author: Blair, J.

text:
    ERWIN v. FAY.
    1. Process — Insane Persons — Service—Guardian and Ward.
    Whether in actions at law or suits in equity, the method of obtaining jurisdiction of the 'person of an insane defendant is the same as in the case of sane persons, notwithstanding that a guardian of the incompetent has been appointed.
    3. Same.
    On the return of the officer that he was unable to serve the subpoena, in foreclosure proceedings, on an incompetent defendant, because of her concealment, and on the affidavit of complainant’s attorney that the several necessary steps had been taken and that defendant was incompetent and that complainant desired to secure the appointment of a guardian ad litem, followed by an order of publication and personal service on the guardian of the incompetent of the order and notice, the court acquired jurisdiction and a guardian ad litem was properly appointed.
    3. Insane Persons — Guardian Ad Litem.
    The guardian ad litem of an insane or incompetent person should be the general guardian or some person who could be relied on to protect the interests of the defendant, rather than the register in chancery or other person who would make only a formal defense.
    4. Same — Attacking Order — Writ oe Assistance.
    The court having obtained jurisdiction, in foreclosure proceedings, of an incompetent, and having caused the order of publication notifying defendant's guardian to appear and procure the appointment of a guardian ad litem, the appointment of the register as such guardian ad litem was not a fatal irregularity or subject to attack on petition for a writ of assistance.
    Appeal from Muskegon; Sessions, J.
    Submitted February 10, 1911.
    (Docket No. 152.)
    Decided May 8, 1911.
    Petition by Robert Love and Oscar E. Peterson for writs of assistance against Georgie Fay Merrill, Mary Van Arkel, and Mattie Fay, in foreclosure proceedings by David D. Erwin against Eliza T. Fay. Respondents filed objections which were overruled, and they appeal.
    Affirmed.

      Philip W. Kniskern, for appellants.

      Cross, Vanderwerp, Foote & Ross, for appellees.
   Blair, J.

A decree of foreclosure having been entered in the above-entitled cause, the premises were sold by a commissioner to certain purchasers who later applied to the court for writs of assistance against Georgie Fay Merrill, Mary Van Arkel, and Mattie Fay, children and heirs at law of defendant, at that time deceased, and L. O. Scull, a tenant under them. The respondents objected to the granting of the application for the following reasons:

“(1) The mortgage which said complainant sought to foreclose described in the bill of complaint was not due and payable, according to the terms thereof, at the time said foreclosure proceedings were commenced by the filing of said bill of complaint.
“(2) The court had no jurisdiction in said cause either over the subject-matter or over the person of the defendant. (a) No subpoena was served on the defendant personally as required by the rules and practice of said court. (6) Said defendant prior to the commencement of said suit was adjudged an incompetent, and had been placed under guardianship, and the guardian of said defendant was not made a party to said suit or served with a subpoena therein, as is required by said rules and practice.”

The written objections were supported by affidavit averring, among other things, as follows:

“They further say that at the time of the commencement of said suit the defendant Eliza T. Fay had been adjudged an incompetent person, and the said Georgie Fay Merrill had been appointed by the probate court of said county as her guardian and duly qualified as such; that said defendant lived in the city of Muskegon, in the same home where she had lived for a great number of years, and that she was never at any time concealed within the State of Michigan; that at the time referred to by the officer who made the return indorsed upon the subpoena that she was so concealed she was living at her said home, as she had been before, with no attempt at concealment, but that at that time, as said officer well knew, she was sick in bed, and was not expected to live even from day to day, and that the reason said subpoena was not served at that time was because it was feared it would endanger her life; that it was deemed unsafe on account of her condition for any one to enter her room except her family and nurse; that she.soon thereafter became somewhat improved in health, and afterward died in the year 1910, a few months ago.”

The sheriff, in his return to the subpoena issued in the suit, certified—

“That after diligent search and inquiry I have been unable to serve the within subpoena because of the within named defendant’s concealment within the State of Michigan.”

The affidavit of counsel to obtain an order of publication was in part as follows:

“Deponent further says that said defendant is a resident of this State; that process for her appearance has been duly issued, as aforesaid; and that the same cannot be served upon said defendant by reason of her concealment within the State.
“Deponent further says that said defendant is a mentally incompetent person, and that Georgie Fay Merrill is guardian of said defendant under appointment of the probate court for the county of Muskegon; that said defendant desires to make application for an order of publication in accordance with sections 485, 486, and 487 of the Compiled Laws of Michigan for 1897, and desires to give notice to said defendant and to her said guardian that, if she or they do not procure the appointment of a guardian ad litem for said defendant to appear in this cause within twenty days after the time fixed in said order of publication for her appearance therein, the complainant will apply to this court to appoint a guardian ad litem for her without further notice.”

The order of publication filed September 25, 1909, contained a provision:

“That a copy of this order, together with a notice signed by said solicitors for complainant, directed to said guardian ad litem, reciting that, unless said defendant and said guardian do procure the appointment of a guardian ad litem within 20 days after the time mentioned provided for her appearance, the said complainant will apply to this court to appoint a guardian ad litem for the said defendant without further notice, be served on said Georgie Fay Merrill, guardian, as aforesaid, within 20 days from this date.”

The order and notice were personally served on Georgie Fay Merrill September 28, 1909. The objections were overruled and the writs granted. From this order the respondents appeal to this court.

The proceedings were in conformity with the practice required by the statute, and must be sustained if such practice is applicable to suits against incompetent persons. There is a lack of harmony in the decisions of other States upon this question, due in part, at least, to statutes regulating the practice. In this State there is no statute regulating the practice in such cases, and the question must be decided in accordance with the rules of the common law.

This question came before the court in a suit at law in Ingersoll v. Harrison, 48 Mich. 234 (12 N. W. 179). The summons was personally served upon the insane defendant, who was under guardianship. His guardian joined with him in pleading, in abatement of the service, the fact that he was under guardianship. We quote from the opinion of the court as follows:

“ The sole question raised is whether the existence of the guardianship took away the defendant’s legal capacity to be served with the summons, and we think it did not. He continued liable to suits and liable to notification of their institution. Sternbergh v. Schoolcraft, 2 Barb. (N. Y.) 153, and authorities cited; Crippen v. Culver, 13 Barb. (N. Y.) 424. See, also, Bush v. Pettibone, 4 N. Y. 300; Ibbotson v. Lord Galway, 6 Term, 133; Cock v. Bell, 13 East, 355.”

Although this case was not referred to in the opinion, the same rule was adopted in Stoner v. Riggs, 128 Mich. 129 (87 N. W. 109).

