text:
    DETROIT RIVER SAVINGS BANK v. CITY OF DETROIT.
    Taxes — Illegal Assessment — Remedy.
    The plaintiff bank applied to the board of review in the city of Detroit to assess certain real-estate mortgages owned by it, and deduct their value from the assessed valuation of its capital stock. The board, relying upon a statute subsequently declared unconstitutional, refused to do so. The Detroit charter (chapter 10, § 7) made it the duty of persons aggrieved to appeal from the action of the board to the common council during the period when the assessment roll was in its hands. Plaintiff took no appeal until after the constitutionality of the statute referred to had been passed upon, at which time the assessment had been confirmed by the council, and the roll had passed out of its hands. The council refused to vacate the assessment, and plaintiff paid the tax under protest, and sought to recover back the amount so paid in an action at law. Held, that plaintiff could not recover.
    Error to Wayne; Carpenter, J.
    Submitted April 27, 1897.
    Decided July 22, 1897.

      Assumpsit by the Detroit River Savings Bank against the city of Detroit to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Wells, Angelí, Boynton & McMillan, for appellant.

      C. D. Joslyn, for appellee.
   Moore, J.

This is an action to recover city taxes for 1893, paid under protest. The bank applied to the assessors, sitting as a board of review, to deduct the value of the mortgages held by it from its capital stock. The board of review refused to do this, thinking they were obliged to make the assessment by virtue of the provisions of Act No. 2G, Pub. Acts 1893. This law was declared to be unconstitutional, in the case of Standard Life & Acc. Ins. Co. v. Board of Assessors of Detroit, 95 Mich. 466. The petitioner did not appeal to the common council, before the confirmation of ,the assessment roll, from the action of the board of review. After the decision in the Standard Life & Acc. Ins. Co. Case, and after the council had confirmed the assessment made by the assessors, and the roll had passed out of their hands, the petitioner appealed to the common council for the vacation of said assessment. The council refused the prayer of the petitioner. After the tax was extended upon the roll, the collector called upon the bank to pay the tax. It was paid under protest, and suit was brought to recover that portion of it which petitioner claims was illegally assessed on account of the illegal assessment of the mortgages. The circuit judge decided the case in favor of the defendant, and plaintiff appeals.

It was the opinion of the circuit judge that it was the duty of the plaintiff to appeal from the action of the board of review to the common council; that, failing to get relief, it was the duty of the plaintiff to at once act in the matter by a direct proceeding instituted in the courts, to have the assessment corrected, and not wait until after the taxes became due, and seek to recover them back. The circuit judge held that the effect of such a proceeding would be to relieve the taxpayers of the city of Detroit, living there in 1893, of a tax which they ought to bear, and require the loss to be borne by the taxpayers of a subsequent year, who cannot justly be held to bear the burden. The charter of the city of Detroit made it the duty of the plaintiff to appeal from the action of the ■assessors to the common council (section 7, chap. 10) during the period when the assessment roll was in their hands. Having failed to do this, we think the case comes within the decision made in Michigan Sav. Bank v. City of Detroit, 107 Mich. 246.

Judgment is affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. Long, C. J., took no part in the decision.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    SODERSTROM v. HOLLAND-EMERY LUMBER CO.
    Master and Servant — Obvious Danger — Assumption oe Risk.
    An employé in a lumber mill, who piles lumber on a dock when he knows it is unsafe from his own observation, and after he has been told by the vice principal of his employer not to work at such place, assumes the risk of an injury by the falling of the dock, although he is directed to work there by a foreman who is a vice principal in giving the directions.
    Error to Iosco; Simpson, J.
    Submitted April 28,1897.
    Decided July 22, 1897.
    Case by Sophia Soderstrom, administratrix of the estate of John Soderstrom, deceased, against the Holland-Emery Lumber Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      M. J. Connine and Charles A. Jahraus, for appellant.

      Charles R. Henry (A. E. Sharpe and Simonson, Gillett & Courtright, of counsel), for appellee.
   Moore, J.

John Soderstrom, a man 29 years of age, in good health, who had at the time of his death been employed 12 years at piling lumber, was killed by the falling of a dock owned by the defendant. His widow was appointed administratrix, and brought suit to recover damages for his death. The case was tried béfore a jury, who rendered a verdict in favor of the defendant, from which vei’dict the plaintiff appeals.

There are 61 assignments of error presented for the consideration of the court, in elaborate briefs, of upwards of 170 pages. While there was considerable testimony taken in the case, it is not conflicting in essential particulars, and from it the following facts are established beyond any reasonable controversy: The defendant was owner and operator of two mills. Temple Emery was its president and superintendent. James Emery was foreman of mill No. 2, and of the dock where the accident occurred. He had control of the mill and the dock, and it was under his instruction and supervision that the work was done at the mill and dock. He was authorized to employ and discharge the men employed about the business under him, and did employ Mr. Soderstrom. Mr. Wickham was employed to see that the lumber was piled properly on the dock. He worked under instructions from Mr. Emery. He had no authority to employ or discharge men without consulting Mr. Emery. The size of the piles of lumber, and their height and location, were determined by Mr. Emery. In the early summer of 1894, when the lumber was removed from the portion of the dock where the accident occurred, it was discovered that a number of the spiles had been taken out by the ice or by some other cause, and others of the spiles had been displaced, so that the stringers which should rest upon them did not rest upon them. There was one space, variously estimated by the witnesses of 6 to 14 feet in length, where the spiles were gone. The dock was an open dock, so that it was apparent to any one who looked that the spiles were gone. It could also be observed that the flat pieces which should rest upon the top of the spiles were unsupported, because the spiles were gone. The condition of the dock was discovered in the early summer. When its condition was discovered, Mr. James .Emery directed Mr. Wickham not to pile any lumber on that part of the dock where the spiles were gone, because it was unsafe, and explained to him why it was unsafe. All through the summer Mr. Emery’s directions were obeyed, and no lumber was piled on this portion of the dock. A few days before the accident, it was claimed by Mr. Wickham that Mr. Luther Holland, who was not connected with the company in any responsible position, told Mr. Wickham they might pile half-piles of lumber upon the defective dock. The second day before the accident, Mr. Wickham directed some of the men to pile lumber upon the unsafe portion of the dock. When Mr. Emery discovered what they were doing, he went where the men were at work, and told them, loud enough so that all might hear if they would, to discontinue their work there. Mr. Soderstrom was among these who were at work, and the men at that time all quit. There was testimony offered on the part of the plaintiff that the next morning Mr. Wickham directed Mr. Soderstrom and his partner to resume work. This testimony is denied by Mr. Wickham. The record discloses that, a few days before the accident, five or six of the men were sitting on the tramway, looking at the dock where it afterwards fell, and where they could see its condition; and, in conversation with the men, Mr. Soderstrom said it was not a safe place to work, and the men, in his presence, in the course of the conversation in which he was participating, talked about the spiles being gone. It also appears without dispute that on the day of the accident, after dinner, and before he went to work, Mr. Soderstrom got down on his knees on the timbers, and looked at the dock and the spiles, and said to his partner, who was at work on the tram: “That is not very safe to pile on there. You may get wet in there. It is likely to go down.” He also said the day before, 'to his partner: “It is not safe to pile any lumber on there.”

In view of the conditions disclosed by the record, it is not necessary to go over the assignments in detail. It is evident that Mr. Soderstrom had knowledge that this dock was deemed unsafe by the foreman of the mill, and that he also knew from his own observation that it was unsafe. The doctrine of the duty of the employer to furnish a reasonably safe place to work to the employé is too well established in this State to be any longer a subject of discussion. Dewey v. Railway Co., 97 Mich. 332; Van Dusen v. Letellier, 78 Mich. 492; Morton v. Railroad Co., 81 Mich. 423; Roux v. Lumber Co., 85 Mich. 519. This doctrine is not disputed by defendant. It concedes it, but says there are two reasons why, even though the dock was unsafe, plaintiff cannot recover: First. Because the deceased, with full knowledge of the unsafe condition of the dock, engaged in the work, and assumed the risk of the dock going down; that he was guilty of negligence in going to work when he knew it was not safe. Second. Because defendant, when it learned the dock was not safe, through the foreman of the dock, Mr. Emery, warned the deceased not to work where it was unsafe, but that he disregarded the instructions of the one having authority to direct him, and, after he knew of the unsafe condition of the dock, worked upon it, and, as the result, lost his life; that he was alone at fault, and for that reason plaintiff cannot recover.

In the case of Brown v. Gilchrist, 80 Mich. 56, which was a negligence case, it was held to be error to refuse to charge, “If plaintiff’s own negligence caused or contributed to the injury, he cannot recover;” and the court said the rule is well understood that, in all actions for injuries caused by the alleged negligence of another, the plaintiff himself must be free from fault to sustain his action. Michigan Central R. Co. v. Coleman, 28 Mich. 440; Melzer v. Car Co., 76 Mich. 94. In Deer. Neg. § 210, it is said:

“A servant must observe ordinary care for his personal safety in any employment. He must make reasonable use of his senses, to avoid danger and injury in the course of his employment. An employer is not liable for an injury sustained by an employe where his own negligence or want of ordinary care contributes materially to the injury.”

See, also, Beach, Contrib. Neg. § 35.

In Bailey, Mast. Liab. 159, it is said :

“It is the duty of the servant to exercise care to avoid injuries to himself. He is under as great obligation to provide for his own safety from such dangers as are known to him, or are discernible by ordinary care on his part, as the master is to provide for him. He must take ordinary care to learn the dangers which are likely to beset him in the service. He must not go blindly to his work, where there is danger. He must inform himself. This is the law everywhere. ”

Where the danger is open and visible and known to the deceased, and the risk apparent to him, there would be no liability. Fisher v. Railway Co., 77 Mich. 546; Wheeler v. Berry, 95 Mich. 250. It has also been held in a negligence case that where the whole testimony in a case, and all legitimate inferences that can be drawn therefrom, show that the plaintiff’s intestate was injured by reason of his own want of ordinary care, the question of whether there was or was not negligence on the part of the injured party is a question of law to be decided by the court, and that, under such circumstances, the plaintiff cannot recover. Mynning v. Railroad Co., 67 Mich. 677.

