author: Moore, C. J. Brooke, J.

text:
    GRUBAUGH v. SIMON J. MURPHY CO.
    1. Trial — Misconduct of Counsel — Prejudicial Error.
    In an action for personal injuries, where counsel for plaintiff deliberately placed before the jury facts designed to advise them that the real defendant was an insurance company, such conduct was so prejudicial as to require a reversal of the judgment in plaintiff’s favor, although the trial court instructed the jury to pay no attention to the remarks of counsel, and that the question of liability insurance was not at issue. Moore, C. J., and Bird and Sharpe, JJ., dissenting.
    2. Same — Excessive Verdict — Damages.
    A verdict for $18,000, under the circumstances of this case, held, excessive. Moore, C. X, and Bird and Sharpe, JX, dissenting.
    3. Parties — Assignment as Security — Real Party in Interest —Question for Jury.
    In an action for personal injuries, where plaintiff had made an assignment of his claim, but there was testimony that said assignment was given as security merely, the trial court was not in error' in submitting to the jury the question as to whether plaintiff was the real party in interest under 3 Comp. Laws 1915, § 12353.
    4. Trial — Evidence—Exhibition of Injured Arm.
    Where plaintiff was on the stand as a witness in his own behalf, the trial court was not in error in allowing him. to enter the jury box and in permitting the jurors to feel his injured arm.
    On excessiveness of verdicts in actions for personal injuries other than death, see comprehensive note in L. R. A. 1915F, 30.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted October 10, 1919.
    (Docket No. 26.)
    Decided April 10, 1920.
    Rehearing denied June 17, 1920.
    Case by Luther A. Grubaugh against the Simon J. Murphy Company for personal injuries. Judgment
    for plaintiff. Defendant brings error.
    Reversed.

      Keena, Lightner, Oxtoby & Hanley, for appellant.

      Max Hulett and Anderson, Wilcox & Lacy (Wilkinson, Routier & Hinkley. of counsel), for appellee.
   Moore, C. J.

(dissenting). The plaintiff, a building contractor, 42 years of age, while attempting to become a passenger in one of the elevators in the Penobscot building in Detroit, received severe injuries for which he obtained a verdict and judgment against the defendants in the sum of $18,000. A motion was made for a new trial, which was overruled. The case is brought here by writ of error.

The questions raised by appellant are:

(1) It is the claim of defendant that it was prejudicial error for the trial judge, in the presence of the jury, to question defendant’s counsel as to the interest of a liability insurance company in the case, and to permit counsel for the plaintiff, during his examination of the jury, to interrogate defendant’s counsel upon the same subject; that this was unnecessary to protect the interests of plaintiff, and was done by plaintiff’s counsel only to prejudice defendant in the eyes of the jury, and that this error was of such a nature the court could not correct it by afterwards admonishing the jurors to disregard it. The matter undoubtedly influenced the jurors on the question of liability, and in view of the extraordinarily large verdict rendered for injuries such as were sustained by the plaintiff, there can be no question not only that it had an influence on the question of liability, but also that it had a direct bearing upon the size of the verdict prejudicial to the interests of the defendant.
(2) In view of the fact that plaintiff had assigned his cause of action to the Harding Lumber Company and the Highland Park Paint & Glass Company, these assignees became real parties in interest, and under the statute should have been joined as such. This maneuver on the part of plaintiff also enabled him to bring before the jury the fact that he was indebted to these two concerns in a substantial amount, and the payment of their accounts must first be taken from any judgment entered in his favor. This very clearly tended to enhance the verdict beyond an amount to which the plaintiff was properly entitled.
(3) The court erred in permitting5 the plaintiff to enter the jury box and allowing all of the jurors to feel his alleged injuries.
(4) The verdict was excessive.

We will consider these groups in the order above stated.

1. The important part of the record giving rise to this question is as follows:

“On the voir dire examination of the jury, the following proceedings took place:
“Mr. Hanley: That the real parties in interest in this action are the Highland Park Paint & Glass Company and the H. W. Harding Lumber Company. * * * Now, as I said, it is our claim and the claim is not an imaginary one or fictitious one, but it is based upon a written assignment made by Mr. Grubaugh, that the parties in interest in this case are, as I stated, the Harding Lumber Company and the Highland Park Paint & Glass Company, and from the papers we have in our possession that have been turned over to our client by Mr. Grubaugh, through Mr. Routier, his attorney, the only persons who will benefit by any judgment that may be rendered in this case will be the Lumber Company and the Paint & Glass Company. * * *
“Mr. Routier: Mr. Dentz, didn’t I ask you this morning—
“Mr. Hanley: Just a minute. I object to .any interrogation of Mr. Dentz, or anybody else by counsel unless they are on oath and the usual procedure. I don’t know of any right that gives Mr. Routier or anybody else any authority to interrogate counsel. Mr. .Dentz is one of the lawyers in this case, a member of the bar, and associated with me in the trial of the case.
“Mr. Routier: I was asking Mr. Dentz, if your honor please, who he was with, who his employer was. He is here at the table with the attorney for the defendant, or with the attorneys for the defendant; I think I am entitled to know that.
“Mr. Hanley: I will tell you his employers, the Simon J. Murphy Co.
“Mr. Routier: Mr. Dentz, didn’t you tell me this morning with whom you are associated?
“Mr. Hanley: Just a minute. Don’t answer.
“Mr. Routier: Well, if your honor please, I can say that Mr. Dentz informed me this morning he was associated with the Standard Accident Insurance Company, and I was going to ask Mr. Phillips if he had ever worked for the Standard Accident Insurance Company.
“Mr. Phillips: No, sir.
“Mr. Hanley: Just a minute. I object to that, your honor, as grossly improper and known by Mr. Routier to be grossly improper and made by him after objection and in accordance with the practice of this court I ask that this be declared a mistrial.
“The Court: Is the Standard Accident Company concerned in this case? If they are, I think he has a right to ask the jury about them.
“Mr. Hrnley: That question is addressed to Mr. Routier?
“The Court: No, to you.
“Mr. Hanley: With due respect to your honor, I hardly think that is a proper question to put to me. This case is defended by the Simon J. Murphy Company.
“The Court: You are asking for a mistrial because he referred to it. I cannot pass on it unless I know. 'H* $ H*
“Mr. Hanley: No showing that the Standard Accident Insurance Company is interested in this case whatever.
“Mr. Routier: Well, Mr. Dentz told me this morning that he was connected with it, and I asked him, if your honor please, and he answered me that he was.
“Mr. Hanley: I again take exception to the remarks of counsel, and in accordance with the practice of this court, I ask that the jury be dismissed and the case continued for the term.
“Mr. Lacy: If your honor please, I suggest the question you asked counsel is a very appropriate question.
“The Court: I think it is. I don’t know how you are going to determine. It certainly does not make any difference with, this jury’s verdict and cannot make any difference if the insurance company — if the defendant is insured, and I shall instruct them very positively upon that, but at the same time if the defendant is insured I think counsel have a right to examine the jury in reference to their possible connection with the company that insures the defendant. How are they going to examine them? My question therefore is, Are they insured by this company? If they are_, he may proceed; if they are not, why he has got no right to examine them about it at all. * * *
“Mr. Routier: Pardon me, judge, will you say Dentz is not connected with the Standard Accident?
“Mr. Hanley: I will say nothing except what is with reference to this case. * * *
“Mr. Lacy: There is nothing here to show that there is any liability insurance. We don’t know. The question as to whether there is or not is utterly immaterial. Mr. Routier was merely about to ask the question to ascertain the antecedents of jurors as a basis for peremptory challenge. That is all. And it was intended in perfectly good faith as a basis for the peremptory challenge so that we might ascertain the antecedents and the relations of the jurors, and that is-the only purpose of this.
“Mr. Hanley: After the statement of counsel, I renew my motion.
“The Court: The motion is denied. I do hot think that counsel should have interrogated the counsel at the table, but I do not think that is ground for a continuance and I instruct the jury that under no circumstances should you pay any attention to any of this controversy that took place here, any remarks of counsel. The question of liability insurance is not at issue here at all and you are to pay no attention to it. Counsel may, however, ask the jurors, if he so desires, whether they are stockholders or have relatives or work themselves for the company. * * *
“Mr. Hanley: Pass the jury for cause.
“Mr. Routier: Pass the jury for cause.
“Examination of jury continued.' Both sides satisfied. Jury sworn. Recess.”

