text:
    BIGELOW v. RAYNOR.
    Specific Performance — Land Contract — Assignment.
    A decree for the specific performance of a land contract was properly granted against the vendor’s assignee, who, after receiving several payments upon the purchase price, refused a deed upon tender of the balance in accordance with the terms of the contract.
    Appeal from Gratiot; Daboll, J.
    Submitted April 24, 1900.
    Decided May 18, 1900.
    Bill by Samuel E. Bigelow against Aaron J. Raynor for the specific performance of a land contract. From a decree for complainant, defendant appeals.
    Affirmed.

      George P. Stone, for complainant.

      John T. Mathetos, for defendant.
   Long, J.

The bill in this case is filed for the purpose of obtaining the specific performance of an executory land contract. On the 24th day of February, 1887, the defendant held or claimed to own various parcels of land within the county of Gratiot, and among which was the W. of the N. E. i of section 18, township 10 N., range 4 W., in said county, the south 40 of which is the land in controversy. On this day the defendant conveyed the land in question, together with other lands, to Jones & Porter, of Lansing; taking back a mortgage upon the lands so conveyed for the sum of $11,822. Contemporaneously with the execution of these conveyances, there was executed between: the parties a written agreement whereby it was agreed that, if Jones & Porter made sales of parcels of these lands from time to time upon contracts, such contracts should be turned over by Jones & Porter to the defendant, and that he should indorse the amounts of such contracts upon the mortgage in question, but that Jones & Porter should guarantee such mortgages or contracts so turned over to defendant. Some time later Jones & Porter sold the W. \ of the N. E. of section 18 aforesaid, by executory land contract, to one Robert W. Force, and this contract was assigned and turned over to the defendant under the terms of the agreement aforesaid. After-wards Robert W. Force sold and assigned this contract to one Thomas, and Thomas subsequently sold and assigned the same to the complainant and one Alvin Day; and they took possession of the land. Afterwards they divided the land, the complainant taking the south 40 and Day the north 40; Day giving the complainant $75 for the privilege of taking his choice of the 40’s. After making this division, and on June 1, 1893, the complainant and Day went to Lansing to see Jones & Porter for the purpose of obtaining separate contracts for the land, and the contract in question was then made by Jones & Porter to complainant.

At the time of the assignment of the Force contract to defendant, the same was indorsed upon his mortgage contract with Jones & Porter. On October 25, 1893, the defendant was informed that the Force contract had been surrendered, and that new contracts had been executed by Jones & Porter to the complainant and Day; and on this date defendant wrote complainant, saying that, unless a certain payment of $100 was made at once, he should declare the contract forfeited and take possession of the land. About a year after the execution of the contracts to complainant and Day, there arose some disagreement or misunderstanding between Jones & Porter, the defendant, the complainant, and Day respecting the amounts complainant and Day had paid upon the contracts ; and complainant and Day went to Lansing for the purpose of adjusting and settling the matter. After their arrival, the defendant was sent for, and he came to Lansing, and there was an interview between all the parties. At this interview all the disputed payments were amicably adjusted, and the payments previously made to Jones & Porter were properly indorsed upon the contract; and for the purpose of evidencing the fact that these disputed payments should be applied upon the contract of the complainant, as against the defendant, the defendant subscribed his name to the indorsements upon the complainant’s contract. Of these payments so indorsed and subscribed, the $35 was paid to Jones & Porter June 1, 1893, and the other payments were paid by the complainant to defendant personally.

Under date of June 8, 1894, the contract in question was assigned by Jones & Porter to the defendant for a consideration of $177.58. On the same date the defendant indorsed upon his mortgage contract with Jones & Porter the sum of $177.58, as being the “Samuel E. Bigelow contract.” On September 10, 1895, the defendant acknowledged the receipt from the complainant of $12.43 to apply upon interest upon the contract, and upon February 9, 1897, $12.16 was also paid. On November 8, 1897, the complainant wrote the defendant with reference to paying up the contract and taking a deed. Defendant on November 22d replied to this, saying that he could arrange it all right; that he thought that Jones and Porter’s heirs would give a deed, and to let him know when he was ready to pay up, and he would endeavor to get the deed. Pursuant to this correspondence, and for the purpose of closing up the contract, the defendant on November 26, 1897, procured from Nelson B. Jones and wife and the heirs of James B. Porter, deceased, who was of the firm of Jones & Porter, a conveyance of the land in question to the complainant.

Afterwards, and on December 14, 1897, the defendant, as guardian of certain minors, executed and prepared for delivery a quitclaim deed of the premises in question to the complainant,"purporting to convey certain tax-title interests which the grantor therein’ had in the premises by reason of the unpaid taxes of 1888, 1889, 1890, and 1891. Afterwards, and in February, 1898, the defendant being notified that the complainant desired to pay np his contract and take a deed, the defendant deposited these two conveyances with one Water bury, who was defendant’s agent at Ithaca, Mich., and instructed Waterbury to demand of complainant, as a condition of their delivery, the payment of, not only the amount of principal and interest due upon the contract, but the further sum of $70, which the defendant claimed as his tax-title interest in the premises,- — in all, the sum of $256.35; there being due on the contract at that time the sum of $186.35. The complainant refused to pay the further sum of $70 demanded, and then and there tendered to defendant the sum of $188.50 as payment in full of the principal and interest due upon the contract; and, such tender being refused, the complainant notified the defendant that he would place such money in the Ithaca Savings Bank, in readiness to be paid to defendant upon delivery of the deeds, and the complainant deposited the money accordingly.

Complainant’s contract provides that he should pay the taxes of 1892 and the taxes of subsequent years, and that, upon the payment of such taxes and the purchase price of $212.50, he should receive “a good and sufficient deed, thereby conveying to the party of the second part a good and unincumbered title in fee simple.” At the time of the interview between all the interested parties at Lansing in June, 1894, and while all were present, Day asked the defendant: “Who gives us this title?” Defendant replied : “We do. If you have the money, I will give you a good, clear warranty deed.” Then complainant said: “I am ignorant, — cannot read or write; and while you fellows are right here, together, I want to ask you a question : How does it come that Mr. Raynor has paid them back taxes in his name as guardian?”- — to which Porter replied, “He paid them for us, and^Raynor never had those,” to which defendant assented. Defendant does not deny this conversation respecting the tax titles. The complainant paid all the taxes assessed against the premises subsequent to 1891. At the time of the execution of the contract in question, complainant took possession of the premises, and has occupied them since as his homestead. He has made valuable improvements upon them, and they are now worth $1,000.

There is no allegation in defendant’s answer, and no proof in the case, that he ever had any valid tax titles upon the land in question. All the testimony upon this point is that of defendant, who says that maybe he had tax titles, —he did not know, — and that he took deeds for taxes he paid.

Upon these facts, the court below entered a decree in favor of complainant. From this decree, defendant appeals.

We think the court was not in error in so entering the decree. It is unnecessary to discuss the case. The facts warrant the result reached by the court below. The decree must be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    PEOPLE v. LANE.
    1. Perjury — Information—Averment of Statute.
    An information, for perjury which is full and explicit in alleging the offense, and contains a general averment that it was “contrary to the statute in such case made and provided,” is not rendered bad by an erroneous citation of the section of the statute under which the offense is charged.
    2. Justices of the Peace — Complaint—Failure to Sign Jurat— Jurisdiction.
    1 Comp. Laws 1897, § 1020, provides that, on complaint made to a justice of the peace that one of certain specified offenses has been committed within the county, he shall examine the complainant under oath, reduce the complaint to writing, and cause it to be subscribed by the complainant, and that he may issue a warrant thereon for the arrest of the accused.
      Held, that a justice had jurisdiction, to issue a warrant of arrest on a complaint charging an assault, though he failed to sign the jurat of the complaint, where it appeared that he had examined the complainant under oath touching the matters referred to in the complaint, and had sworn him thereto.
    3. Same — Jury—Constitutional Law.
    Const, art. 6, § 28, authorizes the trial of a criminal offense by a jury of less than 12 men in courts not of record; 1 Comp. Laws 1897, § 1024, permits the accused to waive a jury in justice’s court; and section 1026 prescribes the manner of impaneling a jury in such court, and declares that such jury shall consist of not less than 6 persons. Held, that section 1026 relates solely to the selection of the jury, and does not preclude a respondent from consenting to a trial by a jury of 4 persons.
    Exceptions before judgment from Livingston; Smith, J.
    Submitted May 1, 1900.
    Decided May 18, 1900.
    William Lane was convicted of perjury.
    Affirmed.

