text:
    GOLDSMITH v. LICHTENBERG.
    1, Appeal and Error. — Bill op Exceptions — Essentials.
    Where the error assigned is the direction of a verdict, the bill of ■ exceptions should contain the substance, at least, of all the testimony.

      H. Payment — Discharge op Debt — Action.
    The retention and use of a check accompanied by a letter stating that it is in full of a certain account does not preclude action for a balance in fact due.
    Error to Wayne; Donovan J.
    Submitted January 19, 1905.
    (Docket No. 86.)
    Decided February 27, 1905.
    Assumpsit by William E. Goldsmith against F. William Lichtenberg and Christian J. Lichtenberg, copartners as Lichtenberg & Sons, for goods sold and delivered. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      E. M. Vining and Lehmann & Riggs, for appellant.

      Bowen, Douglas, Whitney & Murfin, for appellees.
   Ostrander, J.

The bill of exceptions in this case leaves something to be desired. It is certified that it contains all the testimony taken bearing upon or material -to any of the assignments of error. No witness except the plaintiff was sworn. A verdict for defendants was directed, and the substantial error assigned in this order and direction of the court.

In such cases it is usual, and, indeed, generally necessary, to incorporate in the bill of exceptions the substance, at least, of all the testimony, since error is not presumed, but must be made affirmatively to appear. But the record sets out so much of the discussion indulged in upon the trial and so much of the testimony that with the charge given by the learned trial judge no doubt remains concerning the precise question upon which the case turned or the ground of the ruling made by the court. The court held, and counsel for plaintiff challenge and counsel for defendants support the ruling, that the case is ruled by Tanner v. Merrill, 108 Mich. 58 (31 L. R. A. 171); Kern Brewing Co. v. Insurance Co., 127 Mich. 39; Wheeler v. Baker, 132 Mich. 507, and like cases.

The foundation for this ruling is the retaining and cashing of a check sent by defendants to plaintiff on January 9, 1901, in a letter which reads as follows:

“Inclosed please find statement and check for $556.22, an amount in full for a car of potatoes. As we informed you, this car was rejected at Indianapolis by the party, Mr. Sheidle, to whom it had been sent. The writer went down to Indianapolis to resell it, and we just received statement for same; it was resold to Mr. Newman.”

The statement inclosed with this letter seems to have been an account of expenses, switching charges, and shortages. The testimony of the plaintiff tends to show a sale to defendants on track at Canton, Mich., of a certain quantity of potatoes at an agreed price per bushel, the billing of the car and potatoes by defendants’ orders to Indianapolis, a claim made by defendants, after such shipment, that the potatoes were handled by them on commission, demand of payment, and refusal to pay until the potatoes were sold, followed later by the letter and remittance already referred to. Plaintiff testified, also, that upon receiving the check he telephoned defendants that he would accept it as part payment, and demanded the balance due him. He testified further that, after receiving the check, when he demanded payment of the balance claimed by him to be due, defendants, or one of them, told him he would get no more; that defendants still owed him something more than $100. The record therefore shows, and this is confirmed by the briefs of counsel, that plaintiff claimed to have made an absolute sale of the potatoes to defendants. Defendants claimed that the potatoes were handled on commission. It was held by this court in Peter v. Thickstun, 51 Mich. 589, that where a check had written upon its face the words, “Payment in full for shingles shipped to me in cars,” fete., and was received and indorsed by defendant and cashed, it would not be given the effect of a receipt in full; but that the party receiving it had a reasonable time to make objections to the account in payment of which the check was sent. So, also, Mortlock v. Williams, 76 Mich. 568. If there was a sale as claimed by the plaintiff, defendants owed him for 901f bushels of potatoes at 75 cents per bushel. Defendants, on the other hand, had remitted the money to plaintiff upon the theory of their agency. That plaintiff ever accepted the check or the money as payment in full, or held it without protest for an unreasonable time, is negatived. It has been repeatedly held that a new and valuable consideration is required to support the agreement of a creditor to accept from his debtor as payment in full a sum less than that admitted to be owing. Fire Insurance Ass’n v. Wickham, 141 U. S. 564; Leeson v. Anderson, 99 Mich. 247. The decisions of this court, relied upon by defendants in error, hold that, when the amount of the demand is disputed and unliquidated, but it is agreed to accept in full a smaller sum than is demanded, payment according to such agreement discharges the debt, even when a part of the agreement is to liquidate or agree to the amount actually owing. But an agreement to pay and to accept a particular sum in full of the debt, followed by payment and acceptance of the sum agreed upon, have always been, in such cases, essential and controlling facts. In Tanner v. Merrill a receipt in full was given, and no money was paid until after an agreement was reached to give such receipt — to settle. In Kern Brewing Co. v. Insurance Co. plaintiff accepted a draft and signed a receipt in full, the giving of the receipt being a condition to the payment of the money, and the whole transaction amounting to an agreement to pay and to accept the sum actually paid. In Wheeler v. Baker a stated sum was agreed to be paid and accepted, and wás paid and accepted, in full settlement. There is in this record nothing showing or tending to show any agreement in fact between the parties on the one side to pay, on the other to receive, the sum of money which was paid in settlement.

Judgment is reversed, with costs, and a new trial granted.

McAlvay, Grant, Blair, and Montgomery, JJ.„ concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    LAMB v. LAMB.
    1. Boundaries — Actual Location — Agreement for Survey — Question for Jury.
    On an issue as to the location of a boundary line, evidence examined and held, that it was a question for the jury whether plaintiff had agreed, before he had occupied up to the actual boundary for more than -15 years, to have the line fixed by a survey.
    2. Same — Instructions.
    In ejectment, involving the location of a boundary line, the evidence was conflicting as to whether plaintiff had agreed with defendant, at a time before plaintiff had occupied up to the fence for more than 15 years, that the line should be fixed by a survey; and the court charged that unless the jury found that the land claimed by plaintiff was occupied up to the fence, as a line claimed by plaintiff’s grantors and defendant, for more than 15 years, and that there was no agreement that the fence was maintained at any other place than the true line, the line would not be fixed by adverse possession. Held, that the instruction could not have been misunderstood,, and was sufficiently favorable to defendant.
    3. .Same — Oral Agreement for Survey — Statute of Frauds.
    Where one occupied up to a certain boundary line under a claim of ownership for more than 15 years, an oral agreement to have the line surveyed could not affect his title up to the line to which occupation was had.

      4. Ejectment — Ouster—Pleading.
    In ejectment, involving the location of a boundary line, the plea alleged an agreement to fix a.boundary line, and that defendant, in reliance on the agreement, entered on the lands occupied by the owner of the lands described in the declaration, for the purpose of erecting a fence on the boundary line as located by the survey. Held, that plaintiff had a right to treat such entry under claim of right as an ouster and that an objection that the evidence failed to show an ouster was not available to defendant.
    5. Acknowledgments — Certieicate—Authority oe Notary.
    Where the caption of an acknowledgment showed that it was taken in the county of Calhoun, State of Michigan, and the notary’s name was followed by the words, “Notary Public in and for Eaton Co.,” it was not objectionable on the ground that it did not show that the notary was one for Eaton county, Mich.
    6. Same.
    Under the statute, a notary public of one county may take acknowledgments in another.
    7. Tenancy in Common — Recovery by One Against Stranger.
    Though the deed to plaintiff in ejectment from several tenants in common was not properly executed by some of them, he was, as against defendant, who had no interest, entitled to recover th© entire premises, under Act No. 55, Pub. Acts 1903.
    Error to Calhoun; Hopkins, J.
    Submitted January 19, 1905.
    (Docket No. 78.)
    Decided February 27, 1905.
    Ejectment by Charles R. Lamb against Sanford Lamb. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      John O. Patterson and Harley J. Oortright, for appellant.

      Hatch & Page, for appellee.
   Montgomery, J.

This is an action of ejectment to recover a strip of land claimed by plaintiff to be a portion of his farm, adjoining defendant’s land; the defendant claiming that the land in dispute in fact belongs to his farm. The dispute is determined when the true boundary line is ascertained. The jury found for plaintiff, and defendant brings the case here; alleging error committed in rulings in relation to the admissibility of evidence, in the charge as given, and in the court’s refusal to direct a verdict.