It is claimed that Mr. Wickham was foreman over Mr. Soderstrom, and that, because he gave the order for Soderstrom to work upon the dangerous place, the defendant was liable. We think the proofs show that Wickham was a fellow-servant, and not a vice principal; but, if it be conceded he was a vice principal, there would be no liability, for Soderstrom had the same knowledge of the danger which Wickham possessed, and was under no obligation to work under such circumstances, and, in going to work, he assumed the perils surrounding the situation. Kean v. Rolling Mills, 66 Mich. 277; Toomey v. Steel Works, 89 Mich. 249. The vice principal of the defendant company, Mr. Emery, knew the place was unsafe, and, the day before the accident, directed the deceased to refrain from working there. The deceased knew from his own observation, as well as from what he had been told, that the place was unsafe. Under such circumstances, he must be regarded as assuming the risks he incurred; and, deplorable as the accident was, the representatives of the deceased cannot recover damages because of his death.

The case was one in which the trial judge might very properly have directed a verdict in favor of the defendant, lie did not do so, but left the various questions raised by counsel to the jury. This action of the court does not entitle the plaintiff to complain.

Judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PHELPS v. ABBOTT.
    Promissory Notes — -Contemporaneous Agreement — Parol Evidence.
    A note absolute in form, given for the purchase price of stock, cannot be varied by evidence of a contemporaneous parol agreement by the payee to credit on the note the amount of damages sustained by the maker if other stock previously ■ sold to him for breeding purposes should prove to be barren.
    Error to Lapeer; Moore, J.
    Submitted June 8, 1897.
    Decided July 22, 1897.

      Assumpsit by Edwin Phelps against John Abbott upon a promissory note. Prom a judgment for defendant, plaintiff brings error.
    Reversed.

      Aug. C. Baldioin, for appellant.

      Geer, Williams & Halpin and E. C. White, for appellee.
   Montgomery, J.

Plaintiff and defendant were, in 1886 and 1887, -both breeders of blooded cattle. The plaintiff resided near Pontiac, and the defendant at Lapeer. In April, 1887, plaintiff had a public sale of stock at Pontiac, at which defendant was a bidder, and became the purchaser of a cow and calf at $300, and a heifer for $195. After the sale, defendant gave his note to plaintiff for the sum of $495, due in one year, the note being in the usual form of a negotiable promissory note. Shortly thereafter the heifer was returned, and the purchase price, $195, credited on the note. This action is brought to recover the residue of the note, $300, and interest. The defense set up is that, in the spring of 1886, defendant purchased of plaintiff a thoroughbred Hereford heifer named Rosabel at the price of $300, and gave his note in payment; that Rosabel was purchased for breeding purposes, but proved to be barren; that, prior to the public sale in 1887, defendant informed plaintiff that Rosabel was barren; and that the cow and calf and heifer bought in 1887 were purchased by defendant relying upon the statement then made by the plaintiff to defendant that, if future developments disclosed that Rosabel was in fact barren, plaintiff would adjust the .purchase price which defendant had agreed to pay for Rosabel in any way that defendant thought would be right,* and that such adjustment would be made by allowing such credit on the note in suit as defendant should think just and right, if said heifer Rosabel in fact proved barren. This defense prevailed in the circuit, and plaintiff brings error.

The testimony by which defendant made his case was given by himself. He testified:

“The sale was on the fair grounds at Pontiac, and I said to Mr. Phelps, about five minutes before the sale opened, that Rosabel was barren, and that she would not breed, and that I wanted him to make it right. I told him then that if he didn’t make it right, I says: ‘ If you don’t make this right, Mr. Phelps, why, I am done, I have nothing to say here at the sale; but if you will settle the matter as it ought to be done, then I will go on and buy at the sale just as I intended to.’ Mr. Phelps said to me right then and there, he says, ‘ I will do what is right about it;’ and with that understanding I went on and bought at the sale, and bought a cow and- a calf and a heifer.
‘ ‘ Q. What did Mr. Phelps say that he wanted you to do with reference to the heifer Rosabel ?
“A. He wanted me to keep trying. He said to keep trying. He said it emphatically, ‘I want you to keep trying.’ He said that he wanted'me to keep trying; that she might breed yet; and I told him that I would.
“Q. Then, relying on that, you then bought these three head of cattle at the sale ?
“A. Yes, sir.
Q. And in payment of which this note was given ?
“A. Yes, sir. * * *
“Q. At the time you went to Pontiac in the year 1887, you went to purchase stock, did you not ?
“A. Yes, sir.
“Q. And this animal and various other animals were sold there ?
“A. Not this one.
“Q. I mean for the second notes, — these animals.
“A. Yes, sir.
“Q. Will you please repeat precisely what Mr. Phelps said to you at that time ?
“A. He said: ‘ I will do what is right about it. I will do anything that you say.’
“Q. That was all that he said, was it not?
“A. I think that was all, and I said to him that I wanted him to make this matter right. She would not breed, and I wanted credit on the other transaction.
“Q. The other note was not due then?
“A. The other note was not given until the evening of that day.”

If we treat this testimony as admissible in this action, it is very doubtful whether it shows that a contract was made which entitled defendant to a credit on the note in suit. It is true, he testified that he “wanted credit on this transaction.” But he does not testify that plaintiff assented to his request. It appears that this conversation was before the purchase of the cow and heifer for which the note in suit was given, and that, after the purchase, the note was given without any deduction on account of the previous transaction.

But we think it was not competent to vary the terms of this note by showing by parol an agreement to reduce the amount agreed to be paid by the amount of damages which defendant may have sustained by reason of the heifer Rosabel having turned out to be barren. The note was absolute in form. By it defendánt promised to pay a definite sum at a definite time. The testimony offered was for the purpose of showing that this sum was not payable absolutely, but that in a certain event a less sum was to be accepted in discharge of the note. It is a general rule of law that parol evidence is inadmissible to vary or contradict a written contract; therefore, if a bill or note be absolute upon its face, no evidence of a verbal agreement made at the same time, qualifying its terms, can be admitted. 1 Daniel, Neg. Inst. § 80. It cannot be shown that the sum agreed to be paid was different, nor that an additional sum was to be paid in a certain contingency, nor that a certain sum was to be deducted from the note, or the value of a certain article credited upon it. Id. § 81.

In St. Louis Perpetual Ins. Co. v. Homer, 9 Metc. (Mass.) 39, B. indorsed a note for the accommodation of A., the maker. In an action brought against B. it was sought to show that it was orally agreed at the time the note was made that such sum as should be found justly due to A. upon a certain policy of insurance should be indorsed upon the note. The testimony was held inadmissible as an attempt to vary the express terms of a written instrument by a contemporaneous parol agreement. In Featherston v. Wilson, 4 Ark. 154, it was held that it could not be shown in an action upon a note that it was agreed by parol that the value of certain hides should be credited on the note when the amount should be ascertained. So in Eaves v. Henderson, 17 Wend. 190, it was held that it could not be shown by parol, in defense to an action on a promissory note, that it was agreed at the time of its execution that an account which the maker held against the payee should be deducted from the note. In Kulenkamp v. Groff, 71 Mich. 675, it was held, in an action against the indorser, that evidence that it was agreed at the time the indorsement was made that the indorser should not be liable, and that the indorsement was made for the accommodation of the payee, was not admissible, on the ground that it tended to vary the terms of a written instrument. The same doctrine was reaffirmed in Gumz v. Giegling, 108 Mich. 295. In Cook v. Brown, 62 Mich. 473, it was held that it was not competent for one who was a joint maker in form to show that his liability was that of indorser. See, also, Wayland University v. Boorman, 56 Wis. 657; Burnes v. Scott, 117 U. S. 585; Hyde v. Tenwinkel, 26 Mich. 93; Martin v. Hamlin, 18 Mich. 354; Aultman & Taylor Co. v. Gorham, 87 Mich. 233.

It is true that it is always competent to show by parol a total or partial failure of consideration, or that fraud or illegality taints the instrument. But the parol undertaking attempted to be shown in the present case does not fall within these apparent exceptions. It must be kept in mind that in this case the attempt is not to assert a set-off. Defendant’s claim, if any, was unliquidated. The defense was possible in this action only if the defendant could attach his alleged agreement to the note itself, and show that plaintiff had agreed to reduce the amount of the note by such a sum as should be found his due on the original transaction, if any. Nor was there a failure of consideration for the note. The attempt is to show that the promise which was made in writing is not in truth the promise which defendant made. We think, under the authorities cited, .this should be held incompetent.

Judgment reversed, and a new trial ordered.

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


text:
    LINNEN v. BANFIELD.
    1. False Imprisonment — Search Warrant — Liability oe Person Making Complaint.
    The owner of a store broken into, who makes complaint for a search warrant in due form, stating the facts to the officers, and nothing more, is not liable for the acts of the latter in exceeding or departing from the writ, or in arresting and detaining the person suspected.
    2. Same — Delay in Admitting to Bail — Holidays.
    It cannot be said, as a matter of law, that a delay of two days before granting an opportunity for giving bail to one arrested without a warrant on suspicion of felony was reasonable, although the intervening day was a holiday, in view of 2 How. Stat. § 7250, authorizing a justice to entertain a complaint for felony on Sunday, and 1 How. Stat. § 1591, providing that holidays shall be treated the same as Sundays for the purpose of holding court.
    3. Same — Advice op Prosecutor — Good Faith op Oppicer — Mitigation op Damages.
    The fact that a police officer acts under the instruction of the prosecuting attorney in arresting and detaining a person suspected of burglary does not constitute a defense to an action for false imprisonment, where the arrest was unauthorized; but it has a bearing on the good faith of the officer, and may thus affect the question of damages.

