text:
    DETROIT NATIONAL BANK v. UNION TRUST CO.
    :l. Bills and Notes — Certified Check — Holder in Due Course —Good Faith.
    In an action on a check unlawfully certified, without funds of the drawer on deposit, evidence that the checks were withheld from presentation at the drawer’s request, and interest charged thereon, that the charges were unusual and usurious, that the loans were made in excess of the legal limit, that a statement of the bank drawn upon was in the possession of the payee showing a small amount of certified checks outstanding, that a former assistant cashier had criticised the system as bad banking, and that the drawer stated to the payee that the bank had no money to pay the checks, tends ,to show bad faith, and supports a verdict for the defendant.

      2. Trial — Appeal and Error — Saving Questions for Review— Argument — Improper Statements of Counsel.
    Failing to except to objectionable argument with sufficient, distinctness to be heard by the court and counsel, prevents a review on appeal, and is not excused by a previous warning of the trial court not to commit error and not to expect him to control the attorneys.
    Error to Washtenaw; Kinne, J.
    Submitted October 5, 1909.
    (Docket No. 6.)
    Decided November 5, 1909.
    The Detroit National Bank filed its claim with the Union Trust Company, receiver of the City Savings Bank, on certain certified checks, and on disallowance of its claim filed its petition to intervene. An issue was framed and tried on the law side of the court, resulting in judgment for the receiver, which is reviewed by claimant on writ of error.
    Affirmed.

      Henry A. Harmon (Geer, Williams, Martin & Butler, of counsel), for appellant.

      Bowen, Douglas, Whiting & Eaman (James O. Mur fin and John G. Donnelly, of counsel), for appellee.
   Montgomery, J.

This is an action brought to determine the liability of the City Savings Bank to plaintiff upon two checks dated February 6, 1902; one for $100,000, and the other for $110,000, upon which latter check $50,000 has been paid, leaving a balance of $160,000 unpaid on the two checks. Both checks were drawn by Frank C. Andrews on the City Savings Bank in favor of the plaintiff, and certified to be good by the paying teller of the City Savings Bank. When these checks were certified by the teller of the City Savings Bank, Andrews had no money actually standing to his credit upon the books of that bank, and they were therefore falsely and illegally certified.

It is conceded by the plaintiff, and that is likewise the contention of the defendant, that the question of the right to recovery is determined by the question of the bona fides of the bank. In other words, it is conceded by the defendant that, if the bank was a good-faith purchaser of this check for value, and took it in due course of business, it is an enforceable demand against the assets of the City Savings Bank.

On the first trial of this case a verdict was rendered in favor of the defendant, the case was brought to this court for review, and is reported in 145 Mich., at page 656 (108 N. W. 1093, 116 Am. St. Rep. 319). The contention was made in that case that the uncontradicted evidence in the case established that the plaintiff is a bona fide holder of the two checks. This contention was disallowed, and it was held that under the circumstances of the case as they appeared upon the trial the question of bona fides was a question for a jury. The case has been again tried in the Washtenaw circuit court; the defendant has again recovered a verdict, and the plaintiff brings the case here for review.

The contentions made on this hearing are that the verdict was against the weight of evidence; that the circuit judge erred in the exclusion and admission of testimony; that the court erred in permitting improper comments by defendant’s counsel in their arguments to the jury; and that the court erred in refusing to give plaintiff’s requests to charge.

In determining the first question, the rule of law established in the case on the former hearing is to be followed; we having held in that case that the circumstances of the case taken together had sufficient tendency to show bona fides as to raise a question of fact for the jury, and that, while plaintiff’s cashier testified that he had no knowledge or suspicion of the want of funds in the City Savings Bank, the circumstances of the case tended to negative this statement. It was said:

“ It was competent to show the knowledge of plaintiff’s officers as to the pecuniary standing, methods, and dealings of Andrews and the City Savings Bank, the volume of similar business done, and the terms upon which it was done, and whether transactions were ordinary or usual in their character. It was proper to show that the business done with Andrews was not communicated to, or known by, plaintiff’s directors.”

Similar testimony was put into the present case. It appeared that in the course of dealing between the plaintiff bank and Andrews these checks, after being certified, were placed in plaintiff bank, and were, at the request of Andrews, withheld from presentation to the City Savings Bank, and interest was charged upon this money. This tended to show that the money advanced upon these checks was regarded as a loan to Andrews. It further appeared that the bank daily made loans in excess of the provision of the national banking law; that the charges made were unusual, exorbitant, and usurious; that the published statement of the City Savings Bank of December 10th, a copy of which was in the plaintiff’s possession, showed that the total of certified checks outstanding of that bank was a little over $10,000, and yet at that time this bank had in its possession certified checks for a sum largely in excess of this amount. Mr. McPherson, the president of the plaintiff bank, testified that he saw the statements of the other banks generally when they were published, and it was his practice generally, when these statements were published in the papers, to glance them over, but that he had no recollection of having examined this particular statement or the items. It appears, however, that it was in a book kept in the bank, and was regarded as proper testimony for the jury in the former case. Mr. Stewart, a former assistant cashier of the plaintiff bank, gave testimony tending to show that he himself expressed to De Graff the belief that their method of dealing with Andrews was bad banking, and that Mr. De Graff on one occasion, holding up one of these certified checks, expressed doubt as to whether Andrews was using the credit of the City Savings Bank in having these checks certified in that way. Mr. Andrews testified that when he asked De Graff to hold these checks out, he gave as his reason that the bank did not have the money to pay for them. Counsel for the appellant strenuously urge that this testimony was not sufficient to overcome the positive testimony of the plaintiff’s witnesses, but it is clear that, if the testimony of Stewart and Andrews is believed, the jury could not well have failed to find a want of good faith on the part of this cashier.

Another circumstance which is to us significant, although not controlling, is the fact that these checks; should be withheld from presentation to the City Savings Bank at Andrews’ request, or for any other reason. The issuance of a certified check imports that there is deposited with the bank the amount which the check represents. Ordinarily the payee of the check would have no interest in having the check withheld from presentation to the bank. It is true in the present case Mr. Andrews was interested largely in the City Savings Bank. This might have furnished some reason for such a request. But it certainly is out of the usual course, and when to that is added the fact that he paid out of his own funds interest upon the total amount of the check, not at bank rates, but at the highest legal rate or higher, the fact is of great significance. On the whole record, we are unable to say that this verdict is clearly against the weight of the testimony.

The contention that the fact that the loans exceeded the limits fixed by the national banking act, and that the charge of excessive interest and excessive charges generally for the accommodation of Andrews and unusual favors granted him were not evidence of the want of good faith, is sufficiently answered by what was said when the case was before us on the former occasion. It was said in the opinion of Mr. Justice Hooker, referring to the argument of counsel:

“Comment was made on the fact that much more money was advanced to Andrews, on the certified checks, than the bank was authorized to loan. That certainly did not of itself invalidate plaintiff’s claim, nor did any usurious charges made; but if, as appears to be claimed, these transactions were really loans to Andrews, instead of a legitimate discounting of certified checks, they were circumstances to be considered upon the main question.”

We find no error in the admission of testimony, which followed precisely the line adopted on the first trial.

Objections are taken to the argument of counsel. Without implying that the argument is open to the criticism which was directed to the argument of counsel on the former trial, it is enough to say that the exceptions to the argument were noted by a statement to the stenographer by plaintiff’s counsel in a tone inaudible to the court or to any of the counsel for the defendant. The only explanation of this is the comment of the court to counsel before the argument commenced. The court said:

‘ ‘ There is a temptation during an argument of this kind to step outside the record, and to say something that will make trouble hereafter. Now, whatever verdict is reached in the case, I hope, and I am sure you hope, to hold, and in order to do that, I warn you people to be careful what you say. I don’t want to sit here as a schoolmaster with a ferrule in my hand, but I want you to keep within the record and be careful of this. It is all with yourselves. If you see fit to commit error, all I can say or do will not prevent it, and I am not going to attempt to try it. If you commit an error, and there is a verdict found by this jury, the other side can have it set aside by another court, and so I wish to caution you to be careful and not require me to give any regard to your control.”

It is claimed by plaintiff’s counsel that this relieved him of the necessity of noting an exception or interrupting opposing counsel. We do not think this should be so understood. It is more in the nature of a caution to counsel on both sides. Neither party would understand from this that their case should be reviewed upon exceptions noted without their having an opportunity of knowing of their nature and correcting any possible misstatement in the course of argument.

As to the errors assigned upon the failure to give requests, it is not necessary to set out the charge at length, but we think it sufficient to say that in a very clear and concise charge the circuit judge followed the rules laid down by this court on the former trial, and gave the case to the jury in a connected charge, omitting no feature which either party had the right to have presented, and that no error was committed in refusing the requests presented. The case was fairly tried, a verdict of the jury has determined the case for the defendant, and that verdict is sustained.

Blair, C. J., and Grant, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    WEALE v. CLINTON CIRCUIT JUDGE.
    Aotion — Commencement— Arrest on Civil Process — Privilege. A prisoner brought from another State on a criminal charge is exempt from arrest on civil process until after a reasonable opportunity for his return.
    Mandamus by George E. Weale to compel Kelly S. Searl, circuit judge of Clinton county, to vacate an order quashing capias ad respondendum proceedings.
    Submitted October 12, 1909.
    (Calendar No. 23,567.)
    Writ denied November 5, 1909.

      William M. Smith, for relator.

