text:
    CAMPAU v. DETROIT DRIVING CLUB.
    Judgment Creditor’s Bill — Intervening Creditors — Execution Sale of Property in Possession of Reoeiver — Redemption.
    Complainants obtained two judgments against defendant, and levied on its property under the first, and filed a judgment creditors’ bill based upon the second, in which suit one of the complainants was appointed receiver. Shortly after his appointment, the receiver petitioned the court for leave to borrow money to conduct the defendant’s business, setting up that he had taken possession of all its property. Four months after his appointment, defendant’s property was sold to complainants, without leave of court, under their execution. Another creditor of defendant secured a judgment, and levied upon its property, prior to the appointment of the reoeiver, but subsequent to complainants’ levy. The latter creditor filed an intervening petition in the judgment creditors’ suit, asking to have the sale of defendant’s property set aside, for the reason that it was sold while in possession of the receiver.

      Held:

    (1) That the receiver could not maintain he was not in possession of the property at the time of the sale under the execution levy.
    (2) That the intervener’s petition was not barred by a prior intervening petition, filed before the execution sale, asking to have the receiver removed and for an accounting..
    (8) That the intervening petitioner had a right to redeem from prior sales, under 3 Comp. Laws, § 9185, and, as a redemption from an illegal sale would be unsafe, he had a right to petition to set aside the sale.
    (4) That a sale of property on execution, without leave of court, while the property is in possession of a receiver, is a contempt of court, illegal, and void.

      Appeal from Wayne; Frazer, J.
    Submitted November 13, 1901.
    (Docket No. 97.)
    Decided April 25, 1902.
    Judgment creditors’ bill by Daniel J. Campau, Francis F. Palms, and George M. Vail against the Detroit Driving Club, in which Fred T. Moran and Worthy L. Churchill intervene by petition to set aside certain execution sales. From an order dismissing the petition, petitioners appeal.
    Reversed.

      Fred A. Baker, for petitioners.

      Moore & Moore ( Otto Kirchner, of counsel), for complainants.
   Long, J.

The Detroit Driving Club is a corporation, ■and in 1899 owned and possessed the race tra'ck and grounds in Grosse Pointe, near Detroit, together with a •quantity of personal property used in connection with the race track. The real estate was incumbered with a first mortgage of $75,000 and a second mortgage of $60,000. March 30,1899, the complainants obtained two judgments against the Detroit Driving Club in the circuit court for Wayne county; one of these judgments being for $18,366 and costs, and the other for $10,343.73 and costs. March 31, 1899, executions were issued on these judgments. April 4th, one of these executions was levied on the race track and grounds of the club, and also upon the personal property used in connection with the race track. April 33d, the execution on the other judgment was returned unsatisfied. April 34th, the judgment creditors’ bill in this cause was filed. December 7th, Daniel J. Campau was appointed receiver under said judgment creditors’ bill of all the property and assets of the Detroit Driving Club. At the time of the appointment of the receiver, no sale had taken place under the execution levy. April 3, 1900, long after the receiver had been appointed and had qualified, the sheriff sold the race track and grounds under the execution levy to Daniel J. Campau, Francis F. Palms, and George M. Vail for $18,692.47, and the following day he sold the personal property to the same parties for $1,-089, the aggregate amount realized being the amount due upon the judgment, with costs and expenses of sale. The execution was returned satisfied. The execution sale was made without leave of the court, and without any application being made to the court; and one of the purchasers at the execution sale was Daniel J. Campau, the receiver appointed by the court.

April 16, 1899, the People’s Savings Bank recovered judgment in the circuit court for the county of Wayne against the Detroit Driving Club for $14,170 and costs. November 16th, execution was issued on said judgment, and on November 23d it was levied upon the race track and grounds of the club in Grosse Pointe. November 29th, said judgment was assigned by the bank to Fred T. Moran and Worthy L. Churchill, the intervening petitioners in this cause. February 6, 1901, the intervening petitioners filed their petition, setting up the fact that the execution sale was made without leave of the court, and praying that it might be declared illegal and void by a decree of the court. They also prayed that the real and personal property of the club might be decreed to be sold free and clear of all liens and incumbrances, and that the proceeds of the sale be paid into court for distribution among the secured and unsecured creditors of the Detroit Driving Club, according to their respective rights and priorities. They also prayed that the liens and incumbrances, of every name and nature, upon said real and personal property, might be ascertained, and the rights and priorities of the several claimants determined.

On the filing of this petition an order to show cause was granted. On the return day of the order to show cause Daniel J. Campau filed an objection and answer. Subsequently a hearing was had before the circuit court of Wayne county. June 27, 1901, an order was entered dismissing the petition. Omitting the formal part, the order of dismissal is as follows:

“1. The court finds that, notwithstanding the appointment of the receiver in this clause, the complainants herein had a legal right to sell the race track and real estate of the Detroit Driving Club on the execution levy made by them thereon before the appointment of said receiver, without obtaining leave from the court to make such execution sale.
“2. The court finds that it was legally competent for the complainants, notwithstanding the fact that said Daniel J. Campau was receiver, to become the purchasers of said property on such execution sale.
“3. It is ordered and decreed that the said second intervening petition be, and the same is hereby, dismissed.”

The intervening petitioners appeal from the above order.

Several claims are made by counsel for complainants in the creditors’ bill filed why this second intervening petition cannot be maintained.

It is said that, after the receiver was appointed, but before he had taken possession of any of the property, it was all sold under said execution levy. It appears that this property was sold April 3, 1900. Mr. Campau was appointed receiver of all the estate, both real and personal, on December 7, 1899. At the time of his appointment he was in possession of this property as the chief executive officer of the corporation. He qualified as receiver, and on the 29th of December, 1899, three months before the execution sales of March 29 and April 3, 1900, he, as receiver, filed a petition in this cause for leave to borrow money and conduct races; and the petition was granted. In that petition he made the following statement:

‘ ‘ He has heretofore been appointed receiver of all the property of the above-named ..defendant, and he has filed his bond as such receiver, entered upon the duties of his office, and said defendant has assigned to him, as such receiver, all of its property, and he has taken possession of the same.”

It appears also in such petition that the property he had taken possession of consisted of the race track and the personal property. The first intervening petition filed in this cause was answered by Mr. Campau, and sworn to, on the 17th day of March, 1900, about two, weeks before the execution sales, in which Mr. Campau states that “he was appointed as receiver, and that he is now in possession of the property and assets of the club as such receiver. ”

It is claimed by complainants’ counsel that the charges contained in this second petition (now before us) are substantially the same as those made in the first, the only difference being that in the second petition it is alleged that, between the filing and the hearing of the first petition, the property was sold under complainants’ execution. We think this is not according to fact. The first intervening petition- was filed for the removal and discharge of Mr. Campau as receiver, and the appointment of a disinterested person in his place; that he (Mr. Campau) be required to give an accounting of his management of the affairs of the club; that the liability of Mr. Campau for neglecting, failing, and refusing to apply the first earnings of the club and its subsequent earnings to the payment and liquidation of said indebtedness to the People’s Savings Bank, as he was directed to do by the action and resolution of the board of directors, be ascertained and determined, and the amount thereof be established by a decree of the court, and that a personal judgment or decree be entered against Mr. Campau therefor. The second intervening petition was not filed until February 6, 1901. The only object of this petition is to obtain a decree declaring the execution sales illegal and void because they were made when the property was.in the hands of the court by its receiver. Incidental to this relief, the petition prays that 'direction may be given to the receiver to sell the real and personal property of the corporation free and clear of all liens and incumbrances, and distribution made of the proceeds among the secured and unsecured creditors. This second intervening petition is based upon a fact which occurred after the first petition was filed, viz., the execution sales of March 29 and April 3, 1900. Thus it appears that the only object of the second intervening petition is to obtain a decree declaring the sales void. The denial of the first petition is no bar to the filing of the second intervening petition.

It appears from the record that the execution levy held by the petitioners under the assignment from the People’s Savings Bank was subsequent to the one held by the complainants, and it was prior to the appointment of 'the receiver of the judgment creditors’ bill. Under our statutes relative to execution sales, the petitioners had a right to redeem from the prior sale at any time within 15 months from the day the sale was made. -Section 9185, 3 Comp. Laws. If the prior sale was illegal and void, the petitioners could not safely redeem from it. The complainants would get their money, — some $19,000, — but the petitioners would not get title to the property; so that it is apparent that the second intervening petitioners are pursuing the only safe course open to them to preserve their rights.