      B. T. O. Clark and William P. Van Winkle, for appellant.

      Louis E. Howlett, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of perjury. The information charged the offense as having been committed while respondent was a witness in a case before a justice of the peace in which his brother was on trial, before the justice for assault and battery. The information, after describing the offense with great particularity, concluded as follows:

“The said Louis E. Howlett, prosecuting attorney as aforesaid, does say that the said William Lane, on, to wit, the 30th day of December, 1898, in the county aforesaid, before the said William M. Power, justice of the peace aforesaid, and before the jury duly impaneled and sworn to try the issue there joined, by his own act and consent, and of his own most wicked and corrupt mind, in manner and form aforesaid, falsely and wickedly, willfully and corruptly, did commit willful and corrupt perjury, contrary to section 9236 of Howell’s Annotated Statutes of the State of Michigan, and contrary to the statutes in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

It appears that the wrong section of the statute was referred to. The section under which the offense might have been charged is 9235. It was not necessary to refer in the information to any particular section. A general reference to the offense as .“contrary to the statutes in such case made and provided ” is sufficient. The information is full and explicit in all its allegations, and sufficient to warrant a conviction for the crime of perjury, under section 9235. It is evident that counsel for respondent were not misled by the wrong section being placed in the information. It was mere surplusage.

It is next contended that the justice had no jurisdiction to issue a warrant in the assault and battery case, or to try the case, because there was no sworn complaint as a basis therefor. It appears that the jurat to the complaint had not been signed by the justice. He testifies that he swore the complaining witness to the complaint. The complaining witness also testifies that he was sworn thereto. It is evident from the complaint and the testimony that the justice examined the complaining witness on oath touching the matters referred to in the complaint. This is sufficient, under section 1020, 1 Comp. Laws 1897.

It is contended that the trial of the assault and battery case before a jury of only 4 persons was in violation of law, and that perjury cannot be predicated upon testimony given on the trial. The Constitution of the State provides that a jury in courts not of record may consist of less -than 12 men. Section 28, art. 6. The respondent might entirely waive a trial by jury (1 Comp. Laws 1897, §§ 1024, 1026), and hence could consent to a trial by less than 6 men.

It is claimed, however, that inasmuch as section 1026 provides, “nor shall the jury consist of less than six persons,” respondent could not be tried by a less number. That section provides for the method of impaneling a jury in justice’s court, and the language above employed has reference solely to the selection of the jury.

Some questions are raised in reference to the admission of testimony and the refusals of the court to charge as requested. We have examined those questions, and find no error.

The conviction must be affirmed.

The other Justices concurred.


author: Montgomery, C. J.

text:
    BURNS v. FORD.
    1. Tax Sales — When Set Aside.
    A tax sale under the law of 1893 will not be set aside after confirmation, except for one of the reasons specified in section 70 of the act (1 Comp. Laws 1897, § 3893), — i. e., that the taxes were paid or the land was exempt, — or for jurisdictional defects in the tax proceedings.
    3. Same — Non jurisdictional Defects — Recording Decree — Publication — Report of Sale. .
    Hence, such sale is not open to attack because of—
    (1) The failure of the county clerk to record the order of hearing the auditor general’s petition, as required by 1 Comp. Laws 1897, § 3885.
    (2) The recording of the decree of sale in a special book kept for that purpose, instead of in the regular chancery record, as required by section 3890. Following Hoffman v. Pack, Woods & Co., 123 Mich. 74.
    ( 3) The fact that the last publication of the petition and the order of hearing thereon was not made 10 days before the day fixed for the hearing. Following Eldridge v. Richmond, 120 Mich. 586.
    (4) A variance between the date of the decree entered and that of the certified copy annexed to the tax record. Following Cates v. Johnson, 121 Mich. 663.

      5) The fact that the county treasurer’s report of sale to the auditor general was made before the time when, under the statute, the sales would stand confirmed, contrary to the provisions of section 3893, and did not, in relation to lands bid in by the State, recite a full compliance with the statute as to previous efforts to sell them to private purchasers. Following Detroit Fire & Marine Ins. Co. v. Wood, 118 Mich. 31.
    3. Same — Proof of Publication.
    Former decisions of the court in relation to the sufficiency of proof of publication of the petition and order of hearing (i. e., Garner v. Wallace, 118 Mich. 387, Spaulding v. O’Con-nor, 119 Mich. 45, and Mann v. Carson, 120 Mich. 631) are approved.
    4. Same — Report of Sale.
    A county treasurer’s report of sale which states that parcels bid to the State were, “on the original offering for sale,” passed over for the time being, and were reoffered before the close of the sale, but could not be sold, is not open to the objection that it does not show that such lands were ever offered for sale in their regular order.
    5. Same — State Tax Lands — Simultaneous Purchase from Regular List.
    Where a purchaser of State tax land at the annual sale by the county treasurer at the same time bids in the land for the taxes of a subsequent year, which latter sale is void, it is not a valid objection to the purchase of the State title that, as it does not appear that it would have been made but for the purchaser’s desire to buy the land from the regular list, both titles should fall together.
    Appeal from Mecosta; McMahon, J., presiding.
    Submitted April 4, 1900.
    Decided May 18, 1900.
    Petition by J. Davidson Burns against Edgar W. Ford, Mary M. Ford, and Roscoe D. Dix, auditor general, to set aside a tax sale. From a decree dismissing the petition, petitioner appeals.
    Affirmed.

      Frank Dumon and Boudeman & Adams, for petitioner.

      A. B. Cogger and M. Broten, for defendants.
   Montgomery, C. J.

This is a hearing on a petition filed to review the proceedings in a tax case had on petition of the auditor general. Petitioner has succeeded to the original title, and defendant Edgar W. Ford is a purchaser from the State of the title derived on a sale of the land under a decree. There is no showing that the tax was paid prior to the sale, nor that the land has been redeemed, nor that the land was exempt from taxation. If the court obtained jurisdiction of the proceeding, and has so far followed the statute as to retain jurisdiction, the petitioner is not entitled to have the sale set aside. 1 Comp. Laws 1897, § 3893.

Section 3885, 1 Comp. Laws 1897, provides that, on filing the petition of the auditor general, it shall be the duty of the county clerk to present the same to the circuit judge, and it shall be the duty of the circuit judge to make an order in a form prescribed,—

“Which order, when so made and signed by the circuit judge, shall be countersigned by the county clerk as register in chancery, and recorded by him in the proper books of his office; and thereupon it shall be the duty of said county clerk to immediately make a true copy of said order, and transmit the same to the auditor general.”

The order in question was made in due form, signed by the circuit judge, countersigned by the register in chancery, and filed in the case, but was not recorded at length. Is the record by the clerk jurisdictional ?

Section 3889 provides that the publication of the order and petition shall be equivalent to personal service of notice. The requirement that the order shall be recorded is evidently for the purpose of perpetuating evidence. No jurisdictional action is based on the record. The statute contemplates that the order is to be signed in advance of any record of it in the book. The neglect of the clerk does not, we think, lose jurisdiction. Hoffman v. Pack, Woods & Co., 123 Mich. 74 (81 N. W. 934). The case cited also rules the question raised relative to .the recording of the final decree.

Certain questions are raised relative to. the sufficiency of the affidavit of publication; but, in view of our previous holdings in Mann v. Carson, 120 Mich. 631 (79 N. W. 941), Garner v. Wallace, 118 Mich. 387 (76 N. W. 758), and Spaulding v. O'Connor, 119 Mich. 45 (77 N. W. 323), we do not deem it necessary to discuss the point made at length. It is sufficient to say that the affidavit, by reference to the annexed paper, shows a publication of all requisite notice. In the same connection, the point is made that the publication is defective for the reason that the last publication was not 10 days before the day of the hearing. This point is ruled against the contention of petitioner in Eldridge v. Richmond, 120 Mich. 586 (79 N. W. 807).

The variance in date between the decree entered and the certified copy attached to the tax record is not fatal to the proceeding. Gates v. Johnson, 121 Mich. 663 (80 N. W. 709).

The report of the county treasurer ■ to the auditor general was made before the time when, under the statute, the sale stood confirmed. It is claimed that this is premature, and the case should be treated as though no report of sale had been made. Objection is also made that the return does not show that the lands bid in by the State were offered in their regular order at all. The statute requires that, if any parcel cannot be sold for taxes, interest, and charges, such parcel shall be passed over for the time being, and shall be reoffered on the succeeding day, or before the close of the sale. The report states that:

“ In every case where any parcels are marked as bid to the State, such parcels, on the original offering for sale, were passed over for the time being, and were, before the close of such sale, reoffered for sale; but the same, respectively, could not be sold for the total amount of the taxes, interest, and charges, and thereupon, and for that reason, I did bid off the same, respectively, in the name of the State.”

We think the criticism not justified, and we also think, as to both criticisms on the report, that the alleged irregularities are not jurisdictional. Detroit Fire & Marine Ins. Co. v. Wood, 118 Mich. 31 (76 N. W. 136).

