text:
    FOSTER v. VILLAGE OF BELLAIRE.
    1. Municipal Corporations—Personal Injuries — Notice op Claim—Waiver op Defects.
    Where notice of a claim against a village for injuries caused by a defective sidewalk is served within the time provided for by 1 Comp. Laws, § 3775, but is not verified or itemized, as required by section 3754, the omission may be waived by the village council.
    3. Personal Injuries—Evidence—Mortality Tables.
    Where, in an action for personal injuries, it is not shown that plaintiff may not recover, the mortality tables are inadmissible.
    Error to Antrim; Mayne, J.
    Submitted February 1, 1901.
    Decided June 4, 1901.
    ' Case by Cynthia A. Foster against the village of Bellaire for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Leavitt & Guile, for appellant.

      George H. Cross, for appellee.
   Moore, J.

This action was brought to recover damages alleged to have been sustained by reason of a defective sidewalk. The injury was received on the evening of the 13th day of May, 1899. On the 6th day of July, 1899, a notice of claim for damages was served on the defendant village, which was neither itemized nor verified; and on July 15th a second claim was served, which was itemized and verified, and in form fully complied with all the requirements of the statute. It is conceded by the plaintiff that the statement of the plaintiff’s claim as served on the 6th day of July does not comply with the statute, in that it was not itemized and verified, and that the statement of the claim served on the 15th day of July, while sufficient in form, was not served within the time required by the statute. The plaintiff, however, relies upon the subsequent conduct of the defendant in relation to the claim to establish a waiver of the defects in the claim as served. The trial court submitted the question of waiver to the jury. A verdict of $500 was rendered in favor of plaintiff. Many assignments of error are discussed by counsel, but we deem it necessary to refer to but two of them.

It is insisted by counsel that the requirements of the statute are mandatory, and cannot be waived by the common council. The precise question presented by this case was before the court in Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663), and was decided against the contention of counsel for the defendant. See, also, Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141), and cases there cited.

The testimony offered on the part of the plaintiff tended to show that she was seriously injured, but it did not show she might not recover from her injuries. Against the objection of counsel for defendant, the tables of mortality were introduced in evidence. In Mott v. Railway Co., 120 Mich. 127 (79 N. W. 3), it was held, “Mortality tables are only admissible in a case of permanent injury, or where the suit is brought by the representatives of a deceased person.” See, also, Sax v. Railway Co., 125 Mich. 252 (84 N. W. 314); Leach v. Railway Co., 125 Mich. 373 (84 N. W. 316).

For this error, judgment is reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    FINNEGAN v. MICHIGAN CENTRAL RAILROAD CO.
    Bailroads — Personal Injuries — Person on Track — Gross Negligence.
    Where, in an action against a railroad company for running down plaintiff’s decedent while walking along the track, it appeared that decedent had been on the track but a very short time, that the track curved sharply at that point, that the engineer was on the outside of the curve, so that he could see ahead but a short distance, and that the fireman’s attention was directed chiefly to the station ahead, and his view somewhat obscured by smbke from an engine on an intersecting track, there was nothing to justify a finding of gross negligence on the part of defendant’s servants, so as to remove the bar of decedent’s contributory negligence, and a verdict should have been directed for defendant.
    Error to Washtenaw; Kinne, J.
    Submitted February 12, 1901.
    Decided June 4, 1901.
    Case by William Finnegan, administrator of the estate of Don Finnegan, deceased, against the Michigan Central Eailroad Company, for the alleged negligent killing of . plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Lawrence & Butterfield, for appellant.

      Lehmann Bros. & Stivers, for appellee.
   Montgomery, C. J.

On the 10th of August, 1898, one Greenman, who was in the employ of defendant, and Don Finnegan, a boy 15 years old, were struck by an engine of the defendant, and killed. The tracks of the Michigan Central Eailroad Company at Ann Arbor, going towards Chicago, from the passenger house, for about 600 or 800 feet, run in a westerly direction, and then take a sharp curve- in a northwesterly direction. At nearly the stiffest point of the curve is located the overhead bridge of tbe Ann Arbor Railroad Company. East of the railroad is the embankment and dam of the Ann Arbor Milling Company, and a short distance from the overhead bridge of the Ann Arbor Railroad, on the west side of the tracks, are Kyer’s gristmill, a cooper shop, and stock yards. On the southwest side of the mill pond, and adjacent to the railroad grounds, there were a number of private boat-houses, that had been there for 15 or 18 years. There was, at the time of the accident, one public boathouse adjoining the railroad, and upon land owned by the Ann Arbor, Milling Company, which one Paul Tessmer held possession of under a lease from the milling company. There was a platform or gangway which rested at one end upon the embankment of the railroad. The railroad premises opposite these boat-houses were unfenced, and were a part of the depot yards of the defendant. On the west side of the tracks, between the gristmill and the cooper shop, is an open space; also one between the cooper shop and the stock yards. Many persons, for many years, have been accustomed to pass through these openings, and cross the tracks of the Michigan Central Railroad Company, for the purpose of going either to the boat-house of Tessmer, or to go skating or swimming, or to pass over the milldam. A majority of the people who frequented this locality came on the tracks near the passenger house, and walked up to the mill pond. On this right of way of the railroad company there is no well-defined path or passageway, but people crossed wherever it 1 suited their convenience, as the grounds were open, and one part of the right of way was as good as another for that purpose, it all being level and hard. There was no indication of any beaten path over the tracks. There was a beaten path near the cooper shop, and one near the stock yards; but there was no fence along the railroad, and persons crossed most anywhere. The tracks of the defendant, at about the point where the bridge of the Ann Arbor road crosses its right of way, make a sharp curve in a northwesterly direction, and run nearly straight, for over half a mile, towards what is known as the “WhitmoreLake Crossing.”

On the 10th day of August, 1898, Mr. Greenman was employed by the defendant to work in its freight house, and also to attend to lighting the switch lamps west of Ann Arbor station. In the afternoon of the day above mentioned he was seen,- about 2 o’clock, going up the track to attend to his duties. When he was returning down the tracks, coming from his work, the plaintiff’s intestate was with him. There is a little shop about 500 feet west of the Ann Arbor bridge, occupied by a car inspector. Mr. Greenman and Don Finnegan were seen to pass this little shop on their way east down the tracks, about 15 or 20 minutes before the mail train, which was due at Ann Arbor at 3:47 p. m., came along. There is no testimony in the case to show where Greenman and Finnegan were from the time they passed the inspector’s shop until they were seen by Mrs. Hattie Hurst as they were about to cross the tracks. Her testimony is as follows:

“Q. About what time did this happen, as near as you can tell?

“A. Abotft 5 o’clock.

“Q. Did you see the men when they were struck,—-the little boy ?

“A. I saw the man and the boy when they were struck.

“Q. Which way did you look when you saw them?

“A. I was looking towards the way the train was going,—towards the city.

“Q. Where were the man and the boy with reference to the Ann Arbor bridge that is over the Michigan Central? Were they towards the depot or towards you from the bridge ?

“A. Towards the depot.

“Q. About how far beyond the bridge were they when they were struck, as near as you can tell ?

“A. I think they were the other side of the dam.

“Q. About opposite the dam ?

“A. Yes; about there.

‘! Q. Which one was on the right-hand side ?

“A. The boy was on the side next to the river, and the man was on the side next to Main street.

Q. Where were the boy and the man the first time you noticed them at all on that day ?

“•A. The first time I noticed them they were going across the track. When I saw the cars coming, they were just starting across, and I thought to myself, ‘ It is the 5 o’clock train coming.’ I looked down for my husband, and did not see him, and in that time they caught the boy and the man.”

There was testimony tending to show that the bell was not ringing on the engine, and that no signal was given.

The circuit judge, while expressing doubt as to whether a case had been made out, submitted the case to the jury, under instructions in which it was stated that the decedent was chargeable with contributory negligence, but left it to the jury to find whether the defendant’s ^servants were guilty of' gross negligence. The contention of plaintiff’s counsel is that the engineer and fireman were not giving attention to the track ahead of them, or they would have seen Greenman and the decedent walking on the track; and they seek to bring the case within that.of Battishill v. Humphreys, 64 Mich. 514 (38 N. W. 581). The course of the argument is that it is, upon the whole testimony, open to inference that the decedent and Greenman had been walking upon the track, for some distance, where they might have been seen, and that, if the fireman had looked along the track constantly, he would have seen them earlier. As a matter of fact, he did not see them until within a very few feet of where they were struck.

We think a fair reading of the testimony does not show that Greenman and decedent had been walking along the track for any considerable distance. It is true that, immediately before they were struck, they were on the track, with their backs to the approaching train; but the testimony introduced by plaintiff, and quoted above, shows that they had just started to cross the track. Neither is the evidence of inattention on the part of the trainmen such as to warrant a charge of gross negligence. The engineer, being on the outside of the curve, could not see far ahead. The fireman was required to look ahead to tbe station, to see that all was clear there. For a time, his view was obstructed by smoke from the Ann Arbor train. It is only by the most careful figuring that it is attempted to be shown that, had the attention of the fireman been given at just the precise point of time, he would have seen the parties on the track, if they were then there. As we have already pointed out, the testimony of plaintiff’s witness shows that they were not there until just before they were struck. There was no evidence of gross negligence on the part of the .trainmen, and a verdict should have been directed.

