text:
    PEOPLE v. LEWIS.
    1. Appeal and Error — Assignments—Specific Nature —Court Rules.
    Assignments of error should be specific; it’ is insufficient to assign error on objections by number or page of the record. Circuit Court Rule 47.
    2. Intoxicating Liquors — Information —Local-Option Law — Furnishing Liquors.
    An information charging that respondent at a certain tame and place in a dwelling house kept a place where spirituous and intoxicating liquors were given away and furnished, the respondent not being a druggist, etc., and the aforesaid keeping of said place having been in violation of law, is sufficient to sustain a conviction under Act No. 107, Pub. Acts 1909.
    3. Same — Evidence.
    Testimony showing that respondent had a bottle of alcohol and water in his rooms, that several persons came there one Sunday and drank successively out of the bottle until they became intoxicated, that respondent was present, but did not invite any of the persons to drink, tends to sustain the information and supports a verdict of guilty.
    4. Same — Trial—Criminal Law.
    Error was not committed by the court’s stating that he gave the requests of respondent which were applicable to the case. People v. Farrell, 137 Mich. 128 (100 N. W. 264), distinguished.
    Exceptions before sentence from Allegan; Padgham, J.
    Submitted April 20, 1911.
    (Docket No. 124.)
    Decided July 5, 1911.
    Walter Lewis was convicted of keeping a place where intoxicating liquors were furnished in a county that had adopted prohibition.
    Affirmed.

      Franz G. Kuhn, Attorney General, and E. W. Stone, Prosecuting Attorney (Glare E. Hoffman, of counsel), for the people.

      William J. Barnard, for defendant.
   McAlvay, J.

Respondent was prosecuted and convicted upon an information charging him with having on July 24, 1910, in Clyde township, in Allegan county, where the local-option law was in force, unlawfully kept a place where spirituous and intoxicating liquors were sold, stored for sale, and given away and furnished, he not being a druggist or registered pharmacist, etc., in violation of the provisions of the said law and amendments thereto.

The claim on the part of the prosecutor was that respondent kept this place, and there gave away and furnished spirituous and intoxicating liquors on the date named. Respondent was a bachelor, living alone in a house in the township and county named. On the Sunday morning in question two men, Buchanan and Rumsey, went to this place between 6 and 7 o’clock. Respondent at once got out of bed and began to prepare breakfast. There was a bottle of diluted alcohol standing upon the table. Buchanan picked it up, and asked respondent, “What is in it?” Receiving no reply, he took a drink of the alcohol and several more before he left. Rumsey tasted, but did not drink. Respondent did not invite or offer Buchanan the drink. He says he went there to sell respondent a horse. While Buchanan was there Statler came. This man says he arrived about 8 o’clock, and respondent was mixing a pint of “ booze.” It was alcohol and water in a quart bottle. Respondent set it on the table, and Statler took a drink and later two more. He saw a man named Bushee take a drink. This witness remained until the bottle was empty. Bushee testified that he came with Wise, saw the bottle on the table, and took a drink. He saw Statler and Rumsey drink, and says Noble, Rumsey, Bushee, Truax, and Dole were there. Some of these men were under the influence of liquor when they went there. Respondent was not there part of the time. He did not invite them there, and did not invite them to take the liquor. Truax testified that he took two or three drinks. Witness Wise took two drinks that he had “leftover” before he went to respondent’s place, and drank at least one drink from this bottle. He was too drunk at the time to say when he went away. Evidence was admitted which tended to show that several of these parties while there engaged in a fight. Respondent was present while some of the men were drinking. Respondent offered no evidence. A reversal is asked by respondent on account of errors claimed to have been committed.

This court recently called attention to the utter disregard of Circuit Court Rule 47, requiring a detailed assignment of all the alleged errors upon which the appellant proposes to rely and suggested a correction of the practice in that regard. All of these assignments of error are subject to the criticism then made. A sample of four errors assigned reads:

“ (1) The court erred in overruling the objection of respondent’s counsel numbered 1 on the margin of the record.”

Another reads :

“ The court erred in denying the motion of respondent’s counsel to direct a verdict, numbered 6 on the margin of the record.”

Another reads:

“ There was error in the closing argument of the prosecuting attorney to the jury.”

This court has repeatedly decided that assignments not in conformity with this rule will not be considered, and has said that, “when the record affords the appellant the means of making an assignment more specific, we think it should be done. ” In some cases it cannot be done. The instant case, however, is not within that class. Wolfe v. Stack, 153 Mich. 445, 453 (116 N. W. 1010), and cases cited and distinguished. Canerdy v. Railway Co., 156 Mich. 211 (120 N. W. 582), and cases cited.

In two of these assignments of error attention is called to portions of the charge of the court and statements of the court in giving some of respondent’s requests, and also refusing to charge as requested designating the same by letter or number. These assignments of error do not conform with the requirements of the rule, but are given attention because this is a criminal case in which respondent submitted no evidence, and we should satisfy ourselves that the law was correctly stated and the facts proven warranted a conviction.

The statute as amended (Act No. 10?, Pub. Acts 1909, § 1), provides:

“ It shall be unlawful for any person * * * to keep a saloon or any other place where any such liquors * * * are given away or furnished.”

The material portions of the information read:

“That Walter Lewis on the 24th day of July, 1910, at the township of Clyde, in the county of Allegan, did in a dwelling house situate, etc., keep a place where * * * spirituous and intoxicating liquors were * * * given away and furnished, he the said Walter Lewis not being then and there a druggist, etc., contrary, etc., * * and the aforesaid keeping of said place where intoxicating liquors were given away and furnished having then and there been done by the said Walter Lewis in violation,” etc.

The information was sufficient under this statute to charge the offense relied upon. The law absolutely prohibits the selling, giving away, and furnishing spirituous, intoxicating, and other liquors in local-option counties: It is not necessary to allege or prove the carrying on of a continuing business or the intent to do so. It is sufficient for this case to say that the evidence was -uncontradicted as to what occurred there on that day, and indicates that it was at least a very popular resort.

The verdict of the jury which found respondent guilty of the offense charged was warranted by the evidence. The charge of the court correctly stated the law of the case, and we find no error in it.

The respondent’s requests given by the court were not given as respondent’s theory or his view, as is claimed by him. The court stated that he gave those which were applicable to the case, thereby avoiding the error committed in People v. Farrell, 137 Mich. 128 (100 N. W. 264), by doing what was pointed out in that case as proper to be done. The substance of other requests proper to be given was embraced in the main charge. The others were properly refused. An examination of this record disclosed no errors.

The conviction is affirmed.

Moore, Brooke, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, C. J.

license: Public Domain

text:
    EARLY v. INGHAM CIRCUIT JUDGE.
    1. Mandamus — Burden—Temporary Injunction — Discretion.
    In mandamus to compel the circuit court to issue an injunction restraining the enforcement of a judgment entered upon an arbitration award, the burden is on relators to show that in refusing the temporary injunction the court abused its discretion.
    2. Equity —Jurisdiction —Setting Aside Judgments and Proceedings — Arbitration Award.
    The circuit court in chancery has jurisdiction to set aside an award of arbitrators and to issue an injunction to stay the entry of judgment on an award, the proceedings not being stayed by merely filing the bill of complaint.

      3. Same — Arbitrations—Statutes.
    Having invoked the aid of the chancery court, the complainant is not required to pursue the remedy by motion to set aside the award, given by statute. 3 Comp. Laws, §§ 10933, 10945.
    4. Same.
    There appears to be no legal objection to the prosecution of proceedings on the law side of the court to enforce an award and on the equity side to set it aside, although the proceedings at law are at peril of having the award set aside in equity.
    Mandamus by Thomas Early and William Fitzpatrick against Howard Wiest, one of the circuit judges for the county of Ingham, to compel the issuance of a temporary injunction restraining the enforcement of an arbitration award and to secure the entry of an order on the law side of said court staying proceedings pending the determination of the suit in equity.
    Submitted June 6, 1911.
    (Calendar No. 24,521.)
    Writ denied July 5, 1911.

      Tuttle, McArthur & Dunnebacke, for relators.

      Thomas, Cummins & Nichols, for respondent.
   Ostrander, C. J.

The relators and one Daniel W. Tussing submitted a controversy to arbitrators, with an agreement that a judgment should be entered in the circuit court for the county of Ingham upon the award. The arbitrators rendered a decision favorable to Tussing and the next day, December 2, 1910, filed their award. A motion to confirm the award is pending. Relators have not moved to vacate or modify the award, as under the statute they may do. 3 Comp. Laws, § 10932. January 9, 1911, relators filed their sworn bill in the circuit court for the county of Ingham, in chancery, against the said Daniel W. Tussing, in which they pray that the award of the arbitrators be vacated and set aside, and that a temporary injunction issue restraining the said Tussing from taking any proceedings to enforce said award. Other relief is prayed. Defendant answered the bill of complaint, and the answer is verified. The court, upon the bill, answer, and such affidavits and exhibits as were presented, declined to issue the restraining order, whereupon the relators filed their petition in this court, praying that a writ of mandamus issue to compel the said circuit judge to grant a temporary injunction restraining the said defendant “ from any further proceedings upon his motion to confirm the award,” and also requiring him to grant a stay of proceedings in a matter now pending in said circuit court for the county of Ingham, entitled ‘ In the matter of the arbitration of the differences between Daniel W. Tussing and Early & Fitzpatrick,5 until a final hearing and determination55 of the said chancery proceeding. The answer to the order to show cause issued by this court has brought upon the record the motion to confirm the award and the demurrer thereto, the bill of complaint, and the answer thereto, the opinion of the circuit judge, and certain affidavits. The entire return was not printed, so that the court has not before it, except by reference to the files in the office of the clerk, the record considered by the court below in denying the temporary injunction.