The decree in this case was based on the assessment of 1893. The State became the purchaser in 1895, and the defendant Edgar W. Eord bought the title of the State at the December sale of 1896. It appears that at the same time the defendant Ford purchased on a sale for the taxes of 1894. The petitioner subsequently redeemed from the sale for the taxes of 1894, leaving the purchase of the State interest to stand. It is now claimed that the sale for the taxes of 1894 was void, under Connecticut Mut. Life Ins. Co. v. Wood, 115 Mich. 444 (74 N. W. 656), and that as it does not appear that the defendant would have purchased the title of the State under the present decree for the taxes of 1893, except for the reason that he wanted to bid for the taxes of 1894, this sale should fall with the other. It might be answered that it does not appear that the defendant would have purchased under the sale for the taxes of 1894, except for the reason that he wanted to buy the State’s title for the taxes of 1893. We think this purchase gave title to defendant.

We find no jurisdictional defects in the proceedings, and the decree dismissing the petition will be affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. CASEY.
    1. Criminal Law — Defenses—Insanity—Nonexpert Witnesses.
    In support of a defense of insanity on a criminal prosecution, witnesses who testify to an acquaintance with the accused, and to unusual actions tending to show insanity observed by them, are competent to express the opinion, based on such observations, that the accused was insane.
    2. Same — Witnesses—Indorsement on Information.
    Under 3 Comp. Laws 1897, § 11934, requiring the names of witnesses known to the prosecutor to be indorsed on the information at the time of filing, it was error to permit the people to swear a witness in rebuttal whose name was not so indorsed, where no showing was made that the name of such witness, or the materiality of his testimony, was theretofore unknown to the prosecutor.
    Error to Alpena; Kelley, J.
    Submitted May 1, 1900.
    Decided May 18, 1900.
    Maurice E. Casey was convicted of an assault with intent to commit the crime of murder, and sentenced -to imprisonment for 25 years in the State prison at Marquette.
    Reversed.

      James Collins and Charles D’Aigle (J. D. Turnbull, of counsel), for appellant.

      J. H. Cobb, Prosecuting Attorney, for the people.
   Moore, J.

Respondent was charged and convicted of assault with the intent to commit the crime of murder, and sentenced to Marquette prison for 25 years. Respondent and his wife lived unhappily together during most of their married life, and at the time the crime was committed were living apart. They had two children, both of whom were boys. The younger boy lived with his father, on Lockwood street; the older boy and Mrs. Casey, with Mrs. Casey’s mother and sister, on Plains street, in the city of Alpena. On Sunday, the 19th day of December, 1897, the boy Freddie called to see his mother and brother. Later, respondent was seen by Eliza Sheridan and Mrs. Casey approaching the house. They supposed he had come for Freddie, who was playing in the yard. Mrs. Casey told her sister to put Freddie’s overcoat on him outside the house, so respondent would have no excuse to come in the house. As respondent came up the steps, Miss Sheridan said to him, “Here, Freddie is ready; ” and he said, “Get the whisk and brush the snow off that child.” Respondent then came up the steps, and pushed past her into the house. This was at the back kitchen door. Witness and the boy followed respondent into the house. Mrs. Casey was washing dishes, and stood almost behind the kitchen door. Respondent went up to her and said, ‘ ‘ I will give you until Monday to get out of town.” She asked him what she had got to get out of town for. Respondent then pointed a revolver at her face and fired. The shot took effect under the right eye. Miss Sheridan ran to the front door to call help, and, while away, respondent shot his wife through the elbow. Miss Sheridan returned to the kitchen, where respondent pointed the gun at her. She said, “For God’s sake, Maurice, don’t shoot me.” In the meantime Mrs. Casey had crawled under the table. Respondent then fired two more shots at,his wife, and attempted to fire the third, but the gun did not go off. Respondent took his child and walked away. He was later found in a cellar just outside the city, and arrested. The defense was insanity, and the case is brought here for review upon writ of error. There were a number of assignments of error, but we shall discuss only those we deem important.

On the part of the defense, Mr. Wyman testified as fol-* lows:

“I have known Maurice Casey for about 10 years. During the last four or five years I have had business with him right along, so we became familiarly acquainted. I have noticed that since the first of the summer he has acted peculiarly, different from what he used to. The most of the conversation I had with him was concerning his family troubles, — his wife and children leaving him and being away from him, — and thought his mother-in-law had a good deal to do with it, and would talk about nothing else in my company. He was talking about it all the time, and didn’t talk about anything else. He used to be in my shop from one to half a dozen times a day when he wasn’t working. He would sometimes come in and cross the shop two or three times with his head down, not noticing or speaking to any one. Sometimes we would speak to him, but he would not answer us. We have passed each other on the street, he not noticing or speaking to me, and we were good friends. Lots of times I spoke to him when passing him on the street, and he didn’t answer. I have met him on Second street, going to and coming from my meals, and heard him talking to himself and making gestures. I remember one time passing him, I think, near the Beebe Block. I was going to my dinner. He was going downtown, with his head down, making motions with his hands as though he were speaking to some one. I met him face to face. Then he didn’t speak to me, nor I to him. He didn’t notice me, so I passed him right by. I didn’t like to speak to him any more than I could help, because he would talk about nothing else but his troubles, and I didn’t want to be bothered with him. I was acquainted with him in 1894, 1895, and 1896. I don’t think he ever spoke of his family troubles during these years. Never saw him act that way before 1897. I noticed a radical change in his conduct. I saw respondent the next day after he was arrested. I thought he was a raving maniac that day. He was hollering and raving around the jail. Would throw himself on the floor and cry and holler. Then he would turn and walk away from the door of the jail, and laugh as he moved away. It sounded to me like a maniacal laugh. I talked with him that day. He answered me a part of the time. When I first went in he didn’t know me until I spoke to him a couple of times. Then he reached his hand through the grates of the door and shook hands with me. I remember one time of telling him that he was going crazy, but I don’t remember what he said in reply.”

He was then asked to state whether he considered the respondent sane or insane. The court held he was not competent to express an opinion upon that subject, and excluded the testimony.

A number of other witnesses testified to their acquaintance with the accused and his unusual conduct and actions, and an offer was made to show that in their opinion the accused was insane. The judge held the testimony was incompetent.

The right to express an opinion as to sanity or insanity, where it is in issue, is not confined to experts. Any person having sufficient knowledge to speak intelligently upon that subject is competent. He may not express an opinion simply because he was acquainted with the person, but in addition thereto he must show facts and circumstances which the court can say tend to show the insane condition. When that is done, then the witness may express his opinion, and it is for the jury to say how much weight should attach to it. In Armstrong v. State, 30 Fla. 170 (11 South. 618, 17 L. R. A. 484), the question was raised as to the competency of certain witnesses to express an opinion as to the insanity of. the accused, and the court used the following language:

“These witnesses conversed with him on the subject of his delusion, observed his strange conduct, and gave it as their opinion that he was insane on that subject. They are not shown to he experts in such matters, but the weight of authority is clearly in favor of admitting such testimony on an issue of sanity vel non. No objection was made to it on the part of the State in the case. 11 Am. & Eng. Enc. Law, 161, and authorities in note 1 to heading, ‘Opinions of Nonexpert Witnesses;’ 1 Whart. Ev. §451; Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612 (4 Sup. Ct. 533); McClackey v. State, 5 Tex. App. 320; Webb v. State, Id. 596; People v. Sanford, 43 Cal. 29; People v. Wreden, 59 Cal. 392; State v. Klinger, 46 Mo. 224; Wood v. State, 58 Miss. 741; State v. Newlin, 69 Ind. 108; Sage v. State, 91 Ind. 141; Clark v. State, 12 Ohio, 483 (40 Am. Dec. 481). It may be proper to state that such witnesses cannot express a general opinion as to sanity, nor can they give an opinion independent of the facts and circumstances within their own knowledge; but they can detail the facts known to them which show insanity, and thereupon express an opinion as to the sanity of the person whose mental condition is being investigated. Of course, the value of such testimony must depend largely upon the opportunities of the witnesses to correctly observe the appearances and conduct of the person whose mind is claimed to be unsound, as well as the character of such appearances and conduct. The witnesses who testify as to the mental disorder of the accused had an opportunity to observe him closely, and some of them made special investigation as to his condition.”

This opinion is in harmony with the decisions of our own court. Beaubien v. Cicotte, 12 Mich. 459; O’Connor v. Madison, 98 Mich. 183 (57 N. W. 105); People v. Borgetto, 99 Mich. 336 (58 N. W. 328); Prentis v. Bates, 93 Mich. 234 (53 N. W. 153, 17 L. R. A. 494). We think the proper foundation was laid to make these witnesses competent to express an opinion.

Upon the trial the people were allowed to swear a witness in rebuttal, without the name of the witness being indorsed upon the information, and without requiring any showing why it was not indorsed. Section 11934, 3 Comp. Laws 1897, relating to the indorsement of names upon the information, has been repeatedly construed by this court. See the cases cited in the note to this section. In People v. Quick, 58 Mich. 321 (25 N. W. 302), Justice Campbell, speaking for the court, said:

“We have held on several occasions that the defendant has a right to know in advance of the trial what witnesses are to be produced against him, so far as then known, and to have any new witnesses indorsed on the information as soon as discovered. The object of this is not merely to advise a respondent what witnesses will be produced on the main charge; it is to guard him against the production of persons who are unknown, and whose character he should have an opportunity to canvass. It is as important to impeach a rebutting witness as any other.”