      Walbridge & Kelley, for respondent.
   Hooker, J.

Teeter was arrested and returned to Michigan from Washington, where he claims to have then resided, upon a requisition issued upon complaint of his wife for nonsupport under the statute. At the time of his arrest he was living adulterously with Weale’s wife. While confined in jail, at St. Johns, Mich., upon the charge mentioned Weale began an action against him for damages for alienating his (Weale’s) wife’s affections, and the capias was served upon Teeter while he was confined in jail. Later a nolle prosequi was filed in the criminal cause, and the proceedings in the criminal action were dismissed, and Teeter discharged. Afterwards, and on the same day, Weale discontinued the capias case, and later, but on the same day, he filed a new affidavit for and caused a new capias to be issued and served on Teeter while at large. Thereupon a motion was made to quash the writ and discharge the defendant therein, upon the ground that he was privileged from arrest, for the reason that he was involuntarily in this State, under the circumstances stated, and that he had had no opportunity to leave the State after his discharge from custody prior to his arrest upon the capias. The motion was granted, and the court having refused to vacate the order and reinstate the capias case, application has been made to ús for a mandamus to compel it. The return practically admits the foregoing statement of fact.

The only question properly before us is whether the laws of this State made Teeter privileged from arrest under the circumstances stated. Counsel for respondent rely upon the case of Lascelles v. Georgia, 148 U. S. 537 (13 Sup. Ct. 687). That was a case involving no civil arrest; Lascelles, a resident of New York, having been brought into Georgia by requisition on charges of being a common cheat “and larceny after trust delegated,” both being criminal offenses under Georgia laws. While proceedings on both charges were pending, the grand jury found an indictment against him for forgery. His counsel moved to quash this indictment, on the ground that he was involuntarily in Georgia in attendance upon judicial proceed-

ings, and not subject to arrest on another charge without being first allowed reasonable opportunity to return to New York. See, also, In re Little, 129 Mich. 454 (89 N. W. 38, 57 L. R. A. 295), where a discussion of this subject will be found. Both that and the Lascelles Case are distinguishable from the present controversy, which is clearly within the principle of the following Michigan cases: People v. Judge of the Superior Court of Detroit, 40 Mich. 729; In re Cannon, 47 Mich. 481 (11 N. W. 280); People v. White, 53 Mich. 537 (19 N. W. 174); Hoffman v. Bay Circuit Judge, 113 Mich. 109 (71 N. W. 480, 38 L. R. A. 663, 67 Am. St. Rep. 458). The subject is discussed and the same rule recognized in Monroe v. St. Clair Circuit Judge, 125 Mich. 283 (84 N. W. 305, 52 L. R. A. 189).

The writ is denied.

Blair, C. J., and Moore, McAlvay, and Brooke, JJ., concurred.


author: Moore, J.

text:
    HOAGLAND v. BECKLEY.
    Deeds — Conveyances—Escrow — Testamentary Disposition of Property.
    In a suit to set aside conveyances of real property made by a decedent, the determination of the trial judge on the question of fact as to the intention of the grantor in executing deeds in escrow, to be delivered after her death, without retaining control of the deeds, is held to be sustained by the proofs and the escrow to be valid in law.
    Appeal from'Calhoun; North, J.
    Submitted October 15, 1909.
    (Docket No. 95.)
    Decided November 5, 1909.

      Bill by Alma A. Hoagland against Minerva A. Beckley and others to set aside a deed, and to quiet title to real estate. From a decree for complainant, defendant Beckley appeals.
    Affirmed.

      Bernard J. Onen and George W. Mechem, for complainant.

      Walter 8. Powers and Frank W. Clapp, for appellant.
   Moore, J.

Betsey Beckley, now deceased, on the 12th day of December, 1894, executed certain deeds of conveyance. Forty acres of land were deeded to the complainant in this case, 40 acres to Minerva A. Beckley, and 40 acres were conveyed to Minerva A. Beckley, Edson G. Beckley, Emily Jourdan, Anson I. Beckley, and Alma A. Hoagland. The grantees in these deeds were the children and heirs at law of said Betsey Beckley. ' Mrs. Beckley reserved in the deeds a life estate to herself. On the 11th day of December, 1905, Mrs. Betsey Beckley executed another instrument, which purported to convey the whole of said 120 acres of land to her daughter, Minerva A. Beckley, and transferred to Minerva Beckley, by instrument in writing, all of her personal property.

The bill seeks to have the former conveyance declared valid, and the later instruments, which purported to transfer the title to both the real estate and personal property,, declared invalid, alleging that Mrs. Beckley was mentally incompetent at the time of the execution of the later instruments, that the execution of them was brought about by fraud, and that, the instruments executed in December, 1894, being valid, it was beyond the power of Mrs. Betsey Beckley to make a further conveyance of the property described therein. The case was heard in open court. The court found that complainant had failed to prove the mental incompetency, or any fraud perpetrated upon Betsey Beckley, but held that the deeds of December 12, 1894, were valid deeds. From the decree entered, the defendant Minerva A. Beckley has appealed. None of the other parties has appealed.

The deeds of December 12, 1894, were executed in the office of Joel C. Hopkins, a lawyer, later a circuit judge, who died before this ease was tried. After the deeds were executed they were put in an envelope, which was sealed and indorsed as follows:

“ I hereby direct that the within deeds shall be delivered to the parties of the second part therein mentioned at my decease, and as soon as that event shall occur.

“Dated Dec. 12, 1894.

“Betsey Beckley.”

The signature is that of Mrs. Beckley. The deeds and envelope, unopened, remained with Mr. Hopkins until after the death of Mrs. Beckley. The rule that the delivery of a deed by a grantor to a third person, to be by him delivered to the grantee after the grantor’s death, is valid, is not seriously questioned. See Ellis v. Secor, 31 Mich. 185 (18 Am. Rep. 178); Wallace v. Harris, 32 Mich. 380; Latham v. Udell, 38 Mich. 238; Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291); Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Fulton v. Priddy, 123 Mich. 298 (82 N. W. 65, 81 Am. St. Rep. 201); Meech v. Wilder, 130 Mich. 29 (89 N. W. 556).

But defendants contend that in what occurred upon December 12, 1894, Mrs. Beckley did not intend to part with the title to her property beyond recall, and that the deeds were to be delivered only in the event that she did not call for them; that they were testamentary in character, and that by making the subsequent deed the former deeds were rendered invalid. This presented a question of fact as to what was done and intended on the 12th of December, 1894. The circuit judge filed an elaborate opinion, in which he analyzed the testimony and the claims of the solicitors. He had the great advantage of hearing and seeing the witnesses. We have been favored with the arguments of able counsel in well-prepared briefs and orally. An examination of the record satisfies us that the decree entered was a proper one.

It is affirmed, with costs.

Blair, C. J., and Grant, McAlvav, and Brooke, JJ., concurred.


text:
    SAMBERG v. KNIGHTS OF THE MODERN MACCABEES.
    1. Insurance — Proof of Death — Evidence.
    Letters tending to show that the insured, who has been absent more than seven years, had no cause to leave his wife, were admissible to strengthen the presumption of death created by 1 Comp. Laws, § 1225.
    2. Trial — Conduct of Counsel — Argument.
    Improper argument may be cured by the trial court holding the statements improper, and, in the absence of a request for further instructions to the jury, is not ground for reversal.
    3. Insurance — Fraternal Beneficiary Associations — By-Laws —Reasonableness. ■
    A by-law of a fraternal beneficiary association which attempts to abrogate a statute that raises a presumption of death from an absence of seven years, is unreasonable and invalid ’ as to a policy executed prior to the adoption of the by-law.
    4. Same — Death—Presumptions from Absence — Effect of Evidence to Rebut.
    It is a question for the jury to determine whether the presumption of death is overcome by the evidence of a witness who testifies that he met the alleged decedent and talked with him before the trial.
    Error to St. Clair; Tappan, J.
    Submitted October 21, 1909.
    (Docket No. 140.)
    Decided November 5, 1909.

      Assumpsit by Anna Samberg against the Knights of the Modern Maccabees on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Frank E. Jones, for appellant.

      Norman I. Miller and Money & Baird, for appellee.
   Moore, J.

Defendant is a fraternal beneficiary association. On the 10th day of March, 1889, Charles A. Samberg, then a resident of Port Huron, became a member of defendant order, and had issued to him a benefit certificate for $1,000. On or about November 24, 1894, this certificate was surrendered, and, in lieu thereof, a certificate in which Anna Samberg, his wife, was named as beneficiary, was issued. Mr. Samberg continued in the order, paid his assessments, and was in good standing until on or about March 16, 1900, when he left his home for Seattle, Wash. His wife continued to pay the dues and assessments until June, 1908. Mrs. Sam-berg received letters from her husband until on or about October 16, 1900, since which time she claims not to have heard from him or been able to gain any knowledge of his whereabouts. On November 1, 1907, plaintiff, as beneficiary, filed her claim with defendant order for the amount of said benefit ($1,000), in which she sets up the facts in regard to the absence and disappearance of her said husband for the period of seven years, “and alleges that-the amount of said certificate is now due and payable to her as beneficiary of the insured, her said husband.” The defendant order at its Great Camp Review in June, 1904, amended its by-laws by adding thereto section 88, which reads as follows:

“ The absence or disappearance of a member of this order from his last known place of residence for any length of time, shall not be presumptive evidence of the death of the member and no right shall accrue under the certificate of membership to the beneficiary, nor shall any benefits be paid until satisfactory proof has been made of the death of the member, aside from any presumption that might arise by reason of his absence.”

