author: Stone, J.

text:
    PEOPLE v. BODJACK.
    1. Intoxicating Liquors — Illegal Possession — Evidence—Sufficiency.
    In a prosecution for the possession of intoxicating liquor^ in violation of Act No. 338, Pub. Acts 1917, as amended, evidence held, sufficient to take the ease to the jury.

      2. Constitutional Law — Criminal Law — Statutes — Ex Post Facto Law — Enlarging Penalty.
    Act No. 3, Extra Session 1919, amending Act No. 53, Pub. Acts 1919, amending section 51 of Act No. 338, Pub. Acts, 1917 (the penal clause), held, not open to tbe objection that, as to defendant, it is ex post facto within the meaning of section 9, article 2, Constitution of Michigan, having become operative after the commission of the alleged offense, since said penalty clause was not enlarged or increased thereby.
    3. Same — Statutes — Mandatory Constitutional Provisions— Intoxicating Liquors.
    The contention of defendant that Act No. 53, Pub. Acts-1919, amending Act No. 338, Pub. Acts 1917, is unconstitutional in that it ignores the express mandate of section 11, Art. 16, Constitution of Michigan, held, decided adversely to defendant’s contention in People v. Vrcavitch, ante, 431.
    4. Same — Statutes—Time op Taking Effect — Immediate Effect' —Legislative Discretion — Abuse.
    In giving immediate effect to Act No. -53, Pub. Acts 1919,. held, that the legislature did not abuse its discretion.. People v. Vrcavitch, ante, 431; People v. Btambosva, ante,. 436.
    Exceptions before judgment from Berrien; White (Charles E.), J.
    Submitted April 16, 1920.
    (Docket No. 115.)
    Decided June 7, 1920.
    Paul Bodjack was convicted of violating the liquor-law.
    Affirmed.

      O’Hara & O’Hara, for appellant.

      Alex. J. Groesbeck, Attorney General, J. E. Converse and II. S. Sweeny, Assistants Attorney General,, and John J. Sterling, Prosecuting Attorney, for the people.
   Stone, J.

This case is here upon exceptions before sentence. The defendant was informed against in the circuit court for having in his possession in the county of Berrien, on the 2d day of May, 1919, certain intoxicating liquors, to wit: 12 bottles of whisky, in violation of Act No. 338, Pub. Acts 1917, as amended by Act Ño. 53, Pub. Acts 1919, as amended by Act No. 3, of the Extra Session of 1919. Upon the trial it was the claim of the people that the defendant had violated section 2 of the act.

The defendant was the proprietor of a restaurant and soft drink parlor in St. Joseph, Berrien county. Early in May, 1919, Everett Evans, a witness for the people, went to a saloon in Chicago and purchased over $100 worth of whisky, and it was claimed he sold a portion thereof to defendant. The attitude of this witness is rendered very apparent by a reading of his testimony. The following appeared upon the direct examination of this witness:

“Q. What - was this stuff bought as in Chicago?
“Mr. O’Hara: I object to that as immaterial and irrelevant to this issue.
“Q. What did you buy?
“Mr. O’Hara: I object to that for the same reason.
“The Court: The question may be answered.
“Mr. O’Hara: Note an exception.
“A. I asked for whisky. I don’t know what I got. I delivered 12 bottles to Mr. Bodjack in his soft drink parlor, and he gave me $84 for the same.
“Q. What did you tell him you were selling him?
“Mr. O’Hara: I object to that as immaterial.
“A. Whisky.”

Earlier in this examination this witness testified as follows:

“Q. I will ask you if you sold Mr. Paul Bodjack, this respondent, any whisky last summer before your arrest?
“Mr. O’Hara: That is calling for the conclusion of this witness and I object to it. That is not the way to show what he sold to Paul Bodjack.
“The'Court: The question may be answered.
“Mr. O’Ham: Note an exception.
“A. Not as I know of.
“Q. Not as you know of?
“A. Yes, sir.
“Prosecuting Attorney: Now, Everett, I have shown your intelligence, because you are an intelligent man.
“Witness: A. I am showing it right back, because I don’t know what I sold him. I have testified before in this matter in justice court. I signed this testimony but I don’t remember whether I read it over or not.” :

At this point the prosecuting attorney read from the testimony of this witness given upon the examination in justice’s court, on the ground that counsel was taken by surprise in the testimony of the witness:

“Q. Listen to this (reading from the testimony taken on the examination):
“'Do you remember being in there (in.Bodjack’s place) some time about the early part of last May?
‘A. Yes, sir.’
“Did you so testify?
“A. I don’t remember.
“The Court: Mr. Witness, you remember that you are on the witness stand. You have taken an oath. This court is not to be trifled with, and you bear that in mind in giving your testimony, sir.
“Q. Do you want to leave that answer stand, or do you want to say you so testified?
“A. If I signed it, I did.
“Q. Did you testify that way?
“A. I don’t remember whether I did or not.
“Q. Another question (reading from same examination) :
“ ‘Did you have any business dealings with Mr. Bodjack about that time?
“‘A. I did.’
“A. I did.
“Q. Did you have some business dealings with him about that time?
“A. I did.
“Q. Pay attention to this (reading from same examination) :
“ ‘What was it?
‘A. Sold him 12 quarts of whisky.
“‘Q. Did you say whisky before?
‘“A. I did.
‘Q. For how much money?
“‘A. Eighty-four.’
“Did you testify that way?
“A. I did.
“Q. Is that the truth?
“Mr. O’Hma: I object to it as calling for a conclusion.
“The Court: The question may be answered.
“Mr. O’Hara: Note an exception.
“A. I don’t know.
“Q. Don’t you know whether that is true or not? “A. I don’t know whether I sold him whisky or not. “Q. Don’t you know whether you got $84 for what you sold him?
“A. I did get it.
“Q. (Reading again from the testimony taken on the examination):
“ ‘Did you get the money for this whisky?
‘“A. X did.’
“Did yo.u so testify?
“A. Yes, sir..
“Q. ‘In cash?’ ‘A. Yes. sir.’ Did you so testify? “A. I did.
“Q. Is that the truth?
“A. Yes, sir. *. * *
“Prosecuting Attorney: Where had ’you obtained this whisky, Mr.,’Evans, that you sold Mr. Bodjack?
“Mr. O’Hara: Just a minute. I object to it as there is no testimony that he sold any whisky to Mr. Bod-jack.
“The Court: I think, in view of the 'testimony of the witness as to the conversation that he had with the respondent, f will permit the answer.
“Mr. O’Hara: Note an exception.
“A. Chicago.
“Q. Who from over in Chicago?
“A. Why it was a saloon on 35th and State streets.
Ü5 * ÜC
“Q. How much whisky did you buy there at that time?
“Mr. O’Hara: The same objection, and the further objection, it is immaterial how much whisky he bought in Chicago, if any.
“The Court: Same ruling.
“Mr. O’Hara: Note an exception.
“A. I don’t remember how much I purchased at that time, but it was more than 12 quarts.
“Q. How many quarts did you buy on that occasion, or about, if you know?
“Mr. O’Hara: Same objection.
“The Court: Same ruling.
“Mr. O’Hara: Note an exception.
“A. I don’t remember, I bought over $100 worth I reckon.”

On his redirect-examination the following occurred:

“Q. Did Bodjack ever come back to you at any time and ask you for his money back because this was not whisky?
“Mr. O’Hara: I object to it as immaterial.
“The Court: It may be answered.
“Mr. O’Hara: Note an exception.
“A. No, sir.”

This witness also testified as follows :

“There was no one else present when I got the money from Mr. Bodjack. I met him on the street and asked him & he wanted to buy some whisky, telling him that I had 12 quarts and that I would sell it to him for $7 a quart. He said he would take it. I was to deliver it at his place of business, which is a soft drink parlor and restaurant located in St. Joseph, Michigan.”

The defendant was not sworn as a witness in the case. The question submitted to the jury was whether or not the defendant had whisky in his possession at the time and place charged. The defendant claimed at the trial, as he claims here, that there was no testimony produced that tended, in any way, to prove that he ever possessed any whisky contrary to law. This question was first raised on the trial in a motion to direct a verdict, which was denied. The case was submitted to the jury and the defendant was found guilty.

By appropriate assignments of error it is claimed by defendant’s counsel that there was no substantive testimony in the case that Evans ever sold to defendant any whisky, or that the latter ever.possessed any whisky. We cannot agree with counsel in this contention. We think there was some substantive testimony tending to show the guilt of the defendant. The extract from the testimony above given shows that the witness Evans testified that he told the truth when he testified on the examination that he got the money from defendant for this whisky. There are numerous instances in the course of his testimony where it appears thereby that he sold and delivered 12 bottles to the defendant in his soft drink parlor and received $84 for the same, and that the defendant had never asked him to return any money because this was not whisky. We think this evidence was sufficient to take the case to the jury, and that the verdict of the jury should not be disturbed upon the ground that there was, no evidence tending to show the guilt of the defendant.

The next question raised and discussed by counsel for the defendant, and urged here as it was in the court below, is that the law is ex post facto, and attention is called to Act No. 3 of the Extra Session of 1919, amending section 51, or the penal clause. This act took immediate effect' and became operative on June 25, 1919. We quote the following from defendant’s brief:

“The people claim that respondent committed this crime on or about May 2, 1919, and the evidence develops that the transaction Evans claims to have had with respondent occurred in May, 1919. There is no claim or proof that respondent violated this law subsequent to May, 1919.
“Respondent contends that as to him and this case, this law, as amended by Act No. 3 aforesaid, is ex post facto within the meaning of section 9, article 2, of the Constitution of this State, which provides:
“ ‘No bill of attainder, ex post facto law, or law Impairing the obligation of contracts shall be passed.’
“An amendment to a statute defining a crime, which does not contain a saving clause, and which enlarges the penalty for the commission of the crime is an ex post facto law within the meaning of section 9 of article 2 of the Constitution aforesaid, when applied to violations of the statute committed prior to the passage of the amendment. 12 Corpus Juris, pp. 1097, 1100, 1101; In re LambrecM, 137 Mich. 450; 6 R. C. L. p. 299.
“The violation alleged in this case, if it happened at all, was committed several weeks prior to the passage of said act No. 3. This act contained no saving clause; hence, if the said act enlarged the penalty for the violation of Act No. 338, Pub. Acts 1917, as amended, it is an ex post facto law in so far as this particular case is concerned, and the prosecution should have been dismissed.”