The testimony shows that as early as 1859 to 1861 (the precise date is not fixed) the defendant and plaintiff’s predecessor in title, Mrs. -Snyder, joined in building a fence, and that there was no dispute about that fence being on the line until 1894. That fence still remains. From the time of its construction up to the date of the controversy, at some date after 1894, the two parties occupied up to the line of this fence, and remained in undisturbed possession. Moses Moist succeeded to the title of Mrs. Snyder, and continued to occupy and cultivate up to this line, and remained in undisturbed possession until his death. The defendant was permitted to testify that he had an agreement with Moist that the line should be established by a survey, and it is therefore argued that the possession of Moist was riot adverse. The defendant does not fix the time of this alleged agreement with Moist, but in view of his statement in another place, “Until 1894 there wasn’t any dispute about that being the line, not until Moist got it,” it is manifest that it was a question for the jury as to whether the agreement, if any, was made at a date which would color the possession of plaintiff’s predecessors during the time the statute of limitations was claimed to be running. There is no doubt as to the character of the occupancy, except such as arises out of the claim of an agreement which characterized the possession of plaintiff’s grantors. The circuit judge charged, in substance, that unless the jury found that the land now claimed by plaintiff was occupied up to this fence, as a line claimed by plaintiff’s grantors and defendant, for more than 15 years, and should also find that there was no agreement that the fence was maintained at any other place than the true line, the line would not be fixed by adverse possession. This instruction could not have been misunderstood by the jury, and was sufficiently favorable to the defendant.

In what we have said, we must not be understood as affirming the admissibility of the defendant’s testimony in this case as against the objection of plaintiff’s attorney that it should be excluded under the statute (section 10212, 3 Comp. Laws). What we hold is that, assuming his testimony to be competent, the construction' of the evidence as a whole was for the jury, and left it open for the jury to find that there had been an occupancy under a claim of ownership up to this line for more than 15 years before any question was raised by defendant. If this was the fact, something more than an agreement to have a survey made would be necessary, to divert the title of plaintiff’s grantors. Burns v. Martin, 45 Mich. 25.

It is claimed that the evidence fails to show an ouster by defendant, and that the action cannot be maintained for this reason. We do not think this objection open to the defendant under the pleadings. In some jurisdictions the plea of not guilty admits possession by the defendant. 7 Enc. PI. & Prac. 341. While this may not be the effect of a plea of general issue under our practice, yet it is settled by our decision in Carpenter v. Carpenter, 119 Mich. 167, that an ouster may be admitted by the pleadings. The pleadings will be scanned to ascertain whether the plea admits or assumes the defendant’s possession. In this case the plea sets out an agreement to fix a boundary line which should thereafter remain the permanent boundary line between the parties, and states that defendant, relying upon said agreement, did enter upon the lands occupied by the owner of the lands described in the plaintiff’s declaration for the purpose of erecting a fence upon the boundary line between the said lands and the lands owned by defendant, as located by said survey, as he lawfully might do. There was evidence of an attempt to construct a fence on a new line by defendant. Plaintiff had the right to treat this as an ouster. The plea makes it manifest that defendant’s entry was under a claim of right. See 21 Am. & Eng. Enc. Law (2d Ed.), p. 1018; 6 Am. & Eng. Enc. Law, p. 245.

It is next claimed that plaintiff failed in proving title to-himself. Plaintiff offered a certified copy of a deed from the heirs of Moses Moist, with the following acknowledgment:

“ State of Michigan, County of Calhoun — ss. :
“ On this third day of December, in the year one thousand nine hundred and one before me, a Notary Public in and for Eaton County, personally appeared William H. Moist, Margaret C. Moist, Harvey Moist, Adaline B. Moist, Margaret Kinder, Ella G. Moist, Isabelle Phillips, Mary A. Cortwright, Lucinda De Peel, to me known to be the same persons described in and who executed the within instrument, who severally acknowledged the same to be their free act and deed.
“Isaac N. Gilman,
“ Notary Public in and for Eaton Co.”

This was objected to for the reason that the certificate does not' show that the notary was a notary public for Eaton county, Mich. Under the statute, a notary public of one county may take acknowledgments in another. He is, in effect, a notary of such other county for the occasion. This certificate indicates that in Calhoun county, Mich., one assuming to act as a notary public took this acknowledgment. If he had subscribed his name as notary public, it would have been sufficient. Smith v. Runnells, 94 Mich. 617; Wright v. Wilson, 17 Mich. 199.

It is next objected that, as to certain heirs named in the deed, they assumed to act by attorney, whose powers were not shown to be broad enough to authorize the conveyance. If this be granted, the conveyance was good as to some of the grantors, and the objection is rendered unavailing by Act No. 55, Pub. Acts 1903.

The rulings in admitting testimony and in rejecting offered testimony have been fully considered, and no error is found. The case was fairly presented to the jury, an apparently just verdict rendered, and the judgment is affirmed.

McAlvay, Grant, Blair, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    SHALLER v. DETROIT UNITED RAILWAY.
    Trial — Instructions—Duties of Jury.
    Where the jury had had some experience in court during the term at which the case was tried, and could be presumed to know that no juror should find a verdict not based on his own convictions, derived from the whole case, and the court charged them to engage in no discussion that would tend to prevent their agreeing, consider the -evidence and the facts, and reach a verdict, if they could, such as should thereafter satisfy their individual consciences, it was not error to refuse a request that it was the duty of the jury to consider the testimony, and to reconcile their opinions if able to do so, but that no individual was required to surrender his individual opinion.
    Error to Oakland; Smith, J.
    Submitted January 19, 1905.
    (Docket No. 73.)
    Decided February 27, 1905.
    Case by John Shaller against the Detroit United Railway for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark and James H. Lynch, for appellant.

      Abbott & Abbott and Lehmann & Biggs, for appellee.
   Ostrander, J.

In this case a single error is assigned by the defendant, appellant. It is based upon the refusal of the circuit judge to charge the jury, as requested, that:

In this case it is the duty of the jury to consider the 'testimony, and, in cases of difference of opinion, to reconcile such differences, if they are able to do s.o. But in order to do so, no individual is required to surrender his individual opinion, and this is as true as to the amount of damages as well as any other question.”

The acti'on is for damages for personal injuries arising out of the negligence of the defendant company. Liability of defendant was conceded, and no proofs were introduced by it as to the character or extent of the injuries. The testimony on the part of plaintiff tended to show a collision October 31, 1902, of cars, upon one of which he was a passenger, by which he was thrown from his seat, injuring his hip and ankle; that the injury to his ankle was continuing; that he suffered more or less pain, and that he could not use the ankle as he used to do. The ankle was exhibited to the jury, and medical men gave testimony concerning the nature and extent of the injuries. The jury were limited to consideration of an award for past and future pain and suffering. They returned a verdict for $725. The circuit judge concluded his charge with the following:

“ Take the case, and take your own time for considering it, no matter how much time is required. Engage in no discussion that will tend to prevent your agreeing; consider the evidence and all the facts, and reach a verdict, if you can, such as shall hereafter satisfy your individual consciences, and the court will be satisfied.”

It appears from statements made by the court in his charge that this jury had served some time during the term at which this case was tried.

It is undoubtedly true that “ no juror should find a verdict which is not based on his own convictions, derived from the whole case.” It is a reasonable presumption that jurors, especially after some experience in court, know this. We think that the trial judge fairly cautioned the jury in what he said to them upon this point, and that the refusal to give the more pointed and suggestive request preferred on the part of defendant is not such manifest error as ought to reverse the judgment.

It is therefore affirmed, with costs.

McAlvay, Grant, Blair, and Montgomery, JJ., concurred.


author: Grant, J. Per Curiam.

text:
    CONROY v. DETROIT UNITED RAILWAY.
    , Carriers — Injuries to Passengers — Street Railroads — Sudden Jerks — Evidence.
    Where plaintiff, a passenger on an open street car, arose as the car was approaching his destination, and stood with one foot on the platform and the other on the car step, with his hand on the rail, and, as the car stopped with a sudden jerk, he was thrown to the ground and injured, he was not entitled to recover, in the absence of evidence as to the cause of the jerk.
    ON MOTION FOR REHEARING.
    Carriers — Injuries to Passengers — Street Railroads — Sudden Jerks — Evidence—Sufficiency.
    In an action against a street-railway company for injuries to a passenger caused by the stopping of the car by a sudden jerk, testimony that the jerk was caused by the sudden application of the brake, from witnesses who failed to testify that they saw the motorman apply the brake, but inferred the cause from what happened, was insufficient to show the cause of the jerk, or that the application of the brake was negligently made.
    Error to Wayne; Donovan, J.
    Submitted January 19, 1905.
    (Docket No. 88.)
    Decided February 27, 1905.
    Rehearing denied July 21, 1905.
    Case by Joseph Conroy against the Detroit United Railway for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.
    Plaintiff, a resident of Detroit, was returning to his home one evening about 10 o’clock on a car of the defendant. He had informed the conductor where he desired to alight. The car was an open one, with seats running across, and steps on each side. When near the middle of the block, the signal, by ringing the bell, was given by the conductor for a stop at the next cross street, where plaintiff was to alight. Immediately upon ringing the bell, the plaintiff arose, went to the edge of the car, put one foot on the step, the other on the platform, and his hand on the rail. While in that position there was a sudden jerk of the car, which plaintiff claims threw him from the car, in consequence of which he received an injury. The court directed a verdict for the defendant.

