text:
    LIPSETT v. HASSARD.
    1. Evidence — Limited Partnerships — Recorded Resolution— Parol Evidence Rule.
    Parol evidence to change the effect of an unambiguous resolution, passed by the stockholders of a limited partnership association, conferring authority to sell property and pay indebtedness of the company, is incompetent.
    2. Bills and Notes — Defenses—Release—Consideration.
    The liability of a joint maker of a promissory note is not terminated by a promise to release not in writing and not supported by any consideration.
    8. Same — Equities — Corporate Resolutions — Officers and Agents Acting under Authority — Contribution between Indorsers.
    By a resolution authorizing a committee of stockholders in a limited copartnership to sell property of the company and reduce its indebtedness, a duty was imposed to apply the receipts proportionably in reducing its indebtedness, and members of the committee who indorsed paper with the defendants can recover only the defendant’s proportion of the amount paid on the notes by the other indorsers, decreased by the proper proportion of the receipts from the sale of the partnership property.

      Error to Chippewa; Steere, J.
    Submitted October 22, 1909.
    (Docket No. 160.)
    Decided November 5, 1909.
    Assumpsit by James L. Lipsett and others against Andrew Hassard upon a promissory note. A judgment for defendant is reviewed by plaintiffs on writ of error.
    Reversed.

      Sharpe & Handy, for appellants.

      M. M. Larmonth, for appellee.
    Plaintiffs, defendant, and several others were stockholders in the Soo Milling Company, a limited copartnership organized in 1901 for the purpose of operating a flouring-mill in the city of Sault Ste. Marie. The business was a losing venture, and it was necessary to borrow money to carry on the business. The company borrowed' money, and the plaintiffs, defendant, and others, seven in all, indorsed the notes here involved, amounting to $6,000, and borrowed money on other notes which were indorsed by the plaintiff and others, but upon which Mr. Hassard was not an indorser. To secure the indorsers on all the notes, the company in December, 1904, executed a mortgage on all its real and personal property for an indebtedness not to exceed $15,000. All the notes specified in the mortgage , amounted to $14,000.
    At a special meeting of the company, duly called on February 7, 1905, at which plaintiffs and defendant were present, the following resolution was unanimously adopted:
    “Resolved, that a committee consisting of J. L. Lip-sett, R. G. Ferguson, M. N. Hunt, and E. J. Swart be and are hereby appointed to dispose of the entire stock of merchandise now on hand as quickly as possible at the best prices obtainable and that the mill be shut down as soon as the grain now on hand is ground and that the manager proceed to collect all outstanding accounts and reduce the indebtedness as much as possible.”
    This committee proceeded to sell the personal property, on which, they realized $12,502.80. Subsequently a receiver was appointed. The mortgage on the real estate was foreclosed, and a further sum was realized. The committee applied this $12,503.80 upon the indebtedness of the company other than the notes here involved. The amount realized upon the foreclosure of the mortgage was applied upon these notes, after which there remained still unpaid thereon $3,411.77. Plaintiffs paid these notes to the bank, which held them and sued the defendant for his share, one-seventh of the amount. The defendant interposed two defenses: First, that there was an understanding at the time of passing the resolution of February 7th, that the receipts of the sale should be applied in payment of these notes; and, second, that the bank had released the defendant from liability thereon. The case was submitted to the jury upon these two defenses, and verdict rendered in his favor.
   Grant, J.

(after stating the facts). There is no ambiguity in the resolution under which this committee as trustees acted. Parol evidence of what was said by the stockholders at the meeting or the defendant’s understanding of how the proceeds were to be applied is inadmissible. 17 Cyc. p. 588; Ten Eyck v. Railroad Co., 74 Mich. 226 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); Kalamazoo Novelty Manfg. Works v. Macalister, 40 Mich. 84; Oswald v. Minneapolis Times Co., 65 Minn. 249 (68 N. W. 15); Dennis v. Joslin Manfg. Co., 19 R. I. 666 (36 Atl. 129, 61 Am. St. Rep. 805); Peterborough Railroad v. Wood, 61 N. H. 418. This testimony was inadmissible.

Defendant bases his release upon his claim that he went to Mr. Fowle, the president of the bank,—

“ To get these notes collected as I did not want them hanging onto me, and he said: “Never mind these notes. You have nothing to do with them. They will be taken care of; ’ and I went back to Mead (the cashier), and I says: ‘You remember now that I do not want these hanging onto me.’ And he says: Mr. Fowle told ' you the notes were all right; ’ and so I went out with that.”

In fact, the defendant and other indorsers were joint makers. If the language amounted to a promise to release, there was no consideration for it. Promissory notes cannot thus be changed by parol. Bishop on Contracts (2d Ed.), § 770.

It was the legal duty of these trustees to apply the proceeds of this sale pro rata upon all the indebtedness secured by the mortgage. The resolution did not authorize them to pay unsecured indebtedness and such of the notes secured by the mortgage as they might see fit. The obligations of the parties were fixed by the mortgage, and all the notes secured thereby should have been treated alike. There was no proof of any waiver on the part of the defendant. It was therefore the duty of the circuit court to instruct the jury to ascertain the total amount of the debts thus secured, the total amount of receipts from the sales of property, to apply these receipts pro rata upon the secured debts, and to render a verdict for the plaintiffs for defendant’s share of the notes, provided there was not sufficient to pay them all.

Judgment reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    DUFF v. HALL.
    Forcible Entry and Detainer — Taxation—Summary Proceedings — Tax Homestead Lands — Ejectment.
    Summary proceedings before the circuit court commissioner will not lie to dispossess the original owner peaceably in possession of tax homestead lands; purchased under Act No. 206, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901; the remedy being, ejectment.
    Error to Muskegon; Sessions, J.
    Submitted October 14, 1909.
    (Docket No. 90.)
    Decided November 5, 1909.
    Summary proceedings by Eva M. Duff against William Hall for the possession of certain real estate. A judgment for defendant is reviewed by complainant on writ of error.
    Affirmed.

      James E. Sullivan, for appellant.

      Turner & Turner, for appellee.
    Complainant obtained from the commissioner of the State land office a deed of the lot in question under section 131, Act No. 206, Pub. Acts 1893, as amended by Act No. 141, Pub. Acts 1901. Her deed was obtained September 20, 190?. Mr. Sullivan called upon defendant, and informed him that complainant owned the property by virtue of the State homestead deed, and asked him to surrender possession. The defendant then stated that he had not paid the taxes, had no further rights in the premises, and agreed to vacate and surrender possession thereof within a week. • On July 6, 1908, without having served any written or other notice to quit, complainant instituted this suit before a circuit court commissioner, under the statute to recover possession of the land. The case was contested before the commissioner, who rendered judgment for the complainant. Defendant appealed to the circuit court. Upon the trial in that court complainant made her case by the testimony of Mr. Sullivan, as above stated, and the introduction of her deed. As soon as the deed was offered, the attorney for defendant objected to its introduction, claiming that the deed was void, and that the land commissioner had issued the deed without authority, giving his reason therefor, which it is unnecessary to mention. The court thereupon entered judgment for the defendant, dismissing the complaint for four reasons:
    (1) Because a question of title was raised which cannot be tried before a circuit court commissioner or upon appeal to the circuit court.
    (2) No force was used by defendant, either in entering upon or in detaining the premises. Therefore complainant could not recover under “forcible entry and detainer act” (8 Comp. Laws, § 11154).
    (3) No contract relations existed between complainant and defendant, and therefore defendant is not entitled under the “summary proceedings statute” (3 Comp. Laws, § 11164).
    (4) Because, if any contract relation did exist between them, the defendant was at least a tenant by sufferance and entitled to the statutory notice to quit.
   Grant, J.

(after stating the facts). Counsel for complainant concedes that, if the title to the land in question is involved, the circuit judge reached the correct conclusion. Defendant was the owner of the original title, and was peacefully and rightfully in possession of the land. He neither obtained nor retained possession by force. He therefore does not bring his case within the statute of forcible entry and detainer. 3 Comp. Laws, § 11154. Defendant did not hold possession of this land under any of the conditions specified in section 11164, which would entitle plaintiff to maintain a summary proceeding to recover possession. Defendant was not holding possession contrary to any contract or lease, or after the time of redemption had expired upon foreclosure or execution sale. Ejectment is the plaintiff’s sole remedy.

Judgment affirmed.

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


author: Blair, C. J.

text:
    GODKIN v. WEBER.
    1. Sales — Acceptance—Compromise—Statute of Frauds.
    By a letter which treated a portion of rejected lumber, delivered under an oral contract of sale, as merchantable lumber and the remainder of the delivery as rejected, the vendee accepted the part in dispute within the requirement of the statute of frauds.

      2. Set-off — Statutes—Claims Arising After Commencement of Action.
    A claim for storage of lumber accruing after the date of commencement of suit is not recoverable in set-off. 3 Comp. Laws, § 10075.
    Error to Wayne; Wisner, J., presiding.
    Submitted October 5, 1909.
    (Docket No. 4.)
    Decided November 5, 1909.
    Assumpsit by John Godkin against Joseph E. Weber for goods sold and delivered. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Jasper C. Gates, for appellant.

      Lee E. Joslyn, for appellee.
   Blair, C. J.