Defendant’s counsel insist that the penalty was enlarged by this last amendment. Prior to June 25, 1919, section 51 read as follows, as amended by Act No. 53:

“Any person, who, himself, or by his clerk, agent or employee, shall violate any of the provisions of this act, for which violation a specific penalty is not herein provided, shall be guilty of a felony and upon conviction thereof be sentenced to pay a fine of not more than one thousand dollars and the cost of prosecution, or to imprisonment in any penal institution of this State for a period of not more than one year, or both such fine and imprisonment in the discretion of the court, and for every second and subsequent offense, so committed, whether in the same county or in any other county of the State, he shall, upon conviction thereof, be sentenced to imprisonment in any penal institution of this State for a term of not less than six months or more than two years, and in addition thereto the court may impose a fine not to exceed one thousand dollars.”

Said section in said Act No. 3 now reads as follows:

“Any person, who, himself, or by his clerk, agent or employee, shall violate any of the provisions of this act, for which violation a specific penalty is not herein provided, shall be deemed guilty of a felony, and upon conviction thereof be sentenced to pay a fine of not more than one thousand dollars and the costs of prosecution, or to imprisonment in the State prison, Michigan Reformatory, or the Detroit House of Correction for a period of not less than six months nor more than one year, or by imprisonment in the county jail for not less than thirty days, nor more than one year, or by both fine and imprisonment in the discretion of the court, and for every second and subsequent offense, so committed, whether in the same county or in any other county of the State, he shall! upon conviction thereof, be sentenced to imprisonment in any penal institution of this State for a term of not less than six months nor more than two years, and in addition thereto the court may impose a fine not to exceed one thousand dollars.”

Counsel concedes that the answer to this question depends upon the construction to be placed by this court upon the words “any penal institution of this State,” as used in said section prior to this last amendment with reference to punishment for the first offense; and it is urged that the above phrase, as used in Act No. 53, included not only the prisons, reformatory and house of correction in this State, but also all county jails. In reply to this claim of defendant’s counsel the attorney general, in his brief, says:

“Had these words read 'any penal institution in this State,’ there might be some force and effect to the contention! made by respondent. The most commonly accepted and known definitions of the preposition ‘of’ are: ‘belonging to’ and ‘denoting possession or ownership.’ It must be presumed that this word was used by the legislature in its common and approved usage, and we think it is clear that by using the words ‘any penal institution of this State’ it was meant those penal institutions belonging to and owned by the State as distinguished from all penal institutions which might belong to the particular municipalities or counties in this State.
“Practically the same question was aadressed to the court in Bronk v. Riley, 2 N. Y. Supp. 266, in which it was held that:
‘“Laws N.- Y. 1888, chap. 586, prohibiting the use of motive-power machinery, for manufacturing purposes, “in any of the penal institutions of the State,” and the employment of the convicts therein at certain labor, applies only to the State prisons and such other prisons and reformatories as are constructed by the State, and at its expense.
“ ‘A penitentiary erected by a county, the management of which is vested in local and county officers, the money belonging to which is required to he deposited in the county treasury, and subject to the control of the board of county supervisors, is not a State institution, although prisoners from other counties may he confined in it under contract between the county or penitentiary officers and the State or the county sending such prisoners.’
“Under the provisions of the law prior to the amendment, made by Act No. 3 of the Public Acts of the Extra Session of 1919, the minimum term of imprisonment not being fixed by the act, any imprisonment imposed by the court for the first offense had to be under the provisions of sections 15859 and 15860 of the Compiled" Laws of 1915 for a minimum term of six months. The maximum imprisonment was fixed by the act itself at not more than one year.
“It is significant of the fact that the legislature used and so understood the meaning of the phrase, ‘any penal institution of this State,’ as not including any other than those belonging to the State when it designated, in Act No. 3 aforesaid, the Detroit House of Correction as a penal institution in which imprisonment can now be made. To accomplish this end, the words ‘State Prison, Michigan Reformatory or the Detroit House of Correction’ were substituted for the words ‘any penal institution of this State.’
“The real effect of Act No. 3 of the Public Acts of the Extra Session of 1919 is to decrease the penalty by permitting imprisonment in the county jail for not less than thirty days nor more than one year upon the first offense of a violation of the provisions of the prohibitory act. The minimum term of imprisonment of six months in the said penal institutions theretofore provided is by this act now reduced, in the discretion of the trial judge, to imprisonment to a term of thirty days in a county jail.”

After as thorough an examination as we have been able to give this question, we think the position of the attorney general is the correct one, that the penalty clause of Act No. 53 was not enlarged or increased by Act No. 3, Extra Session 1919, and that there is no merit in the question urged by defendant’s counsel upon this subject.

It is next urged by counsel for defendant that the statute here involved, as amended, which we have above cited, and under which this prosecution was instituted, is unconstitutional in that it ignores the express mandate of section 11, article 16, of the Constitution, which reads as follows:

“* * * The legislature shall by law provide regulations for the sale of such liquors for medicinal, mechanical, chemical, scientific and sacramental purposes” ;

—and assumes the power to prohibit and prevent a lawful sale of intoxicating liquors for -the five excepted purposes, the act not complying with the requirements of the Constitution, and also by absolutely prohibiting the possessing of such liquors for any purpose, it renders wholly nugatory and ineffective the provisions of the act prohibiting the sale for the purposes named therein.

This position or claim has been so thoroughly and clearly answered by Justice Bird in the case of People v. Urcavitch, ante, 431, handed down herewith, that we shall not repeat the argument here, but refer to that case as holding adversely to the claim of the defendant. ' That opinion clearly rules this question.

It is next urged that Act No. 53 of the Public Acts of 1919 should not have been given immediate effect, and. that the same should not, and could not have been in force until 90 days after the end of the session at which the said act was passed. This question has also been so thoroughly covered in the opinion of Justice Bird, ábove referred to, and also by Justice Steere in the case of People v. Stambosva, ante, 436, handed down herewith, that we shall spend no time upon the subject, but shall hold that, for the reasons stated in those opinions, there is no merit in the question, and we hold adversely to the contention of the defendant in that regard for the reasons already referred to.

We have examined, but shall not spend any time in discussing, the questions raised by the other assignments of error. We find no reversible error in the record. The conviction of the defendant is affirmed,. and the court below will proceed to judgment accordingly.

Moore, C. J., and Steere, Brooke, Fellows, arid Bird, JJ., concurred. Clark and Sharpe, JJ., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    HABERKORN INVESTMENT CO. v. MORAN.
    Principal and Surety — Bonds—Failure to Notify Surety of Default — Release of Surety.
    This case is ruled by Berkshire Land Go. v. Moran, ante, 77.
    Error to Wayne; Hunt (Ormond F.), J.
    Submitted April 27, 1920.
    (Docket No. 91.)
    Decided June 7, 1920.
    Assumpsit by the Haberkorn Investment Company against William E. Moran, principal, and the Fidelity & Deposit Company of Maryland, surety, on a bond. Judgment for plaintiff on a directed verdict against the principal only. Plaintiff brings error.
    Affirmed.

      Douglas, Eanum, Barbour & Rogers, for appellant.

      Keena, Lightner, Oxtoby & Hanley, for appellee surety.
   Stone, J.

This case was brought to this court by the plaintiff on writ of error to review a judgment for the defendant Fidelity & Deposit Company of Maryland, entered upon a directed verdict, in the court below. On April 6, 1916, the plaintiff entered into a contract with the defendant William E. Moran for certain construction necessary for placing a real estate subdivision, in the county of Wayne, upon the market. This construction involved the paving of Lake Shore Drive, and Harvard Shore Drive, and also the building of a sea wall and sewer outlet wall with back fillings and gradings incidental to this work. The contract provided an option for the cancellation of the paving of Harvard Shore Drive, by written notice, and this option was exercised by the plaintiff on July 8, 1916. The contract further provided that a bond in the sum of $20,000 should be furnished by the defendant Moran. The total consideration for the work to be done, provided the option above mentioned was exercised, was stated in the contract as $20,188.86. The work on Lake Shore Drive was to have been completed on or before the 3d day of August, 1916. In accordance with the terms of this contract a bond in the sum of $20,000 was entered into, wherein William E. Moran was principal, and the Fidelity & Deposit Company of Maryland, hereafter called the surety company, was surety, providing for the performance of the above mentioned contract according to its terms, covenants and conditions. This bond, among other things, provided as follows:

“The owner, as a condition precedent to any recovery hereunder, shall faithfully perform all the terms, covenants- and conditions set forth in said contract and in this bond, or in either of them, to be performed by the owner at the time and in the manner specified.
“The owner shall notify the surety by registered letter, addressed and mailed to the surety at its home office in Baltimore, Maryland, of any breach of said contract by the principal, or any -act or omission, of the principal, or of any agent or employee of the principal which may involve or cause a loss for which the surety may be liable, immediately after such breach or act or omission shall have come to the knowledge of the owner, or any representative of the owner authorized to supervise the performance of said contract, and if the principal abandons said contract, or is lawfully compelled by reason of a default to cease operations thereunder, the surety shall have the right at its option to assume the contract and to sublet or complete the same,” etc.