Judgment reversed, and a new trial ordered

The other Justices concurred.


author: Long, J.

text:
    GRINNELL v. NIAGARA FIRE-INSURANCE CO.
    1. Garnishment—- Justices of the Peace —Foreign Insurance Companies.
    A foreign insurance company may be garnished in justice’s court, under 1 Comp. Laws, § 1014, authorizing garnishment proceedings in such courts against “corporations, whether foreign or domestic. ”

      2. Same—Corporations—Service of Process.
    Under the provision of said section that the garnishee summons may be served on the “general or special agent” of the corporation, a return showing service on a person described as “agent” of such corporation is sufficient to confer jurisdiction.
    3. Same—Pleadings—Description of Garnishee.
    An affidavit and writ of garnishment in justice’s court, which describe the garnishee as “ a corporation, etc.,” without stating whether it is foreign or domestic, are not fatally defective.
    4. Same—Oral Examination of Garnishee.
    The action of the justice in striking the disclosures from the files, and ordering the garnishee to submit to an oral examination, if erroneous, was not prejudicial.

      5. Same—Claim Under, Insurance Policy — Liability op Garnishee.
    Where, in garnishment proceedings against a fire-insurance-company, commenced more than 60 days after loss .under a. policy held by the principal defendant, the garnishee admitted a liability to the amount of 5500, and it appeared that, after service of the summons, it paid 51,000 to the insured in settlement of his claim, a judgment against the garnishee for less than 5500 was justified.
    Error to Wayne; Carpenter, J.
    Submitted February 13, 1901.
    Decided June 4, 1901.
    Garnishment proceedings by Ira L. Grinnell and Clayton A. Grinnell, copartners as Grinnell Bros., against the Niagara Fire-Insurance Company, as garnishee of William S. Murray. From a judgment for plaintiffs on verdict, directed by the court, defendant brings error.'
    Affirmed..

      Tarsney, Hayes, Lawson & Fitzpatrick, for appellant :
    The affidavit and writ are defective, and conferred no jurisdiction upon the justice. Ettelsohn v. - Insurance Co., 64 Mich. 331 (31 N. W. 201).
    The same reasons which determined the court to hold in Insurance Co. v. Owen, 30 Mich. 441, that the statutes, relating to service of process on foreign insurance companies were not applicable to proceedings in justice’s court, should move it now to hold that such companies are excepted from the provisions of 1 Comp. Laws, § 1014.
    The loss had not been adjusted at the time the summons was served; the company had not determined whether it would pay the loss in money or replace the goods destroyed; hence the claim was not garnishable. Martz v. Insurance Co., 28 Mich. 201; Thorp v. Preston, 42-Mich. 511 (4 N. W. 227); Tribune Co. v. Reilly, 46-Mich. 459 (9 N. W. 492); Hitchcock v. Miller, 48 Much. 603 (12 N. W. 871); Hopson v. Dinan, 48 Mieh. 612 (12 N. W. 875); Bethel v. Judge of Superior Court, 57 Mich. 381 (24 N. W. 112); Cogswell v. Mitts, 90 Mich. 355 (51 N. W. 514); Bank v. Williams, 112 Mich. 567 (71 N. W. 150); Boyle v. Insurance Co., 7 Watts & S. 76; Qies v. Bechtner, 12 Minn. 279; McKean v. Turner,,.
      45 N. H. 203; Gove v. Varrell, 58 N. H. 78; Bucklin v. JPoioell, 60 N. H. 119.

      William L. January, for appellees.
   Long, J.

In October, 1898, plaintiffs brought suit in justice’s court against William S. Murray, and on November 10th following recovered a judgment for $250. On the day the judgment was rendered, plaintiffs sued out a writ of garnishment against the defendant herein. This defendant is a foreign corporation, but doing business in the city of Detroit. The writ of garnishment was served November 12th. One Mr. Davenport was described in the return as the agent of defendant company. On the return day of the writ, Mr. Brooks, an adjuster of the company, appeared, and disclosed that the company had theretofore issued a policy to Murray for $1,500; that a loss by fire had occurred, for which Murray claimed a benefit under the policy, but that the company had not acknowledged any liability to Murray under the policy-The garnishee proceedings were commenced more than 60 days after the fire. After this disclosure, the company filed amended disclosures in writing. These were stricken from the files by the justice, and an oral disclosure ordered, and an adjournment taken. On the adjourned day, Mr. Brooks again appeared in answer to a subpoena, and was orally examined touching the liability of the ■company. Thereafter the justice rendered judgment against the garnishee defendant for $251.50, being the amount of the judgment and costs against the principal defendant. The case was thereupon appealed to the circuit court, and on a trial there the plaintiffs again had judgment. Defendant brings error.

1. It is contended by counsel for defendant that “the affidavit and the writ of garnishment are defective, and conferred no jurisdiction upon the justice, because they •do not describe the defendant insurance company in such a manner as to show that it is a corporation amenable to our. laws.” The garnishment proceedings were commenced under chapter 35, 1 Comp. Laws 1897, relating to garnishment in justices’ courts. This act was passed in 1849, as Act No. 137, and is entitled “An act to authorize proceedings against garnishees and for other purposes.” It has been amended from time to time, and section 25 of the act was amended so that it now stands as section 1014, 1 Comp. Laws 1897, and provides:

“Corporations, whether foreign or domestic, other than municipal, may be proceeded against as garnishees in the same manner, and with like effect, as individuals, under the provisions of this act, and the rules of law regulating proceedings against corporations; and the summons against the garnishee in such case may be served on the president, cashier, secretary, treasurer, general or special agent,” etc.

In Lorman v. Insurance Co., 33 Mich. 65, the proceedings were in garnishment commenced against the defendant insurance company under section 6463, 2 Comp. Laws 1871, being the identical section of the act under which the present proceedings were had. The writ was served on the general agent of the defendant company, and no question was raised but that the service was valid. This act covers all cases in which garnishee proceedings may be commenced in justice’s court. It renders the garnishee liable for the value of all the goods, property, money, and effects in his hands or under his control belonging to the -principal defendant. By section 22 (1 Comp. Laws 1897, § 1011), bills of exchange and promissory notes not due, in the hands of the garnishee at the-time of the service of the summons, are deemed to be effects, under the provisions of the act.

The affidavit and writ in the present case describe the-defendant company as “the Niagara Fire-Insurance Company, a corporation, etc.,” without stating whether it is a foreign or a domestic corporation. The writ was served, on Mr. Davenport, whom the return to the writ describes as “agent of the above-named company.” It is conceded that Mr. Brooks, the adjuster of the company, appeared in answer to the summons in garnishment, and made disclosure, and that on the adjourned day the defendant was represented by counsel in the case, and there is nothing in the record showing that any claim was made that the justice had no jurisdiction. We think the affidavit and writ were not defective, and that the justice had jurisdiction.

2. It is claimed that the justice exceeded his powers in striking the written disclosures from the files, and ordering the defendant to submit to an oral examination. We think there was no error in this that was prejudicial to the rights of the defendant company.

3. It is claimed that the garnishee disclosures failed to show sufficient evidence upon which to base any liability of the defendant, because it denied absolutely the existence of any indebtedness to Murray, the principal defendant. There is no merit in this claim. It appears that, after the garnishee summons was served, the insurance company made a settlement with Murray by the payment to him of $1,000 in full of his claim under the policy. The adjuster of the company testified on his examination that the company paid Murray $1,000, and took from him a bond to save the company harmless of and from all claims the plaintiffs here might have under these proceedings. He also testified: “I will admit that the company was indebted in the sum of $500.” This admission was sufficient upon which to base the judgment in this case.

The judgment must be affirmed.

The other Justices concurred.


text:
    LAIRD v. LAIRD’S ESTATE.
    1. Inconsistent Remedies—Election—Estoppel.
    The dismissal of a bill for specific performance of a contract by a decedent to give all of his property to complainant in consideration of board and care, on the ground that complainant had filed a claim for the board against decedent’s estate, is not a.bar to the maintenance of the claim.
    2. Wills—Petition for. Probate—Estoppel.
    The presentation of a will for probate will not estop proponent to assert a claim against decedent’s estate.
    3. Estates of Decedents—Contracts—Evidence.
    Evidence of an admission by a decedent that he was to pay his son a stated amount per week for board, but did not pay, as he was saving his property for the son, is sufficient to support a j udgment in favor of the son for the board furnished.
    4. Same—Measure of Recovery.
    Where a father agreed to pay his son a stated amount per week for board, the fact that the father afterwards changed his mind, and decided to leave certain property to the son, does not authorize the latter to recover from the father’s estate the reasonable value of the board, but the recovery is limited to the agreed price.
    5. Same—Evidence.
    Evidence of declarations of a deceased father as to unpleasant relations with his other children is not admissible in support of a claim by one child against the father’s estate for the board of the father.
    6. Same—Misconduct of Counsel.
    In a proceeding to enforce a claim against decedent’s estate, a statement by claimant’s counsel that the defense kept the mouth of claimant closed, and, in response to a suggestion that it was the law which had that effect, that they could waive the law excluding his testimony, is reversible error.
    Error to Wayne; Lillibridge, J.
    Submitted February 14, 1901.
    Decided June 4, 1901.
    Charles Laird presented a claim against the estate of James Laird, deceased, for board and attendance. The claim was allowed by the commissioners, and William C. Laird and Betsy Lockhart, heirs at law and legatees of decedent, appealed to the circuit court.’ From a judgment for claimant, contestants bring error.
    Reversed.

      Warner & Codd, for appellants.

      James Id. Pound, for appellee.
   Montgomery, C. J.