The principal facts necessary to an understanding of this case are fully stated in the opinions filed on the previous hearing. Qodkin v. Weber, 154 Mich. 207 (114 N. W. 924, 117 N. W. 628, 20 L. R. A. [N. S.] 498). On the second trial the circuit judge directed a verdict for plaintiff for the value of 6,435 feet of lumber, taken from 29,332 feet of culls and claimed by plaintiff to have been made merchantable by cutting off bad ends, etc. On this branch of the case, by agreement of counsel, the only question reserved for our consideration is whether there was any evidence at all to sustain the finding of the circuit judge that defendant was liable for this 6,435 feet.

The evidence tended to show that plaintiff, before shipping the lumber, had the right to cut the ends off and thereby make the lumber merchantable; but it conclusively appeared that he had no right to do so after it went into the customer’s yard. “ It would all have to be considered cull lumber with rotten ends.” It appeared, however, that defendant’s inspector assisted plaintiff’s inspector in marking off the 6,435 feet, and on February 22, 1905, defendant wrote to plaintiff a letter containing, among other things, the following:

. “We are willing to accept your inspector’s decision, paying for merchantable at $13.50 and the culls at $9. This latter is 60 cents less than our former offer, as after your inspector sorted out the upper line culls it leaves a very bad lot indeed. * * * We have not as yet crosscut and ripped the culls your man laid out, so as to secure his 5,424 feet of No. 2. This will cost another $5. The offer made by us to Mr. Allan was based on these figures, together with 1£ per cent, discount. He tells us you have refused it. Such being the case, you have 22,492 feet culls hemlock, claimed in one of your letters as your property, on our yard. Storage on same begins today at $2 per day. It is very much in our way, as in the reinspection it was placed in small piles in several alleys, and it must be moved, being directly in our way. Just as soon as you remove the culls, or adjust same, so we may arrive at the amount due, we will mail our check.”

Although in a previous letter defendant had denied the right of plaintiff to make merchantable lumber by cutting off bad ends, we think the letter above quoted from was some evidence tending to show an acceptance of the 6,435 feet as merchantable lumber and a limiting of the culls to 22,492 feet. We are of the opinion, therefore, that, under the agreement of counsel, the court did not err on this branch of the case.

It remains to consider whether the court erred in refus= ing to permit the jury to consider the defendant’s claims for storage and expenses, under his special notices of set-off and recoupment. Plaintiff commenced this suit February 23, 1905. Defendant’s plea and the original notices were filed May 18, 1905. A reading of the notice of recoupment clearly discloses that it was not intended thereby to claim any damages for storage. The charges for storage were set forth in the bill of particulars of the original set-off, and in the notice of set-off pleaded puis darrein continuance on the 11th day of February, 1909. That the circuit judge understood that only the defendant’s claim of set-off was before the court for consideration is plainly evidenced by his remarks in disposing of the case, and that defendant’s counsel so understood is shown by his remark at that time:

4 ‘ It is understood here that we offer to prove our set-off.

44 The Gourt: It was fully understood in the statement. I think it was included. There is no question about it.”

The bill of particulars filed May 18, 1905, contained the following:

“Storing of said 29,392 feet of culls, from Feb. 28 to date, 84 days, at $2.00 per day, $168.00.”

The charges for storage beginning with February 28, 1905, five days after the commencement of suit, the circuit judge correctly held that, under the provisions of section 10075, subd. 4, 3 Comp. Laws, they could not he considered.

The judgment is affirmed.

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


text:
    MORRIS & CO. v. LUCKER.
    1. Principal and Surety — Contracts—Construction.
    Contracts of guaranty are to be construed like other contracts, the intent of the parties being gathered from the entire instrument and its subject-matter.
    2. Same — Interpretation.
    The surety may stand on the precise terms of his contract, when so construed.
    3. Same — Alteration—Mist ake — Contracts.
    Recovery cannot be had in an action at law on a contract of suretyship, in which the name of one of the parties was corrected after its execution, so as to designate a different obligee in accordance with the alleged intent of the parties, where the added party brought the action.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1909.
    (Docket No. 15.)
    Decided November 5, 1909.
    Assumpsit by Morris & Company against Frederick C. Lucker on a contract of guaranty. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      James O'Hara, for appellant.

      Cady & Andrews, for appellee.
   Blair, C. J.

Plaintiff, having recovered judgment against the principal debtor, sued defendant upon the following guaranty:

“St. Joseph, Mich., Aug. 28, 1908.

“ To — Morris & Co.

“For value received I hereby guarantee the prompt payment to —— Morris & Co. of the account of W. J. Lucker which is or may become due them, to the extent of $500.00, hereby waiving notice of the extension of credit or delinquency of payment.

“This guaranty to continue until revoked by me in writing.

“ F. C. Lucker.”

Defendant’s testimony tended to show that at the time he signed the contract the two blanks before “ Morris & Co.” continued the name “ Nelson,” which name was blotted out with ink by plaintiff prior to bringing suit. Plaintiff’s testimony tended to prove that the name “ Nelson ” was blotted out before the paper was signed. On receipt of the guaranty, plaintiff wrote the following letter to defendant :

“Dear Sir: We are in receipt of your guaranty for five hundred dollars for the account of W. J. Lucker, and hereby accept the same, and agree to furnish Mr. W. J. Lucker credit on this guaranty.

“Thanking you kindly for same, we are,

“Yours truly,

“ Morris & Company,

“Gillis.”

So far as the printed record discloses, there was no evidence that this letter was mailed or received. Prior to 1903 the firm of Nelson Morris & Co. was engaged in the packing business at Chicago, but in that year went out of business, and its business was thereafter taken over and carried on by the plaintiff corporation, organized under the laws of New Jersey. Among other property, plaintiff acquired the blank forms of guaranty, upon one of which the guaranty in suit was executed. In using these blanks it was the practice of the plaintiff to strike out the name “Nelson,” and, if this was not done in the present instance, it was through inadvertence. It does not appear from the record that defendant had previously had any dealings with the partnership of Nelson Morris & Co., or with the plaintiff corporation, or had any information regarding them.

The court directed a verdict for plaintiff in the following language:

“ In this case I hold that it is simply a question of law for the court; that under the facts and evidence in this case the plaintiff is entitled to a verdict for the amount of the indebtedness of young Lucker to the plaintiff; that in this case, if what the defendant contends be true, there was simply a clerical error in leaving the name of Nelson Morris & Co., instead of Morris & Co., and the defendant is in no way harmed, and your verdict in this case, gentlemen, will be for $894.66 in favor of the plaintiff and against the defendant.”

Defendant has removed the record to this court for review upon writ of error, contending that the court erred in not submitting the case to the jury with instructions that defendant was entitled to their verdict in case they found that the guaranty as signed by him was to Nelson Morris & Co.

Contracts of guaranty are to be construed like other contracts, and the intent of the parties, as collected from the whole instrument and the subject-matter to which it applies, is to govern. Locke v. McVean, 33 Mich. 473; Home Savings Bank v. Hosie, 119 Mich. 116 (77 N. W. 625). But, when the intent of the parties as collected from the contract has been ascertained, the surety has a right to stand upon the precise terms of his contract. Mathews v. Garman, 110 Mich. 559 (68 N. W. 243); Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112 (70 N. W. 445, 67 Am. St. Rep. 389); 20 Cyc. p. 1426. Rules of interpretation, however, are of little consequence in the present case, since the contract is clear and unambiguous and admits of only one construction. What is really sought by plaintiff’s counsel is to so change by parol evidence a contract required by the statute of frauds to be in writing, that it shall be between different parties than those stated in the contract itself.

We are of the opinion that it was not competent for plaintiff to show by parol in this form of action that the parties really intended that the contract should be with the corporation. The case of Grant v. Naylor, 4 Cranch (U. S.), 224, is directly in point, and, in our opinion, is a correct statement of the law as applied to the facts of this case. See, also, Crane Co. v. Specht, 39 Neb. 123 (57 N. W. 1015, 42 Am. St. Rep. 562), and cases cited.

This record does not contain sufficient facts with reference to the claim of estoppel to afford a basis for our consideration of the question.

The judgment is reversed, and a new trial granted.

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


text:
    ROBERTS v. CITY OF SANDUSKY.
    1. Taxation — Special Assessments — Eminent Domain — Fraud in Determining Assessment District.
    Under Act No. 136, Pub. Acts 1899, providing for the taking of private property for public purposes and the determination of an assessment district, for cities of the fourth class, the assessment district fixed by the action of the common council is conclusive on the courts in the absence of fraud or bad faith.
    2. Same — Unreasonableness—Municipal Corporations.
    The fact that the assessment of complainant’s tax was nearly equal to the amount of the award to him, although unfair, did not establish fraud or bad faith.
    3. Same — Eminent Domain.
    The assessment of benefits is distinct from the award of compensation.
    Appeal from Sanilac; Beach, J.
    Submitted October 12, 1909.
    (Docket No. 56.)
    Decided November 5, 1909.
    Bill by William Roberts against the city of Sandusky to restrain the collection of a special assessment. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Babcock Bros., for complainant.