We think counsel for the intervening petitioners is correct in saying that the execution sale, made after the receiver was appointed, was made in contempt of court, and is illegal and void. This rule was unanimously held by the Supreme Court of the United States in Wiswall v. Sampson, 14 How. 52. In that case the execution sale took place on the 7th day of July, 1845, under a levy made on the 24th of the preceding February. Between the levy and the sale, to wit, on the 27th of June, a receiver had been appointed. Mr. Justice Nelson, delivering the opinion of the court, said:

“At the time, therefore, of this sale, the receiver was in the possession of the premises under the decree of • the court of chancery. In other words, the possession and custody of them were in the court of chancery itself (as the court is deemed the landlord), to abide the final decree to be thereafter rendered in the suit pending. * * *
“When a receiver has been appointed, his possession is that of the court, and any attempt to disturb it, without the leave of -the court first obtained, will be a contempt on the part of the person making it. This was held in Angel v. Smith, 9 Ves. 335, both with respect to receivers and sequesterers. When, therefore, a party is prejudiced by having a receiver put in his way, the course has either been to give him leave to bring an ejectment, or to permit him to be examined pro interesse suo. Brooks v. Greathed, 1 Jac. & W. 176; 3 Daniell, Ch. Pl. & Prac. 1984. And the doctrine that a receiver is not to be disturbed, extends even to cases in which he has been appointed expressly without prejudice to the rights of persons having prior legal or equitable interests; and the individuals having such prior interests must, if they desire to avail themselves of them, apply to the court either for liberty to bring ejectment or to be examined pro interesse suo, and this though their right to the possession is clear. Bryan v. Cormick, 1 Cox, Ch. 422; Anonymous, 6 Ves. 287.
“It has been argued that a sale of the premises on execution and purchase occasioned no interference with the possession of the receiver, and hence no contempt of the authority of the court, and that the sale, therefore, in such a case, should be upheld. But, conceding the proceedings did not disturb the possession of the receiver, the argument does not meet the objection. ' The property is a fund in court, to abide the event of the litigation, and to be applied to the payment of the judgment creditor, who has filed his bill to remove impediments in the way of his execution., If he has succeeded in establishing his right to the application of any portion of the fund, it is the duty of the court to see that such application is made; and, in order to effect this, the court must administer it independently of any rights acquired by third persons pending the litigation; otherwise the whole fund may have passed out of its hands before the final decree, and the litigation become fruitless. * * *
“As we have already said, it is sufficient for the disposition of this case to hold that while the estate is in the custody of the court, as a fund to abide the result of a suit pending, no sale of the property can take place, either on execution or otherwise, without the leave of the court for that purpose; and upon this ground we hold that the sale by the marshal on the two judgments was illegal and void, and passed no title to the purchaser. ”

It has been held that property in the hands of a receiver is still subject to taxation, and it is competent to levy taxes against it; that the levy of taxes upon property in the hands of a receiver creates a lien, but that the taxes cannot be collected by a sale of the property under the tax laws; they can only be collected by the filing of an intervening petition praying for their payment. In re Tyler, 149 U. S. 164 (13 Sup. Ct. 785). The above case was cited and followed by the United States court for the district of South Dakota in Ledoux v. La Bee, (C. C.) 83 Fed. 761, and by the supreme court of Georgia in Dysart v. Brown, 100 Ga. 1 (26 S. E. 767). In Virginia Iron Co. v. Bristol Land Co., (C. C.) 88 Fed. 134, tax sales to the State of real estate in the hands of a receiver were held void.

In the pase of Richards v. People, 81 Ill. 551, a receiver was appointed of the real and personal property and choses in action of a railroad company. Subsequently Richards, with full knowledge of the receivership, brought suit and recovered judgment against the company, and instituted garnishment proceedings against certain persons having funds of the company in their possession. Being charged with contempt, Richards defended on the ground that there was no actual interference with the possession of the receiver. The court said:

“In this view of the case we cannot concur. It is based upon the mistaken theory that property or credits not yet actually reduced to the receiver’s possession, although the title thereto has vested in him by virtue of his appointment, may be seized or attached by creditors of the original debtor with impunity, and that in so doing they are guilty of no interference with the rights of the receiver. But it is to be remembered that the receiver is the officer of the court, and that his possession is the possession of the court itself, and any unauthorized interference therewith, either by taking forcible possession of the property committed to his charge, or by legal proceedings for that purpose, without the sanction of the court appointing him, is a direct and immediate contempt of court, and punishable by attachment. Noe v. Gibson, 7 Paige, 513; De Visser v. Blackstone, 6 Blatchf. 235 (Fed. Cas. No. 3,840); Lane v. Sterne, 3 Giff. 629; Skip v. Harwood, 3 Atk. 564; Hull v. Thomas, 3 Edw. Ch. 236; Russell v. Railway Co., 3 Macn. & G. 104; Langford v. Langford, 5 Law J. Ch. (N. S.) 60; Spinning v. Trust Co., 2 Disn. 368. And, in our view of the case, it can make no difference in the application of the rule whether the property is actually or only constructively in the receiver’s possession. Here the order appointing the receiver directed him to forthwith take possession, and, if necessary, to sue for and recover all the property of the railway company, whether real, personal, or mixed, and whether in possession or action. That order was the receiver’s evidence of title, and authorized him to immediately reduce to possession the credits and choses in action which were garnished by Richards. The garnishee proceedings were a direct interference with the right of the receiver, since they attempted to deprive him of what was his under the order of his appointment. They were, therefore, an immediate obstacle interposed by Richards to the enforcement of the order of the court, and, as such, were plainly a contempt of its authority and powers. ”

To the same effect is the case of Chafee v. Quidnick Co., 13 R. I. 442.

In Hazelrigg v. Bronaugh, 78 Ky. 62, an injunction was sued out to prevent a receiver from collecting certain rents. The court, after referring to the general rule that the possession of a receiver cannot be disturbed without leave of the court, said:

“Nor is the rule confined to property actually in the hands of the receiver. The court will not permit any one, without its sanction and authority be first obtained, to intercept or prevent payment to its receiver of anything which he has been appointed to receive, though it may not be actually in his hands. Kerr, Rec. p. 167.”

That question was before this court in Hudson v. Saginaw Circuit Judge, 114 Mich. 116 (72 N. W. 162, 47 L. R. A. 345, 68 Am. St. Rep. 465). It was there said:

“ It is a general rule that property in custody of the law is not subject to attachment or garnishment. The law does not permit one court to assume control over the representative of another court, or the property confided to his charge. By this it is not meant that personal remedies against the individual may not be sought, but that any proceeding in the nature of an action in rem, whereby it is sought to reach the property which another court has taken possession of, is forbidden. Thus replevin from an officer holding under order of the court of chancery is punishable as a contempt. Even suits against a receiver in his representative capacity are forbidden, though the court appointing the receiver may, on cause- shown, permit them. The probate court has not even this -power respecting its officers, who can only be sued in the manner pointed out by statute; and a garnishee proceeding is not included among the statutory proceedings against executors and administrators in Michigan, though it is in some States. That administrators and executors are exempt from this process is the general rule. In Rood, Grarnish. § 27, it is said:
‘ ‘ ‘ When property or money is in custodia legis, the officer holding it is the mere hand of the court. His possession is the possession of the court. To interfere with his possession is to invade the jurisdiction of the court itself; and an officer so situated is bound by the orders and judgments of the court, whose mere agent he is, and he can make no disposition of it without the consent of his own court, express or implied.’ ”

We are satisfied that these sales, made in violation of law, are a contempt of court, and must be set aside. The real and personal property of the Detroit Driving Club must be decreed to be sold by the circuit court commissioner of Wayne county, free and clear of all incumbrances, and the proceeds of the sale paid into the Wayne circuit court in chancery, for distribution among the secured and unsecured creditors of the club, according to their respective priorities. The case will be remanded to the court below, with directions to carry out the views herein expressed. The intervening petitioners will recover their costs of both courts against the complainants.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    MORGAN v. ILLINOIS INSURANCE CO.
    1. Fire Insurance — Vacancy—Forfeiture.
    Where the assured under a fire-insurance policy applies to the ■ local agent for a vacancy permit, and pays him for the same, and the agent receives the policy, and sends it to the home office of the company, where it is marked “Canceled,” and retained by the company, and the agent afterwards informs the assured that the permit has been issued and attached to the policy, the company cannot escape liability on the ground that the dwelling in which the insured property was contained was vacant without permission.
    3. Same — Agency—Adjuster.
    Where, after a loss by fire, a person having in his possession the insurance policy, which he has apparently received from the home office, is introduced to the assured by the local agent as the adjuster for the company, the assured has a right to consider him as sirch adjuster.
    3. Same — Waiver of Proofs of Loss.
    A denial of liability by the adjuster for the reason that the policy had been canceled amounts to a waiver of proofs of loss.
    Error to St. Clair; Atkinson, J.
    Submitted November 20, 1901.
    (Docket No. 143.)
    Decided April 25, 1902.

      Assumpsit by Albert A. Morgan against the Insurance Company of the State of Illinois on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Hovey & Stoekwell, for appellant.

      Burt D. Cady (George G. Moore, of counsel), for appellee.
   Long, J.

This is a suit on a fire-insurance policy. The policy was for $500, dated August 22,1898, for three years, covering the household goods in plaintiff’s cottage at Edison. Beach, situate between one and two miles from his photograph gallery in Port Huron. The policy was the usual Michigan standard form. The plea was the general issue, with notice: First, a vacancy for more than 10 days prior to the fire; second, failure to furnish proofs of loss. The case was tried before a jury, who returned a verdict in favor of plaintiff. Defendant brings error.

The policy provides that it shall be void if the building therein described be or become vacant or unoccupied, and so remain for 10 days, provided a loss shall occur while such breach continues. It also further provides that no officer, agent, or representative shall have power to waive any of the provisions of the policy, except such as are made the subject of agreement by the policy, and that, as to such provisions, no officer or agent shall have such power unless the waiver be written on or attached to the policy; nor shall any privilege or permission affecting the insurance be claimed by the insured unless so written or attached.

It appears that on August 22, 1898, Manes, the local agent, issued the policy to the plaintiff on the furniture, and delivered it to the plaintiff, received the premium therefor, and, remitted it to the company. About November 14, 1898, the plaintiff also held a policy in the Western Insurance Company, covering the house or cottage. He applied to Manes to have the matter so arranged that he might be away from the house a part of the time for about two months. With the plaintiff’s consent, the policy in the Western Insurance Company was canceled, and a new policy issued in the Washington Insurance Company, containing a five months’ vacancy clause. Manes was the agent of this company, as well as the Illinois Insurance Company. He told the plaintiff he did not think it necessary to have vacancy permits; that the policies would be good without them. But the plaintiff desired to have no doubt about the matter, and insisted upon having the permits arranged for, and handed the Illinois policy to Manes for that purpose. Manes, at his own suggestion, went to Detroit to arrange for the consent of the Illinois Insurance Company to the granting of a five months’ vacancy permit, and the plaintiff paid him $3 therefor. Manes did go to Detroit, and on his return told the plaintiff that the permit had been attached to the Illinois policy. The policy was not given back to the plaintiff, but was sent either by Manes,' or Bamlet & Miller, the Detroit agents of the defendant company, to the company at its head office, who canceled it without plaintiff’s knowledge. Thereafter the plaintiff moved a portion of his furniture to his photograph gallery in Port Huron, going back to the cottage from time to time, sleeping there a portion of the time, and taking some of his meals there. He had boarded up the windows of the cottage all around, only going there occasionally.