This is an appeal from a judgment of the circuit court in favor of the claimant, ■Charles Laird. The claim was first presented to the commissioners on claims, and was for board of the deceased for a long period of time. The case of Laird v. Laird, 115 Mich. 352 (73 N. W. 382), involved, to some extent, the same questions which are presented in this record. It is contended by appellants that the case of Laird v. Laird is decisive of the present case, and a bar to the ■claimant’s action. It appeared in that case, among other things, that the claimant here had filed the present claim before commissioners on claims, and that an appeal had "been taken to the circuit court; that, pending this appeal, the bill of complaint in the chancery case was filed, claiming specific performance of a contract by which the deceased agreed to give claimant the premises in question, and whatever property he died seised of, in consideration of his board. This bill was dismissed, in part upon the ground that the filing of the claim for allowance before ■commissioners, and the retention of that case in court, was inconsistent with the claim set up in the bill. The appellants, however, contend that that case should be treated as a bar to this. We think this results from a misapprehension of the holding in that case. To dismiss that case on the ground that the filing of the present claim was inconsistent with the claim there made, and then to refuse relief in .this case because of the filing of that bill, would be to deny a hearing upon the merits in either proceeding. We think that decision should not be so construed.

It is further contended that the filing of the will for probate was in that case held to be inconsistent with the claimant’s present claim, and,that for this reason he isestopped from asserting the claim for board. The expression contained in the opinion in Laird v. Laird, that the filing of the will was inconsistent with the claim set up in the bill, was used in discussing a questidn of fact, and drawing deductions from the acts of the complainant. It was not intended to hold, as. matter of law, that, if claimant had a valid claim against the estate,'the filing of this will for probate would discharge that obligation, nor do-we think such is the legal effect.

It is further strenuously insisted that there is no testimony tending to sustain claimant’s claim. It would not profit counsel to cite further at length the testimony, but there is testimony in the record showing admissions of deceased to the effect that he was boarding by the week, and was to pay four dollars a week, but did not pay it, for the reason that he expected to save the property for claimant. The force of this testimony was for the jury.

The circuit judge, in his charge' to the jury, used the following expression:

“If claimant has satisfied you that James Laird agreed to pay four dollars a week for his board, then James Laird’s estate is liable, and this action is properly brought, even though the father afterwards changed his mind, and, instead of paying four dollars a week, thought that he-would convey the Bagg-street property to him after his death. Under these circumstances, I say Charles Laird’s claim is properly brought in this court for what his services are fairly worth. Upon that point, if the claimant is entitled to recover anything in this case,—that is to say, if you find the presumption is rebutted, and if you find there was an agreement to pay for his board,—then the recovery of Charles Laird is not necessarily limited to four dollars a week, but he may recover whatever you may believe from the testimony the care that he rendered his-father and his board were worth for the period of six years before the father’s death; that is to say, for a period of six years before January 7, 1893. He is entitled to recover what these services were worth for a period of six years before his father’s death, less the rental value of the house on Bagg street, over and above the repairs .and improvements which Charles put on that house.”

We think this instruction liable to mislead the jury. If, as a matter of fact, the contract was to pay at four dollars a week, this should be the limit of recovery, and not the reasonable value of the services. The fact that deceased may have changed his mind, and thought to1compensate claimant by conveying the Bagg-street property, does not change the contract, and, if the contract was at four dollars a week, all that deceased was chargeable with was failure to pay at the agreed price.

A Mrs. Patterson testified to statements made by deceased that while in Scotland his son William wanted him to work and peddle on the street, and that he had never done that kind of work, and would not go back to Scotland and peddle, and that he said they did not use him well, and that he was glad to get hack, and, in answer to a direct question, also stated that deceased felt a little soreness towards his children in Scotland. We cannot conceive for what purpose this testimony "was admissible. Its most probable effect was to prejudice the jury, and create an impression in their minds that the children of deceased in Scotland did not merit consideration at the hands of the jury. It is said in the brief of appellee’s counsel that this testimony was not objected to. It is true that no objection appears to have been made at the place where it was offered, but that the subject was under consideration is apparent from the ruling of the court made later in the case, and to which ruling an exception was taken by appellants’ counsel.

While Mrs. Nichols was on the' stand, a question was put to her, and objected to by appellants’ counsel, when the following occurred:

“Mr. Pound: This man’s mouth is shut, and my brother keeps it shut.

‘ ‘ Mr. Warner: I take an exception to that statement. I have not kept it shut. The law keeps it shut.

“Mr. Pound: My friend can waive the law.

“Mr. Warner: I take an exception to that statement.

The Court: Note an exception.”

The question .presented is very similar to that ruled upon in Thompson v. Railway Co., 91 Mich. 255 (51 N. W. 995). The counsel for claimant must have known that the testimony of claimant was inadmissible, and that no presumption could be raised against the other side for a failúre to waive an objection to his testimony. The purpose of these expressions could have been no other than to ask the jury to draw an unfavorable inference because the defendants were standing upon their legal rights.

It is earnestly contended by appellee’s counsel that justice was done in the case, and that the judgment should be affirmed. We cannot, however, overlook the errors ■committed on the trial. These errors, in the most part, were due to an attempt to inject into the case something which did not belong there, and which counsel for the claimant must have understood was foreign to the issue. In such a case, the responsibility for a reversal of the judgment certainly does not rest with this court. It is very easy to avoid such errors, and it appears that an injustice may have been done because of them. It is the right of an appellant to be given an opportunity to try his case according to the rules of law. '

The judgment will be reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. WEBB.
    1. Criminal Law—Sufficiency op Information.
    The question of the sufficiency of an information must be determined from the information itself, and is not dependent upon the proofs.
    2. Same—Attempts to Commit Crime.
    An information charging a crime necessarily charges an attempt to commit such crime.
    3. Same—What Constitutes Attempt.
    3 Comp. Laws, § 11784, providing that any person who shall ■ attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail or be prevented in the execution thereof, shall be subject to a certain punishment, is but declaratory of the common law, and does not change the rule as to what constitutes an attempt to commit an offense.
    4. Same—Pleading.
    Nor does it change the common-law rule of procedure, so as to preclude a conviction for an attempt under an information charging a completed offense, when the proofs are not sufficient to show the offense, but sufficient to show an attempt.
    5.' Same—Assisting Prisoner to Escape—Conveying Articles Into Jail—Evidence.
    A conviction for conveying into jail instruments useful to enable a prisoner to escape, as prohibited by 3 Comp. Laws, § 11315, cannot be sustained on evidence that such articles were brought into the sheriff’s office in the jail building, which, while constituting the only means of access to the jail proper, was separate and distinct therefrom.
    Error to Kalamazoo; Buck, J.
    Submitted February 15, 1901.
    Decided June 4, 1901.
    Frank Webb was convicted of conveying instruments and tools into jail to assist prisoners to escape, and was sentenced to imprisonment for five years in the State house of correction at Ionia.
    Be ver sed.

      N. H. Stewart, for appellant.

      Sheridan F. Master, Prosecuting Attorney, for the people.
   Hooker, J.

One Allison, and a companion named Slater, being confined in the county jail at Kalamazoo, in default Of bail, on a charge of larceny, on the 10th of April, 1899, Frank Webb, the respondent in this cause, went to the office of the attorney having charge of the defense of said Allison and Slater, and asked him how the boys were off for reading matter, and produced two books, and requested the attorney to deliver the same to them. They were taken by the attorney to the sheriff’s general office, and, when his errand was made known to the sheriff, he said he “ would bet there were files or saws in the covers of the books,” and upon examination they were found to contain both. The jail is entered only through the sheriff’s general office, which is contiguous to the place of confinement of prisoners, or jail proper, and also to the sheriff’s residence; all being together in one building. The defendant has brought error upon a conviction and sentence under section 11315 of the Compiled Laws of 1897, which provides that:

“ Every person who shall convey into any jail, prison, or other like place of confinement, any disguise, or any instrument, tool, weapon, or other thing, adapted or use-'ful to aid any prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or shall, by any means whatever, aid or assist any such prisoner in his endeavor to make his escape therefrom, whether such escape be effected or attempted or not, and every person who shall forcibly rescue any prisoner held in custody upon any conviction or charge of an offense, shall be punished by imprisonment in the State prison not more than seven years; or, if the person whose escape or rescue was effected or intended was charged with an offense not capital, nor punishable by imprisonment in the State prison, then the punishment for the offense mentioned in this section shall .be by imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars.”

Counsel raises three questions, viz.:

1. Whether taking tools into the general office was conveying them into the jail, within the meaning of the statute.

2. Whether the information is defective because it does not allege that the defendant attempted to convey these tools into the jail, it having appeared that they were conveyed into the office merely.

3. Whether the circumstantial evidence, under which counsel claims that the defendant was convicted, proves his guilt beyond a reasonable doubt.

The information recites, in substance, the confinement of Allison and Slater under due process, charged with a felony, which is fully described, and charges the defendant with feloniously conveying into the jail two steel files and two steel saws, the same being adapted and useful to aid any prisoner in making his escape, with intent to facilitate the escape, and to aid in the escape, of said Allison and Slater. The sufficiency of an information does not depend upon the proofs. It either is or is not, upon its face, a good information; and, the defendant having been convicted of the full offense charged, it would be unnecessary to discuss the propriety of a conviction for attempt under this information, but for the purpose of a new trial. An attempt is necessarily charged in every charge of crime. 1 McClain, Cr. Law, § 229; State v. Archer, 54 N. H. 465; State v. Frank, 103 Mo. 120 (15 S. W. 330); Reg. v. Hapgood, L. R. 1 Cr. Cas. 221; Abbott, Cr. Tr. Brief, § 827a. Our statute (3 Comp. Laws, § 11784) provides that:

“Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution, of the same, when no express provision is made-by law for the punishment of such attempt, shall be punished as follows.”