      O. F. Gates, for defendant.
   Blair, C. J.

Complainant’s principal brief contains the following statements as to the nature of this suit:

“This bill is filed asking the court to restrain defendant from the collection of a special assessment made to pay an award in a street opening condemnation proceeding. * * * Complainant by the bill filed raises five propositions for the consideration of the court:

“ (1) That the street opening proceedings were instituted fraudulently.

“(2) That proceedings were started to afford Joseph Bennett a street or road to his farm lands outside of the city limits and that the city had no jurisdiction to act.

“ (3) That it was fraudulently intended to assess the largest share of the award on the lands of complainant, whether he received that much benefit or not, and that the district was so formed that complainant could not escape, and that this was done simply because the city attorney and majority of the council were enemies of complainant.

“ (4) That by reason of such enmity complainant could get no justice.

“ (5) That, if any benefit resulted to any person’s land, it was to land outside of the city, over which the council has no jurisdiction.”

In his reply briefs complainant says:

“We agree that, in the absence of fraud, the courts will not interfere in this class of cases. Obviating his long argument in that regard, we say that fraud is fully established. The circuit judge saw it and acted on it. * * * In the case at bar it is the assessing district that complainant complains of, and no other way is open except by bill in equity. * * * It is the assessment district that is complained of. This was established and a tax assessed and threatened when the bill was filed, and complainant need not wait before filing the bill and asking relief for a threatened injury.”

The jury, impaneled under the provisions of chapter 25, Act No. 136, Pub. Acts 1899, determined that it was necessary to take complainant’s land and awarded him the sum of $300 as just compensation therefor, which action was confirmed by the judgment of the probate court, and, no appeal having been taken, such judgment is final and conclusive.

The case was heard upon pleadings and proofs taken in open court, and the circuit judge entered the following decree:

“That the proceedings to condemn the complainant’s land for a continuation of the street in question were regular, and the finding of the jury that it was necessary to take complainant’s land for use of the public must stand. That the result of the proceedings to assess the damages awarded to complainant is to nullify the finding of the jury that it was necessary to take complainant’s property for the use of the public. That the opening of this portion of the street upon the face of the proceedings and the relation of the same to the city and country outside the city must have been predicated by the jury and. council on the theory that the city needed a thoroughfare to and from the city and country. The complainant by the arrangement of the assessing district is made to furnish land for a street without any or only nominal compensation or compelled to improve his property for the benefit of the public at his own expense. It was not necessary to show active fraud. If the effect of the proceedings, although regular on their face, works an injustice, equity will relieve. It is therefore ordered, adjudged, and decreed that the proceedings of the city council in creating the assessment district and spreading the tax be set aside and held for naught, and the council restrained and enjoined from proceeding under them for the collection of the tax spread under such proceedings. This decree is without prejudice to the creating of a new district and apportionment of the tax.”

From this decree defendant alone appeals.

It is apparent from the decree that the circuit judge did not determine that any active fraud had been committed, and did not base his decree thereon. The fair inference from the language of the decree is that the circuit judge was of the opinion that complainant’s charges of active fraud were not established by the proofs, and we concur in this conclusion. Section 24, chap. 25, supra, provides, in part:

“ If the council believe that a portion of the city in the vicinity of the proposed improvement will be benefited by such improvement, they may by an entry in their minutes determine that the whole or any just proportion of the compensation awarded by the jury shall be assessed upon the owners or occupants óf real estate deemed to be thus benefited, and thereupon they shall, by resolution, fix and determine the district or portion of the city benefited, and specify the amount to be assessed upon the owners or occupants of the taxable real estate therein. The amount of the benefit thus ascertained shall be assessed upon the owners or occupants of such taxable real estate in proportion, as nearly as may be, to the advantage which such lot, parcel, or subdivision is deemed to acquire by the improvement. * * * Whatever amount or portion of such awarded compensation shall not be raised in the manner herein provided shall be assessed, levied, and collected upon the taxable real estate of the municipality, the same as other general taxes are assessed and collected therein.”

The statute leaves it to the council, and not to the courts, to establish and fix special assessment districts for such improvements, and to assess, if they so determine, the whole of the compensation awarded upon the owners of the property included in the district, and, in the absence of fraud or bad faith, their judgment is conclusive. Nelson v. City of Saginaw, 106 Mich. 659 (64 N. W. 499); Brown v. City of Saginaw, 107 Mich. 643 (65 N. W. 601); Voigt v. City of Detroit, 123 Mich. 547 (82 N. W. 253); Power v. City of Detroit, 139 Mich. 30 (102 N. W. 288).

The mere fact that the assessment of benefits against complainant’s lands was nearly equal to the amount of compensation awarded him, or might appear excessive and unjust, as it did to the circuit judge and does to us, is, in the absence of actual fraud or bad faith in the fixing of the assessment district, unimportant. The assessment of benefits is entirely separate and distinct from the award of compensation. Genet v. City of Brooklyn, 99 N. Y. 296 (1 N. E. 777).

As before stated, the complainant failed, in our opinion, to prove by a preponderance of the evidence the fraud charged in his bill of complaint, and the statements of counsel for complainant -in their several briefs reflecting upon counsel for defendant are not only in bad taste, but are not borne out by the record and are deserving of censure.

The decree is reversed and ,the bill of complaint dismissed, with costs of both courts to defendant.

Grant, Moore, McAlvay, and Brooke, JJ., concurred.


author: Blair, C. J. Moore, J.

text:
    McNETTON v. HERB.
    1. Intoxicating Liquors — Action by Wife for Unlawful Sales to Husband — Evidence—Civil-Damage Act.
    It is incompetent to show, in defense to an action for selling liquor to plaintiff’s husband while intoxicated, that he endeavored to secure liquor from the saloonkeeper through others, or that certain statements were made in furtherance of the attempt, not in the presence of the husband.
    2. Trial — Argument of Counsel — Improper Conduct — Evidence.
    Argument that a written statement of one of the witnesses, not produced by the plaintiff and in her possession, would prejudice her case if produced, is legitimate after a request made by defendant to produce the same, and an offer by' plaintiff’s attorney to reopen the case during the argument and introduce the evidence, is error which is not cured by an admonition of the court to the jury not to consider it.
    3. Intoxicating Liquors — Declaration—Sufficiency.
    Evidence is admissible under a declaration which charges defendant with selling liquors to plaintiff’s husband while intoxicated. 2 Comp. Laws, § 5398.
    4. Trial — Requests to Charge — Refusal to Instruct Jury.
    The trial’ court properly refused to give to the jury requested instructions which contained incorrect statements of fact.
    5. Intoxicating Liquors — Damages—Loss of Support — Trial.
    The defendants are entitled to a requested instruction that the damages should not include luxuries or the total earnings of the husband, and should not include sums spent in purchasing intoxicants, but should be limited by such necessities and comforts as are suitable to the station of the wife.
    6. Same — Evidence—Humiliation.
    The trial court correctly excluded evidence which tended to show a different reason than was given by the plaintiff for her failure to qualify because of humiliation for an office of a fraternal order to which she had been elected, such reason being immaterial.
    Error to Allegan; Padgham, J.
    Submitted October 13, 1909.
    (Docket No. 71.)
    Decided November 5, 1909.
    Case by Sylvia L. McNetton against Joseph Herb, principal, and Aaron Jones and Joseph Gietzen, sureties, under the civil-damage act. A judgment for plaintiff is reviewed by defendants on writ of error.
    Reversed.

      David Stoekdale & Son and Charles Thew {Dunham, & Phelps, of counsel), for appellants.

      Barnard & Lewis and Wilkes & Stone, for appellee.
   Blair, C. J.

Plaintiff brought this action to recover damages from defendant, a saloon keeper, and his bondsmen, alleged to have resulted from unlawful sales by defendant Herb to her husband from May 1,1907, to November 15, 1907. Plaintiff secured a verdict and judgment in her favor, and defendants bring the record to this court for review upon writ of error.

Counsel for appellants divide their argument in support of their assignments of error into three branches, and we consider them in the same order.

First. Rulings on the admission and rejection of testimony. Assignments of error 20-24 relate to the exclusion of testimony offered to show attempts on the part of plaintiff’s husband to procure liquor from defendant Herb through others, and statements made in furtherance of such attempts out of Herb’s hearing. The rulings of the court were in accord with our previous decisions. Kehrig v. Peters, 41 Mich. 475 (2 N. W. 801); Van Alstine v. Kaniecki, 109 Mich. 318 (67 N. W. 502).

The error complained of by assignment No. 25, if any was committed, was cured by the subsequent admission of the excluded testimony.

Second. Unauthorized and prejudicial conduct and remarks by counsel. Assignment of error 32 relates to the remarks of counsel in his closing argument relative to a written statement alleged to have been made by one Bowman, an important witness for defendants. Plaintiff testified on cross-examination as follows:

“ I met Bowman at the asylum while my husband was there, and talked to him, but not about this suit. He did sign a statement there. I wrote it out in his presence and my husband’s.

“Q. Where is that statement ?

“Mr. Barnard: I have got it right here. We will produce it when Mr. Bowman is on the stand.

Mr. Thew: I would like to have it for the purpose of cross-examination.

“Mr. Barnard: We object to producing it at this time.

“ The Court: I won’t order it at this time.

“Mr. Thew: Note an exception.”