      Lehmann & Biggs, for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
   Grant, J.

The circuit judge, in directing a verdict, held that the case was ruled by Etson v. Railway Co., 110 Mich. 494, as no one pretended to know what was the cause of the jerk which caused the plaintiff’s fall. The ruling was correct. See, also, Bradley v. Railway Co., 94 Mich. 35. The cause of the jerk in this case is as problematical as it was in either of those above cited. It is common knowledge that, in order to serve the public, street cars must be started and stopped with some celerity, the tendency of which is to throw one when standing. It was entirely unnecessary for the plaintiff to leave his seat, and stand with one foot upon the running board, when the car was running at full speed# He had ample time to arise and alight after the car stopped. Whether this action on his part was negligence, we find it unnecessary to determine.

Judgment affirmed.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.

ON MOTION FOR REHEARING.

Per Curiam.

A rehearing is asked in this case mainly because the court erred in holding that the cause of the jerk which caused the plaintiff to fall was as problematical as it was in the case of Etson v. Railway Co., 110 Mich. 494. In that case the car had nearly stopped between the two crossings, then gave a sudden jerk, and suddenly went ahead again, in consequence of which plaintiff was thrown from the platform. The only difference between the two cases is that one was a jerk after the car had nearly stopped, the other was a jerk when the car was being stopped for the next crossing. If it may fairly be inferred that the jerk was caused by the application of the brake, it might have been inferred in the other case that it was caused by the removal of the brake and the application of the electric current. In either case it is not evidence of negligence, for the reasons stated in the opinion in the Etson Case, and also in the opinion in this case.

The witness Woodworth, on whose testimony counsel for plaintiff mainly relies for the statement that the jerk was caused by the sudden application of the brakes, did not testify that he saw the motorman apply the brake; and, from his sitting position in the rear of the car, it is very doubtful if he could. On his cross-examination he testified that he did not see the motorman reverse the car.

' “ I do not know whether he did reverse it or not.
“Q. So that on this car you had a jolt when it was reversed ?
“A. It might have been; yes, sir.”

Plaintiff testified that the car had slackened a little when he put his foot down, and that, when the motorman put on the brake full force, “the car raised off the track.” He did not see the motorman, and evidently could not tell what caused the sudden jerk and raising of the car. He inferred the cause solely from what happened, and not from what he saw. If, however, it be conceded that the car was suddenly stopped by the application of the brake, there is nothing to indicate that it was done in a negligent manner.

Rehearing denied.


author: Grant, J.

text:
    LAFFERTY v. LAFFERTY.
    Attachment — Levy—Abandonment—What Constitutes.
    Pending a suit at law, in which defendant’s land was attached, defendant died, and the suit was revived against his administrator. Judgment was entered for plaintiff. An execution was issued, and levy made on the land. Subsequently the property was released from the levy, the execution returned unsatisfied, and plaintiff proved his claim in the probate court against defendant’s estate as an absolute claim, without anything to indicate an intention to retain his lien. Over a year afterwards, the estate proving insolvent, the probate court certified the judgment back to the circuit, and plaintiff filed a bill in aid of execution to reach the land originally attached. Held, that the release of the levy amounted to an abandonment of the attachment levy placing plaintiff in the list of general creditors.
    Appeal from Wayne; Hosmer, J.
    Submitted January 19, 1905.
    (Docket No. 75.)
    Decided February 27, 1905.
    Bill in aid of execution by Edward Lafferty against Sophia Lafferty and others. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    The bill in this case was tiled in aid of an execution. Complainant brought suit at law against one Peter Lafferty, and attached the land described in the bill. Peter Lafferty died while suit was pending. An administrator was appointed, and the suit revived against him. On May 14, 1902, judgment was entered for the plaintiff, the complainant here. On July 11, 1902, an execution was issued, and levy made upon this land.
    On September Í2th the writ was returned with the following indorsed thereon by the sheriff:
    “At direction of plaintiff’sattorney, I have this day released the property levied upon July 11th, A. D. 1902, under the within execution and hereby return the same unsatisfied.”
    On the same day the judgment obtained by the complainant was duly certified to the probate court. The estate of Mr. Lafferty was insolvent, and on July 6, 1903, the probate court certified said judgment back to the circuit court, certifying that the estate was closed, the final account allowed; that the estate was insolvent; and that no part of complainant’s judgment had been paid. On July 13, 1903, upon filing the above certificate of the probate court, the circuit court entered an order that the complainant (the plaintiff there) have execution of said judgment. A second writ of execution was issued, and a second levy made, after which this bill was filed. Mr. Peter Lafferty and his wife, defendant Sophia, had conveyed these lands to their sons, Richard and Grant, which deed, it is claimed, is void as to creditors. The case was heard upon pleadings and proofs, and the bill dismissed, for the reason that, in the opinion of the court below, the return by the sheriff, the release of the execution levy, and the proving of the judgment in the probate court, released the attachment.

      Dwight G. Bexford, for complainant.

      John E. Moloney, for defendants.
   Grant, J.

(after stating the facts). If the reason given by the court below for its decision is sound, there is no occasion to discuss the other questions raised by the record. Complainant contends that the abandonment is largely a question of intent; that complainant’s attorney in the suit at law testified, that, in ordering the execution returned and the levy discharged, he did not intend to release the lien of the attachment. Secret intent will not control where the acts clearly show the opposite intent. The plaintiff in the attachment suit evidently proceeded under 3 Comp. Laws, § 9425, which gave the power to the plaintiff to proceed to judgment after the death of the defendant by reviving the suit against the administrator. Smith v. Jones, 35 Mich. 281.

After taking judgment, three courses were open to him:

1. He could levy and sell, then prove the deficiency realized from the sale against the estate.
2. He could present a contingent claim against the estate, in which event he would be compelled to realize from his security first, and then proceed against the estate for the residue.
3. He could abandon his lien and levy upon the real estate, and present the judgment for allowance against the estate, in which case he would take his chances with other creditors, and receive his pro rata of the entire estate.

He took the third course. Under his contention he would be entitled to share pro rata with the other creditors on the full amount of his claim, and then have his lien left to apply upon the payment of the residue. This course would give him an unfair advantage over other creditors, contrary to Aldrich v. Annin, 54 Mich. 230. After the levy the chief purpose of the attachment had been accomplished, viz., to secure and preserve a lien until a levy could be made. After the levy the only function left for the attachment to perform was to fix the date from which the title which the attaching creditor might acquire by sale should run.

It is unnecessary to determine whether the attachment was merged in the levy. We think it clear that the release and return of the levy by the direction of the complainant, his proving the claim against the estate, not as a contingent claim, but as an absolute claim, unsecured, without anything to indicate his intention to retain his lien, and the continuance of that condition for more than a year, amounted to an abandonment of the attachment levy, and placed him in the list of general creditors. Butler v. White, 25 Minn. 432; McConnell v. Denham, 72 Iowa, 494.

“ An attaching creditor * * * may waive by delay, by conduct- which indicates an abandonment, of his rights, by claiming benefits, or by prosecuting other judicial proceedings which are inconsistent with the continuation of the attachment.” i Cyc. 630.

Counsel for complainant cite Merchants’ Nat. Bank v. Greenhood, 16 Mont. 395. The facts in that case afford a sound basis for the language of the court in regard to abandonment, but are in no wise the parallel of the facts in this. Immediately after the return of the execution in that case unsatisfied the plaintiff filed a bill in equity to sustain his rights by virtue of the attachment levy, and the court say:

Instead of abandoning the attachment in fact, the respondent at once came into the court of equity to render more completely available its attachment lien.”

The case was submitted and argued in the court below and is argued here upon the theory that it was necessary to preserve the attachment lien as a basis for the second levy. We have therefore disposed of the case upon that basis.

The decree is affirmed, with costs.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Per Curiam.

text:
    SHERMAN v. SHERMAN.
    1. Appeal and Error —Chancery Practice — Premature ApPEAL.
    A claim of appeál and filing bond prior to the settlement of a chancery case is irregular.
    2. Same — Motion to Dismiss — Waiver of Defect.
    By taking no steps to procure dismissal of a premature appeal, until after appellant moves for further time for settlement of the case, appellee, who had full knowledge of the facts, waives the irregularity.
    3. Same — Failure to File Record — Dismissal.
    Failure to file the record below within 40 days after filing a bond merely having effect to stay proceedings, does not require dismissal of the appeal. Supreme Court Rules 8 and 15. Act No. 243, Pub. Acts 1899.
    4. Same — Extension of Time to Settle Case.
    Where complainant is an old man and files bis bill to set aside a deed given in consideration of life support, which he alleges he has not received, an extension of time to defendant to settle his case on appeal will be conditioned on payment of a reasonable sum per month for complainant’s support.
    Bill by John Sherman against John Carr Sherman to set aside a deed. From a decree for complainant, defendant appeals: On motion by defendant for an extension of time to perfect an appeal, and motion by complainant to dismiss said appeal.
    (Calendar No. 20,995.)
    Submitted January 24, 1905.
    Decided February 27, 1905.