      4. Daytime — Term_ Defined.
    The term “daytime,” in its legal significance, means the time from the rising to the setting of the sun, and that portion of the time after the setting of the sun, or before its rising, during which there is sufficient natural light, other than moonlight, so that the countenance of a man may be distinguished.
    Error to Washtenaw; Kinne, J.
    Submitted June 11, 1897.
    Decided July 22, 1897.
    Case by James Linnen against Paris Banfield, Melvin C. Peterson, David Collins, and John V. Sheehan for trespass and false imprisonment. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Reversed.

      Lehman Bros., for appellant.

      J. W. Bennett, for appellees Banfield and Collins.

      John L. Duffy, for appellee Sheehan.
   Montgomery, J.

This is an action of trespass. The declaration contains counts for false imprisonment, and for trespass in making a search of plaintiff’s dwelling house. The defendant Banfield justified the arrest on the ground that it was made on reasonable suspicion of felony, and the search was justified under a warrant issued by a justice of the peace. The case was discontinued as to defendant Peterson.

The material facts appearing on the trial were as follows:

“Defendant John V. Sheehan is a dealer in books and stationery in the city of Ann Arbor, and was engaged in this business in December, 1894. Defendants Banfield and Collins were, respectively, chief of police and patrolman of said city during that month. The plaintiff was engaged in peddling patent buttons and song books. On the morning of December 31, 1894, Mr. Sheehan discovered that his store had been broken into during the preceding' night, and that goods to the value of about $200 had been stolen out of it. With the goods stolen from the store were several dozens of gold pens and penholder’s. Mr. Banfield, as chief of police, was immediately called upon by Mr. Sheehan to investigate the burglary, and, in the search of the store, found a vest which apparently had been thrown off and left behind by the person who committed the crime. In a pocket of the vest were found a dozen gold pens. This vest had several marked peculiarities. The cloth portion was torn away from the lining on both sides, for a distance of six to eight inches from the bottom of the vest, and on one side the cloth and lining had been pinned together with a very long pin. On the other side, and near the lower inner corner of the cloth, there was attached a patent button, called a ‘pad-lock’ or ‘hand-snap’ button, which was fastened to 'the cloth by means of a thin piece of metal slipped upon a small metallic rod projecting from the back of the button on the under side of the vest. This was the patent fastening. This button was similar to the buttons that plaintiff had been selling. When Mr. Banfield examined this vest, and saw the patent button attached to it in such an unusual place, he immediately recalled the fact that several weeks pi’ior to this time, while walking upon one of the streets of Ann Arbor, in company with one Eugene "K. Frueauff, he had observed some person offering buttons similar to this for sale, and that Mr. Frueauff and.he had stood and watched this person for some time; that, while they were watching him, he had placed one of these buttons upon his own vest in precisely the same place where the button was attached to the vest found in Sheehan’s store. He testifies that he remembered also that the person’s vest was torn in a manner similar to the vest just found, and that one side of his vest had been pinned together as was this one. Mr. Banfield did not at that time know who this peddler was, nor. had he learned his name or anything about him prior to the 31st day of December; but he immediately instituted a search, and about Í o’clock of that day saw and identified the plaintiff as the man whom he had observed offering these patent buttons for sale. Mr. Frueauff also remembered the incident of the plaintiff offering some kind of a patent button for sale, and such a one as was upon the vest found in Mr. Sheehan’s store, and had, a distinct recollection of seeing one of these patent buttons on the plaintiff’s vest at that time, in the identical place where was the button on the vest that was found in Sheehan’s store.
“After a careful examination of the plaintiff regarding the ownership of the vest, and after a close comparison of the cloth of the vest and of the trousers that plaintiff was wearing on the 31st day of December, the defendant Banfield went at once to the prosecuting attorney of the county, and disclosed to him all that he knew about' the burglary, and all the circumstances tending to show the connection of the plaintiff with the offense, and he furthermore informed him of the plaintiff’s denial of any complicity in the crime. He informed the attorney of his recollection regarding the vest, similar in many respects to the one that had been found in Sheehan’s store, and of Mr. Linnen’s denial that the vest found in Sheehan’s store was his, and his claim that he never put a button on any one’s vest in such a place, or in any other. Mr. Banfield then submitted the entire control and management of the matter to the prosecuting attorney, and said to him that he would not arrest the plaintiff unless he ordered him to do so. Thereupon the prosecuting attorney, Mr. Kearney, assumed entire control of the case, and immediately ordered the officer, Mr. Banfield, to lock the plaintiff up, and to go before a magistrate, get a search warrant for his house, and search it at once. Acting under these express commands, Mr. Banfield sent word to Mr. Collins, his deputy, to take the plaintiff to jail, and Mr. Collins did so. This is the entire connection of defendant Collins with the arrest of the plaintiff. At the same time that the prosecuting attorney directed the arrest of plaintiff, he ordered an immediate search of his house to be made. He summoned Mr. Sheehan to his office, to make the complaint for a search warrant, and sent his assistant to the office of the magistrate to prepare the complaint and warrant. Mr. Sheehan went at once to the magistrate’s office, and made complaint for a search warrant.”

The search warrant authorized a search in the daytime. There is a conflict in the testimony as to the time of day when this search was made. The justice testifies that he left his office about 5 o’clock p. m., and, after getting out on the street, met Mr. Sheehan, and they returned to the office. A lamp was lighted, and the complaint and warrant were prepared, and delivered to the officers between 5 and 6 o’clock. The officers then took the warrant, and drove to plaintiff’s house, and made the search. Plaintiff was from home (having been previously arrested), but his wife testified that the officers arrived in the nighttime; that the house was lighted when they came. In this she is corroborated by her sister. Defendants’ testimony tends to show that it was still light enough so that the officers were able to distinguish Mr. Lehman, of whom they made inquiry as to the location of plaintiff’s house, at a distance of 15 rods, and that they left the justice’s office between 4 and 5 o’clock. But it further appeared on cross-examination of defendant Banfield that Mr. Lehman had a lighted lantern with him at the time he was recognized by defendant.

The circuit judge directed a verdict for defendants on both counts. This direction was right as to defendant Sheehan. It appears that he made complaint for the search warrant in due form, and that he stated the facts to the officers, nothing more. He was in no way responsible for the action of the officers in exceeding or departing from the writ, nor for the arrest and detention of plaintiff.

As to defendant Banfield the case is different'. We think there was a case made for the jury on both counts Assuming that the arrest without warrant was justil Red, it was the duty of the arresting officers to take the accused before a magistrate at as early a date as was practicable. This arrest was made on the evening of the 31st, and the plaintiff was detained without bail until the evening of the 2d of January. The information upon which the warrant was sworn out was all this time in the possession of the officers. We think it should not be held, as a matter of law, that this delay was reasonable. Malcolmson v. Scott, 56 Mich. 465. It seems to have been assumed that, as the 1st day of January is a legal holiday, no proceeding could have been had on that day; but 2 How. Stat. § 7250, was construed in Malcolmson v. Scott, supra, as authorizing a justice to entertain a complaint for felony on Sunday, and by section 1591, 1 How. Stat., holidays are treated the same as Sundays for the purpose of holding court. The officers were authorized to detain plaintiff on the charge of felony without warrant for a reasonable time only. 1 Am. & Eng. Enc. Law, 732; Rohan v. Sawin, 5 Cush. 281. Time is presumed to be of some importance to one incarcerated without process, and promptness is required when the information upon which’ proceedings are to be based is at hand, in order that the accused may not be deprived of the right to give bail. We do not overlook the claim that the officer was acting under the instructions of the prosecuting attorney, but we know of no rule which authorizes a prosecuting attorney to enlarge the authority of an arresting officer. While such instructions may bear on the good faith of the officer’s acts, and thus affect the question of damages, it must be borne in mind that good faith does not excuse an unauthorized arrest.

As to the action under the search warrant, this was only justified if taken in the daytime, which means the time from the rising to the setting of the sun, and that portion of the time after the setting of the sun, or before its rising, during which there is sufficient natural light, other than moonlight, so that the countenance of a man may be distinguished. 16 Am. & Eng. Enc. Law, 707; Tiff. Cr. Law, 594. We think the question as to whether the search was in the daytime was, under the evidence, for the jury.

Judgment as to defendants Sheehan and Collins affirmed, with costs, and that as to defendant Banfield will be reversed, with costs, and a new trial ordered.

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


author: Hooker, J.

text:
    HALL v. CITY OF CADILLAC.
    1. Jury — Wrong Person Summoned — Harmless Error.
    The name N. J. Gran was on the jury list, and was called in making up the jury, being duly answered to. Gustave Gran was in fact the person summoned, and it was he who answered and sat on the jury. He was eligible, and it did not appear that any injury to appellant resulted from his presence.

      Held, that the irregularity was not ground for a reversal of the judgment.
    2. Personal Injuries — Pleading—Defects in Walk — Election.
    Plaintiff in an action for personal injuries, alleged to have been caused by falling at night into a hole in a sidewalk in front of a particular lot, will not be required, because of evidence of more than one hole in such walk into which she might have fallen, to elect to rely on a particular hole in a particular place; it being sufficient that she show to the satisfaction of the jury that the accident occurred as alleged in the declaration.
    3. Same — Damages—Physical Conditions.
    That one whose knee and hip were actually bruised by a fall on a defective sidewalk had previously had rheumatism will not prevent a recovery for the pain and suffering caused solely by the accident, although she was more susceptible to suffering because of her rheumatism.
    4. Same — Existing Ailment — Aggravation.
    But no recovery can be had by her for rheumatism augmented by the accident, where her declaration merely claims damages for a physical hurt, resulting in soreness and lameness.
    5. Same — Pleading—Extent of Recovery.
    Under a declaration in an action for personal injuries, alleging that plaintiff’s knee was forcibly wrenched, and the muscles, tendons, and cords of the limb greatly bruised and injured, whereby she became sick, sore, lame, and disabled, and so remained from thence hitherto, a recovery may be had for the injury sustained and its natural consequences up to the time of the trial, together with such prospective damages of like character as are reasonably probable.