In People v. Howes, 81 Mich. 396 (45 N. W. 961), Justice Grant, for the court, said:

‘ “"The prosecuting attorney was present at the examination before the justice, and then knew of this witness. The statute required him to indorse upon the information the names of the witnesses then known to him, and authorized him to indorse the names of other witnesses at such time before the trial as the court may, by rule or otherwise, prescribe. 2 How. Stat. § 9549. It needs no argument to show that the letter and spirit of this statute were violated in permitting the name of this witness to be indorsed after the trial had commenced. This right given by the law to the accused is a substantial one, which courts cannot ignore. The carelessness or neglect of the prosecuting attorney will not warrant the court in permitting names to be indorsed upon the trial when the witnesses were before known to him.”

Should the testimony introduced upon the part of the respondent make it necessary to call witnesses in rebuttal whose names, and the materiality of whose testimony, until then were unknown to the prosecuting attorney, upon a showing of those facts it would be the duty of the judge to allow the names to be indorsed. Until this is done, the testimony of the witness may not be taken.

The other assignments of error do not call for discussion. For the reasons stated, the judgment of the court below is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    AUDITOR GENERAL v. MELZE. SAME v. SCULLY.
    1. Drains — Taxation—Estoppel.
    One whose land is assessed for benefits in the construction of a drain, who, with full knowledge of the proceedings, takes none of the statutory steps to determine their validity, cannot afterwards set up defects therein to defeat an application by the auditor general for the sale of the land for nonpayment of the tax.
    2. Same — Cost of Construction — Constitutional Law.
    The provision of section 1, chap. 6, of the drain law ( 2 Comp. Laws 1897, § 4354), authorizing 10 per cent, of the estimated cost of a drain to be added thereto for contingent expenses, is not unconstitutional.
    Appeals from Saginaw; Snow, J.
    Submitted April 11, 1900.
    Decided May 18, 1900.
    Petition by Roscoe D. Dix, auditor general, for the sale of lands delinquent for taxes: On objections filed by Augustus O. Melze and others, and William Scully and others. Prom a decree for petitioner, defendants appeal.
    Affirmed.
    These are appeals from the decree of the circuit court for the county of Saginaw, in chancery, holding the lands of appellants liable for certain drain taxes, and ordering the lands sold for nonpayment of the taxes, dated April 15, 1899. The total cost'of each drain was about $7,000. All the taxes have been paid except those of the appellants, amounting to $584.29. The two cases are heard as one, the most of the objections being common to both.
    These two drains are known, one as the “Weeks,” and the other as the “Fleming,” drain. The Weeks drain was situated in two townships of Saginaw county and in one township of Gratiot county. The Fleming drain is situated wholly'in Saginaw county. The original application for the Weeks drain was made June 27, 1892, and that for the Fleming drain November 2, 1892. The various proceedings continued up to August 11, 1896, when contracts for the construction of the drains were let. The drain special assessment roll was made August 22, 1896. The drains were adjudged to be a public necessity, and no claim is made that appellants’ lands are not benefited. Some of the appellants did work upon the drains. The objections, save one, relate entirely to alleged defects in the proceedings. The claim most strenuously and ably urged is that the drain law is unconstitutional, and that these proceedings are void, because 10 per cent, of the estimated cost was added to cover contingent expenses. Section 4354, 2 Comp. Laws 1897. The land of only one of appellants is crossed by the drains, and his grantor had released the right of way.

      F. L. Faton, Prosecuting Attorney, for .petitioner.

      Fredérich W. Newton, for defendants.
   Grant, J.

(after stating the facts). We deem it unnecessary to state more fully the proceedings taken and the objections thereto. The appellants stood by; saw these proceedings taken; do not claim to be damaged; their assessments are small; and they took none of the statutory steps to contest the legality of the drains. They are now about completed. Under the repeated decisions of this court, we think they are not now in position to raise the questions. The drain law provides methods for the speedy determination of all questions involving the validity of the proceedings. The evident intent and purpose of this is to have the validity determined before large expense is incurred and the drains constructed. The following decisions are conclusive against the appellants: Atwell v. Barnes, 109 Mich. 10 (66 N. W. 583); Moore v. McIntyre, 110 Mich. 237 (68 N. W. 130); Smith v. Carlow, 114 Mich. 67 (72 N. W. 22).

The constitutionality of this act has been attacked before, but perhaps not on the specific ground now alleged against it. A similar provision is found in the general tax law. We see no constitutional objection to adding an amount to cover contingent expenses.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    SULLIVAN v. ROSS’ ESTATE.
    1. .Logs and Logging — Contracts—Negligence.
    Where a party assumes exclusive control of the rafting and towing of logs in which he has an interest, under a contract with the other party in interest giving him the right, if he should deem it necessary, “to control the business in every particular to his own satisfaction,” he is liable to the other for damages resulting from his failure to use ordinary skill and prudence in handling the logs.
    2. Same — Scale—Mistake—Question for Jury.
    Evidence that both long and short logs were hauled to a certain landing, and that a purported scale of the logs at the landing was headed “Scale of Short Logs,” was sufficient to go to the jury in support of a claim of mistake in the scale.
    3. Same — Estoppel to Dispute Scale.
    That the vendee in a logging contract received the scaler’s statement, and reported it to the vendor as the basis of a charge for stumpage, does not estop him from afterwards questioning the correctness of the scale, in support of a claim against the vendor for negligently causing the loss of part of the logs, where it appears that he suggested to the vendor that the scale was too low, and asked him to require a new scale.
    Grant, J., dissenting.
    Error to Marquette; Stone, J.
    Submitted January 4, 1900.
    Decided May 29, 1900.

      Thomas G. Sullivan presented a claim against the estate of James G. Ross, deceased. The claim was disallowed by the probate judge, and claimant appealed to the circuit court. From a judgment there for claimant, defendant brings error.
    Affirmed.

      Clark & Pearl (John D. Conely, of .counsel), for appellant.

      Moore & Moore (Ball & Ball and T. E. Tarsney, of counsel), for appellee.
   Hooker, J.

Sullivan filed a claim against tne estate of Ross in probate court for $100,000. It was in form a petition, setting up the facts relied upon to establish his claim, which were in substance the following, viz.: Ross owned pine lands in Michigan. On November 7, 1883, a contract was made between him, under the name of Ross & Co., and Sullivan, wherein it was agreed “to sell all the pine [thereon] to Sullivan for one dollar and fifty cents per thousand feet, board measure,” which Sullivan agreed to pay, and to cut the timber before May 1, 1884. The contract contained the following provision:

“It is hereby agreed that said second party shall have the right to cut said timber as above mentioned before he shall pay the price above mentioned, and also the right to remove the same to the landings or rollways on the shore of Lake Superior; but said property shall continue to be the timber of Ross & Company until paid for by said second party according to the amounts above mentioned, and said second party shall not be permitted or have authority to remove said logs so manufactured from said landings or rollways without paying for the same the sums as above mentioned.”

Another contract was made December 18, 1883, between the same parties, which provided in substance:

“That whereas, the said second party is desirous of procuring advances from said first party for the purpose of enabling the said second party to carry on the work upon the lands mentioned in the articles of agreement made between the said parties the 7th day o£ November, A. D. 1883, being an agreement for the sale of pine stumpage mentioned in said agreement of November 7th, 1883, reference to which agreement is hereby made; said advances desired by second party being as follows: To pay amount due William A. Burt, St. Ignace, $4,100; to pay amount of draft drawn by second party on the first parties in favor of L. P. Trempe, due December 26th, 1883, $2,355; to pay the amount of Brady & Company bill, $788.45; to amount to pay men now and in the following spring as required, for work now done and to be done during the present winter, ten thousand dollars ($10,000), — the total amount of said advances being seventeen thousand two hundred and forty-three and 45-100 dollars ($17,243.45): It is hereby understood and agreed that, so far as said first parties shall make said advances, they shall have a lien on all the timber cut and standing which shall have been purchased by said second .party from said first parties under and by virtue of said agreement dated November 7th, 1883, above referred to; and said second party agrees to pay said first parties for so much of said advances as said first parties shall make to said second party before said timber shall be removed from the rollways upon the banks of Lake Superior, it being hereby agreed by said parties that said timber shall continue to be the property of said first parties until not only the stumpage for the same shall be paid as mentioned in said agreement of November 7th, 1883, but until the amounts of said advances as shall be made by said first parties to said second party shall be fully paid; said advances to be paid by June 1st, 1884. It is understood and agreed between said parties that said second party shall pay to said first parties seven per cent, interest upon all advances that shall be made from the date of each advance. Said second party is also to pay to said first parties a commission fee upon said transaction equal to the amount of five per cent, of such advances as shall be made.”