The burden is upon relators to show that in refusing the temporary injunction the court below did not use proper discretion, and the cases are few in which this court has interfered to compel the granting of temporary restraining orders, or to set aside such orders. An examination of the bill and answer does not convince us that we should interfere in this case, although there is a consideration, quite apart from the showing of merits, which might have influenced the court below to grant the injunction. That consideration arises out of the apparent incongruity of action, confirming an award and entering judgment thereon, by the law judge, who, as chancellor, must determine whether the award ought to be set aside.

The circuit court, in chancery, has jurisdiction to set aside an award of arbitrators. 3 Comp. Laws, § 10945; Kearney v. Insurance Co., 126 Mich. 246 (85 N. W. 733). It has been held that the filing of a bill for this purpose will not, without injunction, stay the entry of judgment on the award. Seaton v. Kendall, 61 Ill. App. 289; Id., 171 Ill. 410 (49 N. E. 561). Having invoked the aid of the chancery court, relators are not required to pursue the statute remedy of a motion to vacate the award.

However, there appears to be no legal objection to the prosecution of proceedings, on the one side to enforce, and on the other to set aside, an award, although manifestly action at law to enforce the award is at peril of having the award set aside in equity. It is not made to appear that relators, complainants in equity, will suffer injury if the award is confirmed. We may assume that proceedings will be so controlled that neither party will be damaged.

The writ is denied.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


author: Hooker, J.

text:
    ILLINOIS GLASS CO. v. UNITED STATES HORSE-RADISH CO.
    1. Sales — Title—Time of Transfer.
    Under provisions of an agreement that after a specified time goods sold but not shipped to the buyer should be invoiced to the buyer and stored at the expense and risk thereof, title passed at the time they were so invoiced and charged.
    2. Same — Lien—Waiver.
    By delivery to the assignee for the benefit of creditors of the purchaser, the seller, who extended credit for goods which had been sold to the assignor and title to which had passed before assignment, waived any right it may have had to a seller’s lien.

      3. Same.
    And by joining in the execution of the assignment for the benefit of creditors and consenting therein to an extension of credit upon its indebtedness, the vendor waived all right to retain in its hands goods to which title had passed.
    4. Same — Assignments fob the Benefit of Cbeditobs.
    The assignee could not by agreement prefer one creditor over another, or without new consideration relinquish title to property belonging to the assignor.
    Appeal from Saginaw; Gage, J.
    Submitted' June 6, 1911.
    (Docket No. 5.)
    Decided July 5, 1911.
    Rehearing denied September 29, 1911.
    Bill by the Illinois Glass Company against the United States Horse-Radish Company and John B. Eddington, personally and as assignee for the benefit of creditors of the defendant company, to obtain the allowance of an account as a preferred claim. From a decree for complainant, Wallis Craig Smith, one of the creditors of the defendant corporation, appeals.
    Modified and affirmed.

      Lucking, Emmons & Helfman (Weadock & Weadock, of counsel), for complainant.

      Wallis Craig Smith, in pro. per.

   Hooker, J.

The complainant and the United States Horse-Radish Company were, respectively, Illinois and Michigan corporations. The latter prepared and marketed horse-radish at and from Saginaw, Mich. Wallis Craig Smith was a stockholder, president, and a creditor to a large amount of the Horse-Radish Company, and he is the appealing creditor in this proceeding, which relates to a claim of the Illinois Glass Company. A chronological statement of certain facts will make the controversy plain.

The relations of the parties began with a contract of which the following is a copy:

“contract.
[Notation in writing at top of contract.]
“ O. K. billed 8 — 31—08. T. M. L.
8 — 16—07.
“ Illinois Glass Company hereby agrees to sell, and the U. S. Horse-Radish Co. of Saginaw, Mich., hereby agrees to buy, the following described articles in the quantity and at such prices as are herein indicated, subject to terms and conditions herein below set forth, it being understood and agreed that the quantities specified are necessarily subject to reasonable variations above or below the quantities in gross that are shown.
Gross. Articles. Price.
7,500 P. M. horse-radish bottles 2.35
“All breakage in transit 3 per cent, or under to be borne by buyer. All breakage in excess of 3 per cent, to be borne by seller. The buyer reserves the right to increase this contract to a total of not to exceed 50 car loads at above price up to Jan. 1st, ’08.
“Terms: Thirty days net or 1 per cent, discount for cash if paid within ten days from date of invoice. Remittance to be made in New York or Chicago Exchange. Prices herein shown are f. o. b. Saginaw, Michigan.
' “Shipments: Shipments to be made as closely as possible to directions as supplied by buyer upon specifications to be furnished at least thirty (30) days in advance of shipping date. All articles on this contract that are unshipped and in the hands of the Illinois Glass Co., August 1st, ’08, shall be invoiced to buyer same as if shipment had actually been made, and therefore stored at the risk and expense of buyer, including expense of insurance.
“Conditions: The responsibility of Illinois Glass Co. shall cease on the delivery of articles covered by this contract to the transportation company, and upon securing a receipt therefor in good condition, and it shall not be liable for non-fulfillment of this contract caused by fires, strikes, delays in transit, or other causes beyond its control. This contract shall be binding on Illinois Glass Co. only after approval by an officer of said company at its general office, Alton, 111., it being expressly understood that there are no verbal agreements contrary to the terms within expressed.
[Signed] “ K. G. Smith,
“ For Illinois Glass Co.
“U. S. Horse-Radish Co.,
“E. F.Vogt, “Secretary.
“ Approved:
“Chas. Levis, Sec’y,
“General Office.”

We understand that the date of the execution of this contract was August 16, ISO1?.

On August 31, 1908, there remained in the possession of complainant about five car loads of bottles, which were on that date invoiced to the Horse-Radish Company, and charged to it upon complainant’s books. On January 11, 1909, the Horse-Radish Company wrote complainant agreeing to take these bottles in four or five separate shipments of one car load each, to be shipped on the regular 30-day .basis at dates stated in the letter, and directed that no more bottles be made under the contract. Two shipments were made before March 30th, amounting to $ 1,515. March 29th the Horse-Radish Company directed the suspension of shipments until further notice. On March 30th the complainant was approached on behalf of the Horse-Radish Company and one or more of its creditors by a Mr. Ipsen, who asked its signature to an agreement between the Horse-Radish Company and John B. Eddington and some of the creditors of the former, whereby the Horse-Radish Company assigned its property to Eddington for the benefit of creditors, with authority to continue the business for a year, “conducting the same as far as possible on a cash basis,” with a view to full payment of its debts and the continuance of the business.

The creditors, by signing, consented to the arrangement and agreed to extend the time of payment of their respective claims for the period of a year, or such part thereof as should be required by the trustee, acting under and in pursuance of the agreement. The amounts of the respective claims followed the signatures of the creditors; complainant’s being stated as |4,089.

On April 27, 1909, Eddington wrote to the creditors, asking permission to do business on credit, and stating:

“Since the 80th day of March, under and by virtue of certain agreements heretofore entered into between the United States Horse-Radish Company, a corporation, of Saginaw, Michigan, yourself, as a creditor of said company, and me, I have been conducting the business of said United States Horse-Radish Company as trustee for it and its creditors. It already is clear to me that it will be impossible to conduct this business for a year or more or less, on substantially a cash basis, as the agreements above referred to contemplate, but that it will be necessary for me, as trustee, in the conduct of the business, to secure substantial credit in certain directions, otherwise it will be impossible to continue.
“ Certain parties from whom I have attempted to secure merchandise on credit have refused to extend such credit unless it is understood and agreed that their indebtedness so created shall have priority of payment out of the assets of the company as against the indebtedness due and owing present creditors who have entered into said extension agreements. In order that I may continue this business as trustee, and conserve the property for the benefit of its creditors, it will be necessary for me to enter into proper agreements with such parties from whom I may hereafter seek credit as trustee, and I, therefore, respectfully request you to advise me forthwith, and in writing of your acquiescence in permitting me in the exercise of my judgment as trustee in the conduct of the business, to create whatever indebtedness I may find it necessary to create, and permitting me to agree with any person or concern that will extend such credit, that such indebtedness so created shall have priority in its payment over any existing indebtedness now due the parties who have theretofore signed the agreement on March 30th and April 8th, or either of them.”

Complainant replied as follows:

“Hear Sir:
“We have your favor of the 27th inst., and have carefully noted contents, and must say that we are not surprised to learn of the position in which you find yourself as trustee. It is but natural that those from whom you seek credit will want to know how, and when, and by whom the bills are going to be paid, and they do not feel that they should be called upon to permit a further increase of their present accounts.
“Before signing the blank you send us, we would like to have you define your attitude toward us in regard to the position we find ourselves in, because of this new feature which now presents itself and in which we are very much interested and seem to be at a great disadvantage as compared with other creditors.
“ As the manager of your credit department, Mr. Ipsen, probably reported to you, we have certain ware on hand here billed to the United States Horse-Radish Co., under the date of August 31st, in accordance with their contract, which you, of course, as trustee, assume. At the time this trouble arose, we had made two shipments applying on this bill, sending the U. S. Horse-Radish Co. memo, bills of the amounts, which bills they have agreed to pay on a thirty-day basis. These two bills are the only ones of which Mr. Ipsen had any record, and he had not been made aware of the fact that there are any other goods held here under contract to the amount of about $3,000.00. We gave him a statement of the account as it shows on our books and signed an agreement for the amount thereof.
“Because of the question which has now arisen, it seems that in justice to us these two memo, bills are the only ones which should be taken into account, and that when the goods we have on hand here are ordered out, memo, bills should be issued in regular form and the bills paid as prior claims to the bills already issued and which were in your hands at the time the trouble arose. If this ruling should not obtain, we would be furnishing ware for the benefit of other creditors, who would derive some profit, while we would be holding the bag to the extent of the value of the ware we now have on hand.”