      Person & Person, for complainant.

      Arthur J. Tuttle, for defendant.
   Per Curiam.

The decree in the above-entitled cause was entered by the circuit court for the county of Ingham, in chancery, on the 11th day of October, 1904. The testimony in the suit was taken in open court. The defendant* John Carr Sherman, filed his claim of appeal in said cause on the 3d day of November, 1904, served the same, and filed his bond on appeal, duly approved' by the court, on the 14th day of November, 1904. Soon after the entry of the decree, the defendant applied to the court stenographer for a transcript of the testimony taken in the case, for the purpose of settling the case for appeal. He also paid to the stenographer his fees for transcribing his minutes of the testimony, but, owing to his official duties, the stenographer has been unable to furnish the transcript until late in January, 1905, and after the motions hereinafter referred to. The circuit judge extended the time for a settlement of the case from time to time until the 1st day of 'February, 1905. The defendant, being unable to settle his ■case before the court within the statutory period, filed a motion in this court on January 16, 1905, for an order extending the time to make and settle the case for review in this court. On the 23d of January, 1905, the complainant filed his motion in this court to dismiss the defendant’s appeal for the reasons that said appeal was prematurely taken, and that the appellant had failed to file the record ■and proceedings in the court below within 40 days after the filing and approval of the appeal bond, in violation of Rules 8 and 15 of this court.

The showing made by the defendant unquestionably entitles him to an order extending the time for the settlement of the case for review, unless the appeal must be dismissed upon complainant’s motion. We do not think that, under the circumstances of this case, complainant’s motion should be granted. The practice pursued by defendant in claiming his appeal and filing his bond prior to the settlement of the case was irregular. Complainant knew, however, that defendant was. proceeding in good faith, and with the utmost diligence, to procure the testimony for settlement of the ease, and that he was obtaining orders from the court extending the time for that purpose. Complainant, knowingof such orders, and permitting them to be entered, and taking no steps to procure the dismissal of the appeal until defendant made his motion for an extension of time, must be deemed to have waived the right to complain on the ground that the appeal was premature.

Under the provisions of Act No. 243 of the Public Acts of 1899, the motion to dismiss the appeal on the second ground is not well founded. If a bond is required, except to stay proceedings, such bond is not required till after the settlement of the case, and where orders have been regularly entered extending the time for settlement of the case, and the appeal may be perfected later on, it would not be proper to dismiss the appeal because no return has been made after the filing of a bond, which, under the statute, has the effect of staying proceedings merely.

We feel inclined, however, in view of the fact that the complainant is a very old man, and his bill of complaint is founded upon the failure of defendant to furnish him with, proper support and maintenance in accordance with the written agreement in pursuance of which he conveyed all of his property to the defendant, to grant defendant’s application for an extension of time to settle the case, upon condition that he pay to the complainant for his support and maintenance during the pendency of the appeal the sum of $40 per month from and after the 1st day of February, 1905, and that he give security that he will continue so to do; such security to be approved by the circuit judge. Upon this condition an order will be entered granting an extension of 60 days from and after the 10th day of February, 1905, in which to settle the case on appeal, and the complainant’s motion will be denied.


author: Carpenter, J.

text:
    SCHELLENBER v. FRANK.
    1. Landlord and Tenant — Summary Proceedings — Recovery on Bond — Election.
    By bringing suit on the appeal bond given by defendant in summary proceedings for .the possession of leased premises, complainant elects his remedy and cannot afterwards maintain suit in trespass for treble damages under section 24, chap. 308, 3 Comp. Laws, though certain items of damages recoverable under the statute are not recoverable in suit on the bond.
    2. Same — Constitutionality oe Statute.
    Section 25, chap. 308, 3 Comp. Laws, providing for an election of remedies, is constitutional, since it merely prescribes the conditions under which a landlord may pursue the statutory remedy.
    3. Same — Single Damages.
    Where plaintiff has sued on the bond pursuant to section 25, he can recover neither single nor treble damages under section 24.
    Error to Wayne; Rohnert, J.
    Submitted February 8, 1905.
    (Docket No. 102.)
    Decided February 27, 1905.
    Trespass quare clausum fregit by Harry L. Shellenberg and another against Max Frank. There was judgment for defendant on a verdict directed by the court, and plaintiffs bring error.
    Affirmed.

      Fred H. Warren, for appellants.

      Adolph Sloman (A. J. GroesbecJc, of counsel), for appellee.
   Carpenter, J.

Plaintiffs, owners of a house in the city of Detroit, leased the same to defendant. Defendant not yielding possession at the expiration of his tenancy, proceedings to obtain possession under chapter 308, 3 Comp. Laws, were instituted by plaintiffs. Plaintiffs obtained judgment of restitution before a circuit court commissioner. Defendant appealed from this judgment to the circuit court. The trial in that court also resulted in a judgment for plaintiffs. Suit was then brought against defendant and his sureties on the statutory bond which defendant had filed to obtain his appeal. In that suit plaintiffs recovered a judgment for the rental value of the premises up to the time of the rendition of judgment of restitution in the circuit court. That judgment was satisfied. Plaintiffs then instituted this suit in trespass to recover treble damages, under section 24 of said chapter 308 of the Compiled Laws of 1897. The items for which plaintiffs demand compensation in this suit are the rental value of the property during the time the same remained vacant after said judgment of restitution, and certain damages to the house while defendant occupied it. The trial court directed a verdict for defendant. From the judgment on said verdict, plaintiffs appeal to this court.

The trial court directed a verdict upon the ground that their former suit on the appeal bond prevented plaintiffs from maintaining this suit. The correctness of this decision, which is challenged by plaintiffs, depends upon the construction and constitutionality of the following portion of section 25 of said chapter:

“If the complainant obtain restitution of said premises he may, at his election, sue and recover on said bond, or bring his action against the defendant, under section twenty-four of this chapter.”

It is clear that this language gives a landlord an election of remedies, and that, having successfully maintained a suit on the bond, he has not the same right, which otherwise he would have, to maintain suit under section 24. This principle is recognized by plaintiffs, but they contend that, notwithstanding the suit on the bond, they may still recover, under section 24, for such items of damages as could not be and were not recovered in the suit on the bond. According to this contention, the language, “he may, at his election, sue and recover on said bond, or bring his action against the defendant, under section twenty-four,” permits a landlord, under certain circumstances, to maintain both actions. The language is not susceptible of any such construction. The only election contemplated is an election between the two specified remedies, and the only construction which can be given the statute requires us to hold that, by suing on-the bond, plaintiffs made an election which prevents their suing under section 24. The circumstance that plaintiffs might recover under section 24 for items of damages, which could not be compensated in the suit on the bond was one to be considered by them before they made their election, but it- does not affect the consequences of the election which we must hold they have deliberately made.

Plaintiffs contend that, as thus construed, that part of section 25 which provides for an election of remedies is unconstitutional. A clear conception of the statute removes all doubt of its constitutionality. By section 24 the legislature has given the landlord a new remedy. By section 25 he is denied the right to use that remedy if he sues on the appeal bond. To assert that the legislature has no authority to compel a landlord to make such an election is to deny to the legislature authority to prescribe the conditions under which one may use a statutory remedy. The authority to prescribe such conditions is implied in the constitutional grant of authority to legislate. In our judgment, therefore, the statute is constitutional.

Some of the items of damages sought to be recovered by plaintiffs cannot be trebled, under section 24. They seek to recover compensation for those items as “other damages ” specified in said section. See Hitchcock v. Pratt, 51 Mich. 263. We are called upon to determine whether the principles of this decision permit plaintiffs to recover in this suit single damages for these items. It is idle to urge that plaintiffs might have recovered these damages at common law. According to the common law, they could not have recovered in the form of action they have adopted in this suit. Under their declaration, plaintiffs’ right to recover such single damages is based on and depends upon section 24. Without availing themselves of the provisions of section 24, plaintiffs can recover in this suit neither treble nor single damages. Our conclusion that plaintiffs’ election has deprived them of the right to sue under section .24 is therefore just as fatal to their claim for single damages as it is to their claim for treble damages.