These cases establish the rule for this State that there is no distinction in proceedings at law between sane and insane persons as to the proceedings for obtaining jurisdiction of their persons. The same rule obtains in suits in equity, so far as obtaining jurisdiction of the person is concerned. Sturges v. Longworth, 1 Ohio St. 544. In Michigan, as in Ohio, at the time of the decision cited—

“ The mode of bringing parties into court, both at law and in chancery, is the subject of statutory enactment; the legislature evidently intending to cover the whole ground. No exception is made in favor of lunatics. * * * The important difference between a lunatic and a sane person does not consist so much in the mode of the court obtaining jurisdiction over the person as in the proceedings after that jurisdiction has been obtained. The legislature having literally embraced all parties within the provisions of the act, unless it would be clearly in violation of its spirit to include insane defendants, we could not hold that they were without its provisions.”

We therefore hold that the court acquired jurisdiction over the person of the defendant, and that it was the duty of the court to appoint a guardian ad litem to defend the suit. Van Horn v. Hann, 39 N. J. Law, 207, 213. We think, however, that the court in such cases should appoint the general guardian or some person who could be relied upon to actively protect the defendant’s interests, and not the register of the court or other person who would be naturally expected to make a merely formal, perfunctory defense. Van Horn v. Hann, supra; Frieseke v. Frieseke, 138 Mich. 458 (101 N. W. 632).

The court, having obtained jurisdiction of the person and subject-matter of the suit, having caused the order of publication to be served upon the daughter of defendant as general guardian, affording her an opportunity and making it her duty to appear and procure the appointment of a guardian ad litem, the appointment of the register as such guardian ad litem did not deprive the court of jurisdiction to render the decree and could not be contested upon the application for a writ of assistance. Ball v. Copper Co., 118 Mich. 7 (76 N. W. 130); Peters v. Youngs, 122 Mich. 484 (81 N. W. 263).

The order is affirmed.

Ostrander, C. J., and Bird, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    LONGO v. CRACHIOLA.
    Fraud — False Pretenses — Trespass on the Case — Directing Verdict.
    A declaration in a case charging defendant with purchasing fruit of plaintiffs with intent not to pay for the goods, in pursuance of a general scheme to buy fruit and defraud the sellers of their pay, is sufficient to support a judgment in a tort action, and it was error to direct a verdict for defendant on the ground that the plaintiff’s declaration should have been in assumpsit.
    Error to Wayne; Murfin, J.
    Submitted February 15, 1911.
    (Docket No. 170.)
    Decided May 8, 1911.
    Case by Vincenzo Longo, Gaetano Longo, and Frank Carlotta, copartners, doing business as the Longo Fruit Company, against Vincenzo Crachiola for fraud. A judgment for the defendant on a verdict directed by the court is reviewed by plaintiffs on writ of error.
    Reversed.

      Henry F. Chipman, for appellants.

      Navin, Sheahan & Kennary, for appellee.
   Blair, J.

This is an action on the case, commenced in justice’s court. The declaration was as follows:

“For that, whereas, heretofore, to wit, the said defendant made various purchases of grapes, oranges, and bananas from the plaintiffs, who are wholesale fruit dealers, in the city of Detroit, amounting to the sum of, to wit, $322, and said plaintiffs allege that the said defendant fraudulently incurred an indebtedness therefor in the said sum. Plaintiffs further allege that they sold said goods to the said defendant with the understanding that he, said defendant, would pay for the same within a reasonable time; that at the time of the purchase of said goods by the said defendant he did not have the intention to pay for the same, and in fact had formed the intention not to pay for the same; that said purchases by said defendant were part of a general scheme to obtain a large amount of credit from various dealers in the city of Detroit, to buy twice as much fruit as said defendant could handle, sell it for less than it had cost defendant, and to retain the proceeds, and not to pay any of his creditors. Plaintiffs further allege that said defendant did fraudulently so scheme to get possession of the goods aforesaid from plaintiffs, with the intention of not paying for them, and with the intention of selling them at less than cost, and not paying plaintiffs for the same; and plaintiffs further allege that in pursuance of said scheme defendant did get possession of said goods, the plaintiffs being ignorant of his intention in the premises at that time, and did sell them for less than cost, with said intention, and that said defendant did not pay plaintiffs for said goods. Plaintiffs further allege that they were deceived by the representations of said defendant that he would pay for said goods, and that said representations were false as aforesaid, and that, but for them, plaintiffs would not have parted with said goods, and that plaintiffs were damaged thereby in the sum of five hundred dollars, and therefore they bring suit.”

At the conclusion of the testimony in the circuit court, on appeal, the circuit judge directed a verdict for defendant, giving his reasons in part as follows:

“As stated during the brief argument we have had by the counsel for the plaintiffs, it is the theory of the plaintiffs in this case that, because the defendant, when he bought the last order of bananas, to wit, 110 bunches, because when he bought these bunches, he said, ‘ I will now go out and collect from my customers and pay you on Monday,’ and he did not do that, that was fraudulent. I. think, if that were fraudulent, every time any merchant in the city of Detroit neglected to pay his bills at maturity, because some of his customers had not paid him in time, he might with equal success be charged with fraud. I think there is no better settled principle of law than that an action of fraud may not be predicated upon improper representations of a future fact. It must be predicated upon a false representation of an existing or past fact. If he made an improper representation of something that is going to happen in the future, the action is an action of assumpsit, which undoubtedly, under the facts in this case, will lie. I don’t think, however, there is any proof of fraud in this case which warrants the submission to you of the question of fraud, because I do not think it is fraudulent to promise to pay on Monday after you have collected from your customers, and then not pay. There is nothing in this case to indicate whether he tried to collect from them, and failed, or not. All that there is here is that he promised to collect from his customers and pay on Monday, and did not. I don’t think that is fraudulent. I could not support a verdict at your hands, if you brought in a verdict based upon such testimony. Holding these views, I think it my duty to direct you to render a verdict of no cause of action.”

The gist of the plaintiffs’ cause of action, as stated in the declaration, is that defendant purchased the' plaintiffs’ goods, with the intent on his part, at the time of the purchase, not to pay for them, in pursuance of a general scheme to buy fruit and defraud- the vendors out of their pay. The evidence tended to support the cause of action and it was error to direct a verdict for defendant. Fruit Dispatch Co. v. Russo, 125 Mich. 306 (84 N. W. 308); Ross v. Miner, 67 Mich. 410 (35 N. W. 60); 35 Cyc. pp. 79, 80.