Claimant got out 9,000,000 feet of logs on the bank of Lake Superior previous to May 28, 1884. On June 24, 1884, a third contract was made between the parties, reading as follows:

“That whereas, the said party of the first part has been unable to- pay up for the advances made to him by the second party under certain agreements dated November 7th, 1883, and December 18th, 1883, and also for stumpage due said second party for timber cut under said last-mentioned agreement; and whereas, said first party is desirous of moving said logs to Sault Ste. Marie, where he hopes that a sale can more readily be made of the same, or where the same can be cut into merchantable lumber; and whereas, said first party desires to obtain from said second party further advances to enable him to remove said logs to Sault Ste. Marie, in Chippewa county, Michigan, or any other place in Michigan that said Boss & Co. may direct, and to the mill of H. W. Seymour: It is hereby agreed by and between said first and second parties as an agreement supplemental to said previous agreements, but not in any way affecting or changing them, that said second party will advance to said first party at the rate of one dollar per thousand feet, board measure, for the purpose of towing and delivering said logs at said place or places that Boss & Co. may direct, and will also advance at the rate of two dollars and a half per thousand feet, board measure, for the purpose of paying for the sawing of any or all of said logs, if it shall appear to be necessary to saw said logs in order that they may meet with a more ready and satisfactory sale.

‘ ‘ In consideration of said additional advances so agreed to be made, it is understood and agreed that said second party shall have the same right to the said logs, and the lumber when cut out of the same, as he now holds under- and by virtue of said agreements of November 7th and December 18th, 1883, to the extent of the advances and stumpage so previously made under said previous agreements, and also to the extent of the said new advances for towing and sawing as above stated.

“It is further understood that, in consideration of said new advances, there shall be paid to said second party from the sale of said logs or lumber manufactured from the same, first, the advances which have already been made and interests and commissions upon the same, and also the amount due for stumpage as agreed upon in said previous agreements, and also for the advances made for towing and sawing and commissions and interests upon the same; and after the same shall be fully paid to said second party, if there shall remain any balance or profit over and above the same, said profit shall be divided between the said first and second parties, one-third of the same to belong to said Sullivan, first party, and the remaining two-thirds to said Ross & Co., second party. It is understood and agreed that the removal of said logs shall be at the risk and expense of said first party.

‘ ‘ The basis of the division of the profits shall be based upon the prices mentioned in a contract drawn, but not entered into between the parties hereto, and now in the hands of F. O. Clark, of Marquette, except as to mill culls, and as -to those they shall be equally divided between the parties hereto. Basis of-value of Norway pine to be $6.00 for long and $4.50 for short logs, and profits to be divided as above stated.

“And it is mutually agreed by and between the parties hereto that Ross & Co., of the second part, shall have the right to pay all the moneys mentioned in this agreement as a further advance for towing and cutting said logs at mill to the parties to whom it is due, and in fact, if they deem it necessary, to control the business in every particular to their own satisfaction.”

The indebtedness mentioned in the last contract was $48,000. Ross took possession and disposed of the logs, claiming to act under the contracts, and attempted to raft them from Au Sable Point, on Lake Superior, to Sault Ste. Marie. Through the negligence and reckless.ness of the agents of Ross in providing and keeping closed a proper boom where the logs were rolled into the lake at Au Sable Point, about 2,000,000 feet of the logs were blown across the lake, and lost. Of the logs which reached and were sent down the rapids of the St. Mary’s river, half a million feet were lost, and a large expense was incurred by Ross- in saving a million feet which escaped from his boom below the rapids through his negligence and recklessness. Several million feet were sawed into lumber, and Ross permitted this to be negligently and recklessly done, whereby the product was injured and lessened, resulting-in a loss of $30,000. Ross shipped this lumber to Detroit, and sold it from there. This was in violation of the contract, and occasioned a loss of $50,000. Ross received $60,000 from the logs, for which petitioner asks an accounting. Several other items were included in the claim, which need not be discussed, as we understand that they are not relied upon. The claim was disallowed in probate court, but upon appeal claimant obtained a verdict for $95,525.65. The cause is before us on a writ of error. The claim for losses through taking the lumber to Detroit was withdrawn from the jury.

One of the most important questions raised by defendant’s counsel relates to the proper construction of the contract of June 24th. They claim that the last clause of that writing gave defendant the right to 'take the control and management of the business, and that he might manage it according to his own judgment, without liability for mistakes or failures, if there was no bad faith. The court instructed the jury that Sullivan was to assume all ordinary risks, such as the risks of navigation, winds, and calamities that might come, but that he was not responsible for the negligent acts, if any, of Mr. Ross or his agents, and that the estate was liable to him for damages resulting from the want of ordinary care and prudence in the conduct of the business. Counsel for the defendant cite a number of cases which hold that, when a vendee agrees to purchase an article if satisfactory, he is not liable if he reject it, so long as he is honest in the expression of his dissatisfaction. Several of the cases are from this court. No case is cited that raises just such a question as we have before us, and we infer that it is useless to search for that which the industry of counsel has failed to find. We think the cases cited are distinguishable from this in principle. In those cases the parties may be supposed to have understood that the purchaser was to exercise his right to reject the goods if for any reason, no matter how frivolous, he should be dissatisfied with them. So, in this case, the defendant’s right to assume control did not depend upon his ability to give a reason for so doing that should be satisfactory to others; but it would not be reasonable to believe that either party contemplated a negligent or reckless course in rafting the logs or manufacturing them into lumber. We think the term used should be subject to the general limitation that, if Ross should choose to take control, he would use ordinary skill and prudence in handling the property, in which the parties had a mutual interest. It is a rule applicable to contracts generally, when a contrary intent does not affirmatively appear, that ordinary skill and prudence are contracted for, and we cannot doubt that such was the intention of the parties in this instance.

Counsel for the defendant insist that there is no evidence that Connolly did take control, and raise the question upon the introduction of evidence whether some testimony offered to prove it was admissible, contending that it was as consistent with the claim that Sullivan was managing the business. We are of the opinion that there was evidence tending to show that Connolly did take control to the exclusion of Sullivan, and therefore it was a question for the jury.

We think, also, that the question of negligence was for the jury, and that there was testimony offered tending to prove it upon all of the claims.

It is urged that the claimant has made claim to a greater quantity of logs than Connolly received from him, and that the jury should have been instructed that 7,500-000 feet, in round numbers, was the limit. It is contended that, had this been done, there could have been no balance in claimant’s favor; and it is obvious that it would have materially reduced his claim, to say the least. This is based on two propositions:

1. That the parties agreed upon Spencer and Barrett to scale the logs, and must be bound by their scale.

2. That the letters of Sullivan to the defendant estop him (Sullivan) to claim more than such quantity.

The court instructed the jury that the parties agreed upon Spencer and Barrett as scalers, and that they made a scale of 7,500," 000 feet approximately, and that this should be binding upon the parties, unless there were fraud or mistake. No one claims any fraud upon defendant’s part in relation to the scale. Claimant insists, however, that there was a mistake in the aggregate amounting to a million and a half feet. The undisputed testimony shows that Spencer and Barrett were employed by Sullivan as scalers, by consent of Connolly, and that each measured a portion of the logs. So we think the court was justified in saying to the jury that the parties agreed upon them as scalers, and that their scale should be final, unless there were fraud or mistake shown. The. alleged mistake is that Mr. Barrett did not report his full scale, or, if he did, it was not included in the computation. There was evidence tending to show that the logs were banked at two landings, and at each some were long and some were short logs. The claim is that Barrett scaled at one and Spencer at the other, and that their scales were added together, making 7,500,000 feet. The item from Barrett was headed “ Scale of Short Logs,” and it was maintained that the long logs, if scaled, were not included in the aggregate. This claim rests on the statement of some witnesses that there were long logs at both landings, and on the fact that Barrett’s scale referred to “short logs.” Barrett testified that this was his total scale, and that he scaled all on the landing. He said: “It ran small logs, — seven or eight to the thousand. * * * I didn’t scale only short logs, and I think all drawed in at that end of the landing.” He said further: “ I don’t remember whether any long logs were drawn down that road or not; not to my knowledge, because I scaled what was down that way.” He was repeatedly asked about this, and reiterated, when asked if he would say there were no long logs at Finn’s camp, that he remembered none, but that, if there were, they did not come to where he scaled. We think that Mr. Barrett’s evidence is pointedly to the effect that he scaled all of the logs at that landing, and that it was included in the item mentioned. The right to go to the jury with this question, then, rests upon the statement of witnesses that long logs were hauled to that landing, and the presence of the word “short” in the Barrett scale. Upon the strength of this, Sullivan was allowed to put his estimate upon the pile of logs, to the exclusion of the scale, and the jury were permitted to find that a million and a.half more logs were upon the hank than the scale showed. In addition to the fact that a formal scale was made, it was given by the scalers to Sullivan, and by him reported to' defendant, who seems to have relied upon it. It was made the basis for the charge for stumpage without dissent, and, although Sullivan must have known of his estimate of 9,000,000 feet, he seems not to have mentioned it to Connolly before the logs were rafted. Accord? ing to Connolly, however, he did suggest to him that the scale was too low, and asked him to require a new scale, when there was talk of a sale to Collins, shortly before the logs were taken to the Soo. Counsel also claim that the fact is proved .by the aggregate of logs lost, lumber destroyed, and sales. Thus they say there were:

Logs lost on Lake Superior._________________ 2,000,000 ft.

