given by Carman and indorsed by Meigs & Co. being paid or sued, or that live paper should be given in the place of them. For reasons best known to themselves, Bromley and Childs did not want Mr. Car-man sued, and came to his assistance. The result was that Mr. Carman paid one-half of the amount of the notes indorsed by Meigs & Co., which Carman had agreed to pay, in cash, and put in the bank Bromley, Carman & Childs notes for the other half; and the bank carried the Meigs & Co. notes for upwards of three years without requiring any further payment to be made upon them or suing them, and for more than three years discounted the notes of the defendants, crediting the amount, and receiving checks in payment of the maturing notes. After the Bromley, Carman & Childs notes were put into the bank, the notes indorsed by Meigs & Co. were not carried on its books, but the others were, as live notes, and part of the assets of the bank. Under these circumstances the defendants cannot now be allowed to say they incurred no liability by giving these notes. The judge should have directed a verdict in favor of the plaintiff, as requested. Calkins v. Chandler, 36 Mich. 320 (24 Am. Rep. 593), and the cases there cited; Aultman & Taylor Co. v. Gorham, 87 Mich. 233 (49 N. W. 486); Gumz v. Giegling, 108 Mich. 295 (66 N. W. 48).

Judgment reversed, and new trial ordered.

Hooker, C. J., Grant and Montgomery, JJ., concurred.