The judgment is reversed, and a new trial granted.

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


text:
    HOKANSON v. OATMAN.
    1. Brokers — Duty—Fraud.
    A broker, who represented to one negotiating with him to purchase a farm that the owner’s price was $1,200, and that was the lowest price obtainable, when in fact the price at which the owner listed the land was $900, is liable for the difference, in assumpsit, to the purchaser who relied on the representations.
    2. Same.
    The rule of caveat emptor does not apply to such representations.
    3. Fraud — Opinion.
    Representations by a broker that the price stated by him was the lowest obtainable for a farm, that the owner had reduced the price from a higher amount and the property was a bargain, although the owner had fixed a lower price, the purchaser being unacquainted with farm values and relying on the broker, were not mere statements of opinion but constituted representations of facts and entitle the purchaser, if they were false, to maintain assumpsit for fraud and deceit, under 3 Comp. Laws, § 10421.
    Error to Muskegon; Sessions, J.
    Submitted February 14, 1911.
    (Docket No. 158.)
    Decided May 8, 1911.
    Assjumpsit by Victor Hokanson against Charles Oat-man for fraud. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Cross, Vanderwerp, Foote & Ross, for appellant.

      Turner & Turner, for appellee.
   Blair, J.

The plaintiff’s declaration avers that defendant, a real estate agent, offered for sale to plaintiff 80 acres of land, “and agreed to sell the same to said plaintiff for the price the owner then asked for the same, and said plaintiff then and there agreed to and with said defendant to pay him, said defendant, the price that the owner then asked for said property; but said plaintiff avers that said defendant, at the time and place aforesaid, falsely and fraudulently pretended and stated and claimed to this plaintiff ‘ that the owner asked $1,200 for said property, and that that was the owner’s price for the same.’ ” That plaintiff was induced by the fraudulent representations to pay $1,200 for the land, whereas the owner’s price was in reality only $900, and “ by means of the premises plaintiff became and was entitled to receive of and from the said defendant the sum of $300; that being the amount received by said defendant in excess of the price agreed upon for said land aforesaid,” etc.

Plaintiff recovered judgment,, and defendant has removed the record to this court for review upon writ of error.

The plaintiff’s testimony tended to show that he called upon defendant with reference to the purchase of the farm in consequence of his advertisement in a Chicago newspaper, and went with him to look over the land on two occasions. Plaintiff testified, in response to questions from his own counsel:

“Q. I will ask you what the conversation was between you in reference to the sale of this land ?
“_4. Why, he showed me the place, and after we looked over the place — I believe before we looked at the place— he told me the price would be $1,200.
"Q. $1,200?
“A. Yes, sir; but after looking at the place I didn’t like it exactly, and I asked him if it couldn’t be bought cheaper than that. He said, ‘ No,’ that the owner in the' first place asked $1,500 for the place, but he got him down to $1,200, knowing that he could sell a bargain better than a high priced place; therefore, if he asked him to sell any cheaper than $1,200, he would take it out of his hands— the owner would. * * * I said I would pay the owner’s price; but I only had $900 to pay cash for the place, and he had told me previous to that that he had money in the bank for that purpose, to loan to buyers that couldn’t pay cash, and I asked him if he couldn’t loan me the rest of the money, which would be $300, to pay the owner’s price, which he agreed.
“Q. Now I call your attention to plaintiff’s Exhibit 2, being the mortgage referred to. Did you, upon the strength of that statement, execute that mortgage ?
“A. Yes, sir. * * *
”Q. State whether or not you relied upon the representations that the defendant, Oatman, made at that time as to that being the owner’s price for the land ?
“A. I did.
“Q. State whether or not, on account of those representations, you were induced to part with the consideration and to pay the consideration that you did ?
“A. Yes, sir.
“Q. Now this mortgage that I called your attention to, you afterwards paid, did you ?
“A. Yes, sir.”

The owner of the land testified to a conversation over the telephone with Oatman:

“I told him I would take $900, and I think Mr. Oat-man informed me that Mr. Marshall had informed him that that was the price I asked for it. He said that he had had some parties out there to look at it, and that they would give $900 for it, but they wouldn’t give any more. * * * That he got these parties there, and I think he said they were from Chicago, and they would give $900 for it, but unless he could make something he should try to sell them something else, and I asked him what he wanted, and he said, ‘ Well, I want to have $50,’ and I made some remark that $50 was cheap enough for selling the place, but I says, 'Can’t you get these people to give enough more to pay this $50 ?’ I think I said to him that I had more than $900 in it, and didn’t want to take less thn.n $900 net to me. He said, ‘ No; that is every dollar they will give.’ Tiren I asked him what the terms would be if the sale was made, and he told me it would be all cash. I finally, while I was there at the telephone — it couldn’t have been over a few minutes — I says, ‘Well, if that is all you can get, rather than let it go, I would rather give you $50 than not to make the deal,’ and he then said that I would get a letter from him; he would write me and tell me the parties’ names, I think.”

Plaintiff relies upon Barnard v. Colwell, 39 Mich. 215, and Hidey v. Swan, 111 Mich. 161 (69 N. W. 225), as supporting his cause of action. Counsel for defendant contend that there is no analogy between this case and the cases above cited; that there was no agreement in advance to pay “the owner’s price,” stated later at $1,200; that the agreement was a plain agreement to pay $1,200 for the land, and a verdict should have been directed for defendant. The plaintiff’s testimony is quite uncertain and conflicting, but the verdict of the jury has resolved all doubts and uncertainties in his favor.

Error is also assigned upon the following portion of the charge:

“ To entitle the plaintiff to recover in this case, he must have satisfied you by a fair preponderance of the evidence in the case that the defendant, in making this sale and in this deal and transaction, was acting as the agent of Mr. Hendrick, the owner of the land, and was to receive as compensation for making the sale from Mr. Hendrick a commission, and that the defendant did state and represent, in substance, to the plaintiff, that the owner’s price — that is Mr. Hendrick’s price — for the land was the sum of $1,200, and that the amount of money which was represented by the mortgage was to be paid to Mr. Hendrick as a part of the purchase price going to him for the land, and that Mr. Hendrick’s price was the sum of $900, less a corfimission, instead of the sum of $1,200, less a commission; and if you find from the evidence in the case that the defendant in making this sale to the plaintiff and his wife was acting as the agent of Mr. Hendrick and received a commission from Mr. Hendrick as such agent, and that he did represent and state in substance to the plaintiff thát Mr. Hendrick’s price for the land was the sum of $1,200, and that the whole sum of $1,200, less the commission, was to be paid over to Mr. Hendrick for the land, and that the plaintiff was thereby deceived, the plaintiff is entitled to recover in this case.”