Bowman testified that he had a talk with plaintiff at the asylum, in which she sought to induce him to become a witness for her as to certain facts, for which she would pay him well; that she desired to write to him later on, and he wrote down his name and address for her. Bowman’s attention was not called to the alleged statement on cross-examination. On the argument to the jury, counsel for defendants argued that a statement signed by witness Bowman was in plaintiff’s possession, but had not been introduced by her counsel, and that the reason why this was not produced was because it would not corroborate the claim of the plaintiff as to what the witness Bowman had told her. In the closing argument of counsel for plaintiff the following occurred:

“Now, there is the paper, gentlemen. (Referring to the paper she claimed that Bowman had signed in the asylum at her request, covering the statements that he had made and about which he was examined.) If they think that is a bluff, they may call it. If they want this paper read in this court, I will read it. If they want Mrs. McNetton put back upon the stand, I will put her there and let her swear to it.

‘ ‘ Mr. Thew: I except to this kind of argument.

The Court: It would not be proper now to introduce any further testimony. It is not in the case and will not be considered by the jury.”

The argument of defendants’ counsel was legitimate and logical, and the statement of plaintiff’s counsel with reference to the paper was without justification. Defendants’ counsel lost the legitimate benefit of their argument through the action of plaintiff’s counsel, and we cannot say that the remarks of the court removed the prejudicial effect.

The first assignment of error challenges the action of the court in overruling the objection of defendants’ counsel to the reception of any evidence under the first and fourth counts of the declaration. The first count does, in our opinion, state a cause of action for selling to a person at the time intoxicated, and the objection was therefore properly overruled.

Third,. Errors in charge of court. Assignment of error No. 33 relates to the refusal of the court to give defendants’ fourth request to charge. This request was properly refused, since it contained an incorrect statement of fact that “there is no evidence in this case that defendant sold liquor to plaintiff’s husband during said period or at any other time while he was intoxicated.”

The 37th assignment of error assigns error upon the refusal of the court to give the defendants’ 7th request to charge, which was as follows:

“ In measuring the damages in this case, if you find the plaintiff to be entitled to any damages, by a preponderance cf evidence, you shall take into consideration her station in life, the habits of her husband in providing for her support, and the support furnished to her prior to the illegal sales, if any, you find to be proved. Plaintiff cannot recover the money spent by her husband in defendant’s saloon, if any. She is not entitled to all the wages earned by her husband. At the most, plaintiff is entitled to only such support as she would have received but for the sales, if any, that you find to have been made to her husband illegally, and then only to such necessaries and comforts as are suitable to a wife in her station and situation in life and her husband’s station and situation in life. She is not entitled in any case to luxuries. There has been evidence in this case of the earnings of the husband, but I charge you that his earnings alone is not the criterion to measure her support.”

We are of the opinion that this request was a proper statement of the law, as far as it went, and should have been given. Ganssly v. Perkins, 30 Mich. 492; Radley v. Seider, 99 Mich. 431 (58 N. W. 366); Manzer v. Phillips, 139 Mich. 61 (102 N. W. 292). This request was not substantially covered elsewhere in the charge, as urged by counsel for plaintiff in support of the ruling.

Complaint is also made of the action of the court in excluding their offer to show the reason why plaintiff did not qualify for an office to which she had been elected by the Lady Maccabees, in rebuttal of the reason assigned by her of humiliation on account of her husband’s conduct. We are of the opinion that the court did not err in this respect, since the testimony of plaintiff as to her reasons for not qualifying was immaterial.

The judgment is reversed, and a new trial granted.

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

Moore, J.

I concur in the result and in the opinion,, except as to what is said about the argument of counsel.


author: Ostrander, J.

text:
    PITTSBURGH COAL CO. v. NORTHY.
    1. Sales — Custom and Usage — Contracts
    In an action for the recovery of the contract price for coal sold, and delivered, wherein defendant claimed recoupment for nondelivery of part of the coal sold and for defective coal delivered, it was not error to charge the jury that defendant could not recover for coal which deteriorated because of customary handling in transportation, but which he accepted under the contract.
    2. Same — Place of Delivery — Contracts—Damages.
    Where the parties contemplated delivery at the defendant’s dock, and the place of delivery was agreed upon generally as at Houghton, defendant was entitled to delivery at his dock, and could not be compelled to take coal of the plaintiff at a. different place or a higher price than the parties intended to fix by the terms of the agreement.
    3. Same — Damages—Mitigation.
    The court should have charged the jury that the law does not permit the seller to force the buyer to pay an advance, and the damages are determined by the difference between the oontract price and the market price at the place of delivery.
    4. Same — Performance—Excuses.
    Testimony by the defendant that he did not purchase local coal at a given time, to supply a deficiency in the amount contracted for, because he did not then want it on account of • being unable to then use the coal without additional expense, did not justify the court in leaving to the jury a question as to whether the defendant wanted the coal purchased from plaintiff.
    5. Corporations — Foreign Corporations — Compliance with Statute.
    A foreign corporation doing business in the State is presumed to have complied with the statute, Act No. 84, Pub. Acts 1908.
    6. Sales — Place of Contract — Private International Law.
    In the case of a contract signed in Michigan by the buyer of a quantity of coal, and subject to the approval of the seller at its home office in Pennsylvania, the contract was a Pennsylvania contract, notwithstanding the attempted approval in Michigan by an agent who lacked the requisite authority
    7. Damages — Lost Profits — Mitigation of Damages.
    It was not error to refuse a request to charge that defendant could recover the profits which he might have made, the request containing no reference to his duty to supply himself with other coal for that purpose within a reasonable time.
    8. Sales — Contracts—Breach—Excuses for Nonperformance —Construction.
    Under the terms of a contract for the delivery of coal subject to delays occasioned by strikes, lockouts, unavoidable casualties, want of cars, or other causes beyond the control of the seller, performance was not excused by inadequate unloading facilities of the vendee known to the vendor.
    9. Same — Customs and Usages — Evidence.
    A habit of the vendor is not competent evidence of a custom.
    Error to Houghton; Streeter, J.
    Submitted October 21, 1909.
    (Docket No. 43.)
    Decided November 5, 1909.
    Assumpsit by the Pittsburgh Goal Company against Henry Northy for goods sold and delivered. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Allen F. Bees, for appellant.

      Ball & Ball, for appellee.
   Ostrander, J.

By the terms of the contract made by the parties, defendant bought of the plaintiff, and plaintiff agreed to furnish, 1,200 to 1,500 tons of coal, delivered afloat at Houghton, at the price of $2.45 per ton. The grade of coal specified was 11 inch, thin vein, Youghiogheny lump. It was to be delivered when ordered, and the contract, which was dated May 24, 1905, expired November 1, 1905. The contract contained this provision:

“ Deliveries of coal shall be subject to delays occasioned by strikes, lockouts, accidents and other unavoidable casualties in the operation of seller’s mines, the want of car supply, the failure of the railway companies to deliver or place cars at the mines for loading, or other causes beyond the control of the seller.”

Under date September 23, 1905, defendant made the quantity of coal certain by his letter of that date, ordering 1,300 tons. Defendant had a dock at Houghton, with certain facilities for unloading coal, a fact which was known to plaintiff, and later, probably on October 14, 1905, 93? tons and 600 pounds of coal in the schooner Allegheny was delivered to defendant at the dock and was unloaded. Later defendant asked plaintiff to deliver 700 tons of contract coal, and was told by plaintiff that only 400 tons were due to him. No further delivery was made or was tendered at defendant’s dock. An invoice of the coal so delivered was forwarded, the amount of the demand, less the lake freight, being $2,015.20, to which was added insurance $8.06, making the total sum $2,023.26. January 22, 1906, the defendant paid on this account $1,500. The action is assumpsit, to recover the balance claimed to be due to the plaintiff for the coal which it delivered to the defendant; the declaration containing the common counts only. With his plea the defendant gave notice that the coal was sold under a special agreement in writing; that the plaintiff had failed to perform the contract on its part in the following particulars:

(1) It did not deliver 1,200 to 1,500 tons of the grade of coal specified in the contract, but only the amount of coal above stated, by reason of which the defendant was obliged to purchase coal elsewhere at a higher price than the contract price to supply the demands of his trade.

(2) That defendant was not able to purchase from others sufficient coal to make up the balance of the amount agreed to be furnished by the plaintiff, and was unable to supply all of his customers with coal of that quality and kind.

(3) That the coal furnished by the plaintiff was not of contract grade and quality, but was of an inferior grade and quality, and that defendant, after having sold some of it to his customers, was obliged to reduce the selling price because of the inferior kind and quality of the coal, and for the same reason customers would not purchase the coal at the price which defendant could have received if the coal had been of the contract kind and quality. By reason of the premises the defendant had been damaged, and would recoup his damages against the demand of the plaintiff.

Both with respect to the pleadings, and, it may be added here, with respect to the trial, the defendant has treated the contract as apportionable, and has not contested the right of plaintiff to recover for the coal delivered, at the contract price, if it was of the contract quality, subject to a reduction of its demand by the amount of damages suffered by defendant for failure to deliver the contract quantity.