We have held that this section is declaratory of the com- • mon law, and does not change the common-law rule as to what constitutes an attempt to commit an offense. Peo ple v. Youngs, 122 Mich. 292 (81 N. W. 114). We think there is no reason for saying that this statute was intended to change the common-law rule as to procedure, and to preclude a conviction of an attempt upon an information charging a completed offense, when the proofs fail to show the latter, but do show an act done towards the commission thereof, within the rule laid down by the statute. See, also, 3 Comp. Laws, § 11789; People v. McDonald, 9 Mich. 153; Hanna v. People, 19 Mich. 322; Campbell v. People, 34 Mich. 351; People v. Courier,, 79 Mich. 366 (44 N. W. 571); People v. Abbott, 97 Mich. 488 (56 N. W. 862, 37 Am. St. Rep. 360).

A more important question is whether, under the evidence, he should have been convicted of anything more than an attempt. This depends upon the question whether or not we should say that the office is a part of the jail, for the statute requires that the instruments be carried into the jail, to constitute the offense. Penal statutes must be strictly construed, and words used are to be given their popular, rather than a technical, meaning. 1 Comp. Laws, § 50, subd. 1. This court has adhered closely to this rule, as will be seen by a reference to the note accompanying this section of the statute. Few people would understand that a jailer’s office is a part of the jail. A person in such office is as far from being in jail as though he were outside of a grated jail window. Counsel have not cited authority throwing much light upon the question. In Welch v. State, 25 Tex. App. 580 (8 S. W. 657), instruments had been conveyed into a yard inclosed by a wall, inside which yard the house containing the cells was placed. The trial court left it to the jury to determine whether this was a part of the jail, the question apparently being made to turn upon the use made of it; i. e., whether the yard was a place of confinement used for detaining the prisoner named in the indictment. The appellate court held that ‘ ‘ this wall was constructed with a view of confining prisoners, and constituted a stronger and more reliable safeguard against escape of prisoners than the frame house, or the cells.contained therein, and was the principal protection, the most important portion of the place of confinement,”—i. e., the jail,—and affirmed the judgment. But this jailer’s office was not a place of confinement for the prisoners. We think the act will not bear the construction given it by the learned circuit judge.

The judgment is reversed, and a new trial ordered.

Montgomery, C. J., Moore and Grant, JJ., concurred. Long, J., did not sit.


text:
    SCHROEDER v. BOYCE.
    1. Judgments—Amount—Certainty—Costs.
    Where a judgment was rendered for a stated amount, “with costs and charges herein expended, taxed at-dollars and -cents,” and the costs were thereafter taxed, the judgment was not uncertain in amount, so as to prevent suit thereon, since the costs became part of the judgment when taxed.
    2. Foreign Judgments—Interest—Proof.
    The common law is presumed to prevail in another State, unless the contrary is shown; and, as judgments do not carry interest at common law, interest is not recoverable in an action on a judgment rendered in another State, in the absence of proof that the laws of such State allow interest on judgments.

    Case made from Bay; Maxwell, J.
    Submitted March 5, 1901.
    Decided June 4, 1901.

      Assumpsit by William Schroeder against Jonathan Boyce upon a foreign judgment. There was a judgment for plaintiff, and defendant assigns error.
    Reversed.

      Simonson, Gillett & Clark, for appellant.

      E. A. Cooley, for appellee.

       See note at end of case.

   Long, J.

This action was brought in the circuit court upon a judgment rendered in the La Porte superior court, State of Indiana. The judgment is set forth in the record. It appears from the copy of the judgment entry produced on the trial that, after the recitation of the fact that a motion was made for judgment on special verdict of a jury, the court made the following decree:

“It is therefore ordered, adjudged, and decreed by the court that the plaintiff, William Schroeder, recover of and from the defendant, Jonathan Boyce, said sum of $1,079.-00, subject to relief, together with his costs and charges herein expended, taxed at-dollars and-cents.”

The proper certificates were attached to the copy of the judgment entry, made by the clerk of that court under the seal of the court; also a certificate of the judge of the court certifying that Mr. McClung was the clerk of the court, and that his signature to the certificate was genuine; and also the further certificate of the clerk that Harry B. Tuthill, who 'signed the certificate, was the sole judge of the superior court of La Porte county, Ind. There was also attached an itemized bill of costs, amounting to $179.75, with a certificate of the clerk that it was a true statement of the costs which had accrued in the cause. No objection was made in the present cause to the introduction in evidence of the tax bill of costs. On the trial, however, defendant’s counsel objected to the transcript of judgment being introduced in evidence, for the reasons:

1. That it did not appear that judgment had ever been rendered on the verdict of a jury.

2. That the certificates attached to the transcript state that the judge of the court is the sole judge, and do not state that he is the acting, or presiding magistrate or chief justice, as required, by statute in order to entitle the record to be received in evidence.

3. That what is claimed to be a judgment rendered on a verdict showed that the amount of costs to be taxed was left blank, so that, in case an execution should issue, it would be impossible to tell for what amount the same should be issued.

These objections were overruled, and exceptions taken. The record also shows that no evidence was introduced as to what rate of interest the judgment bore, or what the legal rate of interest was in Indiana, and no evidence of the date of the taxation of costs. The court below entered judgment for plaintiff for the amount of the Indiana judgment and costs as taxed, with interest on both at the rate of 5 per cent, per annum from the date of entry of judgment. Defendant assigns error.

But two questions are presented by counsel for defendant in their brief which need be considered:

1. It is claimed that the judgment is uncertain in amount, as it does not state the amount of the costs to be recovered. This has no force. It is apparent on the face of the judgment that it was the intention of the court that plaintiff should recover against the defendant $1,079, together with his costs and charges therein expended. These costs, it is admitted, were thereafter taxed at $179.75. These costs became a part of the judgment when taxed. Whether the amount of costs was fixed at the time of the entry of the judgment or thereafter is immaterial. Whatever legal costs were made and' taxed became a part of the judgment.

2. It is claimed that the court erred in allowing interest on the judgment and costs at' 5 per cent. There was no proof given in the case showing what the rate of interest is in the State of Indiana. As the common law is presumed to be in force in other States unless the contrary is shown, and at common law judgments, do not carry interest, interest is not recoverable on a judgment rendered by the courts of another State without proof that the- law of such State allows interest on judgments. 16 Am. & Eng. Enc. Law (2d Ed.), 1095, note 3; Thompson v. Monrow, 2 Cal. 99 (56 Am. Dec. 318). In Cavender v. Guild, 4 Cal. 253, it was held that what the rate of interest was in another State, and whether judgments of other States bore interest, were matters of fact to be proved, and could not be judicially noticed. The rule was recognized in Kermott v. Ayer, 11 Mich. 181. We think, therefore, the court was in error in allowing interest on the judgment or costs.

Judgment below must be reversed, and new trial ordered.

The other Justices concurred.

       Subsequently, on plaintiff’s motion, based on 1 Comp. Laws, § 211, plaintiff was permitted to introduce proof in the Supreme Court as to the rate of interest borne by the judgment sued on under the statute of Indiana; and, it appearing that such rate was 6 per cent., the judgment below was affirmed.—Reporter.


text:
    COUNTY OF MONTMORENCY v. PUTNAM.
    Appeal—Weight of Evidence—New Trial.
    In an action on a county treasurer’s bond, it appeared, practically beyond dispute, that the treasurer had received moneys which were not accounted for in his settlements with the board of supervisors. As against this was his general denial of having appropriated any money of the county. The jury returned a verdict in favor of the county for a small part of its claim only. Held, that plaintiff’s motion for a new trial, on the ground that the verdict was against the weight of the evidence, was improperly denied.
    Error to Otsego; Sharpe, J.
    Submitted March 6, 1901.
    Decided June 4, 1901.

      Assumpsit by the county of Montmorency against Edward J. Putnam, principal, and Lewis Jenson and others, sureties, on a county treasurer’s bond. From a judgment for plaintiff for less than the amount claimed, plaintiff brings error.
    Reversed.

      James Francis, for appellant.

      T. A. E. & J. C. Weadock, for appellees.
   Montgomery, C. J.

This action is brought against defendant Putnam, as principal, and his co-defendants, as sureties, on a county treasurer’s bond. The case has once been before the court, the former judgment being reported in 122 Mich. 581 (81 N. W. 573). A new trial has been had, resulting in a verdict in favor of the plaintiff for •11,044. The plaintiff moved for a new trial on the ground that the verdict was against the weight of the evidence, it being for only'a small portion of plaintiff’s claim, and asked, in the same motion, that the case be referred to a referee upon the granting of a new trial. The motion was denied, and the plaintiff has brought the case to this court, assigning error on the charge, and on the rulings admitting testimony, and upon the refusal of the court to grant a new trial. We think the circuit judge kept well within the rules of law laid down in the former decision, and that no error was committed in his rulings upon the admissibility of testimony, or in his charge to the jury.