We quote from the brief of appellant:

“There is nothing in the record to indicate in any.' way that the defendant was covered by liability in-} surance in any company, and the persistent and repeated attempts of plaintiff’s counsel to show to the jury that the case was being defended in court by attorneys in its employ, could have been done for only one purpose, and that is the one we have here referred to. We are not considering in this case a simple inquiry addressed to a juror as to whether or not he was interested in any insurance company, made in good faith for the purpose of exercising peremptory challenge, but we have a bald attempt, in the very outset of the case, to inform the jury that some insurance company would have to pay whatever verdict they might return. It is idle to say that after this controversy in the presence of the jury, the error could be corrected by the court simply cautioning the jurors to disregard what had taken place upon this subject.”

Counsel cite, in support of their contention, Kerr v. Manufacturing Co., 155 Mich. 191; Fitzgerald v. Railway, 206 Mich. 273; Hughes v. City of Detroit, 161 Mich. 283 (137 Am. St. Rep. 504); Morrison v. Carpenter, 179 Mich. 207, 222 (Ann. Cas. 1915D, 319), and other authorities.

As to the first of these cases the objectionable matter did not arise on the voir dire and Justice Montgomery, speaking for the court, said:

“Defendant’s counsel thereupon moved the court to withdraw the case from the consideration of the jury. This was refused, and so far as the record discloses, there was no reprimand of plaintiff’s counsel, nor were the jury given any special instruction relating to this alleged misconduct of plaintiff’s counsel. It is not conceivable that plaintiff’s counsel believed the testimony to be competent, or that it could bear in the remotest degree upon any issue presented to the jury for trial. He himself had brought his suit against the National Fulton Brass Manufacturing Company, the defendant in this case. If that company was not liable, the suit should not have been brought, and he must have known it. No question was raised that the defendant company was the owner of the factory in question, and that the alleged negligence, if proven, was the negligence of the defendant company.”

Clearly a very different case from the one before us.

In Hughes v. City of Detroit, not only was the examination permitted, but counsel argued to the jury, “Why does the city take this bond from the contractor if it is not to cover just such cases as this?” Certainly this differs from the instant case. A reference to the other cases will show them to be easily distinguishable from the instant case. In the instant case the judge cautioned the jury at the time, in the strongest language possible as to what their duty was.

2. Is the claim of counsel that the Harding Lumber Company and the Highland Park Paint & Glass Company, being real parties in interest, should have been sole plaintiffs in the action, or should have been joined with Grubaugh as parties plaintiff, well taken? The plaintiff was a builder. He was indebted to the H.. W. Harding Lumber Company, and the Highland Park Paint & Glass Company, and an assignment of his cause of action was made to them in October in the usual form of an assignment; we quote from it: ;

“For injuries occasioned to me by falling into an unguarded elevator shaft in said building, giving unto the said H. W. Harding Lumber Company and to the said Highland Park Paint & Glass Company, or either of them, full authority to take any and all steps for the collection of damages on account of said claim, in my name, which I myself might take, and giving them full _ authority to prosecute all claims for damages arising out of said accident, and to sign and execute in my name any and all release or releases for claims of damage and to execute in my name any and all receipts for moneys paid on account of said claim for damages, giving unto the said H. W. Harding Lumber Company and the Highland Park Paint & Glass Company, or either of them, full, complete and absolute authority to take any and all steps in the matter that I myself might take, and in my name.”

This action was begun November 15th, following. The trial of the case commenced May 10, 1918, and on the same day the Harding Lumber Company and the Highland Park Paint & Glass Company addressed a letter to the defendant to the effect that the assignment taken by them from Grubaugh was given merely as security for an existing debt.

We quote from the brief of appellant:

“It is the claim of defendant that because the Harding Lumber Company and the Highland Park Paint & Glass Company were not parties plaintiff, that this action was brought in violation of section 12353, 3 Comp. Laws 1915, which states that:
‘ ‘Every action shall he prosecuted in the name of the real party in interest, but an executor, administrator, guardian, trustee of an expressed trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute, may sue in his own name •without joining with him the party for whose benefit the action as brought.’
“It was recently held by this court, in Everhard v. Dodge Bros., 202 Mich. 48, that where the plaintiff had assigned her claim to an insurance company and then the action was not brought in the name of the assignee, the proceeding was in violation of the section of the statute which we have just quoted, and the case was reversed without a new trial.”

The pith of the case cited is found in the syllabus, which reads:

“On appeal from justice’s court where suit for damages by collision was brought in the name of the owner of the automobile, the court was in error in allowing an amendment to the declaration to the effect that suit was brought in plaintiff’s name as trustee for the insurer, since the effect of the amendment is to bring a new plaintiff into the case without giving defendant an opportunity to litigate his claim in justice’s court, contrary to the provisions of section 12353, 3'Comp. Laws 1915.”

The jury was instructed in part as follows:

“The assignment as you know, is absolute on its face. That is, on its face, Mr. Grubaugh absolutely assigned to the Harding Lumber Company and to the Highland Park Paint & Glass Company all his claim against the Murphy Company, without any qualification, authorizing them to start suit, etc. • In _ other words, it is an absolute assignment parting with all right that he had growing out of this accident. _ If you believe that that was the real intent of the parties, and that instrument was intended to be just what it says, why then, of course, Mr. Grubaugh has no right to prosecute the suit, no interest in the case. The claim then would be by those two companies against the Murphy Company. In which case if you so find, you should render a verdict of no cause of action and need not proceed to determination of the other questions I will give you. You may, however, find, as testified to by Mr. Grubaugh and the representatives of the Harding Lumber Company and the Highland Park Paint & Glass Company that the instrument, though absolute on its face, was really a security for the claims that they had against Mr. Grubaugh. If you believe that testimony, you should give effect to that. In other words, even though the assignment is absolute on its face, if the real purpose, the real intent of all the parties was as testified to by them, that is what should govern, rather than what this paper says, and so if you believe that this claim of Mr. Grubaugh’s against the Murphy Company was assigned to. the Highland Park Paint & Glass Company and to the Harding Lumber Company for the purpose of securing them for their debts, then you should proceed to the determination of the other questions in the case.”

Section 13, chap. 12, judicature act (3 Comp. Laws 1915, § 12364), reads:

“No action at law or in equity shall be defeated by the non-joinder or mis-joinder of parties. New parties may be added and parties mis-joined may be dropped by order of the court at any stage of the cause, as the ends of justice may require.”

In Union Ice Co. v. Railway Co., 178 Mich. 346, the suit was brought in the name of the party insured. His right to bring the suit was questioned. We quote from the opinion:

“At the time of the fire, plaintiff was insured in eight different companies. In settlement of this insurance it received the sum of $10,000. Each insurance company, upon payment of its proportionate share, received from plaintiff an assignment subrogating the assignee to the plaintiff’s right of action against defendant to the extent of the amount of the sum paid by the insurance company. On August 3, 1910, and before suit was commenced herein, the eight insurance companies, by Berger & Hicks, their attorneys, entered into a contract with plaintiff which provided that suit should be brought against defendant in the name of the plaintiff, and. that if a judgment was recovered it should be divided, one-half to go to plaintiff and the other half to be. divided among the insurance companies in proportion to the sums which had been paid by each in settlement of the loss.
“Upon the trial defendant, evidently having knowledge of this situation, questioned plaintiff’s right to sue in its own name for the use and benefit (in part) of the insurance companies.”

It was held that the tort — if one was committed— was against the plaintiff and the right of action that grew out of the tort was one and indivisible, and that the plaintiff had the right to bring the suit and the judgment was affirmed.