It follows that the judgment of the court below should be affirmed, with costs.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


text:
    CUTCHER v. CITY OF DETROIT.
    1. Highways and Streets — Obstructions—Railway Tracks— Personal Injuries.
    For a city to leave unused railway tracks in a street, lightly covered so as to be invisible, but a dangerous obstruction in wet weather, is negligence as a matter of law.
    2. Same — Notice of Defect.
    Where railroad side tracks were left in a street 2% years after being disconnected from the main track, and were a dangerous obstruction, the city must be presumed to have had notice of the defect.
    Error to Wayne; Hosmer, J.
    Submitted February 8, 1905.
    (Docket No. 104.)
    Decided February 27, 1905.
    Case by Joseph D. Cutcher against the city of Detroit for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      The city of Detroit by virtue of its charter lawfully permitted the Detroit Transit Railway Company to run its track along Guoin street, and to run a side track or switch from the main line,' near the center of the street, onto the premises of a manufacturing company. The street was not paved. In course of time the manufacturing company made changes which rendered this side track unnecessary. The frogs were taken up, and the rails permitted to remain in the street. They were about level with the surface of the street. Cinders had been thrown upon the street, on'and around the rails. In wet weather the wheels, under heavy loads, would sink into the ground. This state of affairs existed for 21¡ years. Plaintiff had never driven over this particular spot before. As he approached the rails he stood up upon his wagon in order that he might the better see where to drive. One of the wheels struck a rail, and slued around with such suddenness and force as to throw him from his wagon, and he was injured. The question of defendant’s negligence was left to the jury, who rendered a verdict for the plaintiff.

      Henderson & Martindale (Edwin Henderson, of counsel), for appellee.
    P. J. M. Hally (Timothy E. Tarsney, of counsel), for appellant.
   Grant, J.

(after stating the facts). The sole question raised by the defense is that the court erred in not directing a verdict for the defendant for the reason that no negligence was shown. The learned counsel for defendant cite no cases in support of their contention. Perhaps no parallel case can be found.

Evidently such a hidden obstruction, considering the character of the soil, is dangerous in wet weather. The rails should have been taken up when the side track was discontinued. If the side track had been in use, any one could see that it was connected with the main track, and would naturally take steps to cross it as near as possible at right kngles. We think such an act was negligence, as a matter of law, and that the condition had existed so long that the city, as a matter of law, must be presumed to have had notice of it.

Judgment affirmed.

Moore, C. J., and Carpenter, McAlvay, and Blair, JJ., concurred.


author: Hooker, J.

text:
    MUMFORD v. STARMONT.
    1. False Imprisonment — Street Car Employés — Arrest by Polioe — Dangerous Condition of Railway.
    Municipal officers cannot justify their arrest of a street car ihotorman on the ground that the overhead system of the railway was so out of repair as to be a public nuisance, and had been so declared by the common council, and that operation of the cars increased the danger from it, where, at the time of the arrest, the controller of the car had been taken from the motorman and the car could not be started without it, and the whole system might have been stopped by detaching the feed wires.
    Same — Evidence.
    Plaintiff in false imprisonment may state that he felt humiliated by the arrest.
    3. Same.
    In false imprisonment by a street car motorman for arrest to prevent him from running his car, it is proper to exclude evidence that he was subsequently complimented by his employer for his effort to run the car.
    4. Same.
    Defendant cannot show that it was the custom to search prisoners, and that plaintiff was not searched.
    5. Same — Damages—Instructions.
    An instruction basing plaintiff’s recovery on what an average man would suffer from a similar injury, rather than on what plaintiff actually suffered, is not prejudicial where there is nothing to indicate that plaintiff suffered less than the average man.
    Error to Ingham; Wiest, J.
    Submitted January 6, 1905.
    (Docket No. 23.)
    Decided February 28, 1905.
    Case by Wheeler Mumford against Adolph M. Starmont and James F. Hammell for false imprisonment. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Affirmed.
    O. J. Hood (Russell C. Ostrander and Black & Reasoner, of counsel), for appellants.
    O. G. Tuttle and Searl & Monfort, for appellee.
   Hooker, J.

The defendants were respectively chief of police and mayor of the city of Lansing. The plaintiff recovered a verdict and judgment for $100 against them, and they have brought the case to this court by writ of error.

The action was for false imprisonment, based upon an arrest and detention of the plaintiff by the police, under directions of the defendants. The record shows that the plaintiff was a motorman upon a street car operated upon the streets of Lansing. There was proof tending to show, and the court charged the jury, that the overhead system of the street railway was so out of repair as to be dangerous to persons and horses using the streets, owing to the frequent falling of the wires, and that it was a public nuisance. The common council had, by resolution, so declared it, and directed that it be abated. There was evidence to the effect that the running of trolley cars increased the danger by causing the wires to break and fall. The mayor thereupon gave notice to the railway company that it must cease running cars while the wires remained in this dangerous condition. The cars were stopped, and did not run again that day. Some of the feed wires were cut. On the evening of that day the plaintiff learned of the difficulty between the city and the company, but having been ordered to report for duty on July 2d, the next day, he did so, and ran his car south on Washington avenue. On his return trip he met two cars at the intersection of the Michigan ayenue branch with the Washington avenue line, being the principal business corner of the city. He stopped his car and started to take his controller cranks to the other end of the car, when defendant Starmont took them. The plaintiff took hold of the rope to reverse the trolley, when defendant Starmont took hold of him, and handed him over to a policeman, giving orders to hold him until Starmont should direct his discharge. He was taken to the police station, and, with-other motormen who had been arrested, had an interview with the city attorney, who told them that they had resisted an officer and broken city ordinances, that unless they should promise not to run the cars again they would have to be arraigned for trial, and asked them to decide. Plaintiff said that he would run a car every 15 minutes if given the opportunity, for such were his instructions. Before dinner the men were discharged, after being taken before a magistrate. The defendants stated that it was their intention to stop the cars, and that to accomplish that it was necessary to restrain the motormen for a time. The judge directed the jury to find a verdict for the plaintiff, and assess his damages, which was done. Counsel have discussed several assignments of error, among them the following :

1. That the court should have directed a verdict for the defendants.
2. That, if not, the cause should have been left to the jury upon the question of plaintiff’s right to recover.

The testimony conclusively shows that the defendants took the cranks or controllers used in starting plaintiff’s car, a.nd that without them he could not have afterwards started the car. Notwithstanding this, they took plaintiff into custody and detained him at the police station for several hours, in a vain attempt to secure a promise that lie would not run the oar if discharged. Then he was discharged. The car was stopped, and could not be run so long as the police retained custody of it, and there was no justification, so far as the facts disclosed by this record go, for the arrest and detention. The taking of the plaintiff before a magistrate was a.further wrong, for there was no ground for the claim that he had been guilty of the offense of resisting an officer. The only thing that he is shown to have done after the controllers were taken from him prior to his arrest was to reverse the trolley of the car. That put the car in readiness to be run, but nothing more, and plaintiff made no effort to start the car. Indeed,"he could not have started it, for the policemen had the necessary appliances. The only excuse for the detention of the plaintiff was that he would not promise not to run the car if liberated, and that it was more convenient to arrest and detain all of the motormen than to put a man' in charge of each car, it appearing that seven or eight motormen were thus treated.

The defendants seek to justify their action upon the ground that the condition of the overhead construction of the street railway line was a public nuisance, in that it was a menace to persons using the highway, and that it was the defendants’ duty, both by virtue of their office, and by reason of the action of the common council which had declared it a nuisance, to abate the danger by preventing the operation of cars until the wire should be replaced by new. Defendants had forbidden and prevented the railroad company from making temporary repairs, being apparently of the opinion that they would be ineffective.

The condition of the wire was not admitted to be so bad as to make the same a nuisance, and it is not clear that the judge was justified in instructing the jury that it was a nuisance; but these defendants cannot complain of such instruction, for the reason that it is what they claimed, and was distinctly favorable to them. Apparently the judge chose to eliminate that question, in view of his intention to direct a .verdict for plaintiff.

The undisputed facts in the case are that the defendants arrested and detained the plaintiff, as a means of preventing the running of cars, or, as they state, abating a nuisance. If the circumstances shown were such as to justify the abatement of a nuisance, it could have been done by removing the dangerous wires, or by cutting the same off from the power house from whence the current was furnished. The stopping of the cars was not essential to this. If the danger existed only by reason of the running of the cars, cutting the wire would have been an effective method of stopping the cars, or they might have been stopped by taking possession of or disabling them without cutting the feed wire. Either of these methods would have been preferable to the wholesale arrest of the motormen. The evidence shows that the plaintiff’s car was disabled through the seizure of the controllers. Counsel cite no case recognizing the method taken of abating a nuisance, or preventing injury to citizens, where the person arrested is not chargeable with a public offense or threatened breach of the peace. The conduct of the defendants was so clearly in excess of necessity that we find it unnecessary to discuss at length the authority of municipal officers as to summary abatement of nuisances. Under the admitted facts the court could have done no less than to direct a verdict for the plaintiff. This being so, it becomes unnecessary to refer to the other questions pertaining to that subject, and it is only necessary to inquire whether errors were committed in relation to the amount of damages suffered.

