text:
    BUELL v. MENOMINEE RIVER LUMBER CO.
    Equity — Laches—Trusts.
    Delay of over thirty years in. the enforcement of a trust in real property, which, the circumstances tended to show, had been, with the consent or acquiescence of complainant, conveyed by quitclaim deed by the trustee to third parties, bars the attempted enforcement of the trust, on the ground of laches.
    Appeal from Dickinson; Stone, J.
    Submitted June 31, 1910.
    (Docket No. 116.)
    Decided September 28, 1910.
    Bill by John L. Buell against the Menominee River Lumber Company, the Chicago, Milwaukee & St. Paul Railway Company, and William J. Turner to obtain the appointment of a successor to a deceased trustee, for the cancellation of certain deeds, and for an accounting. From a decree for defendants, complainant appeals.
    Affirmed.

      A. L. Sawyer, for complainant.

      E. C. Eastman (D. H. Ball, of counsel), for defendants.
   Blair, J.

The bill of complaint in this suit was filed March 30, 1908, to obtain the appointment of a trustee to succeed a deceased trustee, or to induce the court of chancery to execute the trust, to obtain the cancellation of certain deeds of the real estate constituting the subject-matter of the trust, and for an accounting.

It appears from the evidence, and the court found, that in the summer of 1875 negotiations were entered into by and between complainant and the defendant Menominee River Lumber Company for the laying out and platting of a town site in lands described in the bill of complaint which then belonged to said defendant. When these negotiations were begun, a railroad was being projected across said lands by the Chicago & Northwestern Railway Company, and it was the desire of the parties to have ■a depot established on said proposed town site. Pursuant to said negotiations, and in consideration of the trust agreement, the complainant directed the survey and cutting out of streets for the plat, and in that connection paid out from $600 to $800 as the expense of the work including the survey. Under date of September 14, 1875, pursuant to said negotiations, said defendant Menominee River Lumber Company, by warranty deed, conveyed the land in question, consisting of six 40’s to Daniel Corry. and, concurrently with such conveyance, said Daniel Corry and said lumber company entered into an agreement which, after reciting the deed to Corry of the real estate in question, contained, among others, the following provisions:

“And whereas the said lands were deeded to said Daniel Corry, party of the first part, in trust for the said Menominee River Lumber Company, John L. Buell of Menominee county, Michigan, and the said Daniel Corry as will hereinafter appear: Now, therefore, this indenture witnessth: that the said Daniel Corry for and in consideration of the sum of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, hereby agrees and binds himself to pay to said Menominee River Lumber Company, and John L. Buell from,the proceeds of sales he shall make of the above lands or portions of them amounts as follows: First. The gross amount of all sales made by him shall be paid to the Menominee River Lumber Company till the sum of $300.00 with interest thereon at the rate of seven per cent, per annum from the date of this agreement shall be fully paid. Second. From the moneys received by him derived from the sale of said lands or any portions thereof after paying the sum of three hundred dollars aforesaid, and after paying all taxes and the expenses attendant upon clearing up and grading streets and alleys and in surveying and platting the same, he shall pay three-fifths (f) of the proceeds remaining to the Menominee River Lumber Company, one-fifth (£) of the same to John L. Buell and one-fifth (§) to himself, the said Daniel Corry, which said one-fifth (£) each to said Daniel Corry and John L. Buell it is mutually understood and agreed shall be in full for all services rendered by them; payments to be made as fast and as soon as the money derived from such sale is received. And the said Daniel Corry hereby agrees and binds himself to keep a complete record of all sales made by him and of all moneys paid out or expended, which shall at all times be open to the inspection of said Menominee River Lumber Company and John L. Buell; it is mutually understood that the pine timber suitable for lumber now standing on the herein described lands and the minerals (if any there be) on or in or under them shall remain and be in full the property of said Menominee River Lumber Company; and that it shall have the right to enter upon the said lands at any and all times within the period of five years for the purpose of cutting, protecting or removing the said timber and at any or all times for the purpose of prospecting for, mining or moving ore.”

The deed and agreement were duly recorded in the office of the register of deeds. The railway company declined to establish a depot on these lands but placed it a .half mile west thereof, and, in consequence, the principal object of the parties to the trust agreement failed and the lands became substantially valueless for purposes of sale. Corry, the trustee, made no sales, and on April 9, 1877, he made the following agreement with complainant:

“Know all men by these presents, that I, Daniel Corry, of Cedarville, State of Michigan, do hereby agree with John L. Buell of Menominee, State of Michigan, that I will recognize and affirm all sales and contracts that said John L. Buell may enter into with any person or persons by sales or contracts of any and all lots in the town of Sturgeon, meaning the village site of Sturgeon now platted, but not recorded and situated upon the north half of N. W. i section 14, township 39 N. of range 29 W. Menominee county, Michigan. Provided that no sale or contract shall be made with any person or persons for the sale of more than two lots to any one party or parties. This contract shall remain in full force and effect for the term of one year and shall terminate on the 9th day of April, A. D. 1878.”

Complainant made no effort to sell lots under this agreement, probably because he knew that such effort would be unavailing, and on July 18, 1879, Corry and wife executed a quitclaim deed of the lands to the defendant lumber company, which were thenceforth treated, used, and disposed of by such company as its individual property. This deed was duly recorded December 17, 1879, but complainant testified that he had no knowledge of it prior to 1907, and during all of that time considered that he was the owner of the interest acquired under the trust deed. The entire conduct of complainant and the surrounding circumstances are inconsistent with his testimony. He was a very intelligent man, living within six or seven miles of the land, experienced in, and familiar with, real estate transactions, and dictated the trust agreement himself. He was engaged in selling real estate, exploring for and exploiting; mines, and in other money-making projects, and may reasonably be presumed to have had the usual regard of men for their own property interests. The fact that he made no inquiries with reference to these lands and apparently took no further interest in them after the expiration of his power of attorney until years after the death of Corry, which occurred January 5, 1893, satisfies us that he either knew of the quitclaim deed and acquiesced therein or considered his interest of no value and abandoned it. His testimony that he did not know of the deed, but supposed for over 30 years that he had a valid, subsisting interest, is overcome, in our opinion, by the circumstances of the case as we find them to be established by the testimony..

The complainant was, as held by the lower court, guilty of such laches as to bar his suit.

The decree is affirmed.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STANDART BROS. v. INGHAM CIRCUIT JUDGE.
    1. Receivers — Suit in Name of Receiver — Creditors of Dissolved Corporation.
    In proceedings for the dissolution of a corporation, for which a receiver has been appointed, the circuit court in which the proceedings are pending may exercise its discretion in permitting, or in refusing to permit, the receiver to employ the fund in litigation at the request of some creditors, and against the objection of others.
    2. Same — Discretion—Suits by Receiver.
    Such discretion may be affected by the apparent hazard of the litigation.
    3. ' Same — Equity—Expenses.
    , It is inequitable to impose a condition that the interested creditors shall give security for the costs and expenses of the proceeding without giving them the right to be first paid from the fund which may result from the litigation.
    Mandamus by Standart Brothers, Limited, to compel Howard Wiest, circuit judge of Ingham coifnty, to grant an order allowing relator to bring an action at law in the name of the receiver of an insolvent corporation.
    Submitted October 4, 1910.
    (Calendar No. 24,266.)
    Writ granted October 5, 1910.

      Bernard B. Belling, for relator.
    , G. P. Black, for respondent.
   Per Curiam.

The circuit court, in chancery, having control of the receiver of a corporation and of the fund in his hands, may exercise discretion in permitting, or in refusing to permit, the receiver to employ the fund in litigation desired by some of tbe creditors of the corporation and not desired by others. The exercise, of this discretion will be influenced by the apparent hazard of the litigation proposed to be carried on. We see no reason for saying that discretion was not properly exercised by the court below, in view of all the circumstances disclosed, in refusing the receiver permission to employ the fund in the litigation proposed to be carried on. But the considerations which support the ruling of the court in this respect also require the order which was made to be modified, because it is inequitable to permit the receiver to proceed only upon the condition that all costs and expenses to be made shall be secured and paid by petitioning creditors desiring the litigation, and to deny such creditors, and others who may care to contribute, the right to be first paid out of the fund, if any, which shall be the result of the litigation.

The order will be so modified as to provide that all creditors of the corporation contributing to the costs and expenses of the litigation shall be first paid, not only disbursements but their unpaid demands, out of any moneys recovered by said receiver. No costs are awarded.


author: Moore, J.

text:
    NICHOLS v. NICHOLS.
    Divorce — Alimony and Expenses — Appeal and Error.
    Although a complainant’s bill for divorce against his wife was dismissed, with an allowance of costs to defendant, who appeals on the ground that the allowance was insufficient and that the court denied her cross-bill praying to have a certain contract of separation set aside, an allowance may be made for preliminary expenses and attorney's fees on motion in the appellate court.

      Bill by George H. Nichols against Elizabeth Nichols for a divorce. Defendant filed an answer in the nature of a cross-bill asking affirmative relief. A decree was entered dismissing both the bill and the cross-bill, from which defendant appealed: On motion of defendant for an allowance for expenses pending the appeal.
    Submitted July 14, 1910.
    (Calendar No. 24,315.)
    Motion granted October 28, 1910.

      Sloman & Slomcm, for the motion.

      Lucking, Emmons & Self man (G. H. Nunnelly, of counsel), contra. ,,
   Moore, J.

In the matter of the petition of Elizabeth Nichols for allowance to pay expenses of appeal.