The fire occurred January 5, 1899. It appeared that, after the fire, a man by the name of Miller, of the firm of Bamlet & Miller, came to Port Huron to adjust the loss. He directed the plaintiff to make out proofs of loss, and agreed to mail plaintiff a printed list of household goods, which the plaintiff was to fill out. The plaintiff made out the list, and testified that he showed the same to Miller, who said it was all right. On February ?th the plaintiff wrote the company, stating that, after waiting 30 days, he learned that, through some fault of the Detroit agency, his policy had been canceled; that he got np satisfaction from the local office, — and asked that the company write him about his loss. On the same day plaintiff’s attorney also wrote the company of the loss sustained by the plaintiff, and asked when plaintiff could expect payment of his insurance. After these letters were written, a man by the name of Corry came to Port Huron, having in his possession the policy issued to the plaintiff, and it is claimed by the plaintiff that Corry then stated to him that the defendant company denied all liability; and thereafter no proofs were forwarded to the company. The plaintiff testified that, when Corry appeared with the policy at Port Huron, he was introduced to him by Manes as the adjusting agent of the company.

The court charged the jury as to the defendant’s contentions as follows:

“Now, the defendant in this case, as I have told you, admits the issuing of the policy. It admits that it was legally executed, and that it was not canceled by the delivery to Manes, and the word ‘ Canceled ’ written upon it; and the company makes no claim whatever under the word ‘Canceled.’ So you may consider the policy as valid, unless defeated by a failure to comply with the conditions as to occupancy and proofs of loss. Defendant claims that, under this policy, plaintiff has lost all right, because from some time in November or December, 1898, up to the time of the fire, in January, 1899, the house in which the furniture was stored was vacant or unoccupied, against the form and condition of this policy. The defendant also claims that in the fall of 1898 Mr. Morgan permanently removed from this residence, and took up his residence downtown in the gallery, intending to- remain away until warm weather, or at least until after February, 1899. Defendant also claims a failure by the plaintiff to make any proofs of loss as required by the policy; and the defendant also denies the plaintiff’s claim that such proofs have ever been in any way waived by the defendant company.
“Now, gentlemen, as to whether this house was vacant or unoccupied, — I am using the words of the policy now, —I have concluded to leave the question to you. I will tell you what the law means by ‘vacant or unoccupied,’ in reference to a dwelling house. For a dwelling house to be in a state of occupation, there must be in it the presence of human beings as at their customary place of abode; not absolutely and uninterruptedly .continuous, but that must be the place of usual return and habitual stoppage. It is not sufficient, therefore, that furniture, tools, or other chattels may be left in the building, or that it is occasionally visited or inspected by some one, or is used and controlled, though not inhabited, by a tenant, or is used temporarily as a place of abode, or that unsuccessful efforts have been made to procure an occupant; and occupancy by one who has conspired to burn the building will not be considered occupancy. Referring back to the definition, a dwelling house, to be in a state of occupancy, must have in it the presence of human beings as at their customary place of abode; not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage. Then temporary absence, either on pleasure or from accident or for business purposes, does not constitute a dwelling vacant or unoccupied, within the terms of this policy; and I charge you that if Mr. Morgan left the place only temporarily, and if it was his permanent home, and if he intended to return to it; if, as you ordinarily view houses and homes, it was his residence and his home, and that this was only a temporary absence, —why, then, that absence would not defeat his policy. But if he left it, as is claimed by the defendant here, with the intention of remaining permanently downtown all winter, and not to return until spring, or until February, with the definite purpose in his mind to live down here during that time, then his absence would not be what the law calls a temporary absence, and his policy would be avoided, unless the company assented to the absence or vacancy, or want of occupancy, as is contended, to which I will refer later.
“Now, I charge you, gentlemen, that from what was said and done here by Mr. Manes in introducing Mr. Miller to Mr. Morgan as defendant’s State agent, in connection with the fact that Miller inspected this property, and directed Morgan as to how to make out his loss, and in connection with, the fact that the schedule which was made out in pursuance to that direction comes from the company, and is produced here by the company, and in view of the fact that Mr. Corry, when he came here, brought the plaintiff’s policy with him, I charge you that those men had authority to represent the defendant company, and that whatever they did was binding upon the defendant company; and if you find that Mr. Corry said to the plaintiff that this company repudiated all liability, because the policy was canceled, that would excuse the plaintiff from making any other proof of loss. If you find that Mr. Corry did not say that, why, then, the plaintiff, not having made his regular proof of loss under the policy, is not entitled to recover. So that you will ascertain whether the company, through its representative, Mr. Corry, repudiated all liability under this policy, and claimed that it was canceled; and, if you find that that was not done, then I charge you that the papers — the list of goods furnished here by Mr. Morgan — would not be a compliance with the conditions of his policy, and would not be a proof of loss, and he would not be entitled to recover. * * *
“I shall have to repeat a little, in giving some requests which I am called on to give here. If you find from the evidence that the policy of insurance sued upon in this case was delivered by the plaintiff to E. E. Manes, the agent of the defendant, for the purpose of securing a vacancy permit, and if, at the time of the fire, the policy was in the hands of the insurance company upon the plaintiff’s understanding that it was there for the purpose aforesaid, and the agent had neglected to return it to him, and if you find that the agent, by mistake, had written the word ‘Canceled’ upon the policy, and left it with the State agent of the company, I charge you (it is conceded here that the word ‘ Canceled ’ shall have no effect) those acts, if you find that Manes agreed to indorse a vacancy permit upon it, and told Mr. Morgan that it was already indorsed, would constitute a waiver of that condition of the policy requiring that vacancy permit, and, so far as that condition is concerned, plaintiff would be entitled to recover.
“I charge you, also, that if you find that, at the time of the fire, plaintiff was only temporarily absent from his dwelling house, and left his household furniture, etc., in the house with the intention of returning, that the premises would not be unoccupied and vacant, within the meaning of this policy, and, if otherwise liable, this company would be responsible for the loss. At the same time, in giving you this request, I remind you again of the definition which I have given you of what constitutes occupancy of a dwelling house.
“It is claimed by the defendant that it is not liable, because the plaintiff failed to furnish proofs of loss, verified, within 60 days after the fire. .Now, I charge you that this is a clause in the policy that an insurance company has a right to waive strict compliance with; and when it does waive such proofs of loss, either expressly, or by a course of conduct calculated to throw the insured off his guard, as by a distinct ref usal to pay the loss, based on some other defense, so that proofs are not furnished within the time fixed by the policy, it cannot afterwards take advantage of the delay, and set it up as a defense to an action on the policy. I therefore charge you that if the defendant, through its agents who had in charge the adjustment of the plaintiff’s loss, denied liability and refused payment upon the sole ground that the policy was canceled at the time of the fire, and- for that reason there is no liability existing on the part of the insurance company, then I charge you that this would be a waiver of the right of the insurance company to require the proofs of loss mentioned in the policy of insurance, and, if the defendant is otherwise liable, plaintiff would be entitled to recover.”

We think this charge presented to the jury all the questions which, under the testimony in the case, were proper to be submitted, and that the learned circuit judge correctly stated the law, under the circumstances shown. We think that, when Corry appeared at Port Huron in possession of the policy, which he had apparently received from the home office, the plaintiff might well have regarded him as the agent of the company, authorized to make statements that the company denied liability, and that he was therefore justified from that moment in withholding any proofs of loss, and that this statement, under our decisions, amounts to a waiver of proofs of loss.

We think, also, that the plaintiff, under the statement of Manes, the agent of the company who issued the policy, collected the premium, and received the $3 for the vacancy permit, had a right to rely upon such statement that the vacancy permit had been issued and attached to the policy.

Prom a careful examination of the record, we are satisfied that the case was fairly submitted to the jury.

The judgment must be affirmed.

The other Justices concurred.


text:
    YALE v. NEWTON.
    Oral Contract — Construction—Error Without Prejudice.
    Where, in an action on an oral contract, the judge charged the jury that it was not for them to say what the contract was, and also charged them to take the case, examine it, view the entire evidence, and “find what the contract was,” and whether the plaintiff had fulfilled it, the jury could not have been misled, and the case will not be reversed.
    Error to Muskegon; Russell, J.
    Submitted December 10, 1901.
    (Docket No. 157.)
    Decided April 25, 1902.

      Assumpsit by William R. Yale against Isaac P. Newton for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Dan T. Chamberlain, for appellant.

      Arthur Jones, for appellee.
   Long, J.

This suit was commenced in justice’s court upon a claim for $7.50. Plaintiff recovered. Defendant appealed to the circuit court, where the case was tried before a jury, and plaintiff again recovered.

It appears that the plaintiff is an upholsterer, doing business in Muskegon. Defendant called upon him at his shop, and asked him to go to his house with a needle and some twine, and sew on some buttons which had become loose on a large sofa. Arriving there, the plaintiff advised defendant, after having examined the sofa, that he could not repair it at the house, because the buttons had pulled through the leather; that the only way he could fix it was to take it to the shop, and re-enforce the entire cover by taking it off and placing patches underneath to hold the buttons. The plaintiff’s claim is that he took the sofa to the shop, fixed it as agreed, returned it to defendant, and ■ thereafter sent him by mail a bill for the work, which defendant refused to pay, claiming that plaintiff was to do a good job, and satisfactory to himself. Defendant’s claim was that, about two or three weeks after the sofa was returned, one or two buttons did not hold the leather down; that he thereupon called in another upholsterer, who sewed the buttons down, and charged él therefor. The court left these issues to the jury, stating that the plaintiff claimed he had fulfilled the contract made with defendant; and also stating the claim of defendant that plaintiff had not fulfilled his contract, as it was not a good job, such as plaintiff agreed to do, and was not satisfactory to defendant; and stating that, if the jury found “from the evidence that it. was not a good job, such as the plaintiff agreed to make, and was not satisfactory because of that fact, the plaintiff was not entitled to recover, and the verdict should be for the defendant.”