The criticism of this charge, as stated by counsel in the brief, is as follows:

“ Under this instruction, the right of plaintiff to recover was made to depend, not upon an agreement to sell at the ‘owner’s price,’ followed by misinformation as to the amount of that price, as charged in the plaintiff’s declaration, but upon precisely such a false affirmation concerning the price as this court, in Barnard v. Colwell, held could not be relied upon by the plaintiff, and did hot, in itself, constitute a cause of action. Recovery was permitted in Barnard v. Colwell, not because of the false representation as to the price which defendant had paid for the land, but because the defendant agreed to sell the land for what it had cost him, and, having received from the plaintiff more than the agreed price, the plaintiff was adjudged entitled to recover.
“In the case at bar, the agreed price was $1,200, and there was no overpayment to be recovered. Under the charge complained of, the false representation is made a ground of recovery in itself, when in fact, under the law, and under the allegations in plaintiff’s declaration, there could be no recovery, except upon the theory that plaintiff, through misinformation, had been induced to pay the de-. fendant more than the agreed price. This essential and basic feature of the plaintiff’s alleged cause of action was not presented to the jury for determination, but in lieu thereof, they were left to infer that the amount which plaintiff agreed to pay for the land was of no moment whatever, and they were told, in substance, that if defendant was the agent of Hendrick, and made a false representation to plaintiff concerning the price, plaintiff was entitled to recover.”

A case precisely in point, except as to the form of the action, was before the Kentucky court of appeals, and it was held that:

“Where the purchaser of property from a broker was induced to pay more than the owner asked for the property by the fraudulent representation of the broker that the owner would not accept less than the price paid, the purchaser is entitled, in an action for deceit, to recover of the broker the excess, which he pocketed, less the usual commission for making the sale.” Kice v. Porter (Ky.), 53 S. W. 285; Kice v. Porter (Ky.), 61 S. W. 266.

While it may be inferred from the remarks of Mr. Justice Cooley, in Barnard v. Colwell, that the court was of the opinion that an action for fraud and deceit would not lie for such misrepresentations, such holding was not necessary to the decision, since it was held that a good cause of action in assumpsit for money had and received was stated in the declaration, upon which plaintiff was entitled to put in his evidence.

In Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321 (69 N. W. 722), it was held that the rule of caveat emptor does not apply to such representations, and we deem this to be the better rule. McDonald v. Smith, 139 Mich. 211 (102 N. W. 668); Van Epps v. Harrison, 5 Hill (N. Y.), 63 (40 Am. Dec. 314); Fairchild v. McMahon, 139 N. Y. 290 (34 N. E. 779, 36 Am. St. Rep. 701).

The verdict of the jury establishes gross fraud practiced by defendant, both upon the plaintiff and the owner of the property. The plaintiff was a color miser, residing in Chicago, wholly ignorant of the value of farm lands, and unable to form any rational estimate of such value by inspection. Knowing these facts and relying upon them to enable him to carry out his fraudulent scheme, defendant stated, in reply to plaintiff’s question if the farm could not be bought cheaper, the representations hereinbefore quoted, contending that he had induced the owner to reduce the price to a point where it was a bargain, and the very lowest price the owner would .accept. He also induced the plaintiff to believe that the $300 secured by the mortgage was for the benefit of the owner.

The representations by defendant were not mere statements of opinion as to the value of the property, but were -statements of facts within his own knowledge and unknown to plaintiff, which were intended to, and did, influence him in making the purchase, and upon which he had a right to rely.

We agree with the conclusion of the Kentucky court of appeals that plaintiff made out a case of fraud and deceit, for which he was entitled to maintain an action of assumpsit under our statute. 3 Comp. Laws, § 10421. First Nat. Bank of Ovid v. Steel, 136 Mich. 588 (99 N. W. 786).

We find no reversible errors in the record, and the judgment is affirmed.

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


text:
    L. STARKS CO. v. MANISTEE & NORTHEASTERN RAILROAD CO.
    Carriers — Freight—Negligence—Delay—Directing Verdict.
    A carrier which receives a car of potatoes to be shipped over two other connecting lines, with directions to notify a person named of arrival, but neglects to advise the connecting carriers of the directions to give such notice, does not become an insurer of the freight, but is liable for the loss which occurs after the time when notice ought to have been given, and in the absence of evidence separating such damage from other depreciation caused by the delay of the car on the lines of the connecting roads, a verdict of six cents was properly directed.
    Error to Kent; McDonald, J.
    Submitted February 17, 1911.
    (Docket No. 140.)
    Decided May 8, 1911.
    Assumpsit by the L. Starks Company against the Manistee & Northeastern Railroad Company on a contract of shipment. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.

      Smedley, Hall & Gillard, for appellant.

      Wilson, Wilson & Rice, for appellee.
   Blair, J.

This is an action of assumpsit to recover damages for breach of a contract for the transportation of a car load of potatoes, consigned to the plaintiff, via Grand Trunk Railroad Company, at Gratiot Siding, Detroit, with instructions to notify Frank Wise, on the arrival of the car at its destination. Wise had ordered the potatoes at 49 cents a bushel, subject to inspection. The potatoes were received by defendant September 18, 1905, and delivered to the Pere Marquette Railroad Company September 19th, at Kaleva, a junction point, where there was an agent representing both companies. In transferring the car to the Pere Marquette, the agent omitted from the shipping bill the words, “Notify Frank Wise.” The car arrived at Grand Rapids September 21st, was delivered to the Grand Trunk on September 26th, reached Detroit September 27th, and was placed on the Gratiot Siding on Saturday, September 30th. No notice was given to Wise, who did not learn of the arrival of the car until October 3d, when he inspected the potatoes, found them badly decayed, and refused to accept them.

The testimony tended to show that in case of new potatoes in a box car, decay would begin to set in when the temperature of the car went above 80 degrees Fahrenheit.

“ * * * That potatoes in the fall of the year came more or less green, and do not keep like winter potatoes. * * * In some cases, in a hot car, they will not last over seven or eight days. We have no trouble at that time of the year in shipping potatoes if they come prompt. * * * My question was whether it is a most dangerous time of the year to ship potatoes on account of the weather, and on account of the potatoes being new.

“A. Not if they are not kept too long; if we get them' prompt and take them out of the cars.

“Q. Then you ought to get potatoes shipped at that time of the year, to have them arrive in good condition, within three or four days from the time they were shipped ?