We think it was not error to allow the plaintiff to state that he felt humiliated by the arrest. It was not error to exclude evidence that subsequently he was complimented by his employer for his effort'to run the car. Neither was it error to exclude evidence that it was the custom to search prisoners, which custom was not followed in this case. The court was justified in saying that there was no evidence tending to show that plaintiff resisted an officer.

In the course of his instructions, the court said to the jury that they should give the plaintiff actual damages, and that they were to say “ what damage, if any, the average man would suffer, and to award plaintiff, if anything, such an amount as would compensate him for his actual damages sustained, and no more.” In one instance he varied this by saying:

“ The sense of shame and mortification, of wrong and of outrage, for which the plaintiff may recover, is not limited to the actual time he was under restraint, but includes all such sense of shame, mortification, wrong, and outrage as it can be said the average man under like circumstances might have expected to experience for all time, arising from such arrest and detention as has been shown. No witness has placed a money standard on injured feelings, humiliation, sense of outrage, and mental suffering arising from an unlawful arrest and imprisonment, and no witness can do so. To do that is solely your province. The law has no other remedy for an action for wrong than to compensate, so far as it can by way of money, for the injury done by one man to another. The facts and circumstances surrounding the doing of the unlawful act areto.be considered by you, and you are to consider as best you can, from all the evidence, what sense of shame, mental suffering, humiliation, and sense of outrage the average man under similar circumstances might reasonably be expected to sustain, and award the plaintiff the amount thereof as his damages in this case. ”

It is insisted that the measure of damages should not have been what the average man would suffer under the same circumstances, but what the plaintiff had suffered. Undoubtedly the latter is the rule, but in this case there is nothing to indicate that this plaintiff suffered less than the average man, and no injury is discernible from the instructions. We fail to discover any unfairness in the charge.

The judgment is affirmed.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


text:
    VALLEY CITY DESK CO. v. KENT CIRCUIT JUDGE.
    Mandamus — Setting Aside Default — Remedy by Error.
    The action of the circuit judge in refusing to set aside a default and judgment on the ground that under the facts shown the court had no jurisdiction will not be controlled by mandamus, the question being determinable on error.
    Mandamus by the Valley City Desk Company to compel Alfred Wolcott, circuit judge of Kent county, to set aside a default and judgment.
    Submitted January 10, 1905.
    (Calendar No. 20,888.)
    Writ denied February 28, 1905.

      Carroll & Nichols, for relator.

      Stuart & Heald, for respondent.
   Ostrander, J.

Petition for an order to show cause why a default (and judgment based thereon) entered against the relator should not be set aside.

The Travelers’ Insurance Company, of Hartford, Conn., began suit by summons in the circuit court for the county of Kent against Hayden, Appleyard, Davidson, and Johnson. The original summons, or an alias summons, was personally served upon each of the defendants. Declaration was filed in that case on March 23, 1904. All of the defendants in that case were defaulted for not pleading. March 11, 1904, the same plaintiff, by its attorney, Henry T. Heald, filed an affidavit in garnishment in the same court, in which it was averred that relator and one Herpolsheimer were indebted to the defendants in the principal action. Relator was described in the affidavit as “a corporation.” A writ of garnishment was issued, returnable March 31,1904, which was served upon relator on the 11th of March, 1904, through its secretary and treasurer, Alonzo N. Hodges. The affidavit for the writ of garnishment names Valley City Desk Company (relator), names William Gr. Herpolsheimer, and says that both the relator and the said Herpolsheimer “ severally, and not jointly,” have property, goods, money, chattels, etc., and are indebted, etc., to the principal defendants. Herpolsheimer made a disclosure, relator did not; and upon an affidavit made oh the 2d of April, 1904, by the attorney for the plaintiff, an order was entered (on that date) entering the appearance of relator and defaulting it for want of disclosure. The principal case, coming on to be heard, was tried November 21, 1904, which was at' the September, 1904, term of the Kent county circuit court, and resulted in a judgment being ordered against the principal defendants for $868.57.

The court having announced that such judgment would be rendered, the following took place:

“Mr. Heald: We would like a judgment against the Valley' City Desk Company, a garnishee defendant. (A default was duly entered.)
The Court: Do they make a disclosure ?
“Mr. Heald: No, they made no disclosure. They defaulted.
“ The Clerk: It has been filed, but they are unable to find it just at present.
“Mr. Heald: The original affidavit was defaulted.
“The Clerk: The docket shows it was returned and filed.
‘ ‘ Mr. Heald: I judge that was filed direct by the sheriff, instead of coming through the office;, and at the time I made the default affidavit I came over especially to see if that was in the files, and it was in the files at that time.
‘ ‘ The Clerk: It was filed on April 2d.
‘ ‘ Mr. Heald: Here is a copy of it that I made.
“ The Court: Copy of the service ?
“Mr. Heald: Yes.
The Court: I suppose the statute entitles you to a judgment for the same amount. Judgment against the Valley City Desk Company, garnishee defendant, for $868.57.”

The record shows that on the same date a judgment was entered against the relator for $868.57, together with costs to be taxed, and awarding execution. November 23, 1904, the relator made and filed a motion, based upon an affidavit, to set aside the default and judgment, and noticed its motion for hearing on the 28th of November.

The special reasons assigned in the motion are:

1. That the affidavit of Mr. Heald, upon which the writ of garnishment was issued, was void, and conferred no jurisdiction upon the court.

2. Because the relator had no notice or knowledge of any writ having been served upon it or any of its officers.

3. Because the judgment against relator was made- and entered before any judgment had been entered against the principal defendants, and because it does not appear-that any judgment had ever been entered against the principal defendants.

On November 25, 1904, a judgmentwas entered against the principal defendants, the concluding sentence and recital in which is: “It is further ordered that said judgment stand entered nunc pro tunc of November 21, 1904.” Later, and on December 15th, relator’s motion to set aside the default and judgment was denied.

Various reasons are assigned in the petition, and some of the facts upon which they are based are admitted in the answer, which would be persuasive, undoubtedly, unless the circuit court is concluded in the premises by the provisions of Oir. Ot. Rule 12, subd. b. It is urged that he is not so concluded, because the default was not regularly entered.

The provision of the rule referred to is as follows:

“But in cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly entered.”

The words “after such default is regularly entered” were added to the rule November 20, 1903. 131 Mich, xxxv. Before this amendment it was held in Petley v. Wayne Circuit Judge, 124 Mich. 14, in a case in which. the circuit judge vacated a judgment and set aside a default, that he had exceeded his authority, distinguishing the case from Turner v. Ottawa Circuit Judge, 123 Mich. 617, in which case a default was improperly entered; and in Carpenter v. Judge of Superior Court of Grand Rapids, 126 Mich. 8, it was-held that the entry of a judgment is the taking of a proceeding within the meaning of Cir. Ct. Rule 12, and the default should not be set aside unless application was made within six months after service.. Both of these cases were mandamus cases.

Without entering into a discussion of the points relied upon by the relator, it seems sufficient to say that the court below asserts and retains jurisdiction, that the facts relied upon by relator are claimed to show a want of jurisdiction, and that the questions mooted can be determined upon writ •of error; and, following the-decision in Cattermole v. Ionia Circuit Judge, 136 Mich. 274; Michigan Mut. Fire-Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270; Dages v. Sanilac Circuit Judge, 122 Mich. 490, the application of relator should be denied.

■ Moobe, C. J., and Cabpenteb, Montgomeby, and Hookeb, JJ., concurred.


text:
    HALLWOOD CASH REGISTER CO. v. WAYNE CIRCUIT JUDGE.
    Mandamus — Setting Aside Default — Discretion of Court — Remedy by Error.
    Where the circuit judge has acted on a motion to set aside a default and permit the filing of an amended plea, by granting the motion on condition that defendant appear and plead to the merits, mandamus will not lie to compel him to vacate the conditions, as the court’s exercise of discretion will not be interfered with, and any error in the decision may be reviewed by allowing the case to go to judgment and raising-the question by writ of error or case made.
    Mandamus by the Hailwood Cash Register Company to-compel Henry A. Mandell, circuit judge of Wayne county, to set aside a default.
    Submitted January 10, 1905.
    (Calendar No. 20,855.)
    Writ denied February 28, 1905.

      Henry C. Walters, for relator.

      Clark, Jones & Bryant, for respondent.
   Hooker, J.

The defendant attempted to file a plea to the jurisdiction in an action at law, but it was not lawfully verified, owing to an error in the venue, and the failure of the Ohio notary to attach a certificate of his official character. This plea was treated by the plaintiff’s counsel as no plea, and the default of defendant for want of appearance and plea was regularly entered. 1 Green, New Prac. pp. 210, 211, and cases cited.

A motion to set aside this default, and another to set it aside and permit the filing of an amended plea, were made on March 17th. The former was denied, and the latter granted upon condition that defendant appear and plead to the merits. In November we denied a mandamus to compel the judge to make an unqualified order setting aside the default. We have now another application, based upon the second motion, designed to compel the judge to vacate the conditions contained in his order.