The cause coming on to be tried before the court and a jury, and the facts hereinbefore stated having been admitted or established, plaintiff was permitted to introduce certain testimony in support of its theory that it had been prevented, by causes beyond its control (inability to secure water carriage for the coal), from making any further delivery, and had therefore substantially performed the contract. In this connection it was permitted to prove its efforts to induce defendant to accept delivery of 400 tons of coal at the railroad dock of the Copper Range Railroad Company in Houghton, from which dock the coal might have been, at considerable expense, carried in cars to defendant’s dock by an existing side track or spur. Much of the testimony was admitted over the objections of defendant, and many exceptions to the rulings of the court were taken. The specific objections have for the most part become unimportant in view of the charge of the court. It is a contention of appellant, however, that the testimony objected to was of a character likely to, and the verdict indicates that it did, influence the jury unfavorably to defendant with respect to the issues submitted to them. The court in the charge to the jury withdrew from their attention and consideration all issues except those now to be stated.

The court said to the jury:

“Nowthe Pittsburgh Coal Company, having contracted to deliver afloat, Houghton, has delivered 937 tons. Mr. Northy is entitled to have the 1,300 tons delivered at the agreed price. They have not done it. Now what damages is he entitled to on account of the failure of the company to deliver ? Just such an amount as he has lost by that failure, and that is to be measured-by the amount he would be required to pay, above the contract price, to obtain coal in the same position within a reasonable time after the coal company had failed to deliver the coal.”

The jury returned a verdict for the plaintiff for $583.06 damages, for which sum a judgment was duly entered. It is said in the brief for appellee, and the computation is not challenged, that, assuming the bill for this coal to be due December 15, 1905 (it was sold on 60 days’ time, and was delivered October 14th), and computing interest on the amount unpaid at 5 per cent, after that time, there was due to plaintiff at the time of the trial $606.46, indicating that the jury found the damages of the defendant to be $23.40. A large number of errors are assigned, and they are discussed in the brief of counsel for the appellant under six heads, the first four of which relate to rulings upon the admission of testimony offered by the plaintiff, the fifth to the refusal of the court to give defendant’s requests to charge, and the sixth to the charge of the court as given.

Considering the errors assigned in the inverse order in which they are discussed in the briefs, attention is given, first, to errors assigned upon the charge of the court. We are impressed that the jury could not have misinterpreted the meaning of the following language, used hy the learned trial judge, after he had stated that defendant claimed the right to recover damages, because the coal was not of the contract quality, and because plaintiff had failed to deliver the contract quantity:

“Now, when parties enter into a contract — business men, farmers, working men, mechanics — the contract is always- to be considered in the light of what is customary in that line of business, and a man may be perfectly competent to make a contract with regard to his own business because he knows the customs that pertain to his business. For instance, a man says he will work a day for you, and he works a certain number of hours, and the man refuses to pay him because he has not worked 24 hours, and the man. says 24 hours is a day, you will say that is nonsense. When people make contracts in the coal business, the customs that have obtained in the coal business are part of that contract. I am taking a little more time about this because it may aid you in seeing why I leave no question about defects in the coal.

“The testimony in this case stands undisputed that, according to the custom of coal business, coal is shipped after having been run over screens at the mine of a certain size. What happens to the coal afterwards may be for the benefit of the receiver of the coal or the benefit of the shipper of the coal, as things may turn out, according to how far it is transported and how many times it is handled. These parties entered into the contract knowing that — both of them experienced in the coal business. Now the contract which was entered into was that the Pittsburgh Coal Company, to state it briefly, agreed to deliver to Mr. Northy, when ordered — that is, when ordered by Mr. Northy — 1,200 to 1,500 tons of 1¿ inch thin wein lump coal, at a certain price delivered afloat, Houghton. Now I think it is a fair construction of the contract, and one that was considered by both the parties when they say ‘delivered afloat, Houghton,’ that if they had sent a boat and anchored it off the College of Mines, it would not have been a compliance with the contract. Although that would be in Houghton, I think both of them understood that the delivery was tobe at Northy’s dock; that is, that that was the place where the boat was to stop. It seems to me that it is the reasonable construction of that, and the delivery of the amount delivered tends to show that that was where the boat was put.

“Now it seems when Mr. Northy ordered the coal, as he had a right to, between 1,200 and 1,500 tons, he ordered 1,300 tons, and the Pittsburgh Coal Company, through one of its agents or officers, or perhaps both agent and officer, accepted that offer, and the Pittsburgh Coal Company from that day until this suit has recognized, and by their letters recognize, a contract to deliver afloat, at Houghton, 1,300 tons of that coal as asked by Northy. They did deliver 937 tons. They have never delivered the balance, and before I say anything about the liability for the nondelivery, I will go back a little to the quality. As I said, both parties knew how the coal was graded according to size, at the mine, and what might happen from the shipment. It appears from the testimony of both that, when cargoes are received sometimes there is a greater amount of slack coal than others, and that is understood by both. Mr. Northy did write to these people at the time that he asked them to send 700 tons additional; that this cargo was not up to the usual quality. That is the statement he made to them, but he made no claim in that letter as being anything unusual, and I think it is only fair to say that constituted no element of damage, because the percentage of slack coal was about what it was sometimes. Under the undisputed testimony in this case, there is no testimony from which you can arrive at any estimate of any damages, and therefore I ask you to dismiss that branch of the case from your minds.”

There is nothing in the instruction to support the idea that evidence of a trade custom can be admitted to vary the terms of an express agreement. Nor, when considered with the remainder of the charge, is it reasonable to suppose that the jury could have understood that the failure to deliver the contract quantity of coal was or could be excused by any custom.

As affecting the measure of defendant’s recovery, the court was in error in advising the jury that the refusal of defendant to accept delivery of the remainder of the coal at the Copper Range docks, and the cost of conveying the coal from those docks to his own, might be considered as affecting the measure of defendant’s damages. We base this ruling upon the fact, which, as we understand the • record, is supported by undisputed testimony, that the offer of the plaintiff to deliver the rémainder of the coal at the Copper Range docks was an offer of delivery under the contract. We agree with the trial court in holding that the place of delivery of the coal contemplated by the parties to the contract was the dock of the defendant. On the part of the defendant the court was requested to charge:

“The plaintiff, the Pittsburgh Coal Company, cannot assert that the' defendant, Northy, should have accepted coal over the Copper Range dock, and thereby lessen its damages which it was obliged to pay for failure to deliver coal at Northy’s dock, as the law does not contemplate that a seller can force the buyer to pay an advance price before it will deliver the article, but the rule of damages is the difference between what the seller agreed to sell for and the price for which the buyer can obtain the article sold at the place where delivery should have been made.”

The jury were instructed:

“ It appears also that before the time of the expiration of the contract, the selling company had said: ‘ We can deliver the balance of the coal at Houghton if you can take it at the Copper Range dock.’ I am not trying to give the words, but the substance of it. Mr. Northy’s answer was, ‘Impossible.’ If it was impossible for him to take it there, the fact that the Pittsburgh Coal Company could deliver it there would make no difference. But if it were not impossible, if you find from the testimony that the coal could have been taken at the Copper Range dock, • and then transported from there to the Northy dock in the usual way of handling freight of that kind, then that is evidence for you to consider with regard to the amount of damage that was done, suffered by Mr. Northy on account of the failure of the delivery of the coal.”

And also:

“ Now you will consider all this testimony on both sides fairly, and if you find that Northy could have had his coal order filled with the expense simply from the Copper Range dock down to his dock, that is the measure of damages.”

It is more than merely probable that the jury assessed the damages of defendant in accordance with this instruction. The requested instruction should have been given.

The court did not err in refusing to submit to the jury the question whether the coal delivered was of the quality specified in the contract. The defendant accepted the coal as contract coal, and there is no testimony tending to prove that it was not of the grade specified. The court said to the jury:

“Now, it is claimed on the part of the coal company, that there is testimony tending to show that Northy did not want any more coal at that time. From his letter, telegram, testimony on the stand here, you are to consider that as you consider all the rest. If he did not want any coal then, although they had not delivered the full amount, he did not suffer any damage. If he did want the coal then, then he is entitled to the difference between what they agreed to deliver the coal for and what it would have cost him to have had coal at that time in the same place here, and you should give him that amount.”

After receiving a statement of account from plaintiff, the defendant, on December 18, 1905, wrote to plaintiff a letter, which was introduced in evidence, and which reads, in part, as follows:

“Your coal cost $2.75 [this included unloading cost] per ton. The price on cars on Pickands [a local] dock is $3.25 for run of pile and $3.50 for family coal, and ten cents freight, which will make a difference of sixty cents per ton tome. Deduct the amount from your bill will leave $1,685.46, if this is satisfactory, willsend you draft for the amount as soon as I hear from you.”

Defendant testified:

“When I wrote the letter of December 18th, I stated that the price on cars at Pickands dock was $3.75 per ton. That dock is across the lake. They raised the price to $4. I don’t know when they did that. When I wrote the letter I could have got it for that price, but not $3.50 for family coal. I suppose I could have got it from them at that time for $3.25 and $3.50 for family coal, if I wanted it, and 10 cents freight. That’s what they charge on the railroad company for bringing it over. I didn’t want it at that time. That time I didn’t want it. * * *

“Q. How much more above $3.25 and $3.50 per ton and the 10 cents freight would you be obliged to pay for transporting that coal from across the lake, and placing it in your yard ?