      Error to Wexford; Aldrich, J.
    Submitted June 16, 1897.
    ^Decided July 22, 1897.
    Case by Catherine J. Hall against the city of Cadillac for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Frecl S. Lamb (Sawyer & Bishop, of counsel), for appellant.

      F. O. Gaffney (D. E. McIntyre, of counsel), for appellee.
   Hooker, J.

The defendant has appealed from a judgment based upon its failure to seasonably repair a sidewalk. The plaintiff, a married woman, was injured by a fall caused by stepping into a hole in the walk in the night-time. The alleged errors which are discussed by the defendant relate to — First, the refusal of the circuit judge to require the plaintiff to elect which of two holes in the walk she would rely upon as having caused her injury; second, testimony as to her condition after the commencement of the action, and the charge which allowed a recovery for all damages sustained, up to the time of the trial; third, the charge upon the effect of rheumatism upon her physical condition; fourth, her right to recover for loss of time, through inability to work, it being contended that her services belonged to her husband ; fifth, the refusal to grant a motion for a new trial based upon an irregularity in impaneling the jury; sixth, several rulings upon the competency of testimony.

The name of N. J. Gran was upon the jury list, and was called in making up the jury, being duly answered to. After the trial it was discovered that N. J. Gran was not summoned to attend as a juror, but that one Gustave Gran was, and that he answered to the call and sat upon the jury. It seems to be conceded that he was eligible, and there is nothing to indicate that the defendant suffered any injury from his presence as a juror. No authority is cited to show that the judgment should be reversed in such a case. We are of the opinion that it was an irregularity merely, and does not call for a reversal of the judgment.

A large number of witnesses testified to the protracted existence of a hole in the walk, caused by a breaking down of a plank between stringers. There was some conflict as to whether it was between the middle and outer or inner stringer of the walk. It was into a hole of this description that the plaintiff claimed to have fallen. The mere fact that witnesses disagreed somewhat as to location and distances, coupled with the fact, if it be a fact, that there was satisfactory evidence of another hole, into which she might have fallen, did not call for an election that she would rely on a particular hole in a particular place, and risk her case upon it. Such technical questions, where there is no danger of injury to a defendant, do not conduce to the due administration of justice. The declaration described a ' hole caused by the breaking of a plank in front of a particular lot, and the proof established the fact to the satisfaction of the jury that she fell at such a place. If there were two such holes, it was not very important that she should state which one she fell into, at her peril, and she would not be precluded from recovery if she was unable to tell which, so long as her declaration was broad enough to cover either.

The defendant succeeded in eliciting, upon cross-examination of the plaintiff, that some years before she had rheumatism. It is said that she had rheumatism in her feet, some years before, and that the court ruled that if she had it would not preclude her recovery of damages for the injury actually sustained. It is contended that this might have been a correct rule to apply had the rheumatism and its aggravation been alleged in the declaration. We think that it is not required of a plaintiff in an accident case to anticipate all imaginable theories that the ingenuity of counsel may be able to devise, and to set up in her declaration all physical conditions that have existed from remote periods, and that the result of a failure to do so is not to deprive her of redress, if any of them come to the surface on the trial. If the defendant could show that the plaintiff’s ailments were not attributable to the accident, it would (defeat her recovery or lessen damages; but, if she actually bruised her knee and hip, the fact that she had rheumatism would not preclude recovery for her pain and suffering, attributable solely to the accident although she was more susceptible to suffering by reason of her rheumatism.

Counsel urge that all injury arising from the rheumatism, or aggravated by the malady, should have been excluded, and that the court erred in instructing the jury as follows:

“If you believe from the evidence in this case that there was a latent condition in the blood of this plaintiff, making her system liable to rheumatic trouble, and that by reason of this accident she has suffered from rheumatism, and that such attack of rheumatism was brought about solely by reason of this injury received, and which is described in the plaintiff’s declaration, as above stated, then you would be entitled to consider the condition of her health as produced by such accident, even though you should believe from the evidence in this case that her suffering was augmented and prolonged by the rheumatism which resulted from the injury complained of; but if you find that the plaintiff has suffered from rheumatism during the same time that she has suffered from the effects of this accident, and that the suffering from rheumatism was not caused by reason of such accident, nor augmented thereby, you cannot take such suffering from rheumatism into consideration in making up your verdict. What I mean by that, gentlemen, is this: You cannot allow her anything on account of such suffering from rheumatism. If you find from the evidence in this case that the plaintiff has had rheumatism during the time she has suffered from the results of this accident, and that such suffering from rheumatism was augmented by the condition produced by the accident in question, you can only allow her damages, if any, for such suffering as she has endured by reason of the accident, which would include so much of her suffering from rheumatism as was caused or augmented by reason of the accident.”

This instruction allowed a recovery for an aggravation of a latent trouble, although no allegation of the declaration covered it. The declaration alleged:

“Unavoidably stepped into said hole, and through said walk, in such a way that her right foot and limb went under said walk, and she was thereby thrown and fell to and upon said sidewalk in such a manner that her right knee came in violent contact with one of the planks of said walk adjoining said hole, while the lower portion of her right limb remained under said walk, ,and that she fell in such a manner that the said limb was violently and forcibly wrenched at the knee of said right limb, so that the muscles, tendons, and cords of said limb were greatly injured, and that she was greatly bruised and injured about said limb, and she became and was sick, sore, lame, and disabled, and. so remained for a long time, to wit, from thence hitherto, during all of which time she thereby suffered great pain and distress, and was hindered from attending to her household duties and affairs, and caring for her family, and also, hy means of the premises, was obliged and did lay out divers sums of money, amounting to |200, in and about and endeavoring to be healed of the said wounds, sickness, and disorder.”

It gave no indication of a design to claim damages for rheumatism caused by the effect of this injury upon a system affected by rheumatic tendencies. On the contrary, it charged a physical hurt, — a bruising, — resulting in soreness and lameness of the plaintiff, and presumably such soreness and lameness as would, in a well person, naturally result from such a hurt; not consequential injuries, resulting from a combination of the hurt and extraneous conditions and causes. Shadock v. Plank-Road Co., 79 Mich. 7; Fuller v. Mayor, etc., of Jackson, 92 Mich. 201. We think the charge was erroneous in this respect, and that while, under this declaration, damages for the injury suffered and its natural consequences were recoverable, up to the time of trial, together with such prospective damages of like character as were reasonably probable (Edwards v. Village of Three Rivers, 102 Mich. 155), notwithstanding the plaintiff was a rheumatic person, it was not proper to allow a recovery for rheumatism augmented by the accident, as it was not pleaded. We are therefore constrained to reverse the judgment. We will not discuss other questions, as the law is settled in relation to them.

The judgment is reversed, and a new trial ordered.

Grant and Montgomery, JJ., concurred with Hooker, J. Moore, J., concurred in the result. Long, C. J., did not sit.


text:
    SMALLEY v. ASHLAND BROWN-STONE CO.
    1. Mechanics’ Liens — Answer in Nature of Cross-Bill.
    A mechanic’s lien may be asserted by an answer in the nature of a cross-bill.
    2. Same — Objection to Form of Answer — Special Demurrer.
    An objection to the form of the answer, in that it does not pray for process, should be raised by a special, and not by a general, demurrer.
    3. Same — Construction of Statute.
    The word “due,” as used in section 5 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891), requiring a subcontractor who wishes to avail himself of the statute to file with the register of deeds a true statement of the demand due him, may be construed, in view of other provisions of the act for the enforcement of claims not presently due and payable, as synonymous with “owing," and, so construed, justifies the statement óf a claim, evidenced by notes not due when the statement is filed, as an amount “justly and truly due.”
    4. Same — Proviso—Notice to Owner.
    The proviso attached to section 1 of the lien law as amended, that notice shall be served upon the owner by persons furnishing material or labor, does not introduce a necessary condition to the attaching of a lien, but is designed for the protection of the subcontractor or laborer, enabling him, in case the contractor’s sworn statement does not embody his claim, to place on the owner the risk of payments made to the original contractor.
    5. Same — Pleading—Negativing Exceptions.
    It is not required of the pleader in setting up a mechanic’s lien that he negative the exceptions contained in the statute subsequent to the provision declaring the lien, relieving the owner from the risk of payments made to the contractor after exacting from him a sworn statement as to the amounts due subcontractors, laborers, and material men, and from liability to such persons in any event in a greater amount than he contracted to pay the original contractor.
    Appeal from Wayne; Adams, J., presiding.
    Submitted June 18, 1897.
    Decided July 22, 1897.
    Bill by ’William Smalley and others against the Ash-land Brown-Stone Company, impleaded with Traugofct Schmidt' and others, to enforce a mechanic’s lien. The defendant company filed an answer in the nature of a cross-bill, to which defendant Schmidt demurred. From an order dismissing the answer in so far as it claimed the benefit of a cross-bill, the defendant company appeals.
    Reversed.

      H. H. & G. H. Hatch, for complainants.

      A. G. Pitts, for appellant.

      Walker & Spalding (C. A. Kent, of counsel), for defendant Schmidt.
   Montgomery, J.

Defendant Traugott Schmidt is the owner of a brick building in Detroit, constructed in the summer of 1895. Complainants filed a bill to enforce a mechanic’s lien. Defendant the Ashland Brown-Stone Company filed an answer, claiming the benefit of a cross-bill. To this answer defendant Schmidt demurred, and the demurrer was sustained. Defendant the Ashland Brown-Stone Company appeals.