The defendant Moran failed to complete the work as specified in the contract, and on September 25, 1916, the surety company was notified by the plaintiff to that effect. Further notice of default was sent to the defendant surety company by registered letter on September 29, 1916, and the surety was also informed that the plaintiff would relet contracts for the work left uncompleted by the defendant Moran. ' - .

It should be stated that defendant Moran not-only failed to complete the work, but the record shows that he never started it. His contract called for the paving' of Lake Shore Drive, and to have the same completed on or before August 3, 1916. Not only did Moran not start the work, but the record shows that on July 29, 1916, the plaintiff wrote Moran reminding him of the conversation of the day before in which he promised to begin work on the pavement not later than August 10th. That letter states that the plaintiff was going to write to the surety company that they were giving Moran until August 10th to begin work on the contract; but the record shows that no such notice was ever sent to the surety company, and the first notice to that company was September 25, 1916. Mr. Haberkorn, the president and general manager of the plaintiff, testified as follows:

“In my best judgment he could have been reasonably expected to start to work laying this pavement on July 1st at the very latest, by reason of conditions left by the other contractors on Lake Shore Drive. In order to be laying the pavement by July 1st, the excavating should have been done in less than a week. I don’t say when he should get his contract done. A couple of weeks before that, I realized that the job could not be done on August 3, 1916.”

It was nearly three months from July 1st before the defendant surety company had any notice of the default. Mr. Haberkorn further testified: “But I said I would not push Mr. Moran if he was going ahead with the work.”

It is fair to state that Mr. Haberkorn knew by July 1st there would be a default on the part of defendant Moran. It also appears, clearly from this record, that the officers of the plaintiff Knew that tne price of ma-. terials was going up, and that labor was scarce, and Mr. Haberkom testified that when he got new bids in October they were about $8,000 higher than defendant Moran’s contract. Mr. Moran’s contract was $3,-725.50 for the sea wall, and $16,463.36 for the paving, aggregating $20,188.86; and when the work was relet to the Midland Company the price was $5,960 for the sea wall, and $21,443.10 for the paving, aggregating $27,403.10, a difference of $7,214.24. In other words, it shows that there was an increase in the cost of labor and materials over the period of six months between April and October, 1916, of about 33 1/3 per cent.

Under , date of October 16, 1916, the surety company advised the plaintiff that it did not desire to exercise any rights it might have to complete the contract; and, further, that at the proper time it stood ready to take up the question of its liability on the bond, “upon the distinct understanding, however, that at this time we reserve all rights, and this communication is not to be construed as a waiver of any defenses we have under our bond.”

The plaintiff, under date of March 27, 1917, executed a contract with the Midland company identical in form with the Moran contract, and based upon the same plans and specifications, at an increase of practically $7,215.

Certain other correspondence appears in the statement of facts by plaintiff; but as this correspondence has a bearing upon the plaintiff’s claim that it was excused from bringing suit upon the bond within the time specified in paragraph 7 therein (a matter that we shall not have occasion to discuss), we omit that part of the statement.

After the introduction of evidence and a motion for a directed verdict on behalf of the surety company, the trial court directed a verdict in behalf of said defendant company of no cause of action, and against the defendant William E. Moran in the amount of $7,977.39, and judgment was entered accordingly.

It is against this action of the trial court that error is assigned. There are four assignments of error, and of them counsel for plaintiff and appellant say:

“Only four assignments of error are set forth in the record, and they are in fact cumulative, the principal and controlling one being that the court erred in directing a verdict in behalf of the defendant, the Fidelity & Deposit Company of Maryland. The other three assignments simply set up the charge of the court with reference to the direction of the verdict.”

After quoting the language of the bond, heretofore set forth, the trial court in its charge said:

“It appears by this contract, that is, the original contract, that what is known as the Lake Shore Drive shall be completed on or before August 3, 1916. I will read that part of the original contract between the plaintiff and Moran:
“ ‘The party of the second part (that is Moran) is to pave Lake Shore Drive first, and have the same completed on or before August 3, 1916.’
“That is one of the agreements on the part of Moran. It appears in this case that Moran did not even begin, much less finish the Lake Shore Drive. I think that it is conceded that he had done nothing, and certain negotiations were had between the plaintiff and Moran about a postponement, that is, to allow him to do the work later, and under the undisputed evidence in this case no_ notice whatsoever was sent by the owner — by the plaintiff in this case to the defendant surety company, until a notice under date of September 25, 1916, was sent saying^ this work was to be completed by August 3d. This was the contract that the surety company agreed to guarantee; and I charge you as a matter of law that that was a condition precedent; that is, the plaintiff alleges in his declaration that he was to perform all the conditions by him to be performed, and one of the conditions was, if there should be any delay or default on the part of this contractor, that he would immediately notify the surety, and he did not do it.”

And for the foregoing reason, as we understand the record, a verdict was directed in favor of the surety company.

In our opinion this case is governed and ruled by the recent case of Berkshire Land Co. v. Moran, in which an opinion, written by Justice Steere, was filed on April 10, 1920, and is now reported ante, 77. The two cases are very similar in their facts, so much so that counsel for the plaintiff in the instant case, in their brief which was prepared before the opinion in the Berkshire Land Company Case was promulgated, said:

“We call the attention of the court to a case now pending in this court, being the case of Berkshire Land Co. v. William E. Moran and Fidelity & Deposit Co. In that case, it will appear just as in the present one, that the owner had the same trouble in securing a reply from the surety company and when, the reply came, it was self-protective and evasive, and that no steps were taken to carry out the contract on the part of the surety company, and we submit that under the showing- in this case, there is no evidence that the surety company would have taken any different course had it been notified thirty days earlier.”

In the Berkshire Land Company Case it appears that Moran commenced work early in April and did some grading, abandoning the work in August, and that the first notice to the surety company of his default was August 30, 1916. In that case this court said that the conditions were such that it was apparent about the last of June or first of July that the work could not be completed by August 1st. A notice of default was sent August 30th, a month earlier than notice was sent in the instant case, although the default in this case was much greater than the default of Moran in the Berkshire Land Company Case. In the Berkshire Land Company Case this court said in part:

“Clearly under such conditions it was not an unnatural nor a supertechnical precaution to provide in an indemnity bond for faithful performance of an improvement contract that the surety should be promptly notified of any breach of the contract or any other act or omission on the part of the principal which might involve or cause a loss for which the surety might be answerable. * * *
“Spitzley, himself, early knowing of delays and familiar with existing conditions, of which the surety was not advised, recognized a probable loss and the advisability of prompt action while Moran was yet on the job, urging him that the quicker he got through the less money he would lose and says, he 'came to the conclusion that they (the improvements) could not be put in (that summer) unless Mr. Moran got busy the forepart of August’; but no notice of delays, Moran quitting the job or any other default was given the surety in compliance with the condition precedent until on or after August 30th, although the conditions as shown to Spitzley had become such by the last of June or first of July that it was apparent the work could not be completed by August 1st. * * *
“Under the undisputed facts in this case the trial court rightly held as a matter of law that plaintiff prejudicially neglected to promptly and’within a reasonable time give the surety due notice as contemplated in the contract between the parties. Under the circumstances shown such palpable and prejudicial default in a material condition precedent was a substantial breach of the contract which discharged the surety.”

Having reached the conclusion that the instant case is ruled by the Berkshire Land Company Case, it is unnecessary to consider the other questions argued by counsel, and the judgment of the circuit court is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    NOBLE v. STURM.
    1. Damages — Foreign Contract — Law oe Caset-Landlord and Tenant — Breach of Covenant to Pat Rent.
    In an action on a lease of premises in the city of Chicago, 111., the lease having been executed in Illinois, the law of that State must govern.
    2. Same — Liquidated Damages — Penalty—Distinction.
    A sum of money deposited by the lessees with the lessor as a guaranty for the faithful performance of all the covenants of the lease by said lessees, and, under the terms of the lease, to be retained by the lessor as liquidated damages in case of lessees' default in the performance of any of the covenants of said lease, the least as well as the most important, or the whole of them together, must be regarded as a penalty and not liquidated damages, and in an action for default in the payment of rent the trial court properly held that plaintiff was entitled to recover the full amount of same, after deducting the amount of said deposit.
    3. Same — Ascertainment of Damages.
    Where the damages are not difficult of ascertainment, the court is inclined to treat the stipulated sum as a penalty and inquire into the actual damages.
    4. Landlord and Tenant — Abandonment of Leased Premises— Surrender — Liability for Rent.
    An abandonment of leased premises without the consent of the lessor is not the equivalent of a surrender of the premises; and will not release the lessee from his obligation to pay rent.
    5. Same — Proof of Surrender.
    To show a surrender of a lease, a mutual agreement between the lessor and the original lessee that the lease is terminated must be clearly proved, which surrender releases the original tenant from further liability.
    6. Damages — Judgment—Modification—Interest.
    Where, under the terms of the lease, defendants were entitled to interest on the amount deposited by them as a guaranty, and in computing same the trial court did not properly apply the rule stated in the case, resulting in too large a judgment for plaintiff, the same will he modified, and on failure of plaintiff to file remittitur new trial will he granted. ,
    Error to Wayne; Mandell (Henry A.), J.
    Submitted April 23, 1920.
    (Docket No. 62.)
    Decided June 7, 1920.
    Assumpsit by Marian H. Noble against Adolph E. Sturm on a lease. Judgment for plaintiff. Defendant brings error.
    Affirmed, conditionally.

      Behr & Coolidge, for appellant.

      Clark, Emmons, Bryant, Klein & Brown, for appellee.
   Stone, J.