In Vandervliet v. Insurance Co., 209 Mich. 146, in which case an opinion was handed down February 25, 1920, the right of the plaintiff to bring the suit was questioned. We quote from the opinion:

“Was the plaintiff, under the proofs in the case, the real party in interest? It may be noted, in passing, that the question is not raised by the pleadings; but considering it upon its merits, we think it is without force. No assignment was made by plaintiff to the Chicago Bonding Company of his interest in the policy in suit. He did secure the money from the bonding company with which to pay the judgment against him and he did agree orally to repay the bonding company the money out of any recovery he might have against the defendant. This agreement did not deprive him of his legal interest in the policy. J. Frank & Co. v. Casualty Co., 175 Cal. 293 (165 Pac. 927).
“In the case last cited, the assured had borrowed the money to pay the judgment and had actually executed an assignment of the proceeds of the judgment to secure the loan. But the court held that the plaintiff was entitled to recover, saying:
“ ‘It is therefore immaterial to the insurance carrier how or When that corporation obtained the money or the credit which enabled it to pay Cousins the amount due.’
“See West Riverside Coal Co. v. Maryland Casualty Co., 155 Iowa, 161 (135 N. W. 414, 48 L. R. A. [N. S.] 195) ; Kennedy v. Casualty Co., 100 Minn. 1 (110 N. W. 97, 9 L. R. A. [N. S.] 478, 10 Ann. Cas. 673).”

We think it must be held that this branch of the case was properly submitted.

3. Was it error to permit the jurors to feel plaintiff’s injured arm? Counsel say:

“To feel the lump in the arm would not aid the jurors in determining the amount of pain, if any, that the plaintiff suffered therefrom; what inconvenience it might cause him and whether or not it was permanent. It is quite well recognized that many people have a marked aversion to touching or feeling any abnormal physical condition, and it is fair to assume that at least some of the twelve men who sat on the jury were of this class. A person who would be so affected could not help but have his judgment biased after such an experience.”

The principle laid down in Carstens v. Hanselmen, 61 Mich. 426, is quite applicable to the case at bar, where the court says:

“No inspection after an injury is healed, apart from some knowledge of the character of the injury and the method of treatment, could enable even a medical expert to decide upon the merits or demerits of the attending surgeon. A jury’s guessing from such an inspection would be of no value whatever.”

A reading of that case will show it is unlike the case before us.

In reviewing the authorities, Baldwin on Personal Injuries (2d Ed.,) § 527, page 611, says:

“In an action for damages resulting from an injury the plaintiff may exhibit the injury to the jury. Such an exhibition tends to make the description of the injury more intelligible and it cannot be supposed to have an undue influence upon the feelings and sympathies of the jury. It might as well be contended that a man who lost an arm or leg should not be per-. mitted to appear before the jury to testify in relation to it, lest thereby the feelings of the jury might be influenced and they, under the undue excitement and sympathy created thereby, might do injustice. It cannot be assumed that any such consequence would follow such action.
“Such evidence is immediate, real evidence, where the thing which is the source of evidence is present to the tribunal, and of all proof is the most satisfactory and convincing of the injury received.”

See, also, Graves v. City of Battle Creek, 95 Mich. 266 (19 L. R. A. 641); Edwards v. Village of Three Rivers, 96 Mich. 625; Langworthy v. Township of Green, 95 Mich. 93; Barfoot v. White Star Line, 170 Mich. 349. If the sense of sight may properly be used in determining the extent of an injury it is difficult to see why the sense of touch may not also be used.

4. Was the verdict excessive? The court in overruling the motion for a new trial said in part:

“The injuries in this case were serious. There is plenty of testimony to warrant the jury in finding the verdict that they did. If the plaintiff was entitled to. recover at all, and the jury found that he was, $18,000 cannot be considered excessive.”

There was proof that plaintiff had incurred medical and hospital bills amounting to $1,735. There was testimony tending to show that at the time of the injury he was earning nearly if not quite $10,000 a year. There was evidence that the accident resulted in permanent injuries to the plaintiff, which were very serious; that there was an injury to the scalp one and a half inches or so on the side of the head; that there was a laceration from the left corner of his mouth extending to his ear completely through the cheek and the upper part of the superior maxillary bone; that this wound was stitched inside and out; that the alveolar process was torn out, with it nine teeth on the upper side of the left jawbone; that the left arm was broken at the humerus in the lower.third; that both clavicles were fractured; that the broken arm was reset five times at intervals of three or four days, and that the arm would never be normal, and that plaintiff would never recover the use of it; that there was, and still is, a difference in the size of the left injured arm and the right arm. *

There is testimony that while in the hospital plaintiff had a night and day nurse in attendance, and for three or four weeks after plaintiff entered the hospital he mainly subsisted upon liquid nourishment fed through a-tube; that he sustained permanent injuries to his back; also that he sustained permanent injuries to his legs; that before the accident he was a healthy, strong and vigorous mpn, weighing about 185 pounds. With reference to this plaintiff testified:

“A few weeks after Í came out of the hospital, I weighed 140 pounds and the last time I was weighed it was 156 pounds with my clothes on including my overcoat. The 185 pounds that I referred to was without an overcoat.”

In the case of Fishleigh v. Railway, 205 Mich. 145, in an opinion by Justice Fellows, there is a very full collation of the Michigan and other cases bearing upon the subject of excessive verdicts. We think it cannot be said in view of these authorities that the verdict was excessive.

Judgment should be affirmed, with costs to the plaintiff.

Bird and Sharpe, JJ., concurred with Moore, C. J.

Brooke, J.

I cannot agree in this case with the conclusion reached by my Brother MOORE. I am of the opinion that the colloquy set out in the opinion of the Chief Justice, between counsel for plaintiff, counsel for defendant, and the court, was in bad faith, deliberately designed to advise the jury of the fact that the real defendant was an insurance company, and not the defendant named' in the pleadings. In this jurisdiction, eases are not infrequent where counsel, aware of the fact that juries are prone to be more liberal,, with the funds of insurance companies than with those of private individuals, have successfully sought to place before the jury the fact that the nominal defendant was insured, and therefore would not suffer by the rendition of a substantial or excessive verdict. This practice has met with the consistent disapproval of this court, as will be fully demonstrated by an examination of the authorities cited by my Brother Moore on this branch of the case.

In denying a motion for a new trial, the learned circuit judge concluded that the questions were improper) but believed them to have been without prejudice. With this conclusion I cannot agree. The verdict of $18,000 should be held to be excessive as a matte»* of law (see cases cited in Fishleigh v. Railway, 205 Mich. 145). It may well be doubted whether the jury would have rendered a verdict of such magnitude against an Individual defendant. Indeed, I am of opinion that the contrary may be confidently asserted.

If counsel, well learned in the law, choose to deliberately imperil the interests of their clients by improper advertisement of a fact well known to be prejudicial to a fair and impartial consideration of the case by the jury, the resulting judgment should be set aside, even though the party who suffers is the innocent client instead of offending counsel.

I agree with Justice Moore that the question of plaintiff’s right to maintain this action was properly submitted to the jury, and that it was not error to permit plaintiff to enter the jury box and allow the jurors to feel of his arm.

I think the judgment should be reversed and a new trial granted, with costs of this court to defendant.

Steere, Fellows, and Stone, JJ., concurred with Brooke, J.

Justice Kuhn took no part in this decision.


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    DECHER v. SECRETARY OF STATE.
    1. Words and Phrases — “Legislature”—“Legislative Power”— Definition.
    The term “legislature” is defined as “That body of men which makes the laws for a State or nation;” and “legislative power” as “authority exercise^ by that department of government which is charged with the enactment of law as distinguished from the executive and judicial functions. The law-making power of a sovereign State.”
    2. Constitutional Law — Legislative Power.
    Under section 1, Art. 5, Constitution of Michigan, the legislative power of the State of Michigan is vested in a senate and house of representatives.
    3. Same — Amendments — Ratification — Legislature— Intent —Law-making Body — Referendum.
    As employed in Art. 5 of the United States Constitution, referring to the ratification of an amendment thereto, the word “legislature” was intended by its framers to mean the representatives of the people elected to make the laws of the several States, when acting as a body; and a State has no power, through its Constitution or by statute, to restrict this action of the legislature by subjecting it to a review by popular vote.
    4. Words and Phrases — “Act”—Definition.
    As pertaining to legislation, an “act” is defined as “A statute or law made by a legislative body.”
    5. Constitutional Law — Initiative—Referendum.
    While, under section I, Art. 5, Constitution of Michigan, the people using thei initiative have ‘the power to propose legislative measures, resolutions, and laws,” the power under the referendum is limited "to approve or reject at the polls any act passed by the legislature, except," etc.
    6. Same — Ratifying Amendment'Not an “Act” — Referendum.
    The action of the State legislature in ratifying an amendment to the Federal Constitution is not an “act” within the meaning of section 1, Art. 5, Constitution of Michigan, reserving to the people the right “to approve or reject at the polls any act passed by the legislature, except,” etc.'
    Mandamus by Arthur Deeher and others to compel Coleman C. Vaughan, secretary' of State, to submit a joint resolution to a referendum.
    Submitted January 13, 1920.
    (Calendar No. 28,949.)
    Writ denied April 10, 1920.