The claim made by plaintiff was disallowed by the executive committee, and upon appeal was disallowed by the Great Camp, and suit was then brought by plaintiff, and from a judgment in her favor the cause is brought here by writ of error.

The first question that arises under the assignments of error is whether or not the letters written by Mr. Samberg to his wife were admissible in evidence. Objections were made to these letters when offered “ as incompetent and immaterial, and for the reason that it is a communication between husband and wife, and therefore privileged and not admissible in evidence.” Section 1225, 1 Comp. Laws, provides:

‘ ‘ If any person shall disappear and his whereabouts remain unknown, for the space of seven years, and no knowledge of such person can be procured for such space of seven years, he shall be presumed to be dead.”

The letters were introduced for the purpose of strengthening the presumption of death created by the statute, by showing that at the time of his disappearance his relations with his wife and family were such as not to be a cause for his disappearance. We think they were competent.

Errors are assigned upon the argument of counsel. Some of the argument criticised was a fair argument in reply to statements made by opposing counsel. Some of it was clearly improper, and should not have been made. Upon the attention of the trial judge being called to the argument, he at once declared it to be improper, and that line of argument was not pursued further. Counsel for defendant was evidently satisfied with the course pursued, for he made no request to the judge for further instructions to the jury. See People v. De Camp, 146 Mich. 533 (109 N. W. 1047); Davis v. City of Adrian, 147 Mich. 300 (110 N. W. 1084).

The important question in the case is as to the effect of the by-law adopted in 1904, 15 years after the insured became a member of the order, four years after his disappearance, and three years before the beneficiary ceased to pay assessments to defendant organization. The application for membership contained the following:

“ That these statements with this application and the constitution of the Great Camp K. O. T. M. for Michigan shall form the basis for the contract for endowment.”

The certificate issued under this application was payable on condition that—

“All agreements and warranties made by him in his application are found to be true, and he continues to comply with the laws, rules and regulations of the Great Camp for Michigan which are now or may hereafter be in force.”

This certificate is made payable to the beneficiary named therein “upon satisfactory proof of the death of the said member.”

We have already quoted the statute in relation to the presumption arising from a seven years’ absence without intelligence concerning the person. It was undoubtedly enacted to meet a necessity growing out of the experiences of men. This rule has also been recognized in the absence of a statute. See Heagany v. National Union, 143 Mich. 186 (106 N. W. 700), and the many cases cited therein. It cannot be said that the insured in subscribing to his application contemplated the adoption of a by-law that would have the effect to render the provisions of a wholesome statute nugatory, and to have the further effect of making it practically impossible to make proofs of death in cases within the occasional experience of men.

There is a discussion of the rights of defendant association to enact by-laws in an opinion written by Justice Ostrander (Wineland v. Knights of Maccabees) found in 148 Mich. 608 (112 N. W. 696), in which it is recognized that a by-law to be valid must be reasonable. We hold that the by-law so far as this case is concerned is an unreasonable one.

The remaining question calling for discussion is stated by counsel as follows:

“Whether the presumption of the death of Charles Samberg was overcome- by the testimony of witnesses who claim to have seen him alive after the seven years, so that it became the duty of the court to direct the verdict for defendant.”

Upon that feature of the case the jury were instructed as follows:

“You are further instructed that you are carefully to weigh the proofs concerning the presence of Charles A. Samberg in the city of Petoskey in 1908. Of course, you will understand that if the witnesses for defendant saw Charles A. Samberg alive in Petoskey, as claimed, then the plaintiff cannot recover, whether his absence has been explained or unexplained. It is not the duty of the defendant to pay the amount of the certificate held by a member, unless it is shown that the member is dead, either actually or presumptively, as I have explained. If Charles A. Samberg was alive and in Petoskey as claimed, then it is established that the payment of his assessments had made him a living member of the order, in good standing, and nothing more. His wife would have no more claim for the payment of this certificate than the beneficiary of any other living member of the order in good standing. There is no evidence that directly contradicts the evidence of the witness Frank E. Bowen to the effect that he was acquainted with Charles A. Samberg, and that he saw him, recognized him, and talked with him September 28 or 29, 1908. If you believe that either Bowen or the witness Paul saw Mr. Samberg in 1908, then that ends the case, and your verdict must be for the defendant. The evidence of Bowen can be overcome only upon the finding by you that he was either mistaken in his identification of Samberg, or that he is falsifying. I shall leave it for you to determine whether he did see and know Samberg as he claims. This is to be considered by you in connection with all the other proofs of the plaintiff and defendant in the case respecting the disappearance, absence, and all other matters that will enable you to determine whether Mr. Samberg was seen alive in Petoskey in 1908, as claimed. As I have explained, if the defendant has shown by proof that Mr. Samberg was alive in 1908, then your verdict should be for the defendant.

This is as favorable a charge as to the law upon that feature of the case as the defendant is entitled to.

Judgment is affirmed.

Grant, Montgomery, Ostrander, and McAlvay, JJ., concurred.


text:
    HOFFMAN v. NELSON.
    Landlord and Tenant — Fixtures—Evidence op Title — Injunction.
    In a suit for injunction to restrain the complainant’s tenant from moving a frame building off the leased premises, a denial, in the answer, of the complainant’s title to the building, with evidence on the hearing that the building belonged to the tenant, imposes on the complainant the burden of showing a valid title to the structure.
    Appeal from St. Clair; Tappan, J.
    Submitted October 12, 1909.
    (Docket No. 49.)
    Decided November 5, 1909.
    Bill by Julia A. Hoffman against Louise C. Nelson and another to restrain the removal of a building. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Hart & Pepper, for complainant.

      Moore & Wilson, for defendants.
   Moore, J.

On April 3, 1909, this bill of complaint was filed. It contains, among others, the following averments:

“First. Your oratrix, Julia A. Hoffman, of the city of Port Huron, said county, respectfully represents unto this, honorable court that before and at the time of making the lease hereinafter mentioned your oratrix was seised in fee simple of the premises hereinafter described, and, being so seised, by a certain lease bearing date of the 1st of May, 1907, and made by and between your oratrix of the one part, and Mrs. Louise C. Nelson, of the city of Port Huron, the defendant hereinafter named, of the other part, your oratrix demised, leased, and let unto the said defendant a bathhouse and one frame building used? as a boathouse of the value of $200, unto the defendant, all being situate on that part of Fisheries No. 1, so called, directly south of Lakeside Park, so called, in the city of Port Huron, said county, and the lands upon which said buildings were located, to hold the same, with the appurtenances, unto the said defendant, situate as aforesaid, for the term of two years then next ensuing, at an annual rental of $100; and the said defendant did thereby covenant, promise, and agree with your oratrix that she would during the said term keep the said premises in good repair, and at the expiration of the term to yield and deliver up the same in like condition as when taken, as by said indenture of lease, reference being thereunto had, will more fully appear.

Second. Your oratrix further represents that the said defendant Louise C. Nelson, under and by virtue of the> said indenture, entered upon said demised premises with the appurtenances, and became and was possessed thereof for the said term so granted to her thereof by your oratrix as aforesaid.

Third. Your oratrix further represents that on the 8d day of April, A. D. 1909, the said Louise C. Nelson, contriving to injure your oratrix in her ownership of the said property and especially of the said buildings, has caused the said frame building used as a boathouse, as aforesaid, to be prepared for removal from the said premises, and, as your oratrix avers, is now in the act of removing the said frame building, and has caused one Obediah Young of the city of Port Huron to go to the said premises with apparatus to remove the said building, and that the said Obediah Young intends to remove the said frame building from the said premises to some other point in the said city of Port Huron, as your oratrix is informed and believes. Your oratrix further avers that the removal of the said building is now in progress, and is all without the consent of your oratrix.”

Among other things prayed are the following:

“That, upon the final hearing hereof, the said defendants may be decreed to put the said premises into such repair and condition in every respect, as far as circumstances will permit, as the same were in at the time the said Louise C. Nelson entered upon the same, under said lease as aforesaid, and to make a reasonable compensation to your oratrix for all wastes done, committed, or suffered by her on the said premises, and damages occasioned thereto by the removal of the said frame building as aforesaid; that the said defendant Louise C. Nelson may be decreed to keep the said premises in good and sufficient, repair and condition during the remainder of her time therein.”

The defendant Nelson answered the bill of complaint. Her answer contained, among other things, the following:

“ She admits that on or about the 1st day of May, A. D. 1907, she entered into a lease for the said premises, but denies that at the time of the execution of the said lease she knowingly signed any lease for the frame building in question. This defendant, further answering, states that she is now and has been for eight years and upwards the owner of the frame building in question, and that at the time she placed said building upon the premises in question she did so under a written lease for the land executed between herself and one John M. Hoffman as attorney in fact for William H. Varney; and that all ground rent for the said premises was by her paid to the said John M. Hoffman or his assignees. * * *

“ This defendant admits that on or about the 3d day of April, 1909, she was preparing to remove from the premises in question the frame building in question, and based her right so to do upon actual ownership of the building, coupled with the further fact that her lease of said premises expires May 1, 1909.”

A hearing was had in open court. From a decree dismissing the bill of complaint, the case is brought here by appeal.