This case has been brought here by the defendant to review a judgment for the plaintiff in-the court below. The case was tried by the court without a jury, and the findings of fact and conclusions of law are herein set forth. The suit was brought upon a lease ol certain premises in the city of Chicago, Illinois, entered into July 8, 1911, at Chicago, between the plaintiff as lessor, and the defendant Sturm and one J. D. Isaacs as lessees. Isaacs is now dead and Sturm is a resident of Detroit. The lease is known in the record as Exhibit “A.” The original lease contains clauses 6, 7, 8 and 10, which are the basis of defendant’s contentions in this suit, and are therefore here set forth verbatim:

“Sixth. The parties of the second part, having deposited with the party of the first part the.sum of seven hundred and sixty-five ($765) dollars, it is agreed that said sum shall be held by the party of the first part to guarantee the faithful performance of all the covenants of this contract by the parties of the second part and upon default of the parties of the second part, or either of them, in the performance of any of the covenants in this contract contained, such sum of money or so much thereof as then remains in the possession of the party of the first part shall be retained by the party of the first part and applied by her in full payment and liquidation of all damages which she may sustain by reason' of such default and thereupon she shall be entitled to the possession of the said premises, and the parties of the second part shall have no further rights therein.
“Seventh. The party of the first part agrees to pay to the parties of the second part, or either of them, interest at the rate of five per cent, per annum upon the sum set out in the last preceding paragraph hereof, or so much thereof as may remain in the possession of the party of the first part until such default.
“Eighth. Should the parties of the second part faithfully perform all the covenants, herein required of them the said sum of money so deposited with the party of the first part will be applied by the party of the first part in payment of the last six monthly installments of rent in the sum of one hundred twenty-seven dollars and fifty cents ($127.50) each that will become due on the first days of March, April, May, June, July and August, in the year 1916.”
“Tenth. The parties of the second part agree to furnish at their own expense such heat as they may deem necessary and to pay the water tax upon said premises as the same becomes due and payable and agree to take reasonable and necessary precaution against freezing the water pipes and against permitting matter or materials to enter the drainage or waste pipes tending to obstruct, and will pay all damages or expenses incurred by such neglect and will clean the catch basin and furnace as often as necessary and allow no deposit of ashes or other rubbish in or upon said premises.”

The findings of fact and conclusions of law of the trial court are as follows:

“Findings of Fact.
“1. 1 find that on or about July 8, 1911, the plaintiff, Marian H. Noble, entered into a lease with the defendant, Adolph E. Sturm, and one J. D. Isaacs, who is now dead, in the city of Chicago, Illinois, a true copy of which is annexed to the declaration in this case and marked Exhibit A.
“2. That said lease was, on March 28, 1912, extended by a written agreement, entered into by the same parties, from the date it would otherwise have expired, to wit, August 31, 1916, to and including the 31st day of August, 1919, a true copy of which extension agreement is annexed to the declaration filed in this case and marked Exhibit B.
“3. That thereafter, by proper assignment, the interest of the said'lessees- was transferred to one John A. Klawans, who subsequently transferred his interest to Harry S. Goldstein; that Goldstein thereafter transferred to the May Amusement Company, an Illinois corporation, and that it thereafter transferred to Bertha Evans, all of which assignments were consented to by the plaintiff in this case, and that none of said assignments released the defendants in this case from liability on said lease. That thereafter, without knowledge or consent of either of the parties to this case, a Mr. Myer went into possession of the property and paid rent thereon until August, 1916, since which time no rent has been received by the plaintiff for said premises.
“4. That all the assignees above named are financially irresponsible, and their whereabouts unknown, and that said premises were and ever since have been vacant and abandoned by the tenants named in said lease and their assignees since August, 1916. There is some testimony to the effect that the premises were occupied by one Myer, an assignee, in January, 1917, for a few days. There is no testimony that the abandonment was ever accepted by the plaintiff.
“5. That at the time said lease was executed, the lessees, Sturm and Isaacs, were young men, working on a salary, in Chicago, and had just enough money to install the equipment, required by the fourth clause of the lease, and put up the deposit of $765 required by the sixth clause of the lease. That the lease was drafted by Mr. Bither, of the firm of Bither & Goff, of Chicago, attorneys for the plaintiff. That the plaintiff has, at times, called the attention of prospective lessees to the premises and has diligently attempted to secure prospects on behalf of the said lessees, for the same, but that her efforts to assist the lessees in subletting the premises have been without success.
“6. The premises are in character that of a moving picture theater; a small theater of three hundred (300) seats, such as is provided for by the lease. The decorations, lighting, ventilating, the sloping of the floor and the projecting room are those usually used for moving picture houses. There is a stage and the front is recessed back. The stage is in the north end of the building, and the floor slopes from the level of the street in front to a good three and one-half feet below the street level at the stage. The front of the building on the street is set back from the street line ten feet, with a projecting box for the cashier, and an entrance door on either side of that box.
“7. That Mr. Myer, the last assignee of this lease, has never turned the keys over to the plaintiff’s agent, and left the city of Chicago in August, 1916. He has paid the rent in full for each month,up to August, 1916, when he paid one hundred seven and 50/100 dollars ($107.50), leaving a balance due for August, 1916, rent of twenty ($20) dollars. Nothing has been paid since August, 1916, on account of the rent of this property, although there is some testimony that sometime after January 1, 1917, the theater was opened and operated for a few days by Mr. Myer. That no business has been conducted at the premises covered by said lease, No. 126 East Fifty-first street, Chicago, Illinois, since the first part of January, 1917, although the chairs and other theater equipment in the premises, installed in accordance with the fourth clause of the lease, still remain there, and that no affirmative steps have ever been taken by the plaintiff to terminate the lease.
“8. That the amount of the .unpaid rent due on the lease up to the date this suit was commenced, is one thousand forty ($1,040) dollars, as detailed in plaintiff’s bill of particulars, upon which sum this plaintiff would be entitled to interest at the rate of five per cent. (5%) on the respective amounts as they .become due.
“9. By a proper notice, under his plea of the general issue, the defendant urges that the provision in the sixth clause of the lease for the deposit of seven • hundred sixty-five ($765) dollars is a provision for liquidated damages and that upon default, the plaintiff must accept that amount in full payment of all damages, which she sustains, and the defendant further claims, under his notice of setoff, the right to an affirmative recovery, because of the seventh clause of the lease, to interest on the seven hundred sixty-five ($765) dollars at five per cent. (5%) from the date of the deposit to the date of the alleged default, August, 1916, and interest on that amount at five per cent. (5%) to the date of trial; that the plaintiff in this case has never paid any interest on the seven hundred sixty-five ($765) dollars to the defendant in this case or to anyone else, as is provided in the seventh clause of the lease.
“10. I further find that the plaintiff, in commencing this suit, has commenced suit only for the rent which was due, as she legally might have done, from August, 1916, until the date of commencement of suit.
“11. The Illinois cases of Hinde v. Mandansky, 161 Ill. App. 216; Kay Gee Amusement Co. v. Cave, 177 Ill. App. 250; West Side Auction House Co. v. Insurance Co., 186 Ill. 156 (57 N. E. 839) ; Sexton v. Chicago Storage Co., 129 Ill. 318, 334 (21 N. E. 920) ; Wilhelm v. Schmidt, 84 Ill. 183; Aldrich v. Dunham, 16 Ill. 400; North & South Rolling Stock Co. v. O’Hara, 73 Ill. App. 691; County of Mercer v. Iron Co., 115 Ill. App. 298; Darst v. Bates, 93 Ill. 493; Archibald v. Argall, 53 Ill. 307, were introduced in evidence.
“Conclusions of Eav.
“1. That the lease in question, having been executed in Illinois and affecting Illinois property, the law of that State must govern.
“2. That the defendant in this case, by his assignees, defaulted on the lease in August, 1916, by nonpayment of rent.
“3. I am unable to agree with the defendant' in his contention, and find that as a matter of law, the sixth clause of the lease was, under all the facts and circumstances of this case, a provision for security only, and not one for liquidated damages and that where damages exceed the amount of the security, as they do in this case, it amounts to a penalty and not liquidated damages, and, therefore, that the plaintiff should be allowed to recover the full amount of one thousand forty ($1,040) dollars with interest at the rate of five per cent. (5%) upon the respective amounts as they become due.
“4. I also find that under the seventh clause of the said lease, the defendant would be entitled to interest at the rate of five per cent. (5%) per annum upon the sum of seven hundred sixty-five ($765) dollars, deposited by them from the date of the deposit to the date of default in the lease, which interest approximately equals the interest that would be due to the plaintiff and I have, therefore, deducted from the amount of rent which was due and payable at the time of the commencement of this suit, to wit: One thousand forty dollars ($1,040), the amount of the deposit, seven hundred sixty-five dollars ($765), and will, therefore, enter a judgment in favor of the plaintiff and against the defendant for the sum of two hundred seventy-five ($275) dollars.”

Judgment for the plaintiff was entered upon these findings in the sum of $275 damages.

Counsel for appellant state in their brief that while defendant assigned error on a number of the findings of fact made by the court below, this assignment is now waived, and defendant relies upon the insufficiency of the facts as found to support the judgment rendered, as expressed in the assignments of error numbers 1 to 6, inclusive; and defendant urges:

(1) That the $765 deposited under the original lease is a full satisfaction, discharge and liquidation of plaintiff’s claim.

(2) That under clause 7 of the original lease, defendant is entitled to an affirmative recovery of the interest at 5 per cent, per annum on said sum of $765, from July 8, 1911, to August 1, 1916, it appearing that no interest on the deposit has ever been paid.

In their reply brief appellant’s counsel also say:

“Until the receipt of plaintiff’s brief we assumed that the sole issue in this case was the question of whether the sixth clause of the lease was a provision for liquidated damages, or for a penalty. No other issue was argued before the court below, and no other issue is suggested by the pleadings. No other issue is suggested in the court’s findings of fact and conclusions of law.”

It is also urged that the question of interest upon the deposit is open upon this record. Taking appellant’s counsel at their word, we proceed to consider the questions involved, which we think are open upon this record. It will be noted that no amendments were proposed to the findings, as provided by the judicature act and by rule 45 of the circuit court.