“A. Yes, sir. Prompt shipment was the condition I gave in the matter; but it was general; no particular time fixed. * * * That when a temperature of 80 degress is reached the potatoes will tend toward decomposition and decay. How long after 80 degrees of temperature it is necessary to go until decomposition is well under way and cannot be checked, I would not be able to say. In a general way, I would say a day or two; but that I just do not know.

“Q. Now what would you say as to the effect of the temperature on potatoes when once decay had started ?

“A. I cannot say specifically for potatoes. I presume that it is the same with decomposition of most all vegetable and animal matter, if it has started once.

“Q. What is that?

“A. If it starts, it is hard to stop.

“Q. The temperature has no effect ?

“A. Generally none.”

There was also testimony that the maximum temperature on the 18th was 75°; on the 19th 70°; on the 21st, at Grand Rapids, 74°; on the 26th, at Grand Rapids, 69°; on the 27th, at Detroit, 78°; 28th, 87°; 29th, 82°; 30th, 84°; October 1st, 73°; 2d, 70°; 3d, 74°.

The declaration contains, among other allegations, the following:

“ That, upon the receipt of said car load of potatoes from the said plaintiff, and the delivery by said defendant to said plaintiff of the bill of lading heretofore mentioned, it then and there became and was the duty of said defendant to make out and prepare a waybill containing the same instructions as were written upon the original bill of lading, namely: ‘ Consignee, L. Starks Company, Gratiot siding, Detroit, Michigan. Notify Frank Wise’ — and to deliver said way bill to its agent in charge of its train by which said car load of potatoes was transported from the station of Cedar aforesaid, to the said station of Kaleva, for the purpose and to the end that said waybill should be delivered to the connecting carrier at the station of Kaleva, and thereby instruct said connecting carrier of the manner in which said goods should be shipped, and of the disposition to be made of said goods upon their arrival at the destination. Yet the said defendant, not regarding its undertaking and promise and duty in that behalf, caused said waybill to be made out in a negligent and careless manner, and carelessly and negligently omitted from said waybill the words, ‘Notify Frank Wise,’ and negligently and carelessly delivered said waybill to the connecting carrier at Kaleva, with the words ‘Notify Frank Wise,’ omitted therefrom. That said goods were taken by the connecting carrier at Kaleva, namely, the Pere Marquette Railroad Company, and were carried by it over its line of railroad and later delivered to the Grand Trunk Railroad Company, and were by it placed upon the track at Gratiot siding, Detroit, Mich., for delivery, on the 30th day of September, 1905.”

That by reason of the negligence of defendant, plaintiff suffered loss.

“And plaintiff avers that all of such loss and damage was occasioned solely by reason of the neglect and carelessness of said defendant to properly make out said waybill, and by omitting from said waybill, which was delivered to the connecting carrier, the words, ‘ Notify Frank Wise.’”

The circuit judge instructed the jury to return a verdict for defendant for the following reasons:

“ The measure of damages would be the difference between the value of the goods at the time when Frank Wise should have been notified and the time when he was actually notified, which was on the 3d day of October, 1905. There is no evidence of any damage. There is nothing that you could base a verdict upon, nothing that you could base a finding of damages upon for the plaintiff, if that is held to be the measure of damages, so that there is nothing for you to deliberate upon. It becomes my duty to instruct you to return a verdict, and I will do that in accordance with the defendant’s eighth request to charge. [Reading.] There is no evidence in this case as to the amount of the injury to the potatoes which was due to the negligence of the defendant, and there is evidence in the case from which it would appear that the transportation of the potatoes was delayed both by the Pere Marquette Railroad Company and the Grand Trunk Railroad Company. There is no evidence, therefore,, before you, which will enable you to separate the injury due to the negligence of the defendant, if any, and if you find that the defendant was negligent (and that is admitted) your verdict must be for nominal damages, six cents. The clerk may take your verdict.”

Plaintiff brings the record to this court for review upon writ of error.

The contract contained a clause, whereby the defendant agreed—

“ To carry to said destination, if on its road; otherwise to deliver to another carrier on the route to said destination. * * * No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignees.”

If the usual rule which prevails in this State as to the liability of connecting carriers applies to this case, there can be no doubt of the correctness of the conclusion reached by the circuit court. McMillan v. Railroad Co., 16 Mich. 79, 120 (93 Am. Dec. 208); Detroit, etc., R. Co. v. McKenzie, 43 Mich. 609 (5 N. W. 1031); Rickerson Roller Mill v. Railroad Co., 67 Mich. 110 (34 N. W. 269); Smith v. Express Co., 108 Mich. 572 (66 N. W. 479); Modern Match Co. v. Railroad Co., 140 Mich. 570 (104 N. W. 19); Rolfe v. Railway Co., 144 Mich. 169 (107 N. W. 899, 115 Am. St. Rep. 388); Goehrend v. Railroad Co., 146 Mich. 497 (109 N. W. 849); Reason v. Railway Co., 150 Mich. 50 (113 N. W. 596).

Plaintiff’s counsel contend, however, that the usual rule does not apply, but that, by virtue of its negligence in omitting the instruction to notify Wise, defendant assumed the obligations of an insurer, and was responsible for the entire loss, citing in support of their contention: 4 Elliott on Railroads, § 1440; 2 Hutchinson on Carriers, § 611; 6 Cyc. pp. 485, 486; Weaver v. Railway Co., 135 Mo. App. 210 (115 S. W. 500); Little Miami Railroad Co. v. Washburn, 22 Ohio St. 324; St. Louis, etc., R. Co. v. Coolidge, 73 Ark. 112 (83 S. W. 333, 67 L. R. A. 555, 108 Am. St. Rep. 21). See, also, Merrick v. Webster, 3 Mich. 268; Hutchings v. Ladd, 16 Mich. 493; Dana v. Railroad Co., 50 How. Prac. (N. Y.) 428.

The authorities cited, in so far as they support plaintiff’s contention, are opposed to the rule in this State as ex-amplified by the eases hereinbefore cited, and relate to a diversion from a prescribed route. We have no doubt that where a carrier bills freight over a different route than that prescribed by the contract, and the property is damaged by the negligence of the carrier transporting it over the changed route, the first carrier would be liable for the entire damage. But we are not prepared to hold that, if in such a case the goods were safely transported over such changed route to their destination, the initial carrier would be responsible for the negligence of the last carrier. So in the instant case, if the car had been destroyed by fire after the time when, in the usual course of business, Wise would have received notice and removed his potatoes, but was not notified because of defendant’s negligence, it might well be held that defendant was liable for the entire loss. But where, as in this case, the evidence indicates that by far the greater part of the loss occurred through the unexplained delays of the other carriers, it would be inconsistent with our rule to hold that the omission of the instruction to notify Wise converted defendant ipso facto into an insurer of delivery of the potatoes in good condition. We deem it more logical to hold the defendant responsible only for such portion of the delay and consequent loss, if any, as was dependent upon its own negligence.