Upon the hearing the complainant did not show that she was the owner in fee of the land upon which the building stood. She offered no deeds in evidence, but contented herself with offering in evidence a lease made May 1, 1907, between herself and Mrs. Nelson, in v/hich) among other property described, was “one frame building now used as a boathouse. ” The complainant claims that—

“ The fact that the frame building is included in the lease, without any exception made as to its being of a different ownership than the other property, prima facie makes Mrs. Hoffman the possessor of a title to it superior to the claims of Mrs. Nelson, the lessee. In other words, whatever title Mrs. Hoffman can be said to have to the land itself and to the cement building leased through the recitals in the written lease of 1907 must necessarily be no greater than her title to the frame building, inasmuch as all are included in the one description.”

On the part of the defendant it was shown that she entered into possession of the property by virtue of a written lease in May, 1902, made between John M. Hoffman and herself, in which it was recited that the premises were leased for “the purpose of erecting a bath or boat house thereon.” It was provided in the lease that, at the expiration of the term, Mrs. Nelson was to yield and deliver up the premises “in like condition as when taken,” etc. It was shown that it was agreed by Mr. Hoffman and Mrs. Nelson that she might move a frame building upon the premises, and that the title thereto should remain in her, and that she should have the right to remove it. Mrs. Nelson also testified that she did not know that any reference was made to this frame building in the lease she obtained from Mrs. Hoffman, until after this bill was filed. The record shows very clearly that the agreement about the building was made with Mr. Hoffman as outlined above, but it is contended that, as Mrs. Nelson signed the lease, she is now estopped from questioning the title of Mrs. Hoffman to the building. If the controversy was between the landlord and tenant at the expiration of a lease over simply the question of who was entitled to the possession, there would be much force in the contention. But the bill of complaint concedes that, when it was filed, Mrs. Nelson was entitled to the possession of the property, and avers that complainant was the owner in fee simple of the premises.

This claim is disputed by defendant. It thus became important for complainant to establish her title. See Jochen v. Tibbells, 50 Mich. 33 (14 N. W. 690); Shaw v. Hill, 83 Mich. 323 (47 N. W. 247, 21 Am. St. Rep. 607).

The decree is affirmed, with costs.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


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    KNABUSH v. COMMON COUNCIL OF VILLAGE OF BRITTON.
    1. Intoxicating Liquors — License Bond — Mandamus—Evidence.
    In proceedings for mandamus to compel a village council to accept a liquor bond tendered by a saloonkeeper, inquiry whether the members of the council would accept the bond of a surety company was properly excluded.
    2. Same — Evidence—Cross-Examination — Expert and Opinion Evidence.
    Where a witness as to the value of real estate is asked on cross-examination if he would take the price named by him for his own farm, similarly situated, it is not reversible error to exclude the testimony.
    3. Same — Sueeioiencv op Surety — Mandamus.
    On mandamus to compel the common council of a village to accept a liquor bond, the sufficiency of the surety is not in issue, only the good faith of the council in making the rejection.
    4. Same — Mandamus.
    Where the evidence tended to show that the surety on the saloonkeeper’s bond obtained certain property colorably in order to justify as a bondsman, it was not error to refuse a writ of mandamus to compel the acceptance of the bond by the village council.

      Certiorari to Lenawee; O’Mealey, J.
    Submitted October 5, 1909.
    (Calendar No. 23,527.)
    Decided November 5, 1909.
    Mandamus by Louis Knabush to compel the common council of the village of Britton to approve a liquor bond. An order denying the writ is reviewed by relator on writ of certiorari.
    Affirmed.

      Smith, Baldwin & Alexander, for relator.

      Bird & Sampson, for respondent.
   Moore, J.

May 8, 1909, the relator tendered to the village council of the village of Britton a bond as a retail liquor dealer, with E. G. Price and George Allen as sureties. The council declined to approve the bond. A writ of mandamus was sued out of the circuit court for the purpose of compelling the council to approve the bond. A hearing was had. Many witnesses testified. The court declined to compel the council to approve the bond, which action it is sought to review by the writ of certiorari. The village board made a sworn return to the petition, insisting that it had acted in the utmost good faith. By consent of counsel in open court the following issues were framed:

(1) Has the common council acted in good faith in rejecting the liquor bond of relator ?

(2) Is the surety George Allen worth in real estate situate within the county of Lenawee, the sum of $6,000 over and above all indebtedness, incumbrances, and exemptions from sale on execution ?

The court rendered an oral opinion, and later filed a written opinion, the important part of which is as follows:

“The evidence discloses that there was no question in the deliberations of the council as to the sufficiency of the surety Price. Each of the councilmen of said village, except one, and including the president, testified as a witness upon the hearing, and each emphatically denied that the purpose of the council, or their action as members of it, had any motive, purpose or object in view in rejecting said bond for the insufficiency of the responsibility of the surety Allen, except to do their duty under the statute as members of the council; that each of said councilmen had known the surety Allen for several years, and they had known him to be a man of limited means and property outside of a farm of 80 acres, valued in the evidence from $50 to $60 per acre, and that said farm was incumbered by a mortgage for $1,000; that said mortgage was originally for $1,500; that said surety lived upon said farm, and in the course of 10 to 12 years had succeeded in reducing said mortgage by making payments thereon in the amount of $500 and the accrued interest from year to year, and that they were informed and understood, at the time of their said action upon said bond, that the surety Allen, being pressed for payment upon said mortgage by the mortgagee, was soliciting a loan for that amount from some of his neighbors to pay and discharge said mortgage as a lien upon his land, and the evidence discloses that they believed that, whether the surety Allen gave a new mortgage to one Ousterhout, from whom he succeeded in effecting a loan, or whether he borrowed the money upon his note, they believed that the debt secured by said mortgage still remained as an outstanding obligation of the surety Allen against him, and thereby reduced his financial responsibility to that extent.”

Then follows a review of the testimony, in which the following appears:

“And although the surety Allen was produced as a witness on behalf of the petitioner upon the hearing, and testified that early in the spring of this year, when he was undertaking to secure a loan of $1,000 upon his farm to discharge the old mortgage, he had $2,000 in cash in his home, and that he had $1,000 of it there for three or four years, and the other $1,000 for one or two years, and that he used this money in connection with some he acquired from his auction notes, as the proof discloses, in the purchase of the saloon property in which the petitioner had been carrying on the saloon business for the last year, and yet that question is left upon the unsupported testimony of the surety and witness Allen. * * * This and the fact that no satisfactory evidence was produced at the hearing as to how he accumulated this money and from what source, and from all the evidence in the case, the building of the house that cost him $2,000, paying off other indebtedness of nearly $1,000 within the last two or three years, and buying this saloon property for $2,500, and paying cash for it, the court discredits the testimony of the witness Allen as to his financial responsibility, and thinks that the council might well, in the exercise of an honest and conscientious judgment, discredit the fact that the purchase of the saloon building was made in good faith, intending on the part of the petitioner and of the surety Allen that it should be a genuine sale and purchase, but rather that it was a fictitious transfer for the express purpose of qualifying Mr. Allen as a surety upon this bond; and from all the testimony in the case, the appearance of the petitioner and the witness Allen upon the stand, and in the consideration of the circumstances and surroundings, and the whole transaction, the court is impressed with the view that, if there is an element of bad faith in this transaction, it exists upon the part of the petitioner and the surety Allen rather than upon the part of the council; and the court finds that the respondent has shown ample cause under the order heretofore issued in this case, and that the council, in their action in rejecting the respondent’s bond as detailed in the evidence, acted in the utmost good faith, and that the court’s acquaintance with the individual members of the council for many years and their character and standing in the community would cause him to hesitate before believing otherwise.”

As before stated, the court refused to issue the writ of mandamus.

The points made by counsel are:

(1) The court erred in refusing to permit inquiry to be made of the members of the council as to whether they would accept a surety company bond.

(2) The court erred in refusing to receive or hear other proper evidence offered by petitioner.

Walter Exelby was called by the council to pass upon the value of the farm of the surety Allen. He owned a farm similarly located near the farm of Mr. Allen. On cross-examination he was asked if he would take the same price, $55 an acre, for his farm. An objection to this question was sustained.

(3) Because the court refused to find that the council arbitrarily refused to accept the bond.

(4) Because the court refused to find that surety Allen was a good, proper, and sufficient surety.

This, as before stated, the court held was not a question to be found by the court; that the only thing to be passed upon was whether the council acted in good faith. We discuss this further on, also.

(5) The court refused to determine the case upon the evidence, but rather upon his personal acquaintance with the members of the council.

(6) The court erred in the rule upon which the case was determined, which was that to find that the members of the council acted in bad faith was, in effect, to ‘ ‘ reach a conclusion that they were dishonest men,” etc.

Points 1 and 2 may be disposed of by saying the court did not err in its rulings in relation thereto.

Points 3, 4, 5, and 6 may be discussed together. We think counsel is mistaken in the conclusion that the court did not determine the case upon the evidence, but disposed of it upon the theory that if he found the village council did not act in good faith, it was in effect to reach a conclusion that they were dishonest men. We have already quoted enough from the opinion to show that the court was satisfied that the village council acted in good faith in reaching the conclusion that Mr. Allen was not a qualified surety, and that the judge also thought it had not been shown that he was a qualified bondsman. The record discloses that on May 1, Í909, the relator and his wife deeded property, said to be worth $2,500, to Mr. Allen, and he in turn rented it to relator for saloon purposes at $20 a month. The bond was offered to the village council May 3, 1909. It is claimed that the sale from Knabush to Allen was made in good faith and for cash. The testimony of Mr. Knabush and Mr. Allen is so contrary to the experiences of ordinary men that it is not surprising that the village council and the circuit judge did not believe their versions of the transaction. There is nothing to im - peach the good faith of the village council. The evidence fully justified the conclusion of the circuit judge that if there was bad faith anywhere, it was upoD the part of the relator and the surety Allen, and not upon the part of the village council.