      Campbell, BulJcley & Ledyard (Henry Ledyard, of •counsel), for plaintiffs.

      Alex. J. GroesbeeJc, Attorney General, A. B. Dougherty, Deputy Attorney General, Clare Retan and S. F. Master, Assistants Attorney General, for defendant.

      Walter S. Foster, amicus curiae.

   Sharpe, J.

At the regular session of the legislature of the State of Michigan in 1919, a resolution, ratifying a proposed amendment to the Constitution of the United States providing for national prohibition, was adopted. A petition in proper form, asking that such resolution be submitted to the electors for adoption or rejection under the referendum provision in our State Constitution, was presented to the defendant, who, on the advice of the attorney general, declined to act upon the same, and mandamus is-sought to compel him to do so. In his return to the order to show cause granted by this court, the defendant admits the facts stated in the petition to be true, but denies the right of the plaintiffs to relief for the following reasons:

“1. That the congress of the United States, pursuant to the provisions of article 5 of the Constitution of the United States proposed said amendment and directed that the same be submitted to the legislatures of the several States for ratification.
“2. That the action of the legislature of the State of Michigan ratifying said amendment in accordance with the direction of the congress of the United States is final and not subject to referendum.”

Article 5, § 1, of our State Constitution reads as follows:

“The legislative power of the State of Michigan is vested in a senate and house of representatives; but the people reserve to themselves the power to propose legislative measures, resolutions and laws; to enact or reject the same at the polls independently of the legislature; and to approve or reject at the polls any act passed by the legislature, except acts making appropriations for State institutions and to meet deficiencies in State funds. The first power reserved by the people is the initiative. * * *
“The second power reserved .to the people is. the referendum.” * * *

The prohibition amendment was proposed and submitted by the national congress under the provisions of article 5 of the Constitution of the United States, which reads as follows:

“The congress, whenever two-thirds of both houses shall deem' it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths, thereof, as the one or the other mode of ratification may be proposed by the congress: Provided that'no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the senate.”

The questions presented are:

(1) Does the word “legislature” in the provision of the Federal Constitution and in the joint resolution of congress mean “the legislative assembly” or “the legislative authority of the State”?
(2) Does the word “act” in the referendum provision of the State Constitution include the action of the legislature in adopting such a joint resolution?

Official notice of the ratification by the requisite number of States has been received by the secretary of State, and the amendment is now treated by that and the other departments of the national Government as a part of the Constitution. The congress has so recognized by the passage of a law (the Volstead act, approved October 28, 1919 [41 U. S. Stat. p. 305, Chap. 83]), for its enforcement.

1. It is elemental that the people of any one State cannot, by any provision in its Constitution or laws, amend the Federal Constitution. It was adopted as the supreme law of the republic by the people of all the States, and can be changed only in the manner provided therein. It follows, therefore, that we must look to it alone in determining how such amendment shall be proposed, ratified and adopted. If' the language providing therefor is plain and unambiguous, and had a well-defined meaning at the time of its adoption, no one State can give it an interpretation to suit the desire of its people. As was said by Chief Justice Marshall in Cohens v. State of Virginia, 6 Wheat. (U. S.) 264, 389:

“The people made the Constitution, and the people can unmake it. It is the creature of their own will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only-in the whole body of the people; not in any sub-division of them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those- to whom the people have delegated their power of repelling it.”

Justice Story has also said:

“Where its words aré plain, clear and determinate, they require no interpretation; and it should, therefore, be admitted, if at all, with great caution, and only from necessity, either to escape some absurd consequence, or to guard against some fatal evil.” 1 Story on Constitution (5th Ed.), § 405.

In an early case in this court (Bay City v. State Treasurer, 23 Mich. 499), Mr. Justice COOLEY, at page 506, said:

“Constitutions do not change with the varying tides of public opinion and desire; the will of the people therein recorded is the same inflexible law until changed by their own deliberative action * * * They (the courts) must construe them as the people did in their adoption, if the means of arriving at that construction are within their power.”

The purpose of the Constitution was to establish a representative form of government, not a pure democracy in which all power is exercised by the peopie acting as a whole. While it provides for a popular branch of the legislative department, to be elected at short intervals by the vote of those entitled to the elective franchise in the several States, it is suggestive that neither the president, vice-president, nor United States senators are to be so elected. It is also significant that when, there was a popular demand that senators should be elected it was not deemed sufficient to provide in the State Constitutions for a referendum in making the selection, although the Constitution provided that they “should be chosen by the legislature,” but an amendment to the Federal Constitution, the 17th, was adopted therefor.

The term “legislature” is thus defined:

“That body of men which makes the laws for a State or Nation.” Bouvier’s Law Dictionary (Rawle’s Ed.), p. 1927,

and “legislative power” as—

“Authority exercised by that department of government which is charged with the enactment of laws as distinguished from the executive and Judicial functions. The law-making power of a sovereign State.” Id. p. 1915.

Counsel for the plaintiffs' insist that under our State Constitution—

“The power to legislate is vested in both the constituent assembly and the electors themselves.”

—that in writing article 5 of the Federal Constitution its framers intended to submit an amendment to such legislative power for ratification, and not merely to the legislative body known as the legislature.

We cannot but think that such an interpretation does violence to the plain meaning of the word legislature as understood at the time the Federal Constitution was adopted. There were then law-making bodies, always referred to as “legislatures,” in all of the colonies which under the Constitution afterwards became States. This term is frequently used in the Constitution, and an examination will reveal the fact that in most cases it could not be applied other than to such assemblies.

It is suggested that the intent of the Constitution is simply “to call the roll of States and get an expression from each State as to its will and desire.” In what way shall such expression be voiced? The Constitution says by the “legislatures.” In making response, the members act collectively and when a majority of those constituting such bodies respond in the affirma* tive, and such aetion is certified to the Federal authorities by a sufficient number of States, the amendment is adopted and is thereafter a part of the Constitution.

The action of the legislature in ratifying an amendment is not, strictly speaking, a legislative act. It is but one of several steps required to be taken to change the Federal Constitution-. The congress, or the States by petition, must first propose an amendment. In order that it may become operative, it must receive the assent of the States by ratification in the manner provided in article 5. How shall such assent be expressed? By the adoption by the State legislature of a joint resolution ratifying the amendment. The State thus participates in the making of a new law simply by expressing its assent thereto in the manner provided. It has not thereby enacted a law any more than the President or governor does so by approving bills passed by the congress or legislature.

The language of article 5 of our State Constitution negatives the claim of plaintiffs. It provides:

“The legislative power of the State of Michigan is vested in a senate and house of representatives.”

This is followed by the provisions relating to the referendum wherein the right “to approve or reject at the polls any act passed by the legislature” is reserved to the people. The framers of this instrument thus clearly distinguish between the legislative power vested in the legislature and the legislature itself. The former embraces the right to enact legislation, the latter the body in whom such right is primarily vested. Under the provisions which follow as to initiative and referendum, the people have no power to enact legislation until the proposal therefor has been submitted by petition to the legislature for action thereon. The right of the people to thus legislate in no way makes them a part of the legislature or changes the well-recognized meaning of that term.