Some criticism is made of the practice of asserting a lien by an answer in the nature of a cross-bill, but the right to do so is affirmed in Smalley v. Terra-Cotta Co., 113 Mich. 141. Criticism is also made of the form of the answer, in that it does not pray for process; but, if it be assumed that the answer is in that respect defective, the question should be raised by special demurrer, and, as the defendant Schmidt has seen fit to demur generally, process would appear to be unnecessary for the purpose of bringing him before the court.

The answer of the stone company avers that material was furnished in the construction of the building, and that the amount was evidenced by two promissory notes, due, respectively, November 14, 1895, and November 17, 1895; that on the 7th of November, 1895, the stone company filed a claim of lien, setting forth that “there is justly and truly due to the Ashland Brown-Stone Company, from Joseph L. Gearing.[the contractor], over and abovetall legal set-offs, the sum of $2,287.85, for which it claims a lien.” It is contended that, as the claim consisted of notes not due when the lien claim was filed, it cannot be supported by or received under a claim of lien for an amount due. The statute (section 5, Act No. 179, Pub. Acts 1891) provides that the contractor or subcontractor who wishes to'avail himself of the statute shall make and file with the register of deeds a just and true statement or account of the demand due him, over and above all legal set-offs. A form is also given in the statute, which provides for a statement that “there is justly and truly due deponent,” etc. It is conceded that the word “due” is sometimes used to mean “owing,” but it is insisted that in this connection it should be construed to mean “presently payable.” We think this statute should not be so construed. If it be given this construction, one having a lien-for a demand not yet due could not literally comply with the provisions of section 5. This section should, we think, be construed in connection with sections 25 and 26 of the act, which provide for the enforcement of claims not presently due and payable. It is evident that it was not the intention to dispense with all notice by the holders of such liens; and as section 5 contains the only provision as to what such notice shall contain, and requires the claimant to make a statement of the demand due him, and as the word “due” is often used as synonymous with “owing,” it must be inferred that it was employed in this sense in this connection. The case of Brennan v. Miller, 97 Mich. 182, relied upon by appellee, was decided under the law of 1885, which differs materially from the law of 1893. While there is language in the opinion which gives some color to his contention, the case is mainly ruled upon other points.

The answer of the stone company does not aver that the claimant served the preliminary notice provided in section 1. It does aver that the statement required by section 5 was filed with the register, and a copy served on the owner. This presents the question whether the notice required by section 1 is a condition precedent to the lien in favor of the subcontractor or laborer. The question is not free from difficulty. It is contended on behalf of defendant Schmidt that the provision for such notice is introduced by way of a proviso to the provisions of the statute declaring a lien, and it must be admitted that this is not without force. However, it is held that the word “provided” does not always introduce a necessary condition. Chapin v. Harris, 8 Allen, 594; Stanley v. Colt, 5 Wall. 119; Georgia Railroad & Banking Co. v. Smith, 128 U. S. 174. The whole statute should be considered for the purpose of determining the legislative intent. Section 4 provides, for the protection of the owner, that the original contractor shall furnish a statement under oath to such owner, giving the names of all subcontractors and laborers, together with the amount due or to become due to them. Section 1 as amended by Act No. 199, Pub. Acts 1893, provides that “the risk of all payments made to the original contractor after he shall have received the notice above mentioned [the notice by the subcontractor or laborer ], or before the contractor shall have furnished him with a statement, * * * shall be upon the owner * * * until the expiration of 60 days, within which time claims for lien may be filed.” Under this provision, two things are requisite before the owner may make payment to the original contractor with safety: (1) That he shall not have received the notice from the subcontractor, and (2) the sworn statement of the original contractor. It is true that, for his own protection, the subcontractor, if he wishes to prevent a payment which will be valid as against him, must see to it that the sworn statement of the original contractor (if the owner exacts one) embodies his claim, or must himself serve the notice provided by section 1. This view is strengthened by the provision of section 1 that the notice by the subcontractor shall be sufficient, although not served within the 10 days provided, if it be served on the owner before the sworn statement by the original contractor is made. The reason for this is that, if the notice by the subcontractor is not served, the owner may act upon the sworn statement by the original contractor. We think it should be held, therefore, that this provision is for the protection of the subcontractor or laborer, and is not a condition to the lien attaching. See Kirkwood v. Hoxie, 95 Mich. 62 (35 Am. St. Rep. 549); Lamont v. Le Fevre, 96 Mich. 175. We do not overlook the contention of counsel for defendant Schmidt that the word “or,”in the paragraph of section 1 above quoted, should be read “and,” and we recognize the rule which admits of such a construction when the intent is clear, but we do not think this such a case.

It is contended that the answer in the nature of a cross-bill is fatally defective, in that it fails to aver that the owner has paid the principal contractor without exacting from him the sworn statement required by section 4, or that he has not paid all that he contracted to pay. Section 1 provides that the owner shall not be liable to pay to the subcontractor or laborer any greater amount in the aggregate than he contracted to pay the original contractor. This is followed by the clause above quoted, declaring what payments are at the risk of the owner. The provision declaring the lien precedes these provisions, and does not contain any exceptions. These provisions are contained in subsequent clauses. The rule of pleading at common law is that, in declaring on a statute, where there is an exception in the enacting clause, the pleader must negative the exception; but where there is no exception in the enacting clause, but an exemption in a proviso or in a subsequent section, it is a matter of defense. Myers v. Carr, 12 Mich. 63; People v. Curtis, 95 Mich. 212. This rule is also applied in equity. Attorney General v. Oakland County Bank, Walk. Ch. 94. The fact of payment is one peculiarly within the knowledge of defendant Schmidt, and it is no hardship to require that he set it out in his answer.

We have considered at length all the questions which were presented in the court below. Counsel for appellee have discussed other questions, which we think ought not to be determined on demurrer. The decree will be reversed, and the case remanded, with leave to defendant Schmidt to answer under the rule.

The other Justices concurred.


text:
    BISHOP v. LAMBERT.
    1. Municipal Corporations — Cities op Fourth Class — Law op 1895 — Imposition op Taxes — Power op Common Council.
    The action, of the common council of a city of the fourth class, incorporated under Act No. 215, Pub. Acts 1895, in adopting, by a bare majority vote, a motion providing for the employment of firemen at a specified salary per month, is invalid, unless the necessary'funds are already provided, under section 7 of chapter 8, requiring the concurrence of two-thirds of the aldermen elect to impose a tax.
    2. Same — Appropriation op Existing Funds — Presumption op Regularity.
    It will be presumed, however, in the absence of a contrary showing, that the council had provided a fire-department fund, as it is authorized to do by section 3 of chapter 30 of the organic act, and that the expenditure was designed to be made from moneys already raised by taxation and apportioned to such fund.
    3. Same — Appropriation op Money — What Constitutes.
    The employment of firemen by a city council, at a specified monthly salary, constitutes an appropriation of money, within the meaning of a charter provision that such action can only be taken by a majority vote of the aldermen elect.
    4. Same — Proceedings of Council — Validity.
    A charter provision that no resolution appropriating money shall be adopted by the council except by a specified vote cannot be evaded by embracing such action in the form of a motion. ,
    5. Same — Form op Action.
    But it seems that action by a council is not void merely because it was taken by motion, instead of by resolution, as provided by the charter.
    6. Same — Majority Vote — Casting Vote op Mayor.
    Under section 7 of chapter 8 of Act No. 215, Pub. Acts 1895', providing that no money shall be appropriated by cities incorporated thereunder except by ordinance or resolution of the council, and that no resolution shall be passed or adopted “except by the vote of a majority of all the aldermen elected to office, except as herein otherwise provided,” and section 2, giving the mayor the^casting vote in case of a tie, the mayor may vote, in case of a tie, upon a resolution appropriating money.

      Certiorari to Wayne; Carpenter, J.
    Submitted July (3, 1897.
    Decided July 22, 1897.

      Mandamus by William W. Bishop and others, aider-men of the city of Wyandotte, to compel Walter C. Lambert, mayor of said city and ex officio president of the common council, to rescind his ruling in declaring a certain motion carried. From an order denying the writ, re-
    lators bring certiorari.

    Affirmed.
    The relators are aldermen, and the respondent is mayor, of Wyandotte, which is a city of the fourth class. The return shows that on May 3, 1897, all of the six aldermen and the respondent were present at a meeting of the common council, when it was moved “that we proceed to elect three 'firemen, for one month.” Upon this motion three of the aldermen voted “Yea,” and three “Nay.” Thereupon the mayor voted “Yea,” and declared the motion carried. By similar votes, three perspns were then elected, separately, as firemen for one month, each to receive a salary of $40 a month. The relators appealed to the circuit court for an order requiring the respondent to rescind his action in declaring said motion carried and said persons elected. The circuit court denied the writ, and the case is here upon certiorari.

      Charles W. Casgrain, for relators.

      Conely & Taylor, for respondent.
   Hooker, J.

(after stating the facts). The principal questions in the case are:

Was a vote of two-thirds of the aldermen necessary to the employment of these firemen ?

If not, was a vote of a majority of the aldermen elect, exclusive of the mayor, essential to such employment?

This action is shown to have been taken with a view to the performance of police duty by these firemen, in addition to their duties as firemen, as a measure of economy. The contention that an affirmative vote by two-thirds of the aldermen elect was necessary is based upon section 7, chap. 8, Act No. 215,-Pub. Acts 1895, which provides:

“ All meetings and sessions of the council shall be public. A majority of the aldermen shall make a quorum for the transaction of business; a less number may adjourn from time to time, and all pending business and business noticed or set down for hearing at such meeting shall be taken úp and heard at such adjourned meeting without further notice, and the members present may compel the attendance of absent members in such manner as shall be prescribed by rules or ordinance. But no office shall be created or abolished, nor any tax or assessment be imposed, street, alley, or public ground be vacated, real estate or any interest therein purchased, leased, sold, or disposed of, or private property be taken for public use, unless by a concurring yea and nay vote of two-thirds of all the aider-men elect; nor shall any vote of the council be reconsidered or rescinded at a special meeting, unless there be present as many aldermen as were present when such vote was taken. No money shall be appropriated except by ordinance or resolution of the council; nor shall any resolution be passed or adopted except by the vote of a majority of all the aldermen elected to office, except as herein otherwise provided.”