The judgment is affirmed.

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


author: Bird, J.

text:
    PEOPLE’S SAVINGS BANK v. VAN ALLSBURG.
    1. Fraudulent Conveyances — Bulk-Sales Law — Fixtures— Words and Phrases.
    Vehicles, harness, caskets, and. appliances used in the business of an undertaker are not fixtures within the meaning of the bulk-sales law (Act No. 223, Pub. Acts 1905).

    2. Same — Merchandise.
    But caskets, robes, and hardware bought to resell in the undertaking business are merchandise within its terms.
    3. Same — Creditors—Statutes.
    Act No. 223, Pub. Acts 1905, applies to no particular class of creditors, but to all the creditors of the seller.
    Error to Kent; Perkins, J.
    Submitted October 7, 1910.
    (Docket No. 13.)
    Decided May 8, 1911.
    Garnishment proceedings by the People’s Savings Bank against Arie Van Allsburg and Louis Van Allsburg. A judgment for plaintiff on a verdict directed by the court is reviewed by defendants on writ of error.
    Reversed.

      Hatch & Raymond, for appellants.

      Smedley, Hall & Freeland, for appellee.

       As to what kind or classes of property are within the operation of bulk-sales statutes, see note in 25 L. R. A. (N. S.) 758.

   Bird, J.

After obtaining a judgment in the Kent circuit court against Edward Howell, the plaintiff garnished the defendants, who were purchasers of Howell’s undertaking business, stock, and appliances. The defendants disclosed that they had no money or property in their possession belonging to Howell, and that they were not indebted to him. The plaintiff was not content with this disclosure, and instituted this suit under the statute to test the truth of the disclosure. After a hearing on the merits, the trial court directed a verdict for the plaintiff in the sum of $515.89; the same being in full amount of their judgment against Howell. The reason for the direction was the failure of the defendants to comply with the bulk-sales law.(Act No. 223, Pub. Acts 1905) in making the purchase from Howell.

Howell was, prior to the sale, carrying on the undertaker’s business in Coopersville. In November, 1908, he transferred to defendants, by bill of - sale, the following described property:

“ One funeral car, one casket wagon, two sets of bobs, two sets of double harness, one rubber-tired buggy, one lowering device, three floor rugs, one church truck, three cooling boards, one slumber robe, five door badges, two pair of pedestals, one set of embalming tools, two candelabra, four dozen chairs, one roll-top desk, two cases of embalming fluid, one earth cover, one set of funeral nets, and all other fixtures used in the undertaking rooms of said first party, and all caskets, steel vaults, robes, and casket hardware, belonging to E. W. Howell and now in his possession at his undertaking rooms in the Davis Building.”

When the purchase was made, no attempt was made to comply with Act No. 223.- The defendants insist that the sale did not come within the provisions of Act No. 223, and, therefore, no notice to the creditors of Howell was necessary, and that the trial court was in error in directing a verdict for the plaintiff.

The important assignments of error are:

First. Was any of the personal property conveyed fixtures ?

Second. Was any of the personal property conveyed merchandise?

Third. Does Act No. 223 require notice to creditors other than merchandise creditors ?

Was any of the property fixtures ? The property conveyed was not of a character which would admit of its becoming annexed to real estate. It was not designed to be a fixture, and was not used' or treated as such. Most of the property conveyed was similar in kind to that conveyed in the case of Bowen v. Quigley, ante, 337 (130 N. W. 690), decided March 31, 1911, and we think this question is ruled by that case.

Was any of the property merchandise? Merchandise is defined by Webster as “objects of commerce; whatever is usually bought and sold in trade or market by merchants.” We think that “merchandise,” as used in this act, must be construed to mean such things as are usually bought and sold in trade by merchants. Measured by this standard, the caskets, steel vaults, robes, and casket hardware must fall within the meaning of that term. These articles were bought to sell again. They were not purchased with the intent to keep or use in his business. The fact that they were not sold singly, but were usually sold in connection with a casket, would not take away from them the character of merchandise.

Does Act No. 223 require notice to creditors other than merchandise creditors? Section 1 of the act provides that the sale shall be void as against the creditors of the seller, unless the statutory notice is made giving a full, accurate, and complete list of his creditors. Section 3 provides that if the purchaser does not comply with the provisions of the act, upon application of any of the creditors he shall become a receiver, etc., and the same section further provides that if he shall conform to the provisions of the law he shall not be liable to any of the creditors of the seller. If the legislature intended to restrict the notice to any particular class of creditors, it did not so indicate by the language used. The language made use of is clear and free from ambiguity, and no room is left for the contention that the legislature intended it to apply to any particular class of creditors.

A determination of these questions we think will render it unnecessary to pass upon the other assignments of error.

The judgment of the trial court is reversed, and a new trial ordered.

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


author: Moore, J.

text:
      In re CRAWFORD’S ESTATE. SUTTON’S APPEAL.
    1. Appeal and Error — Saving Questions for Review — Estates of Decedents.
    On appeal from an order of the probate court determining an administrator’s compensation, counsel having failed to claim the right to introduce further testimony, the action of the trial court in closing the proofs and entering the order allowing an additional sum as compensation, is not reviewable on error.
    2. Estates of Deoedents — Extraordinary Services.
    An allowance of $75 for extraordinary services to an administrator of an estate of about $1,900 is not so insufficient as to constitute an abuse of discretion.
    Error to Wayne; Murfin, J.
    Submitted February 15, 1911.
    (Docket No. 192.)
    Decided May 8, 1911.
    John Sutton presented his final account as administrator of the estate of William Crawford, deceased, and the same was. disallowed in part by the probate court. On appeal to the circuit court by the administrator, the order was modified. Claimant brings error.
    Affirmed.

      Philip A. McHugh and William Henry Gallagher, for appellant.

      Walter M. Trevor, for appellee.
   Moore, J.

The appellant in his account filed in probate court made a claim of $150 for extraordinary services. This claim was disallowed, and an appeal was taken to the circuit court, where the circuit judge allowed him $75. He made a motion for a new trial, which motion was overruled, and the case is brought here by writ of error.