It is claimed on the part of defendant’s counsel that the court erred in his chai-ge as follows: Now, it is not for you, gentlemen, nor is it for the court, to say what t this contract was.” This language appears to have been used in the charge; but it is quite apparent that the court did not intend to say to the jury that the contract was not for them to determine, as we find further on in the charge the.court said:

“Now, gentlemen, you will take the case, and examine it, viewing the entire evidence, and find what the contract was, and say as to whether the plaintiff has fulfilled that contract. If he has, he is entitled to recover what his services are fairly worth; and if he has not fulfilled the contract, and the condition of the contract was that he was not to receive compensation unless he did fulfill it and perform a good job, satisfactory to the other party, if he has not done that, your verdict will be that there is no cause of action.”

We think the jury could not have been misled by this charge.

Some other questions are raised in reference to the rulings of the court upon the admission and rejection of cer- ■ tain evidence. We have examined the record, and are satisfied that there was no error in these rulings.

Judgment must be affirmed.

The other Justices concurred.


text:
    GARDNER v. MASON.

    Execution — Unrecorded Deed — Priority.
    A' notice of the levy of an execution upon real estate, filed in pursuance of 3 Gomp. Laws, § 9224, entitles the purchaser at the sale to priority over a bona fide grantee whose deed was executed before the notice of levy was filed, but not recorded until afterwards, and of whose claim the owner of the execution had no notice.

    Appeal from Muskegon; Russell, J.
    Submitted December 11, 1901.
    (Docket No. 172.)
    Decided April 25, 1902.
    Bill by Sarah H. Gardner against Michael Mason and Gustav H. Neumeister to set. áside an execution sale. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Turner & Turner, for complainant.

      F. W. Cook, for defendants.

       Rehearing denied June 17, 1902.

       See Campbell v. Keys, ante, 127 (89 N. W. 720).

   Long, J.

This bill is filed to set aside a certain levy made by the sheriff, and a sale thereunder of certain premises claimed to be owned by the complainant. On the hearing below, complainant’s bill was dismissed. Complainant has appealed.

It appears that on the 26th day of March, 1900, defendant Mason, in a suit brought in justice’s court, obtained a judgment of $110 damages and $3.80 costs of suit against James E. Gardner, complainant’s husband; that, on the 10th day of April, Mason took a transcript, filed the same with the clerk of Muskegon county, and had the same docketed as a judgment in the circuit court. On the same day he caused an execution to be issued on such judgment, and gave the same into the custody of the sheriff of the county, defendant Neumeister, who, on the 11th of April, levied the execution upon the premises in question.

It appears that these premises have been for some time in the possession and occupancy of James E. Gardner and his wife. They resided upon them, and Gardner was in fact the owner of them, living there with his wife and family, until June 15, 1899, when he conveyed the property to his wife by deed of warranty. It is admitted that this deed was not recorded in the office of the register of deeds of that county until May 16, 1900, — a little more than one month after the sheriff’s levy now sought to be set aside. After this deed had been executed, Gardner and his wife still continued to reside upon the premises, and apparently there was no change in the manner in which they occupied them, and there was nothing to indicate that there had been a change of title from the husband to the wife.

It is not contended but that this deed was given in good faith by Gardner to his wife, but the claim is made by the defendant that, his levy having been duly made and recorded prior to the time of recording the deed, it had precedence of the deed, as he had no notice or knowledge of it at the time the levy was made under the execution and duly recorded. It is claimed by complainant and her husband that defendant Mason was informed, before this judgment was obtained in justice's court, that Mrs. Gardner owned the premises. This was denied by defendant Mason. The court below took the view, under the testimony, that defendant Mason had no notice or knowledge of this deed at the time this execution was levied.

It is provided by section 9224, 3 Comp. Laws, that:

“ No levy by execution on real estate, made after this act shall take effect, shall be valid against bona fide conveyances made subsequent to such levy, until a notice thereof, containing the names of the parties to the execution, a description of the premises levied upon, and the date of such levy, shall be filed by the officer making the same in the office of the register of deeds of the county where the premises are situated; and such levy shall be a lien thereon from the time when such notice shall be so deposited; and the lien thus obtained shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.”

It is shown that the defendants complied with all the provisions of this statute; and we think the court very properly held the levy good, and dismissed complainant’s bill.

Counsel for complainant cite the case of Wooden v. Wooden, 72 Mich. 347 (40 N. W. 460), and claim that this case supports their contention; that, the complainant being a bona fide purchaser before the date of the levy and recording of the execution, the complainant is entitled to have the levy set aside. That case, however, was based upon the statute of 1875 (Act No. 5, Pub. Acts 1875), which did not provide for making these levies prior claims over unrecorded conveyances. This act was amended in 1889 (Act No. 227, Pub. Acts 1889, being section 9224, 3 Comp. Laws), adding to it this provision:

“And the lien thus obtained shall, from the filing of such notice, be valid against all prior grantees and [ mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.”

The decree of the court below must be affirmed, with costs.

The other Justices concurred.


text:
    SCHELLENBERG v. DETROIT HEATING & LIGHTING CO.
    1. Estates by Entireties — Fixtures.
    Boilers sold to complainant’s husband under contract retaining title in the vendor until paid for, and placed in houses owned by complainant and her husband in entirety, do not become fixtures, and may be replevied by the vendor upon refusal of the husband to pay for them.
    2. Fixtures — Unity oe Title.
    To constitute a fixture, there must be not only annexation to the realty, but also a unity of title and ownership of the realty and the thing to be affixed.
    8. Same — Intention—Removal Without Injury.
    The fact that boilers sold to a husband, and put in the basements of houses owned by the husband and his wife by entireties, can be removed without material injury to the boilers or buildings, and that the vendor retained title until paid for, show an intention that the boilers shall remain personalty, which will prevent their becoming realty.
    Appeal from Wayne; Donovan, J.
    Submitted December 13, 1901.
    (Docket No. 200.)
    Decided April 25, 1902.
    Bill by Plum B. Schellenberg against the Detroit Heating & Lighting Company to enjoin the execution of a writ of replevin. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Franklin L. Lord, for complainant.

      George W. Bates, for defendant.
   Long, J.

The bill in this case was filed to enjoin the execution of a writ of replevin by which it was sought by ¿he defendant to take and remove two steam boilers sold to Harry L. Schellenberg, the husband of complainant, on a title contract, and placed in the basements of two dwelling houses. These dwelling houses are owned by Harry L. Schellenberg and his wife as by an estate in entirety, as husband and wife. It appears that the husband bought these boilers to put in the buildings for heating purposes, the defendant reserving the title to itself by the contract until the boilers were paid for. Payment being refused, replevin suits were brought for the two boilers against Schellenberg and his wife and the tenants in the buildings. On the trial of the replevin suits, the defendant in the present case had judgment against Schellenberg for the return of the property, the judgment not passing against the wife or the tenants. . It is stated in the present bill that, when these boilers were sold to Harry L. Schellenberg, the defendant knew they were to be attached to the dwellings in a permanent way, and saw the plans of construction of said buildings, and of the heating apparatus to be placed therein; that the complainant believes the defendant will attempt to remove the boilers, and asks that it be enjoined from removing or attempting to remove the same.

The defendant demurred to the bill on the grounds:

1. That it does not show jurisdiction in a court of chancery.
2. That complainant has not by said bill stated a case which entitles her to the relief prayed.
3. That the bill does not show on its face that the complainant has any such interest in the subject-matter of the suit as entitles her to file it.
4. That the question as to whether the boilers can be treated as fixtures is a matter not within the jurisdiction of a court of chancery, and whether they can be taken on execution in replevin is a matter which can only be determined in a court at law.
5. That it appears by the bill that the constable is a necessary party, as it appears he was proceeding to take the boilers under process in his hands, and remove them from the buildings.
6. That it does not appear by the bill that the amount in controversy exceeds $100.

This demurrer was sustained in the court below, and the bill dismissed. Complainant appeals.

We think the court was not in error in sustaining this demurrer. The title of the real estate is in the husband and wife jointly, who hold it by the entirety. The boilers were purchased by the husband, and placed in the buildings, under a contract reserving title to the defendant company. The wife was not a party to this contract, and the boilers never became fixtures in the buildings. There was no unity of title in this property and the real estate. It does not matter that the bill alleges that the boilers became attached and became a part of the real estate. The statements in the bill are sufficient to show that they never attached to the ' real estate, and never became fixtures.

In Adams v. Lee, 31 Mich. 440, the title to the real estate was in one Kaufman. Machinery was put into the .building on the real estate. There was no unity of title and ownership of the land and the machinery. Referring to the want of unity of title as affecting the question of fixtures, it was said:

‘ ‘ To constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would, of necessity, convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must neces- • sarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and, as to another undivided interest, be personalty. It must be the one thing or the other.”

See, also, upon this question: Robertson v. Corsett, 39 Mich. 777; Scudder v. Anderson, 54 Mich. 122 (19 N. W. 775); Kerr v. Kingsbury, 39 Mich. 150 (33 Am. Rep. 362); Lansing Iron & Engine Works v. Walker, 91 Mich. 409 (51 N. W. 1061, 30 Am. St. Rep. 488); Lansing Iron & Engine Works v. Wilbur, 111 Mich. 413 (69 N. W. 667).