In this connection, sections 1 and 2 may become important, and are therefore quoted:

“ The legislative authority of cities incorporated under this act shall be vested in a council consisting of the mayor, two aldermen elected from each ward, and the city clerk.
“The mayor shall be president of the council, and preside at the meetings thereof, but shall have no vote therein, except in case of a tie, when he shall have the casting vote.”

It is said that the employment by the council of three firemen, at a salary of $40 each, is substantially the imposition of a tax, and therefore requires the concurrence of two-thirds of the aldemien elect, and that, at all events, it was an appropriation of money, and should have been by resolution or ordinance, and that the mayor’s vote could not be counted in making the necessary majority.

In the case of Tennant v. Crocker, 85 Mich. 337, it was held that a resolution authorizing the purchase of land for streets by a committee was the creation of an obligation which, not having been provided for in the annual appropriation bill, could only be discharged through taxation, and that all contracts incurring liability for the payment of money constitute the basis for which taxes may be levied, and are in effect an appropriation of so much money to be raised by tax for that purpose. It was said, further, that—

“It is just as essential that every resolution or ordinance incurring a liability which must be met by taxation should be passed by a two-thirds vote of all the aldermen elect as it is that the appropriation bill should be passed by such vote.”

Under this decision, there seems no way to avoid the conclusion that the contract to pay these firemen $40 per month requires a two-thirds vote, unless we can say or presume that the amount will not have to be raised by taxation. By section 2, chap. 30, of the organic act (Act No. 215, Pub. Acts 1895), the council is authorized to “raise annually by taxation * * * such sum * * * as may be necessary to defray the expenses and pay the liabilities of the city;” and it is provided by section 3 that the revenues raised shall be divided into several general funds, among which is a “ fire-department fund, to defray the expenses of * * * purchasing engines and other fire apparatus, and all other expenses necessary to maintain the fire department of the city.” While this law requires a two-thirds vote for the raising of money, it requires only a majority vote for its appropriation to the payment of obligations, if the money has already been raised. If it appeared that the city had provided no fund that might be lawfully applied to this object, we might feel constrained to hold that this employment was by an, insufficient vote, because creating a contract necessarily dependent on taxation; but this does not appear, and we may presume that the council has provided the necessary fund, or that it would not attempt an expenditure of this kind. It goes without saying that a budget must necessarily, to some extent at least, be based upon estimates of probable and contingent expenditures, rather than on contracts already made, and that it would not be possible to manage the affairs of' any department without a fund which might be used to defray the costs of incidental expenditures. If a fund has been provided to pay firemen, we see no reason why it may not be used to pay such firemen as may have been subsequently employed. We are of the opinion that, upon this record, we cannot'say that a two-thirds vote was required.

That a majority vote was necessary is plain. Was the mayor’s vote one which might be counted ?

If, as counsel for the appellee contend, this action was not the appropriation of money, it may be that the mayor had the casting vote, under section 2, above quoted. If, on the other hand, it was an appropriation of money, it will depend on the construction to be giyen section 7. It is said that this action was taken by motion, and not by resolution or ordinance, as the law requires where monejr is appropriated, and that there was no attempt to appropriate any money for payment of the firemen. We think that this engagement of .firemen at $40 a month was equivalent to an appropriation of money, as it sought to create an obligation which could only be met by the appropriation of money, and is within the reasoning of the case of Tennant v. Crocker, supra, and Fournier v. City of West Bay City, 94 Mich. 463; and we think that the appellee is not in a position to say that this was not done through a resolution, or the equivalent thereof. If a-formal resolution were necessary, it would be fatal to the appellee’s claim, for it is none the less an appropriation of money because the action was taken in the form of a motion, instead of a resolution.

This leaves only the question of construction. The circuit court seems to have looked upon this as an appropriation of money, which required a vote of a majority of the aldermen elect, but considered the right of the mayor to break a tie, by his vote, as an exception to that requirement. If we disregard the exception, the exact and technical language of the section excludes the vote of the mayor. Instead of saying a majority of the council elect, which counsel say consists of seven voting members, as provided by sections 1 and 2, different language is used, and the power is confined to a majority of the aldermen, not of the council. A similar question was passed upon in the case of Fournier v. City of West Bay City, supra, where a resolution, held to be an appropriation of money, received 6 votes, as against 5; 11 of 12 aldermen being present. The resolution was declared carried by the mayor. This was under a charter which made the mayor ex officio a member of the council, with the right to vote only in case of a tie. Counsel disagree about the effect of this decision, but we need not pass upon the meaning of the language used in that case, as the provisions of this law differ from that passed upon, in that an exception is made to the requirement of an affirmative vote by a majority of the aldermen elect to carry a resolution. The provision requiring a vote of a majority of the aldermen elect excludes the efficacy of a vote by a majority of a quorum, while the exception obviates the possibility of a tie.

Our view of the case accords with that, of the learned circuit judge, whose order is hereby affirmed.

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    HUDSON v. SAGINAW CIRCUIT JUDGE.
    1. Executors and Administrators — Liability to Garnishment.
    Where a defendant dies pending the trial, and the suit is revived against his executor, a judgment for the plaintiff therein does not, although the executor admits having the funds on hand with which to pay the same, render the executor directly and absolutely accountable to the plaintiff for the amount, so as to enable a creditor of the latter to maintain garnishment proceedings against the executor before distribution of the estate is ordered by the probate court. Grant, J., and Lon», C. J., dissenting.
    2. Same — Effect of Order of Distribution.
    Whether garnishment would lie under such circumstances after an order of distribution, — qucere.

      Mandamus by Joseph L. Hudson, receiver of the Third National Bank of Detroit, to compel Eugene Wilber, circuit judge of Saginaw county, to vacate an order quashing a writ of garnishment issued against Charles B. Gray and Edward Y. Swift, executors of the last will and testament of Aaron C. Fisher, deceased, as garnishee defend-
    ants of John E. Nolan.
    Submitted January 12, 1897.
    Denied September 14, 1897.

      De Forest Paine, for relator.

      William G. Gage, for respondent.
   Hooker, J.

Nolan brought an action against Aaron C. Fisher in his lifetime, which culminated in a judgment against his executors, the same being affirmed by this court in 111 Mich. 56. Thereupon the relator garnished the executors, but the circuit court dismissed the proceedings, after disclosure, upon the ground that garnishment would not lie against executors.

It is a general rule that property in custody of the law is not subject to attachment or garnishment. The law does not permit one court to assume control over the representative of another court, or the property confided to his charge. By this it is not meant that personal remedies against the individual may not be sought, but that any proceeding in the nature of an action in rem, whereby it is sought to reach the property which another court has taken possession of, is forbidden. Thus replevin from an officer holding under order of the court of chancery is punishable as a contempt. Even suits against a receiver in his representative capacity are forbidden, though the court appointing the receiver may, on cause shown, permit them. The probate court has not even this power respecting its officers, who can only be sued in the manner pointed out by statute, and a garnishee proceeding is not included among statutory proceedings against executors and administrators in Michigan, though it is in some States. That administrators and executors are exempt from this process is the general rule. In Rood, Garnishm. § 27, it is said:

‘ ‘ ‘ When property or money is in custodia legis, the officer holding it is the mere hand of the court. His possession is the possession of the court. To interfere with his possession is to invade the jurisdiction of the court itself. And an officer so situated is bound by the orders and judgments of the court, whose mere agent he is, and he can make no disposition of it without the consent of his own court, express or implied.’ In re Cunningham, 9 Cent. L. J. 208. These principles have been applied in numerous cases to various classes of legal custodians, and in accordance with them it has been held that clerks of courts, trial justices, registers in chancery, masters in chancery, receivers, trustees appointed by a court of chancery, assignees in bankruptcy, trustees for creditors under a general assignment pursuant to insolvent laws, other trustees appointed to dispose of property and apply the avails according to the orders of the court, sheriffs, constables, and other ministerial officers, and their bailees and assistants, justices of the peace, executors, administrators, and guardians, cannot be charged as garnishees by reason of any property or money which they hold or any debts which they owe merely as such officers.”

, In his next section the author says that- — ■

“In a few of the States, - while these principles are recognized as sound, they have been considered inapplicable to certain of the cases above mentioned, either generally or in view of the peculiar provisions of the statute governing the conduct of the particular officer. Among these may be mentioned sheriffs and constables, clerks in chancery courts, justices of the peace, administrators, and executors.”'

Among the cases cited by the author is Hardesty v. Campbell, 29 Md. 533, where the decision rests upon the Code. In the Alabama cases the question is not raised, and, though the jurisdiction over an administrator seems conceded, it rests upon a statute, which is not quoted. Against the few States, the author cites to the contrary cases involving administrators, from Massachusetts, Maine, Arkansas, West Virginia, Rhode Island, Delaware, Vermont, Indiana, and Missouri, to say nothing of a cloud of analogous cases relating to other officers.

Mr. Shinn, in his treatise on Attachment and Garnishment (section 510) says:

“In the absence of special statute, it was an undisputed rule of law that an executor or administrator could not, in his official capacity, be held liable as a garnishee at suit of a creditor of the decedent, or of one who was a legatee or distributee or other creditor of the estate. He is not then considered to be a ‘debtor.’ Neither is he an agent, factor, attorney, or trustee of such creditor, because he. derives his authority from the law, and is obliged to execute it according to law. And it was said that to subject executors and administrators to the process of garnishment might destroy the whole operation and intention of our law of administrators.”