Under the statute, however, we are called upon to determine whether the verdict was so clearly against the weight of the testimony as to call for the vacation of the verdict and the granting of a new trial. We have read the record with care, and we are constrained to say that we think the jury were confused in the attempt to render a just accounting between the parties. The facts in the case are that there were three different settlements with the treasurer. As held in our former opinion, these settlements are to be taken as prima facie correct. But the circuit judge, on the second trial,- correctly charged the jury that, if they found that Putnam was not charged with all the sums he received as treasurer of the county, and has not since accounted for them to the county, or to his successor in office, he should be charged with them in this case. The testimony shows pretty conclusively, as we read it, that, in the various settlements between the treasurer and the board of supervisors, the county clerk’s books were relied upon to show the charges which should be made against the treasurer. It also appears, practically beyond dispute, that certain funds coming into the hands-of the treasurer from the auditor general were not charged upon the county clerk’s books to the treasurer. This fact demonstrates that in the settlements with the county treasurer these omitted items could not have been taken into account, either by the supervisors or by the treasurer. Now, as against these statements is the general denial of the defendant Putnam that he has appropriated any moneys belonging to the county, his claim being that he kept the funds separate from his own, and that he has not appropriated any money. While we by no means hold that this testimony is not admissible for what it is worth, yet, in weighing the question as a question of fact, we are-constrained to say that, to our minds, this testimony is in no way convincing. While we are reluctant to interfere-to disturb the verdict of a jury, we feel that in this case it is manifest that an injustice has been done this county, and that in fairness the question should be submitted to-another jury.

The judgment will be reversed, and a new trial ordered. Costs of the former trial will abide the event. The plaintiff will recover costs of this court.

Hooker, Moore, and Grant, JJ., concurred. Long, J., did not sit.


text:
    KERN BREWING CO. v. ROYAL INSURANCE CO.

    1. Accord and Satisfaction—Loss Under Insurance Policy.
    Where the amount of plaintiff’s loss by fire had been adjusted with the several insurers, but the extent of defendant’s liability was in dispute, and plaintiff accepted a draft from defendant’s agent for the amount admitted to be due him, and signed a receipt in full for all claims against defendant, plaintiff is concluded from recovering any balance claimed to be due under the policy,

      2. Same—Limitation on Agent’s Authority.
    The fact that, at the time of signing the receipt, plaintiff verbally reserved the right to sue for such balance, will not enable him to maintain his action, where it appears that he knew that defendant had instructed its agent to deliver the draft only on condition that a receipt in full be given.
    Error to St. Clair; Vance, J.
    Submitted March 7, 1901.
    Decided June 4, 1901.

      Assumpsit by the Kern Brewing Company against the Royal Insurance Company on a fire policy. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Phillips & Jenks, for appellant.

      Crane, Norris & Drew, for appellee.

       Rehearing denied July 19, 1901.

   Montgomery, C. J.

Plaintiff signed proofs of loss by a fire, to which a schedule and apportionment were attached fixing defendant’s liability at $1,104.32. Plaintiff claims not to have known of this schedule and apportionment at the time of the signature, and that the policy and the amount of the whole loss show that defendant’s proportion should have been greater. Defendant introduced testimony tending to show that plaintiff signed the proofs of loss with a full understanding of their contents, and admitted that defendant’s policy covered the stock .in but one building, instead of two, as it now claims. Subsequently, with a full understanding of the proofs which it had signed, and on the advice of its attorney, plaintiff accepted a draft for $1,104.33, and signed a receipt in full, said receipt being insisted upon as a condition to the delivery of the draft. Plaintiff claims that it reserved the right to recover against the company any balance.

The plaintiff was informed that the instructions given to the agent were to deliver the draft only on condition of the plaintiff’s signing the receipt. It appears, therefore, that it was fully apprised of the limitations upon the ■agent’s authority, and that it elected to sign the receipt and receive the draft knowing that the condition affixed by the company to the delivery of the draft to it was that it should receipt in full for all claims against the company. It should be held to have accepted the proposition made by the company, and the only question, therefore, is whether, in view of the dispute between the plaintiff and the defendant as to the extent of liability under this policy, the receipt of the amount admittedly due in full payment and discharge of the liability concludes the plaintiff. Upon this question the case is ruled by Tanner v. Merrill, 108 Mich. 58 (65 N. W. 664, 63 Am. St. Rep. 687, 31 L. R. A. 171). See, also, Golden v. Illuminating Co., 114 Mich. 625 (73 N. W. 633).

The judgment will be affirmed, with costs.

Hooker, Moore, and Grant, JJ., concurred. Long, J., did not sit.


text:
    EDINGER v. WOODKE.
    Boundaries—Surveys—Fractional Quarter Section.
    Where plaintiff and defendant acquired title to the east half and the west half, respectively, of a fractional quarter section of land, which, by the government survey, was divided by a line equidistant from the east and west boundary lines of the' subdivision, such line constituted the dividing line between their respective parcels.
    Error to Berrien; Smith (Harsen D.), J., presiding.
    Submitted March 8, 1904.
    Decided June 4, 1901.
    Trespass quare clausum fregit by Jacob L. Edinger against August Woodke and Henry Woodke. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      O’Hara & O’Hara and Edward Bacon, for appellants. ■

      Laiorence C. Fyfe, for appellee.
   Long, J.

This action was brought in justice’s court to recover damages for an alleged trespass upon certain lands described in the declaration, and claimed to be owned by plaintiff, and of which he was then in possession. The declaration alleges, substantially, that the defendants on, to wit, September 15, 1896, stretched some barbed wire across and upon a portion of the land described in the declaration, and that about a year after-wards plaintiff’s cows were injured by these barbed wires. ’J'he defendants pleaded title, and the cause was removed to the circuit court for trial. On a trial before a jury, plaintiff had verdict and judgment. Defendants appeal.

On the trial the defendants did not deny that they entered upon the land as claimed by plaintiff, and then and there erected and put up a line of wire fence; but they did deny that the place where it was put up was the close of the plaintiff, or land of which he was in possession. The plaintiff and defendants own adjoining farms, all on section 2. The description of the land in the deeds under-which plaintiff claims is the E. \ of S. E. \ of section 2. The defendants’ land is described as the W. of S. E. of section 2. This quarter section was surveyed in 1829 by the government, and is designated in the field-notes as. the S. E. fractional \ of section 2. It fronts at the north what was called “ Pottowattomie Labe,” which was a widening or overflowing of the Galien river. The field-notes show that this lake was meandered, making that quarter section fractional. It is evident from the testimony that at the time of the survey this lake or swamp (sometimes called “Pegwood Swamp”) was covered with water; but many years since the waters receded, and the swamp has been used for farming purposes. Some of it has been cultivated, and other, portions have been used for pasturage. The plaintiff went into possession of theE. of the quarter section some 29 years ago, and the defendants into possession of the W. -J of the quarter section at an earlier period. There has been a line fence between these two 80 acres from the south up to Pegwood swamp for many years. North of this swamp, and from the-edge of it to the river bank, there has also been a fence between the farms; but whether that fence was built on the line between the farms is in some dispute. This fence was about 19 rods in length. It is conceded that the wire fence was built, commencing south of the south end of this 19-rod fence, and extending in a diagonal direction southwesterly through that portion of the swamp.

The court instructed the jury:

“There has been a line fence dividing the plaintiff’s, land from the land west of his land, running a large portion of the distance between said farms, for a good many years. Under these circumstances, and under the facts in this case, I instruct you that the plaintiff would own all that part of the east half of the east half of section 2 lying south of the Galien river; that is to say, his land would be bounded on the north by the Galien river, on the east by the east line of section 2, - on the south by the south line of section 2, and on the west by a line running north and south equidistant from the east side of said section and the east side of the west half of said section, except that the north end of the west line, for about 39 rods thereof, had a line fence running from the north end of what has been called the ‘Pegwood Swamp’ to the river; and it is conceded that the land where the diagonal fence or rjire was strung, and where the'alleged trespass was committed, was at some place south of this 19-rod fence. If the jury find that the barbed wire in question, ‘ or any portion of it, was erected upon the east side of the line running north from a point on the south line of said section equidistant between the southeast corner of said section and the south quarter post of said section, then the said wire fence was upon the plaintiff’s land, and he can recover, unless he consented to the wire being placed there.”

Defendants’ counsel contend that the court was in error in this charge; that the word “half” in plaintiff’s deeds means half in quantity, and is a limitation which caused his west line to be no farther west than would be necessary to bound half in quantity. It is conceded by counsel for plaintiff that the usual construction of the word “half” is one-half in quantity; but it is claimed that, when it is used in describing a government survey, the terms “east half ” and “west half ” are not used with reference to quantity, but with reference to a line which is equidistant from the boundary lines of the parcel subdivided.

This question was discussed in Jones v. Pashby, 62 Mich. 614 (29 N. W. 374). It was said:

“It is contended by defendants that in surveys of the public lands by the United States government the terms ‘ east half ’ and ‘ west half ’ are used, not with reference to the quantity, but with reference to a line which is equidistant from the boundary lines of the parcel subdivided, and that the patents are issued by the government ia which the term has the same signification. This is true because it is authorized and especially provided for by act of Congress. A conveyance containing a description of the east half, or west half of a parcel of land which purported to be according to the United States survey would be definite, and exclude the idea of two equal quantities, but would convey the idea and intention of fixing the dividing line in accordance with the act of Congress.”