George H. Nichols and his wife, Elizabeth Nichols, after living together a long time, separated, and a contract was made between them by which he was to pay her $7 a week for her own support, and $5 a week for the support of their 11-year old son. Later Mr. Nichols filed a bill of complaint for the purpose of obtaining a decree of divorce upon the ground of cruelty. Defendant answered this bill. Later the bill of complaint was amended and an answer was interposed by the defendant in the nature of a cross-bill, in which defendant asked for affirmative relief by having the contract referred to above set aside. After a full hearing running through 13 days, a decree was entered dismissing complainant’s bill of complaint, and also dismissing the cross-bill, but without prejudice. In this decree it was provided that complainant pay a solicitor’s fee of $125, and the witness fees and legal expenses of obtaining them. The defendant has appealed from this decree, and files an application in this court for a solicitor’s fee, for temporary alimony, and for a sufficient sum of money to pay for a transcript of the testimony, and to pay for the printing of the record and briefs.

On the part of the complainant, it is insisted that, as complainant’s bill of complaint in which he applied for -a divorce has been dismissed, from which decree he has taken no appeal, the question of divorce is eliminated from the case, and that this court is without authority to make any order in the premises. We think this contention cannot be sustained. The proceeding is a divorce proceeding, and the question of costs and the question of the contract are incidents thereto. The solicitors for the defendant claimed that only a tithe of the costs was allowed to them that should have been. They also urge that a very generous allowance should be made to them for their services in this court.

The questions involved in the main case are such that they cannot very well be disposed of upon ex parte affidavits. We think an allowance of $100 for solicitor’s fees and $150 for expenses may be made now, and any other allowance may well await a disposal of the case upon its merits.

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


text:
    KAISER v. DETROIT UNITED RAILWAY.
    Appeal and Error — Dismissal of Writ of Error — Remand-Motions.
    Where a bill of exceptions was settled irregularly because the last order extending the time was entered without cause shown, and defendant had caused a writ of error to issue, return to he made and had the record printed, he was permitted to dismiss the writ of error on terms, issue a new writ and include the original printed record as a portion of the record on the second appeal.

      Case by Christopher E. Kaiser against the Detroit United Railway for personal injuries: On motion to remand the record and permit appellant to apply for an extension of time to settle a bill of exceptions.
    (Calendar No. 24,053.)
    Submitted October 18, 1910.
    Motion granted November 4, 1910.

      Brennan, Donnelly & Van De Mark, for the motion.

      William M. Mertz, contra.

   Per Curiam.

After various extensions of the time to settle a bill of exceptions in this cause, one was settled, the record was brought into this court by writ of error, and was printed. It appears by affidavit that the judgment was entered November 5, 1909, the writ of error issued May 13, 1910, and return thereto was made June 11, 1910. On application of the plaintiff, we held, in a mandamus proceeding brought to set aside the last order extending the time for settling a bill of exceptions, that the last order made extending the time was made without authority. Kaiser v. Wayne Circuit Judge, 162 Mich. 247 (127 N. W. 336). We also said that the court below had no jurisdiction upon cause shown to extend the time to settle exceptions. Later, at the present term of court (162 Mich. 250 [127 N. W. 922]), we filed an opinion modifying the former opinion (in such manner as not to deny the power of the court to entertain a motion, upon cause shown, to extend the time to settle exceptions. Defendant now moves for an order remanding the record for the purpose of enabling the defendant to move the trial court for an order extending the time for settling a bill of exceptions and to permit an amended return to be made to the writ of error heretofore issued, within a time to be fixed.

There is no reason why plaintiff in error should not be permitted to dismiss the writ of error upon payment of costs. Upon such dismissal a new writ may at once issue, whether exceptions have been settled or not. The circumstances are peculiar, and if, as seems to be probable, some of tbe cost and expense of bringing the cause into this court and of printing the record can be saved in case the court below now settles a bill of exceptions, no good reason is perceived for denying the motion to remand the record.

Defendant may have an order dismissing the writ and remanding the record. If exceptions are settled, the further record of the proceedings in that behalf may be printed, attached to, and made a part of the present record. But the order will be entered upon condition that, if a new writ of error is issued and returned, the cause, at the option of the plaintiff, stands for hearing at the Januuary, 1911, term of this court, and that defendant tender and pay to plaintiff, or his attorneys, an attorney fee of $25.


author:
Hooker, J.
      Moore, J.
      Blair, J.

text:
    LESSNAU v. CATHOLIC ORDER OF FORESTERS.
    1. Insurance —Fraud—Warranties—Fraternal Beneficiary Society.
    Deceased applied for admission to a fraternal beneficiary order, representing that he was a polisher. In accordance with the rules of the association he underwent a medical examination and stated in a subsequent application that his occupation was drawing dirt and he had no regular employment. The representations were true at the time. A committee of defendant having investigated his standing and the truthfulness of his representations, recommended his admission to the society. In the benefit certificate thereafter issued to the insured, a clause provided that the statements of the first application for membership should be warranties in the contract. At the time of his death the insured worked as a metal polisher, an occupation prohibited to members of the order. Held, that the preliminary application truly stated the occupation of the insured, and that, after an investigation of the facts, the receipt of dues and premiums during the lifetime of insured estopped the defendant from questioning the validity of the policy on the ground of fraud. Hooker and Brooke, JJ., dissenting.
    8. Same — Pleading—Noticie of Defense.
    A notice of fraud in procuring the policy of insurance, under a plea of the general issue, relieves the plaintiff of the necessity of showing that due proofs were furnished of the death of insured or that he was a member of the order in good standing at the date of his decease.
    S. Same — Pleading—Amendment—Praotioe.
    It was not error, in an action that had been pending for more than a year, after the trial of the case had continued for some time and defendant entered upon its defense, for the court to deny an application of defendant to amend its notice ■of defense by inserting an allegation that deceased had •changed his occupation after the issuance of his benefit certificate and had thereby invalidated his policy.
    "Error to Wayne; Murfin, J.
    Submitted January 13, 1910.
    (Docket No. 70.)
    Decided November 11, 1910.
    Assumpsit by Mary Lessnau against the Catholic Order of Foresters on a policy of insurance. A judgment for plaintiff is reviewed by defendant on writ of error.
    .Affirmed.

      Thomas W. Thompson (Devine & Snyder, of counsel), for appellant.

      Dohany & Dohany, for appellee.
    Defendant’s appeal is from a directed verdict and consequent judgment upon a mutual benefit policy. The defendant order — i. e., the supreme court — has its office in Chicago; local subordinate courts being established in many places. All policies are issued under established by-laws, and these provide that one desiring to join a local court and obtain a policy of insurance, which only issues from the supreme court, must proceed as follows:

      (1) He must be proposed for membership in a prescribed •manner and form, and in the proper local court. In connection with such proposal he must state over his signature many prescribed things. His proposal must be indorsed by two members of the order in good standing. ^ If upon presentation and reading “any such proposal” it is found that all statements subscribed by him indicate his eligibility to membership — the passing of the medical examination being excepted — the proposal shall be referred to an investigation committee of three members, who shall investigate the truth of his statements, and other matters in relation to his eligibility and desirability as a member, and, upon a favorable report, he may be admitted to membership by vote of the local court, subject to the action of the supreme court.
    (2) After election he must appear before the medical examiner for the “purpose of making a formal application for membership, and undergoing a medical examination.”
    (3) In this formal application for regular membership the applicant shall, over his full signature, state the amount of benefits that he desires to carry, the name of the beneficiary, and many other things, including “the nature and name of his business or occupation,” and that he agrees, if any of the statements or any of the answers made to the medical examiner’s questions are found to be fraudulent, to forfeit on behalf of himself and his beneficiaries “all rights in and all moneys paid by him into the order.”
    (4) Every “ formal application for regular membership, together with the records of the applicant’s medical examination, shall, without delay, be forwarded to the high medical examiner, by the medical examiner,” for approval by him, etc.
    (5) Persons engaged in any of the following occupations shall not be eligible to regular membership. (Here follows a long list of occupations, including “ professional .metal or tool polisher.”)
    (6) Any member of the order who changes his occupation from either the “ ordinary or hazardous ” class to the “prohibited class shall by that fact lose his membership.”
    These provisions are found in the by-laws, and de- • ceased’s standing at the time of his death must be tested '.by them.