The judge does not manifest an indisposition to try this cause. He has not refused to hear and decide these motions. Counsel are here upon the proposition that he has not decided them correctly. This record presents no case for remedy by mandamus, first, because we should not interfere with the exercise of discretion; and, second, because the defendant can raise the question upon writ of error or case made, if he is willing to allow the case to go to judgment. Apparently he wants to get the case reviewed on the jurisdictional question while reserving the right to try the merits if ultimately defeated. That, however, is not one of his rights, as we have frequently held. The questions are fully considered in the late cases of Griffin v. Wattles, 119 Mich. 346, and Steel v. Clinton Circuit Judge, 133 Mich. 695, where the authorities are collected. As in the latter case, which is substantially on all fours with this case, the court has decided the question of jurisdiction. The only way in which this conclusion can be avoided is to say that this court will by mandamus compel the trial court to proceed properly in a case. The rule is that, where a court refuses to proceed with a case, it may be compelled to do so, and decide it. With this rule has gone the other rule that this court will not direct such court how to decide it, but will leave that to the trial court. It is only by introducing the word properly ” into the former rule, and thus enlarging the remedy, that there is occasion to vary the latter. When this is done, the writ of mandamus is made to perform the office of an appeal, which all of the authorities agree cannot properly be done. Want of discrimination, or willingness on the part of counsel to have the rule enlarged, and the proposition that the court should not raise questions in a cause, may have led to some decisions which do violence to these principles, while the principles themselves are persistently reasserted and reiterated. It is plain in this case, as already stated, that the circuit judge has decided the question before him, and we have no occasion to set the court in motion. His error, if there be one, we cannot correct upon mandamus, because, if for no other reason, it is within defendant’s power to review it at a proper time in another manner, if it has confidence enough in the justice of its claim to stand upon it. If not, it must consent to make its defense upon the merits.

The writ is denied.

Moore, C. J., and Carpenter, McAlvay, and .Grant, JJ., concurred.


text:
    COULTER v. MINION.
    1. Fraud — Misrepresentations — Opinions — Statements of Fact.
    Where defendant, to facilitate an exchange of property, induced complainant to lend money on the security of the land exchanged, to discharge a mortgage on the land received by defendant in exchange, his representations as to the value of the land on which the security was taken were statements of fact and not mere-expressions of opinion.
    2. Subrogation — Mortgages—Fraud.
    Complainant, having been fraudulently induced to advance money on worthless security, which was used to discharge a mortgage on defendant’s land, is entitled to be subrogated to the rights of the mortgagee in the discharged mortgage.
    Appeal from Kent; Wolcott, J.
    Submitted January-10, 1905.
    (Docket No. 30.)
    Decided February 28, 1905.
    Bill by Mary E. Coulter against Irvin W. Minion and another for subrogation to the rights of a mortgagee of property obtained by defendants through fraud. From a decree dismissing a bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Taggart, Denison & Wilson, for complainant, cited:

      Graham v. Moffett, 119 Mich. 303; Simonds v. Cash, 136 Mich. 508; Morman v. Harrington, 118 Mich. 623; Walker v. Casgrain, 101 Mich. 604; Picard v. McCormick, 11 Mich. 68; Webster v. Bailey, 31 Mich. 36; Nowlin v. Snow, 40 Mich. 699; Maxted v. Fowler, 94 Mich. 106; Moon v. McKinstry, 107 Mich. 668; Miller v. Voorheis, 115 Mich. 356.

      Grove & McDonald, for defendants.
   Hooker, J.

Minion, being the owner of a farm in Barry county, negotiated an exchange for residence property in Grand Rapids with Lloyd, from whom he was to receive $250 in cash, as the difference in value of the properties. There was a mortgage of $1,200 upon the Grand Rapids property, and the plan was for Lloyd to borrow $1,450 on the farm, of which sum $1,200 was tobe applied on the mortgage and the remainder was to go to Minion. Minion negotiated this loan with the complainant, though only $1,200 was finally borrowed, he taking a second mortgage for $250 upon the farm; and the deal was consummated, and the $1,200 was used in paying off the mortgage on the Grand Rapids property. The farm turned out to be of but little value, and Lloyd abandoned it, as not worth his investment in it. The complainant filed the bill in this cause, asking that she be subrogated to the rights of the mortgagee in the Grand Rapids property, who received her money by reason of Minion’s fraud in inducing her to take the mortgage. We find ample evidence of overreaching on the part of Minion, and it is unnecessary to discuss the evidence showing it. There are some legal questions, however, which should be referred to.

The circuit judge held that the representations made by Minion were matters of opinion merely, and dismissed the bill. Minion’s representation of the value was more than the expression of an opinion, under the circumstances shown. Picard v. McCormick, 11 Mich. 68; Nowlin v. Snow, 40 Mich. 701. Under such circumstances, the representation is a fraudulent statement of fact. His reference of complainant to Averill for information was no more than an effort to avoid the consequences of his fraud, and does not help his case. See Graham v. Moffett, 119 Mich. 303. This sufficiently covers the claim that complainant cannot recover for the reason that she relied on Averill’s statement.

It is contended that this is not a case for subrogation, but we think otherwise. Minion caused this loan to be made through fraud. It was understood that he was to have the money applied to the release of a mortgage on property that he had acquired from the mortgagor, and it was so applied. Such mortgage having been discharged by the mortgagee,‘Minion has reaped the benefit of his fraud at the expense of complainant, unless a court of equity can give to the complainant redress through subrogation. We are of the opinion that it is a proper case for equity to thus intervene. The authorities cited in complainant’s brief cover the question and support our conclusion.

The decree is reversed, and a decree will be entered granting the prayer of the bill, with the costs of both courts.

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.


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    LINGLE v. OWOSSO SUGAR CO.
    Chattel Mortgages — Filing—Priority.
    Under section 9533, 3 Comp. Laws, providing for the filing of chattel mortgages, an unfiled mortgage on a growing crop, taken in good faith and without knowledge of a previous one, has priority over a mortgage contained in a lease of the land which is not filed.
    Error to Shiawassee; Smith, J.
    Submitted January 10, 1905.
    (Docket No. 38.)
    Decided February 28, 1905.
    Trover by Ann E. Lingle against the Owosso Sugar Company. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Keversed.

      Watson & Chapman, for appellant.

      G. B. Lyon and Charles M. Hamper, for appellee.
   Hooker, J.

The plaintiff owned a farm on section 30, in Caledonia township. On the 13th day of March, 1903, Marble made a contract with the defendant to raise 30 or 40 acres of beets on this section. The land was not more specifically described, but it is perhaps a reasonable inference that he designed to rent the land from the plaintiff, which he did on March 31st, by taking a written lease (acknowledged as of that date, though dated March 30, 1903) for 70 acres, upon which the beets in controversy were afterwards raised. The contract with defendant was in writing, and attempted to vest title to the beets in the defendant. The important provisions of this contract are as follows:

“OWOSSO SUGAR MEMORANDUM.
“ Agreement concerning raising and delivery of sugar beets for campaign of 1903.
“ This agreement made this March 13th, 1903, day of 19— by and between J. L. Marble (hereinafter called the grower, and Owosso Sugar Company, hereinafter called the Company).
Witnesseth, that the said parties each in consideration of the premises and agreements of the other, agreed as follows: The grower, during the year commencing with the spring of 1903, is, in compliance with the terms hereof, to plant, cultivate, and harvest in a good and husbandlike manner for the company, thirty to forty acres Of sugar beets, on the following described lands, to wit: In section thirty, township of Caledonia, seven north, range three east, in county of Shiawassee, State of Michigan.
“ SEED.
“The beets shall be raised from seed furnished by the company. At least fifteen pounds of seed per acre •shall be planted. Seed shall be paid for by the grower to the company at the rate of fifteen cents per pound, and payment therefor deducted from the first payment of beets delivered. The title to said seed and to said crop of beets from the time when the same begins to grow shall be and remain in the company.
“ All directions given by the company as to the seeding, cultivating, harvesting, care, and delivering of beets shall be carefully followed and delivered by the grower. The company shall unload beets delivered in car-load lots without cost to the grower.
‘£ The company shall pay for beets delivered at the rate of four dollars and fifty cents per ton for beets testing twelve per cent, of sugar and thirty-three and one-third cents per ton more for each one per cent, of increase above twelve per cent., and thirty-three and one-third cents per ton less for each one per cent, of decrease below twelve per cent. The company will not be liable to receive or pay for beets containing less than ten per cent, of sugar, or for beets which are rotten or otherwise unfit or undesirable for making sugar. An additional price of twenty-five cents per ton will be paid by the company for sugar beets delivered after December first.
“In case the company’s factory shall be destroyed by fire or otherwise or from any cause so injured as to be incapacitated for work all beets not delivered shall be properly cared for by the grower and delivered as and where ordered by the company, and in that case any extra necessary expense of delivery shall be borne by the company.
“No agent of the company has any authority to change ' or alter the terms or conditions of this contract.”