It is also quite apparent from the statements in the bill that these boilers put in the basements for heating purposes could be detached from the buildings without material injury to the boilers or the buildings; but, in addition to this, they were sold to the husband, the defendant reserving title to itself. These circumstances show that it was the intention- of the .parties that the boilers were to remain personalty, and not to become, by annexation, a part of the realty. Robertson v. Corsett, 39 Mich. 777. It was said in Manwaring v. Jenison, 61 Mich. 117 (27 N. W. 903):

“The permanency of the attachment and its character in law, do not depend so much upon the degree of physical force with which the thing is attached, or the manner and means of its attachment, as upon the motives and intention of the party in attaching it. If the intention is that the articles attached shall not by annexation become a part of the freehold, as a general rule they will not. The exception is where the subject or mode of annexation is such as that the attributes of personal property cannot be predicated of the thing in controversy; as when the property cannot be removed without practically destroying it, or when it, or part of it, is essential to the support of that to which it is attached.”

The bill does not exhibit such a state of affairs.

We think no other questions in this case need be discussed. A judgment for the return of the property has been awarded to the defendant. Simply because the complainant is an owner by the entirety of the real estate would give her no interest in the retention of the property placed thereon which would entitle her to defeat the defendant’s possession.

The order sustaining the demurrer must be affirmed, with costs.

The other Justices concurred.


author: -Long, J.

text:
    ROSS v. DUNN.
    Principal and Agent — Husband and Wipe — Contracts.
    A person employed as a subcontractor upon defendant’s house cannot recover for extra work performed at the request of defendant’s wife, without showing that she was authorized by her husband to make the change.
    Error to Houghton; Streeter, J.
    Submitted November 15, 1901.
    (Docket No. 130.)
    Decided May 8, 1902.

      Assumpsit by Alexander Ross against James Dunn for work and labor. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.
    P. H. O’Brien, for appellant.

      W. J. Macdonald, for appellee.
   -Long, J.

This case was commenced in justice’s court. The bill of particulars shows the claim was for painting certain floors in the kitchens of defendant’s house. The case was appealed to the circuit court, and there tried before a jury; the court directing a verdict in favor of defendant. The plaintiff brings error. His claim is that the court was in error in taking the case from the jury.

The facts appear to be that the plaintiff had a contract from one Youngberg to do the work under him, as a subcontractor, in painting the house inside and out for defendant. His claim is that this painting of the floors of the kitchens was extra- work and material. It appears from the record that the contract, if it was ever made, was with the wife of defendant, who came to plaintiff and requested that the kitchen floors be painted three coats. The original contract was for one coat of oil on the floors. The court was of the opinion, and so directed the jury, that there was no evidence in the record of any contract with defendant himself to do this extra work, and no authority shown by which his wife was authorized to bind him under the arrangement which the plaintiff claims the wife made with him. Upon an examination of the record, we are satisfied that the court was not in error in directing a verdict for defendant.

The judgment must be affirmed, with costs.

The other Justices concurred.


author: Montgomery, J.

text:
    SHOULDICE v. McLEOD’S ESTATE.
    1. Estates of Decedents — Claims—Question for Jury.
    A claim was presented against an estate for money received. It appeared that claimant investigated some mining property, and that deceased purchased it, and held the legal title, and that thereafter claimant continued to have some interest in it, either as employé or owner. Claimant made an agreement with P. to sell him, or whomsoever he might name, a one-fourth interest in the mine for §3,000, which was underlined by deceased that he would transfer that amount of stock to claimant. Other similar writings were made. Subsequently deceased assigned undivided interests to persons designated by P., and received from him a check for §3,000. -Latera corporation was organized, and stock issued to claimant, deceased, and the persons to whom interests had been assigned. P. testified that claimant told him the §3,000 was to be used in developing the mine, which statement claimant denied. Held, that whether such money belonged to claimant or deceased was a question of fact for the jury.
    2. Instructions to Jury — Statements of Fact.
    The court charged the jury that the fact that the title to the mining property was in deceased was a circumstance for them to consider, but not a controlling one, as frequently titles to mining property are taken by one person, and held by him in trust for others. Held, that, as the record showed other persons were interested in the mine, and the title held by deceased, the charge was not misleading.

      3. Evidence — Facts Equally "Within Knowledge oe Deceased.
    Testimony by the claimant that the money received from the check was his was incompetent, as such fact was necessarily equally within the knowledge of the deceased.
    Error to Marquette; Stone, J.
    Submitted November 19, 1901.
    (Docket No. 135.)
    Decided May 8, 1902.
    'Henry Shouldice presented a claim against the estate of Norman McLeod, deceased, for money had and received. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for claimant, defendant brings error.
    Reversed.

      Clark & Pearl, for appellant.

      Ball & Ball, for appellee.
   Montgomery, J.

This case originated in the probate court of Marquette county. On an appeal to the circuit court, and on a trial by a jury, a verdict in the sum of $5,721.49 was entered against the estate. The case is brought here for review on error. The claim presented was for money had and received by deceased on October 9, 1882, and for interest thereon to the time of hearing. Briefly stated, the claimant gave testimony showing the following state of facts: McLeod, the deceased, held the legal title in 1882 to a mining property known as the “Ells-worth Mine,” in Marquette county. Before McLeod became the purchaser of this property, Shouldice, the claimant, had investigated the property, and examined the surface indications. After McLeod became the purchaser, claimant continued to be interested in the property; but whether as an owner or as an emplbyé appears not to be susceptible of direct proof, because of the death of McLeod, and of the incompetence of Shouldice to testify as to that question. It appears, however, that on the 22d of September, 1882, Shouldice made an agreement with one Isaac A. Pool, of which the following is a copy:

“ I hereby agree to sell to Isaac A. Pool, or whoever he may designate and name, one-fourth interest, being five thousand shares, in the Ellsworth mine, and all leasehold rights in and to the south half of the southeast quarter of section nineteen, town forty-seven, range thirty, being in Marquette county, State of Michigan, for and upon the payment of three thousand dollars.
[Signed] “H. Shouldice.”

It also appears that on the 25th of September, 1882, this agreement was underwritten by McLeod as follows: “I will transfer that amount of stock to H. Shouldice.” A similar agreement was made for an additional 100 shares of stock, and was likewise underwritten by McLeod with an agreement to transfer the stock to Shouldice. It appears that subsequently, on the 5th of October, an assignment was made by McLeod, to parties named by Pool, of undivided interests in the mine. Three different assignments were made, one of which recited, “This in fulfillment of our agreement made by Henry Shouldice to Isaac A. Pool September 22, 1882;” and the other two assignments contain a clause reading, “ This in fulfillment of an agreement made by Henry Shouldice to Isaac A. Pool September 22, 1882.”

Pool testifies that, when negotiating or after closing with Shouldice, he learned that the leasehold was in Mr. McLeod; that it stood in his name; and the witness proceeds to state:

“That is why McLeod wrote on the bottom of those two that he would transfer the stock; that I should have it from Henry Shouldice. And when I had effected the sales, instead of receiving the title to the whole 5,000 shares for myself, I went to McLeod and got a transfer to my customers direct from him, so that they could have no question about the title being correct.”

The witness testified that, when he got the check, he carried it to Negaunee, and saw Mr. Shouldice, ' and handed him the check, and they went together to Mr. McLeod, and passed the check over to Mr. McLeod. Later on, a company was organized, and shares of stock issued, of which 6,350 were issued to McLeod, 6,650 to Shouldice, and the remainder to parties to whom sales had been made. The witness also testified that his recollection was that Mr. Shouldice stated that the money which he (Pool) agreed to pay for the interest purchased by him would carry the thing along until there was iron enough on top of the ground to .sell; that the parties would not have to put in any more money. Shouldice disputed this last statement.

The circuit judge was of the opinion that the inferences to be drawn from the state of facts shown were to be drawn by the jury, and submitted the question to the jury as to whose money it was that was paid over by Mr. Pool by the check made in the name of McLeod, and handed to Shouldice, and by him passed to McLeod. He instructed the jury to take all the circumstances surrounding the matter into consideration, — the fact that Mr. Shouldice had made this agreement with Mr. Pool, assented to by Mr. McLeod; that McLeod followed up the arrangement by making a formal transfer of the interest in fulfillment of that agreement; the circumstances testified to by Mr. Pool; why he made the check payable to McLeod instead of Shouldice; and the fact that the money was paid over by Shouldice to McLeod, — and determine whether there was a preponderance of evidence in favor of the plaintiff’s claim that this money belonged to him. It is contended by the defendant that no such inference as the jury drew is open, upon the state of facts shown. But we incline to the opinion that this question was properly treated as a question of fact by the circuit judge.

Complaint is also made of the instruction of the circuit judge as follows:

“ I have said to you that it is undisputed that the title to this lease was in Mr. McLeod. That is a circumstance for you to consider. It is not a controlling circumstance, however, in the case, necessarily; for we know that very frequently titles are taken to mining property by one.person, and held by him in trust for the others.”

We think the jury could not have been misled by this instruction. The case is very different than it would be had the present record been barren of any testimony showing that titles were thus taken. But it would appear from this record that other parties were interested in this mine besides McLeod, and yet the title to the whole was vested in him. Under these circumstances, we think the jury could not have been misled by the statement of the circuit judge.