Counsel for defendants cite the cases of Hartford Iron-Mining Co. v. Cambria Mining Co., 80 Mich. 491 (45 N. W. 351), and Grand Rapids Ice & Coal Co. v. South Grand Rapids Ice & Coal Co., 102 Mich. 235 (60 N. W. 681, 47 Am. St. Rep. 516, 25 L. R. A. 815), as sustaining their contention. On examination of those cases it will be seen, however, that the question presented here did not enter into those cases. In Hartford Iron-Mining Co. v. Cambria Mining Co., supra, the rule laid down in Jones v. Pashby was recognized. In the present case the government itself, as appears by the tract book, divided this S. E. i as contended by the plaintiff. The S. $ of the quarter is divided into two square 40 acres, and the line between these two 40’s is equidistant between the east and west lines of the quarter section; and this line is continued, as appears by the tract book, north to the meander line. This fact and the other facts contained in the record were undoubtedly in the mind of the court in giving his instructions to the jury. It also appears by the tract book that these two north 40’s were denominated “fractional,” thus making the plaintiff’s north 40 contain 53.35 acres, and defendants’ 47.40. We think, therefore, the court was not in error in his directions to the jury.

The court also left it to the jury to determine whether the plaintiff had acquired the lands in controversy by an adverse holding, and we think his instructions in reference thereto stated the law.

The question as to the measure of the plaintiff’s damages, if any, was also left to the jury under a very full and fair charge.

Many other questions are raised by counsel for defendants. We have examined them all, and find no error prejudicial to defendants.

The judgment below must be affirmed.

The other Justices concurred.


text:
    MICHIGAN TRUST CO. v. LIBBY.
    Mortgage Foreclosure—Redemption—Construction oe Statute.
    Act No. 200, Pub. Acts 1899, giving a right of redemption from chancery foreclosure sales, does not apply to a sale under a decree entered before the act went into effect.
    Appeal from Newaygo; Palmer, J.
    Submitted March 8, 1901.
    Decided June 4, 1901.
    Bill by the'Michigan Trust Company against Charles H. Libby and others to foreclose a mortgage. Complainant appeals from an order granting the petition of defendant Libby for leave'to redeem.
    Reversed.
    ■ George Hollway, for petitioner.

      Butterfield & Keeney and Carroll, Turner & Kirwin, for complainant.
   Hooker, J.

On January 19, 1899, the complainant filed a bill to foreclose a mortgage given by Lyman T. Kinney, deceased. On October 2, 1899, a decree authorizing a sale of the premises at any time after January 20, 1900, was made. No appeal was taken, and the decree was duly enrolled. The premises were sold under the decree on March 10, 1900, and this sale was confirmed in the usual way, an order nisi being duly entered upon that day. No cause was shown against the order, nor was any appeal taken from such order. On May 15, 1900, Charles H. Libby, one of the defendants, filed a petition in the cause, praying the court to vacate and set aside the decree and sale and the deed, and to allow him and the other defendants to redeem from the sale, under the provisions of Act No. 200 of the Public Acts of 1899,, which became operative after the decree was made.

The case is ruled by Lachman v. Ottawa, Circuit Judge, 125 Mich. 27 (83 N. W. 1025), in which it was held that Act No. 200 of the Laws of 1899 has no application to a case where a decree, from which no appeal was taken, was rendered before the act took effect.

The order of the circuit judge is reversed, and petitioner’s petition is dismissed, with costs of both courts. •

The other Justices concurred.


text:
    HARRIS v. HACKLEY.
    1. Fixtures—Machinery—Conditional Sale.
    "Where machinery sold under a written contract retaining title in the seller until paid for was placed by the purchaser in a building held by him under a contract of purchase providing that, in the event of forfeiture, the vendor should be entitled to a surrender of the property with all improvements, but the machinery was not attached to the building, it did not become a part of the realty.
    2. Trover—Demand.
    Where plaintiffs sold an engine and seven machines, designed for use in the manufacture of bolts, nuts, and washers, under a written contract retaining title in themselves until paid for, and, on failure of payment, described the machinery, in demanding it of a third party, as “one engine, nut machine, bolt machinery, and washer machinery,” the demand was sufficient to support an action of trover.
    3. Sale—Passing oe Title.
    The inclusion of mill machinery contracted to A. in a consign, ment of scrap iron to B., and payment by B. therefor as scrap iron, will not pass title to the machinery to B., wher^ neither lie nor the seller had any such intention.
    Error to" Muskegon; Russell, J.
    Submitted March 8, 1901.
    Decided June 4, 1901.

      Trover by Abraham Harris and Marks Harris, copartners as Harris Bros., against Charles H. Hackley. From a judgment for plaintiffs, defendant brings error.
    Affirmed.

      Smith, Nims, Hoyt & Erwin, for appellant:
    The machinery became a part of .the realty, and was •covered by the land contract. O’Brien v. Kusterer, 27 Mich. 289; Knowlton v. Johnson, 37 Mich. 47; Mc-Auliffe v. Mann, Id. 539; Wickes Bros. v. Hill, 115 Mich. 333 (73 N. W. 375); Watson v. Alberts, 120 Mich. 508 (79 N. W. 1048); Hunt v. Iron Co., 97 Mass. 279; Trull v. Fuller, 28 Me. 545; Corliss v. McLagin, 29 Me. 115; Fryatt v'. Sullivan Co., 5 Hill, 116; McRea sr. Bank, 66 N. Y. 489; Overton v. Williston, 31 Pa. ,St. 155; Bringholff v. Munzenmaier, 20 Iowa, 513; Burnside v. Twitehell, 43 N. H. 393.

      Bunker & Carpenter (Robert S. Kollinér, of counsel), for appellees: • '
    Cited to the contrary,: Adams v. Lee, 31 Mich. 440; Robertson v. Corsett, 39 Mich. 777; Wheeler v. Bedell, 40 Mich. 693; Ferris v. Quimby, 41 Mich. 202 (2 N. W. 9); Beivick v. Fletcher, 41 Mich. 625 (3 N. W. 162, 32 Am. Rep. 170); Manwaring v. Jenison, 61 Mich. 117 {27 N. W. 899); Aldine Manfg. Co. v. Barnard, 84 Mich. 632 (48 N. W. 280); Lansing Iron & Engine Works v. Walker, 91 Mich. 409 (51 N. W. 1061).
    Title to the, machinery did not pass to Jennings,-there never having been a mutual agreement to that effect. Gardner v. Lane, 9 Allen, 492 (85 Am. Dec. 779); Chapman v. Cole, 12 Gray, 141 (71 Am. Dec. 739); Huthmacher v. Harris’ Adm’rs, 38 Pa. St. 491 (80 Am. Dec. 502); TJtle-y v. Donaldson, 94 U. S. 29; Sherwood v. Walker, 66 Mich. 568 (33 N. W. 919, 11 Am. St. Rep. 531); Rupley v. Daggett, 74 111. 351; Hogue v. Mackey, 44 Kan. 277 (24 Pac. 477).
   Montgomery, C. J.

This is an action of. trover to recover the value of one engine and seven machines designed for use in the manufacture of bolts, nuts, and washers, which were delivered to the Consolidated Rail-Joint Company, of Muskegon, Mich., under a written contract of sale by the terms of which the title remained in the plaintiffs until the goods were paid for. The vendee occupied a building belonging to defendant, under a contract of purchase by the terms of which, in the event of forfeiture, defendant was entitled to a surrender of the property, with all improvements. The machines were of sufficient weight to be held in place by their own gravity, and were not spiked or bolted to the building. The engine was an upright structure, to place which an excavation'was .made in the ground, in which were placed timbers, drift-bolted together, for a foundation, to which the engine was fastened by bolts.

The engine and machinery were shipped by plaintiffs to one Edwin B. Jennings, together with a shipment of scrap iron, which" Jennings proposed to have manufactured into bar iron by the Consolidated Rail-Joint Company; and it is claimed that Jennings paid for the machinery, as scrap iron, at $10.50 per ton. This shipment of scrap iron was one of several made by plaintiffs to Jennings in September and October, 1897. Drafts were made on the heels of each shipment, and paid by Jennings. A statement, of account sent by plaintiffs to Jennings on November 15, 1897, after the shipments were completed, and which, it is claimed, shows that no deductions were made for the weight of the machinery, shows a balance against Jennings of $440.54, and there is no testimony that this balance was paid. The bill of lading for this shipment is dated September 29, 1897, and the corresponding draft September 30th. The total of charges for scrap iron, to and including this shipment, is about $300 greater than the total of credits to this date, consisting of drafts and freight paid by Jennings. Jennings never took any steps to assert title to the machinery, and his agent for the purchase of the scrap iron had notice that the machinery was shipped in the same cars with the scrap, while Caldwell, the president of the Consolidated Rail-Joint Company, who testified that he acted as Jennings’ agent in weighing the cars of scrap as they were received, had notice of the entire transaction. ' The jury answered the following special questions in the negative:

1. Was the engine and machinery in question weighed, shipped, and billed by Harris Bros, to Jennings as scrap iron?

2. Was the engine and machinery in question received and paid for by Jennings as scrap iron?

Defendant made a motion for a new trial on the ground that the verdict and the answer to each of these special questions were palpably against the weight of the evidence. The motion was denied.

The court held, as a matter of law, that the correspondence betweerTthe parties, which was introduced in evidence, showécTa demand for the machinery on the part of the plaintiffs,'and a refusal by the defendant. Defendant claims that this was error, for the reason that plaintiffs’ letters described the machinery as “ones engine, nut machine; bolt machinery, and washer machinery,” while the contract,of sale and the declaration describe seven _distincj; and separate machines in addition to the engine. The language above quoted correctly describes the machinery in a general way.

The questions presented are:

1. Was the court right in refusing to submit to the jury the question of whether the machinery became part of the realty?

2. Did the undisputed testimony show a sufficient demand and refusal?

3. Should the court have granted a new trial on the ground that the finding of the jury that the'machinery did not belong to Jennings was against the weight of the evidence ?