The action of the circuit judge is affirmed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


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    NIBLOCK v. ANN ARBOR RAILROAD CO.

    1. Master and Servant — Negligence—Machinery.
    There is evidence tending to show negligence of a corporation, which, in its business, operated a crane for lifting car axles intended to weigh from 300 to 500 pounds, where it appeared that the crane had been long in use, had been improperly repaired, that the base had become weakened, as an inspection would have shown, and that the machinery broke at the base while lifting a larger weight than it was intended to support.
    2. Damages — New Trial.
    Pour thousand dollars damages are not so excessive as to warrant granting a new trial as against a plaintiff whose hand was crushed and rendered useless, his little finger cut off, and his body and right leg bruised, and who had previously been a skilled mechanic earning about ÍJ2.50 a day.
    Error to Shiawassee; Miner, J.
    Submitted October 12, 1909.
    (Docket No. 29.)
    Decided November 5, 1909.
    Case by Andrew Niblock against the Ann Arbor Railroad Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      T. W. Whitney (Benjamin 8. Warren, of counsel), for appellant.

      Odell Chapman, for appellee.

       Rehearing denied December 31, 1909.

   Moore, J.

Plaintiff, while in the employ of defendant company, was hurt, and for his injuries brought this lawsuit. From a judgment of $4,000 in his favor the defendant has brought the case here by writ of error.

We quote from the. brief of counsel for appellant:

“ The principal questions raised by the record are those of primary negligence on the part of the defendant. These claims were set forth in defendant’s request to charge:

“First. ‘ The defendant requests the court to charge the jury that under the pleadings and proofs in the case the plaintiff cannot recover, and you are directed to return a verdict of no cause of action.’

“Second. ‘ I charge you that there has not been made to appear by the plaintiff that the defendant was negligent; that the negligence of the defendant has not been proved ás alleged; that its negligence has not been established ; that it has not been made to appear what caused the breakage that caused the accident; that whatever may have been the cause, it has not been made to appear that it was because of any negligence of the defendant.’”

These requests were refused, and the case was submitted to the jury in a carefully prepared charge. The plaintiff was employed in turning car axles at a lathe. These axles were lifted into position by using a crane, the iron base of which was at the end of the lathe. In this base was a socket into which a swinging arm was fitted; at the end of the arm was a pulley, over which a chain was run, which chain ran over a ratchet roller which was operated by turning a crank. This chain could be lowered so as to engage the axle to be lifted, and by turning the crank the axle .was lifted high enough to be swung into place over the lathe. It was the claim of plaintiff that about 18 months before the accident happened the arm of the crane had been lengthened, giving it much greater purchase upon the socket or base, and that this was done without strengthening the base. It was also his claim that the crane was overloaded; that it was originally intended to carry axles weighing from 300 to 500 lbs. But that later it was used to carry axles weighing much more, and that when the accident happened it was actually carrying an axle weighing more than 800 lbs. It was also claimed that by long-continued use the base of the crane had crystallized and weakened, and that a proper inspection would have shown that fact, and that no inspection was made. There was testimony tending to support each of the claims of the plaintiff. We do not think it can be said, in view of this testimony, that the court should have directed a verdict in favor of defendant.

A motion was made for a new trial, among other reasons, because the verdict was excessive. This motion was overruled. It is urged here that the court erred in not granting a new trial because of the excessive verdict. The plaintiff was about 47 years old, and claimed to be a skilled mechanic, earning $2.50 a day. It was his claim that—

“ The base of the crane broke and fell, striking this plaintiff on his right hand, crushing the fingers thereof, cutting the little finger from his hand, and otherwise injuring and bruising this plaintiff in his body and injuring and bruising his right leg. Plaintiff’s right hand, on account of the injury thereto, has become partially useless, and it has greatly impaired the use of the fingers of his right hand, and the bones in his hand were crushed and broken so that said hand is useless, and said injuries are permanent, and he will never recover from the same, and that said plaintiff has suffered great pain, both physical and mental, from said injury, and said injury has made this plaintiff a permanent cripple, impairing his ability to earn money, his personal appearance, his power of self-defense, and his physical power generally, and the same has caused plaintiff to suffer, both physically and mentally, and said plaintiff has suffered great- mental anguish at having been made a permanent cripple, and having lost the power and use of his right hand.”

There was detailed testimony tending to establish the above claim. Counsel does not argue this proposition at any great length, and has not' called our attention to any authority supporting his contention.

Judgment is affirmed.

Blair, C. J., and Grant, McAlvay, and Brooke, JJ., concurred.


author: McAlvay, J.

text:
    TRUDEAU v. BOIVIN.
    Contracts — Payment—Evidence.
    To refuse an instructed verdict for rent claimed to be due as a set-off in favor of defendant, is error, when the evidence for defendant, that the rent had never been paid, was uncontradicted, and the plaintiffs’ evidence only showed that the plaintiffs were copartners, and the surviving partner’s share had been turned over to the other, who had died, to pay to the defendant, and that the defendant had been on friendly terms with both.
    Error to Baraga; Streeter, J.
    Submitted October 19, 1909.
    (Docket No. 112.)
    Decided November 5, 1909.
    Assumpsit by George Trudeau and Charles Rambaud, copartners as Trudeau & Rambaud, against Anselme Boivin for goods sold and delivered. A judgment for plaintiffs is reviewed by defendant on writ of error.
    Reversed.

      JP. H. O’Brien, for appellant.

      Mason & O’Connor, for appellees.
   McAlvay, J.

The action in this case in assumpsit was brought by plaintiffs, as copartners doing business under the firm name of Trudeau & Rambaud, who were successors in business to the firm of George Trudeau, Sr., and Charles Rambaud, and who assumed all the liabilities and took all the accounts of the old firm. The account sued upon was for a bar bill and some money loaned, amounting altogether to the sum of $389.60, part of which was contracted since plaintiffs took the business. This amount was not fixed by the evidence. Defendant gave notice of set-off, for 21 months’ rent of the building occupied by them, at $30 per month, from May 1, 1897, to February 1, 1899, amounting to $630, and $107 for the use of certain bar fixtures.

The question in dispute in the case was whether defendant should be allowed for this rent claimed by him to be due and unpaid. He did not dispute plaintiffs’ account against him. At the close of the proofs, defendant asked for a directed verdict in his favor for $347.40, claiming that the evidence to that effect was undisputed. This was denied, and the case was submitted to the jury, under the charge of the court. A verdict was returned in favor of plaintiffs for the sum of $294 and costs. A motion for a new trial was made by defendant, and denied.

Defendant contends that the court erred in not instructing a verdict for defendant as requested, also in not granting the motion for a new trial for the reasons urged, and also in certain parts of the charge to the jury. Errors are duly assigned upon exceptions taken to the foregoing actions and decisions of the court. That the premises of defendant had been rented and occupied for the time claimed by the predecessors of plaintiffs is not disputed, nor that plaintiffs took all the accounts and assumed all the liabilities.

There is an issue of fact as to whether the rent reserved was $30 or $25 a month. It is claimed on. the part of defendant that there was no evidence tending to show that the rent for the term claimed had been paid, and that the only possible question of fact upon that branch of the case was as to the amount of the rent, and that the court erred in leaving the question of the payment of rent to the jury. There was undisputed evidence on the part of defendant that this rent had not been paid. There was no evidence to the contrary on the part of plaintiffs. Plaintiff Ram-baud testified that the rent was $25 per month, and that he paid his half, $12.50, to his former partner, since deceased, but did not know that it was ever paid to defendant. This question is raised on a motion for a new trial and by an exception to a portion of the charge.

We think the court was in error. There was no evidence in the case from which it could be legitimately inferred that this rent had been paid. The court thought that, by reason of the friendly relations between defendant and Trudeau, Sr., since deceased, and from the fact that he had purchased this building from defendant, who after-wards lived in the second story and paid rent to the estate of Trudeau, Sr., raised a question of fact for the jury as to whether the rent had been paid. This would be a mere matter of speculation. Defendant did sell the place as stated, and defendant, who had theretofore lived in the building, continued to do so on an agreed rent, which he paid. This sale was made May 27, 1899, after the time expired for which defendant charges rent, and was an individual transaction with Trudeau, Sr., and occurred during the time when a portion of plaintiffs’ account against defendant was being incurred by him. The probabilities are much stronger that the plaintiffs’ predecessors were desirous of having this rent account traded out over the bar than that it should be paid.

The court should have charged the jury that the evidence showed that the rent had not been paid, and that the amount was the only question in dispute, to be found by them from the evidence upon that subject. There was one other question of fact for the jury relative to the use of certain furniture and fixtures charged at $1 per month. This was submitted by the court, to the apparent satisfaction of the appellant, who assigned no error to that portion of the charge. In any event, this record shows that defendant should have recovered a judgment of some amount.

The judgment of the circuit court is reversed, and a new trial ordered.