Do the findings of fact support the conclusions ■of law in this case? We have spent much time in the examination of the Illinois cases cited by the court in its findings, and by counsel. Much carelessness is disclosed in the citation of authorities, and we have had difficulty in finding some of the cases which were wrongly cited, and some we are unable to find, which has . added to the labor of the court.

Upon the subject of liquidated damages we find the authorities in Illinois (which we think are controlling here because the contract was made in Illinois, upon Illinois property, and was to be performed in that State), are as follows:

Aldrich v. Dunham, 16 Ill. 400, is cited but doubtless intended to be Tiernan v. Hinman, which appears at that page, and has to do with the question of stipulated damages and penalty:

“Where, by the terms of a contract a greater sum of. money is to be paid, upon default in the payment of the lesser sum at a given time, both courts of law and equity will hold the provisions for the payment of the greater sum to be a penalty. And even where the parties, stipulate for the payment of a sum certain on default of performance of an agreement, such stipulation will be treated as a penalty, if the damages are not difficult of ascertainment.” Citing many cases in other jurisdictions.

County of Mercer v. Iron Co., 115 Ill. App. 298. We quote from the opinion at page 301:

“ ‘The law relative to liquidated damages has always heen. in a state of great uncertainty. This has been occasioned by judges endeavoring to make better contracts for parties than, they have made for themselves.’ Cris&ee v. Bolton, 3 Car. & P. 240.
“Courts have never hesitated to hold that where the amount to be paid was called in the agreement liquidated damages, it meant penalty, where it appeared that the stipulated sum was greatly in excess of the amount that would constitute just compensation. ‘Actual compensation being the favorite as it is the fundamental principle of the law governing redress for civil injuries/ it is laid down by the text-writers on damages, that even though an exact and stipulated sum was agreed to be paid, if it was not based upon and substantially limited to just compensation, it would be treated as a penalty.” Citing authorities.

Iroquois Furnace Co. v. Wilkin Manfg. Co., 181 Ill. 582, 603 (54 N. E. 987). Treating the question of liquidated damages and penalty we read from the opinion as follows:

“Another rule of construction is that, where an agreement contains several stipulations of various degrees of importance, as to some of which the damages-might be considered liquidated, whilst the damages for the nonperformance of the others are not measurable by any exact pecuniary standard,- and a sum of money is made payable in gross for a breach of any of them, such sum is held to be a penalty only, and not liquidated damages.” Citing authorities.

See, also, Van Kennel v. Higley, 172 Ill. App. 88, 92.

“Whether a deposit is liquidated damages or a penalty depends on the intention of the parties- as disclosed by the situation and terms of the instrument, and it is not necessarily regarded as liquidated damages though expressly so stated. Where there is doubt as to whether a deposit is intended as a penalty or liquidated damages and the damages are easy of calculation, the court is inclined to treat it as a penalty and inquire into the actual damages. In determining the intent of the parties courts must look to the entire instrument and give effect to every clause.” Kay Gee Amusement Co. v. Cave, 177 Ill. App. 250.
“Courts lean to the construction which allows only loss actually sustained, but will consider the language used, the subject-matter of the contract, and endeavor to find the true intent of the parties and to do justice between them. The fact that the parties use the words 'liquidated damages,’ is not always conclusive that such damages are intended. Where, from the nature of the contract and subject-matter, the damages cannot be calculated with certainty, the sum named for liquidated damages will usually be held such.” Hennessy v. Metzger, 152 Ill. 505 (38 N. E. 1058).

Westfall v. Albert, 212 Ill. 68 (72 N. E. 4). This case treats of the penalty in a bond; and holds that where a bond for a specified amount is to be void if the obligor performs a certain act, otherwise to remain in full force, the court may look to the intent of the parties to determine whether the bond is a contract of indemnity or for the payment of a liquidated sum. If the purpose of the parties to the bond in fixing the amount of damages to be paid is merely to secure prompt performance of an agreement, the bond will be treated as a penalty only, and no more than actual damages are recoverable in case of a breach.

Upon the question of liquidated damages, see, also, Consolidated Coal Co. v. Peers, 150 Ill. 344 (37 N. E. 937). The holdings of the Illinois cases do not materially differ from our own. Jaquith v. Hudson, 5 Mich. 123; Daily v. Litchfield, 10 Mich. 29; Davis v. Freeman,, 10 Mich. 188; Calbeck v. Ford, 140 Mich. 48; Decker v. Pierce, 191 Mich. 64, 70 et seq.; Jones v. Stainton, 200 Mich. 694, 703.

In Daily v. Litchfield, supra, it was held that:

“Where, by the terms of a contract, a sum is mentioned as ‘liquidated damages’ for the nonperformance of several distinct stipulations of very different degrees of importance, and this sum is to be payable equally on a failure to perform the least, as of that to perform the most important, or the whole of them together, it is in legal effect a penalty, and not stipulated damages; and the fixing of such a penalty by the contract is no objection to specific performance.”

See, also, 8 R. C. L., title “Damages,” §§ 110-120.

A careful reading of the sixth clause of the lease will disclose that the $765 was a guaranty for the faithful performance of all the covenants of the lease by the parties of the second part, and upon their default in the performance of any of the covenants in the contract contained, such sum should be retained by the party of the first part as liquidated damages.

Turning to paragraph 10 of the lease, it will be observed that the parties of the second part agreed to do a number of things, among which was, to pay the water tax upon said premises as same became due, and to take necessary precautions against freezing of water pipes, and against permitting matter or material to enter the drainage or waste pipes tending to obstruct, and agreed to pay all damages or expenses incurred by such neglect. Thus it will be seen that by the terms of the contract this sum mentioned as liquidated damages was for the nonperformance of several distinct stipulations of very different degrees of importance; and this sum was to be payable equally on a failure to perform the least, as well as the most important, or the whole of them together. Applying the familiar rule which obtains both in Illinois and Michigan, it must be held that said sum should be deemed to be a penalty instead of liquidated damages, and the trial court did not err in so holding; and there was no error in the finding that plaintiff was entitled to recover the full amount of rent, after deducting the amount of said deposit. The damages were not difficult of ascertainment, therefore a penalty.

In answer to the claim of the defendant that there had been a surrender or abandonment of the premises, we find the state of the Illinois authorities to be as follows:

“A lessee cannot surrender premises leased to him, before the expiration of the term, so as to absolve himself from the payment of rent thereafter, without the consent of the lessor; and the abandonment of the premises, with notice thereof to the lessor, will not exonerate the lessee thereafter from his obligation to pay rent, unless the lessor assents thereto.” Stobie v. Dills, 62 Ill. 432.
“A tenant having entered is liable for all the rent as agreed, notwithstanding he has ceased to occupy, unless something has happened to put an end to the tenancy.” Orcutt v. Isham, 70 Ill. App. 102.
“If a tenant retains possession of the leased premises, either actual or constructive, he will be liable for the rent so long as his possession continues. * * *
“Before the tenant can defend against the payment of rent, he must abandon the premises. A retention of the keys of a rented building by the tenant is a constructive possession by him.” Burnham v. Martin, 90 Ill. 438.

The court concludes the opinion as follows:

“This retention of the keys still gave appellant the constructive possession of the house, and precluded him from successfully defending against this rent.”
_ “1. If a leasing has taken place the tenant has no right without cause to abandon the premises and refuse to pay the rent stipulated.
“2. If demised premises are improperly abandoned by the defendant it is the-duty of the landlord to use due diligence to re-rent the premises and thus reduce the amount of the tenant’s liability. The burden of establishing lack of due diligence by the landlord rests upon the tenant.
“3. The measure of damages for the abandonment of a lease by a tenant is the rent agreed to be paid less whatever the landlord could have made out of the premises by the use of due diligence, after they came into his possession.” Hinde v. Madansky, 161 Ill. App. 216.
“Upon abandonment of premises by the lessee it was the right and duty of the lessor to take charge of the property, preserve it from injury, and, if possible, re-rent it and thus reduce the amount for which the lessee was liable.
“We find no competent evidence in this record legally tending to prove that there was a mutual agreement between the parties for the canceling of the lease, and there is no pretense of a right on the part of the lessee to surrender the premises and cancel the lease without the consent of the lessor. There being no evidence fairly tending to prove the defenses offered, the peremptory instruction was properly given.” West Side Auction House Co. v. Insurance Co., 186 Ill. 156 (57 N. E. 889).
“An original lessee by the assignment of his lease is not released from the payment of the rent covenanted by him to be paid; but still remains liable therefor ; and his assignee becomes liable on the same covenant because of his privity of estate, and because the covenant to pay rent runs with the land, and the original landlord may sue either the original lessee or the assignee upon such covenant.” Sexton v. Chicago Storage Co., 129 Ill. 334 (21 N. E. 920).

An abandonment is not the equivalent of a surrender of premises. To show a surrender of a lease, a mutual agreement between the lessor and the original lessee that the lease is terminated must be clearly proved, which surrender releases the original tenant from further liability. Stewart v. Sprague, 71 Mich. 50.

Upon the subject of interest on the deposit, while the court below found that under the seventh clause of the lease the defendant would be entitled to interest at the rate of 5 per cent, per annum upon the sum of $765, from the date of deposit to the date of default in the lease, it is very evident that the court did not properly apply the rule stated in the case. A careful computation of the interest will show that defendant was entitled to the benefit of the interest claimed by him, and that the judgment below was too large by the sum of $69.02.