We think there was no error committed in instructing the jury that the machinery remained personal property. Indeed, the brief of counsel for the defendant concedes that, as between the plaintiffs and the Consolidated Rail-Joint Company, the engine and machinery remained personal property. But it is insisted—and a request to charge was along this line—that if it was the intention of the Consolidated Rail-Joint Company to make the engine and machinery a part of the plant or mill, and essential to its use, and Harris Bros, knew of this intention, and the engine and machinery were so placed by the Consolidated Rail-Joint Company, it became real property. It is apparent that to so hold would be doing violence to the expressed intention and agreement of the parties. The cases in this court are full of expressions to the effect that, where machinery may be removed from a building without damage to the remainder of the property, the intent of the parties is controlling. There could be no clearer expression of an intention than an agreement that the property should remain the property of the vendors, although placed in the possession of the proposed purchaser. See Manwaring v. Jenison, 61 Mich. 117 (27 N. W. 899); Lansing Iron & Engine Works v. Wilbur, 111 Mich. 413 (69 N. W. 667). The case is not one in which the attachment to the real estate is of such a nature that it could not be removed without material injury to the remaining property, nor is it a case in which the claims of a bona ficle purchaser are involved. It is true that Hackley stood in the position of an equitable mortgagee of the real estate, being a contract vendor; but he was a prior mortgagee, and did not take his security upon the faith of any appearance that this property was a part of the real estate.

As to the question of demand, without stating further at length the correspondence between the parties, we think it sufficiently clear, from the whole tenor of the correspondence, that the defendant fully understood what property was’'demanded, and that he declined to deliver it up.

We think there was no error committed by the court in refusing a new trial. A careful reading of the record fails to satisfy us that there was any evidence tending to show that Harris Bros, intended that the title to this property should pass as scrap iron, or that Jennings expected that be was acquiring title to the property as scrap iron. The instructions to the jury were sufficiently favorable to the defendant, and we think the correct result was reached.

The judgment will be affirmed.

Hooker, Moore, and Grant, JJ., concurred. Long, •J., did not sit.


text:
    CROWLEY v. LANGDON.

    1. Chattel Mortgages—Maturity—Parol Evidence.
    A mortgage on a stock of goods, containing provisions looking to a continuance of the business by the mortgagor, the furnishing of more goods on credit by the mortgagee, the insuring and replenishing of the stock, and the payment of interest on the debt secured, but not specifying the time when such debt shall become due, cannot be said to be due presently, and hence parol evidence is admissible to show the date of maturity.
    2. Same—Fraud—Rescission.
    A chattel mortgage given in consideration of the promises of the mortgagee to extend the time of payment of the debt secured, and to grant a further credit to the mortgagor, which promises the mortgagee at the time had a fixed intention not to perform, may be avoided by the mortgagor on the ground of fraud.
    8. Same—Trusts—Rights oe Beneeiciaries.
    All of the beneficiaries in a trust mortgage are bound by the fraudulent-representations made by a part of them to induce the giving of the security.
    4. Same—Breach oe Conditions—Insurance.
    The failure of a mortgagor' of chattels to assign an insurance policy thereon to the mortgagee, as required by the terms of the mortgage, due to the fact that the policy was in the possession of the mortgagee’s agent, cannot be relied on by the _mortgagee as a breach of condition of the mortgage._

      5. Same—Insecurity Clause—Good Faith op Mortgagee.
    Whether a mortgagee of chattels was justified in taking possession under the “ insecurity clause ” in the mortgage is a question for the jury, where there is testimony tending to‘show that the security was adequate.
    6. Same—Depreciation in Stock.
    Where a mortgage on a' stock of goods gives the mortgagee the absolute right to take possession of the stock in case of the mortgagor’s failure to maintain it at a stated value above the mortgage debt, such right cannot be made to depend on the mortgagee’s belief that he was insecure.
    7. Same—Replevin—Special Questions to Jury.
    In replevin by a mortgagee, a request for a special finding by the jury as to whether the goods would have brought, “at public auction,” more than the mortgage debt, is properly refused.
    8. Contracts—Consideration—Extension op Time.
    The purchase by a partner of his copartner’s interest in the firm assets, the assumption by the former of the firm debts, and the execution by him of a chattel mortgage to secure the same, constitute a sufficient consideration for an extension of time for the payment of such debts.
    Error to Ionia; Davis, J.
    Submitted March 8, 1901.
    Decided June 4, 1901.
    Replevin by Joseph J. Crowley, trustee, against Henry C. Langdon. From a judgment for defendant, plaintiff brings error.
    Reversed.

      8. L. Merriam and Ghaddock & Scully, for appellant.

      Morse & Locke and F. A. Lyon, for appellee.

       Rehearing denied July 19, 1901.

   Hooker, J.

The plaintiff, after demand, replevied from the defendant a stock of goods, claiming a right to their possession by virtue of a chattel mortgage executed and delivered to him by the defendant. He makes claim to a right of possession under his mortgage upon two grounds, viz.: First, that the- mortgage was due and unpaid; second, that he felt insecure -by reason of defendant’s failure to comply with the terms of the mortgage as to insurance, and his failure to replenish the stock as provided in the mortgage. Defendant answered these claims by the contentions: First, that the mortgage was not due; and, second, that it was obtained by fraud. To sustain the first of these defenses, counsel claimed upon the trial the right to show by parol that the payment of the installments of the sum secured by said mortgage was postponed for periods of three, six, and nine months. To this it was objected that the mortgage fixed the maturity of said sum, and that its terms were not subject to change by parol evidence. The learned circuit judge admitted the testimony.

The mortgage contains some recitals which indicate that it was the culmination of negotiations between the parties; but that is nothing unusual, as it is necessarily true of all mortgages. These recitals become significant, however, for the reason that the mortgage did not in express terms fix the time when the debt then existing and secured by it should become due, and counsel claim that they imply an understanding that it should not become immediately due, according to the ordinary rule in cases where the mortgage fails to specify the date of maturity, but that the mortgagor should have a period of credit; and, that being so, parol testimony was admissible to show the agreement of the parties in that regard. The facts which he was permitted to show are, briefly, that Huff and the defendant were copartners in a mercantile business in the village of Portland, and were indebted to the persons for whose benefit this mortgage was subsequently made. Trouble having arisen between the copartners, Huff commenced a suit in the Ionia circuit, in chancery, to wind up the affairs of the firm, and prayed for the appointment of a receiver. The defendant thereupon went to Detroit to consult with some of the creditors of the firm, and at a meeting'of the creditors it was determined that they should be represented at Ionia on the day set for the hearing of the application for a receiver, and at that time counsel representing four of the heavier creditors were present. A consultation was had between counsel and this defendant, wherein it was arranged that the latter should buy Huff’s interest, and assume the debts of the firm, and that the creditors should release Huff, and take the defendant’s chattel mortgage for their claims. Huff was to assign his intei’est to the defendant. The defendant claims that, in consideration of his agreement to this arrangement, the time for the payment of the sums due creditors was to be extended for periods of three, six, and nine months; that they, or some of them, were to continue to sell him goods on credit, and he was to be permitted and aided to continue the business. Among the recitals and provisions of the mortgage are the following:

Whereas, the said party of thefirst part is justly indebted unto the said party of the second part, trustee, in the sum of fifty-one hundred dollars; and Whereas, the said party of the first part expects to buy from said parties of the second part, from time to time during the continuance of this mortgage, goods on time, and on such terms of credit as may be agreed upon; and Whereas, the indebtedness of the said party of the first part to said parties of the second part is therefore liable to change in amount and time of payment; and Whereas, the said party of the first part has agreed that the payment of the existing indebtedness of the said party of the first part to the said parties of the second part, and also the payment of the other indebtedness for goods to be purchased by the said party of the first part from the said parties of the second part, shall be secured in the manner hereinafter mentioned :

“Now, therefore, this indenture witnesseth that in the pursuance of said agreement, and in consideration of the premises, the said party of the first part does hereby, for himself, his heirs, executors, administrators, and assigns, covenant and agree that the said party of the first part, his heirs, executors, and administrators, will pay to the said party of' the second part, his executors, administrators, or assigns, or his successors, the said sum of fifty-one hundred dollars; and that the said party of the first part will pay to the said parties of the second part such bills, notes, and accounts as shall (hereafter) be made, at such time and times as they shall become due.”

It then conveyed to Crowley, as trustee, all of the stock, fixtures, etc., including future accessions that “may be owned or possessed by him and added to said stock during the continuance of this agreement, and until payment in full of all sums of money, and the interest thereon, herein and hereby to become due and payable:

Provided always, and these presents are upon this express condition, that if the said party of the first part shall pay or cause to be paid to the said party of the second part, his executors, administrators, or assigns, the said sum of fifty-one hundred dollars, with the interest thereon at six per cent, per annum until paid, at the times herein-before set forth, and shall also pay or cause to be paid all bills,' notes, and accounts hereinafter made by said party of the first part to said party of the second part during the continuance of this agreement,, as the same shall become due, respectively, together with the interest thereon, then these premises shall cease, and will be null and void.

“It is hereby expressly agreed that the said party of the first part, his executors, administrators, and assigns, shall keep the stock on hand replenished as fast as sold out, as nearly as may be, so that the- stock on hand shall at no time be worth less than seventy-five per cent, more (if inventoried at cost price) than the entire indebtedness from time to time existing.