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


author: Per Curiam.

text:
    SMITH v. WAYNE CIRCUIT JUDGE.
    Practice — Production of Evidence to Enable Defendant to Plead — Mandamus.
    Mandamus will not lie to vacate the order of a circuit judge compelling the relator to produce, in an action of assumpsit wherein he is defendant, books of account which contain a record of the matters involved in the action, and which are necessary to enable the plaintiff to furnish a required bill of particulars.
    Mandamus by H. H. H. Cr'apo Smith to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order of discovery.
    Submitted October 19, 1909.
    (Calendar No. 23,639.)
    Writ denied November 5, 1909.

      Grapo G. Smith and James H. Pound, for relator.

      Merriam, Yerkes & Simons, for respondent.
   Per Curiam.

Relator is defendant in an action of assumpsit to recover for money paid and services rendered by Arthur L. Holmes, plaintiff. After service of the declaration, defendant’s attorney demanded a bill of particulars, which was furnished. He then demanded a further itemized bill of particulars as to certain items. Thereupon the plaintiff filed a petition, setting up the foregoing history of the case, and in substance that he k:ept no books of account; that all of the items of his transactions were entered and kept in defendant’s books; that he had no record from which he could furnish a further itemized bill of particulars demanded by defendant; that during the term of years of his employment by defendant he acted as plaintiff’s banker, paid his household and other bills, and received money from .him' from time to time; that the only account kept of all these transactions was in defendant’s books; and that he was unable, without discovery and production of said books, to furnish the further bill of particulars demanded. Upon a hearing the prayer for discovery was granted, and the order objected .to was made. A motion to set it aside was denied, and these proceedings were instituted to compel respondent to set aside such order for discovery by writ of mandamus.

Relator in this case has created a situation which requires the furnishing by plaintiff of certain particulars, the only record of which is shown by the petition for a discovery to be contained in relator’s books, which are in his possession, and an examination of which, upon demand, he refuses to allow to be made by plaintiff. The only question as to the sufficiency of the petition he raises is that it does not negative the ability of the plaintiff to obtain the production of the books, etc., by subpcena duces tecum. The petition' conforms strictly with the requirements of the court .rules upon the subject, and the objection of relator is not well taken. Cummer v. Kent Circuit Judge, 38 Mich. 351, and Preston Nat. Bank v. Wayne Circuit Judge, 137 Mich. 152 (100 N. W. 393), relied upon by relator, are not in point. In those cases the petitions were for discovery to prepare for trial, not to enable a plaintiff “to declare, or answer to any pleading of the defendant.” Circuit Court Rule 50 a (124 Mich, xxxviii, 87 N. W. vi).

The argument that by a subpoena duces tecum plaintiff could get all the benefit sought is answered by the petition, and the circumstances which confront plaintiff, whose situation is urgent, and whose relief, if delayed until trial, will be of no benefit. He must furnish this further bill of particulars or be defaulted. The action of the trial court was a legitimate exercise of his jurisdiction.

The writ of mandamus is denied, but without prejudice as to any application to the circuit court for any reasonable modification of the order.


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    CITY OF DETROIT v. WEBER.
    1. Taxation — Special Assessments — Municipal Corporations— Defective Proceedings.
    A special assessment of a paving tax, made under a local act which authorized the common council to provide by ordinance for a time when the four installments intended by the statute to be collected should be paid, in the absence of an ordinance determining such time for payment, is invalid and a sale for the tax is void.
    2. Municipal Corporations — Ordinances — Retrospective Action.
    Such assessment is not authorized or affected by a subsequent ordinance which provided for the time of paying the respective installments, but that did not expressly include the previous assessment.
    Error to Wayne; Mandell, J.
    Submitted October 14, 1909.
    (Docket No. 85.)
    Decided November 5, 1909.

      Ejectment by the city of Detroit against Joseph L. Weber and others. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Walter Barlow (P. J. M. Hally, of counsel), for appellant.

      Jasper O. Gates, for appellees.
   McAlvay, J.

This is an action of ejectment, brought by plaintiff to obtain possession of certain premises within said city, claiming title and right thereto by virtue of the sale of said premises for the nonpayment of parts 3 and 4 of the special taxes assessed against said lands for the paving of Myrtle street in said city of Detroit, in the year 1887. Defendants attacked the validity of said tax sale, contending that the proceedings taken in relation to said paving assessment, and the sale made thereunder, were illegal and void. The evidence in the case consisted entirely of the records and proceedings of plaintiff, had in regard to said special tax assessment and sale. At the close of the case plaintiff made a motion for a directed verdict, which was denied. On behalf of defendants a like motion was made and granted. Judgment in favor of defendants was duly entered upon such verdict. Plaintiff has assigned error upon the grounds that the court should have granted its motion, and denied the motion of defendants. Many important legal questions which arose upon the trial are discussed in the brief for defendants. We think it necessary to consider at this time only the question which the court held was decisive of the case, namely, whether, under the proceedings had by the plaintiff, the sale of the premises for parts 3 and 4 of this special assessment was a valid sale.

It is claimed by plaintiff that this assessment roll was prepared under the provisions of Act No. 489, Local Acts 1887, approved June %, 1887, providing that the assessment roll in case of special paving assessments shall be made in four parts. This act was amendatory of the charter of Detroit enacted in 1888, and added four new sections thereto, of which section 44 contained the only provision in the charter at the time authorizing such an assessment roll to be made in four parts, and that provision was mandatory. This section, however, was not self-executing. It required action on the part of the common council, as will appear from the section, which reads as follows:

“ Section 44. The assessment roll provided for in section thirty-seven (37) of this chapter shall be made by the assessor in four parts: Provided, Any person so electing may have all assessments for street pavements made against the property assessed, payable on the first assessment, each part to contain a list of the lots or parcels mentioned in said section, with the names of the owners or occupants of each lot or parcel, and three-quarters of the cost and expense of the work assessed upon each lot or parcel. Such parts of the assessment roll shall be numbered one (1), two (3), three (3) and four (4) respectively. The common council may provide that the portions of the assessment on each lot or parcel mentioned in the several parts of the assessment rolls shall be collected in such manner as shall be authorized by law and at such time as the common council may by ordinance provide.”

The language of portions of this section is obscure. It probably intended to provide for the payment of such assessments in four equal installments, but fixes no time when the first or any of the remaining parts shall be collected. This act was given immediate effect, and was in force at the time of the assessment of the tax in dispute, which was finally confirmed September 3, 1887. The common council, after section 44 was enacted, undertook to make the provisions relative to the time and manner of collecting the taxes assessed in the assessment rolls, provided for in such section by ordinance, which appears in the council proceedings of August 16, 1887. When the ordinance was finally enacted is only shown in this record by an ordinance which amended it, and which in its entitling gives the date of approval as September 13,1887. This amending ordinance was approved April 16, 1888. It is not necessary to quote this ordinance as originally enacted, or as amended. It was not enacted until after the confirmation of the rolls in question in this case, and no provision was made in it, or in the charter as amended, to include in the sales of property for such assessments, taxes which had been theretofore assessed, so that none of such provisions would apply to these taxes. There was no law applicable to sales for these taxes at the time, except that which required a single sale for the whole assessment.

There can be no question from the proceedings had in giving the notice, and all other steps up to the sale made to plaintiff, as shown by the record, that an attempt was made to comply with the requirements of the ordinance first above mentioned. The trial court so understood, and so held in his decision of the case, and considered that the first ordinance was in full force. It is not necessary to give the reasoning of the court in construing that ordinance. It is sufficient to say that, if the ordinance was in force, the conclusion of the court was correct, and his conclusion was the proper one in any event, although based upon a wrong reason.

We have concluded, after a careful examination and a comparison of the dates in the record, that this ordinance was not in force, as already stated. It follows that no valid sale was made, and that plaintiff acquired no rights under it. It is therefore not necessary to discuss the question of the statute of limitations. -

The judgment is affirmed.

Blair, C. J., and Grant, Moore, and Brooke, JJ., concurred.


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    RICHTER v. STOLZE.
    Libel and Slander — Words Actionable per se — Damages— Question for Jury.
    It is error for a trial court to direct a verdict for nominal damages for words imputing to a woman want of chastity, made actionable per se under 3 Comp. Laws, § 10401.
    Error to Wayne; Donovan, J.
    Submitted October 12, 1909.
    (Docket No. 50.)
    Decided November 5, 1909.
    Case by Annie Richter against Ernest E. W. Stolze for slander. A judgment for plaintiff on a verdict directed by the court for nominal damages only is reviewed by plaintiff on writ of error.
    Reversed.

      Edward 8. Gtrece, for appellant.

      Washington I. Robinson and Henry O. L. Eorlery for appellee.
   McAlvay, J.

This is an action for slander. Plaintiff worked as a janitress in the Union Trust Building, in Detroit. Defendant'was the head janitor of this building, and had charge over plaintiff and 14 others. Plaintiff was late coming to work on the day in question, at which defendant became angry, and in the presence of two witnesses used towards plaintiff the slanderous words charged.

The words charged and proved to have been spoken by defendant are unprintable, and imputed to plaintiff a want of chastity. Under section 10401, 8 Comp. Laws 1897, they were actionable per se. Upon the trial the court so held; but, instead of submitting the question of damages to the jury, he instructed a verdict in favor of plaintiff for sis cents damages. Upon this instructed verdict a judgment was entered. A motion for a new trial was made by plaintiff, claiming, among other reasons, that in instructing a verdict for the amount of damages plaintiff had suffered “the court invaded and usurped the province of the jury.” This motion was denied, and plaintiff upon a writ of error brings the case to this court for review, assigning error upon such ruling and instruction of the court.