If the plaintiff shall remit the sum of $69.02 from the damages recovered in the court below, within 30 days from the filing of this opinion, the balance of the judgment will stand affirmed, with costs in the circuit court to the plaintiff, but with costs of this court to the defendant. If remittitur is not filed, the judgment below will be reversed and a new trial granted, with costs to the defendant.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    COULTER v. SMITH.
    1. Cancellation of Instruments — Deeds — Undue Influence — ■ Mental Incompetency — Evidence—Sufficiency.
    In a suit to set aside a deed on the grounds of undue influence and mental incompetency, evidence held, sufficient to justify the action of the court below in dismissing the hill.
    2. Same — Estates of Decedents.
    The mere fact that decedent so disposed of her property as to do an apparent injustice to one or more of her children will not nullify the transaction.

      3. Same — Undue Influence.
    Undue influence cannot be predicated upon mere opportunity for its exercise
    Appeal from Cass; Des Voignes (L. Burget), J.
    Submitted April 13, 1920.
    (Docket No. 42.)
    Decided June 7, 1920.
    Bill by Addie S. Coulter and another against Charles L. Smith and another to set aside a deed on the grounds of undue influence and mental incompetency. From a decree dismissing the bill, plaintiffs appeal.
    Affirmed.

      Thomas J. Cavanaugh and Asa K. Hayden, for plaintiffs.

      Clarence M. Lyle, for defendants.
   Stone, J.

The bill of complaint herein was filed August 23, 1918, to set aside and cancel a deed executed and delivered January 23, 1917, by Charlotte Smith, now deceased, to the defendant Charles L. Smith, upon the grounds that at the time of the execution and delivery of the deed the grantor was unduly influenced by the grantee, and also that the grantor was at the time mentally incompetent to execute and deliver the deed. The controversy is over a house and lot in the village of Cassopolis of the value of approximately $2,500, being the then homestead of Charlotte Smith. The case presents mainly questions of fact.

Charlotte Smith died intestate June 17, 1918, about one year and five months after the execution and delivery of the deed in question. She was a widow, her husband having died in 1910. At the time of her death she was 85 years of age, and had resided at Cassopolis for about 60 years. She left surviving her, as her sole heirs at law, three children: the plaintiffs, Addie S. Coulter, aged 66 years, residing in Cassopolis; Charlotte S. Varley, aged 64 years, residing in New York city, and defendant Charles L. Smith, aged 55 years, residing at Rice Lake, Wisconsin. The plaintiffs are both married women having no children. The defendants — husband and wife — have two children. The deceased, aside from the homestead, owned two other lots with houses thereon in said village, which she rented. They were inventoried in her estate at $1,800. Money, household goods, and so forth, brought the total of the estate to approximately $2,600, aside from the property here in controversy.

Upwards of 25 witnesses testified in the case, and it would be impracticable to attempt to even digest their testimony here. At the close of the hearing below, the learned circuit judge was of the opinion that the plaintiffs had failed to support either of their claims by the evidence, and believing them to be entitled to no relief, in an oral opinion he analyzed the evidence and dismissed the bill, signing a decree on May 16, 1919. It appeared later, however, that the stenographer did not take down what the court gave as its reasons for dismissing the bill, hence, on July 26, 1919, the circuit judge filed a written opinion in the case, being, as it will appear, subsequent to the date of the decree. This course is very much criticized by plaintiffs’ counsel. We see no objection to the course pursued under the circumstances. In fact, we think that the practice of stating the reasons upon which the decree is based, in all cases, is to be commended.

The defendants were married in 1902, and since their marriage have resided at Rice Lake, Wisconsin, where defendant Charles L. Smith is the station agent of the Soo Line. He testified that he had been a “railroad man” since 1881. He had not visited his mother for some two or three years prior to January, 1917, but his mother was in correspondence with the defendants and their children, and she had visited defendants’ family on at least two occasions. In a joint letter to the granddaughter and the defendant Mae Carr Smith, bearing date January 14, 1917, Mrs. Smith, the mother, said:

“I am glad Charlie is coming, as I have something to offer him.”

Soon after, and in January, 1917, defendant Charles L. Smith visited his mother in Cassopolis, and the deed in question was executed and delivered. He was there about one week in all, at that time, and made his home with his mother at the homestead. He testified fully as to what occurred, so far as he was competent. The deed was prepared at the request of the defendant Charles L. Smith by C. M. Lyle, who was afterwards the attorney for the defendants in this case.

As was said by the circuit judge in his opinion:

“Standing alone and without explanation the circumstances might make the question of undue influence debatable. However, the evidence discloses beyond question: (1) That the son (the defendant) visited his mother in response to a letter she had written him. (2) The letter states that she 'has something to offer him.’ ”

The circumstances surrounding the drafting and execution of the deed are not in dispute and appear in the testimony of Mr. Lyle. The express consideration in the deed is “the sum of one dollar and love and affection.” And the deed contains the following clause: ■ '

“Reserving and excepting a life estate in said premises for and during the natural life of said grantor, Charlotte Smith.”

It clearly appears, and we think is undisputed, that defendant Charles L. Smith paid his mother for the deed a money consideration of $500, and he has paid the subsequent taxes and insurance upon the property. The checks for these amounts are in evidence; and we think are sufficiently identified and verified. Testimony of C. M. Lyle was as follows:

“I drafted Exhibit 4, tfiei deed in question. I am an attorney at law and was on January 23, 1917. On that day, Charles Smith came to my office and gave me the data for drafting a deed for the homestead property that his mother occupied. He came in the forenoon. I went to the register of deeds office and got the correct description, drafted this deed during the forenoon and after dinner, sometime, I went down to the residence of Mrs. Charlotte Smith. While going there, I met Rev. O. P. Miller and asked him to accompany me. We went in the house. Charlie Smith and his mother were there. I read this over to Mrs. Charlotte Smith and asked her if that was the deed she wanted to make to her son. She said it was. I asked her if the correct consideration in the deed, one dollar and natural love and affection, was what she wanted placed therein and she said it was. Mrs. Smith signed this deed in my presence, after which I signed it as a witness, and Rev. O. P. Miller signed as the other witness. I took the acknowledgment of Mrs. Smith then and there. This deed was handed by me to Mrs. Charlotte Smith and in turn was handed by Mrs. Charlotte Smith to Charles Smith. At the time that she delivered this deed to Charles Smith, she told him to put it on record and if — I think she said, ‘If Ad. (Addie) don’t like it, I want her to do something while I live.’ Mr. Miller and I stayed in the room a few minutes, I don’t remember how long, and we got up and went out. O. P. Miller, the other witness to this deed, is deceased, having died last year since the making of the deed. I never saw that deed after-wards until Charlie Smith brought it to my office some time this year, 1919. That is all I care to state.
“Cross-examination: Mr. Smith came to my office, yes, sir. There is one thing more, excuse me. Mrs. Smith asked me how much she owed me for drafting this deed and I told her I would settle with Charlie. Charlie did not settle with me. I didn’t charge him anything. He offered to. He came to my office and I made the deed all out in my office, the reservation and everything in there in the forenoon and went to dinner from my office and went down there in the afternoon and got Mr. Miller on the way and took him in there, and the deed was signed and delivered to her and she delivered it to Charlie, that is correct. Charlie did not go out with me. I saw him again before he went away, but as to when and where, I have no recollection. I never saw the deed afterwards until he brought it here. I am sure about that. He did not walk up to my office with me and go into my office. Elder Miller and I went out together. I put the notarial seal on it before I went down there. I did not have it all executed before I went down. It was- not signed. The seal was on. There is another thing now I am not certain about that whether I carried the seal with me at that time or not. I know, in some instances, I put that seal on beforehand and some I take it with me, and I am^not certain. I think in this case it was put on in my office. I had not talked a word about this deed to Mrs. Smith before I went down there. I have not told all that was said while I was there. I have told all that I reihember of, yes, sir. Miller and Mrs. Smith talked and Charlie talked. We didn’t stay very long, but what was said I have no recollection. I did not go to the register of deeds office with Mr. Smith. I was not in there at all.
“This deed was acknowledged January 28d, and it appears it was recorded January 27th, four days later. I am not related to Mr. Smith except by marriage. I am a distant relative of his wife — her father and mysélf are second cousins, that is, Judge Carr and myself.”

There was testimony that in prior years Mrs. Smith (the mother) had said to different persons that she expected to divide her property equally among her three children; and it appears that as early as November 22, 1910, she had written her daughter, Mrs. Varley, one of the plaintiffs, a letter, in which she said:

“Would you like to live in this house, rent free, as long as you want it, or would you rather have it sold and divide with Adelaide and Charlie when I leave, for I don’t expect to stay long?”

Again, in another letter to the same party, under date of January 11, 1911, she said:

“I have been thinking for some time if anything happened to me, would you like to live in this house' where I am living now, rent free, as long as you want to live in it, or would you rather have it sold and divide it with Charlie and Adelaide and yourself. Charlie and Add. have good homes, so think about it.”

Also, in another letter to the same party, bearing date February 1, 1914, she said:

“What I would like, if you would like to live in this house as long as you like just as it is furnished, rent free, as long as you want to live in it, then sell and divide with you three. I don’t think Charlie will live long the way he looks.”

Upon this branch of the case much stress is laid by counsel for plaintiffs upon these statements and letters. On the other hand, it is urged that the making of the deed in question was a very natural act; that having offered the property to the daughter living in New York, who did not accept the offer, she later offered it to her son, who accepted it, and paid her $500 in cash for it, and relieved her of the burden of taxation and insurance, and probably some repairs, as appears by other checks in the record, she retaining a life estate in the premises. It also appears that she was at that time in need of money. She continued to live in the homestead, and, in fact, died there, having spent some little time with her daughter, Mrs. Coulter, the winter before.