      The proposal for membership was in writing signed by two persons, presumably members of the order. Appended to it was a blank containing questions only partially filled by answers, and signed by the deceased. It was not dated, but it is apparently conceded to have been presented to the local court in November, 1905. It stated deceased’s occupation as that of a “polisher.” Presumably the regular course was taken by the local court. The formal application for membership was dated January 21, 1906. In it deceased stated:
    “ My occupation is that of driver of dirt wagon, and my place of business is at No. 730 Hancock street. * * * I do hereby certify and declare that the statements by me made above are each and all true in fact, and I do hereby warrant said statements and each one of them to be true in fact, and I do hereby agree that, should any statement so made by me be untrue in fact, * * * or should any concealment of facts be made by me in this application, that then and in such case I do thereby forfeit the rights of myself and of my beneficiary or beneficiaries, and of any and all other persons whomsoever to any and all benefits and privileges of the order, including all claims and demands by virtue of any benefit certificate that may have been issued to me by said order, and including also all moneys paid by me to said order for any purpose whatsoever.”
    It was duly signed by him, and in the remarks appended thereto by the medical examiner such officer said:
    “Applicant has no particular employer; takes jobs of hauling dirt, etc.; owns team and wagon.”
    A certificate of approval by the high medical examiner was made and sent to the high secretary immediately after initiation and was received on February 16, 1906.
    ■The policy was dated and delivered February 13th, which appears to have been the date of the initiation. It contained the following provisions:
    “ (1) The statements made by said member in the proposition blank, signed by him at the time of his proposal as a member of said Catholic Order of Foresters, are hereby acknowledged and declared by him to be the warranties and to be made a part of this contract.
    “(2) The representations and agreements made and subscribed by him in the application and medical examiner’s blanks and the answers given and certified by him to the medical examiner are hereby acknowledged and declared by him to be warranties and to be made a part of this contract.
    “ (3) The person to whom this certificate is issued shall at the time of his death be a member in good standing of the Catholic Order of Foresters, and shall have complied with all the laws, rules, regulations, and provisions of the constitution and by-laws of the Catholic Order of Foresters and said court at the time of the death of said person.
    “ (4) The constitution and by-laws governing the Catholic Order of Foresters and the said court at the time of the initiation into the said court of the person to whom this certificate is issued and all amendments, additions, alterations that may be made thereto at any time during the continuance of this certificate at any time prior to the death of said person are declared to be a part of this contract.”
    After the death of the member, his widow, the plaintiff, began this action, filing a declaration as commencement of suit. The defendant pleaded the “general issue” accompanying the same by a notice alleging:
    “(2) That the statements contained in said application were made by Joseph Lessnau for the purpose of securing membership in the benefit fund of the Catholic Order of Foresters.
    “(3) That Joseph Lessnau made the statements contained in said application, understanding that defendant relied upon the truth of the same, in considering his application for membership. That the statements of fact contained in said application were in fact warranties upon the truth of which defendant relied in passing upon said 'application.
    “(4) That the statements in said application were not true, but were untrue and false, in the following respects: In said application signed by him Joseph Lessnau stated his occupation to be that of ‘ dirt wagon driver,’ the owner of a team and wagon, and had no regular employer. In reality, at the time of signing said application Joseph Lessnau was earning his livelihood as a professional metal or tool polisher. That he followed this calling uninterruptedly during the time of his alleged connection with the Catholic Order of Foresters until his death.
    “(5) That, if defendant ever entered into the contract or issued the policy of insurance set forth in plaintiff’s declaration, said certificate of insurance was issued only pursuant with and upon the conditions named in the constitution and laws, rules, and regulations of said defendant.
    “(6) That the constitution, laws, rules, and regulations of the Catholic Order of Foresters did not provide for the issuing of a certificate to any applying for the same, who was engaged in the trade or occupation of a professional metal or tool polisher. That persons engaged in the work or occupation of professional metal or tool polishers were not eligible to membership in said organization.
    “(7) That Joseph Lessnau, knowing this provision in the constitution, laws, rules, and regulations of said defendant, fraudulently represented himself in his application for membership as a driver of a dirt wagon, when, in fact, his occupation was that of a professional metal or tool polisher.
    “(8) That Joseph Lessnau was not, according to the constitution, laws, rules, and regulations of the order, eligible for membership in the Catholic Order of Foresters,
    “(9) That, if the benefit certificate or policy of insur anee relied on in plaintiff’s declaration was ever issued by defendant, it was procured by the false and fraudulent representations of Joseph Lessnau.
    “(10) That Joseph Lessnau (husband of plaintiff) never was a member of the Catholic Order of Foresters, nor entitled to participate in its benefit fund.”
    A verdict was directed for the plaintiff.
   Hooker, J.

(after stating the facts). There is testimony in this case from which the jury might have found, had they been given the opportunity, that, while in his answer to the question accompanying the proposal of his name for membership the deceased stated that he was a “polisher” (which was not necessarily within the term “metal polisher”), he was in fact at that time engaged in the occupation of a “professional metal polisher,” a prohibited occupation. Some two months later, when he made his formal application, he stated that his occupation was that of “driver of a dirt wagon.” There is possibly some testimony, not hearsay, tending to show that at that particular time he drove a dirt wagon for a few days, but it is not very convincing, and, taken in connection with the fact — not disputed, we understand — that a few days later he was engaged in, and continued to follow, his occupation of polishing brass to the time of. his death, the jury, had they been permitted, might have found his formal application fraudulent. They should not have been deprived of this opportunity unless there was some valid legal reason for saying that, in spite of the existence of such fraud, plaintiff was entitled to a verdict.

We understand that the learned circuit judge took the view that the required investigation by the local court’s committee should have and did put that court in possession of the fact that the deceased was a metal polisher at the time they were called to investigate the proposal for membership, and that, although he later in his formal application misrepresented his occupation, the defendant is estopped and cannot be permitted to deny its liability by reason of the knowledge of the local lodge, and the assumption that it knew of the fact that deceased had stated in the proposal for membership that he was a “metal polisher.” It does not appear that the local court ever knew that deceased was a metal polisher. His first statement was that he was a “polisher,” and many kinds of polishing were not prohibited. There is no syllable of proof that the committee ever ascertained that he was a metal polisher. Even if they attempted to ascertain a fact to which there was nothing in the proposal to especially call their attention, he may have falsified about it, as he is said to have done in his second application'. Nothing goes to show any further knowledge than the contents of the preliminary application afforded upon the part of the local court, or that the proposal was ever returned to the superior body. Again, conceding that deceased’s occupation as a metal polisher was known by it, the defendant had a right to suppose that, if the deceased had ever followed the prohibited occupation, he had abandoned it, and engaged in an ordinary calling not precluding his admission.

But further than all this, if the deceased’s statement when finally made was untrue, and his alleged occupation at that time a temporary expedient to get admitted to the order, he knew that he was making a fraudulent statement or concealment upon which he expected defendant to rely, and upon which it had a right to rely, and, so far as the knowledge of the local court is concerned, this situation would preclude plaintiff from asserting that defendant was bound by the knowledge and collusion of the members thereof if they can be said either to have been defendant’s agent or had the knowledge. The case of Mudge v. Supreme Court I. O. F., 149 Mich. 467 (113 N. W. 1130, 119 Am. St. Rep. 686, 14 L. R. A. [N. S.] 379), is a case in point, and many authorities are there referred to. To say the least, there was a question for the jury on this point. Some of the cases cited indicate that the doctrines of estoppel and waiver have been greatly overworked in this class of cases in the enforcement of contracts that have not been made, or the evasion of conditions precluding relief, which have been deliberately made by the contracting parties. The recent case of Showalter v. Modern Woodmen, 156 Mich. 390 (130 N. W. 994), is an authority upon the questions here discussed. What has been said in the present case is not meant to indicate that any knowledge brought to the local court can constitute an estoppel against defendant on this record.

There is another feature of this case that demands attention. Whatever else appears, it is clear that, if — as the court seems to have properly held — the deceased was a professional metal polisher at the time of his death, his policy was rendered void by the change of occupation, if, as contended by plaintiff’s counsel, he was bona fide engaged in another occupation when he made his formal application. We are compelled to say that the learned circuit judge was right in determining that this defense was not set up in the plea, and no showing was made which requires us to hold that the denial of the motion to amend the notice was erroneous. At the same time, that was a meritorious defense, and an amendment might well have been permitted, and, had it been, we should not have considered it error. It could have been permitted on such terms as would have protected plaintiff, and whether plaintiff would consent to “withdraw a juror or not.” There is no reason now why defendant should not be permitted to amend the notice, as the judgment should be reversed, for the reasons indicated. There are some other questions that should be referred to, in view of a possible new trial. The defendant by its pleadings was precluded from questioning the proofs of loss, as shown by the following cases, cited by plaintiff’s counsel: O’Brien v. Insurance Co., 52 Mich. 181 (17 N. W. 726); Lum v. Insurance Co., 104 Mich. 397 (62 N. W. 562); Douville v. Insurance Co., 113 Mich. 158 (71 N. W. 517); Hoffman v. Hospital Ass’n, 128 Mich. 323 (87 N. W. 265, 54 L. R. A. 746); Hare v. Protective Ass’n, 151 Mich. 225 (114 N. W. 1009); O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911).

It was contended by plaintiff’s counsel that the proof did not show that the occupation said to have been followed by deceased was that of a “professional metal polisher.” We think it established on this record. The judgment should be reversed and a new trial ordered, with direction to permit defendant to amend its notice in the particular mentioned. Baker v. Protective Ass’n, 118 Mich. 431 (76 N. W. 970); Browne v. Moore, 32 Mich. 254; Johnson v. Kibbee, 36 Mich. 269; Hopkins v. Briggs, 41 Mich. 175 (2 N. W. 199); Beecher v. Wayne Circuit Judges, 70 Mich. 367 (38 N. W. 322); Morley v. Insurance Co., 85 Mich. 217 (48 N. W. 502); Smith, Sturgeon & Co. v. Grosslight, 123 Mich. 87 (81 N. W. 975).

Brooke, J., concurred with Hooker, J.

Moore, J.

This is an action brought to recover the sum of $1,000 claimed to be due to the plaintiff by reason of the death of her husband, Joseph Lessnau, under a certificate of insurance issued to him. The defendant pleaded the general issue and gave notice that it would show in its defense that the constitution, laws, rules, and regulations in force at the time Lessnau made application for membership in the order provided that no person should be eligible for membership in the order who was engaged in the trade or occupation of a professional metal or tool polisher; that Joseph Lessnau, knowing this, fraudulently represented himself in his application for membership to be a driver of a dirt wagon, having no particular employer, whereas, as a matter of fact, he was actually engaged in such prohibited occupation at the time-he made application for membership in the defendant society ; that by such application he agreed that all statements made by him with reference to his occupation were true, and defendant relied upon the truth of the same in passing upon said application. In the month of November, 1905, Joseph Lessnau applied for membership in. what defendant calls a preliminary application. In this-application the deceased gave his employment as that of a polisher. After deceased had been investigated by an investigating committee appointed by the local court, and had been duly balloted upon for membership in the local court, he made a second application, which defendant calls a formal application. This application is dated January 21, 1906. In it Mr. Lessnau stated that his occupation, was that of a driver of a dirt wagon, and his place of business at 730 Hancock street, and that he had no employer, and took jobs of hauling dirt, etc. At the time he executed this application he was subjected to a physical examination. The formal application for membership, together with the physical examination, were forwarded to Chicago, and the benefit certificate of insurance sued upon, in this action was issued. After both parties rested, the< court directed a verdict for the plaintiff. A motion for a, new trial was overruled, and defendant brings the case here by writ of error.