“A. • At that time I didn’t want it, and then afterwards they raised the price of coal. I didn’t want any coal at that time. I had coal in my yard, and I didn’t want it at that time. I didn’t want to buy coal when I had coal in my yard, and before I wanted the coal, the price of coal had gone up to $3.90.

“Q. Would it cost more to unload coal from cars into your yard than that vessel ?

l‘A. It depends entirely whether I wanted to use it or not. I had to shovel it off from the cars into the wagons. It depends entirely whether I had use for a car load or not to shovel it off the cars to the wagon.

“Q. How much would it have cost you in October or November, 1905, to transport 362 tons of coal from the Portage Coal & Dock Company and stack it in your yard in addition to the 10 cents freight ?

‘A. If I had to take it in my yard I would have to hoist it up, and that would bring it double. It would cost in addition 30 cents a ton. That would make it at the least calculation 40 cents a ton difference. Forty or 50 cents a ton, from the price they want in their yard, and they want $3.25 in their yard. That would bring the price of coal to $3.75 or $3.80 to take it and put it in my yard. That includes the 10 cents freight.”

We do not infer from this testimony that the defendant meant that he was satisfied with the failure of plaintiff to deliver the quantity of coal ordered. He was explaining why he did not buy coal, for his wants, from a local concern. Unless he could shovel from cars directly to his delivery wagons, it was necessary for him to go to additional expense to hoist the coal from cars to his bins. Paying the local price for coal, 40 cents per ton for freight and hoisting, and 50 cents per ton for delivering — figures which he gave of the cost of coal delivered — would render the business wholly unprofitable. The statement m ade by the court, in the connection in which it was made, was calculated to prejudice defendant.

The plaintiff’s general agent testified that the plaintiff was a coal producing and shipping company, a corporation organized under the laws of New Jersey, and that it had not, to his knowledge, filed in Michigan the papers required by the statute of Michigan to authorize it to do business in the State, but that he could not state whether or not it had ever filed the necessary papers. It does not appear that plaintiff has any place of business in this State, or that it does any business therein, except in performance of contracts made in the State of Pennsylvania to deliver coal to purchasers within the State. The defendant requested the court to charge the jury, in substance, that for the reason indicated plaintiff was not entitled to bring this suit, and this the court, and we think correctly, refused to do. The contract between the parties was not a Michigan contract. It is true that the writing was made at Houghton by an agent of the plaintiff who was in Michigan for the purpose of making contracts in behalf of the plaintiff. It was signed at Houghton by the defendant and by the Pittsburgh Coal Company by the selling agent. It contains a provision: “ This agreement is not effective until approved by home office.” As a matter of fact, the selling agent who drew the contract wrote upon it, in Michigan, the words: “Approved. J. P. Walsh, General Manager of Sales.” But it is made clear that he had no authority to approve the contract for the company, and that the contract was later ratified and approved and made effective by the plaintiff in Pennsylvania. By the terms of the statute (Act No. 34, Pub. Acts 1903):

“No foreign corporation, subject to the provisions of this act, shall maintain any action in this State upon any contract made by it in this State after the taking effect of this act, until it shall have fully complied with the requirements of this act, and procured a certificate to that effect from the secretary of State.”

It was, in any event, unnecessary for plaintiff to allege 'compliance with the statute, and compliance, in fact, is presumed. Prussian Nat. Ins. Co. v. Eisenhardt, 153 Mich. 198 (116 N. W. 1097).

Error is assigned upon the refusal of the court to instruct the jury that:

“The uncontradicted testimony in this case shows that •the plaintiff agreed to deliver to the defendant at Houghton, Mich., 1,300 tons of coal, and only delivered 937 tons 600 lbs., and it further appears that the defendant [plaintiff] has not excused his [its] failure to deliver the balance of said coal, namely 362 tons 1,400 lbs., in such a manner as the law recognizes, and I, therefore, charge you that as a matter of law the defendant is entitled to recover from the plaintiff in this suit, by way of recoupment, the profits he might have made on that 362 tons 1,400 lbs. You will give the defendant as damages, by way of recoupment for the plaintiff’s failure to deliver the 362 tons 1,400 lbs. referred to, the difference between what the defendant could have sold that coal for and the cost to him, including unloading and delivery charges.”

This manifestly is not the rule stated in one of defendant’s requests to charge hereinbefore set out. It is admitted that the request does not state the general rule of damages for violation of a contract to deliver ordinary articles of merchandise at a designated time and place; but it is ■contended that, under the circumstances of the case, the rule suggested affords a proper measure of the compensation to which defendant was entitled. The circumstances pointed out in the brief are that defendant was a retail coal dealer at Houghton, delivering coal for family purposes and for steam purposes from his dock; that the market for coal by the cargo was at Cleveland and on the lower Lakes; that the court will take judicial notice that coal cannot be shipped to Lake Superior in the winter; that defendant ordered a particular kind of coal for a particular kind of trade, had a market for all the coal contracted for, and lost a definite amount of trade, measured by the shortage in the delivery at a definite price; that the circumstances were known to plaintiff, the vendor, and that effect should be given to the testimony of the defendant: “After knowing that I was not going to get any more coal from the plaintiff, it was too late to get coal from any other company.” The coal was sold to defendant to be sold again by him. There is some testimony tending to prove that defendant might have supplied himself with coal at once, or soon after plaintiff’s alleged default. Defendant’s letter of December 18, 1905, is, in effect, an admission upon his part that he could supply himself at an increased price of 60 cents per ton. The request to charge now being considered does not take into account the duty of defendant to have supplied himself with coal if such a course was reasonably’ possible. It was not error to refuse it.

As the case must go down for a new trial, we may very properly decline to discuss the probable effect of the testimony admitted, over plaintiff’s objections, upon the jury. It is evident that plaintiff did not prove a custom with respect to the loading of vessels, the tonnage of which did not correspond with the quantity of coal sold to particular buyers, but only a habit or method of its own, entirely immaterial to the issues. The unloading facilities of defendant, known to plaintiff when the coal was sold, however inadequate they may have been for large vessels, was not a cause affecting nondelivery “beyond the control of the seller.” We have already indicated that, the offer to deliver coal at the Copper Range dock should not have been admitted to affect the measure of defendant’s recovery. The record does not contain all of the testimony, and the materiality and effect of some of that introduced as supporting theories of plaintiff, which were rejected by the trial court, are not properly open for consideration.

The judgment is reversed, and a new trial granted.

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


text:
    ROCHESTER DISTILLING CO. v. BOSTRUM.
    Principal and Agent — Estoppel by Admitting Relation.
    A person who conducts a saloon and obtains a. license therefor in his own name, is liable to a vendor of goods sold and used in the business on the order of his brother, who in fact owned the business and was the undisclosed principal, where the vendor relied on the apparent agency.
    Error to Grand Traverse; Mayne, J.
    Submitted October 19, 1909.
    (Docket No. 106.)
    Decided November 5, 1909.
    Assumpsit by the Rochester Distilling Company against Peter Bostrum for goods sold and delivered. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Underwood & Urnlor, for appellant.

      John A. Loranger, for appellee.
   Ostrander, J.

The defendant in the year 1901 applied for and was granted a license to conduct a saloon in Traverse City, and gave the required bonds. In December of that year the plaintiff, upon an order sent in by a salesman, shipped to defendant an invoice of liquors which was received by him and used in the saloon. This suit is brought to recover the price of the liquors and interest. The defense attempted to be made was that, in fact, the business was owned and conducted by one Ole Bostrum, a brother of defendant, now deceased, and that defendant was, in fact, the agent and bartender for his brother, who provided the capital and received the profits of the business. Upon the question of agency, in fact, the testimony made a case for the jury. In the circuit court, to which the defendant had appealed from a judgment rendered in justice’s court, a verdict was directed for the plaintiff.

In this court it is contended that, because defendant testified that he gave no order to plaintiff or to any other person for goods used in the saloon, and paid no bills for goods furnished to the saloon, and that his brother purchased and paid for all goods, it devolved upon plaintiff to prove that it had no knowledge or notice that defendant, who conducted the saloon and received and sold the goods, was a mere bartender, an agent of his brother, the real proprietor. The contention is without merit. Defendant was the apparent principal in the business of keeping the saloon, a position he unequivocally and voluntarily assumed. He testified:

“Q. And you gave the public to understand that you were conducting the business, didn’t you ?

“A. I signed my name to the license.

“ Q. Answer my question.

“A. Yes; but it was Ole’s business just the same, not mine. * * * It was Ole’s money that paid for the license. I didn’t have a nickel in the business.”

“ The duty rests upon the agent, if he would escape personal liability, to disclose his agency and not upon others to discover it.” Mechem on Agency, § 554.

If the defendant, while advertising himself to the world as principal in the business, permitted his brother to order , goods to be sent to him, to be used in the saloon and ac- . cepted and appropriated the goods in the course of the business, he cannot complain that the seller assumed his apparent character to be his real character.

There is no error, and the judgment is affirmed.