The principal reasons which she ever gave for making the deed of the property were testified to by the witness Mrs. Boyd, who testified as follows:

“I never asked her any questions about her property, but she — let’s see, she told me a year ago last month that she had made — she had sold her home. I was very much surprised when I heard it. I says, ‘Sold your home?’ I says, ‘Who to?’ ‘Why, Charlie, my son Charlie.’ ‘Well,’ I says, ‘what is your object?’ ‘Why,’ she says, ‘my object was I needed monéy, could use it to good advantage, and I sold it for the sake of having money,’ and says, ‘Charlie is the only one that has got any children and you know blood is thicker than water.’ * * * I don’t remember now what else she said. That was the first time that I ever knew of it, a year ago the first of April. I don’t think we ever talked about it afterwards. As to whether she ever talked anything about her children. She said that Mrs. Coulter was well fixed and didn’t need it, and so was Mrs. Varley — at the same time she told me this — said that what she worked hard for she would like to have stay in the family, longer than it would if she gave it to them.”

It is apparent from this record that there had been some friction at times between the mother and the plaintiff Mrs. Coulter, although the former spent some time with that daughter in the latter's home.

• In a letter to her son Charles, dated March 22,1917, she said:

“Don’t mention the price to anyone what you paid. If you did not tell Lyle the price, no one knows. If anyone asks me I’ll say I got my price.”

Again, under date of February 16, 1918, in a letter to her son, she said:

“I hope neither one of you have told the price you paid, if you have the Coulters will hear. Add. (Addie) asked Mr. Carr if he made out a deed and he said no. She don’t think I know that. Add. told me not to borrow any money of Charlie for they would lend me all I wanted. I told them I had not borrowed any and did not expect to. I can’t put it all on paper. The summer tax was not in your name. I paid that, and that is all right.”

The plaintiff Mrs. Coulter, in her cross-examination, testified as follows:

“I never would have brought this suit if it had not been I wanted to find out how much he gave for it, and this was the only way to do it.
“Q. Well, his answer was filed several months ago in which he stated how much he gave, did he not?
“A. Yes, sir.
“Q. You know that he gave at least $500, did you not?
A. Well, that is what he said he gave.
“Q. You still question it, don’t you, that he gave $500?
“A. I still question it now? No, sir.- I first learned that mother had deeded to brother Charles I think about nine or ten months afterwards in the year 1917. I talked to my mother about it. She told me at that time she sold it to him, and another time that she gave it to him. That is all she said, and I don’t recall what I said in reply. * * * Now, my mother said at that time: 'Now,' I can have everything I want, I can have a horse or a housekeeper, or anything I want/ I said, ‘Well, isn’t that nice,’ that was the reply I made to her.”

The deed was placed on record and was recorded on January 27, 1917, being four days after its date, and the defendant Charles Smith told the register of deeds not to publish it.

There is conflict in the evidence as to the mental competency and mental stability of the mother, Mrs. Smith. While there was testimony tending to show that in her later years she was bodily afflicted, yet it appears that she remained in charge of her home and her business down to the time of her last sickness, which was only a few weeks before her death; the death occurring about a year and a half after the execution and delivery of the deed in question. The de-> ceased died from heart failure. She had been afflicted for some time with a numbness in her hips and legs which was followed by poor circulation. We do not find that this affected her mind in any perceptible degree.

From a careful reading of the record, including the numerous letters written by her covering a period of many years, we are satisfied that by a great preponderance of the evidence it is shown that the mother retained her faculties in a remarkable degree; that she managed her business affairs with a great deal of care and persistency, down to and within a few weeks of her death. She was possessed of strong characteristics and a dominating will. After the making of the deed a fire occurred damaging one of the other houses owned by her. She collected the insurance, and had the repairs made. During the course of the work on repairs she seemed to have some trouble with the carpenters, some of whom were witnesses in this case, and testified to her childish conduct. A careful reading satisfies us that she was persistent in her economy, at times almost to stinginess, and the difficulty which she had with the carpenters arose because of her being so particular in having them exercise. economy in the use of lumber and materials that went into the repairing of this house. There is evidence that she became lost in the village on one or two occasions. It is explained by showing that she was in search of a lumber yard that had been recently moved, and she had made a mistake in its new location. Her son-in-law, William Coulter, testified, in speaking of the mother, as follows:

“She was ordinarily a refined woman in her appearance and in her talk. She did her own housework, except my wife helped her some — I suppose she did. I wasn’t there. I used to go to her place to eat dinner occasionally. She. prepared the meals. My wife helped her if we were both there. As long as she lived, I went down quite often to dinner, and I have been other places where she would be invited, .and she always went to the table and kept up her part •of the conversation.”

Another witness testified:

“She was the best boss amongst them. She was competent in every way. She was always ready to work and did work, and her conversation was good. I think she was as mentally competent as any of her relatives. She was smart and she always had her way.”

Another of plaintiffs’ witnesses, Mrs. Anna Alexander, who treated the mother with an electric vibrator for the numbness in her feet - and limbs, which was in the spring of 1916 or 1917, testified:

“She seemed just as rational and bright as she ever did. At this time when she was afflicted.” * * *

On cross-examination the witness testified:

“I was to dinner parties with her a number of times. I was at Mrs. Boyd’s where she was. I don’t remember now whether I was at anjr other places with her or not. She came there herself and took part the same as any guest at these various dinners. I have been at her home many times. I thought she kept her house in good condition, nicely for a woman of her age, a remarkable woman in that respect, I think she was; and with reference to her person and clothing, she was always neat in general appearance. She was an ordinary lady in appearance for a woman of her age — as to whether she was more than ordinary, as you ask — she had a good appearance. She lived alone when I knew her and did her own work so far as I know. I heard her tell about raising chickens and she tried to sell chickens. * * * I would regard Mrs. Smith as a mentally competent person. She was no different than the ordinary person in the usual walks of life that she was in, that I know of.”

Much more testimony might be quoted to the same effect. It is only fair to say, however, that there was other testimony to the effect that she was weak and childish during the last years of her life, but we find very little evidence that would justify , the claim of counsel, “that she was a nervous, shaky, feeble old woman who was easily cajoled and persuaded.” In our opinion, the clear weight of the testimony leads to the opposite conclusion. Counsel for plaintiffs have cited and quoted from the following cases: Noban v. Shoup, 171 Mich. 191; Jacox v. Jacox, 40 Mich. 473 (29 Am. Rep. 547) ; Duncombe v. Richards, 46 Mich. 166, 171; Whiteley v. Whiteley, 120 Mich. 30. In our opinion these cases are not controlling or applicable to the questions here involved, under the evidence.

Some complaint is made by counsel for plaintiffs in the rulings of the court upon reception of the evidence. We have examined the record in that connection, and while some of the rulings were near the border line, especially Upon the question of the competency or incompetency of Mrs. Smith, the mother, yet we think there was no prejudicial error in the rulings.

Some complaint also is made of the remarks of the court in receiving the testiiriony, but it should be borne in mind that this was a chancery case. There was no jury present, and the eourt passed upon the weight of the evidence. We should bear in mind the rule that has been recognized in this court, as follows:

“Sanity is the rule; insanity, the exception; and when it appears that a witness has known a person for a long time, and has never known anything unusual, either in his speech or actions, he is competent to express an opinion that the man isi sane, because sane or normal acts and speech are consistent with the normal condition, sanity.- Insanity, however, not being a normal condition, before one is competent to say that another is insane, he must state some fact that is inconsistent with sanity; and this is not done until the witness is able to testify to something that a man has said or done which fairly tends to show insanity.” Lamb v. Lippincott, 115 Mich. 611, 617.

See, also, People v. Borgetto, 99 Mich. 336: In re Walsh’s Estate, 196 Mich. 42, 73.

We concur in the concluding words of the opinion of the court below:

“The weight of testimony of her neighbors and acquaintances of years’ standing affirmatively establishes the fact that up- to within a few weeks of her death she was mentally strong and unusually vigorous for one of her age. Complying with this her letters written expressing her wishes so clearly and naturally on the subject, impress me with the opinion that, she fully comprehended the nature and provisions of the deed made a year before her demise; that she told some of her neighbors about it, and further that she desired this homestead should be the property of her son, and that in the natural course of events, ultimately descend to her grandchildren, the son alone having children of the family tree.
“Again, it is not successfuly disputed, in fact the record affirmatively disclosed, that there was a money consideration of at least five hundred dollars, and taxes paid by defendant, for the property covered by this deed. It follows that in my opinion this deed should not be disturbed and the bill of complaint should be dismissed.”

In conclusion, it is sufficient to say, we are satisfied that by the overwhelming weight of the evidence it appears that the transaction to set aside which this bill was filed, was brought about and conducted by Mrs. Smith, the mother, in the exercise of her own independent will-and judgment; that her mind dominated and controlled the transaction; and that the deed was executed and delivered deliberately, and it was purposely intended thereby to bestow the property in question upon her son. Whether this was wise or unwise, is not a question before us. The mere fact that a decedent so disposed of property as to do an apparent injustice to one or more of her children, will not nullify the transaction. Undue influence cannot be predicated upon mere opportunity for its exercise. Blackman v. Andrews, 150 Mich. 322; Pritchard v. Hutton, 187 Mich. 346, 359.

Courts are not permitted to make equitable distribution of estates, but are concerned only in giving effect to the legal acts of testators and grantors. Price v. Hagle, 171 Mich. 455; Reichert v. Reichert, 144 Mich. 295; Terry v. Terry, 170 Mich. 330; Keller v. McConville, 175 Mich. 479; Phelps v. Beard, 209 Mich. 266.

The decree-of the court below will be affirmed, with costs to the defendants.

Moore, C. J., and StEere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    ALLEN v. STOCKWELL.
    Plats — Mandamus to Compel Approval — Municipal Corporations —Right to Require Reasonable Regulations — Statutes.
    Where a plat of land was refused acceptance and approval' by the city commission of the city of Pontiac because the owner refused to comply with the reasonable provisions of a city ordinance, passed in pursuance of its charter, requiring the installation of certain public improvements or the filing of a bond guaranteeing compliance therewith, the court below properly refused the writ of mandamus to compel the Oakland county plat board to approve said plat, the provisions: of the statute (Act No. 251, Pub. Acts 1915, 1 Comp.' Laws 1915, § 3350) requiring previous approval by the municipality where the plat was situateá not having been complied with.
    Certiorari to Oakland; Covert (Frank L.), J.
    Submitted April 13, 1920.
    (Calendar No. 29,086.)
    Decided June 7, 1920.
    Mandamus by Edwin T. Allen to compel Ross Stock-well and others, constituting the Oakland county plat board, to approve a plat. From an order denying the writ, plaintiff brings certiorari.
    Affirmed.