The case was a very close one on its facts, and it will be apparent at a glance that the slightest contravention of the rules of evidence, by permitting testimony from the claimant which was incompetent, might have turned the scale. We are constrained to hold that the rule, in one respect, was not observed in this record. Mr. Shouldice was a witness on his own behalf, and was asked in regard to the statements alleged to have been made to Mr. Pool that the money which he expected to receive upon the sale would carry the thing along until the iron was on top of the ground, etc., and testified as follows: v

Q. Was it intended to use it in the development of this property ?
“A. No, sir. It was my own individual money, and it was not intended for any such purpose. It was intended—
“Mr. Clark: I move to strike out the evidence as incompetent.
“A. To buy off Mr. Atkinson; that is what it was intended for.
“The Court: I should say that that wouldn’t necessarily be, or probably be, within the knowledge of the deceased.
“Mr. Clark: Note an exception.”

We think this testimony should have been stricken out. The witness testified to a fact that must have been equally within the knowledge "of the deceased, namely, that the money to be realized on this sale was his (the claimant’s ) individual money. This was the meat of the question to be determined by the jury. We think it quite possible that this testimony, coming in the form that it did, eseaped the attention, of the circuit judge. Indeed, it is contended by claimant’s counsel that the motion to strike out only related to the last part of the answer; but we do not so read the record. In fact, defendant’s counsel interposed the objection before the answer was fully completed.

The estate also interposed the defense of the statute of limitations, and counsel for the estate urge that this defense was fully made out. We are convinced, however, that, upon the record, it was a question for the jury, under proper instructions, which were given.

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

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


author: Hooker, C. J.

text:
    MEYER v. BROWN.
    Evidence — Records of Railroad.
    The books of a railroad, in which are entered, in the regular course of business, the weights of cars under the supervision of the witness, are admissible in evidence to prove the weight of wood shipped by plaintiff to defendant.
    Error to Wexford; Chittenden, J.
    Submitted November 21, 1901.
    (Docket No. 148.)
    Decided May 8, 1902.

      Assumpsit by Louis Meyer, Louis H. Meyer, and James T. Meyer, copartners as the Meyer Hardware Company, against Frank E. Brown and John Sehler, co-partners as Brown & Sehler, for goods sold and delivered. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      Ward & Brown, for appellants.

      I. C. Wheeler, for appellees.
   Hooker, C. J.

This case was brought in justice’s court, and after trial there appealed to the circuit, where it was tried before a jury, and verdict and judgment rendered for plaintiffs. The plea was the general issue.

It appears that the plaintiffs are doing business at Man-ton, this State; defendants at Grand Rapids. An arrangement was made by which the plaintiffs were to ship to defendants at Grand Rapids one car load of dry beech and maple wood.. The wood was duly shipped. Defendants claim to have inspected it after its arrival at Grand Rapids, and found, as they claim, that it was green wood, and not dry, as agreed. They immediately notified the plaintiffs that they refused to accept the wood, as it did not comply with the contract. It is plaintiffs’ claim that this wood was cut between the 1st and 8th days of September, 1897, and sent to defendants some time in February, 1898; that it was dry wood, and in all respects in compliance with the contact. The railroad car in which the wood was shipped was marked “No. 2024, O., J. & M.” This action is for the price of the wood sold.

On the trial the plaintiffs claimed that the weight of the wood was evidence that it was dry wood, and gave some evidence which, if competent, would tend to support their claim. They called as a witness one James Murphy, who testified that he was yardmaster and weighmaster on the G. R. & I. road. He was asked:

Q. Have you the weight of a car weighed on the 19th of February, — 2024, C., J. & M.?
“A. Yes.
Q. Will you give the weight of that car ?
Defendants’ Counsel: Wait. Did you weigh that car yourself ?
“A. I cannot positively say that I did.
Q. You are not able to say, then, that you have any personal knowledge of the weight of that car ?
“A. That is it exactly.
“Defendants’ Counsel: I object to his giving the weight of the car.
‘ ‘ Q. Have yon in your possession a record of the weights of cars at that time ?
“A. I have.
‘ ‘ Q. And that book you have had in your possession all this time ?
“A. Yes, sir.
Q. And you keep a correct record there of the weight of cars ?
“A. Yes, sir; of all cars.
“Q. If you did not weigh this car, it was weighed under your supervision ?
“A. -Yes, sir.
The Court: Is this the book of original entry? Is that where it is entered right from the scales ?
“A. No, sir; the cars are weighed on a card, and I take the card in and turn it over to my assistant or clerk, and he copies it from the card into this book, and the cards are put into the waste basket generally.
Q. Did you compare the weight from the card onto this book ?
“A. Yes, sir.”

The court then asked of defendants’ counsel, “Do you insist upon your objection ?” and counsel stated:

“ There is no rule of law that makes a railroad record of weights and measures admissible. The man who weighed the car should be here, so we can cross-examine him, and see what method he pursued, and what the conditions were, and whether he knows that the weight was correctly taken. The man that weighed the car should be brought in here.”

This objection was overruled by the court, exception taken, and the witness permitted to testify from the record in the book as to the weight of the car. On cross-examination the witness testified:

“ I do not know whether I weighed this car myself. I have no recollection of doing so. All I know is that I have- a book here that states that; and I know that this is our system. The book is not in my handwriting. I made no entries on it, and I could not swear that I made the entry on the card from which this is copied.”

This testimony was given for the purpose of showing that the wood was dry at the time it was put on board the car at Mantón. The only question in the case is whether the wood was dry or not; and therefore the testimony as to its weight became of importance in determining whether the plaintiffs had fulfilled their contract. This was emphasized by the charge of the court in directing the jury that, if they found that this wood was dry when it was loaded on the car at Mantón and shipped to defendants, their verdict should be for plaintiffs. Thus the only important question for our determination is whether the testimony which the court permitted to be given by the witness Murphy was competent. While this witness could not testify that he weighed the car and made the entry on the card, and it was impossible to ascertain who did, because the card was destroyed, the entry W’as made on the book from the card in the regular course of business. Pi’imary evidence of the entry on the card was unattainable, but the witness testified that he compared the entry on the book with the card, thereby, perhaps unnecessarily, re-enforcing the evidence of the books themselves. This evidence was admissible, under the rule that cotemporaneous entries in the regular course of business in his books by one not a party to the cause is- competent. See 1 Greenl. Ev. 16th Ed. § 120a, and cases cited; Lassone v. Boston & Lowell Railroad, 66 N. H. 345 (24 Atl. 902, 17 L. R. A. 525).

Other questions are raised, but we consider them unimportant.

The judgment is affirmed.

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


text:
    JOHNSON v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    1. Railroads — Passenger Fare — Ticket—Instructions to Jury.
    Plaintiff claimed to have paid his fare, from Detroit to Wayne. On the car he handed defendant’s conductor a ticket, and was informed that it was not good, and, on his refusal to pay the fare, he was ejected from the car. In an action for assault and battery against the railroad, a ticket .was introduced in evidence by the defendant, who requested the court to charge that the ticket offered by plaintiff was not good between Detroit and Wayne. Held, that, as the plaintiff’s testimony was in conflict with the theory of the request, it was properly modified by the statement that it was true if the ticket was the one given the conductor by the plaintiff.
    3. Same — Willful Injuries by Servant. .
    It is the duty of a railroad to protect passengers from the willful misconduct of its servants while performing the contract to carry, even if the injuries are inflicted by the servant when not acting within the scope of his authority.

    3. Same — Assault and Battery by Oonduotor — Instructions to Jury.
    In an action against a railroad for an assault and battery inflicted by defendant’s conductor upon a passenger, an instruction to the jury that plaintiff could not recover if he provoked the assault or was the aggressor was sufficiently favorable to defendant.
    4. Same — Costs.
    3 Comp. Laws, § 11258, providing that, if plaintiff in an action for assault and battery recovers less than $50, he shall recover no more costs than damages, applies to an action against a railroad for an assault and battery committed by its servant.
    Error to Wayne; Waite, J.
    Submitted January 28, 1902.
    (Docket No. 69.)
    Decided May 8, 1902.
    Case by William Johnson against the Detroit, Ypsilanti & Ann Arbor Eailway for an assault and battery committed by its conductor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Corliss, Andrus & Leete, for appellant.

      Edioard M. Vining, for appellee.

       As to liability of carrier for assault by servant on passenger, see note to Davis v. Houghtelin, (Neb.) 14 L. R. A. 737.

   Montgomery, J.

Plaintiff boarded defendant’s car in Detroit, paid bis fare to Wayne, and received a check or ticket in receipt for it. Conductors were changed before the car reached Wayne, and plaintiff testified that he presented the check given him by the first conductor to the second conductor. The conductor informed plaintiff that the ticket was not good, and, on plaintiff’s refusing to pay his fare, ejected him from the car. A ticket was received in evidence, which the conductor testified was the one in question, and which obviously did not entitle plaintiff to ride from Detroit to Wayne. One of defendant’s assignments of error relates to the refusal of the court to charge that the ticket offered by plaintiff was not good between Detroit and Wayne. We think plaintiff’s testimony on this point was in conflict with the theory of the request to charge, and that the request was properly modified by the statement that it was true if the ticket received in evidence was the one given the conductor by the plaintiff. Plaintiff again boarded the car, paid his fare again, and, it was testified, demanded the return of the ticket, which was refused. A few minutes later plaintiff went to the rear platform, where the conductor was, and again demanded the return of the ticket. In an altercation which ensued the conductor struck the plaintiff, and inflicted the injuries sued for.

The principal contention of the defendant is that the company is not liable for this act of the conductor, because not within the scope of his authority. We think the rule relieving the master from liability for a malicious injury inflicted b'y his servant when not acting within the scope of his employment does not apply between a common carrier of passengers and a passenger, and that it is the duty of the carrier to protect its passengers against injury from the willful misconduct of its servants while performing the contract to carry. See Haver v. Rail road Co., 62 N. J. Law, 282 (41 Atl. 916, 43 L. R. A. 84, 72 Am. St. Rep. 647); Dwinelle v. Railroad Co., 120 N. Y. 117 (24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611); Bryant v. Rich, 106 Mass. 189 (8 Am. Rep. 811); Hanson v. Railway Co., 75 Ill. App. 474; Atchison, etc., R. Co. v. Henry, 55 Kan. 721 (41 Pac. 952, 29 L. R. A. 465); Dillingham v. Russell, 73 Tex. 51, 52 (11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753).