We quote from the brief of counsel:

The case presents seven principal questions:
“ First. Did the court err in not requiring the plaintiff to produce testimony showing that proofs of death were furnished or offered to be furnished ?
“Second. Did the court err in denying defendant’s motion to direct a verdict for the defendant on the ground that there was no evidence to show that the insured was. a member in good standing of the Catholic Order of Fox’esters, nor that he had complied with the rules, regulations, and by-laws provided in the constitution and bylaws?
Third. Did the court err in not permitting the defendant to amend its plea and notice ?
Fourth. Should the court have directed a verdict for' the defendant ?
“Fifth. Did the court err in not submitting the case to the jury and giving defendant’s requests to charge ?
“Sixth. Did the court err in not submitting to the jury defendant’s five questions of fact ?
“Seventh. Did the court err in directing a verdict for the plaintiff ?”

Groups 1 and 2 may be considered together: Under defendant’s plea and notice, the only defense urged is that fraud, misrepresentation, and deceit were practiced by deceased as to his occupation in obtaining the benefit certificate, and for that reason he was never a member of defendant order, (a) Under this plea and notice, it was not incumbent upon the plaintiff to show proofs of death., (5) Under defendant’s plea and notice, it was not incumbent upon plaintiff to prove that deceased was a member in good standing at the time of his death. See Hare v.. Protective Ass’n, 151 Mich. 225 (114 N. W. 1009), and cases cited; O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911).

8. Did the court commit reversible error in declining to permit defendant to amend its notice under the plea, so as to show deceased had changed his employment from that of driver of a dirt wagon at the time of his formal application to a prohibited employment at the time of his death ? The case was commenced December 27, 1907. The hearing was had in August, 1909. After the plaintiff had made her case, and defendant had entered upon its defense, the following occurred:

“Mr. Snyder: Then I will ask leave to amend the plea.
“Jfr. Dohany: That is objected to, your honor.
“Mr. Snyder: Upon what ground? A plea, may be amended at any time.
“The Court: No question about that. It is entirely within the discretion of the court, but I take it that counsel come into court on one theory.
“Mr. Snyder: We are in court on both theories.
“Mr. Dohany: They want to ride two horses now. They are not satisfied with riding one.
The Court: The difficulty is here: If this were the plaintiff asking for leave to amend, we could do it very nicely by giving him leave to withdraw a juror and giving the defense an opportunity to prepare. In this case -the defense is asking leave to amend their plea, and I think, in view of the fact that counsel have come into court with this plea with eight different notices attached to it, I am inclined to think, it would be an abuse of discretion to permit the amendment at this time, unless counsel for the plaintiff will consent. If the plaintiff will consent to withdraw a juror and giving himself a chance to prepare for this new defense, I will then grant it. I don’t believe I can compel the plaintiff to do that.
“Mr. Dohany: We certainly could not do that under the circumstances, your honor. * * *
Mr. Snyder: It doesn’t seem to be so much a matter of discretion as it does that the amendment should be allowed. I don’t think the counsel for plaintiff is taken by surprise in this matter.
“The Court: He tells the court that he is, and he is a reputable practitioner, and the court believes him.
“Mr. Snyder: I think we should be allowed to amend.
“ The Court: I will give you the benefit of an exception. Exception for defendant.”

It will be observed the case had been at issue a year •and a half at this time. It does not appear that any new information as to the facts had come to defendant. The trial was half over. The record does not show such an abuse of discretion as to call for the interference of this court. See Hare v. Protective Ass’n, 151 Mich. 225 (114 N. W. 1009), and cases cited; O’Neill v. Assurance Co., 155 Mich. 564 (119 N. W. 911). The record shows that at the time deceased signed the preliminary application in November he was a polisher and buffer. The following appears in section 158 of defendant’s by-laws:

“No officer or member of any department or branch of of the order shall have any authority, power or right to represent or act as the agent of the order, except in the performance of the duties specifically imposed upon him by these laws, rules and regulations. * * * ”

After the preliminary application was made, it was read at a regular meeting of the subordinate court, and applicant’s fee of $2 paid as provided in section 222. The application was indorsed by two members in good standing, as required by section 221. The recording secretary of the subordinate tent appointed two members who investigated deceased’s occupation, as required by section 224. This investigating committee recommended the admission of Mr. Lessnau by a written report to the recording secretary. Deceased was thereafter duly elected a member of defendant order as provided in sections 228 and 229. It is not probable, in view of what occurred, that the subordinate court did not know at this time all about the applicant’s occupation. When the formal application was made, deceased truthfully stated his occupation. The certificate was issued and deceased paid all that was required of him up to the time of his death. To refuse to pay now does not appeal to our sense of justice. We think the court made a proper disposition of the case. Wagner v. Knights of Honor, 128 Mich. 660 (87 N. W. 903); Hoskins v. Loan Ass’n, 133 Mich. 505 (95 N. W. 566); Dorff v. St. Adalbert’s Aid Society, 157 Mich. 516 (122 N. W. 82).

Judgment is affirmed.

Bird, O. J., concurred with Moore, J.

Blair, J.

I agree with Mr. Justice Moore. The benefit certificate issued by defendant and containing the agreement of the parties contains the following clause:

“The statements made by said member in the proposition blank, signed by him at the time of his proposal as a member of said Catholic Order of Foresters, are hereby acknowledged and declared by him to be warranties and to be made a part of this contract.”

Under this clause, defendant was as much chargeable with notice of the applicant’s occupation at the time as though the statements of the proposal blank had been printed in extenso in the certificate, and, having received his money, is estopped to claim that such occupation rendered him ineligible to membership. Dorff v. St.Adalbert’s Aid Society, supra. Under its plea, defendant assumed the burden of proving that plaintiff’s decedent falsely stated his occupation in the formal application as that of driver of a dirt wagon. The record is barren of evidence that Mr. Lessnau’s statement was false at the time it was made, and such evidence as there is tends to support his wife’s hearsay testimony that he was in such occupation.

I think the trial judge made a correct disposition of the case, and the judgment should be affirmed.

Ostrander, McAlvay, and Stone, JJ., concurred with Blair, J.


author: Hooker, J.

text:
    OLNEY v. BROWN.
    1. Mortgages — Deed as Security for Debt — Trusts — Evn DENCE.
    A deed absolute upon its face may be shown by parol evidence to have been executed as security for a loan from a third party not named in the conveyance; the grantee receiving the title in trust for the real mortgagee.
    2. Same — Trusts—Descent and Distribution — Real Property.
    Where it appeared that a collateral writing was executed by the parties to the deed, reciting the purpose of its execution and stipulating that if the premises conveyed should be sold to satisfy the debt, any balance remaining in the hands of the grantee should be paid to the grantor, or at his option, or in event of his death, to his widow, no trust in the property resulted in favor of the widow after the repayment of the loan by the heirs of the grantor, without a sale of the premises conveyed.

      S. Estates of Decedents — Advancements—Executors and Administrators.
    It is not an advancement for a parent to loan money to certain of his children and take their notes in payment.
    4. Same — Descent—Real Property — Advancements.
    Nor is the right of such children to take an interest in real property of their father impaired by their unpaid indebtedness to the estate, upon the notes.

      5. Same — Advancements—Evidence.
    Oral testimony is inadmissible to prove an advancement not evidenced by writing or a declaration of intent, as required by 3 Comp. Laws, § 9072.
    6. SAme.
    It is not permissible to adjust the indebtedness of a part of the children, so evidenced, to the estate, by depriving them of their legal estate in lands of the deceased and giving their interest to other heirs.
    Appeal from Kent; McDonald, J.
    Submitted January 14,1910.
    (Docket No. 157.)
    Decided November 11, 1910.

      Bill by Kittie Olney, William J. Bowne and Charles A. Bowne against William T. Brown, Burdette L. Bowne, Beatrice Bowne, and Sarah J. Bowne to enforce a trust. From a decree for complainants, defendants appeal.
    Affirmed.

      Clement Smith (Fred W. Walker and William W. Potter, of counsel), for complainants.

      Kingsley & Wicks (Philip T. Colgrove, of counsel), for defendants.
   Hooker, J.

Andrew J. Bowne was a wealthy banker in Hastings and Grand Rapids. The complainants are the children of himself and his first wife, who was divorced from him at Hastings. Sarah Bowne, a defendant, is his widow, and Burdette and Beatrice Bowne are their children. The connection of defendant Brown with the case will appear as the facts are stated. He was an early friend at Hastings. In 1893 Bowne, being then in financial distress, appealed to A. G. Spalding & Bros, of Chicago, a concern that Bowne had aided in the early days of their business by heavy loans, for assistance, and they loaned him 120,000. The matter was arranged by Brown, who was a member of that firm. Bowne proposed to give them security, which Brown declined to take at first, but Bowne insisted, and Bowne and wife gave him (Brown) a deed of a homestead, the title to which stood in Mrs. Bowne, and a parcel of platted land in Grand Rapids, owned by Bowne. The testimony shows that Bowne’s design was to give this land to Brown in trust as security for the loan and as a protection to his wife and her two young children, who were minors. It was arranged that Brown should put the terms of the agreement in writing to be signed by him and sent to Mrs. Bowne, and this was done as soon as Brown received the deed by mail. This came to the hands of Mrs. Bowne, and was seen and approved by Bowne, and it was kept by his wife. It was afterwards lost, but a substantial, if not exact, copy appears in the record, which is as follows:

“Chicago, June 23, 1893.
“ Within deeds received this date, deeded to me in trust for A. G. Spalding & Bros., who have advanced 110,000 and agree to advance more to Mr. Bowne.
“Should it ever become necessary for A. G. Spalding & Bros, to use this security it is agreed by me that the balance that could be received above the amount loaned by A. G. Spalding & Bros, should be paid to Mr. Bowne, or in case his option or his death, to Mrs. Sarah J. Bowne for her use and that of her children, Burdette L. Bowne and Beatrice Bowne.
“These deeds are not to be recorded, excepting as a last resort, and then only for the protection of the parties at interest, viz.: A. G. Spalding & Bros., and Mrs.. Sarah J. Bowne and her two children as above stated.
“Chicago, June 23, A. D. 1893.
[Signed] “William T. Brown.,
“ Signature witnessed by
“Fred H. Andrus.”