Logs lost at Soo Rapids______________________ 500,000 “

Lumber destroyed by bad sawing............ 300,000 “

Lumber produced...'________________________ 6,745/525 “

Logs sold................................... 623,500 “

Total.....'.............................. 10,169,025 “

We are of the opinion that the claim that there was an estoppel is not tenable, and that the learned circuit judge did not err in leaving the question of mistake to the jury.

Several assignments of error fall with this determination. Thus it was not error to show by Spencer another scale, and by Sullivan and others their estimates of the quantity of logs.

Counsel for the defendant claim that the verdict of the jury was excessive: (1) Because, while charged with interest from 1884, the defendant was not allowed interest on advances; (2) because, being entitled to but one-third of the profits above advances and expenses, the claimant should be allowed to recover but one-third of the losses resulting from defendant’s negligence. The first of these two claims is erroneous, for the reason that the account shows that an item of $11,108.88 is included in the account for interest on advances. The second proposition rests upon the assumption that, under the contract of June 24th, the stumpage and advances were to be deducted from the proceeds of the logs, and that the remainder was to constitute profits, of which defendant should have two-thirds. This ignores the provision referring to the unsigned contract as a basis of profit, which shows that no profits could arise until the specified value of the lumber should have been received, and not then unless it equaled the advances, stumpage, etc. Hence there may have been a margin between the amount of the advances and expenses and the value of the logs, computed at $9 per 1,000 feet, and, as this margin would belong to the claimant, he would be entitled to recover, if lost through defendant’s fault. It is obvious that the proposition that claimant ought not to recover more than one-third of the lost profits as defined by the contract is correct.

We have endeavored to examine carefully every point made in this cause, though we do not consider a discussion of each question necessary. We find no error, and the judgment is affirmed.

Montgomery, C. J., Moore and Long, JJ., concurred with Hooker, J.

Grant, J.

(dissenting). The facts connected with this litigation have been so fully stated in the previous decisions of this court that it is unnecessary to restate them here. Sullivan v. Ross’ Estate, 98 Mich. 570, 113 Mich. 311, 315 (57 N. W. 821, 71 N. W. 634, 76 N. W. 309). McGrath, C. J., made a careful and thorough statement of the facts. There is no substantial difference between this record and that then before us.

1. The first question arises upon the construction to be placed upon the following language of the contract:

“And it is mutually agreed by and between the parties hereto that Ross & Co., of the second part, shall have the right to pay all the moneys mentioned in this agreement as a further advance for towing and cutting said logs at mill to the parties to whom it is due, and in fact, if they deem it necessary, to control the business in every particular to their own satisfaction. ”

Parties are presumed to mean something by the language which they deliberately place in their contracts. Under the construction claimed by plaintiff, the authority granted “to control the business in every particular to their own satisfaction” has no meaning whatever. Defendant’s obligation is precisely the same with the language out as with it in. I do not think plain language can thus be read out of a contract. It is conceded that, where one buys property to keep if it is satisfactory to him, he may reject the property if for any reason it is not satisfactory to him. In chattel mortgages the mortgagees may seize the property under similar language. “We know of no reason of public policy which prevents parties from contracting that the decision of one. or the other shall be conclusive.” Campbell Printing-Press Co. v. Thorp, 36 Fed. 414. This is a concise statement of the rule by Justice Brown. What difference does it make whether it is a machine to be sold or work to be done? If Ross had agreed to sell, cut, haul, raft, and manufacture this timber for Sullivan to his (Sullivan’s) satisfaction, could Sullivan have been compelled to accept it ? If Sullivan had agreed to do the work for Ross to Ross’ satisfaction, could Ross have been compelled-to accept it ? If they had agreed that the work should be done to the satisfaction of some third person, would not his satisfaction with the work have been conclusive upon them? Could Sullivan have sued Ross for damages after the determination of this third person, although he had protested against the method adopted and Ross had favored it? The only ground for recovery, under these circumstances, would be the quantum meruit, and not the contract.

■ What is the situation? Sullivan was hopelessly bankrupt. He owed Ross $48,000 for the timber and the advances. Sullivan could not pay, or sell the timber, or procure any one else to advance the money to relieve the property from Ross’ security. If the property were lost, the loss would fall upon Ross, because Sullivan was irresponsible. Sullivan was to perform the work at his own risk and expense, Ross advancing the money therefor. It was at least as much to the benefit of Ross as to that of Sullivan to have the work properly done. It was entirely natural that Ross should contract to take the work out of Sullivan’s hands if he were not satisfied, and then perform it to his own satisfaction. If he did so, under all the authorities he cannot be held unless he acted mala fide. It was to his interest to act in good faith, and there was no motive for his acting to the contrary. Whatever loss there was arose from error of judgment. The judgment of the jury as to whether the work was properly done was substituted for that provided for in the contract. Sullivan thought it was not safe to prepare the raft on the shore of Lake Superior as it was done. Ross thought it was. Ross’ method would have been proper but for the wind that came up and carried the logs out into the lake, and the jury were permitted to say that this was negligence. So, in catching the logs that were sent over the falls of the Sault Ste. Marie river, Sullivan thought two tugs, one at each end, were required. Ross thought that, if one end was attached to the shore, one tug would be sufficient. It was simply an error of judgment. Yet the jury were permitted to say that this was negligence. It is common knowledge that millions of feet of logs are caught and held in rivers by booms attached to each shore. Hall v. Boom Co., 51 Mich. 377 (16 N. W. 770). In that case 33 miles of logs were caught and held by such a boom during the spring freshets. Two rafts'were taken over the rapids on the same day, with the same booms, the same tug, and the same outfit, with plaintiff in charge. Connolly’s judgment was good as to the first raft, for the booms were sufficient, and all the logs were saved. Whether any logs had been sent over before, I do not find stated in the record. It was the latter raft that broke. Plaintiff testified, “I don’t know of any reason yrhy the boom broke at night and did not in the morning.” The same argument will apply to the sawing at Seymour’s mill. Did not Eoss have the legal right to say to Sullivan: If I deem it to my interest to take hold of this work and do it, I shall have the privilege of doing it to my own satisfaction. Neither will I consent to leave it to a jury to determine whether it is properly done.” The result of the joint venture was that Sullivan lost his labor and some property. Eoss lost his lumber and $23,000 besides; and now, because of these alleged errors in judgment, he is compelled to pay $95,000 more, entailing a loss upon him of $118,000. I think the record does not justify the conclusion reached by the jury. There is no claim that Connolly acted differently than he would if he or Eoss had been the sole owner of the property. The question of mala fides is, therefore, not in the case.

2. Upon the first trial, Sullivan swore positively to a contract of sale of 9,000,000 feet to Eoss at $9 per 1,000, and that he had been employed by Eoss at $100 per month to superintend the rafting. In this he was corroborated by Spencer, the scaler, who is also a creditor of Sullivan, and by two others, who swore positively that Connolly, Eoss’ agent, told them that Eoss had purchased the logs. Notwithstanding this positive testimony, this court did not hesitate to hold, in a unanimous opinion, that it was not true, and that the contract of June 24th, the written documents, and the conduct of Sullivan, stamped this testimony as false. This same written evidence, consisting of letters, telegrams, bills rendered, and drafts drawn, is, in my judgment, equally as conclusive against the present claim of Sullivan that Eoss had assumed entire control of the business and was responsible for all that was done. I call attention to the letter written by Sullivan to Connolly August 11, 1884, and found at the top of page 581, 98 Mich. That letter is wholly inconsistent with the idea that Ross, through Connolly, was in the exclusive control and management of the business. See, also, pages 584, 585. I further call attention to the fact that Sullivan testified that Connolly took entire charge of the business after June 1st. His testimony upon this point is as follows:

“Q. Up to the time you got the logs banked, who managed the business ?

“A. I managed the business, and paid the men. I got part of the money from Ross. After the first of June, Mr. Connolly had charge. He paid the men. The lumber, was sold in Ross & Co.’s name.”