      George A. Sutton, for appellant.

      Peter B. Bromley, City Attorney, and A. Floyd BlaJceslee, Assistant Prosecuting Attorney, for appellees.
   Stone, J.

In this proceeding plaintiff seeks to compel the defendants to approve a plat. The court below refused the writ of mandamus for the reasons hereinafter stated. The plaintiff has brought certiorari. The governing statute is Act No. 251 of the Public Acts of 1915 (1 Comp. Laws 1915, § 3350 el seq.).

The plat which it is sought to have approved by the defendants, constituting the Oakland county plat board, is a plat of land situate and being in the city of Pontiac, and when presented to such plat board had not been approved by the commission of the city of Pontiac, or the auditor general of the State.

The plat was presented to the commission on November 3, 1919, for approval, but was not approved because the improvements specified in an ordinance made and passed by the commission of said city on May 1, 1916, as amended July 3, 1916, entitled, “An ordinance regulating the adoption and approval of plats” in the city of Pontiac, had not been made on the streets in said plat, and the proprietor of the plat, Edwin T. Allen, had not filed with said commission a good and sufficient bond, conditioned that he would within three years cause to be installed and constructed on said proposed plat, without expense to the city, the improvements which are set forth in said ordinance, and which are as follows: Grade and gravel the streets; put in surface drains; lay sidewalk, and install sanitary sewers.

On November 5, 1919, a copy of said reasons was served on plaintiff, as appears by his affidavit for-the writ of certiorari. On November 6, 1919, the plat was presented to the defendants, composing the Oakland county plat board, for approval, but such plat was disapproved for the following, among other, reasons:

(1) Because said plat and map had not the approval of the commission of the city of Pontiac, as provided by the statute above referred to.

(3) Because the commission of the city of Pontiac had refused to approve the plat for the reason that the proprietor thereof had not complied with the ordinance of the city, with reference to the adoption and approval of plats as- hereinafter set forth, and that a copy of the reasons of said board in refusing to approve said plat was by it served on said Allen, on November 6, 1919.

At the time the plat was presented to the commission of the city of Pontiac for approval, the said ordinance, as hereinafter set forth, was in full force and effect. The city of Pontiac, at the time in question, had been organized-under the home-rule act, and had adopted a commission form of government. The “general welfare” clause of the charter of the city of Pontiac reads as follows:

“Section 21, chapter VII. The commission may exercise all municipal powers necessary, or which may be deemed expedient, for the complete and efficient management and control of the municipal property and the administration of the municipal government and necessary or expedient to maintain the public peace, morals and good order, protect persons and property and promote the general .welfare and preserve the health pf the inhabitants of the city, whether such powers be expressly enumerated herein or not; may do any act to advance the interest of the city; the good government and prosperity of the municipality and its inhabitants, may enact all laws and ordinances relating to its municipal concerns; and shall have and exercise all governmental and police powers, subject to the limitations prescribed by this charter, the Constitution and laws of the State and of the United States.”

Under section 13, chapter 14, of the city charter, the city has authority to require owners of property to build sidewalks.

Under section 16, chapter 15, of the charter, the city may enact such ordinances as may be necessary for the protection and control of the sewers and drains, and to carry into effect the powers herein conferred.

The relevant ordinance of the city is as follows:

“Proposed Plats or Subdivisions to Have Certain Improvements.
“Section 1. That hereafter no plat or subdivision shall be accepted or approved by the commission of the city of Pontiac, Michigan, until the owner or owners of such proposed plat or subdivision shall have caused the improvements hereinafter enumerated to have been made thereon without expense to said city, except as hereinafter provided.
“Streets to be Graded.
“Section 2. All streets shall be graded and covered with at least six inches of suitable gravel at least 16 feet wide, subject to the approval 'of the commissioner of public improvements.
“Surface Drains to be Installed.
“Section 3. Surface drains with suitable catch basins and manholes shall be constructed and laid in all streets, the size and kind of crock and the method of installation shall be subject to the approval of the commissioner of public improvements. .
“Cement Sidewalks to be Constructed.
“Section 4. Cement sidewalks at least five feet in width shall be constructed on both sides of all streets. All sidewalks shall be built in accordance with the specifications for the construction of cement sidewalks on file in the office of the city engineer of said city and shall be laid on the grades established by the city engineer and shall all be subject to the approval of the commissioner of public utilities.
“Sanitary Sewers to be Installed.
“Section 5. Sanitary sewers with the necessary lampholes and manholes shall be laid in all streets with connections extending from the same to the curb line on both sides of such street; at least one connection to every fifty feet of frontage, and at least one connection to each lot frontage if less than fifty feet on each side of all streets. The size and kind of crock and the method of installation shall be subject to the approval of the commissioner of public improvements. “Grade of Streets and Sidewalks to be Determined by the Commissioner of Public Improvements.
“Section 6. The grade of all streets and of all sidewalks and the depth of all sanitary sewers and surface drains shall be determined by the commissioner of public improvements and the commissioner of public utilities, before such improvements shall be installed, so that the same may conform wherever necessary to like improvements on property adjoining said plat or subdivision.
“Bond May be Filed Guaranteeing That Improvements Will be Made.
(Section 7 as amended July 3, 1916.)
“Section 7. Provided the commission of the city of Pontiac, Michigan, may accept and approve of the proposed plat or subdivision, without the installation and construction required in sections two, three, four, five and six; provided the owner or owners of such proposed plat or subdivision shall file with the city commission a good and sufficient surety or personal bond to be approved by said commission conditioned that the owner or owners of such property platted or subdivided will within three years from the date of such bond cause to be installed and constructed on said proposed plat-or subdivision without expense to said city all of said improvements as provided for in sections two, three, four, five and six of said ordinance. The amount of said bond to equal at least the amount of the city engineer’s estimate of the cost of installation and construction of all of said improvements on said proposed plat or subdivision. If a personal bond is given, the surety or sureties thereto shall justify thereon, under oath, their financial responsibility to the amount of said bond.
“This ordinance shall take effect thirty days after its final passage and publication.
“Section 8. An ordinance made and passed May 16, 1910, entitled, ‘An ordinance regulating the adoption and approval of plats in the city of Pontiac’ is hereby repealed.
“Section 9. This ordinance shall take effect thirty days from and after the date of its final passage.
“Made and passed by the commission of the city of Pontiac, Michigan, on this 1st day of May, 1916.”

The return of the learned circuit judge to the writ of certiorari, after denying that the plat in question complied with the statute, states: -

“On the hearing of the petition for a mandamus before me to compel the plat board of Oakland county to approve the plat in question, it appeared that the said plat had no certificate of approval by the commission of the city of Pontiac, Michigan, wherein the land included in said plat was situated, as provided, by said Act No. 251, Public Acts 1915.
“It also appeared that when said plat was presented; to the commission of the city of Pontiac, Michigan, for approval, such approval was refused because the improvements specified in an ordinance made and passed by the commission of the city of Pontiac, on May 1, 1916, had not been made on the streets in said plat, and that the proprietor of said plat, said Edwin T. Allen, had not filed with said commission a bond with sufficient sureties thereto, conditioned that he would within three years cause to be installed and constructed on said plat, without expense to the city, the improvements which are set forth in the ordinance, and which are as follows:
“Grade and gravel the streets; put in surface drains; lay sidewalks, and install sanitary sewers. That at said time the said ordinance was in full force and effect. That the commission of the city, within five days after its refusal to approve the plat, caused to be served on said Edwin T. Allen, a written statement of its reasons for refusing to approve the plat, in accordance with the plat act. * * *
“I certify that for said reasons the peremptory writ of- mandamus was denied, as appears by my order thereon.”

The order referred to is the order denying the writ of mandamus herein, with-costs to the defendants.

In the brief of the plaintiff the case of Campau v. Board of Auditors, 198 Mich. 468, is cited in support of his claim. A reference to the record in that case will disclose that the township board there had approved the plat. It is true that it refused so to do in the first instance, but by a prior mandamus proceeding the approval had been ordered by the court, and made by the board. The case is not very pertinent to the question here involved. A case more in point is that of Klug v. Auditor General, 194 Mich. 41. In that case the facts were that the plat had been approved by the town board of Hamtramck, and then, without being presented to the board of auditors of Wayne county, was presented to the auditor general for approval, and his action refusing approval was sustained by this court.

. It is expressly provided by section 3350. 1 Comp. Laws 1915, as follows:

“And before such map or plat shall be approved by the auditor general, and before such, map or plat shall be recorded by the register of deeds, the proprietor or proprietors thereof shall cause to be attached to said map or plat a certificate of approval from the township board, * * * or the board of commissioners in municipalities having a commission form of government.” * * *

As we said in the Klug Case:

“The only reasonable construction to give the statute is that it was rather the legislative intention to have all plats subjected to the same measure of scrutiny and investigation.”

Should the city commission unreasonably or unlawfully refuse to approve, that body could be moved by mandamus, as was the township board in the Campan Case.

The commission of the city had ample authority to make and enact the platting ordinance herein set forth. A careful examination of the ordinance in question satisfies us that it is a reasonable regulation, a reasonable exercise of municipal and police power under the charter and statute, and'that the same should be sustained and complied with.

In our opinion the reasons given by the learned circuit judge for the refusal of the writ of mandamus were valid,' and the judgment of the circuit court should be and is affirmed, with costs.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.