The court was in error. No discussion of so fundamental a proposition is necessary. The question of damages should have been submitted to the jury under proper instructions.

The judgment is reversed, and a new trial ordered.

Blair, C. J., and Grant, Moore, and Brooke, JJ., concurred.


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    HOOPER v. MUELLER.
    Landlord and Tenant — Contracts — Intoxicating Liquors — Termination of Lease — Impossibility of Performance — Legality of Object.
    In an action for rent under a lease for a fixed term, in which, a proviso is incorporated that the landlord shall procure two sureties for the tenants’ liquor bond, it is a defense to the action, that,- local option having been adopted in the county, the performance of the contract was rendered unlawful and impossible.
    Error to Shiawassee; Miner, J.
    Submitted October 12, 1909.
    (Docket No. 42.)
    Decided November 5, 1909.
    Assumpsit by Frederick W. Hooper and James D. Glavin against Louis Mueller and Charles Mueller, co-partners as Mueller Brothers, for rent. A judgment for plaintiffs for less than the amount claimed is reviewed by them on writ of error.
    Affirmed.

      Stone & Watson, for appellants.

      Walsh & Pardee, for appellees.
   McAlvay, J.

Plaintiffs on June 3,1903, leased to defendants a certain building in Alma, Mich., and the hotel furniture and fixtures therein for a term of eight years after May 1, 1903, to be occupied for hotel and saloon purposes, for a rent of $600 a year payable at the rate of $50 every month in advance. The written instrument contained other ordinary provisions of a lease, and also the following:

“ The said first parties further agree that in case they are unable to furnish, that is secure, for the said second parties, or the tenant of said parties, two sufficient bondsmen required by law in case of retail dealers in malt and spirituous liquors, at second parties’ own proper expense, however, then this lease shall be and become void.”

Defendants took possession and occupied and used the premises for the purposes mentioned in the lease until May 1, 1908, on which date, by reason of regular proceedings, the provisions of the “local-option law” became operative in Gratiot county, and the sale of intoxicating liquors thereby was prohibited. This suit was brought to recover the rent unpaid, for a period including the months of May and June, 1908. Defendants gave notice with their plea that the adoption of local option in that county avoided the lease after such law went into effect. The facts are all stipulated. Upon the trial the court held with the defendants, and rendered a judgment for the amount of rent due to May 1, 1908, holding that this lease on that date became void and not enforceable. This is the only question in the case. Plaintiffs have brought the case to this court for review, having assigned error upon the holding of the court above stated.

It is contended by appellants (1) that the contract did not provide for its abrogation in the event of the adoption of local option, consequently (2) the law would not operate to avoid it on the happening of that event.

It is not argued by either party that the contract was not such an one as the parties at the time could not undertake to perform, and which could not be enforced. The local-option law which went into effect in that county during the term of this lease rendered the performance of the contract on the part of plaintiffs impossible. They had agreed that in case of failure to furnish and secure bondsmen for defendants as retail liquor dealers, the lease should be and become void. It may well be said that they contracted with reference to this contingency which has arisen, as well as to any other circumstance which would intervene, either from their- own acts or otherwise. This was a part of the consideration which induced defendants to enter into the lease.

In a recent well-considered case decided by the supreme court of Maine, the question involved in the case at bar was before the court. It was held that the enactment of a law after a lawful contract is made which renders its performance unlawful, discharges the contract. American Mercantile Exchange v. Blunt, 10 L. R. A. (N. S.) 414 (103 Me. 128, 66 Atl. 212), notes, and cases cited. In the case note it is stated:

“The authorities are almost unanimous in holding that, where the act contracted for is rendered unlawful by the enactment of a statute before the expiration of the time for performance, the obligation is thereby discharged ”— citing, among other cases, Cordes v. Miller, 39 Mich. 581 (33 Am. Rep. 430).

We agree with the trial court that the lease became void for the reasons stated. The findings of the court support the judgment. The rent for which a recovery was allowed became due at stated periods. By an apparent oversight in computing interest to be allowed plaintiffs on the amount they were admittedly entitled to recover, the interest on each payment from the time it became due was not included. It is merely a matter of computation. No error is assigned upon this. It was not discovered until after the record was printed.

The judgment, including interest as above suggested, is affirmed, with costs to defendants.

Blair, C. J., and Grant, Moore, and Brooke, JJ., concurred.


author: Brooke, J.

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    UNITED STATES GRAPHITE CO. v. SAGINAW CIRCUIT JUDGE.
    1. Appeal and Error — Bill of Exceptions — Denial of Motion por a New Trial.
    Mandamus will issue to compel a circuit judge to incorporate in the bill of exceptions his reasons and opinion filed without a request therefor in denying a motion for a new trial. 3 Comp. Laws, § 10504.
    2. Same — Saving Questions for Review — Time to Except on Refusal of New Trial.
    An appellant may have the period to the settlement of his bill of exceptions in which to except to the denial of his pnotion for a new trial.
    3. Same — Exceptions—Opinion on Motion for New Trial.
    Until the bill of exceptions is settled, the circuit judge may file supplemental reasons, which are subject to exception, and may in a proper case vacate his order and grant a new trial.
    Mandamus by the United States Graphite Company to compel William G. Gage, circuit judge of Saginaw county, to settle a bill of exceptions.
    Submitted October 19, 1909.
    (Calendar No. 23,526.)
    Writ granted November 5, 1909.

      Humphrey & Grant, for relator.

      Beach, O’Keefe & Bochwith, for respondent.
   Brooke, J.

Judgment was entered against relator at the suit of one John B. Lee, on October 12, 1908. Thereafter, and within the time limited by the court, a motion for a new trial was made. This motion was argued on December 21, 1908, and no written demand was made upon the circuit judge to file written reasons upon his denial of said motion. On January 21, 1909, the court denied the motion for a new trial, at the same time filing an opinion in which he set forth at large certain reasons for refusing to grant a new trial. On February 23, 3 909, relator caused to be filed its exceptions in writing to the order overruling its motion for a new trial,' and to each and all of the reasons given by the court in writing in his said opinion. Relator then prepared its bill of exceptions, and included therein its motion for a new trial, the opinion of the court filed upon the denial thereof and its exceptions thereto. When the bill of exceptions was presented to the court for his signature, counsel for Lee urged that the proceedings touching the motion for new trial should not be included, for the reasons: (1) That no written demand had been made upon the court to file written reasons for his denial of the motion; and (2) because exceptions to the opinion of the court had not been filed within 15 days from the date of its filing. The court thereupon declined to incorporate said proceedings in the bill of exceptions. Relator asks that a writ of mandamus issue, requiring the court to include said proceedings.

Respondent, in his return to the order to show cause, issued herein—

“ Denies that he handed down and filed with the clerk of said court an opinion embodying therein his reasons in detail for overruling said motion for a new trial, and for refusing to set aside the verdict and judgment in said cause, but admits that he did file with the clerk of saád court an opinion in said cause, in which he set forth some reasons for denying the motion for a new trial, but respectfully returns and submits to the Supreme Court that no reasons were given by him in this opinion on many of the grounds urged by petitioner for a new trial, and that, if this respondent had been requested to give his reasons for overruling said motion, he would have filed an entirely different document than the one filed in this cause, in that it would have given in full his reasons for denying the motion for a new trial on all the grounds stated in petitioner’s motion.”

An examination of the opinion shows that it covers 18 pages of the printed record; that it purports to consider seriatim the first seven grounds urged by the defendant (relator), and that it concludes with the statement:

“The other errors assigned being merely formal do not, I think, require separate consideration. I am of the opinion that none of them constitutes a ground for a new trial of this case, and the motion is therefore overruled.”

The statute touching the question under consideration is 3 Comp. Laws, § 10504:

The People of the State of Michigan enact, That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.”

It will be noted that nowhere in this section is it made necessary for the party to demand either orally or in writing that the court file written reasons for his refusal to grant a new trial; indeed, it seems to have been contemplated by the legislature (though not expressed) that such written reasons would be filed upon the denial of the motion in every case. At all events, it is a most commendable practice, and when, as in the case at bar, it has been done, the statute clearly gives the defeated party the right to incorporate the opinion in the bill of exceptions.

The authorities cited and'relied upon by respondent are authority only for the proposition that reasons need only be filed when requested in writing previous to or at the time the motion is heard, and that, where no reasons are filed, the proceedings cannot be reviewed on writ of error. They do not touch the question under consideration. Must exceptions thereto be filed within 15 days? Respondent relies upon subdivision e of Circuit Court Rule 26 or upon subdivision e of Circuit Court Rule 2. We are of the opinion that neither of these subdivisions is applicable to the matter under consideration. It cannot be said that exceptions to the reasons for denying the motion for a new trial is in any sense a.pleading, and we believe that all the ends of justice are served if such exceptions are filed in time to be incorporated in the bill of exceptions. Until the bill of exceptions is signed, the court may, as a matter of course, file supplemental reasons which may, as further matter of course, be excepted to, all of which should likewise be incorporated in the bill of exceptions when settled. Or, if the exceptions to his reasons be to him convincing, he may vacate his order denying a new trial and grant the same.

The writ will issue.