This testimony is flatly contradicted by the contract made 24 days after, as he testified, Connolly had taken absolute charge and control, and as well by his subsequent conduct, letters, etc. Forty-four pages of the record contain the written documents, which are entirely inconsistent with Sullivan’s present claim. They show conclusively that he had not abandoned the control of the business, but was still managing it. The parol testimony in this case is no stronger against these documents than it was against those upon the first trial. If we were right then,- — and there is no claim that we were not, — we must now, in my judgment, hold that Sullivan is estopped to make his present claim.

3. The scales made by Spencer and Barrett should be held conclusive. They were the scalers agreed upon by the parties. Counsel for the plaintiff assert, “The pretended scale of 7,511,077 feet is a fraud.” They do not, however, assail the competency or honesty of either’ Spencer, plaintiff’s own witness, or of Barrett. Counsel concede the accuracy of Spencer’s scale at Davidson’s Landing. The trouble, therefore, if any, is with Barrett’s scale at the other landing; and counsel assert that 1,500,-000 feet of long logs were omitted by Barrett from his scale. Unless they can make good this assertion, plaintiff cannot recover. Barrett swears that he scaled all the logs that were hauled at that landing, and he reported the amount as 2,566,410 feet. His testimony upon this point is as follows: “I scaled all on the landing. I scaled there as the logs were hauled from Finn’s camp.” A strenuous effort was made hy counsel for plaintiff, on cross-examination, to impeach Barrett’s testimony, but, in my judgment, it utterly failed. If Barrett scaled 1,500,000 feet of. long logs, it is impossible that he should have forgotten it. No such claim was made for years. Sullivan reported the total of Barrett’s scale to Connolly as above given. There was no evidence of fraud on the part of Barrett, and the court should have so instructed the jury. In order to show a mistake, it was incumbent upon Sullivan to prove that long logs were hauled where Barrett scaled, and that he either scaled them, and the scale was lost, or that he neglected to scale them. Upon no other ground can he attack the scale. Spencer’s testimony that he scaled all the timber upon the skids in the woods during the fall and winter before was not binding upon the defendant, and could not impeach the scale of Spencer or the scale of Barrett, until fraud or mistake was shown. Spencer testified that he did make such a scale, but did not know what had become of it, and that it was “something better than 9,000,000 feet.” Defendant, or his agent, Connolly, knew nothing about this scale, and it is not of itself substantive evidence that Barrett had made a mistake. ' If a mistake had been shown, it might then be competent for the purpose of showing the actual amount. If any long logs . were hauled to the landing where Barrett scaled, there is no tangible evidence to show the amount. Not a person testifies that he hauled any long logs to this landing. Certainly Sullivan could have produced witnesses who were in his employ to testify, if it were the fact. All parties for years acted upon the correctness of the Spencer and Barrett scales. They were reported to Ross as the total amount. On August 20, 1884, — more than' four months afterwards, — Sullivan wrote to Ross at Quebec, complaining that the logs were short of the representation made by his agent Weller; that they held out less than 8,000,000 feet, were shaky; and asked for a rebate of 50 cents per 1,000 stumpage. Both Sullivan and Spencer reported the amount of this scale to Collins & Johnson, who wrote to Ross, making a proposition for purchase, and stating the exact amount of logs according to these scales. They ought not now, in my judgment, to be permitted to question their correctness upon the unreliable testimony in this record. Malone v. Gates, 87 Mich. 332 (49 N. W. 638); Eakright v. Torrent, 105 Mich. 294 (63 N. W. 293).

The court instructed the jury that, if these scalers “ did not proceed and scale all, and did not exercise their judgment upon it, or committed errors, such scale would not be binding.” This instruction was erroneous for the reason that no attack was made upon Spencer’s scale, and the jury should have been instructed that it was conclusive; it is erroneous because there was no evidence that these scalers did not exercise their honest judgment; and, as I have already stated, I do not think there was'any competent proof that they did not scale all. It is significant that the logs sold under the contract of June 24th amounted to within 142,052 feet of the amount of the Spencer and Barrett scale. The lands from which this lumber was taken had been cut over before, and the best lumber taken. The logs that were driven off the shore of Lake Superior were soon driven back upon the shore by a contrary wind, and all that could be found were picked up. The same is true of the logs that floated down the Soo river. That some were lost is undoubtedly true, but how many is a matter of guesswork.

4. Sullivan was permitted to testify that he looked over these logs from time to time as they were banked upon the shore of the lake, and that, in his judgment, there were over 9,000,000 feet according to the Scribner rule. He made no scale himself of any portion of the logs. He testified that the landing was about a mile or a mile and a quarter long; that they were banked on very high ground, —40 to 60 feet high, — whence they were rolled down to the level of the water. ' The same witness testified that he saw the lumber that was sawed, and, when asked if he was able to judge how much there was, replied: “ I can’t remember. It is pretty hard to guess any amount of lumber in that manner in a big bulk, or in different bulks.” Is it any easier to guess the amount of lumber in logs rolled along the shore in different bulks than it is to guess at lumber sawed and piled? Scalers had been agreed upon satisfactory to both parties, whose scales Sullivan does not claim were dishonestly made. There was no occasion for his examining with a view to forming a judgment. Is such a statement of any value? It is, in my judgment, the baldest guesswork, and wholly unreliable; and it is upon such testimony as this that the jury were permitted to find that there were over 2,000,000 feet more than the agreed scales made. I think this testimony was utterly incompetent, and should have been excluded.

Judgment should be reversed, and no new trial ordered.

       Viz.: Gibson v. Cranage, 39 Mich. 49; Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310); Mansfield Machine Works v. Common Council of Lowell, 62 Mich. 546 (29 N. W. 105), Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579); U. S. Electric Fire-Alarm Co. v. City of Big Rapids, 78 Mich. 67 (43 N. W. 1030).


author: Hooker, J.

text:
    SHELDEN v. MICHIGAN MILLERS’ MUTUAL FIRE-INSURANCE CO
    1. Corporations — -Suits Against — Deceased Officer — Testimony of Opposite Party.
    In view of 3 Comp. Laws 1897, § 10212, which provides.that, in a suit against a corporation, the opposite party, if examined as a witness in his own behalf, shall not be admitted to testify to matters which, if true, must have been equally within the knowledge of a deceased officer or agent of the corporation, and not within the knowledge of any surviving officer or agent, it was error, in an action on a policy of insurance, to receive the testimony of plaintiff as to the contents of a letter claimed to have been sent by him to a deceased secretary of defendant company, where the latter’s surviving associates testified that they had never seen such a letter, and that, while it would have been filed if received, a search of the office files failed to reveal it.
    2. Same.
    That the surviving associates of a deceased secretary of an insurance company had knowledge of the contents of a certain letter written to him is not to be inferred from the fact that the letter related to official business, so that his possession was the possession of the company.
    3. Insurance — Breach op Condition — Other Insurance — Waiver.
    That insured wrote to defendant company giving notice of a loss, and stating that the adjuster of another company “was here today,” to which defendant replied excusing its delay in sending an adjuster, and inquiring the particulars as to the other insurance, does not constitute a waiver of the company’s right to insist that the breach of condition in procuring other insurance without defendant’s consent rendered the policy void.
    4 Same — Overvaluation—Warranty.
    Act No. 167, Pub. Acts 1897, which provides that no policy of fire insurance shall be declared void by the insurer for breach of any condition of the policy if the insurer has not been injured by such breach, does not affect the rule which renders a policy, under which the valuation is made a warranty, void if a substantial overvaluation is given, irrespective of the motive of the insured.
    Error to Wayne; Frazer, J.
    Submitted April 4, 1900.
    Decided May 29, 1900.

      Assumpsit by Allan Shelden against the Michigan Millers’ Mutual Fire-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Crane, Norris & Stevens, for appellant.

      Frank E. Hobson, for appellee.
   Hooker, J.

On December 9th, Tuckey made an application in writing for insurance in the defendant com-party upon his gristmill, — $1,000 upon the mill building, and $1,000 on machinery, tools, implements, and fixtures therein. The application was in the handwriting of the insured, and was signed by him. It contained the following :

‘ ‘ What is the present cash value of the property to be insured, exclusive of land and property not specified? $10,000. * * _*

‘' How much insurance is there now on this property? None.

“ Give schedule of all insurance on back hereof. What will be the total insurance on the buildings, machinery, boilers, and engine ? $2,000. * * * #

“And the undersigned applicant hereby warrants that the above is a just, full, and true exposition of the facts and circumstances in regard to the property to be insured, and is and shall be considered as the basis on which insurance is to be effected and continued in force; and the same is understood as incorporated in, and forming a part and parcel of, the policy, as a continuing warranty during the life of such policy.”

The policy issued to Tuckey, and was made payable to Allan Shelden, the plaintiff, as his mortgage interest might appear. Shelden received the policy soon after its issue. It contained the following conditions:

“ Reference is made to assured’s application and survey on file in the office of this company, which is made part of this policy. * * * This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof. * * * This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. * * * If an application, survey, plan, or description of property be referred to in this policy, it shall be a part of this contract and a warranty by the insured.”