He admits, however, that in many States this rule has been changed by statute, and a long list of cases is given. It goes without saying that decisions based upon a statutory right of garnishment are not to be considered as authority for changing the general rule, unless by analogy a similar construction should be indulged. The author says of the administrator’s liability, where he may be garnished, that—

“In States permitting an executor or administrator to be made a garnishee, he may be held as such whenever the person to whom he is to pay the legacy or distributive share may maintain an action at law against such executor or administrator. After a court has decreed a distribution of the proceeds in the hands of the administrator, such administrator may be held as garnishee. Some statutes permit an executor or administrator to be made a garnishee during the pendency of the settlement of the estate, but no judgment can be rendered against him until a settlement is made, unless he assent to the legacy or admits assets to pay the amount claimed out of the distributive share. Until the distributive shares are ascertained, they cannot be secured by garnishment. In other words, when it is uncertain whether the administrator will have a surplus in his hands or not, he cannot be held as garnishee.” 2 Shinn, Attachm. § 511, and cases cited.

In 8 Am. & Eng. Enc. Law, 1139, a paragraph denying the liability concludes as follows, after citing Brooks v. Cook, 8 Mass. 246:

“The court held that, as the administrator derived his authority from the law, * * * he was not liable to process of this kind, and such has been the almost uniform current of authority, including cases as to executors as well.”

The language of Mr. Rood, who is quoted in support of the doctrine that “the great preponderance of modern authorities * * * holds that, when the purposes of the court have been fully accomplished in respect to the particular funds, by a final decree or order for payment of the same to the defendant by such officer, or his becoming directly and absolutely accountable to the defendant therefor without such order, such property or credit may be reached by garnishing such officer” (Rood, Grarnishm. § 32), if approved, should not be applied to this case, for the probate court is not shown to have made a decree or order for payment, nor have the executors become directly and absolutely accountable to the principal defendant. Such liability becomes fixed when distribution is ordered under sections 5925 to 5931 of 2 Howell’s Annotated Statutes. It does not rest in the authority of other tribunals to determine the status of a fund in the custody of the probate court.

It is said that in Cohnen v. Sweenie, 105 Mich. 643, this court held that a receiver might be garnished with permission of the court that appointed him. The exercise of discretion by a court of chancery having jurisdiction of the fund is a very different thing from the power of other courts to determine what shall be done with it. That case does not rule this. I am unable to see the propriety of holding that the liability or nonliability of an executor becomes a question of fact, dependent upon the quantity of assets and ability of the executor to pay, to be tried by jury or otherwise in as many courts as there are garnishing creditors, to the embarrassment of the settlement of estates, and the overthrow of one of the best-settled rules of general application known to the law.

The writ is denied, with costs.

Montgomery and Moore, JJ., concurrred with Hooker, J.

Grant, J.

(dissenting). The relator brought suit against John E. Nolan and garnished Charles B. Gray and Edward Y. Swift, executors of the last will and testament of Aaron C. Fisher, deceased. Nolan brought suit against Fisher, and upon his death that suit was revived against the executors. Nolan recovered a judgment, which was affirmed by this court. 111 Mich. 56. The executors filed a disclosure, in which they admitted the judgment against them, and that the money was in their hands ready to be paid to such persons as were legally entitled to receive it. The court quashed the proceedings on the ground that a suit of garnishment would not lie against an executor or administrator.

The court granted the order, evidently relying upon White v. Ledyard, 48 Mich. 264. That case differs in its facts from this, in that the garnishee defendant died without making disclosure, and the cause was revived against his administrator, while in this the original suit is directly against the executors. The reason for that decision is found in this statement: “When the cause was revived against the administrator, he, as such, had neither the requisite knowledge nor authority to make a disclosure binding upon the estate.” Clearly this statement does not apply to the present case, where the liability of the garnishee executors to Nolan is fixed by the judgment of the court. That case came within the rule adopted by many courts, — that administrators and executors should not be harassed and delayed in the settlement of their estates by proceedings of this character. It does not hold that under no circumstances can the administrator be garnished, and the case there cited of Blake v. Hubbard, 45 Mich. 1, does not support the proposition. We have held that a receiver may be garnished with the permission of the court. Cohnen v. Sweenie, 105 Mich. 643. Under the disclosure in this case there is no embarrassment of the executors or delay in settling the estate. The right of Mr. Nolan is fixed by the judgment, and the executors have the money with which to pay it. Courts are not uniform in their holdings upon this question. There are those which hold that when the rights of all parties have become fixed, and all that remains is the payment of the money, which is in the hands of the administrators or executors, the fund is subject to garnishment. Rood, in his admirable work on Garnishment, says that—

“The great preponderance of modem authorities,'proceeding upon the principle that when the reason for the rule ceases the rule should not apply, holds that, when the purposes of the court have been fully accomplished in respect to the particular funds, by a final decree or order for payment of the same to the defendant by such officer, or his becoming directly and absolutely accountable to the defendant therefor without such order, such property or credit may be reached by garnishing such officer.” Rood, Garnishm. §§ 32, 33, and authorities there cited.

It must be understood that we are not holding that executors and administrators are generally liable to this process, but only in those cases where their liability to the principal defendant has been fixed, and nothing remains but to pay over the money. Whether an order has been made by the probate court directing the executors to pay the debts.as provided in 2 How. Stat. § 5925 et seq., does not appear. No such order is necessary to authorize them to pay. No such claim is made. The estate is settled, except the payment of the debts and the distribution of the estate in accordance with the will. Nothing but payment remains to be done. The executors cannot be embarrassed, as they admit they are ready to pay. If executors can ever be garnished, I see no reason why they cannot in this case.

We think the court was in error in quashing the proceedings, and therefore the writ should issue, but without costs.

Long, C. J., concurred with Grant, J.


text:
    FORD v. WRIGHT.

    Estates op Decedents — Purchase by Administrator — Vendor and Purchaser — Cloud Upon Title.
    An administrator and guardian of one of the minor heirs at law, in 1879, purchased, in his individual capacity, land belonging to the estate at a foreclosure sale. The youngest minor heir at law did not become of age until September, 1887. 2 How. Stat. § 8702, provides that all persons who are minors when their right to sue for land first accrues may bring an action at any time within five years after attaining their majority. The administrator, on May 11, 1892, contracted to convey to defendant, within 80 days, or thereabouts, a “perfect title” to the land. Held, that the possibility of a valid election by the heir at law to consider the administrator’s holding as a trust for the heirs was a cloud upon his title sufficient to justify defendant’s refusal to accept it.

      Appeal from Wayne; Carpenter, J.
    Submitted February 2, 1897.
    Decided September 14, 1897.
    Bill by George T. Ford and Josephine Ford against Charles Wright for the specific performance of a land contract. The defendant filed an answer in the nature of a cross-bill, praying that the amount already paid on the contract be refunded. From a decree for defendant, complainants appeal.
    Affirmed.

      John Ward, for complainants.

      George W. Radford, for defendant.

       Rehearing denied November 23, 1897.

   Moore, J.

June 27, 1895, complainants filed a bill, praying for the specific performance and foreclosure of a land contract dated May 11, 1892, which reads as follows:

“Detroit, Mich.
“Rec’d of Charles Wright two hundred and fifty dollars ($250), part payment on sale to him of lot four, E. Trombley farm, containing twenty acres, known as the George T. Ford farm, on Woodward avenue, Greenfield township, Wayne county, Mich. We have sold said premises to said Wright, and he contracts to buy the same, on the following terms and conditions: * * * We are to furnish a Burton abstract, and execute and deliver a warranty deed conveying perfect title, in, say, thirty days from date.
“ Witness our hands this May 11, 1892.
“George T. Ford.
“Josephine Ford.
“Charles Wright.”

Defendant interposed an answer in the nature of a cross-bill, in which he asked for a decree in his favor for the amount of the payments he had made on the contract. The bill was dismissed as to complainants, and a decree rendered in favor of defendant for the amount of his payments and interest.

The facts, so far as it is necessary to state them in disposing of the case, are as follows: At the time the contract was signed, a payment of $250 was made. A little later, a payment of $1,000 was made. There is some controversy as to when the abstract was furnished. We do not deem that very material, for no complaint was made as to the matter of time when it was furnished. Upon the receipt of the abstract by Mr. Wright, it was referred to his attorney, who, after examination, pronounced the title defective. The matter was then referred to the attorney for complainants, who declared it to be good. After several conferences between the parties, the abstract of title and the written opinions prepared by the attorneys were, by agreement of the parties, submitted to Hoyt Post, a lawyer of long standing in Detroit, who rendered a written opinion in part as follows:

“I am inclined strongly to the opinion that, in accordance with welhestablished general principles governing trustees, such a purchase by an administrator would be voidable at the election of the heirs at law, and that the court of equity would, on a bill filed within reasonable time after the purchase by the heirs at law, decree that the administrator should hold the title as trustee for them; and this, not on the ground on which some administrator’s sales have been held invalid, — viz., that an administrator, when he acts as seller, cannot become purchaser, — but on the broader ground that one who holds property as a trustee for others shall not be at liberty to deal with or to sell the trust property for his own profit, and that, as to any dealings with the same, he shall, at the election of the beneficiaries of the trust, be deemed in equity to have dealt as trustee for and on behalf of such beneficiaries. The authorities cited by Mr. Radford sustain this doctrine, and I believe it to be a salutary one.
“Here, however, it does not appear that Mr. Ford had in his hands any money belonging to the estate or to the heirs at law with which to make this purchase, and he was undér no obligation, by virtue of his trust, to advance his individual means to save the estate, or to enable the heirs at law to make a profit out of the purchase. Therefore it became necessary for any of the heirs at law to refund to Mr. Ford the money paid for the purchase, if they were to be entitled to claim the purchase as one made in their behalf; and in all such cases equity requires parties who have the right at their election to treat such a purchase as made on their behalf, or as one made at the individual risk of the nominal purchaser, to act with reasonable promptness, and does not permit them to delay and speculate on results without any risk. In this case the sale was made as long ago as 1879, or 13 years ago, and certainly, as to any of the heirs who were then of age, I do not believe any court would now set aside that sale, or decree that Mr. Ford held it as trustee for them. Their long acquiescence has deprived them of their right of election. The question is a pertinent one now, in my opinion, only as to such of the heirs, at law as were minors at the time of the sale, and probably only to such of them as have reached their majority-within the past six or seven years, or perhaps even less than that. This would depend on what the court should hold to be a reasonable time within which they were bound to exercise their right of election. In matters of title tó real estate, a reasonable doubt is almost as serious as a certain defect, and I cannot advise you that his title is good beyond any reasonable doubt. If I am right in my conclusions as to the law, the discrepancies of fact between the statement of the case as made in the paper of Mr. Ward and that of Mr. Radford are not very material; for, as was said in Jewett v. Miller, 10 N. Y. 402 (61 Am. Dec. 751): ‘The rule is entirely independent of the question whether, in point of fact, any fraud has intervened. It is to avoid the necessity of any such inquiry, in which justice might be balked, that the rule takes so general a form.’ ”