Blair, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


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    MILLARD v. HART.
    Contracts — Modification — Implied Contracts — Accord and Satisfaction — Quantum Meruit.
    Within the terms of a contract which bound the plaintiff to cut and deliver logs at a certain price and place, an action lies to recover the contract price, although the parties modified its terms by changing the place of delivery, but fixed no definite price for a shorter haul so agreed upon; and the plaintiff is not limited by the quantum meruit.

    Error to Benzie; Chittenden, J.
    Submitted October 15, 1909.
    (Docket No. 100.)
    Decided November 5, 1909.
    Assumpsit by Lionel Millard against William A. Hart for work and labor. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      M. G. Paul, for appellant.

      D. G. F. Warner, for appellee.
   Brooke, J.

Plaintiff brought suit in assumpsit against defendant for work and labor performed under a written contract as follows:

This agreement, made this 23d day of December, A. D. 1907, by and between L. Millard of the first part and W. A. Hart, of Thompsonville,'Mich., of the second part. Witnesseth, the said party of the first part covenants and agrees to and with the party of the second part as follows: That he, the party of the first part, will cut and deliver the timber on the southeast quarter of the northwest quarter of section 31, township twenty-five north, in range fourteen west (Weldon), in the following manner: All merchantable timber 10 inches and over shall be cut in lengths as far as possible to be in 12 feet, 16 feet lengths, and all timber is to be cut as near the ground as possible, and it shall be delivered to the National Wood Dish Co. mill in the village of Thompsonville, Mich. This work is all to he done this season (1907 and 1908) if possible; should weather conditions prevent this shall be continued next year.

“ It is understood that party of the second part is to pay for all damages caused by crossing land in getting this timber out, but if it exceeds $25 it shall be first submitted to the party of the second part.

“ And the party of the second part covenants and agrees to pay to the said party of the first part for same the sum of $5.50 per M feet lawful money of the United States as follows: $2.00 per M feet when cut and skidded in the woods and the balance of $3.50 per M when delivered to the mill or track.

“In witness whereof the parties to these presents have hereunto set their hands and seals the day and year first above written.

“L. Millaed. [L. S.]

“W. A. Haet. [L. S.]

“ Signed, sealed and delivered in presence of E. M. Dixon.”

Plaintiff commenced work under the contract, and delivered the logs, cut at the village of Thompsonville, as provided in the contract, until February 7, 1908, when the defendant wrote him as follows:

“February 7, 1908.

“ Mr. Millaed.

Dear Sir: I have come to the conclusion to have the logs put out on the M. & N. E. Branch. So I am going away for a few days and you can commence to put them there. Don’t take any stamped ones until I see you.

“W. A. Haet.”

After the receipt of the foregoing notice plaintiff delivered the logs as directed, at the M. & N. E. Branch, which was some miles nearer where they were cut than was Thompsonville. The record shows that upon several occasions, the defendant sought to get the plaintiff to agree to accept a lesser sum per thousand than that specified in the contract, by reason of the shorter haul, but that the plaintiff never did agree to accept any specific sum less than the contract called for. On cross-examination, defendant testified:

iCQ. Didn’t you swear in justice court that he never agreed to take $4 a thousand ?

‘A. Why, I might have in those words.

“Q. Well, as a matter of fact, you and Millard never have got to an agreement as to what he should receive yet?

“A. No, sir.

“Q. There has always been a disagreement between you two in your minds as to this matter ?

“A. Yes, sir; since this has come up.”

It is the claim of the defendant, that, because the place of the delivery was changed by the defendant, the plaintiff consenting thereto, the entire written contract was abrogated and a new one entered upon, and, the parties having been unable to agree as to the new price, the plaintiff should be permitted to recover only upon the quantum meruit. This contention was overruled by the learned circuit judge, who (there being no dispute as to the number of feet delivered, nor as to the amount paid by the defendant upon account) directed a verdict for plaintiff for the balance due under the contract at the contract price. Upon a proposition so plain as that recited, there is no necessity for the citation of authority. Defendant, to serve his own ends, changed the place of delivery, and it cannot be said that the plaintiff, because he accepted this modification of the contract, thereby agreed to accept less than the contract price. That agreed price could only be changed by mutual agreement, which defendant testifies was never reached.

Error is assigned upon the rejection of certain testimony, which we find it unnecessary to consider because of the case made by the written evidence and the testimony of the defendant.

The judgment is affirmed.

Blair, C. J., and Grant, Moore, and McAlvay, JJ., concurred.


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    MICHAELS v. McROY.
    1. Public Officers — Statutes — Liability for Failure to Eequire Contractor’s Bond — Municipal Corporations.
    Trustees of a village who omit to require of a contractor con- * structing a village hall, the bond for protection of material-men and others, under 3 Comp. Laws, § 10743, et seq., are liable to persons furnishing material, who incorrectly supposed that the mechanic’s lien law protected them.
    2. Same — Notice of Failure — Credit.
    Notice to the materialmen before all the lumber was furnished by them that the statutory bond had not been given, did not preclude their recovery unless they proceeded in reliance on the responsibility of the contractors.
    3. Same — Exhaustion of Eemedies at Law.
    Where the contractors, to whom the material was furnished, were shown to be irresponsible and unable to pay the materialmen, an action at law need not be brought against the contractors before suit to charge the trustees can be maintained.

      4. Same — Defenses.
    That the village is under a moral obligation to pay materialmen for the benefit received is not a defense to an action for the neglect of its trustees to require such bond.
    Error to Lapeer; Smith, J.
    Submitted October 14, 1909.
    (Docket No. 44.)
    Decided November 5, 1909.
    Case by Louis Michaels and Edward Michaels, copartners as Michaels Brothers, against Robert McRoy, Charles Marshall, Charles Palmer, Frank Rathsburg, George Ryman, and Joseph Taylor, board of trustees of the village of Imlay City, for failure to require the statutory bond of a contractor for the construction of a public building. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendants on writ of error.
    Affirmed.

      Geer, Williams & Halpin and W. E. Brown, for appellants.

      John Loughnane and Herbert W. Smith, for appellees.
   Brooke, J.

In July, 1902, defendants, who were then s trustees of the village of Imlay City, contracted with Hulbert & Co. to construct a village hall for $6,000. In December of that year plaintiffs established a lumber yard at Imlay City, and furnished Hulbert & Co. some lumber that went into the building. At the time the ccmtract between the village and Hulbert & Co. was made the trustees (defendants herein) did not know of the statute (3 Comp. Laws, §§ 10743-10745), requiring them to take a bond from the contractors to protect laborers and material-men, and no such bond was taken. The plaintiffs furnished the material in ignorance of the statutory requirement, believing that they were protected by the mechanic’s lien act. Hulbert & Co. became financially irresponsible, and were unable to complete their contract. Plaintiffs have brought their suit against the trustees as individuals under the statute. A verdict was directed for the amount claimed in favor of plaintiffs, and defendants have brought ijhG case here by writ of error.

The defendants claim that a verdict should have been directed in their favor, because the evidence showed conclusively that the plaintiffs did not furnish the material, relying for protection upon the statutory requirement as to a bond, but, on the contrary, supposed that they were protected by the mechanic’s lien law. We do not deem it necessary to discuss this proposition, but it may be said that it was doubtless the legislative intent to protect those ignorant of the law, as well as those learned therein.

Testimony was introduced tending to show that, before all the material was furnished, the plaintiffs had actual notice that the bond required by the statute had not been given. Plaintiffs denied such notice. Defendants contended that this raised a question of fact for the jury, and that, if it was determined adversely to plaintiffs, they should be limited in their recovery to the value of the material furnished by them before notice.

Under our view of the case, it is of no consequence whether the plaintiffs knew, or did not know, that no statutory bond had been required, in the absence of testimony tending to show that the plaintiffs had furnished the material after such alleged notice, in reliance upon the financial responsibility of the contractors. The record shows that at the time the notice is claimed to have been given plaintiffs, they were making inquiries as to how they were to be paid, if they furnished the material, and they were assured by the defendants, or some of them, that the village would pay. It is therefore clear that they did not rely for their pay upon the financial responsibility of the contractors.

It is urged by defendants that, in any event, plaintiffs cannot maintain this action until they.have exhausted their remedy against the contractor by suit, and the return of an execution unsatisfied. Plaintiffs testified that they had made numerous demands upon the contractors for their pay, and that payment had not been made, the contractors claiming to be unable to meet the obligation. In addition to this, three of the defendants, Marshall, Rathsburg, and Taylor, testified that as early as December, 1902, the contractors had admitted, to them their inability to complete the building because they had no money. The defendants offered no testimony tending to show that the contractors had any financial responsibility. Under the circumstances of this case, we hold that it was unnecessary for plaintiffs to do more than. they did. When this case was before this court upon the sufficiency of the declaration (Michaels v. McRoy, 148 Mich. 577 [112 N. W. 129]), the court said:

“ A right of action does not accrue immediately upon a failure to require bond. It is only when labor is done or materials are furnished. Until then, there has been no wrong to any particular person, and, until an obligation has become due, there is no right of action. * * * It is incumbent upon the plaintiff to show both wrong and injury.”

There seems to be no doubt that the village received the benefit of the material furnished by plaintiffs, and therefore might with propriety recognize its moral obligation and pay for the same. Stockdale v. School District, 47 Mich. 236 (10 N. W. 349). But this fact cannot militate against the right of the plaintiffs to pursue a legal remedy provided by statute for their protection.

The other assignments of error have been considered, but no discussion of them is deemed necessary.

The judgment is affirmed.

Blair, C. J., and Grant, Moore, and McAlvay, JJ., concurred.