Previous to Bowne’s embarrassment, he had furnished considerable money to his three children, the complainants, for much if not all of which he took their respective notes. It is unnecessary to state the amounts so furnished; it being sufficient to say that they were large enough to exceed their respective claims in this suit. Bowne died in 1896, and his estate was settled, and the administrators were discharged. His debts were paid, including the debt to A. G. Spalding & Bros., but there was little, if any, residue, after payment of the allowances to the widow and the expenses of administration. Our understanding is that nothing was received by the children, nor was any effort made to collect the notes given by the several complainants, none of which were barred at the time probate proceedings were commenced. It is our understanding that they were uncollectible and were inventoried at a nominal sum. The final account was allowed and estate closed on May 19, 1905. No request was made by the complainants or any representative of theirs that the administrators should list the lands deeded to Brown, hut a request was made by their counsel to Brown that he burn over the lands to the estate. Soon after Bowne’s death, and on the 15th day of September, 1896, Brown ■executed an instrument reciting the loan to Bowne by A. ■G. Spalding Sc Bros., the execution of the deed, the notes given for the loan and their renewals, and concluding as follows:

“Now, therefore, know all men by these presents that I, the said William T. Brown, formerly of Chicago, Illinois, now of Chicopee Falls, Massachusetts, do hereby declare that the two deeds above mentioned were executed and delivered to me for the following purposes: 1st. To secure the payment to said A. G. Spalding Sc Bros, of said .loan of money and the interest thereon and of said notes .and the renewals thereof, together with the interest thereon, given by said Andrew J. Bowne, to evidence ■said indebtedness as aforesaid, and also to secure the payment of all taxes which might be paid on said lands by ■said A. G. Spalding & Bros., and all other expenses and charges which they might be put to or sustain for or concerning said lands. 2nd. It was understood and agreed and said Andrew J. Bowne directed and charged me to •pay and convey to said Sarah J. Bowne the lands above ■described, or the proceeds thereof or whatever might remain thereof after paying in full the lien and claim which ■said A. G. Spalding Sc Bros, had or might have on said lands as aforesaid. 3rd. I hold said lands under said conveyances in trust for the purposes aforesaid, and, whenever the lien and claim of A. G. Spalding Sc Bros, shall have been fully paid and satisfied, I am willing to convey said lands or the proceeds thereof in my hands to whomsoever ■shall be legally entitled thereto.
“ In witness whereof, I have hereunto set my hand and seal this 15th day of September, A. D. 1896.
‘ ‘ William T. Brown. [ L. S. ]
“ Signed, sealed and delivered in the presence of
“Howard L. Holt.
“F. D. Howard.”

This was acknowledged and recorded on the 3d day of February, 1907. We are unable to see that the rights of the parties were in any way affected by this act of Brown. The bill was filed to compel Brown to deed the premises to the five children, subject to the dower interest of the widow. Upon the hearing the bill was dismissed as to Charles A. Bowne, who has not appealed. The defendants have appealed from a decree in favor of the other complainants.

The deed from A. J. Bowne to Brown was in form an absolute one. It was competent for Bowne or his heirs to show that it was not such in fact by showing that it was security for a debt. This appears from the parol testimony which was competent to prove it. It also appears by the instrument executed at the time of the delivery of the deed, stating that Brown received it in trust for A. G. Spalding & Bros., with authority to sell if necessary, to pay the debt, and hold the balance in trust to be paid to Bowne or to the widow on the happening of either of two events: (1) The exercise of his (Bowne’s) option; (2) his death.

The only theory upon which it can be said that this deed created more than a mortgage interest is that, the deed and declaration of trust being contemporaneous, the title was wholly divested from Bowne, and through the declaration of trust a vested interest in the land lodged in Mrs. Bowne under the statute. [3 Comp. Laws, § 8831.] Some interesting questions suggest themselves in this connection, but they need not be discussed, for the reason that these instruments cannot be construed to create such Interest in the widow. The deed on its face purported to convey an absolute title. It is clear that its primary object was to secure the existing and prospective claims of Spalding & Bros., and as to them was at most a mortgage, possibly in trust, being in the name of Brown. It is plain that a sale by Brown was contemplated, but only in case it was necessary. If not necessary, there was no .agreement by him to deed the premises to the widow. Presumably on payment of the debt to Spalding & Bros., Bowne would, under the law, have been entitled to a re-conveyance. The debt was paid by his heirs, and they, standing in Bowne’s shoes, would be entitled to the same. If it could be said that the deed and declaration were effective to create a trust in favor of Mrs. Bowne and her children, which we do not decide, it was conditioned upon the necessity of a sale of these premises, and was to pay money if any remained. It was not to sell if unnecessary nor to convey the land to her if it was unnecessary to sell it to pay the claim of Spalding. The alleged trust related to a contingent fund to arise from a mortgage sale, if one should be necessary. There has been no fund, and there can be none, as the estate was used to pay the secured debt, which was thus extinguished.

It is claimed that these • complainants have received more than their share of the estate by advancements, and it was so held as to one of them, and the bill was dismissed as to him. This is a question that Brown is not interested in, but is one,that the heirs have seen fit to litigate in this forum, and the decree, not having been appealed from, is final as to Charles Bowne. The other four children were held to be entitled to a conveyance from Brown of the premises in dispute, which we understand should not and does not include the homestead, which was properly re-conveyed to the widow.

We have examined the question of advancement with reference to the other two older children. We fail to find any evidence of an intent on the part of Bowne to distribute a portion of his estate (see In re Simon’s Estate, 158 Mich. 260 [122 N. W. 544]) to these children. He simply lent them some money, taking and keeping alive the notes given therefor to the time of his death. See Sprague v. Moore, 130 Mich. 99 (89 N. W. 712). These notes were inventoried as part of the estate, and are still outstanding unless barred by the statute or probate proceedings. The right of these parties to take interests in land by descent is not affected by their indebtedness to the estate. Marvin v. Bowlby, 142 Mich. 245 (105 N. W. 751, 4 L. R. A. [N. S.] 189, 113 Am. St. Rep. 574); Broas v. Broas, 153 Mich. 310 (116 N. W. 1077). Counsel for defendants contend that the intent that these loans should be treated as advancements should be inferred from the circumstances and subsequent declarations of Mr. Bowne. Our statute is an answer to that claim. See 3 Comp. Laws, § 9072. Counsel concede that this statute is rigid in prescribing the rule of evidence. See Power v. Power’s Estate, 91 Mich. 587 (52 N. W. 60). Similar statutes have been so construed elsewhere. Thus in Barton v. Rice, 22 Pick. (Mass.) 508, it was held that under the statute of Massachusetts (of which our statute is a literal copy) oral testimony was inadmissible. Referring to the statute, the court said:

“ Oral testimony is clearly inadmissible to prove an advancement, which must be proved in the manner prescribed in Rev. Stat. chap. 61, par. 9. That provides:
“ 1 That all gifts and grants shall be deemed to have been made in advancement if they are expressed in the gift or grant to be so made, or if charged in writing by the intestate as an advancement, or acknowledged in writing as such by the child or other descendant.’
“The statute does not expressly declare that an advancement shall not be proved in any other manner, but that undoubtedly is the meaning of the statute.”

See, also, the following cases in point cited by complainant’s counsel: Filman v. Filman, 15 Grant’s Ch. 643; Shepherd v. White, 10 Tex. 72; Mass. Gen. Stat. chap. 91, § 8; Hartwell v. Rice, 1 Gray (Mass.), 587; Bigelow v. Poole, 10 Gray (Mass.), 104; Ashley, Appellant, 4 Pick. (Mass.) 24; Osgood v. Breed, 17 Mass. 358; Bullard v. Bullard, 5 Pick. (Mass.) 527; Bulkeley v. Noble, 2 Pick. (Mass.) 340; Porter v. Porter, 51 Me. 376; Weatherhead v. Field, 26 Vt. 665; Adams v. Adams, 22 Vt. 51; Newell v. Newell, 13 Vt. 24. We must hold that these loans were not advancements.

The argument that the evidence shows that the parties (decedent and complainants) understood and intended that the loans should be equalized in the division is but another way of asking us to treat the loans as advancements. Had the notes been put in j udgments and levied on the shares in the land of the judgment debtors, their respective interests might have been reached, but the inequity in the present situation (and it seems to us that there may be one) cannot be adjusted by depriving complainants of their legal estates in land and giving them to others.

We are constrained to affirm the decree of the learned circuit judge, with costs, against all defendants except Brown.