After this opinion was received, several conferences were had, in relation to curing what two of the attorneys claimed to be defects. The testimony is conflicting as to just what occurred. We think it fairly established that Mr. Wright was anxious to have the title cleared up, and was willing to carry out the contract, while Mr. Ford thought the title sufficient, and was ready to make the deed. In October Mr. Ford did make a deed, and presented it to Mr. Wright, and asked him to go on with the contract, or else take his money back and surrender his contract. No money was in fact tendered. Mr. Wright at this time had sold a quarter interest in the land, and declined to accept the deed with the title in the condition it was, and declined to throw up the contract, but wanted the title cleared up, and a good deed. After this conference, in October, 1892, the record does not disclose that anything further was done between the parties in relation to the contract until this bill was filed in June, 1895, but it does disclose thát complainant had possession of the land, and that in the winter of 1892 and 1898 complainant cut 'down a number of elm trees upon the premises, which he says were not of much value, but which the defendant says were very valuable as shade and ornamental trees. Considerable heat has been engendered in the discussion of the case, but we do not'discover any evidence of moral turpitude on the part of the litigants. They have each, evidently, been acting according to the advice given them.

The record discloses that in 1868 Eugenia Trombley was the owner of the land in question, and gave a mortgage upon it and three other lots. She died intestate in February, 1869, leaving a number of minor children, the youngest of whom became of age September 29,1887. The husband of Mrs. Trombley was appointed administrator of her estate and guardian of her minor children, and continued to act as such until March, 1877, when he resigned. April 30, 1877, the complainant George T. Ford, who had married one of the daughters of Mrs. Trombley, was made administrator de bonis non of the estate. August 14, 1877, the owner of the mortgage commenced proceedings to foreclose it in chancery, making the administrator and all the heirs at law of Mrs. Trombley defendants. Money was borrowed, and a tender made of one-half of the amount claimed to be due on the mortgage. Mr. Ford, as administrator, filed an answer contesting the lien of the mortgage on lot 4. In October, 1877, Mr. Ford was also appointed guardian of Theodore Trombley, who was then a minor. After a contest in the foreclosure proceeding, a decree was made therein according to the prayer of the bill. The land was sold under said decree to Mr. Ford in May, 1879. There was competition at the sale, and Mr. Ford was the highest bidder. Before the sale he had arranged with his ward that he, Ford, would bid in the property, and that the ward could have a one-third interest therein by paying Mr. Ford one-third of what the property cost, and that the ward should have time in which to make the payment. No misunderstanding has ever existed between Mr. Ford and his ward growing out of the transaction. The ward afterwards decided he could not pay for his one-third interest, and deeded his interest therein to Mr. Ford. This deed was made subsequent to October, 1892. Mr. Ford has been in possession of the premises from the time of the sale until after the contract was made with Mr. Wright. Mr. Ford, as administrator, had not filed his account until subsequent to October, 1892, and did not obtain his discharge until after this litigation was commenced. At the time of the sale to him, he was administrator de bonis non of the estate of the mortgagor named in the mortgage in process of foreclosure, and was also guardian of one of the minor children entitled to a share in said estate.

We find no indication of want of good faith in Mr. Ford, so that the question presented is a purely legal one. Was Mr. Ford in a position to take a good title as an individual, under such circumstances ? It is claimed that, whether he was or not, the statute of limitations has run in his favor; counsel citing 2 How. Stat. § 8698. This might have been true had there been no minor children. Belle Trombley was not of age until September 29, 1887. 2 How. Stat. § 8702, provides that, in case of disability because of being within the age of 21 years, action may be brought at any time within five years after the disability is removed; so that we do not think this claim is conclusive. It is also claimed that, as this was a judicial sale, Mr. Ford was not barred from becoming a bidder; counsel saying: “The principle that a trustee may purchase the trust property at a judicial sale brought about by a third party, which he had no part in procuring, and over which he could not have had control, is upheld by numerous decisions of this and other courts of this country;” citing Allen v. Gillette, 127 U. S. 589. An examination of that case shows that the mortgage which was foreclosed was made, not by the intestate of the administrator, who afterwards bid in the property, but was made subsequent to the creation of the trust relation, by one of the heirs of the intestate, who mortgaged her interest in the estate. It was this interest that was sold and purchased, and the court said of the case:

“The debt itself incurred by complainant constitutes no part of the liabilities of the estate which he, as executor, represents. The sale, when made, touched’ that estate nowhere. It did not diminish its assets in the least, nór withdraw from it any lands subject to the debts of creditors, and to the ultimate partition of the devisees and their assigns. There is nothing in the transaction, from its inception to its final consummation, that imposed upon the defendant any duty incompatible with his right as a purchaser at the sale.”

In the same opinion Justice Lamar said:

“It must be conceded that, as a general rule of equity jurisprudence, a trustee or person acting in a fiduciary character for the benefit of others cannot become a purchaser at his own sale, or acquire any interest therein, without the express consent, or under a special permission, given by a court of competent jurisdiction. The cases cited by counsel for appellant abundantly support this doctrine. It applies to executors and administrators, who are not permitted to derive a personal benefit from the manner in which they transact the business or manage the assets of the estates intrusted to them, but whatever advantage is derived by them from a purchase at an undervalue is for the common benefit of the estate. ”

We think the rule is correctly stated in Jewett v. Miller, 10 N. Y. 402 (61 Am. Dec. 751). In this case Mr. Miller was receiver of an insolvent bank, which had a second mortgage of $10,000. On the foreclosure of the first mortgage, Miller, as an individual, bid in the property. The court say of the transaction:

“It is contended on the part of the defendant, Miller, that-his case is out of the general rule which forbids a trustee to purchase on his own account the trust property, upon the ground that the sale in this case was a judicial sale, made under a decree against the trustee, and based upon a title paramount to the title of the trustee and to the interest of the cestuis que trust. That this is not the rule was adjudged in the case of Van Epps v. Van Epps, 9 Paige, 237, and Iddings v. Bruen, 4 Sandf. Ch. 223, 263. It is hardly possible to state the rule of equity too broadly or too strongly. It will not permit a trustee to subject himself to the temptation which arises out of the conflict between the interest of a purchaser and the duty of a trustee. It was Miller’s duty as receiver to make the property bring the largest possible price, but, as purchaser, this was not his interest. The rule is entirely independent of the question whether, in point of fact, any fraud has intervened. It is to avoid the necessity of any such inquiry, in which justice might be balked, that the rule takes so general a form. After the purchase by Miller, it follows that his cestuis que trust had the right either to demand a resale of the property, or to adopt his purchase as made for their benefit, subject, of course, in the latter case, to his lien for advances. Slade v. Van Vechten, 11 Paige, 21.”

The reason for the rule is so clearly stated in this opinion it is not necessary to amplify upon it. Of course, if the cestui que trust is to get any benefit of the rule, action must be had within a reasonable time after the disability to act is removed. Whether such action has been had in this case or not, we express no opinion, as the proofs and the parties to be affected are not before us.

In the case of Barnard v. Brown, 112 Mich. 452, decided at the April term, there is a full discussion of what constitutes a marketable title. The provision in the contract that was then before us was: “So as to convey tq> them in fee, unincumbered, the title to the lots described in the contract;” and it was held that the requirements of that contract were met by a title based upon continued and adverse possession for a sufficient length of time.* The contract before us has a provision not contained in the contract in the case of Barnard v. Brown. The provision is: “We are to furnish a Burton abstract, and execute and deliver a warranty deed conveying perfect title.”

War. Vend. 760, states the rule:

“In the absence of an express stipulation as to the character of the title to be conveyed, a marketable title is always presumed; while the rulé is fundamental that the purchaser will never be compelled to accept a doubtful title, or one which can only be settled by litigation, or where the purchase would expose him to the hazard thereof. * * * The terms of the contract of sale exercise an important influence upon the application of the rule, however, and in many instances will determine the” question of title when raised. * * * A defect in a record title will, under most circumstances, furnish a defense to a purchaser, particularly where it affects the value of the property, or would interfere with its sale, and thus render it unmarketable; but there is no inflexible rule, in the absence of express stipulations, that a vendor must furnish a perfect title of record, and it has frequently been held ■that defects in the record or paper title may be removed by parol evidence. Where, however, the title depends upon a matter of fact which is not capable of satisfactory proof, or, if capable of that proof, is yet not so proved, the title is not marketable, and the purchaser is undér no obligation to take it.”

It was undoubtedly the intention of Mr. Wright, in requiring a Burton abstract and a perfect title, to insure the getting of a title that would satisfy a prospective purchaser, upon an inspection of the abstract, that the title was good. The title which was presented to him was of such a character as to justify Mr. Post in expressing the opinion that there was a reasonable doubt about it. Under the conditions shown by the record, we do not think Mr. Wright was bound to accept the title offered him.

Decree is affirmed, with costs.

Long, C. J., Grant and Hooker, JJ., concurred with »Moore, J. Montgomery, J., concurred in the result.