The court instructed the jury that the circumstances occurring before plaintiff’s return to the car were material only as they bore on the credibility of the witnesses, and that the plaintiff could not recover if he provoked the assault or was the aggressor. We think this sufficiently favorable to defendant, and that other parts of the charge complained of could not have prevented the jury from understanding that it was the rule which must govern the case.

The action was brought in the circuit court, and the jury awarded plaintiff $100 damages. Defendant asked for judgment for costs. This was refused. The declaration' states the form of action as trespass on the case, but sets forth the acts constituting the wrong complained of. The statute (3 Comp. Laws, § 11258) provides :

“ If the plaintiff in an action for assault and battery, or false imprisonment, or for slanderous words, or for libel, recover less than fifty dollars, such plaintiff shall recover no more costs than damages.”

It is contended that this case does not fall within the statute, as the action is brought against the corporation, and not against the conductor. Nevertheless the action is one for an assault and battery, and comes within the express words of the statute.

Judgment affirmed.

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


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    STEARNS v. PERRIN.
    1. Statute op Descent — Wills—Widow’s Election.
    A widow of a testator dying without issue, who elects under 3 Comp. Laws, § 8935, to take under the statute, rather than under the will, becomes entitled to the dower interest in his lands-provided by 3 Comp. Laws, § 8918, and not to the one-half interest in his lands provided by the statute of descent.
    2. Dower — Real Estate.
    Dower is a life estate attaching to one-third of the real estate, and has no reference to personal property,
    3. Inheritance — Wills—Husband and Wipe.
    A husband may by will cut off his wife from the benefit of the statute of descent.
    Appeal from Kalamazoo; Adams, J.
    Submitted April 8, 1902.
    (Docket No. 10.)
    Decided May 8, 1902.
    Bill by Allan M. Stearns, executor of the last will and testament of Joel J. Perrin, deceased, against Semira Mary Perrin and others, to determine the title to certain lands. From an adverse decree, defendant Semira Mary Perrin appeals.
    Affirmed.

      Dallas Boudeman and Allan M. Stearns, for complainant.

      Howard, Boos & Hoioard, for appellant.
   Hooker, C. J.

Semira Mary Perrin is the widow of Joel J. Perrin, who died without issue. His will provided that his wife, Semira, should have all the household property, horses, carriages, etc., $20,000 in cash and mortgages, and the use during her natural life of his homestead in Kalamazoo, appraised at $16,000, and a store property on Main street, in said city, appraised at $16,000; and' a provision was inserted in the will that these provisions to Mrs. Perrin should, if accepted, be in full of all dower rights and in full of all her rights in the property of the deceased. Substantially all the residue of his estate was willed to his kindred. The estate inventoried:

' Real Estate..............-........-...........$100,250 00
Personal estate .......-....................... 133,116 77
Total...................................$233,366 77

The widow filed in probate court her election to take under the statute, rather than under the will, and claimed that she was entitled to one-half of the real estate of the deceased in fee, under the statute of descent of real property {3 Comp. Laws, § 9064), which provides that:

-“Section 1. The People of the State of Michigan enact: When any person shall die seised of any lands, tenements, or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, they shall descend, subject to his debts, in the following manner.”

Subdivision 2 provides that:

“If the intestate shall leave a husband or widow, and no issue, one-half of the estate of such intestate shall descend to such husband or widow. * * * The provision herein made for the widow shall be in lieu of dower, unless she shall, within one year after the appointment of an administrator of the estate of the intestate, begin proceedings for the assignment to her of dower in the intestate’s estate, in which case her interest in such real estate shall be limited to her dower therein, and the residue of such estate shall then descend as herein provided for the portion thereof not taken by such widow.”

The executor was in doubt as to the validity of this claim, and has filed the bill in this cause to settle the widow’s right under her election. His contention is that a husband has the right to dispose of his property by will, and may thereby prevent the application of the statute of descent, and that the wife has no greater immunity, under the statute of descent, from having her inheritance forestalled and taken from her by a will, than any other person entitled to inherit thereunder.

The right to dower rests upon 3 Comp. Laws, § 8918, which provides that:

‘ ‘ The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one-third part of all the lands whereof her husband was seised of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof.”

And section 8935 provides that:

‘ ‘ If any lands be devised to a woman or other provision be made for her in the will of her husband, she shall make her election whether she will take the lands so devised or the provision so made, or whether she will be endowed of the lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.”

His claim is that, while the widow might lawfully decline to take under the will, she did not thereby become entitled to the share which, in the absence of a will, she could claim under the statute of descent, but only to her statutory right of dower, which would be the use of one-third of the real estate during her life. We understand that this raises the only question in the case, the' personal property not being in controversy. The learned circuit judge sustained the contention of the executor, and the widow has appealed.

By the provision of section 9064, subd. 2, a widow may, under some circumstances, inherit half of the husband’s lands if he dies intestate; but this inheritance is in lieu of dower, and will be cut off if she shall choose to take proceedings to recover her dower. The only object of reserving to her the right of election in the case that suggests itself is protection against loss arising from her husband’s debts, to which anything that she may inherit is subject, ■while her dower right and statutory allowances are not affected by this. The power of a husband to defeat an inheritance by will is not limited. He may cut off his issue from the benefits of the statute of descent, and his wife is subject to similar treatment, unless we are to say that the legislature intended an exception in her case. He cannot compel her to accept under the will, but, if she does not, she must content herself with being “endowed of her husband’s lands.” What is meant by being endowed of the lands of her husband is indicated by the further provision, viz., “ But she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator.” This recognizes that the husband may choose to make a provision for her in addition to that called “endowment of his lands,” and to our minds indicates that such endowment is the provision made by law by way of dower, and not that made by the statute of descent. Dower has a settled meaning. It is a life estate, and both at common law and by statute attaches to one-third of the real estate, and has no reference to personal property.

Counsel for the defendant urge upon us the broad definition of dower, — i. e., “the provision which the law makes for a widow, out of the lands or tenements of her husband, for her support and the nurture of her children,” — and insist that any provision that the law may make for her from her husband’s estate is dower under this definition. It is possible to say so, but, if we do, it is an enlargement of a well-settled legal term, and might be said to extend .to personal property as well as real. We are bound by statute to interpret the words of legislative enactments according to their settled meaning, unless an intent to give them another meaning is obvious. The case cited by counsel of Hendrick v. Cleaveland, 2 Vt. 329, supports this view; also Billings v. People, 189 Ill. 472 (59 N. E. 798). The question has never been distinctly raised in Michigan until now, but the cases of Miller v. Stepper, 32 Mich. 201, and In re Bloss’ Estate, 114 Mich. 204 (72 N. W. 148), are, in our opinion, indicative that the views expressed are in harmony with the opinions heretofore entertained by the court upon the subject.

The decree is affirmed, with expenses of both courts to the-executor, payable from the estate.'

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


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    WHIPPLE v. MICHIGAN CENTRAL RAILROAD CO.
    1. Railroads — Injury to Passenger — Evidence—Directing Verdict.
    Plaintiff, a passenger on defendant’s railroad, was injured by the train being derailed. Plaintiff contended that the rails spread, due to rotten ties. Her evidence consisted of the testimony of witnesses who counted rotten ties in the vicinity of the accident, and of others that rotten ties were burning on fires kindled immediately after the accident. The defendant produced overwhelming evidence that the ties in use were sufficiently good to make a first-class track, and that the rail had been intentionally removed by some persons for whose acts defendant was not responsible. Held, that a verdict should have been directed for defendant.
    2. New Trial — Unjust Verdict — Preponderance op Evidence.
    A new trial should be granted where the verdict of the jury is palpably unjust, and at variance with the great preponderance of the evidence.
    3. Scintilla op Evidence — Directing Verdict.
    Where there is at most only a bare scintilla of evidence to establish plaintiff’s case, and an overwhelming proof in favor of defendant, verdict should be directed for defendant.
    Error to Monroe; Kinne, J.
    Submitted April 8, 1902.
    (Docket No. 8.)
    Decided May 8, 1902.
    Case by Sarah A. Whipple against the Michigan Central Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      C. A. Golden and Henry Russel (Ashley Pond, of counsel), for appellant.

      E. R. Gilday and Willis Baldwin, for appelleo.
   Hooker, C. J.

The plaintiff was a passenger upon defendant’s railway train, and was injured through an accident to the train, it having been derailed. The theory of her counsel is that the train left the track by reason of the spreading of the rails. The defendant’s counsel assert that the accident was caused by the removal of a rail with -design to throw the train from the track. The cause went to the jury, and a verdict was rendered in favor of the plaintiff, and the defendant has taken a writ of error. The principal questions are: (1) Should the court have directed a verdict for the defendant ? • (2) If not, should we have granted’ defendant’s motion for a new trial ?