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


author: Ostrander, J.

text:
    STEELE v. KELLOGG.
    1. Fraud — Subscription to Corporate Stock — Representations op Third Person.
    While statements of fact, made by a person who was not acting for the defendant or associated with him as principal, are not a proper subject of comment in the opening statement of counsel, under a declaration for fraud of the defendant in inducing plaintiff to subscribe for corporate stock, such reference was not error when the statements referred to were shown on cross-examination by the defendant’s counsel, in sustaining his theory of the defense.
    2. Same — Subject-Matter.
    That the alleged representations related to a business owned by one who was not interested in the venture, would not affect plaintiff’s right to recover, where the corporation to which he subscribed projected the taking over of a part of such business, to which the representations related, and the defendant was to profit by the transaction.

      3. Same — Intent.
    Proof of oral representations similar in character to those alleged in the pleadings, made by defendant to third parties, was competent as having a tendency to show fraudulent in - tent.
    4. Same — Evidence.
    A letter written after plaintiff had concluded the agreement, having a tendency to negative the defense that the alleged untrue statements were inadvertently made, was admissible.
    5. Same — Value—Opinion Evidence.
    Opinion evidence was properly received to show the value of corporate stock that had no market value, and was not the subject of sale.
    6. Same — Reliance on Representations.
    Where it was claimed that defendant wrote a letter to an intermediary with whom plaintiff dealt, and that plaintiff read the letter and aoted in reliance on it, the question whether plaintiff had agreed to subscribe before he saw the letter was a material issue.
    7. Same.
    Whether or not defendant understood that the plaintiff had already subscribed for the stock was material in determining his intent in writing the letter which contained the false statements.
    8. Evidence — Correspondence.
    A witness was properly allowed to explain what he meant by-stating in a letter that he had agreed with plaintiff relative to the subscription.
    9. Damages — Fraud and Deceit — Stock.
    Instructions to the jury which permitted the jury to find, as damages, the difference between the actual value of the stock and the value it would have had if it had been as represented, not exceeding the amount paid for it, were not prejudicial to defendant’s rights.
    10. Same — Interest.
    Where money is obtained by fraud and deceit interest may be added as compensation.
    11. New Trial — Weight of Evidence.
    The denial of a new trial is held to be sufficiently supported by the weight of the evidence.

      Error to Calhoun; North,' J.
    Submitted April 15, 1910.
    ( Docket No. 69.)
    Decided November 11, 1910.
    Case by William H. Steele against John H. Kellogg and Will K. Kellogg for fraud and deceit. Judgment for plaintiff; defendant Will K. Kellogg brings error.
    Affirmed.

      George W. Mechem and Henry B. Graves, for appellant.

      Arthur B. Williams and Bam A. Mitchell, for appellee.
   Ostrander, J.

Plaintiff filed his declaration June 5, 1908, against John H. Kellogg and Will K. Kellogg, defendants, alleging in the first two counts of the declaration that he was induced to purchase the shares of stock in a corporation by the fraud and deceit of both defendants, and, in the last two counts, that said fraud and deceit was practiced by the defendant Will K. Kellogg. The plea was the general issue. At the trial, at which the first two counts. of the declaration were withdrawn, the plaintiff recovered a verdict and judgment against the defendant Will K. Kellogg for $9,442.27. There was a motion for a new trial, which was denied. It is alleged in the declaration, and these are the essential allegations in both the third and -fourth counts thereof: that the defendant Will K. Kellogg, prior to October 22, 1906, being an owner of certain so-called proprietary food preparations known as Peptol, etc., etc., and anxious and desirous of disposing of said proprietary food preparations and formulas for making the same, had negotiations with one Charles D. Bolin to secure either the sale of said food preparations to said Bolin or to secure his co-operation in bringing about a sale: that said Bolin was entirely unacquainted with the nature and character of said food preparations and what had been accomplished previous thereto in reference to the sale of them, except as he was informed and advised in reference thereto by said defend ant, and said Bolin had no means of information, and no information was given to him with reference to the preparations, salability, and what had previously been accomplished in the sale of them, except as he was advised and informed by the said defendant: that such negotiations were had that the said Will K. Kellogg claimed to have an option from John H. Kellogg so that the preparations and the formulas for making the same could be purchased for the sum of $20,000 in cash, and thereafter negotiations were had with the said Bolin by the said Will K. Kellogg to the end" that said Bolin was to procure stock subscriptions'!© be paid for in cash among his business acquaintances and friends in the city of St. Louis, and a corporation was to be' formed with a capital stock of $100,000, to which corporation the right to manufacture said food preparations and the formulas was to be transferred or to be caused to be transferred by said Will K. Kellogg or John H. Kellogg, or both of them, upon the payment of the said sum of $20,000.

“That said Will K. Kellogg, in order to bring about the sale of the right to manufacture said food products and the formulee for the manufacture of the same, as aforesaid, in which food products and the right to manufacture the same the said Will K. Kellogg had, to wit, a one-quarter interest, entered into a scheme to bring about such sale, and to that end and purpose misrepresented the facts and deceived the plaintiff herein in reference to said food products and their salability, and in reference to what had been previously done and accomplished in reference to the sale thereof. That the said Will K. Kellogg, in carrying out said scheme, represented and stated verbally to the said Charles D. Bolin, at the said city of Battle Creek and elsewhere, that the sales upon Peptol, one of said food preparations, as carried on at the said city of Battle Creek by the said John H. Kellogg or by said Sanitas Nut Food Company, Limited, or by said Will K. Kellogg, or by some or all of them, had earned a net profit of from 12 to 15 per cent, per year on $100,000. And in further representing to said plaintiff what, had previously been accomplished in reference to the sale of said Peptol, and that on such sales there had been earned a net profit of from 12 to 15 per cent, per year on $100,000 (meaning thereby during the year then next preceding the date of the letter next hereinafter referred to) under date of September 27, 1906, at said city of Battle Creek, wrote to the said Charles D. Bolin a letter, which letter was in. words and figures as follows, to wit:

“Sept. 27, 1906.
“ Chas. D. Bolin,
“Louisville, Ky.
“Dear Friend: I have yours concerning Peptol. I do not ■want-to appear obstinate or stubborn, but after giving the matter considerable thought, I do not feel inclined to donate any of my §15, - 000 block of Peptol stock to Mr. Steele, and if the deal is to fall through for the reason that I will not comply with Mr. Steele’s demand, I think we will have to let it go. I have an option from the-Dr. for his Peptol business. If obliged to do so, I can pay the Dr. October seventh for his option, $20,000 worth of Corn Flake stock, two for one. I will do as much for Dr. Davis as either yourself or Mr. Clague, but I have the impression that Mr. Steele should be satisfied with what you have already offered him. If the deal is to be called off, kindly wire me promptly on receipt of this, at my expense. Papers are already being executed by the attorneys, but we can go ahead and organize it with Battle Creek people, without the assistance of a large amount of capital. The business which is already established is paying 12 to 15 per cent, on $100,000. If necessary to do so, I can handle the deal on my own account, without the assistance of any one; however, would like to have you in it, as I am confident it will be a money maker. With kind regards and best wishes, I am,
“Very truly yours,
“ W. K. Kellogg.”
“And in which letter above referred to the said defendant, Will K. Kellogg, among other things, reiterated the aforesaid statements and representations in reference to the sales upon Peptol and the earnings thereof, previous thereto, by the use of the following language:
“ ‘ The business which is already establishedr is paying 12 to 15 per cent, on $100,000.’
“And the said Will K. Kellogg in further carrying out the said scheme at said city of Battle Creek wrote to the said Charles D. Bolin a letter under date of October 1, 1906, which letter was in words and figures as follows, to wit:
“ ‘October 1, 1906.
“ ‘Mr. Charles D. Bolin,
“ ‘ St. Louis, Mo.
“ ‘ Dear Mr. Bolin: I have just had a long distance message from Stanley Clague. He tells me that the Peptol matter is in the air and that if I do not submit to the assessment of a thousand dollars made on me for the béneñt of Mr. Steele by next Tuesday that the whole thing is off, so far as you are concerned. All that I have to say, Mr. Bolin, is that I shall be satisfied with your decision if it is to be that way. Peptol is already making good money. I have an option from J. H. K. which I can manage myself and the company is practically organized; and to meet the attorney this afternoon at three to finish and complete the papers, and we are all ready to go ahead and do business. I at the present time own one-quarter interest in Peptol. I can readily take up on Dr. Kellogg’s option by giving some of my Corn Flake stock as collateral to note and in case I do this and become the entire owner of all that pertains to Pan-Peptogen, Peptol and Maltol I am sure that my interest would be worth at least §50,000. Peptol is better than it has ever been before, we are getting good results and are getting good repeat orders. Last night about half-past eight, while at my home, I had a telephone call. The party gave his name as Calvert. He said he was a postal clerk at the office, and called me up about a special delivery letter he had just received from St. Louis, Mr. Dodd. I asked to have the letter sent up. Remembering the young man as one to whom I had given some Peptol to try, I asked him how he was getting along. Mr. Frank Calvert stated that he had gained sixteen pounds since he began using Peptol and that his wife had also gained. Calvert had always been one of the lean, long and lank kind, and never before in his life had he been able to make any gain; in fact, for some years he had been gradually losing. If Peptol will do this for Calvert and wife, it will do the same thing for hundreds of others. Unless I hear from you by telegram Tuesday night, I shall consider the deal is off, and so far as you and I are concerned, I am at perfect liberty to go ahead and operate Peptol as I see fit. I am sending this letter special delivery to insure its reaching you in time for the telegram. I shall not be in the least offended if you decide to throw the proposition down.
“ ‘ Yours very truly,
“ ‘ W. K. Kellogg.’
“And in which letter last above referred to the said Will K. Kellogg, among other things, reiterated the aforesaid statements and representations in reference to the sales upon Peptol and the earnings thereof, previous thereto, by the use of the following language: * Peptol is already making good money’ (meaning thereby 12 to 15 per cent, on $100,000 during the year previous thereto). That the said representations and statements made verbally by the defendant herein as above stated, and as contained in the letters written by him to the said Bolin as aforesaid, were made in accordance with, and in carrying out, the scheme of the defendant as aforesaid, and were made for the purpose of having such representations and statements used by the said Bolin in soliciting stock Subscriptions for such proposed corporation; and the said Will K. Kellogg, at the time of making such representations and at the time of writing such letters and thereafter, well knew that such representations and statements so made by him as aforesaid were to be used by the said Bolin in soliciting stock subscriptions for such proposed corporation, and such representations were made by said Will K. Kellogg, he having knowledge in reference thereto superior to that of said Bolin and of this plaintiff, and superior to the knowledge of this plaintiff when he subscribed for the stock herein mentioned and paid the money herein referred to, said Will K. Kellogg, then and there, knowing such representations to be false and untrue, and said Will K. Kellogg made such representations for the purpose of deceiving and defrauding this plaintiff and any others who were to be solicited to buy the capital stock of said corporation as herein set forth.”