Reliance is placed by counsel for plaintiffs on the decision in Davis v. Hildebrant, 94 Ohio St. 154 (114 N. E. 55), affirmed by the Supreme Court of the United States as Davis v. Ohio, 241 U. S. 565 (36 Sup. Ct. Rep. 708), in which the referendum provision of the Ohio constitution was held to apply to an act of the legislature redistricting the • State for congressional purposes. The provision in the Federal Constitution relating thereto reads:

“The times, places and manner of holding elections for senators and representatives, shall be prescribed in each State by the legislature thereof; but the congress may at any time by law make or alter such regulations, except as to the places of choosing senators.” Article 1, § 4.

In pursuance of the authority therein conferred, congress in 1842 provided for the election of representatives by districts, and in 1891 provided that the existing districts should continue in force “until the legislature of such State, in the manner herein prescribed, shall redistrict such State.” An amendment in 1911 provided that the redistricting should be made by a State “in the manner provided by the laws thereof.” In discussing these provisions, Mr. Chief Justice White said:

“The legislative history of this last act leaves no room for doubt that the prior words were stricken out and the new words (‘in the manner provided by the laws thereof’) inserted for the express purpose, in so far as congress had power to do it, of excluding the possibility of making the contention as to referendum which is now urged.”

The laws of the State include the Constitution as well as the statutes, and, when congress provided that the redistricting should be made “in the manner provided by the laws” of the States, the provision in the State Constitution for a referendum on the action of the legislature could not but apply. We do not think this decision places any interpretation upon the word “legislature” as used in this constitutional provision. It simply holds that, as congress was given' the power to regulate the action of the States in redistricting, it might confer upon the States the right to provide therefor “in the manner provided by the laws” of each State and that the law of Ohio included the referendum provision of its Constitution.

The case of McPherson v. Blacker, 146 U. S. 1 (13 Sup. Ct. Rep. 3), an appeal from this court, 92 Mich. 377 (16 L. R. A. 475), involving the power of the State legislature to provide for the selection of presidential electors by districts under article 2 of the Federal Constitution, is instructive. The question here presented was not directly considered, but the power of the legislature under that article was discussed at length. In the opinion, Mr. Chief Justice Fuller quotes approvingly the language employed by Senator Morton, chairman of the committee on privileges and elections, in a report presented by him to the senate relating to the power of the legislature to provide for the selection of such electors, in which it is said:

“This power is conferred upon the legislatures of the States by the Constitution of the United States, and cannot be taken from them or modified by their State Constitutions any more than can their power to elect senators of the IJnited States. Whatever provisions may be made by statute, or by the State Constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time; for it can neither be taken away nor abdicated.” Senate Rep. 1st Sess. 43 Cong. No. 395.

In 2 Watson on the Constitution, page 1310, the writer says:

“Whether an amendment is proposed by congress, or by a convention, it is ratified or rejected by the representatives of the people either in the legislatures or in conventions and not by the people voting on it directly. The people have no direct power either to propose an amendment to the Constitution, or to ratify it after it is proposed and submitted.”

Several of the State courts of last resort have had occasion to pass on this question. In State v. Howell, 107 Wash. 167 (181 Pac. 920), the supreme court of Washington, by a divided court, held that the resolution of ratification was subject to the referendum provisions of the State Constitution. In Hawke v. Smith (Ohio), 126 N. E. 400, there was a similar holding, one of the justices dissenting therefrom. On the other hand, the supreme court of Maine in Re Opinion of the Justices (Me.), 107 Atl. 673, decided otherwise. It was therein said:

“Here, again, the State legislature in ratifying the amendment, as congress in proposing it, is not, strictly speaking, acting in the discharge of legislative duties and functions as a law-making body, but is acting in .behalf of and as representative of the people as a ratifying body, under the power expressly conferred upon it by article 5. The people, through their Constitution, might have clothed the senate alone, or the house alone, or the governor’s council, or the governor, with the power of ratification, or might have reserved that power to themselves to be exercised by popular vote.”

The same view was taken, in Herbring v. Brown 92 Or. 176 (180 Pac. 328). Our attention is also called to the decision of the district court of Lancaster county, Nebraska, supporting plaintiffs’ contention, and that of the United States district court for the northern district of California, in which the opinion of the Maine judges is quoted approvingly and followed.

The people in any State may, in their Constitution, reserve to themselves the right to initiate and defeat State legislation by their vote. To the extent and in the manner therein provided they, acting in conjunction with the legislature, constitute the law-making power of the State. Each State, however, can participate in amending the Federal Constitution only in the manner provided therein. If the people want to secure the right to ratify amendments by popular vote thereon, they may do so by an amendment which shall so provide, but such power rests only in the people themselves and should not be usurped by the courts through a judicial interpretation of the instrument itself.

It is our conclusion that the word “legislature,” as employed in article 5 of the Federal Constitution, was intended by its framers to mean the representatives of the people, elected to make the laws of the several States, when acting as a body, and that a State has no power through its Constitution or by statute to restrict this action of the legislature by subjecting it to a review by popular vote.

2. Under the referendum provision of our State Constitution, the people reserve to themselves the right “to approve or reject at the polls any act passed by the legislature, except acts making appropriations for State institutions and to meet deficiencies in State funds.” Is the ratifying resolution an “act” within the meaning of this provision?

The construction to be placed on it should not be

technical. This court should give effect to the purposes indicated by a fair interpretation of the language used. At the same time, we must bear in mind that it is to be presumed that the framers of the Constitution employed words in their natural sense. The word “act,” when employed in legislation, has had a well-defined meaning since our first Constitution was adopted. When a proposed law is introduced in the legislature, it is called a “bill.” When the bill is passed and approved and becomes a law, it is called an “act.” The clause by which it is given life and effect uniformly reads: “The People of the State of Michigan enact.” As pertaining to legislation, “act” is defined by 1 Bouvier (Rawle’s Ed.), page 79, as — “A statute or law made by a legislative body.’* These appellations, “bill” and “act,” are frequently used in our State Constitution:

“Every bill shall be read three times in each house before the final passage thereof.” Article 5, § 23.
“Every bill passed by the legislature shall be presented to the governor before it becomes a law.” Article 5, § 36.
“No act shall take effect or be in force until the expiration of ninety days,” etc. Article 5, § 21.
“No local or special act shall take effect until approved by a majority of the electors,” etc. Article 5, § 30.

Section 38 reads:

“Any bill passed by the legislature and approved by the governor, except appropriation bills, may be referred by the legislature to the qualified electors; and no bill so referred shall become a law unless approved by a majority of the electors voting thereon.”

Such laws are referred to in section 1 of article 5 as “Acts adopted by the people.”

It thus appears that the framers of the Constitution, by the use of the word “act” in article 5, had in mind a statute or law passed with the formality required by the Constitution and approved by the governor. It is suggestive that while, under the provision of the Constitution relied on, the people using the initiative have “the power to propose legislative measures, resolutions and laws,” the power under the referendum is limited “to approve or reject at the polls any act passed by the legislature, except,” etc. While an amendment to the Constitution, after ratification by a sufficient number of States, becomes a part thereof and is thereafter the supreme law of the land, the action of the State legislature in ratifying i^ is not the making of a law or an “act” as understood in legislative parlance.

This question has been considered by the following courts: In Moulton v. Scully, 111 Me. 428 (89 Atl. 944), that court says:

“The referendum applies and was intended to apply only to acts or resolves of this class, to ‘every bill or resolution having the force of law,’ that is, to what is commonly known as legislative acts and resolves, which are passed by both branches, are usually signed by the governor and are embodied in the legislative acts and resolves, as printed and published.”

In Re Opinion of the Justices (Me.), 107 Atl. 673, the same court says:

“This resolution, ratifying the proposed constitutional amendment, was neither a public act, a private act, nor a resolve having the force of law. It was in no sense legislation. It was not signed by the governor, nor could it have been vetoed by him. It was simply the ratifying act of the particular body designated by article 5 of the Federal Constitution to perform that particular act.”

See, also, Hopping v. City of Richmond, 170 Cal. 605 (150 Pac. 977); Herbring v. Brown, 92 Or. 176 (180 Pac. 328); Whittemore v. Terral (Ark.), 215 S. W. 686.

To the contrary, see State v. Howell, supra. The decision of the Ohio supreme court in Hawke v. Smith, supra, has no bearing on the question as the Constitution of that State expressly provides for a referendum on the action of the general assembly in ratifying any such proposed amendment.