To this Eddington answered:

Gentlemen:
“ We are in receipt of your letter of the 28th, and note carefully what you have to say in regard to ware on hand, and it is our understanding that Mr. Ipsen agreed with you that your claim was extended on the basis of product on ware that had been shipped and was in the hands of the U. S. Horse-Radish Company. He also explained to me in regard to the ware you had on hand, which is manufactured for the U. S. Horse-Radish Company. You understand we have considerable of this ware on hand, but as soon as the season opens up on horse-radish product, I expect to make arrangements for the selling of this product so as to be able to handle a good volume during the next season and will make every effort to use up the ware on hand and as much more as possible, and, when placing an order for this ware, will consider it a preferred claim and will see that you receive your money for same promptly.
“Will be glad to hear from you if you feel that this arrangement is satisfactory and believe it is all that you could expect under present conditions.
“The letter mailed you we believe should be satisfactory to all creditors, as I will be unable to handle the business successfully without being able to obtain credit.”

Complainant afterward shipped the bottles. It admits that the bottles shipped prior to March 30, 1909, are not preferred claims, but insists that those shipped later are, and the court so held, and allowed the claim as such. From this allowance, another creditor has appealed.

We are of the opinion that the title to the bottles in controversy passed to the Horse-Radish Company at the time they were invoiced, and charged to it, and the contract price became a valid obligation against it, falling due 30 days later.

Whatever lien the complainant may have had on the three cars, if any, was lost by the delivery to the assignee, which it was bound to make under the trust agreement which provided for an extension of credit for goods, the title to which had already passed, and which waived the lien.

The correspondence under which complainant claims a contract right to preference does not give him such right. The creditors already had a right (given by the trust agreement) to the application of all assets of the HorseRadish Company in liquidation of its debts, and that all existing creditors should share in such assets. The assignee had no authority to make complainant a preferred creditor as to these goods, or relinquish title without a new consideration.

It is fair to say that the correspondence was susceptible of two interpretations, and counsel’s claim that there was a misunderstanding between them as to the assignee’s meaning is not an unreasonable one. This is unimportant, however, except that it tends to explain and negative the charge of bad faith.

Complainant testified that when it signed the trust agreement it was upon the express agreement that this was to be a preferred claim as to the unshipped cars. This was objected to as tending to contradict the written agreement by parol. We understand that fraud was not claimed. This testimony was denied by Ipsen, and, taking the circumstances into consideration, we are satisfied that no such agreement was made. Counsel’s brief leads us to infer that they claim that their client was discriminated against in favor of other creditors having similar claims; but we find nothing in the record so indicating, and the allowance of this as a preferred claim would not be the proper way to redress another improper allowance.

The order must be modified in accordance with this opinion; no part of complainant’s claim will be preferred. The amount of the claim we understand not to be questioned in any other respect. The assignee will recover costs of this court.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ., concurred.


author: Moore, J.

text:
    MERCHANTS’ NATIONAL BANK v. WADSWORTH.
    1. Bills and Notes — Burden of Proof — Holder in Due Course — Fraud.
    Where the defense to an action on a promissory note was that the original indorsee fraudulently misrepresented the quality and condition of a stallion for which the notes were given, the burden was on the holder to show that the note was purchased without notice of its infirmities.
    3. Same.
    The evidence for defendants that fraud was committed in the negotiation of the notes being uncontradicted, and no evidence to show the good faith of plaintiff having been offered, a verdict and judgment for defendants was supported by the record.
    Error to Hillsdale; Chester, J.
    Submitted June 7, 1911.
    (Docket No. 9.)
    Decided July 5, 1911.
    Assumpsit by the Merchants’ National Bank against Fred B. Wadsworth and Burton A. Bowditch on certain promissory notes. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Be Witt G. Wilson and Frankhauser & Cornell, for appellant.

      Fellows & Chandler, for appellees.
   Moore, J.

The plaintiff brought suit on two notes which are alike except as to time when due. We insert but one of the notes. It reads as follows:

“60.00. Pittsford, Mich., Aug. 17th, 1906.
“Aug. 1st, 1909, after date I promise to pay to Fred Ordway, or bearer, sixty dollars at-value received, with interest at the rate of six per cent, payable annually.
[Signed] “Fred B. Wadsworth.
“B. A. Bowditch.”

On the back of said notes appears the following:

“ Fred Ordway.” “ J. Crouch & Son.” “ Pay to any hank or banker or order. Merchants’ National Bank, La Fayette, Ind., W. G. Gude, Cashier.”

The defendants pleaded the general issue and gave notice that the notes were obtained by fraud to which J, Crouch & Son were parties; that the plaintiff was not a bona fide holder of the notes; that it is the agent of J. Crouch & Son; that the notes did not come into its possession until two or more interest payments were past due and unpaid. The case was tried before a jury. From a verdict and judgment in favor of the defendants, the case is brought here by writ of error.

Counsel for appellant say in their brief (we quote):

“ The sole question to be determined in this case is whether or not the Merchants’National Bank were the holders of the notes in question in such a manner as to entitle them to maintain an action on the notes.”

And that a verdict should have been directed in favor of the plaintiff. Defendants insist that the question is whether the plaintiff is entitled to maintain an action on the notes freed from the defenses which exist between the makers of the notes and the payee, and counsel say the only mistake the circuit judge made was in declining to direct a verdict in favor of defendants. Not all of the testimony taken appears in the record, but the following does appear:

The said defendants, to maintain and prove the issue on their part, produced 11 witnesses who gave evidence, in substance, that the transaction which resulted in the giving of the two notes in suit was fraudulent, and that the sale of the horse was a fraud upon the defendants, perpetrated by Ordway and J. Crouch & Son, which evidence was not contradicted by the plaintiff, the fraud proven being the fraud set up in the defendants’ plea and notice relating to that question, but these witnesses had no knowledge and gave no evidence as to whether or not> plaintiff was the owner of the note, or held it as collateral security for a loan, or whether it was a mere collecting agency for J. Crouch & Son. The record contains all the evidence submitted at the trial on the question as to whether the plaintiff was the owner of said notes, or held them as collateral, or was simply a collecting agent. Defendants also gave testimony showing that the horse Circus was tendered back to Fred Ordway as soon as defendants learned of the fraud.”

The testimony which is set out in the record is that of the stenographer of J. Crouch & Son for more than five years, who testified in detail about their method of doing business and especially with reference to their dealings with the bank. He left the employ of J. Crouch & Son before the notes in question came to the hands of the bank. The cashier of the bank also testified. His knowledge of the transaction seemed to be of the most general character. His claim was that the bank held the notes as collateral security to a loan of $10,000 which the bank had made to J. Crouch & Son which he at first stated was made in May, 1909, but afterwards testified was made at a later date. He testified in part:

“I will ascertain the amount of the loan we made to Crouch & Son at the time we took these notes, and the amount of collateral we received for the loan. Jephthah Crouch is a stockholder of the Merchants’ National Bank. He has held a nominal amount of stock for a number of years, seven or eight years. He has been a director since the first of last year. He was made a director the first of last year, January, 1910.
“ Q. You stated to the commissioner that he had been a director of the bank since the first of last year ?
“A. No; he .had not been since the first of last year. The 1st of January, 1910, my impression is. We put one or two directors on the board the latter part of last year, and increased the directors the first of this year two or three additional members. I am not positive whether Mr. Crouch was elected the last of last year or the first of this year.
"Q. Have you any agreement with J. Crouch & Son other than what you have stated regarding the papers and notes that were placed in your hands by them ?
“A. We have a written agreement between J. Crouch & Son and the bank respecting notes that are left for collection.
“Q. What is the date of that agreement ?
“A. I could not say. Some few years back.”

He failed to produce any books of the bank or to ascertain the amount of the collateral or to produce the written agreement. No one was produced who claimed to have personal knowledge of what occurred at the time the notes came into the hands of the bank. In view of the undisputed evidence that the notes were obtained by fraud and the paucity of the evidence on the part of the bank, the language of Justice Hooker, speaking for the court in Thompson v. Village of Mecosta, 127 Mich. 522 (86 N. W. 1044), would seem to be quite in point:

“ It was incumbent upon the plaintiffs to show that the bond was purchased without notice of its infirmities, and counsel for defendant claim that the proof does not show it. The evidence is said to show that it was taken in the course of business at the bank. This testimony is based upon the books of the bank rather than the recollection of the transaction. It does not appear that the employé of the bank who took the bond from the Hutchinson Manufacturing Company is known. Certainly it is not clear that he was produced as a witness. The burden being on the plaintiffs, the presumption is that it bought with notice. Unless the fact that the bond was taken in the course of the bank’s business raises a presumption that it was taken without notice, the plaintiffs have failed to offer any proof of a want of notice. Counsel for plaintiffs contend that such presumption arises, and, if it does, we cannot question the finding of the circuit judge. Newkirk, the president of the bank, gave the only testimony upon the subject. He did not say that the transaction was within his personal knowledge or recollection. The only showing that it was purchased in the course of business is the fact that the bookkeeping of the bank shows that it was purchased and applied on the Hutchinson Manufacturing Company’s note; but the showing made is as consistent with notice as with a want of it. Why should it, then, be assumed that there was no notice, when the evidence of what the transaction really was is peculiarly within the control of the bank, and the burden of proving the negative is imposed upon the plaintiffs? Want of notice is a substantive fact to be proved, and a want of evidence upon the subject does not prove such fact. Counsel say that ‘ the only difference between the case of Drovers’ Nat. Bank v. Potvin [116 Mich. 474, 74 N. W. 724], supra, and this case is that in that case the cashier testified to the conclusion that the bank had no notice, while here the ex-cashier swore to the exact facts.’ The trouble is that the ex-cashier has not testified about the transaction, and apparently knows nothing about it. We think the plaintiffs failed to show that the bank was a bona fide purchaser. See John Hancock Mut. Life Ins. Co. v. City of Huron [C. C.], 80 Fed. 652. There is no testimony tending to show whether the plaintiffs were bona fide purchasers or not. Tilden v. Barnard, 43 Mich. 376 (5 N. W. 420, 38 Am. Rep. 197).”

The judgment is affirmed.