On the other hand, the lease of the land contained a security clause to secure the rent, $500 per year, and a provision relating to the raising of beets as follows:

“ It is hereby provided that in case said land is used for the production of sugar beets, said beets shall be delivered to the Owosso Sugar Beet Company and an order shall be given to the party of the first part on said company for the proceeds to the amount of $500 the first year, $500 the second year, and $300 the third year on or before December 15th of each year. * * *
“ And for the purpose of securing the payment of the said rent above reserved and taxes, the said party of the second part hereby covenants and agrees that the said party of the first part, her heirs, executors, and assigns, shall have a lien in the nature and to the effect of a chattel mortgage upon all the produce of the said tillable land, whether harvested or not, and the said party of the second part hereby sell and mortgage to the said party of the first part, her heirs, executors, administrators and assigns, the said produce, and in case said party of the second part shall fail or neglect to pay the same as above covenanted and agreed, the said party of the first part, her heirs, executors, administrators and assigns shall have the right and power to take the possession of the said produce wherever it may be found, and sell the same at private sale or public auction at the best prices she can obtain therefor, after giving at least ten days’ previous notice of the time and place of said sale by posting a written or printed notice thereof in three or more public places in said township of said county, and out of the money to arise from such sale thereof if sufficient there shall be to pay and retain the amount of said rent and taxes due, together with any and all costs and charges of such sale, and shall pay the surplus moneys, if any, to said party of the second part.”

This lease was recorded in the register of deeds’ office on October 17, 1903, and filed in the township clerk’s office October 27, 1903.

Defendant furnished seed, and Marble planted it. As the crop grew, he applied to defendant for money to aid in caring for it, and this was advanced to him, and for it he gave obligations, of which the following is a copy:

“Office of Owosso Sugar Company.
|83. Owosso, Mich., June 12, 1903.
“On demand after date, I promise to pay to the order of the Owosso Sugar Company, eighty-three dollars, no one-hundredths, with interest at 6 per cent, per annum, at its office in Owosso, Michigan, the sum above mentioned having been advanced to enable me to plant, cultivate, and harvest sugar beets as per contract with the Owosso Sugar Company, No. 725. Therefore to secure the payment of the said sum, I hereby sell, transfer, and set over to said Owosso Sugar Company all the sugar beets raised upon the lands mentioned in said contract, and authorize the said company to deduct the amount above mentioned with interest thereon, from the first moneys due or payable to me. In case of neglect to cultivate, harvest, or deliver the crop the said company is authorized so to do and charge the expense thereof ,to me, deducting the same from the first moneys due or owing as above.
“James L. Marble.”

Several similar writings were given by Marble to the defendant.

On December 14, 1903, Marble gave the following order to the plaintiff:

“To Owosso Sugar Company,
‘' Owosso, Michigan:
“ Please pay to Ann E. Lingle the sum of $500 out of the first moneys due me on my crop of beets grown under ' contract with you during the season 1903 on land located in the south half of section 30, township of Caledonia, Shiawassee county, State of Michigan.
“Dated December 14,1903.
[Signed] “James L. Marble.”

On November 5th Marble gave a writing to the defendant as follows:

“In order to avoid any delay on account of any bad weather or shortage of teams I hereby authorize the Owosso Sugar Company to remove to their sheds whenever they deem it advisable the crop of sugar beets grown by me for them under contract 725, on section 30, Caledonia township, Shiawassee county, Michigan.
“Dated November 5, 1903.
[Signed] “James L. Marble.”

The defendant caused the beets to be drawn away on Sunday, about November 8th, and paid for the drawing to Marble and others, who furnished teams — some 16 in all. Defendant refused to pay the plaintiff’s order upon the ground that nothing was due or owing from it to Marble upon the beets. The advancements made amounted to $1,019.29, while the beets brought but $824.92.

The defendant’s claim rests upon two classes of instruments : (1) The original contract; (2) the several chattel notes. We may eliminate any claim of lien based upon the former, for it covered only the seed, amounting to $67.50, which is an amount too small to affect the plaintiff’s right of recovery. By this we mean that, if this Were the only claim of the defendant, the remainder of the purchase price of the beets would more than pay her mortgage, and she would be entitled to recover, while, if the defendant’s claim arising upon the chattel notes is to be sustained, it will absorb the entire value of the beets, leaving nothing for the plaintiff, without allowing defendant anything for the claim under the contract. This relieves us from the necessity of considering the question whether one can give a valid mortgage upon a crop to be planted upon land in which he has no interest at the time of giving the mortgage.

At the time that the chattel notes were given, the plaintiff’s lease was a valid outstanding mortgage, as between the parties to it. It is asserted, without contradiction, that the defendant first received notice of it after the money was advanced to Marble, for which he gave the notes; and, as already stated, the lease was not then recorded. 3 Comp. Laws, § 9523, provides that chattel mortgages not filed, nor accompanied by immediate change of the possession of the property mortgaged, shall be absolutely void as against subsequent mortgagees in good faith. Defendant being such a mortgagee in good faith, its claim has priority over the mortgage of the plaintiff, although the defendant’s mortgage was not filed. Hudson v. McKale, 107 Mich. 22; Campbell v. Remaly, 112 Mich. 214; Vining v. Millar, 116 Mich. 144.

Of the chattel notes, all but two were given before defendant is shown to have had notice of the plaintiff’s mortgage. With these two omitted, they aggregate $924.88, being more than the value of the beets. The court should have directed a verdict for the defendant.

We have not discussed the evidence tending to show an agreement between the parties that the defendant was to deduct its advancements, before the plaintiff should receive pay for her rent, from the money that should become due for the purchase price of the beets. There was testimony in the case which required the submission to the jury of the questions of agency and estoppel, unless the verdict was to be directed for the defendant.

The judgment is reversed, and a new trial ordered. ■

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.


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    TROMBLY v. KLERSY.

    Mortgages — Enforcement — Promise to Forbear — Consideration — Evidence—Sufficiency.
    Where, at the time of the making of a loan secured by a mortgage, there was no arrangement that the mortgage should not he paid according to its terms, evidence of subsequent statements by the mortgagee that he did not expect the mortgagor to pay the principal, and that he would have the money after the mortgagee’s death, did not establish a binding promise on the mortgagee’s part to forbear collection of the debt, there being no consideration to support it.
    Appeal from Wayne; Frazer, J.
    Submitted January 11, 1905.
    (Docket No. 46.)
    Decided February 28, 1905.
    Bill by Robert Trombly, guardian of Joseph Buhler, an incompetent, against Andrew Klersy and another for the foreclosure of certain mortgages. Defendants filed an answer in the nature of a cross-bill claiming an agreement for the cancellation of said mortgages at the death of the mortgagee, and prayed ¥or specific performance. From a decree for defendants, complainant appeals.
    Reversed, and decree entered for complainant.

      De Forest Paine, for complainant.

      William Look (Henry F. Ghipman, of counsel), for defendants.

      Rehearing denied December 30, 1905.

   Hooker, J.

Complainant, in the capacity of guardian of one Joseph Buhler, an incompetent person, filed the bill in this cause to foreclose three mortgages given by Andrew Klersy to said Joseph Buhler. The defendants, husband and wife,.contest the cause upon the ground that Buhler is under contract obligations to cancel said mortgages upon his death, and that only the interest is his due upon the mortgages, and a cross-bill was filed praying for a specific performance of the contract. Andrew Klersy married Buhler’s niece, at Buhler’s house. According to Klersy’s testimony, the three mortgages were given to secure three loans amounting to $12,000, and Klersy testified that when given there was no arrangement that they should be canceled, or that they should not be paid according to their terms. There is testimony in the case that Buhler and his wife have often said that he did not expect the defendant to pay the principal of these mortgages, and that Klersy would be his heir and have the money after Buhler’s death; that he would make a will to that effect; and that a will (not produced) had been made.

Our examination of the proof compels us to say that there is no testimony showing a valid and binding promise to cancel the mortgages or forbear collection of the principal. If it could be said that such a promise was made, no consideration is shown to support it.

It is urgéd that this money was given to the defendant, but there is no testimony supporting the claim. The most that can be said is that Buhler stated that he should make a gift by canceling the mortgages. This he never did. Counsel strive to maintain their claim upon the theory that, by making a will to that effect, the gift vested, but it is a sufficient answer to say that, if a will could have that effect, there is no proof of such an existing will. Upon the proof, we are constrained to reverse the decree. A decree will be entered here, in accordance with the prayer of the bill, for the amount of the three mortgages, with interest. Complainant will recover costs of both courts.

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., concurred.