It follows that the defendant was justified in refusing to act on the petition for a referendum, and the writ of mandamus is denied, without costs.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Bird, JJ., concurred.


author: Fellows, J.

text:
    REO MOTOR CAR CO. v. YOUNG.
    1. Specific Performance — Contracts—Fraud.
    In proceedings for the specific performance of a contract whereby defendant,' on ceasing to act as plaintiff’s agent, agreed to assign certain leases to plaintiff, and the latter agreed to buy the fixtures and other personal property, evidence held, insufficient to show that the written contract omitted part of the real agreement, either fraudulently or otherwise, or that there was sharp practice or overreaching on the part of plaintiff in procuring the same.
    2. Same — Unconscionable Contract — Inadequate Consideration.
    Nor was the evidence sufficient to establish defendant’s claim that the contract was unconscionable because of inadequate consideration for the leases, fixtures, etc., since defendant, better than any one else, was in a position to know their true value.
    3. Same — Mutuality of Contract — Enforcibility — Rule — Exceptions.
    Although a technical rule has been announced by text writers and courts that the remedy by specific performance must be mutual in order to make it available to either party, that is, unless the remedy is open to both it is open to neither, so numerous and so varied have been the exceptions tacked on, that it is at present of little value as a rule.
    4. Same.

      Held, that plaintiff is not precluded relief on the doctrine that there must be mutuality of remedies.
    6. Same — Nor a Remedy or Right — Judicial Discretion.
    The remedy by specific performance is not a remedy of right, but should be granted or refused in the exercise of a sound judicial discretion.
    6. Same — Adequate Remedy at Law.
    Where the premises involved have for seven years been the salesroom of plaintiff’s products, about 7,000 owners go there for parts and service, and other desirable locations have all been appropriated, held, that it cannot be said that plaintiff has an adequate remedy at law,' and the decree of the court below for specific performance is therefore affirmed.
    Appeal from Wayne; Dingeman (Harry J.), 3.

    Submitted January 28, 1920.
    (Docket No. 84.)
    Decided April 10, 1920.
    Bill by the Reo Motor Car Company against Matthew A. Young for the specific performance of a contract. From a decree for plaintiff, defendant appeals.
    Affirmed.

      Keena,, Lightnér, Oxtoby & Hanley (Milo H. Crawford, of counsel), for plaintiff.

      Frank A. Martin (James O. Mur fin and Percy W. Grose, of counsel), for defendant.
   Fellows, J.

The defendant for some 17 years had been a successful dealer in automobiles and accessories in the city of Detroit. In 1912 he began under a contract for a year to handle cars made by the plaintiff. He had a desirable location at 752-758 Woodward avenue, with a service station on Forest avenue east. This property, at the time of the transaction out of which this litigation arose, was leased from three different owners under leases hereinafter more particularly described. The parties seem to have been mutually satisfied with their dealings and new contracts were entered into for succeeding years, the last one being executed July 27, 1918, and expired by its terms July 31, 1919. These contracts seem to have been profitable to defendant and the testimony fairly discloses that he had laid away a competency and could live from his income. During and succeeding the war plaintiff was unable to supply defendant with' all the cars he could sell but he testifies that he made money even in the lean years. Plaintiff could sell all the cars it could make during these years without effort, and defendant was among its preferred distributors. He was complimented on occasions by plaintiff’s officers and agents, and efforts were made as far as possible to supply his needs for cars. In the spring of 1919 the plaintiff by its board of directors decided upon a change of policy in the disposition of its product in Detroit. It determined to establish a factory branch there and handle the business itself. Very shortly after the final decision of the board on this subject, and on May 6th, this fact was communicated to defendant at the office of the company in Lansing, the defendant and Mr. Cole, his sales manager, having come to Lansing that morning. There is a decided conflict in the testimony as to what took place at the Lansing meeting, but it is agreed on all hands that the conference lasted until lunch time and the written agreement was not prepared until afternoon. The trial judge in his opinion, speaking of the agreement and the claim that it did not contain all the terms agreed upon, said:

“In my opinion, the written contract embodies all of the terms of the arrangement made between the parties. The defendant is a shrewd business man, and after his surprise and disappointment on learning that his contract was not to be renewed, sought to make the best arrangement with plaintiff that he could with the. view to retiring from business. The arrangement which was made was based almost entirely upon his own suggestions, and I am satisfied that it was thoroughly understood between the parties.”

The agreement that day executed is as follows:

“This agreement by and between Reo Motor Car Company, a Michigan corporation, hereinafter designated as the vendee, party of the first part; and M. A. Young, of Detroit, Michigan, hereinafter designated as the vendor, party of the second part:
“Witnesseth: That whereas, the vendor is and for several years has been distributor in Detroit for Reo automobiles and automobile trucks, manufactured by the vendee; and whereas, the vendee is contemplating establishing a branch house in Detroit on or about August 1, 1919, for the distribution of Reo automobiles and automobile trucks; and whereas, it is the mutual desire of the vendor and the vendee that the vendee shall relieve the vendor of obligations in the nature of unexpired leases of property now used in the conduct of the vendor’s business;
“Now, therefore, for and in consideration of the mutual undertakings hereinafter expressed; and for and in consideration of the sum of one dollar ($1) by the vendee to the vendor in hand paid, the receipt whereof the vendor hereby acknowledges, the parties hereto agree and contract as follbws:
“1. The vendor will execute forthwith an assignment of the unexpired portion of each of three several leases, which said assignments shall run to Reo Motor Car Company and shall become effective on August 1, 1919. The.leases herein referred to are as follows:
“(a) A lease' on the first floor of the building located at 752-786 Woodward avenue, Detroit, which lease covers the quarters now used by the vendor as an automobile ^ salesroom and office and which lease expires approximately February 1,1921. (It is agreed that the monthly rental stipulated by said lease is not in excess of $300.)
“(b) A lease, expiring on or about May 1, 1922, on the building at 758 Woodward avenue. This lease is subject to a sub-lease from the vendor to Meisner Tire Company, under which the Meisner Tire Company pays to the vendor a monthly rental of $175, for the front part of said building. In assuming the vendor’s obligations as lessee under the original, it is understood that the vendee also succeeds to his rights under the sub-lease, including the right to the monthly rental from Meisner Tire Company.
“(e) A lease, expiring approximately June 1, 1920, on the building (now occupied by the vendor as 'a service station) situated at 212-214 Forest avenue E.; it being understood-that the monthly rental under said lease is not in excess of $200.
“2. The vendee agrees to accept the assignment of the said three leases, and to assume the lessee’s obligations thereunder, from the date the assignments become effective and the vendee takes possession of the leased premises.
“3. The vendor agrees to sell to the vendee, and the vendee agrees to buy, all office fixtures (including safes, typewriters, desks, chairs, tables, etc.), whether such office fixtures are in use at the sales room or the service station; all tools and equipment of every kind used by the vendor in the conduct of his business; and good will and the vendee agrees to pay therefor the sum of twelve hundred fifty dollars ($1,250) which payment shall be made at the time that the actual transfer is made, which in no event shall be later than August 1,1919.
“4. The vendee agrees to purchase from the vendor on or prior to August 1, 1919, all used cars (not exceeding a total of twelve) which the vendor shall have on hand unsold at the close of business on July 31, 1919. The price to be paid the . vendor for said used cars, shall be determined by an appraisal of three persons, two of whom are to be appointed by F. H. Akers, sales manager of the vendee, and the third to be appointed by the vendor.
“5. As soon as possible after the close of business on July 31, 1919 (or sooner if practicable) the vendee .will repurchase from the vendor all new automobile parts for Reo automobiles and trucks, which the vendor shall at that time have in his possession unsold. The price at which these parts shall be repurchased shall be the then current price at which such parts are sold by the vendee to its distributors.
“6. The vendor will permit the vendee, if it so elects, to put decorators at work either at the salesroom or the service station or both, at any time after July 1, 1919, for the purpose of redecorating or making necessary changes, provided, however, that such work shall be done in such manner as to interfere as' little as possible with the continued operation of the vendor’s business. '
“7. It is mutually understood that for the remainder of the vendor’s contract with the vendee — that is to say, until July 31, 1919 — the vendee will continue to accord the vendor the same preferential treatment on deliveries as in the past; it being the purpose of this agreement that the termination of the long-existing relationship shall be as mutually pleasant as has been the relationship itself.
“In witness whereof, the parties have caused these presents to be executed this sixth day of May, 1919.
“Reo Motor Car Company,
“a Michigan Corporation,
“The Vendee, ’
“By F. H. Akers, Sales Manager.
“M. A. Young,
/“The Vendor.
“Witnesses:
“William Cole,
“Clarence E. Eldredge.
“Executed in duplicate.”