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


text:
    TURNBULL v. LEAVITT.
    1. Fraud — Deeds—Cancellation and Rescission.
    Insufficient proof of fraud to warrant the cancellation of a deed of real estate is made by a showing that the grantor did not know the exact state of an involved and defective title, and executed, without any active deceit of the grantees, a conveyance of the land for a consideration which subsequently proved to be inadequate, the title having been afterwards cleared by proceedings in chancery.
    2. Real Property — Life Estates — Devises.
    A devise of real and personal property to the devisee absolutely during her lifetime, and at her death the remaining portion to the testator’s sons, conveys the real estate in fee to the devisee.
    3. Deeds — Description of Parties — Effect.
    A quitclaim deed from a person having title to real property by a devise is not affected by a description of the grantor as administratrix, and conveys her personal interest subject to the rights of creditors of the estate.
    Appeal from Presque Isle; Emerick, J.
    Submitted October 5, 1909.
    (Docket No. 7.)
    Decided November 5, 1909.
    Bill by Franc A. Turnbull, L. Burt Turnbull, and James D. Turnbull, Jr., against Charles R. Leavitt and John McPhee to set aside a deed and to quiet title to certain real estate. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Henry K. Q-ustin, for complainants.

      Joseph H. Cobb, for defendants.
   Ostrander, J.

At the date of his death, James D. Turnbull was the owner of certain lands. In his last will is the provision:

“ After payment of my just debts and funeral expenses, I give and bequeath and devise all of my real and personal estate to my beloved wife, Franc A. Turnbull, to be hers absolutely during her lifetime, and at her death what of the same may be left to my two sons, L. B. Turn-bull and J. D. Turnbull, share and share alike, and their heirs forever. And I hereby appoint said Franc A. Turn-bull executrix of this my will, and said L. B. Turnbull executor of this my will.”

The will was duly admitted to probate, and the widow qualified as executrix thereof. The inventory of his estate made in October, 1900, did not mention the lands in question. Franc A. Turnbull (the widow, devisee, and executrix) executed and delivered to defendants a quitclaim deed of the lands, for which they paid her the sum of $100. In the deed the grantor is described parenthetically as administratrix of the estate of James D. Turnbull and in the certificate of acknowledgment as administratrix. The estate was closed and the executrix discharged. After-wards, in July, 1903, the widow, her two sons, heirs of James D. Turnbull, joining with her, filed a bill of complaint, fin which it is charged that upon the closing of the estate the title to the said lands passed to complainants; that they are worth between $2,000 and $3,000; that the executrix was not familiar with the affairs of the estate or with business matters; and that the actual business of closing up the estate was intrusted “ to William H. Johnson and others.” The other complainants charge that they were not familiar with the value of the property, and were unable to advise the executrix. It is further charged that defendants applied to her as administratrix to purchase said lands, offering her $100 therefor, and representing they were worth no more than that sum, and that they were willing to pay that sum for a quitclaim “from the said Franc A. Turnbull as administratrix of the said estate;” that she has been informed that she had no authority to execute the deed, and, as soon as she was so informed, she offered to repay to defendants the money they had paid to her if they would reconvey said lands. This they refused to do. It is also charged that complainant Franc A. Turnbull, in 1886, joined with her husband in deeding the said lands and others to Andrew W. Comstock, but for security only; that the money to secure payment of which said deed was given was afterwards repaid to said Comstock; and that he and his wife, in April, 1898, executed a quitclaim deed of said lands to James D. Turnbull, who neglected to record the same. Defendants, knowing the real interest of complainants in the lands, procured from said Comstock a quitclaim deed of them, paying no compensation therefor, which deed they have recorded, and they claim to own the lands; that the said deeds create a cloud upon the title of complainants. It is charged, also, that there was a large amount of taxes due and unpaid upon the lands, and that complainants have, in certain proceedings instituted by them, removed the cloud occasioned by the taxes and paid a large amount for taxes. As relief it is prayed:

(1) That defendants be enjoined from disposing of the lands.

(2) That the deed from Comstock to defendants be canceled.

(3) That the deed executed by complainant, Franc A. Turnbull, be canceled upon the payment to defendants of $100.

(4) General relief.

Defendants Leavitt and' McPhee answered the bill, claiming also the benefit of a cross-bill.

It is admitted that nothing was paid to Comstock for the quitclaim deed, and asserted that it was obtained at the instance and request of the executrix; that the executrix agreed to proceed and obtain, as soon as possible, a license from the probate court to sell the lands so as to perfect defendants’ title. They also assert that $100 was the fair value of the lands, reference being had to the condition of the title, most of them having been sold for delinquent taxes, and a portion of them being claimed by the State as State tax homestead lands. They were later told by complainants that, unless they paid an additional sum for the lands, no title would be procured for them through probate court, but that for $150 they would execute a new deed of conveyance if defendants would permit them to retain one-half of the oil, gases, and minerals in said lands. They are now advised, they say, that Franc A. Turnbull had title to the lands and the right to convey them, and that the deed in question conveys all of her interest as devisee of her husband, and that they are the owners of the lands. They ask that complainants be required to execute to them a good and sufficient deed of conveyance, offering to repay to complainants such sums as they have paid by way of taxes upon the lands. There was a replication, a hearing was had in open court, and a decree of date August 3, 1908, dismissing the bill of complaint. Complainant Franc A. Turnbull died December 28, 1904.

In the brief for complainants, appellants, it is contended:

(1) That the deed from Mrs. Turnbull conveyed no title to defendants, and is a mere cloud upon the title.

(2) That the said deed was obtained by fraud and misrepresentation and for an inadequate consideration.

It appears there were 2,000 acres or thereabouts described in the conveyance in question, all in town 33 north, of range 7 east, there being 600 acres on section 11, 320 acres on section 12, the entire of section 13, and 440 acres on section 14, also 80 acres on section 24. All of the land except 120 acres on section 12, 440 acres on section 13, and 40 acres on section 24 had been in 1896 deeded to the State as tax homestead lands; the taxes thereon being canceled. The lands had been lumbered by Mr. Turnbull. There was 160 acres on section 13 against which no unpaid taxes appeared. The remainder of the land was held for taxes aggregating about $350. It appears, further, that after the deed in question was executed, and in July, 1903, after defendants had filed petitions to set aside the taxes and to cancel the State tax homestead interest, the estate of James D. Turnbull also filed petitions for asimilar purpose, with the result that such homestead interest and title was set aside as to the lands on section 13, 280 acres on section 14, and 40 acres on section 24. It was further decreed in said proceeding that the title of the State was absolute to 160 acres on section 14, and 40 acres on section 12. Particulars as to the other lands are not given; it being stipulated that decrees were entered “ setting aside and holding for naught a large portion of the taxes appearing against said lands.” The estate was insolvent and was closed in July, 1902.

Considering first the second contention made by complainants, we find no evidence of fraud practiced upon her or upon the estate. Defendants desired the lands to be used with others for a cattle range. They looked them over. They understood that they had been sold for taxes. They supposed that some at least of the tax title interests could be set aside. They had no conversation with the executrix, but made their offer for a deed to her attorney. It is true that she employed a man to examine and make a report concerning these lands and received his report, and it appears that defendants employed the same man to show them the lands, and that he told them that the best way to do was to get a quitclaim from Mrs. Turnbull, and that he thought they could get a deed for $100, but it does not appear there was any connivance to obtain a deed or that any one regarded the interest of the estate in the lands as of value. There was, in fact, some timber on some of the lands, a witness produced by complainants estimating the value of lands and timber at $7,000, but we find in the record no estimates of timber on particular descriptions which afford aid in determining the apparent value of the interest devised to Mrs. Turnbull. Undoubtedly, $100 was an inadequate consideration for a good title to the lands. It cannot be doubted that the parties dealt with them in view of the apparent title.

Does the deed in question convey any interest in the land ? Her attorney, who drew it, testified that what defondants were buying was all the right, title, and interest of Mrs. Turnbull in the lands. But, assuming that the deed must speak for itself, it appears that the grantor was devisee of the lands, and, upon the probating of the will, had complete legal title to the same; her beneficial interest being limited by the condition of the estate. If the estate was insolvent, as it appears to have been, she had no beneficial interest. The estate, however, is not claiming the lands, and in the administration proceedings no action was had relative to the lands. The estate having been closed, the devisee and her heirs seek to avoid the deed, which upon its face conveys the legal title to the lands. The argument that the will gave to Mrs. Turnbull nothing but a life estate in the lands is answered by the decision of this court in Turnbull v. Johnson, 153 Mich. 229 (116 N. W. 1009), and cases cited. The description of the grantor in the deed as administratrix adds nothing to, and takes nothing from, the effect of the deed in a suit brought by her or her heirs to avoid it. Subject to the rights of creditors, she had the right to convey what she personally possessed, namely, the • legal title to the land. That she did convey it is clear.

The decree is affirmed, with costs to appellees.

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


author: Ostkandek, J.

text:
    HILLS v. CITY OF MUSKEGON.
    Taxation — Statutes—Trust Estates — Guardian and Ward.
    The holder of the legal title to personal property, as distinguished from mere possession and control, under a trust instrument transferring the personalty to a trustee for the benefit of the wife and children of the testator, should be treated as the owner for the purpose of assessment of a personal tax, which may be recovered in an action by one of the beneficiaries, to whom the property was assessed, and who paid the tax under protest.
    Error to Muskegon; Sessions, J.
    Submitted October 19, 1909.
    (Docket No. 121.)
    Decided November 5, 1909.
    Assumpsit by Laura Hills against the city of Muskegon for taxes paid under protest. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      John A. McLaughlin, for appellant.