Ostrander, C. J., and Bird, Hooker, and McAlvay, JJ., concurred.


text:
    ALEXANDER v. WEISHUHN.
    1. Contracts — Sales — Validity — Legality — Intoxicating Liquors.
    The sale of a saloon business, fixtures, merchandise and the seller’s license, so as to enable the buyer to continue in business under the license, is void. Act No. 291, Pub. Acts 1909.
    2. Same — Replevin—Title.
    Since title did not pass by virtue of the invalid contract, the seller is entitled to replevy the property on default of the purchaser.
    Error to Charlevoix; Mayne, J.
    Submitted June 7, 1911.
    (Docket No. 15.)
    Decided July 5, 1911.

      Replevin by Charles R. Alexander and Andrew E. Alexander, copartners as Alexander Brothers, against Peter Weishuhn. A judgment for plaintiffs on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      J. J. Tweddle, for appellant.

      Nicholas & Nicholas, for appellees.
   Hooker, J.

The plaintiffs were retailers of intoxicating liquors, doing business under a license from the State. Act No. 291, Pub. Acts 1909. A sale of the business, with their stock in trade, was made to the defendant; their contract being put in writing, as follows:

“contract.
“Memorandum of agreement, made this 19th day of September, A. D. 1908, by and between Charles R. Alexander and Andrew E. Alexander, the parties comprising the copartnership firm of Alexander Bros., of East Jordan, Mich., party of the first part, and Joseph Erler and Peter Weishuhn, copartners, and comprising the firm of Erler & Weishuhn, parties of the second part, witnesseth:
“ Said parties, for and in consideration of the sum of one thousand two hundred dollars, to be paid them at the time and in the manner hereinafter provided, hereby agree to sell to said parties of the second part their stock of liquors, consisting of whisky and wines and other liquors of like nature, also all cigars, one cash register, one iron safe, one desk, and all other property belonging to said first parties, jointly, and now in use in their place of business in what is known as the Walsted Building, on Mill street, in the village of East Jordan, Michigan. Payments to be made as follows, to wit: Three hundred dollars upon the execution and delivery of this contract, one hundred dollars September 26, 1908, and two hundred dollars October 26, 1908, and one hundred dollars each month thereafter, on the 26th thereof, until the full sum of twelve hundred dollars has been paid. Title to said described liquors and other described property to be and remain in said first parties until the purchase price is fully paid, and possession of said premises and the property hereinbefore described to be given to said second parties when this instrument is signed by the parties hereto, and the first payment made to said Alexander Bros.
“And the said Joseph Erler and Peter Weishuhn, the parties of the second part, hereby purchase of said first parties the stock of liquors and other property heretofore described, and hereby promise and agree to pay them for the same the sum of twelve hundred dollars, on the terms and conditions heretofore mentioned, viz.: Three hundred dollars upon the execution and delivery of this contract, one hundred dollars on or before September 26, 1908, two hundred dollars on or before October 26, 1908, and one hundred dollars each month thereafter on the 26th thereof, until the full sum mentioned as the consideration for the transfer of the property before described is fully paid and satisfied. ;
“It is mutually agreed, and so understood, by and between the parties hereto, that so soon as this agreement is signed by the respective parties, that from the time said second parties take possession of said premises and said stock of liquors, said second parties shall save harmless said first parties from any losses, occasioned through violation of law or otherwise of said second parties, or through the acts or omissions of the agents or employés of said second parties, and that said first parties shall have a lien on said stock of liquors and other property sold said second parties, as well as a lien on all subsequent purchases of liquors made by said second parties, which shall be in the nature of a chattel mortgage, with all the rights of mortgagees of chattel property, which shall continue in full force and effect, any law to the contrary, so long as any balance shall remain due to said first parties, on this contract of purchase, and so long as there remain any undischarged obligations of said second parties which as a matter of right should be paid by them, but which said second parties permit to be in default for the period of thirty days after the same should have been satisfied; and it is expressly agreed by said second parties that said first parties shall have the right, in case of default by said second parties in any of the terms and conditions heretofore mentioned, and which default shall continue for the period of thirty days, to take possession of any of such liquors, cigars, and other property which at such time may be in possession of said second parties, and sell the same either at public or private sale upon ten days’ notice to said second parties of the intention of said first parties to sell, and that any balance that may arise from the sale aforesaid, after paying said first parties what may be due by reason of such default, shall be paid to said second parties, their heirs and assigns.
“It is further agreed, by and between the parties hereto, that all goods purchased by said second parties, subsequent to the execution of this agreement, which are to be used in and sold from the saloon conducted by the said Alexander Bros., in said Walsted Building, shall be purchased by said second parties at their own risk and expense, but shipped in the name of Alexander Bros, to East Jordan, Michigan, but that in no event shall it be construed that this license to ship goods in the names of said first parties is a purchase by them for the use of said second parties; and the right to ship goods purchased by said second party in the name of said first party shall be discontinued on and after May 1, 1909.
“It is further agreed, by and between the parties hereto, that any liquors, cigars, or other property covered by this sale is free and clear from any and all liens of whatsoever name or nature, and that said first parties shall protect said second parties from any loss or damage by reason of any incumbrance being upon either stock or other property contracted to the said second parties.
“ Witness our hands the day and year first above written. In duplicate.
“Alexander Bros.,
“By Andrew E. Alexander.
“Joseph Erler,
“Peter Weishuhn.”

Payments aggregating $700 were made by defendant. Demand being made for the next payment falling due, defendant refused to pay, and after waiting 30 days plaintiffs replevied the property; and defendant has appealed from a judgment in plaintiffs’ favor.

The defendant’s counsel argue for reversal upon the following grounds:

(1) That the contract is against public policy, and therefore void.
(2) The sale of this stock was a sale at wholesale, contrary to the statute; plaintiffs having filed no bond nor taken any license as wholesalers.
(3) The plaintiffs made the sale with the knowledge that the property sold to defendant was going to be used in an illegal way.

The learned circuit judge held that—

“If the contract is held to be void, title never passed. * * * If this contract were void, neither party could enforce their rights. Neither party would have any rights under it. It would be absolutely void. The goods would remain in the plaintiff. And in either event, gentlemen, it is my duty to instruct you that you must bring in a verdict for the plaintiff.”

In this the court did not err, as will appear from the following cases: Tucker v. Mowrey, 12 Mich. 378; Benedict v. Bachelder, 24 Mich. 425 (9 Am. Rep. 130); Winfield v. Dodge, 45 Mich. 355 (7 N. W. 906, 40 Am. Rep. 476). And see Hyler v. Nolan, 45 Mich. 357 (7 N. W. 910), as to parol proof of consideration. Brazee v. Bryant, 50 Mich. 136 (15 N. W. 49); Searles v. Reed, 63 Mich. 485 (29 N. W. 884); Costello v. Ten Eyck, 86 Mich. 353 (49 N. W. 152, 24 Am. St. Rep. 128); Arbuckle v. Reaume, 96 Mich. 243 (55 N. W. 808); Aspell v. Hosbein, 98 Mich. 121 (57 N. W. 27); Havey v. Petrie, 100 Mich. 192 (59 N. W. 187); Pillen v. Erickson, 125 Mich. 68 (83 N. W. 1023); Harris v. Chamberlain, 126 Mich. 283 (85 N. W. 728); Acme Electrical, etc., Co. v. Van Derbeck, 127 Mich. 341 (86 N. W. 786, 89 Am. St. Rep. 476).

The judgment is affirmed.

Ostrander, O. J., and Bird, Moore, and McAlvay, JJ., concurred.


text:
    A. B. KLISE LUMBER CO. v. EAST JORDAN LUMBER CO.
    1. Contracts — Sales—Covenants—Independent or Severable Provisions.
    By the provisions of a contract of sale of lumber to defendant at prices and terms named, stipulating that plaintiff should carry the merchandise by boat at rates subject to change after October 1st, defendant to have an option to charter another boat if the parties should fail to agree on rates, the parties entered into a nonseparable contract, which was broken by plaintiff’s refusal to carry out the provision as to carriage.
    2. Same.
    Unless the parties disagreed as to rates, plaintiff had no right to insist on the buyer’s chartering another boat.
    8. Same — Construction—Reasonable Time.
    And where the parties in their correspondence treated the contract as fixing the time of delivery in the fall, plaintiff’s contention that it was sufficient to have delivered the lumber in the spring is not sustainable.
    4. Same.
    And plaintiff could not hold defendant upon an offer made by defendant to accept the lumber in the spring, to be held at the risk of plaintiff who refused to accept the proposition and insisted that there was no obligation to deliver the merchandise after October first.
    Error to Charlevoix; Mayne, J.
    Submitted June 8, 1911.
    (Docket No. 20.)

    Decided July 5, 1911.
    Assumpsit by the A. B. Klise Lumber Company against the East Jordan Lumber Company on a contract of sale of lumber. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      B. W. Kane, for appellant.

      Nicholas & Nicholas, for appellee.