Counsel say in their brief:

“ The question involved is the right and power of the judge, in a case tried before a court without a jury, to cut off plaintiff in the midst of his case and render his decision thereon, without allowing the plaintiff to put his entire case upon the record.”

They say they were not allowed a hearing in the probate court, and were not allowed a full hearing in the circuit court. In filing notice of the appeal from the probate court (section 669, 1 Comp. Laws), reasons for taking said appeal were given, but there was no suggestion that the judge of probate had not given appellant a hearing, and there is nothing in the record from which.we could so find. In the hearing in the circuit court, the appellant gave testimony, which, in the narrative form, fills more than three pages of the printed record. In this testimony it was disclosed that the estate amounted to about $1,900, $100 coming from Mr. Tierney, a good watch worth $15, trunks $10, money on the person of the deceased $75, money in the Home Savings Bank, Detroit, $499, and the balance money in the bank in Pittsburg, Pa., and that this constituted the entire estate, and that the judge of probate had allowed the administrator for his services $71.42. At this stage of the proceedings the following occurred:

“ The Court: Mr. Trevor, why didn’t Judge Durfee allow this man more compensation than $70 ?
" Mr. Trevor: This whole matter was gone into by Judge Durfee, and he had allowed counsel who performed all of this work a large fee—
“ The Court: $100, I notice from the account.
“ Mr. McHugh: He only allowed $25, your honor, for handling the estate for two years. We put in a claim for $100, and we finally got $25 for handling that Pittsburg litigation. It only cost the estate $125.
“ The Court: Do I understand that you have been allowed for all the work done as counsel in this estate $25 ?
Mr. McHugh: $125, your honor. We put in a claim for $100, and were allowed $25 in the final account. Now, counsel will concede that, when we made the demand for this extra compensation, Judge Durfee refused to hear testimony, but decided it without hearing any testimony, so that he did not know of this extra service that we performed. Mr. Sutton was never sworn as a witness—
“ The Court: I think I shall allow you $75 additional compensation. It seems to me that is very fair in view of the character of the estate, and the work that has been done, and in view of the circumstances. I do not think I shall allow costs on this appeal because it has not taken up very much time.
“Mr. Trevor: If your honor please, I want to correct my brother’s statement that Judge Durfee did not hear any testimony. He did. He heard testimony from Mr. Sutton and Mr. McHugh.
The Court: It is not necessary to correct it.
“Mr. McHugh: I want this on the record—
“ The Court: I do not want it on the record. I do not want anything to go on the record to indicate that Judge Durfee has not performed his duty, because I don’t believe it. You may prepare a proper order for $75 additional compensation.
“Mr. Trevor: I haven’t any objection. That is $75 in full of all—
“The Court: Yes.”

And thereupon the court caused a finding and order to be entered allowing said plaintiff the sum of $75 for extraordinary services rendered by said plaintiff as administrator of the said estate.

The record does not show that at this time objection was made to the course taken or that any further proof was offered. Later a motion was made for a new trial. Among other reasons assigned was the statement that counsel had not been allowed to put in all the testimony desired. In overruling this motion the court said:

“ Motion for new trial has been made in this case, based on a number of grounds; the principal error urged on the hearing, however, being that the amount awarded the administrator for extra compensation was insufficient. At the time of the trial, from the testimony developed and the admissions of counsel, all the facts necessary to a proper determination of the suit were before the court. No reason has since been advanced to suggest why the allowance made by the court was not proper. Believing it to be fair to all parties concerned, the motion is denied.”

If counsel desired to put in other testimony, he should then have indicated it.

The administrator had testified with considerable detail what he had done and the amount of the estate. In view of the allowances already made to the administrator and to his counsel, we do not think it can be said to be error that the allowance made by the circuit judge was not larger. In re Gallagher's Estate, 120 Mich. 365 (79 N. W. 570); Mower's Appeal, 48 Mich. 441 (12 N. W. 646); Power's Estate, 92 Mich. 106 (52 N. W. 298); Brewster's Estate, 113 Mich. 561 (71 N. W. 1085); King's Estate, 113 Mich. 606 (71 N. W. 1080).

Judgment is affirmed, without costs to either party.

Hooker and Brooke, JJ., concurred. Blair and Mc-Alvay, JJ., concurred in the result.


author: Ostrander, C. J.

text:
    BURTON v. SNOW.
    Equity — Dismissal of Bill — Want of Prosecution — Injunction.
    Abuse of discretion in dismissing a bill of complaint at the time set for hearing the cause is not made out in a suit that had been pending upwards of two years, and had been adjourned from time to time at the instance of complainant’s counsel, and finally set down for hearing on the understanding that no further adjournment should be granted, where one of complainant’s counsel withdrew from the cause two days before the hearing, and the remaining counsel advised complainant that he would be otherwise engaged and that an opportunity for preparation would be granted by the court, complainant employing another solicitor, but no evidence of preparation appearing, and where the order of dismissal was without prejudice to complainant’s right to file a second bill, and the effect of such dismissal was to terminate an injunction restraining the sale of corporate stock in defendant’s possession.
    Appeal from Wayne; Hosmer, J.
    Submitted February 9, 1911.
    (Docket No. 150.)
    Decided May 8, 1911.
    Bill by William J. Burton against Robert F. Snow, personally and as administrator of tbe estate of Frederick F. Snow, deceased, and the W. J. Burton Company, to enjoin the sale of corporate stock, and determine its ownership. From a decree dismissing the bill of complaint, complainant appeals.
    Affirmed.

      John E. Moloney and Frank W. Atkinson, for complainant.