There is no testimony in this record tending to show that these rails spread, beyond the fact that the train was derailed, the testimony of witnesses who counted the number of ties which they called rotten to the hundred ties upon the roadway in the vicinity, and of others that some rotten ties were burning on fires kindled immediately after the accident.' There was overwhelming evidence that the ties in use were sufficiently good to make a first-class track, and to hold the spikes; that ties do not become unfit for use immediately they begin to rot; and that in -all railroads, after they have been constructed for a few years, there must be a percentage of ties in decaying condition, from those slightly affected with rot to those which are about to reach the stage where they should be, and are in practice, removed. There was strong and convincing evidence that the rail had been intentionally removed by taking out the bolts and lifting it out of, and over, the projecting U bolts, which remained standing at the joint of the rail; that the outer spikes had been driven down flush with the ties by the flangs of the wheels as they passed over them immediately after leaving the rails at the point where the rail was removed; that the bolts and fish-plates at the point where the solid track ended were uninjured, the threads on the bolts and nuts, which lay near by, being perfect. It was shown by clear and undisputed evidence that immediately after the accident, at the point where it occurred, there were found some tools adapted to the removal of nuts and bolts, the drawing of spikes, and the lifting of the rail. These tools belonged to another railroad company near by, and had been placed in its tool-house, a mile or so'distant, a few hours before the accident, and were found missing the next morning by its men having the tool-house in charge. The house had apparently been broken open during the night. Two suspicious characters were seen, soon after the accident, hastening from the vicinity of the accident towards Toledo, who did not answer when accosted by farmers living near by. There was, at the most, a bare scintilla, if there was anything rising to the dignity, of evidence, that the track was imperfect, or that the rails spread at that point. There was not in the plaintiff’s proofs enough of substance to make a prima facie case, when standing alone and uncontradicted. See Conely v. McDonald, 40 Mich. 156; Wierengo v. Insurance Co., 98 Mich. 621 (57 N. W. 833).

But if it should be held that it was not error to submit the case to the jury, their verdict was so palpably unjust and at variance with the great preponderance of evidence that the court should not have denied a motion for a new trial.

The judgment is reversed, and a new trial ordered.

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


author: Grant, J.

text:
    CLIPPINGER v. STARR.
    1. Partnership — Payment op Individual Debts.
    One partner cannot pay his individual debt, or the debts of others, out of partnership funds, without the consent of all the partners.
    2. Same — Implied Contract — Loan—Payment.
    "Plaintiffs were partners, and one of them, who was agent for a firm of stock brokers, paid defendant the amount due him from the stock brokers out of partnership funds belonging to' plaintiffs, with the understanding that the brokers would remit the amount to'plaintiffs. The brokers sent plaintiffs their check, including the sum paid defendant, and also the balance due plaintiffs, but the check was protested. The other partner soon after learned of the transaction, but no demand for repayment from defendant was made until after five months. In the meantime the brokers had become insolvent. Held:

    (1) That the transaction was not a loan, as there was no express or implied promise to pay the money back to plaintiffs.
    (2) That the failure to seasonably notify defendant of the protest of the check, and that they would hold him responsible for the unauthorized payment of partnership funds, prevented a recovery by plaintiffs,
    Error to Ingham; Wiest, J.
    Submitted April 8, 1902.
    (Docket No. 20.)
    Decided May 8, 1902.

      Assumpsit by Harvey Clippinger and Charles Clippinger, copartners as Clippinger & Co., against Marshall Starr, for money had and received. From a judgment for defendant on verdict directed by the court, plaintiffs bring error.
    Affirmed.
    Plaintiffs were copartners doing business in the city of Lansing. The firm of A. J. Clark & Co., which consisted of A. J. Clark and one Evarts, kept a bucket shop in Detroit, with a branch office at Lansing. They had a private telegraph wire between the1 Detroit and Lansing offices. The office at Lansing was in the charge of plaintiff Harvey Clippinger. Defendant had dealt with A. J. Clark & Co. in Detroit, and, desiring to have his transactions there closed out, went to the office in Lansing, and requested Mr. Harvey Clippinger to wire to the office in Detroit, and ascertain what amount was coming to him. Mr. Clippinger did so, and received reply from the Detroit office that they would send the information in' the afternoon. Defendant returned to the Lansing office at the appointed time, and Mr. Clippinger informed him that the amount due him was $435.62. Defendant asked for payment, and Mr. Clippinger gave him a check, signed, “Clippinger & Co.,” for $435.62, upon the City National Bank of Lansing, upon which defendant received the money.
    Mr. Clippinger’s version in regard to the giving of the check is as follows:
    “ I told Mr. Starr then that I did not have any of A. J. Clark’s money; that I would pay him a check; and so recorded it to Detroit that I paid Mr. Starr, or, i'ather, gave him a check for the amount, — $435.62.
    “ Q. What did Mr. Starr say, if anything, about the fact that you did not have any money, when you said you did not have any money ?

      “A. Why, he said, ‘You are doing business with Clark & Co., and you are receiving your letters,’ and they could remit the amount with my letters at the same time.”
    On cross-examination Mr. Clippinger testified that he had $300 or more of A. J. Clark & Co.’s money when defendant applied to him in the morning, and that that money was to be used in paying the home trade; that he had paid out this money before defendant came back in the afternoon; that A. J. Clark & Co. sent Mr. Clippinger a check for $939.86, which included the amount paid by plaintiffs to the defendant; that A. J. Clark & Co. were insolvent; that, at the expiration of five months, Mr. Harvey Clippinger, having failed to obtain payment from A. J. Clark & Co., notified defendant to return the money he had received; that all the business in connection with this transaction was carried on through the Clippinger & Co. bank account; and that plaintiff Charles knew about the transaction soon after November 6th, but never made any demand on the defendant.
    The defendant’s version of the transaction is that Mr. Harvey Clippinger, on ascertaining the amount due defendant, told him that he would pay it, and gave him the firm check in payment therefor.
    This suit was commenced by the issuing of a summons March 16, 1901, in the name of Harvey Clippinger as sole plaintiff. Issue was duly joined, and the case noticed for trial at the September term, 1901. On October 12, 1901, the declaration was amended by making Charles Clippinger a party plaintiff to the suit. The declaration alleges that the “defendant requested Harvey Clippinger to advance the money due him, saying that, when A. J. Clark & Co. forwarded the money to him (Clippinger), he could retain it for the money so advanced or turned over to him.” The court directed a verdict for the defendant.

      L. B. & H. M. Gardner, for appellants.

      Montgomery & Glark, for appellee.
   Grant, J.

(after stating the facts). Plaintiffs’ evidence does not support the theory of the special count in their declaration. The money paid to defendant by Harvey Clippinger was not an advance or a loan. It was not paid to him upon any promise, express or implied, to pay it back. The check was given as a payment for the money due from A. J. Clark & Co. to defendant by Mr. Clippinger, who was in charge of A. J. Clark & Co.’s business at Lansing, and who was their agent, and not in any sense the agent of defendant.

The rule is well established that one copartner cannot use the partnership funds in payment of the individual debt of a partner, or the debts of others, except by the assent, express or implied, of all the partners. Plaintiff Charles almost immediately had knowledge of the issue of the firm check to the defendant, and its payment. It was Ms duty to move promptly in repudiating the transaction. He failed to do so for nearly a year. By this course he must be held to have ratified it. Silence for so long a time, with full knowledge of all the facts, is a ratification, and precludes the partnership from suit to recover the money. Undoubtedly Harvey gave defendant the- firm check in payment, supposing that his principals, Clark & Co., would promptly reimburse him. They did promptly send him their check in payment, but they had no funds in bank to meet it, and the check was protested. If Harvey or Charles had moved seasonably in notifying defendant of the protest, and that they should hold him responsible for the unauthorized payment by Harvey, defendant w'ould undoubtedly be liable. Casey v. Carver, 42 Ill. 225; Marine Co. v. Carver, Id. 66; Johnson v. Crichton, 56 Md. 108; Story, Partn. § 133. Defendant was entitled to prompt notice of repudiation by the plaintiffs, in order that he might proceed seasonably against his debtors, Clark & Co.

Judgment is affirmed.

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


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    WOODMERE CEMETERY ASS’N v. TOWNSHIP OF SPRINGWELLS.
    1. Taxes Paid Under Threat of Levy — Protest.
    A taxpayer, in a suit brought to recover from a township an illegal personal tax paid under a threat of levy, is not limited to the reasons stated in the protest.
    2. Illegal Assessment — Board of Review.
    Where an assessment is absolutely void, and the property not subject to taxation, the taxpayer is not bound to apply to the board of review to correct the assessment.

      Error to Wayne; Hosmer, J.
    Submitted April 9, 1902.
    (Docket No. 28.)
    Decided May 8, 1902.

      Assumpsit by the Woodmere Cemetery Association against the township of Springwells to recover taxes paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Plaintiff’s capital stock is $50,000. Its property and home office are situated in the defendant township. The stockholders reside in the city of Detroit. Besides its other personal property, the assessor, in the year 1900, placed upon the assessment roll_its capital stock. The total assessment was $55,600. The assessor testified that he assessed the tangible property of the plaintiff at $19,-‘000. The court directed a verdict, for the plaintiff for $431.47, — the amount of tax on the difference between $55,600 and $19,000. The township treasurer threatened to levy upon plaintiff’s property, and the tax was paid in order to prevent a seizure, the protest claiming that the tax was excessive.

      Bichará I. Lawson, for appellant.

      Gray & Gray, for appellee.
   Grant, J.

{after stating the facts). No attempt is made to sustain the validity of the tax. Its stock was assessable to the stockholders at their places of residence. 1 Comp. Laws, §§ 3831, 3836; Lenawee Co. Sav. Bank v. City of Adrian, 66 Mich. 273 (33 N. W. 304).

It is first objected, on behalf of the defendant, that plaintiff cannot recover, because it is limited to the reason stated in the protest, viz., excessive valuation. This protest was not made under the statute, which requires the grounds for the protest to be stated, and limits the protest to the reasons therein stated. This was a tax paid under a threat of levy, and in a suit brought to recover it back the taxpayer is not limited to the reasons stated in the protest. Babcock v. Township of Beaver Creek, 64 Mich. 601 (31 N. W. 423).

It is urged that the plaintiff should have applied to the board of review to correct the assessment, and that, having failed to do so, it is now estopped to contest it. This rule does not apply to a case where the assessment is absolutely void and the property is not subject to taxation. City of Detroit v. Wayne Circuit Judge, 127 Mich. 604 (86 N. W. 1032).

Judgment affirmed.

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