      The parties to this suit made the contract following:
    “Sturgeon Bay, Mich., Jan. 8, 1907.
    “The A. B. Klise Lumber Company of Sturgeon Bay, Emmet county, Mich., have, on the 8th day of January, 1907, sold to the East Jordan Lumber Co., of East Jordan, Charlevoix county, Mich., their cut of hemlock for the season of 1907, estimated at two million, at the following prices:
    “Piece stuff merchantable, 10, 12, 14, 16, foot lengths, $15.00;
    “Piece stuff merchantable, 18 foot lengths, 16.00;
    “ Piece stuff merchantable, 20 foot lengths, 17.00;
    “Boards not more than necessary for sizing, Nos. 1 and 2, 16.00;
    “All culls from the above lumber, 10.00.
    “ These prices are F. O. B. rail of vessel Sturgeon Bay, Mich.
    “Terms-: Sixty days net, or 2 per cent, in ten days from date of invoice. To be inspected at shipping point by competent inspector mutually agreed upon, each paying one-half inspection fees. Lumber to be cut into multiples of four inch as far as consistent with economical manufacture, but not to make a specialty of cutting 2-4. Our boat to carry this lumber to Lake Michigan points at $1.50 and Cleveland, Ohio, or points this side at $2.00, these prices subject to change after Oct. 1, 1907. If price cannot be arrived at, the East Jordan Lumber Co. may charter other boats.
    “Yours truly,
    “A. B. Klise Lumber Co.
    “A. B. Klise, Pres. A. B. K. “Accepted East Jordan Lumber Co.,
    “Per W. P. Porter.”
    The season’s cut of lumber was finished about October 1st. Four cargoes of lumber were delivered, carried in plaintiff’s boat. A cargo for the boat was from 300,000 to 340,000 feet of lumber. On October 23d there remained undelivered 184,500 feet, concerning which the controversy arises. Plaintiff wrote defendant that it expected to deliver it in Cleveland early in November. Later, November 1st, plaintiff wrote defendant that the vessel had been delayed and had so much work that it would be impossible to deliver the lumber that year, expressing a willingness to put it “over the rail ” at any time, and offering to carry it over at defendant’s risk, and freight it not later than the second cargo in the spring, putting with it enough other lumber at contract prices to make a cargo. To this defendant sent the following reply:
    “East Jordan, Mich., Nov. 2nd, 1907. “A. B. Klise Lumber Co.,
    “ Sturgeon Bay, Mich.
    “ Gentlemen:

      “ Replying to yours of the 1st inst., we note you have 200 M. feet of hemlock on hand, and that the ‘Gill’ cannot carry this this fall. After receiving your letter of October 23rd, in which you stated that the ‘ Gill ’ would take this to Cleveland some time in November, we advised the Poote Lumber Company of this accordingly. It would no doubt be impossible for them to ship this small quantity now, and it would, we think, be better to cancel the balance of the order.
    “ Trusting this will be satisfactory, we are, “Yours truly,
    “East Jordan Lumber Co.”
    Plaintiff refused to cancel the contract as to the balance of the lumber. Defendant replied that if plaintiff would not deliver the lumber, and wished to carry it until spring at its own risk, and then deliver it, such a course would be satisfactory; otherwise, it wished the balance of order canceled. This proposal the plaintiff refused. “ If you wish to leave it here until spring,” plaintiff wrote, “ all right; but you must distinctly understand that it is your property.” This on November 11th. On November 20th, plaintiff wrote defendant:
    “By reference to contract you will find that our freight agreement expired October 1st. Now, we cannot deliver a part cargo, and we do not care to cancel order. To put the matter very plainly, it is up to you to either freight the lumber or take enough more to make a cargo for the ‘Gill.’”

      Still later, on January 8, 1908, plaintiff wrote:
    “Neither were we to deliver after 1st of Oct., unless price was agreed upon. We did, however, deliver one load, and we are not altogether sure but that we are entitled to collect extra freight on this.”
    December 12, 1907, plaintiff wrote: “The following stock has been cut on your contract and remains in pile here. We expect to deliver it early in the spring” — with a statement of the quantity. Defendant, claiming to have resold the lumber, advised plaintiff it would consult its vendee, and, if it would take the lumber in the spring, would so advise plaintiff; if it would not accept it in the spring, plaintiff might consider the order canceled. Later, it notified plaintiff that its customer would not take the lumber in the spring.
    Plaintiff declared upon the common counts in assumpsit and in a special count set up the contract, alleging performance on its part and the failure and neglect of defendant to join it in inspecting the lumber, failure to provide a proper boat, or vessel, upon the rail of which plaintiff could deliver the lumber, refusal to pay plaintiff for the lumber. Defendant pleaded the general issue, the cause was tried, defendant introduced no testimony, and a verdict for defendant was directed. This direction is the ground of the single assignment of error. The contentions of plaintiff (appellant) are—
    (1) That defendant breached the contract (a) byrefusing to send a boat for the lumber in 1907, (6) by refusing to abide by its offer to allow plaintiff to carry the lumber at its own risk until spring and then freight it for defendant, after said offer had been accepted by plaintiff; (2) the contract fixes no term for completing transportation of the lumber, hence a reasonable time was contemplated, and what was a reasonable time was a question of fact to be determined by the jury; (8) the contract is severable, and breach of the contract to transport the lumber, if there was a breach, did not excuse defendant for refusing to perform the contract of sale; (4) the contract for transportation is not mutual, and therefore might be disregarded by either party without incurring liability to the other.
   Ostrander, C. J.

(after stating the facts). We construe the writing in question as an offer of plaintiff to sell and to transport lumber. There is no reason for saying that plaintiff would have offered the lumber without the provision for carriage, none that defendant would have purchased the lumber unless plaintiff would transport it. The right of defendant to charter a boat to carry the lumber was subject to a disagreement about carrying charges after October 1st. There was no such disagreement. There appears to have been no reason, except that the cargo was a small one, for refusing to deliver the lumber in question at Cleveland as other cargoes had been delivered. There was a refusal by plaintiff to transport the lumber and a proposal to make some other arrangement. No other arrangement was made.

The contention of the plaintiff that a new arrangement was made and receded from by defendant, if it is important in an action for damages for breach of the original contract, is not supported by the testimony. Plaintiff’s letter of December 12th does not purport to be an acceptance of defendant’s proposal that the lumber be carried over at the risk and expense of plaintiff and delivered in the spring. And we find no reason for saying that this proposal of defendant was a continuing one. It had been emphatically refused, and after it was made plaintiff had indicated that as it construed the contract it owed no duty to defendant to transport the lumber. Considered as an offer on the part of plaintiff to deliver the lumber in the spring, it was refused. The contention that there is involved here the question whether delivery of the lumber in the spring would be a reasonable performance of the contract is opposed to the entire tone and spirit of the correspondence which was carried on. The case is disposed of by saying that we do not find any testimony tending to prove a breach by defendant of the contract sued upon. On the contrary, the testimony tends to prove nonperformance by the plaintiff.

It follows that the judgment ought to be affirmed. It is so ordered.

Bird, Hooker, Moore, and McAlvay, JJ., concurred.


text:
    LADIES OF THE MODERN MACCABEES v. DALEY.
    1. Insurance — Contracts —Agreement not to Change Beneficiaries.
    Where insured took out a policy on her life with the understanding that the beneficiaries, two of her children, should keep up the premiums, and later several changes were successively made in beneficiaries without any objection on the pai’t of the children, the evidence is held to be insufficient to prove that there was a contract not to change beneficiaries.

    2. Same — Fraternal Benefit Associations — Change of Beneficiary.
    The original beneficiaries of a policy of insurance in a fraternal beneficiary association cannot object that the insurer permitted a change of the beneficiaries without a strict compliance with its by-laws.
    3. Same — Trusts—Decree.
    Under testimony of the last beneficiary tending to show that she held the fund in trust for others, the decree should define the purpose for which the trust was created, although the trust was not pleaded.
    4. Same.
    But the trust was a personal trust and could not be conferred on another nor could its administration be assumed by the court.
    5. Same — Costs.
    Costs of the appeal should be awarded to the appellant trustee who had not concealed the true facts and who prevailed as to her contentions.
    Appeal from Saginaw; Kendrick, J.
    Submitted June 9, 1911.
    (Docket No. 32.)
    Decided July 5, 1911.
    Bill of interpleader by the Ladies of the Modern Maccabees, a domestic corporation, against Mary E. Daley, Agnes Hatch, and Patrick O’Grady. Prom a decree awarding to defendant Mary E. Daley a part of the relief claimed, all the defendants appeal.
    Modified and affirmed.

      A. Elwood Snow, for defendants Hatch and O’Grady.

      George C. Ryan, for defendant Daley.

       As to power of insured to destroy rights of beneficiaries, see note in 49 L. R. A. 737.

   Hooker, J.

The complainant’s bill was an inter-pleader to ascertain the ownership of a fund due upon a benefit certificate issued by the complainant. The defendants answered, and the cause was heard between them upon the merits. The three defendants have all appealed from the decree. The evidence shows that' on May 7, 1904, Catherine O’Grady was insured by the complainant in the sum of $1,000, Agnes and Patrick O’Grady, her children, being named as beneficiaries. In 1901 she changed the beneficiaries to Agnes and Thomas O’Grady, a son. In June, 1908, another change was made, whereby $500 was made payable to Agnes and $400 to Patrick and $100 to Elizabeth McIntosh, another daughter of Mrs. O’Grady. In March, 1910, Mrs. O’Grady caused another change to be made, whereby a daughter named Mary E. Daley was made sole beneficiary. Mrs. McIntosh had previously died. Agnes and Patrick made claim to the fund, asserting—

(1) That the last change was brought about through the improper influence of Mrs. Daley, at a time when her mother was in extremis and incompetent; (2) that they had contract rights in the fund that precluded Mrs. O’Grady from changing the beneficiary; (3) that the last change was invalid for the reason that the by-laws of the complainant were not complied with in making application for the change.