On the day that the policy was issued, the defendant’s secretary sent to the plaintiff, Shelden, a letter of which the following is a copy:

“Lansing, Mich., Dec. 9, 1895.

“Allan Shelden & Co.,

“Detroit, Mich.

Gentlemen: We today received from Mr. Tuckey application for insurance in this company, and, in accordance with the same, have today sent him our policy No. 02,887, for $2,000, which you, no doubt, will receive in a day or two. You will notice, by examining the policy, that we have not permitted any other insurance besides this $2,000. This, I presume, you will understand without your attention being called to it; but, as I did not wish any misunderstanding in the matter, I mention it now.' Very truly yours,

“A. T. Davis, Secretary.

“B.”

This letter was produced by the plaintiff upon the trial, and we understand that it is not denied that he received it seasonably.

On December 15, 1897, Tuckey took other insurance on both mill and machinery. It is admitted that no permit for other insurance was ever indorsed upon the defendant’s policy, and it is not claimed that any written or oral permit was given. On January 1st defendant assessed the policy $24, which was paid January 23d. March 2, 1898, the property was burned, and the same day Tuckey gave defendant written notice of the loss. Defendant answered that its man would be there the following week. He did not go, and on March 8, 1898, Tuckey wrote defendant again as to his coming, and in this letter said : “Mr. Sage, from the Concordia Co., was here today.” On receipt of this letter on March 10, 1898, defendant wrote Tuckey that its man was sick and could not go immediately, and inquired the particulars as to other insurance, if any. March 11th Tuckey wrote, stating particulars as to other insurance. No adjuster was sent, and on March 29, 1898, the following letter was sent to Tuckey by defendant’s secretary:

“Michigan Millers’ Mutual Fire-Insurance Co.,

“Lansing, Mich.

“March 29, 1898.

“Mr. E. C. Tucket,

“Byron, Mich.

“ Dear Sir: I have to acknowledge your favors of March 11th and March 21st, by which I am for the first time advised that you had insurance' on your mill other and in addition to our policy. As this other insurance was procured by you after our policy was issued, and without a permit therefor indorsed on our policy, by condition of the contract our policy was terminated when the other insurance was takv\^out, and there is no liability on our policy for your loss. "You are therefore respectfully advised that we will not send adjuster; neither do we advise you to go to any expense or trouble in making claim against this company.

“ Respectfully yours,

“A.’T. Davis, Secy.”

April 25, 1898, Tuckey submitted proofs of loss, in which he claimed the sound value of the insured property to be $7,348.51. On May 3, 1898, these proofs were returned, and the claim made that there was a breach of the warranty as to value of the premises. August 31, 1898, the policy was assigned to the plaintiff, and this action was begun in October. The defense was based on “(1) other insurance without permission, contrary to warranty in application and to condition in policy; (2) overvaluation in application.” The plaintiff claimed (1) waiver of breach on account of other insurance; (2) that there was no overvaluation. Counsel for the appellee admits that there was a breach of the condition as to other insurance, which is fatal, unless the objection was waived. The defendant concedes that if its secretary had notice of this breach, and, with such knowledge, levied' an assessment and received payment of the same thereafter, it is estopped from setting up such breach. It contends that there was no competent evidence that the company or any of its officers had notice of other insurance until after the fire.

Tuckey testified that, as soon as he received the Concordia policy, he mailed a letter to A. T. Davis, secretary of the defendant company, at Lansing, Mich., in a return envelope, postage prepaid, notifying him that he had such insurance. This was not notice, unless the letter was received. He does not say that it was not returned. This testimony was taken under the objection that, if Davis received the letter, that fact was equally within his knowledge, and, he being dead, the testimony of the plaintiff tending to prove it was inadmissible. It was insistéd by the plaintiff that it was competent to show the mailing of the letter, because that fact was not equally within Davis’ knowledge, and the fact of mailing, proved by Tuckey, helped out by the presumption that a letter mailed reached its destination, is prima facie evidence of its reception, although the witness could not have testified to its delivery to Davis; that fact being, in such case, equally within Davis’ knowledge. Defendant denied the receipt of such a letter, and the witness was permitted to state its contents, against defendant’s objection. Subsequently Mr. Baker and a lady clerk, who were shown to be the only assistants of Mr. Davis in the home office of the company, testified that it was improbable, but possible, that Davis might have received this letter without their knowledge, and that, if he had done so, it would have been filed in the office, but that they had never seen such letter, though each had searched for, and examined every paper in the office for, it, after notice to produce it. The court took the view that, if Davis did not receive the letter, it was not equally within his knowledge, and, if he did receive it, the witness was not disqualified, because the jury were at liberty to find from the testimony of Baker, to the effect that it would be filed if received, that the other officers of the company saw the letter, and knew its contents. He charged the jury as follows:

“The circumstances which the plaintiff claims constitute a waiver in regard to the extra insurance are these: The plaintiff claims that, when this additional insurance was taken out, he wrote a letter to the defendant company, in which he informed it of the fact that he had taken out this. insurance. That letter was objected to upon the ground that this matter was equally within the knowledge of the secretary of the company, Mr. Davis, and, therefore, that it was not admissible. That is the law, gentlemen of the jury, that when a person, even if he is an officer of the corporation (the statute expressly says so), that if he dies, and this matter is in his knowledge solely, not equally within the knowledge of other officers of the corporation, the testimony in regard to it would be excluded, because there is one man alive to state the thing, and the other man who knew it is dead, and the living man is not allowed to take advantage of his knowledge, when the dead man is not alive to refute his testimony. But I have admitted this testimony for another reason, — for the reason that I do not think it violates this statute at all, for the reason that the writing of this letter and the mailing of this letter were not necessarily equally within the knowledge of this man Davis. Certainly the writing of the letter was not, the mailing of the letter was not, and, if he did not receive the letter, it was not. If he did receive it, it would be equally within his knowledge; that is, the contents of the letter were. But that letter was also filed, and was the property of the company, and the contents of that letter would survive the death of Mr. Davis, and would be equally within their knowledge, if it ever got into the possession of the insurance company. It has been testified to here that they preserved all their letters and correspondence in regard to matters of this kind. It would not solely be within the knowledge of Davis, and therefore it does not apply.”

He also said to the jury that, if they should find that Davis did not receive the letter, plaintiff could not recover. We must assume that they found that he did receive it, from the fact that they found a verdict for the plaintiff.

The learned • judge had told the jury that, if Davis did receive the letter, the contents were equally within his knowledge as within that of the writer; but he permitted them to find a verdict upon Tuckey’s testimony, upon the theory that it was admissible if other officers of the company had knowledge of the contents. That theory was correct under the statute, but there was no testimony that warranted the conclusion that it was or might be within the knowledge of any other officer. Baker and the clerk are shown to have been the only persons who had to do with these files, or the business of the office, aside from Davis. Both swear they never saw it, and that, although searched for in the files, it was not there. It is only by accepting Baker’s testimony as to the practice of filing letters, and basing a presumption upon it that is in conflict with their positive evidence that this letter never did come to the knowledge of the officers, and that it was not in the files, which was disregarded, that this verdict can be justified. So, if it be conceded that there can be a presumption that the letter was received, we are of the opinion that the proof of the contents was inadmissible, or, if admissible when offered, should have been withdrawn from the jury when it was conclusively, shown that the letter was not within the knowledge of, or accessible to, defendant’s officers. We think this charge was in violation of the statute.

We may add that it was error for the court to instruct the jury that “the letter was filed, and the contents would survive the death of Davis, and would be equally within the knowledge of other officers if it ever got into possession of the company.” It was in the possession of the company if Davis ever received it, but not necessarily within their knowledge as to its contents.

It is also claimed that by excusing the delay on the part of the adjuster, and failing to deny its liability at once when informed that “the Concordia man was there,” defendant waived this point. That letter contained no distinct information regarding other insurance, and called for no such immediate action. Defendant had the right to inquire into the facts before announcing its determination. There is no just claim of estoppel in regard to the delay of eight days.

The court instructed the jury that if the valuation in the policy was an honest one, and not grossly overestimated, it would not avoid the policy, but that if Tuckey overestimated the property knowingly, for the purpose of procuring a larger insurance than he was entitled to, he should not recover. The valuation was made a warranty, and, under the authorities, a substantial overvaluation would avoid it, irrespective of motive, as shown by the following cases cited by counsel: American Ins. Co. v. Gilbert, 27 Mich. 429; Van Buren v. Insurance Co., 28 Mich. 398; Ætna Ins. Co. v. Resh, 40 Mich. 241; Briggs v. Insurance Co., 65 Mich. 55, 56 (31 N. W. 616). See, also, Niles v. Insurance Co., 119 Mich. 252 (77 N. W. 933). We think this rule was not changed by Act No. 167, Pub. Acts 1897.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.