On the day following this agreement defendant notified plaintiff that the leases contained provisions that they could not be assigned without the consent of the lessors and that the lessors refused such consent. While defendant denies that he had importuned such lessors to refuse their consent, we are satisfied from the disinterested testimony that such was the fact. A ¡representative of plaintiff went to Detroit and saw defendant on the 8th; he also saw the lessors or their representatives, and subsequently all the lessors consented in writing to the assignment of the leases. At the conference between defendant and plaintiff’s representative on May 8th, defendant refused to assign the leases, stated he was going to continue in business, and flatly refused to carry out the terms of the agreement. of May 6th. This bill for the specific performance of the agreement was filed shortly afterwards and from a decree for plaintiff, defendant appeals.

It is the claim of the plaintiff that this contract was fairly entered into and that there is no obstacle either upon the facts or the law to its enforcement by decree of specific performance. It is the claim that largely the provisions in the contract were made at the suggestion of the defendant; that he stated he was going out of business and that it was at his solicitation that the company took over the leases and assumed his liability under them; that the location had long been the salesroom in Detroit for Reo cars; that other locations which may be obtained are not as commodious or as well situated for the automobile business; that the terms of the contract having reference to the fixtures, etc., were also made upon the decision of the defendant to take a much needed rest and get out of the business, and that upon that basis all the terms of the agreement are fair and equitable to the defendant.

The claim, of the defendant is thus summarized in the brief of his counsel:

“The defendant claims that under the proofs the contract lacks mutuality, has arisen through fraud and overreaching, shows a want of a fair consideration. That to grant specific performance is to work a substantial hardship upon the defendant without a commensurate benefit to the plaintiff. That specific performance is not a matter of right, and that the equities as shown by the testimony are against the plaintiff. That so far as the leases are concerned, no cqnsideration passed for their transfer. That plaintiff in agreeing to accept the, assignment was relieving the defendant of a liability and was so relieving the defendant for the benefit of defendant. That it appears from the contract and all of the circumstances surrounding its execution that there was overreaching and unfairness on the part of the plaintiff. That in any event the plaintiff has a complete and adequate remedy at law and is not entitled to relief in equity.”

We shall first consider the facts. Upon the crucial ones the testimony is in direct conflict. Some of the undisputed facts, the circumstances of the transaction. and the conduct of the parties, however, throw light upon them and are helpful in reaching a conclusion. That all of the parties are hard-headed, intelligent business men, accustomed to dealing in matters involving hundreds of thousands of dollars is clearly established. That they dealt at arms length is also, we think, beyond cavil. Defendant claims that the written contract did not contain all the engagements of .the parties, and upon the trial particularly stressed his claim that it was a part of the agreement that plaintiff should take over his entire organization and assume contracts made by him with his two brothers and with Cole. In view of the claim of fraud and overreaching, we consider the evidence bearing on this claim. The forenoon was consumed in coming to an agreement and it was not until afternoon that the preparation of the written contract was taken up. It was prepared by Mr. Eldridge, assistant sales manager of the plaintiff, and we are satisfied that defendant gave him the greater part of the information from which he made his notes which were used in the ultimate preparation of the writing. It is admitted that as each page of the contract was written by the stenographer in an adjoining room it was brought into the room where the parties were and was read over by both defendant and his sales manager Cole, and that neither suggested that any addition or change be made to it. Mr. Cole was a successful salesman, intelligent, and, we think the record fairly discloses, alert to His own interest and watchful that such interest should be safeguarded and protected. When he became sales manager for Mr. Young he insisted upon a written contract on this subject; he testified:

“I would not consider a job a position at all if I didn’t have a contract. I had a contract with Mr. Young all the time. I told him what I wanted. I wanted it in writing, I have always had it in writing; I wanted it in writing. The day' he told me- he would engage me as manager and pay me $5,000 and one per cent., the first thing I said is, T want that in writing.’ We drew up an agreement. I said I wanted it in writing. I said when I took the position as manager I wanted it reduced to writing.”

It is somewhat difficult to reconcile this predilection on the part of Cole for written evidence of his employment and its terms with his testimony given in support of defendant’s claim that it was a part of the agreement that plaintiff take’over the entire organization of defendant and that it was expressly agreed that the company should assume defendant’s contract with Cole and continue him as its sales manager during the coming year.

The first intimation from defendant to plaintiff that he did not intend to carry out the contract of May 6th was based on his claimed failure to secure the consent of the lessors to the assignment of the leases, and it was not until the trial that he claimed the failure to assume the contracts of his brothers and Cole was one of his principal reasons for repudiating his contract. He testifies:

“Q. When was the first time that you ever gave any information to the Reo Company, its employees, officers, attorneys, or any one else, that one of the principal reasons for your breaking this contract was that Cole and William Young’s contracts — William Young is the correct name?
“A. William J. Young.
“Q. When was the first time you ever mentioned that?
“A. Never.”

Nor are we convinced that a part of the consideration of the contract of May 6th was the agreement of plaintiff to furnish defendant 40 cars in addition to his allotment. It is undoubtedly true, as stated by Mr. Akers, plaintiff’s sales manager, that after the agreement was executed, and agreeably so, he voluntarily promised to furnish additional cars prior to August 1st. We think the proof establishes that this voluntary promise was carried out to the extent of 40 cars, upon which defendant’s profit was $12,000.

Without further discussion of the testimony and the circumstances surrounding the execution of the contract, it will suffice to state that we are satisfied that the contract embodies the agreement of the parties, and that defendant has not shown that any of such agreements were omitted from the written contract either fraudulently or otherwise; that the contract was entered into by defendant with a view of going out of the business; and that several of the obligations of plaintiff were assumed by it to cause defendant as little loss as possible. ■

But it is insisted that the contract was procured by sharp> practice and overreaching. It is pointed out that defendant had been complimented, that agents of the company had said to him that he would be kept with the company as long as he wanted to stay; that it was suggested to him that he enter into the contract with Cole, that he establish a profit-sharing plan with his employees; that he was encouraged in expending money in advertising; that a larger service station was suggested; that he was given to understand that his contracts would be renewed from year to year, or a perpetual one given him, and in fine that he was assured that he was indispensable to the company. We think the record fairly discloses that the dealings of the parties had been mutually satisfactory; the company through its agents undoubtedly did compliment defendant’s success in the way he conducted his business and sold cars, and undoubtedly suggested matters which were thought to be of mutual advantage, but we cannot feel that this was done from anything but the best of motives, or that it was designed to put defendant in a frame of mind where an unconscionable contract could be procured from him. Defendant had been a valuable customer of the company, but he had profited considerably by his dealings with it and for the last two years he handled its cars he got cars to sell when others did not. We entertain no doubt that the contract with defendant would have been renewed from year to year if plaintiff had continued to handle its product in the way it had. But these contracts were annual ones, executed each year, having no binding force beyond a year, and were subject to cancellation on 30 days’ notice; all of which was well known to defendant. The demand for cars had grown so that it was over three times plaintiff’s output and no one can doubt its right to change its policy with the change of conditions. It would establish unheard of propositions to hold that one was bound to deal with another forever simply because he expressed satisfaction with his relations or that he was bound in law to make a new contract because an old. one had been satisfactory. There was no sharp practice or overreaching in procuring this contract. The plaintiff decided to change its plan of handling the sale of its cars in Detroit. This it had an undoubted right to do; with reasonable promptness defendant was advised of the change; this was fair treatment to him. He decided to go out of the business and procured a contract that would assume many of his obligations and protect him from loss; this was strictly a business question to settle and the parties settled it in a business way with the result that the contract was executed.