      Nims, Erwin, Vanderwerp & Foote, for appellee.
   Ostkandek, J.

Plaintiff sued to recover a tax upon personal property assessed to her, paid under protest. She resides in the city of Muskegon. The property in question is an undivided interest in personal property bequeathed to plaintiff and her children by her deceased husband. It appears to be agreed by counsel that the legal title to the property, as distinguished from mere possession and control thereof, is in the Michigan Trust Company, of Grand Rapids, Mich., as trustee for the plaintiff and as guardian for her children. Under such circumstances, it is the general rule, and has been indirectly, at least, established as the rule in this State, that the holder of the legal title is, for purposes of taxation, the owner. 1 Perry on Trusts (4th Ed.), § 331; l.Lewin on Trusts, p. 236; Curtis v. Township of Richland, 56 Mich. 478 (23 N. W. 175); City of Detroit v. Lewis, 109 Mich. 155, 162 (66 N. W. 958, 32 L. R. A. 439); Baars v. City of Grand Rapids, 129 Mich. 572, 576 (89 N. W. 328).

The court below correctly held that the property was taxable to the trust company under the provisions of section 13 (1 Comp. Laws, § 3836) as owner, and that subdivision 6, § 14 (1 Comp. Laws, § 3837), had no application.

The judgment is affirmed.

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


author: Montgomery, J.

text:
    RADEMACHER v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Negligence — Railroads—Escaping Steam — Crossings.
    Evidence that a quantity of steam was permitted to escape from an engine which started to move while decedent’s horse was crossing the track of the defendant, and caused a loud whistling or hissing, which, with the sight of the escaping steam, frightened the horse so that it hacked and the rig was struck by the engine, raises a question of fact as to the negligence of defendant.
    2. Same — Contributory Negligence — Railroad Crossing.
    It was a question for the jury to say whether or not the decedent was guilty of contributory negligence in crossing the track after the engine, which was standing until she reached the track, had commenced to move.

      3. Same — Trial — Instruction to Jury — Gates open as Element op Negligence.
    The trial court was not in error in permitting the jury to consider the fact that the crossing gates were up, in their determination of the questions of negligence and of contributory negligence.

    Error to Kent; McDonald, J.
    Submitted October 7, 1909.
    (Docket No. 21.)
    Decided November 5, 1909.
    Case by Joseph P. Rademacher, administrator of the estate of Mary Konkle, deceased, against the Detroit, Grand Haven Sc Milwaukee Railway Company for the negligent killing of plaintiff’s intestate. , A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Harrison Geer (W. K. Williams, of counsel), for appellant.

      Lombard & Hext, for appellee.

       As to duty of traveler going upon railroad crossing when gates are open, see note to Koch v. Southern Cal. R. Co. (Cal.), 4 L. R. A. (N. S.) 521.

   Montgomery, J.

The defendant’s local freight train No. 66 stood upon the track of the defendant about three car lengths west of Broadway street crossing in the city of Grand Rapids. The deceased was riding with Mrs. Rademacher and Mrs. Josephine Schmidt in an open seated buggy. The horse was being driven by Mrs. Rademacher, and was gentle. Broadway crosses defendant’s track at an angle; the distance between the rails — that is, the traveled portion of the street — being 11 feet. The street is wide and level between defendant’s track and the street car track. Gates are maintained at Broadway.

As the driver approached Broadway with her horse, she discovered, that the gates were up, and saw the engine standing still at the point stated. Mrs. Rademacher testifies : That after she looked and saw that the train was standing still she drove on. The horse was walking.

“ I drove toward the railroad track. I wanted to drive across to get to my place. I paid attention to the engine. I was looking at the engine and watching my horse. I noticed the gates as I went toward the track. I drove on the track, and, when the horse’s head was just to the rail, then I saw the train start. I thought I had plenty of time to go over, and that it was safer for me to go over than it would be to turn around. My horse went over the track, and the train came faster and faster towards me, but I was thinking all the time that it would go back again. I thought it was a switching train, because I did not hear any whistle and no bell ringing, and all at once it was over here to the railing and the steam was coming out on both sides. This scared my horse, and she stopped and backed around, and I could not make 'her go, and that is all I can remember.”

The case was submitted to the jury, with the result of a verdict for the plaintiff. The case is brought here for review, and four errors are relied upon:

First. That the circuit judge erred in submitting to the jury the question of negligence in permitting the escape of steam from the engine.

Second. That the plaintiff’s decedent was guilty of contributory negligence, as a matter of law, and that it was therefore error to submit the case to the jury.

Third. That the fact that the crossing gates had not been lowered was not the proximate cause of the injury.

Fourth. That the judge erred in his instructions to the jury, the claim being that the instructions were inconsistent and contradictory as bearing upon the effect of the failure to lower the gates.

It is the contention of the defendant that there is no testimony that raises a question of fact for the jury to say whether defendant was negligent in causing or permitting the engine to emit steam, for the reason that there was no proof that there was an unusual or unnecessary amount of steam emitted. We do not so read the record. Mrs. Rademacher testified that, when the horse got over the track, he was scared. The steam blew off, the steam on both sides, and that scared the horse.” Mr. Tanner, witness for the plaintiff, testified relative to the steam cocks:

“ Their purpose is to let the flush off from the wings of the cylinder.”

In answer to the question: “ When steam is let off at that point, in what way does it escape ? ” he replied:

“ It escapes through the steam cocks at the lower side of the cylinder at each side of the engine.

“Q. And can it escape through there excepting when the steam is turned on ?

“A. It cannot, sir. I observed this engine as it started up. I don’t think that when it first started there was any steam escaping from the steam cocks. I later discovered steam escaping. The engine was about half way between the starting point and the crossing when I discovered steam escaping from the steam cocks. The steam made a whistling and sissing noise. It was somewhat loud.”

The testimony of defendant’s witness was that steam of no consequence would escape from cylinder cocks unless they were open; that this would be accomplished from the inside of the engine cab; that, if it was desired to get rid of the condensed water, the steam cocks would be opened, and this would let the steam and water escape; that the engine was working hard and made quite a noise. It is true that this witness testified that, the steam cocks were not open, but we think it was a question for the jury as to whether they were or not. It was also a question for the jury as to whether, in a situation in which this horse was at the time — as it appears that the steam emitted would come out directly in front of the horse and be likely to cause fright — it was a negligent act. See Geveke v. Railroad Co., 57 Mich. 589 (24 N. W. 675); Hinchman v. Railroad Co., 136 Mich. 341 (99 N. W. 277, 65 L. R. A. 553); Foster v. East Jordan Lumber Co., 141 Mich. 316 (104 N. W. 617).

We think it very clear that it cannot be said, as a matter of law, that the deceased was guilty of contributory negligence. When she approached this crossing, she found the gates open. She saw an engine at a distance standing still. There was nothing in this situation to give warning that there was danger for her to attempt to pass, in the absence of any signal or warning of danger. The cases cited in which it was held by this court that a railroad track is a warning of danger, and that one may not calculate chances in driving in front of a moving train, are not in point. This engine was standing still up to the time that Mrs. Rademacher had reached the track, according to her testimony, and, when the engine started, it was altogether probable that the safest course for her to pursue was to go ahead. At least, this was a question for the jury. It was also for the jury to say as to whether, in •the absence of the emission of steam at that time, the horse would not have got safely over.

It is suggested that the fact that the crossing gates had not been lowered was, under the plaintiff’s theory, not the proximate cause, and in the same connection error is assigned upon the instructions relating to this fact, as follows:

“ Another negligent act complained of is that defendant failed to lower its safety gates as the engine was started and about to proceed over the crossing. This is one of defendant’s duties. You will remember the testimony, and, if you find that the gates were not lowered you may consider it as bearing on the matter of negligence, both the alleged negligence of the defendant and contributory negligence.

“Now, something has been said by counsel that that was immaterial whether the gates were up or down, under the circumstances of this case; but, of course, if having an unobstructed view of the engine she saw it, or should have seen it moving towards her, or towards the crossing before she went upon the track, it would make no difference whether the gates were up or down. She would have no right under such circumstances to attempt to cross. If the engine was standing still, the position of the gates would be immaterial, for, if the engine was standing still and the gates were up, she would have reason to believe there would be no danger in making the crossing.”

These two contentions may be considered together. It is evident that the fact that the gates were not down had ■some influence, as it naturally would, with the driver, Mrs. Rademacher, in determining whether it was safe to proceed. Unquestionably had the engine been in motion, and the plaintiff discovered the fact before driving upon the track, it might well be said that the fact that the crossing gates were not down would not be the proximate cause of the injury. But it was one of the conditions which existed, and which, taken in connection with the fact that the engine was standing still, gave her assurance of safety which induced her to drive upon the track. Nor do we think the jury could have been misled or confused by the instructions upon this branch of the case.

We find no reversible error, and the judgment will be affirmed.

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