Upon the hearing Mrs. Daley testified that the last change was made at her mother’s instance, and with her own reluctant consent to accept the fund to be taken in trust to be used as follows: Payment of all expenses of sickness and funeral, $100 to the children of Mrs. McIntosh, $50 each to Frank, Tom, and John O’Grady, $25 for masses for Mrs. O’Grady’s soul, the remainder to be divided between Agnes and Patrick. As to Patrick’s share, Mrs. Daley was to keep it to be used for him in sickness, lest he squander it in drink. The decree did not contain a statement of facts found, but adjudged that:

The court, being fully advised in the premises, doth order, adjudge, and decree that said fund be distributed as follows: To John O’Grady the sum of $50, to Frank O’Grady $50, to Thomas O’Grady $50, to Stephen McIntosh the sum of $100, in trust for the children of Elizabeth McIntosh, deceased, to be divided equally between them, and to be held by him as said trustee until said children attain the age of 21 years, and, when each child shall attain the age of 21 years, his or her share shall be paid to him or her, and as a condition precedent to McIntosh drawing said sum from the register of this court he shall give a bond in such sum and with such sureties as this court shall approve. To F. E. Case & Son the sum of $98 for funeral expenses, and to Dr. P. S. Windham, the sum of $36 for medical attendance, and to Mary E. Daley the sum of $34, to be applied as follows: The sum of $25 to be paid the church for services, the sum of $2 for assessments on said benefit certificate advanced by her, the sum of $3 for proofs of death advanced by her, and the sum of $4 to be paid the register of this court for the filing of this decree, it being understood that $2 of said fund has been paid for filing said bill, to George C. Ryan, solicitor for Mary E. Daley, the sum of $25, and to A. Elwood Snow, solicitor for Agnes Hatch and Patrick O’Grady, the sum of $25. The balance of $530 to be equally divided between Agnes Hatch and Patrick O’Grady and to be retained by the register of this court, and paid to them under the orders of this court.”

Mrs. Daley appealed from this decree, claiming that, while the circuit judge sustained the last change of beneficiary, he erroneously disregarded Mrs. Daley’s rights to the fund, and ordered a distribution of a portion of the same through the register of the court, making Stephen McIntosh a trustee for the McIntosh heirs in place of Mrs. Daley, allowing and ordering paid by the register the bills of the undertaker, the doctor, and retaining the shares of Agnes and Patrick in the custody of the court as trustee.

We have endeavored to examine and weigh the testimony carefully, and do not feel warranted in sustaining the claims of Agnes and Patrick as to their contract rights to this fund. It seems clear to us (and in this we are confirmed by the evident opinion of the circuit judge) that there never was an agreement not to change the beneficiaries without their consent, but that the right of doing so always remained with Mrs. O’Grady, who exercised it repeatedly. We also believe that the last change was proposed and asked for by her without undue influence and at a time when she had a right and was mentally competent to do so; that in doing this she intended, and Mrs. Daley acquiesced in her wish, that she, Mrs. Daley, take and hold the fund in trust as shown upon this record.

We are also of the opinion that the defendants Patrick and Agnes cannot complain of the omission of complainant to require a strict compliance with the by-laws. See Grand Lodge A. O. U. W. v. Brown, 160 Mich. 448 (125 N. W. 400).

In view of Mrs. Daley’s own testimony, we think it proper that the decree show that she is to take this fund in trust for the purposes shown by the record, which, as between her and her mother and as between herself and the other defendants, constitutes a limitation upon her title to the fund.

We think, however, that the disposition directed by the learned circuit judge, though plainly in the interests of economy, cannot be sustained. The trust was a personal one confided to Mary E. Daley, and should not, perhaps could not, be conferred upon another, or assumed, by the court. A decree may be taken in conformity to this opinion, and, if counsel cannot agree upon the terms of the trust, it will be determined on the settlement of the decree.

Counsel for Mrs. Daley assert that no determination should be made in this proceeding as to the terms of the trust, inasmuch as it is not pleaded, but we think otherwise. Equity demands that she be not given an absolute title to this fund, though on the face of her answer there is no hint of a limitation upon her right to the fund.

We think, however, that the matter was not concealed, and therefore that fact should not deprive her of costs of this court as against her codefendants, whidh she will recover.

Ostrander, C. J., and Bird, Moore, and McAlvay, JJ., concurred.


text:
    PELTON v. MAYHEW.
    1. Trial — Cross-Examination—Witnesses—Evidence.
    The extent of cross-examination of a party is discretionary with the trial conrt.

      2. Same — Conduct of Counsel.
    A statement of plaintiff’s attorney made to the court in the conduct of cross-examination of defendant, relating to the purpose of a question that defendant’s attorney had objected to, held not ground for reversal.
    3. Same-New Trial — Weight of Evidence.
    Evidence examined, and held to sustain a verdict for plaintiff and to warrant the refusal of a new trial.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted June 9, 1911.
    (Docket No. 33.)
    Decided July 5, 1911.
    Assumpsit by William R. Pelton against Percy G. Mayhew on a promissory note. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Kleirihans & Knappen, for appellant.

      Smedley, Hall & Gillard, for appellee.
   Moore, J.

Some phases of this litigation were before this court in the case of Gale v. Mayhew, 161 Mich. 96 (125 N. W. 781, 29 L. R. A. [N. S.] 648), and a reference to the opinion in that case will make a long statement of facts unnecessary here. After the opinion in that case was handed down, suit was brought upon the same papers mentioned therein in the name of William R. Pelton. The case was tried before a jury. A judgment was rendered in favor of the plaintiff. A motion for a new trial was made and overruled. The case is brought here by writ of error.

Some of the assignments of error are as follows:

“ (1) That plaintiff’s counsel asked the following question:
“‘If your bank account was garnisheed, the bank would say there was no money in there under that name at all. It was the P. G. Mayhew Company. Is that right ? Is that the reason you changed the name ?’
“ (2) That plaintiff’s counsel made the following statement in his argument to the jury:
‘“Mayhew comes and claims that Ford was his partner. It is sometimes very convenient to have a partner when they want to garnishee you.’
“(8) That plaintiff’s counsel made the following statement during his cross-examination of defendant:
‘“I think, your honor, it is material. This man is in this business, making cotton felting. It is apparent how he got into this business. He got in through the efforts of Mr. Pelton, and he has now got a nice profitable business, has turned him out, and has formed a corporation and never given him any stock; and I have a right to show that he has a nice business, and show to whom he sells these goods, and that some of them are the very people that this man has solicited — that is, he had been and seen them, and found out how much they used, before he got out this prospectus.’ ”

The other assignments of error relate to the refusal of the trial judge to grant a new trial because the verdict was contrary to the weight of evidence.

In allowing this question, the court did not abuse the discretion with which it is clothed in allowing the cross-examination of a witness.

The statement made by counsel in the argument, in view of the testimony, was not reversible error.

The statement of counsel was addressed to the court, in answer to the objection of counsel of defendant. The testimony itself was excluded.

Did the trial court err in refusing a new trial ? In overruling this motion the trial judge said in part:

“ I cannot find that there is no evidence to support the verdict, or that the verdict is against the law and the evidence, or that the verdict is contrary to the weight of evidence, as set forth in the first and second reasons given in said motion.”

A careful reading of the record does not convince us that the trial judge erred.

Judgment is affirmed.

Ostrander, 0. J., and Bird, Hooker, and McAlvay, JJ.‘, concurred.


author: Brooke, J.

text:
    STUART v. HOLT.
    Trial — Requests—Appeal and Error.
    A judgment will not be reversed for failure of the trial court to charge the jury upon a point not called to its attention by a proper request.
    Error to Wayne; Murfin, J.
    Submitted June 14, 1911.
    (Docket No. 56.)
    Decided July 5, 1911.
    Assumpsit in justice’s court by Alexander J. Stuart against William R. Holt for broker’s commissions. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lucius H. Collins, for appellant.

      John Considine, Jr., for appellee.
   Brooke, J.

Plaintiff brought suit to recover one-half of $600, being the amount of a commission upon the sale of a certain piece of real estate. It was claimed by plaintiff, and denied by defendant, that defendant had entered into an agreement with him to divide such commission in the event of sale. Defendant admitted the fact that the sale was made and that he received $600 commission therefor.

There are five assignments of error. The first and fifth only are relied upon and argued by defendant. Both of these assignments refer to alleged errors in the charge of the court. No requests to charge were preferred by defendant, and he cannot now complain that the court omitted to charge the jury upon a point to which its attention was not directed by a proper request. Peterson v. Toner, 80 Mich. 350 (45 N. W. 346); Kinney v. Folkerts, 84 Mich. 616 (48 N. W. 283); Miller v. Shumway, 135 Mich. 654 (98 N. W. 385); Proulx v. Bay City, 143 Mich. 550 (107 N. W. 273); Hammond v. Porter, 150 Mich. 328 (114 N. W. 64). We have examined the record, however, and are satisfied that there was no error in the charge.

The judgment is affirmed.

Ostrander, C. J., and Bird, Blair, and Stone, JJ., concurred.


author: Stone, J.

text:
    SPECK v. TOWNSHIP OF BRUCE.
    1. Highways and Streets — Negligence—Contributory Negligence — Bridges—Repairs to Highway.
    Where the approach to a bridge in a publio highway was undergoing repairs, but was not barred or closed to the public, and where the driver of plaintiff’s conveyance had crossed the place several times, but not since the repair work had commenced, knew the general situation, saw that other vehicles had been passing over the approach, and plaintiff was injured by the buggy’s sliding off planks lying in the road and down the side of the adjacent embankment, the question of contributory negligence was for the jury.
    2. Same — Railings—Townships—Guarding Dangerous Places.
    It was the duty of the township to see that the highway was kept in a reasonably safe condition for travel, while repairs were in progress, so long as the highway had not been closed to publio travel, and whether barriers, guards, or railings were necessary, in order to render the embankment and approach safe, was for the jury.
    Error to Chippewa; Steere, J.
    Submitted June 15, 1911.
    (Docket No. 59.)
    Decided July 5, 1911.
    Case by Alfreitta' Speck against the township of Bruce for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      M. M. Larmonth, for appellant.

      John W. Shine, for appellee.
   Stone, J.