It is alleged that Bolin related and restated to plaintiff and others whom he solicited to purchase stock in the proposed corporation the statements made by the said Will K. Kellogg in reference to the earnings from said Peptol, stated that it was proposed to form a corporation with a capital stock of $100,000 to take over the manufacture of said food preparations as aforesaid, and exhibited to plaintiff and others the said letters which are above set out; that the plaintiff read the letters, and, having no other means of information, believed the statements therein and those given to him by the said Bolin in reference to the earnings from Peptol, and, relying solely thereon, subscribed for capital stock of the Peptol Company; that the said statements and representations of said Will K. Kellogg so made verbally and in and by the said letters were untrue and false, in that the earnings upon the manufacture and sale of Peptol previous to September 27,1906, had not been from 12 to 15 per cent, per year upon $100,000, and the business which had been already established was not paying 12 to 15 per cent, on $100,000, but, on the contrary, the net earnings upon the manufacture and sale of said Peptol had been limited, if they were anything at all, and the said Peptol was not then already making good money as alleged.

Upon the trial the plaintiff gave the following testimony:

“Q. Now, I want you to tell the jury what led and induced you and what you relied upon in making this investment of $8,625.
“A. Nothing in the world except the statements of W. K. Kellogg in his letters. That was a thorough guaranty. I refer to the letter of September 27 and October 1, 1906.”

Pacts admittedly established by the testimony are: The Sanitas Nut Pood Company, Limited, of Battle Creek, Mich., manufactured a large number of food preparations and was practically owned by Dr. John H. Kellogg, who held all but two shares of its stock. The defendant Will K. Kellogg was its manager under an agreement, by the terms of which he received one-fourth of the net profits. One of the food preparations manufactured by this company was Corn Plakes, a business which was afterwards, and prior to the year 1905, taken over by a corporation called in the record the Corn Plake Company. Among other foods manufactured by this company were products known as Pan-Peptogen, Maltol, and Peptol; the latter product being put on the market under that name some time during the year 1905. Mr. Charles D. Bolin, of St. Louis, Mo., was to some extent acquainted with all the foods that were made by the Sanitas Company and was a stockholder in the Corn Plake Company. He and W. K. Kellogg had been acquainted for a number of years. These two gentlemen had some talk, and later some negotiations, concerning the organization of a separate company to manufacture and develop the sale of the other products above named. These began late in 1905, or early in 1906. Both were parties to the negotiations with Dr. Kellogg, having for their purpose the securing of an option for the formulas and the right to manufacture and sell the said products. On or about October 5, 1906, an agreement in writing was entered into between the Sanitas Company and Dr. John H. Kellogg, parties of the first part, and Will K. Kellogg, party of the second part, by the terms of which, and for the sum of $20,000, there were purchased and sold the formulas, secret processes, trade-marks, and good will attached to the aforesaid foods. The corporation, named the Peptol Company, was organized under the provisions of Act No. 232, Pub. Acts 1903, of Michigan, with a capital of $100,000, divided into 10,000 shares' for the purpose of manufacturing and selling proprietary foods; the articles of association being acknowledged October 22, 1906, and the incorporators being'Bernard J. Onen, Vera Sloan, and Eric E. Covert, of Battle Creek, who subscribed in all for 5,000 shares of the stock. To this company, on November 1, 1906, Will K. Kellogg assigned all of his right, title, and interest in and to the contract which has been mentioned. Mr. Charles D. Bolin undertook to interest one or more parties in the corporation about to be organized. He did interest, among others, the plaintiff, who subscribed and paid for stock to the amount of $8,625. Plaintiff also received as a bonus — that is to say, he did not pay for — 300 shares of the stock. Defendant Will K. Kellogg, Bolin, and a man named Clague received, without payment of money therefor, shares of stock in the new company. The letters set out in the declaration were written by defendant Will K. Kellogg. The statement concerning earnings, appearing in the letter of September 27, 1906, was untrue. The principal issues of fact left to be determined by the jury were whether this statement was, as claimed, inadvertently written, whether it was written to.be shown to or read by the plaintiff and others to whom it was desired to sell stock, whether it was shown to or read by plaintiff, and whether plaintiff had before seeing or reading it definitely concluded to take stock in the proposed new corporation. Upon each of these there was conflicting testimony.

The jury was instructed, generally, that plaintiff, in order to recover, must establish:

“ (1) That the false representation was made by the defendant relative to a material fact; and in that connection I say to you that a representation as to the earning capacity of the Peptol proposition, viz., that it earned 12 to 15 per cent, on $100,000, would be a material representation.
“(2) He must show that the false statement was made knowingly or in reckless disregard of the truth by the defendant.
“(3) That it was made with intent to deceive the plaintiff, or a class of people to whom the plaintiff belonged, and to induce the purchase of stock in the Peptol Company.
“(4) That the plaintiff relied upon and has been deceived and defrauded by such misrepresentation, and not having knowledge of its falsity or such knowledge as would put a reasonably careful person upon his guard relative to that matter.”

They were further instructed that if these facts were established the measure of plaintiff’s damages would be — ■

“The difference between what the plaintiff’s investment in Peptol stock, viz., $8,625, actually was worth, and what the value would have been had these representations upon which the plaintiff claims to have relied been true; but, in determining what the value of this Peptol stock would have been had these representations been true, for the purpose of this suit you cannot find its value to exceed the amount paid by the plaintiff, viz., $8,625, because there is no proof in this case which would make the stock of greater value than this amount. With this limitation in mind, you should determine what the value of the stock purchased by Mr. Steele, which was of the par value of $11,630, was at the time he bought the stock in the Peptol Company; and the difference between this and what would have been the value of this stock had the representations been true as established by the evidence in this case (and this I have said cannot exceed $8,625, the amount paid'by the plaintiff), plus simple interest at the rate of 5 per cent, per annum on this difference from the date of November 5, 1905, would be the measure of the plaintiff’s damages. I realize the fact, gentlemen, that this statement is somewhat involved. I am unable to make it plainer; but, pei’haps to repeat, it is true that if the plaintiff has any right to recover at all in this case you should determine on the one hand what his holdings would have been worth if the representations made by Mr. Kellogg upon which the plaintiff relied were true; in other words, you should determine what the $11,630 par value of this stock would have been worth if Mr. Kellogg’s representations had been true, but you cannot fix that value in excess of the amount the plaintiff paid for it, because there is no testimony in the case which will' justify such a finding. So the greatest amount which you can find to be the value of the stock he purchased, in the event that the representations had been true, would be $8,625'. But you may find it under the evidence to be less than that. If you do, you should subtract from the amount that the stock would have been actually worth had the representations been true (not to exceed $8,625), you should subtract from that what you find his stock was worth at the time he purchased it and the difference with 5 per cent, simple interest per annum would be the measure of his recovery.”

With this statement we proceed to notice some of the alleged errors. We have already disposed of many of the contentions of defendant in saying that upon each of the issues above referred to the testimony was conflicting. We are satisfied that none of them should have been decided by the court. As to others, we follow, substantially, the order in which they are presented in argument.

In the opening statement made by the attorney for plaintiff, he said:

“We will show by Mr. Bolin that in this conversation with the Doctor which occurred in the month of July or August, 1906, the Doctor made a statement in reference to what Peptol had already been doing in the way of making money and earning money, and the Doctor stated to Mr. Bolin at that time, as I recollect, that Peptol was already earning something like $15,000 a year.”

Here an objection was interposed, the substance of it being that, as Dr. Kellogg was not a party (plaintiff having voluntarily elected to proceed upon the last two counts of the declaration), any representation, made by him was not binding on Will K. Kellogg. The court permitted the statement to proceed, and the attorney for plaintiff, continuing, said:

In that conversation Dr. Kellogg said many things in reference to what Peptol had been doing, and said to Mr. Bolin that Peptol was already earning in the neighborhood of $15,000 a year for the sale of Peptol as it had been previously carried on by the Sanitarium. Mr. Bolin made inquiry of Dr. Kellogg why he was so anxious to sell if it was earning so much money, and the Doctor said it was a preparation that was claimed to make thin people fat, and he wanted to get out of that kind of business because it was hurting his standing with the medical profession, and his influence and standing at the Sanitarium.”

Plaintiff was the first witness called, and he was asked:

“Q. Now, in the fore part of September, 1906, did Mr. Bolin repeat to you anything that W. K. Kellogg or Dr. Kellogg had stated about the Peptol. matter ?
“A. Yes, sir.”