“And it is also agreed by and between the parties hereto that the said party of the first part shall and will keep the said goods, wares, merchandise, material, fixtures, furniture, and personal property, including all such as shall be added, after-acquired, or substituted, insured against loss and damage by fire, by insurers and in amount approved by said party of the second part, and assign the policy and certificate thereof to said party of the second part; and in default thereof it shall be lawful for the said party of the second part to effect such insur anee, and the premiums paid for effecting the same shall be a lien on said goods, wares, merchandise, materials, fixtures, furniture, and personal property, including all such as may be added, after-acquired, or substituted, in addition to the amount secured by these presents, and payable on demand, with interest at the rate of ten per cent, per annum.

“It is hereby expressly agreed that should the said party of the first part neglect or refuse to keep up the stock, so that the value thereof shall not be as high as the standard hereinbefore stated, then and from thenceforth; or should he neglect to insure as hereinbefore provided, then and from thenceforth; or should default be made in the payment of any such bills, notes, accounts, or indebtedness on any day whereon the same are made payable, and should the same remain unpaid and in arrears for the period of-days, then and from thenceforth; or should the said party of the second part deem the claim hereby secured to be in jeopardy, then and from thenceforth,— that is to say, in any one of these events the entire amount secured by these presents shall, at the option of the said party of the second part, his executors, administrators, or assigns, be due and payable immediately thereafter, notwithstanding anything to the contrary thereof herein or elsewhere stated: * * *

Provided, always, that until default in or violation of one of the covenants or agreements herein contained, or until the whole amount is declared to be due by reason of anything herein contained, said party of the first part, his executors,.administrators, or assigns, may possess, sell, use, and enjoy in the usual and regular course of retail trade, without any disturbance or interference by the said party of the second part, his executors, administrators, or assigns, all the goods, wares, merchandise; materials, fixtures, furniture, and other personal property in this indenture mentioned, including all which may be added, after-acquired, or substituted.”

It is noticeable that this mortgage does not, in express terms, state when the sum of $5,100 should be paid. It not only does not say that it shall be due presently, but, on the contrary, clearly implies that it shall not. It provides for interest on the $5,100 “until paid, at the times hereinbefore set forth;” yet no time is set forth. It contemplates the furnishing of more goods on credit, the continuance of a business, the payment for future purchases at the time when the bills should become due, the insurance and replenishment of the stock, and the right of the mortgagor to the possession of the stock, and to sell from it in the course of trade. We think these things overcome the presumption that the sum was understood by the parties to be immediately due, which sometimes arises. It then becomes competent to show when the same was to become due by parol evidence of the agreement of the parties in relation thereto, it being competent to supply the omitted terms of the contract in that way. Bird v. Pope, 73 Mich. 491 (41 N. W. 514); Stahelin v.. Sowle,, 87 Mich. 133 (49 N. W. 529); Mouat v. Montague, 122 Mich. 334 (81 N. W. 112). We think, therefore, that it was not error to allow the introduction of proof upon that subject, or to submit that question to the jury. This did not invalidate the mortgage, which remained a valid mortgage, upon which $5,100 would at some time become due, which, according to defendant’s claim, might be at any time after a failure to pay the first installment; but it precludes plaintiff from sustaining his replevin upon the ground that the mortgage was due presently.

Upon the theory that the contract and mortgage were valid and binding, the purpose of this parol evidence is limited to the subject of the maturity of the mortgage, because that is the only matter that was left uncertain. The mortgage being in all other respects certain, such proof would tend to alter or contradict, instead of explaining, it, and was, therefore, inadmissible for such a purpose. In other words, while all of the testimony introduced may have been competent for the one purpose, it had no other office than to make certain the time of - payment, except as it bears on the question of fraud to be discussed. The case of Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3), is in point. The mortgage, made certain by the parol proof as to maturity, fixes definitely defendant’s obligation, and the plaintiff’s rights under it. While the latter was not authorized to seize the property on the ground that the mortgage was due, he might lawfully take it, for a breach of other conditions, if there were such. There are, obviously, but two grounds of defense to such a claim, viz.: First, to disprove the breach of condition; and, second, to invalidate the mortgage altogether upon the ground of fraud. Counsel attempt both.

The fraud alleged in this case rests upon the following facts, being in substance: That the mortgage was in part the consideration for various privileges and rights on the part of the defendant, said to have been agreed upon by the parties. They were: First, that the defendant should have an extension of time upon the indebtedness of the firm, which he assumed the whole burden of; second, that he should be aided in continuing the business, and permitted to buy goods upon credit from the plaintiff, and to sell the mortgaged property in due course of retail trade. That, being encouraged in the belief that these arrangements would be faithfully observed by the plaintiff, he executed and delivered the mortgage, thus putting it in the power of the plaintiff to dispossess him at will. The claim is made that the plaintiff did not intend to carry out this, understanding; that it was, on the contrary, his intention' to procure this mortgage, and then at once refuse-further credit, and in a short time take the property, on the claim that there had been a breach of the conditions of' the mortgage.

The great difficulty with this claim is that it is not clear that the alleged fraud or deceit consists in misrepresentation of existing facts, and amounts to no more than a failure to keep promises, which is said not to constitute fraud;: and this question is not a new one. The rule is that, to constitute a fraud that should justify the courts in treating a contract as void, the misrepresentation “must be of a fact at the time or previously existing, and not a mere promise for the future.” See 8 Am. & Eng. Enc. Law, p. 630, and cases cited. But, in the language of Mr. Justice Coolev, “A promise "is sometimes the very device resorted to for the purpose of accomplishing the fraud, and the most apt and effectital means to that end.” Cooley, Torts, 487. “But, where the promise is made with an existing intent not to keep it, the case is not within the rule. The promise to pay for goods purchased is equivalent to the assertion of an intent to pay, and, where an opposite intention is established, the misrepresentation of an existing fact is made out.” Id.; Laing v. McKee, 13 Mich. 124 (87 Am. Dec. 738). The fraud in such cases consists in the active intent to deceive, accompanied by the insincerity of the promise.. , This is well stated in Clark, Cont. 333; Id. 327, 328, and cases cited. It was competent to leave to the jury the question whether the plaintiff’s mortgage was obtained under promises, which the persons conducting the negotiations had a well-defined intention not to perform, to the injury of the defendant. If so, the arrangement was fraudulent, and voidable at the option of the defendant, and the mortgage no better, in the hands of the trustee, than it would have been in the hands of those who procured it, if he did not himself participate in the negotiation. All claiming any benefit under it must do so subject to the equities and rights of the parties to the transaction. It is not negotiable paper, nor, so far as we discover from this record, can there be said to be any question of estoppel in the case.

If this mortgage was a valid contract, and not vulnerable by reason of fraud, the plaintiff had the right to take the property in case the defendant did not comply with its terms as to insurance or replenishment. He also had a right to take it under the general insecurity clause. The jury found a verdict for the defendant, and, as we cannot say as a conclusion of law that this was right or wrong, inasmuch as it involves disputed facts, we must examine • the rulings of the court and his instructions to the jury.

Counsel maintain that this defendant had full possession of his faculties, and was bound to know the law, had an opportunity, to read the mortgage, and must be held to have known his rights under it. We agree with counsel that he cannot now be heard to say that it does not embrace the contract (except, .as we have said, as relates to the time of payment); but we cannot say that the court erred in admitting proof upon that subject, and permitting the jury to find that it had not matured; nor are we prepared to say that it was error, if, as plaintiff’s counsel claim, his language must be considered equivalent to an instruction that, upon its face, the mortgage showed that the amount was not immediately due.

At the time of the transaction, insurance to the amount of $5,000 was carried upon the stock. Defendant was asked to have it assigned, and caused $4,000 of it to be assigned. A policy, for $1,000 was not assigned, because it could not be found, although defendant asked the agent to permit assignment before he knew of its absence. It was claimed by the defendant that plaintiff’s agent had taken it; and the court instructed the jury that, ‘ ‘ if defendant perfected the insurance of the goods for plaintiff’s benefit immediately to the amount of $4,000, and was prevented from assigning the other $1,000 of insurance because of the taking of the policy by Cudworth, the agent of plaintiff, then plaintiff could not take possession of the stock under the insurance clause of said mortgage.” We think this was not an error.

It is said the cpurt erred in not instructing the jury that the plaintiff was justified in taking possession under the general ‘ ‘ insecurity clausebut we think this is not so. The question of his good faith is in the case, inasmuch as there was testimony indicating that the security was not inadequate. See Woods v. Gaar, Scott & Co. 93 Mich. 143 (53 N. W. 14).

In this connection we may allude to the provision that the stock should be replenished, and kept at an amount equaling, at cost price, 175 per cent, of the indebtedness. This was a valid condition, and gave an absolute right to the plaintiff to take posséssion if not complied with. It did not depend upon his belief as to insecurity. It was not proper to allow the jury to find that such was not the contract of the parties. The mortgage explicitly said it was, and, as already indicated, the only way of getting rid of the binding force of the certain and definite provisions of the mortgage was to show fraud in its procurement. It was-, therefore, erroneous to make plaintiff’s right to possession depend upon his belief that he was insecure, as he had the arbitrary right to take possession if the stock was allowed to fall below the prescribed value for more than two days.

Counsel asked that the jury be required to find specially upon the following question:

“Was the true market value of the entire stock and fixtures and accounts in question on the 13th day of December, 1899, the day the writ in this case was served, if sold at public auction in bulk, more than $5,110.60 ? ”

The value of the property was a proper subject for a special question, but, being limited to the price it would bring at public auction, a refusal to submit the question was proper.

We have no doubt that the arrangement between the parties was based upon a sufficient consideration.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.