Was the contract unconscionable? We think not. Defendant insists the leases were valuable, that the fixtures, etc., were worth much more than plaintiff agreed to pay, that the good will of the business was worth a considerable sum, and that the provisions for arbitration of the value of the used cars was unfair. Undoubtedly these leases to one desiring to conduct the business of selling automobiles were valuable, but if that was a fact no one knew it better than defendant. It would be a violent presumption to assume that Mr. Akers, who lived in the little town of Williamston, and who did business in Lansing, knew more about the value of leases on Woodward avenue property than did the defendant who for many, years had occupied this location and had watched the development of Detroit and knew, if any one did, what their value,was. So as to the fixtures. Mr. Young wanted $1,500 for them; Mr. Akers offered $1,000; after some discussion they split the difference. Defendant now insists that they are worth many thousand dollars. But he, better than Akers, knew what they were worth; he asked as his first price $1,500,' and agreed to take $1,250. The used cars were but a small factor in the negotiations. It is highly improbable that either party, when the contract was made, expected any difficulty in agreeing upon their value. If the defendant had then intended to continue in business his good will was a valuable asset. But the contract was made by him with a view of quitting the automobile business and taking a much needed rest. This was the condition confronting Mr. Young when he made the contract. It was made with that in view. Upon the hearing of the case, however, plaintiff’s counsel stated that plaintiff had no desire to prevent Mr. Young from continuing in business and expressly waived that clause of the contract. Indeed, much of this discussion is academic, as outside the assignment of the leases all provisions of the contract have either been adjusted by the parties or their specific performance waived by the plaintiff. Plaintiff has been most considerate of defendant and his rights in view of his uncompromising attitude of persistent refusal to abide the provisions of the contract he entered into with its accredited officer. The facts are unquestionably with the plaintiff and unless some rule or rules of law prevent, it is entitled to here prevail.

It cannot be claimed that there is a want of mutuality of obligations in the contract in question; we do not understand defendant so claims. What he does claim, as we understand it, is that there is a want of mutuality of remedy so as to preclude the right to the particular remedy here sought, that of specific performance. It is undoubtedly true that a technical rule has been announced by text writers and courts that the remedy by specific performance must be mutual in order to make it available to either party; that unless the remedy is open to both, it is open to neither. Thus it was said by Lord Justice Fry in his work on Specific Performance (Fry on Specific Performance, § 460), in speaking-of that remedy: be free from the difficulty attending its execution in the former.”

“A contract to be specifically enforced by the court must, as a general rule, be mutual — that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. When, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is, generally, incapable of enforcing it against the other, though its execution in the latter way might in itself

But his Lordship recognizes that there are exceptions to this rule, and so numerous and so varied have been the exceptions which have been tacked on to the rule that it is at present of littlé force as a rule. In the latest edition of Pomeroy’s Equity Jurisprudence, furnished the profession last year, and prepared by Mr. John Norton Pomeroy, Jr. (5 Pomeroy’s Equity Jurisprudence, § 2191), it is said:

“The frequent statement of the rule of mutuality— ‘that the contract to be specifically enforced must as a general rule, be mutual — that is to say, such, that it might, at the time it was entered into, have been enforced by either of the parties against the other,’ is open to so many exceptions that it is of little value as a rule.' But in view of the firm place that the doctrine of mutuality has obtained in the courts of equity, it seems well to attempt a restatement that shall be more free from exceptions. The following forms seem to meet the cases generally. - ‘Equity will not compel specific performance by a defendant, if after performance the common-law remedy of damages would be his sole security for the performance of the plaintiff’s side of the contract.’ ‘The court will not grant specific performance to plaintiff and at the same time leave defendant to the legal remedy of damages for possible future breaches on plaintiff’s part.’ This rule, it is believed, covers the circumstances in equity where, according to the weight of authority, the court refuses its aid for lack of mutuality.”

The article in Cyc. on the subject of Specific Performance was also prepared by Mr. Pomeroy. Considering the question of mutuality of remedies, it was there said (36 Cyc. p. 622) :

“The requisite of ‘mutuality of remedy,’ that is, that the remedy of specific performance must be available against plaintiff in order that complete relief may be given in the single suit stands upon a firmer footing. The court will not grant specific performance to plaintiff and at the same time leave defendant to the legal remedy of damages for possible future breaches of the contract on plaintiffs part. The rule is enacted by statute in a few States. This mutuality of remedy, however, need not have existed prior to the time of the decree.”

It was held by the supreme court of Minnesota, in Brown v. Munger, 42 Minn. 482 (44 N. W. 519) ; we quote from the syllabus:

“In order that specific performance of an agreement for the sale, exchange, or conveyance of land be decreed, it is not absolutely essential that there be mutuality of remedy ab initio. But the mutual enforcement of the contract should be practicable when specific performance is adjudged. The court should then be able to enforce by its decree all of the terms, in prsesenti; should have the power to supervise the performance of the contract by each of the parties, and in all of its parts.”

In an able article by Prof. Ames in 3 Columbia Law Review, pp. 1, 8, after stating and reviewing eight exceptions to the rule, it is said:

“It is evident, from a consideration of the eight classes of cases, just discussed, that the rule of mutuality, as commonly expressed, is inaccurate and misleading. The reciprocity of remedy required is not the right of each party to the contract to maintain a bill for specific performance against the other, but simply the right of one party to- refuse to perform, unless performance by the other is given or assured.”

The case of Rust v. Conrad, 47 Mich. 449, relied upon by defendant, is not out of accord with the authorities cited, nor is it subject to the criticism indulged in by some text writers and courts. In that case the bill was filed to procure specific performance of an agreement to make a lease. But by the terms of >the agreement the lease was to contain a provision which.permitted plaintiff to surrender the premises, thus cancelling the lease. In other words, the bill sought to compel the execution of a lease which might be nullified instantly upon its execution. It was held that the courts would not do an idle thing. It was there said:

“But the court will also refuse to interfere in any case where, if it were to do so, one of the parties might nullify its action through the exercise of a discretion which the contract or the law invests him with. The refusal in such a case does not depend of necessity upon any illegality, inequality, or unfairness, but it is sufficiently based upon the impropriety of imposing on the judge the labor, and on the public the expense of an investigation of disputes when the circumstances are such as to preclude any judgment that may be rendered from being final. No court can with reason be called upon to do a vain thing.”

The case was correctly decided. It does not go to the length defendant claims for it, nor is it out of accord with the authorities cited.

In the instant case plaintiff has performed or tendered performance of all its obligations incurred, in the contract. Defendant claims no rights, either legal or equitable, under it; he seeks no remedy, either legal or equitable, against plaintiff. He absolutely repudiates the contract and denies that he is bound by it. It would be an anomalous situation indeed to permit defendant, who claims no rights and seeks no remedy, to invoke the technical rule unmodified by exceptions or the trend of later authorities, that unless he has a remedy by specific performance plaintiff may not invoke it. The plaintiff is not precluded relief on the doctrine that there must be mutuality of remedies.

The remedy by specific performance is not a remedy of right. The relief should be granted or refused in the exercise of a sound judicial discretion. In the case of Nowicki v. Kopelczak, 195 Mich. 678, we said:

“The granting relief by specific performance of a contract is not a remedy of right, but rests, and should rest, in sound judicial discretion. It should be refused where the party has a complete remedy at law, but where the remedy at law is inadequate, and the plaintiff has clearly established his right to such relief, so that the judicial discretion is moved, courts should not withhold or hesitate in granting the only relief adequate in the case.”

The premises here involved have for seven years been the salesroom of the Reo car and trucks. Here some seven thousand owners of that make of car go for their parts and service; it has become recognized as the Reo headquarters for Detroit and vicinity. It is much better adapted for plaintiff’s purpose than any other location it is able to obtain. In fact the testimony discloses that the desirable locations for salesrooms for automobiles have all been appropriated. Plaintiff’s damages could not be compensated in dollars and cents. We think it has pursued the proper remedy and that the relief sought should be decreed.

We therefore affirm the decree, with costs to plaintiff.

Moore, C. J.„ and Steere, Brooke, Clark, Bird, and Sharpe, JJ., concurred. Stone, J., did not sit.