An objection was interposed to the effect that any representation made by Dr. Kellogg was hearsay and immaterial, and the court sustained the objection. Later, on cross-examination of Bolin by defendant, he stated that Dr. Kellogg had intimated to him that Peptol was making good money and was doing well, and that he (Bolin) had informed plaintiff that the Doctor had told him it was earning $15,000 to $20,000 a year. No objection was interposed and no motion made to strike out the testimony. It was not competent, for the purpose of connecting Will K. Kellogg, to prove representations made by Dr. Kellogg. And there was, apparently, no excuse for referring to any such representations in the opening statement of counsel. But in view of the cross-examination of Bolin, which was conducted to sustain a theory of defense to the action, it would manifestly be improper to reverse the judgment because of the opening statement of counsel.

It is urged that testimony of oral representations made by Will K. Kellogg to Bolin, although alleged as ground of recovery, could not furnish a proper basis of recovery because:

(1) They concerned the credit and financial standing of a business owned by Dr. Kellogg, or by the Sanitas Nut Food Company.
(2) They were not relied upon by plaintiff.

Motion to strike out the testimony was denied. In this connection may be considered the objection that statements made prior to September 27, 1906, by Bolin to plaintiff concerning the earnings of the business, were not admissible because it was not made to appear that Will K. Kellogg was responsible for such statements. A motion to strike out this last-mentioned testimony was denied upon the promise of counsel for plaintiff to prove that Will K: Kellogg was responsible for these statements, a promise which it is said was not redeemed. The record discloses that Mr. Bolin was a witness without whose testimony the plaintiff must have failed in the suit. It is his testimony which is relied upon to prove that the letter of September 27, 1906, was written to himself for' the express purpose of being shown and read to possible purchasers of stock to induce them to become purchasers; that it was a cunning device to attract any one by whom it should be read. Without his testimony the letter is, for the purposes of the plaintiff, an innocent document. While Bolin’s complicity in the scheme, if there was a scheme, does not relieve the defendant, it is nevertheless apparent that in permitting plaintiff to detail oral representations made to him by Bolin, and in permitting Bolin to detail oral representations made to him by Will K. Kellogg, opportunity was afforded to Bolin to exculpate himself, if he was not an innocent agent. It seems to us now, after the trial, that if the plaintiff had been required to rely upon the letter, which he says determined his action, upon the falsity of the representation therein contained and upon the testimony of Bolin to the effect that the letter wa3 written for the purpose of inducing purchases of the stock and was exhibited for that purpose, the real case for plaintiff would have been better presented. But it was the theory of the defendant that the letter was not written with a fraudulent purpose and was not in fact relied upon by plaintiff, and that what plaintiff did r'ély upon was oral representations made to him by Bolin and Clague before the letter was written. Proof of oral representations similar in character to those stated in the letter, made by Kellogg to Bolin, or to others, would have probative value in determining whether the statement in the letter was knowingly and fraudulently made. So all testimony which tended to prove that Bolin knew that the statement in the letter was untrue also tends to prove that there was no reason for repeating the statement to him in correspondence and supports in some degree the inference that the letter was designed to be shown to others. The objection that Will K. Kellogg was not connected substantially with the oral statements claimed to have been made by Bolin to plaintiff is not sustained by the record. Whether or not, if they were made, they were relied upon by plaintiff, they were confirmed, in substance, by the letter of September 27th. The legal objection which was made is without merit because it is clear that Will K. Kellogg was to profit out of the contemplated venture.

The letter of October 1st was properly admitted in evidence, since it tended to negative inadvertence or mistake in making the representation contained in the letter of September 27th.

The witness Bolin, over the objection that he was not qualified to do so, was permitted to testify to the value of plaintiff’s stock at the time it was purchased. This ruling is assigned as error. He gave an opinion because no one could do more than that. Defendant also gave his opinion; no objection being made. The value of the opinions was for the jury. The stock had no market value. It was not the subject of sale. No error was committed.

Whether plaintiff had agreed with Bolin or Clague or either of them to take stock in the corporation before he read the letter of September 27, 1906, was material, and it was material, also, whether defendant believed or understood that lie had done so at the time the said letter was written and sent out. Correspondence relating to the attitude of plaintiff passed between Kellogg, Bolin, and Clague. It is not claimed that anything in this correspondence was brought to the attention of plaintiff; but as affecting the credibility of Bolin, who testified that no agreement to take stock had been reached before September 27th, and that plaintiff finally concluded to take stock October 30th, some of the correspondence was supposed to be material.

One of the letters excluded was written September 23, 1906, by Clague to Bolin, and was answered by Bolin under date September 29th. Confronted with the Clague letter and his reply thereto, Bolin was permitted to tell what he meant by language employed in his letter. It is said this was error. It will be remembered that when these letters were written no arrangement had been concluded with the Sanitas Nut Food Company, or with Dr. Kellogg. A proposition that Clague, Bolin, and defendant should each give to plaintiff $1,000 par value of stock proposed to be taken by them in the new company had been agreed to by Bolin and Clague but not by defendant. In his letter of September 23d Clague appears to charge the blame for nonconclusion of the principal arrangement to Bolin, who replied (September 29th):

‘ ‘ I cannot agree with you that I am holding up the Peptol proposition; the situation is just like it was when you left St. Louis. I told you when you were here that in order to get Mr. Steele in we would have to give him $8,000 worth of stock for $5,000. You and I agreed to give him $1,000 of our stock and leaving the other $1,000 for Mr. Kellogg to give. We then told Mr. Steele what we would do and he accepted our terms. That left the proposition up to Mr. Kellogg. Now he refuses to accept our terms and the Doctor has raised the price from $18,000 to $20,000. I suppose if the matter drags a little longer they will raise it to $50,000. Allow me to say that I am not going to make any more concessions; if they want the deal closed on the terms already agreed upon between you and I and Doctor Kellogg’s last proposition to sell for $20,000 and take our note for $6,500 we will accept the proposition, if not, so far as I am concerned, you can count me down and out. I note further that you state that Peptol is a good proposition; if I did not think so, I would not of course, gone into it. But I cannot afford to give my time to selling the stock and promoting the company unless I am well compensated. I have written Mr. Kellogg a letter plainly stating that the proposition was up to him and unless he accepted it as proposed, that we would drop further negotiations. I appreciate the fact that you were willing to sacrifice part of your interest to close the deal and as you know I was willing to do the same thing. I think the Kelloggs are making a good thing out of the deal; they know about what they are doing or they would not sell. I have told Mr. Kellogg all along that I would not go into the deal unless Mr. Steele went into the proposition with me. We always make investments of all kinds together and I regard his judgment in these matters as first class and he would make one of the best directors we would have in the company. Unless Mr. Kellogg accepts this proposition by Tuesday and not later than Wednesday the whole deal will be a closed incident so far as I am concerned, as Mr. Steele has already notified me that he has other matters pending which he wants to close and that I must give him an immediate answer. * * *
“P. S. I really feel Mr. Kellogg and Dr. J. H. Kellogg should let this deal be consummated as agreed by you and I with Mr. Steele. We made a definite agreement with him and it is not in good faith for us to break our agreement with him. What shall I say to him ? I cannot afford to put myself in such a position again with him, he would lose faith in me and he would have a good reason for so doing.”

On September 29, 1906, Bolin also wrote to defendant, and in the letter he says:

“I have a letter from Mr. Clague this morning in which he intimates that I am holding up the deal. I am sorry that he looks on the matter in that light as I am doing nothing of the kind. It is up to Mr. W. K. Kellogg to accept the terms which Mr. Clague himself agreed to while in St. Louis.”

In a postscript the following is added:

“Mr. Clague and I felt sure you would do this and so agreed with Mr. Steele and immediately notified you, or at least Clague said he would. Your refusal to accede to our agreement puts us in an uncomfortable position with Mr. Steele. We definitely agreed to accept his proposition and I am at a loss to know what to say to him. I have made one or two trips to try and close this deal. After all our trouble with the Doctor it falls through for a pittance.”

His explanation of this postscript is that he meant by the words “and so agreed with Mr. Steele” that he had agreed in a tentative way and had in fact only a conditional understanding with plaintiff, who was demanding “ something more definite.” Whatever one may think of the explanation made by this witness, we know of no rule of evidence which refuses a witness the right to explain what he has written, or has stated orally, in correspondence with others. As to the excluded letter, written by Clague, nothing in it adds to or takes from the apparent force and effect of the correspondence which was received in evidence.

Plaintiff retains his stock in the corporation. His action is for damages for fraud and deceit. He paid $8,625 for his stock and received therefor stock of the par value of $11,630. Of this, $3,000 worth of stock, at par, was, according to his testimony and contention, bonus stock. Verdict was rendered December 18, 1908, and if the jury had found the stock to be worthless when purchased, and if they followed the instructions given them by the court, the accrued interest would have amounted to about $898. The jury in the verdict added $817.27 to the amount of the original investment. It is said that the charge permitted the jury to consider the difference between the actual value and the represented value of $11,630 of stock, and that error was thus committed. As the court also charged the jury that if the representations had been true the stock could have no greater value than the amount paid for it, it is evident that defendant was not prejudiced. Clearly, the actual value of 1,130 shares would be greater than the actual value of 363 shares.

It is contended further that it was error to instruct the jury to' add interest to the difference in value as determined by them. Compensation is what the law means to award in such a case, and although it has been sometimes said that the jury may add interest — that it is discretionary — the general rule appears to be that where money is obtained by fraud and deceit its recovery, with interest, is compensation. 14 Am. & Eng. Enc. Law (2d Ed.), pp. 189, 190; Snow v. Nowlin, 43 Mich. 383, 387 (5 N. W. 443).

The assignments of error not herein specifically referred to have been considered. We think most of the contentions made with respect to them are answered by the record and we find no occasion for discussing them. We are not convinced, in view of the nature of the controversy and of the benefit likely to be derived from seeing and hearing the witnesses, that the court below ought to have set aside the verdict as contrary to the weight of evidence.

As we are unable to say that error was committed at the trial, the judgment is affirmed.

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