This is an action on the case brought to recover damages for an injury which the plaintiff sustained on the 11th day of September, 1908. On the day of the accident the plaintiff, with her mother, one sister, and four little children, were riding in a two-seated carriage on the highway in said township, on the section line between sections 35 and 36. The road crosses the Charlotte river by a bridge. They drove onto the bridge from the north across the approach, which was some 15 or 20 feet long from the natural bank to the abutment of the bridge. The evidence varied as to the width of the approach at the bridge, some of the witnesses claiming that it was six feet wide, and others eight feet wide. All agreed that it widened as it extended back from the bridge. Back from the bridge, and on the west side of the wheel track, according to the testimony of the plaintiff, about 12 or 15 feet, and according to the testimony of other witnesses about 30 feet, there had been dumped a pile of gravel. The gravel extended down into and across the wheel track, making that track there a few inches higher than on the other side. The road at that point was 15 or 20 feet wide. Between that point and the bridge there had been some planks laid down, extending across the roadway proper, the planks varying in length from eight to sixteen feet, and were five in number. These planks had been put down to be used as a platform upon which to mix the cement and sand, of which certain parties, under the direction of the commissioner of highways, had been constructing wings or retaining walls running from the bridge bank to the natural bank on each side. The work had been progressing for some little time, the retaining wall upon the east side having been built about a week before, and that upon the west side some two or three days before the injury complained of. Between the planks and the bridge was a slight depression in the road, variously estimated by the witnesses to be from three to twelve inches deep.

It was the claim of the plaintiff that on the day named, between 5 and 6 o’clock in the afternoon, they drove down to this bridge. When they drove over the side of the pile of gravel and attempted to drive upon the bridge, they crossed the planks and the horse got upon the bridge, the forward wheels of the carriage being against the bridge in this depression. After getting that far, the evidence tends to show that the horse had some difficulty in drawing the vehicle onto the bridge; and it is the claim of the plaintiff that, while the horse was making an effort to draw the vehicle onto the bridge, the hind wheels of the carriage were jostled off the right end of the planks, and down the embankment, throwing the plaintiff out across the retaining wall and seriously injuring her back, which caused her great pain and permanently disabled her. The plaintiff’s mother, Mrs. Fox, was driving the horse at the time, and sat on the front seat of the carriage on the right side thereof. The plaintiff was riding on the right side upon the back seat. The evidence tended to show that Mrs. Fox had been across the bridge on numerous occasions; that she noticed the condition of the approach; that she had driven the same horse over there before; but she testified that she had not driven the horse there since repairs had been commenced upon the highway or approach, as above stated. She testified that she saw the pile of gravel; she saw the planks and the general condition. She discovered that there were numerous tracks there, and that evidently vehicles had been passing and repassing. The work upon the bridge had not yet been completed by the party having it in charge, and a bag of cement was left lying near, or upon the pile of gravel. The testimony tending to support the plaintiff’s claim was of considerable length, and at the close of the plaintiff’s case the defendant moved for a directed verdict. This was refused, the refusal excepted to, and evidence was put in by the defendant. The case was submitted to the jury by the circuit judge, and a verdict for the plaintiff was found in the sum of $375, and judgment followed. There was no motion for a new trial. The case has been brought here by the defendant upon writ of error, and there are 10 assignments of error.

The first error alleged is to the effect that the court erred in denying defendant’s motion to take the case from the jury at the close of the plaintiff’s case, for the reason that she was guilty of contributory negligence as a matter of law.

The second, third, and fourth assignments of error relate to the refusal of the court to give defendant’s requests to charge. We think it unnecessary to repeat them here, as we shall have occasion to refer to the same subject-matter in discussing the’errors alleged in the charge of the court. The remaining assignments of error are as follows:

“(5) The court erred in charging the jury as follows:
“ ‘It appears that the approach to this bridge was a graded or raised way. It is the law that where a roadway is built at such a height between hills, and so narrow as to require barriers or railings to make it reasonably safe and fit for public travel, it becomes the duty of the proper township to erect such barriers, and, failing to do so, it is held liable for injuries which result from such negleot of duty.’
“ (6) The court erred in charging the jury as follows:
‘“Now, the ’duty of the township to erect railings, or barriers, along a highway which passes over an embankment, depends upon the width of the traveled way somewhat, and upon the facts and circumstances attending the case generally. And it becomes a question of fact for the jury to say whether or not the barriers should be erected at the place in question. The law which requires them to keep the highway reasonably safe and fit for public travel, requires that where, under the facts and circumstances of the case, on a portion of a road crossing a ravine or depression, and being so raised, it is necessary to put railings or barriers, so that it would be safe and fit for travel, then the township should do so, and it is a proper question of fact in this case for you to determine whether or not barriers were necessary in that place and in that connection. If they were necessary, but were not put there, and the injury occurred by the plaintiff, who was riding with her mother, going over this embankment, through no fault of theirs, then the township would be liable by its failure to erect those barriers which were necessary to keep the highway in a condition reasonably safe and fit for travel.’
'‘(7) The court erred in charging the jury as follows:
“ • It is claimed that this place was not as safe as other portions of the road at least, although it was open to travel; repairs were being made there, or had been a short time before. But you are instructed that the fact that repairs were in progress there would not relieve the township of liability, if the township left the road open for travel and invitedithe public to use it, because it is the law that when it becomes necessary to repair a portion of the road, and when repairs which are necessary to be made make the road unsafe and unfit for travel, then it is the duty of the township authorities to close the road temporarily and while it is in an unsafe condition by reason of the repairs being made.’
(8) The court erred in charging the jury as follows:
“ ‘This road was being used at that time, according to the undisputed testimony, and you are instructed that, although Mrs. Fox, who was driving the rig, knew that the approach was narrow and somewhat dangerous, yet, if it was open to the public and in use, and she knew those facts, she would not be guilty of negligence simply by going upon that portion of the road and trying to use it.’
“(9) The court erred in charging the jury as follows:
“ ‘ It would not be negligence for her to try to pass over this, because it was somewhat narrow, and not as safe as other portions of the road, even though that fact was well known to her. For it was a public highway, open to the public, and in use by others, and if under those circumstances, as they appeared to her at the time, it was feasible for her, exercising due care, to cross as others had, she would not be guilty of negligence simply by attempting to cross. But, in that connection, under those circumstances, and with such knowledge of the conditions, the law would make it incumbent upon her to use care and caution and prudence, according to the circumstances as known by her, and as they presented themselves at the time. In the first place you will remember that if you find that the road in question was reasonably safe for travel, and could have been passed over in safety by a person using ordinary care, then the township would not be liable — would not be guilty of negligence, and your verdict should be for the defendant. But it is a question of fact for you to determine whether or not that was the case.’
“(10) The court erred in charging the jury as follows:
“ ‘ It is a question of fact for you to determine whether the narrowness of the road, the want of railings or barriers, the plank or material on the approach, the depression at the bridge, or all of these defects oombined, was the cause of this injury.’”

The principal contention in the case, as urged in the defendant’s brief, and in the oral argument of counsel, is that plaintiff was guilty of contributory negligence as matter of law, and that the court should have directed a verdict for the defendant for that reason; the plaintiff being chargeable with the negligence of the driver.

We have examined the testimony with care and the authorities cited by counsel, and are of opinion that it cannot be said upon this record that the plaintiff was guilty of contributory negligence as matter of law. There was a sharp conflict in the testimony as to the situation of the premises, and the circumstances of the injury. We are of opinion that a question of fact for the jury was presented, and that the case is ruled by the numerous decisions of this court, of which the following are a sample: Harris v. Township of Clinton, 64 Mich. 447 (31 N. W. 425, 8 Am. St. Rep. 842); McTiver v. Township of Grant, 131 Mich. 456 (91 N. W. 736); Belyea v. City of Port Huron, 136 Mich. 504 (99 N. W. 740); Judd v. Township of Caledonia, 150 Mich. 480 (114 N. W. 346). The case last above cited is very similar in some of its circumstances to the instant case. There, as here, no barriers, or warning signs, were erected to prevent people from using the road, or premises. See, also, the recent case of Priebe v. Township of Moorland, 162 Mich. 110 (127 N. W. 19).

A more serious question arises in the case as to whether, under the last six assignments of error, there was error in the charge of the court submitting to the jury, as it did, the question whether it was the duty of the township to errect railings, or barriers, along that portion of the highway which passed over the embankment, under the circumstances of the case; it appearing that the highway was being repaired under the direction of the commissioner of highways, so that it may be said that such repairs were in progress. But we have examined that portion of the charge with some care, and, it appearing from the testimony that the highway had not been closed by the township authorities, but was left open to travel, and there was present evidence that the highway was being used at the time by the public, we think the duty of the defendant still continued to see that the highway was kept in reasonable repair, and in a condition reasonably safe and fit for travel. We find the doctrine well supported by authority, both in this and other States, to this effect:

“ While a highway is undergoing repair, ordinary care must be taken to prevent injuries to travelers thereon. If the way becomes dangerous or impassable, it must be protected, and fences, barriers, or other means must be used to warn travelers of the danger. The obligation to keep the way in reasonable repair generally continues until the street is lawfully discontinued” or closed. Elliott on Roads and Streets, § 803, citing Southwell v. City of Detroit, 74 Mich. 438 (42 N. W. 118).
“A duty rests upon the municipality to care for travelers while a highway is undergoing repair, as by a barrier or fencing; mere warning being held insufficient.” 37 Cyc. p. 287, and cases cited in note.

Among others being Bills v. Kaukauna, 94 Wis. 310 (68 N. W. 992); 28 Cyc. pp. 1284, 1350, 1405, and cases cited in note 58. See, also, Joslyn v. City of Detroit, 74 Mich. 458 (42 N. W. 50); Alexander v. City of Big Rapids, 76 Mich. 282 (42 N. W. 1071); Hamilton v. City of Detroit, 105 Mich. 514 (63 N. W. 511); Walker v. City of Ann Arbor, 111 Mich. 1 (69 N. W. 87).

In Southwell v. City of Detroit, supra, it was held that a city while grading and paving a street under the power conferred by its charter, must close to public travel that portion thereby rendered unfit and unsafe, in order to suspend the duty imposed by the statute to keep its streets, which are open to public travel, in good repair for that purpose. In that case Justice Champlin, speaking for the majority of the court, said:

“In what manner, then, shall the city exercise the power so as not unnecessarily to suspend or circumscribe the duty? The answer is plain. By closing to public travel that portion of the street which is rendered unfit or unsafe by the exercise of the power. The city, through the corporate authorities, has full control over the streets. It has the right to exclude public travel from that portion of the street which is being graded and paved; and such exclusion is not only proper, but usual, not only for the protection of the public, but of the improvement which is being made. The statute only imposes the duty as to streets ‘which are open to public travel.’ So long, therefore, as the city permits the street to remain open to public travel, so long the duty and consequent liability remain. * * * It may be necessary, while repairs are being made upon a highway or bridge in the country, to exclude public travel from that portion until it is rendered safe and fit for public travel, and no one doubts the right and duty of officials to do so. The power to improve and repair, and the power to exclude, are to be exercised so far as may be commensurate with the necessities of the case. In one case the public may be excluded from a portion of the street, and in another the entire width. In the case at bar the street was being graded and paved the full width of the traveled way. To suspend the duty the public should have been excluded, by the erection of sufficient barriers, from the whole street to the point where the improvement had progressed. This the city neglected to do, but left the street open to the public travel in its unfit and unsafe state. The result was the injury to the plaintiff.”

It being undisputed that the bridge and highway were open to public travel, and had not been closed by the defendant during the repairs, it must be held that the duty to keep the highway and approach to the bridge in a reasonably safe condition for travel was a continuing duty, and had not been suspended pending the improvements under the direction of the commissioner of highways. In our opinion, therefore, the doctrine of the case of Malloy v. Township of Walker, 77 Mich. 448 (43 N. W. 1012, 6 L. R. A. 695), and the numerous cases in this court which have followed that case, applied, here.

We find no error in the record, and the judgment of the circuit court is affirmed.

Ostrander, C. J., and Bird, Brooke, and Blair, JJ., concurred.


text:
    FRIEDBERG v. BENNETT.
    1. Replevin — Judgment—Justices of the Peaoe — Requirements of Valid Judgment.
    In an action of replevin in justice’s court a docket entry, purporting to be a judgment of the justice, “in favor of the plaintiffs and against the defendant for the right of possession of the goods and chattels mentioned in the writ,” etc., is not a final judgment under 3 Gomp. Laws, §§ 10660, 10676, 10677, providing that if the property shall not be found the plaintiff shall be entitled to a judgment in addition to damages and costs, ordering that the property be replevied, or that plaintiff recover the value as found.
    2. Same — Bar to Action of Assumpsit — Defenses.
    And the justice’s judgment was not a bar to a subsequent action in assumpsit for the value of the property.
    3. Assumpsit — Defenses—Judgment.
    Assumpsit will lie for the value of property which was the subject-matter of a prior action of replevin, where it appears that when the replevin case was commenced the defendant was not in possession of the property, and that it was never taken under the writ.

      Errorto Wayne; Murfin, J.
    Submitted June 16,1911.
    (Docket No. 80.)
    Decided July 5, 1911.
    Assumpsit by Jacob Friedberg and Morris Friedberg, copartners as J. Friedberg & Son, against Alvin S. Clark, whose death was suggested on the record after the action was commenced, and Charles D. Bennett, executor of decedent’s estate, substituted. A judgment for defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      Friedman & Smilansky, for appellants.

      Clark, Lockwood & Bryant, for appellee.
   Stone, J.

On March 31, 1908, Alvin S. Clark purchased a pair of diamond earrings from the above-named plaintiffs for $635, on a written contract, by the terms of which the title to the earrings was to remain in the plaintiffs until the entire amount mentioned in the contract was paid. Mr. Clark made several payments and then defaulted. After several demands were made upon him for the payment of the balance due, or for the return of the earrings, a suit in replevin was instituted in justice’s court in which the value of the diamonds was stated to be $500. The constable did not secure the diamonds upon the writ of replevin, but the writ was personally served upon Clark. He appeared in the action and pleaded the general issue. After several adjournments were had, an alleged judgment was rendered in the following language:

“ I therefore render judgment in favor of the plaintiffs and against the defendant for the right of possession of the goods and chattels mentioned in the writ, to be in the plaintiffs, with $3.00 costs.
“ Fred E. De Gaw,
“ Justice of the Peace.”

Upon that alleged judgment an execution was issued in which the officer was commanded forthwith to cause to be returned to the plaintiffs the diamond earrings, and to collect the costs. This execution was returned unsatisfied. Subsequently this action was brought against Mr. Clark in the circuit court. A declaration was filed containing a special count appearing to be in trover, and all the common counts in assumpsit. The defendant pleaded the general issue. Before the case came on for trial Mr. Clark died, and his death was suggested of record, and the suit was revived in the name of Charles D. Bennett, his executor. Upon the trial the court permitted the plaintiffs to amend their declaration in the first count thereof, to show that the possession of the property had been originally obtained by Clark by virtue of the contract, and that the tort of the said Clark in converting the diamonds was waived, and assumpsit brought; and the defendant was permitted to amend his plea by giving notice that the former judgment in replevin was a bar to a recovery in this suit. During the trial of the case the circuit court directed a verdict and judgment for the defendant on the ground that the action described in the plaintiffs’ declaration was barred by the judgment obtained in the replevin suit, to which action exception was duly taken. A motion for a new trial was subsequently made and denied, and exception thereto taken by the plaintiffs, and the case has been brought here by writ of error; the assignments of error relied upon being that the court erred in directing a verdict and judgment for the defendant for the reasons stated, and in not granting the motion for a new trial.

We are first confronted with the question whether there was a judgment or adjudication entered in the replevin suit which could be a bar to this action. Our statute (§ 10660, 3 Comp. Laws) provides:

“If the goods and chatties specified in any writ of replevin shall not be found, or shall not be delivered to the plaintiff, he may proceed in the action for the recovery of the same, or the value thereof.”

Section 10676, 3 Comp. Laws, provides as follows:

“ If the goods and chattels specified in the declaration, shall not have been replevied and delivered to the plaintiff, such plaintiff, in case he shall recover upon the whole record, shall be entitled, in addition to his damages and costs, to a further judgment that such goods and chattels be replevied and delivered to him without delay; or in default thereof, that such plaintiff do recover from the defendant the value of such goods and chattels, as the same shall have been assessed.”

Section 10677, 3 Comp. Laws, is as follows:

“ The execution to be issued upon such judgment shall command the sheriff to levy the plaintiff’s damages and costs, of the goods and chattels, lands and tenements of the defendant, as in other executions against property; and also to replevy the goods and chattels described in the declaration, which shall also be specified in the execution, and to deliver them to the plaintiff, if they can be found within his county, and if the same cannot be found, then that he levy the value of such goods and chattels, specifying the same, together with the aforesaid damages and costs, of the goods and chattels, lands and tenements of the defendant, as above provided.”

It appears very clearly to us that the claimed judgment entered by the justice of the peace in the replevin suit was not such a judgment as is contemplated by the statute. In our opinion it was not a final judgment in any sense, such as would authorize the issuing of any execution. It did not adjudicate or order the recovery of the property. It must be held that the alleged trial was a mistrial, and that no final judgment was entered in the case, and no adjudication was had. It certainly cannot be said, in view of the section of the statute first above quoted, that the plaintiffs proceeded in the action for the recovery of the property. Neither can it be said that it was a judgment for the value thereof. It was the finding of a preliminary fact that was just as consistent with a judgment for the value of the property as for the recovery of the property itself. There was here no adjudication that the property should be replevied and delivered to the plaintiffs, or, in default thereof, that the plaintiffs should recover from the defendant the value of the goods and chattels. It did not go far enough to satisfy the statute as to either judgment that the plaintiffs might have been entitled to. To find that the plaintiffs were entitled to the right of possession of the goods and chattels was not to render a final judgment under the statute.

While the forms generally in use may not be controlling they may be referred to as very persuasive in the case. An examination of the forms which have been in use in this State since Green’s Practice was issued half a century ago (followed as it has been by Stevens’ Practice and Abbott’s Practice) will show that the forms of judgment in use have been adapted to the statutes above quoted, as have also the forms of execution. The execution issued instead of directing the sheriff to replevy the property and deliver the same to the plaintiffs, was rather in the form of an execution de retorno, which would have been appropriate had there been a recovery by the defendant, and he had desired a return of the property. It must be held, therefore, upon this record that the alleged judgment in the replevin case was no judgment which could be pleaded in bar of this suit, and that no final judgment was entered by the justice of the peace, but that the proceedings before him resulted in a mistrial. We think, therefore, that the learned circuit judge erred in holding that the order made by the justice was a judgment in bar of the plaintiffs’ recovery in this suit.

It is not necessary for the disposition of this case for us to decide whether the plaintiffs might not have taken a judgment for the recovery of the property without electing to take a judgment for the value. There is authority to that effect to be found in Hanselman v. Kegel, 60 Mich. 540, 550 (27 N. W. 678, 682), where it is said:

“ It will be seen by the statute first cited (§ 10660) that the plaintiff may elect to recover the property or the value thereof. The record shows that upon the trial the plaintiff elected to take a judgment for the value.”

It seems to be the general practice in this State for the plaintiff to take his judgment in the alternative; but, as that question is not before us, we decline to decide it. In the instant case the plaintiffs did not elect to take either course.

Whether Clark was in possession of the goods and chattels at the time of the commencement of the replevin suit does not appear in this record. If he was not then in possession, this action would lie under any of our decisions. Reid, Murdoch & Co. v. Ferris, 112 Mich. 693 (71 N. W. 484, 67 Am. St. Rep. 437); Reid, Murdoch & Co. v. Parks, 122 Mich. 363 (81 N. W. 252).

While it might be interesting to review the numerous decisions of other States cited by counsel upon this question, we decline to do so in this case, for the reason that, in our opinion, there was no such final judgment entered by the justice of the peace as can be said to have been an adjudication, within the meaning of our statute governing the action of replevin.

For the error pointed out the judgment will be reversed and a new trial granted.

Ostrander, C. J., and Bird, Brooke, and Blair, JJ., concurred.