      Charles S. Hampton, for defendants.
    In December, 190?, complainant filed his bill in the Wayne circuit court, in chancery, against Robert F. Snow, Robert F. Snow, administrator of the estate of Frederick F. Snow, and the W. J. Burton Company, a corporation, in which he prayed that the defendant corporation be restrained from paying a judgment rendered against it at the suit of Robert F. Snow, as administrator of the estate of Frederick F. Snow, on the 2d day of November, 190?, and that a certificate of stock issued by the said W. J. Burton Company to Frederick F. Snow be decreed to be the property of the complainant and be ordered assigned and conveyed to complainant. The bill was answered by Robert F. Snow and Robert F. Snow, administrator, April 22, 1908. No further pleadings having been filed, the answering defendant moved the court to dissolve the injunction; the motion being noticed for hearing on June 11,1908. This motion appears to have been denied, and another motion to dissolve the injunction was made and noticed for hearing July 12, 1909; one ground of the motion being that no bond was given by the complainant, nor any sum of money deposited before the injunction was secured. It seems to be conceded by counsel, although the record does not disclose the fact, that a bond was filed after the second motion to dissolve the injunction was made, and that the motion was denied. On the 16th of April, 1910, a decree was entered in the cause dismissing the bill of complaint for want of prosecution, with the provision that:
    “This decree shall be without prejudice to the said complainant as to a new bill of complaint filed at any time within 60 days from this date for the purpose of ascertaining and determining the ownership of the stock certificate of $1,000 in said W. J. Burton Company, which was one of the purposes of the bill of complaint in this cause.”
    The following recital appears in the decree:
    “The hearing of said cause having been adjourned from time to time at the request of said complainant, and having been adjourned from April 9, 1910, to April 16, 1910, upon the distinct understanding that no further adjournment would be granted, * * * it appearing to the court that said cause was begun over two years ago, and that for more than two years said defendant, Robt. F. Snow, administrator, has been enjoined and restrained from collecting a judgment obtained by him against W. J. Burton Company, one of the defendants in this cause, which said defendant has entered no appearance in this cause, and the complainant not being in court, and his said counsel declining to proceed with the hearing of said cause, and the court being fully advised in the premises.”
    The complainant petitioned the court to set aside and vacate the decree and grant a rehearing, setting up, among other matters, that he intrusted his interests in said cause to his solicitors and relied on them to bring the cause to a hearing at a proper time, and to give him sufficient time in which to. produce his proof; that he was not informed by Washington I. Robinson, one of his solicitors, that he would not try said cause for him on the 16th of April, 1910, until it was too late to employ other, counsel; that he was informed by his other solicitor, Edwin C. Bolton,, on the 14th of April, 1910, that on account of said Robinson withdrawing from the cause, and the fact that said Bolton was not familiar with the cause and would he otherwise engaged on April 16th, the court would grant an adjournment sufficient to enable complainant to employ counsel to take the place of said Robinson; that he relied on said Bolton to get said adjournment for him, and has now employed counsel and is willing and ready to go to a hearing on the merits at any time. Accompanying this petition is the affidavit of complainant, which contains, among other things, the following:
    “ That the said Washington I. Robinson had principal charge of the said cause, and he expected the said Robinson to try said cause when it came on for hearing. That on the 14th day of April, 1910, he was informed by his solicitor, Edwin C. Bolton, that the said Robinson had withdrawn from the case, but that it would be adjourned long enough for him to employ counsel to take the place of the-said Robinson. That he relied upon the statement of said Bolton and did not appear in court on the said 16th day of April, 1910.”
    There is also the affidavit of Mr. Bolton to the effect that Mr. Robinson had principal charge of the cause, and that deponent was not expected to try it; that he was informed by Robinson on the 12th of April, 1910, that he (Robinson) would not try the cause on the 16th of April; that on the 14th of April he had informed complainant of this fact, and that he (deponent) would not be able to try it on the 16th of April, because he would be otherwise engaged, and because he had relied on said Robinson to try the cause; that he informed complainant that, under the circumstances, the court would undoubtedly grant an adjournment to enable him to retain counsel, or for deponent to prepare for the hearing of the cause. There is also annexed to the petition certain testimony of witnesses which we assume was given in the circuit court upon the trial of the law case. A counter showing was made. This showing, in part, is that, by explicit agreement between the solicitor for defendants and one of the solicitors for complainant, the hearing was set down for April 9, 1910, of which date complainant and Robinson, his solicitor, were notified by letter by the solicitor for defendants; that on April 9, 1910, a further adjournment was requested by solicitors for complainant, and the hearing was set down, by the court, for April 16th. On the 22d of July, 1910, the petition was denied, with costs, and from the order denying it this appeal is taken.
   Ostrander, C. J.

(after stating the facts). Whether there was an abuse of judicial discretion is the only question presented. Such an abuse must be made out by the one who asserts it. The history of the litigation, its purpose and effect, are to be considered, as well as the particular facts attending the refusal of the court to grant a further continuance. The effect of the action of the court upon the party complaining is also to be considered. The effect in this case was to relieve defendant Snow, administrator, from an injunction restraining him from collecting from the W. J. Burton Company a dividend upon certain stock, for which dividend a judgment was recovered in November, 1907. To determine who owns the stock, complainant was given leave to file a new bill.

The refusal of a further continuance was warranted because there was no evidence of preparation or of purpose to bring the cause to a hearing. The pleadings indicate that the matters involved are not complicated. The cause had been pending for two years, had been repeatedly adjourned by complainant, and had been set down for a day certain “with the distinct understanding that no further adjournment would be granted.” That one of the solicitors for complainant had withdrawn from the case was known to the other solicitor on April 12th. No effort was made thereafter to prepare for the hearing, and the court may well have found that failure to make the effort was not excused by the general statement that it was then too late to employ other counsel or for the solicitor of record to prepare for hearing. Complainant was informed on April 14th that Mr. Robinson had withdrawn from the case. He does not say that he did not know it at an earlier day, or that he is not, directly or indirectly, responsible for such withdrawal.

We find no abuse of discretion made out, and therefore affirm the order appealed from, with costs to defendant Snow.

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


author: Hooker, J.

text:
    MERRITT v. WESTERMAN.
    1. Adverse Possession — Open Possession — Evidence—Continuity.
    Adverse possession may be evidenced in other ways than by residing on the premises, as by making permanent improvements, or carrying on logging or similar operations, and though operations may have ceased for a time, possession is not broken if visible improvements exist and remain openly upon the premises.
    3. Same — Taxation—Payment — Statute op Limitations — Continuity.
    ' That one in possession of lands permitted them to be assessed to a former owner, and purchased the tax titles annually, is not conclusive of his inhostile occupancy, nor did the fact interrupt the running of the statute.
    3. Same — Evidence.
    Such conduct is, however, admissible to show the character of the occupancy.
    4. Same — Tacking- Possession — Land Contracts.
    Nor did the fact that he sold the land on contract to successive purchasers who forfeited their rights, interrupt the possession of the vendor, who, if he promptly took possession, was entitled to tack onto his occupancy the possession of his vendees.
    5. Evidence — Hearsay.
    Entries made by the vendor of land of payments indorsed on the land contract, being hearsay, are not competent to show the nature of his possession in ejectment against his grantee.
    Error to Manistee; Withey, J.
    Submitted February 17, 1911.
    (Docket No. 102.)
    Decided May 8, 1911.
    Ejectment by James E. Merritt against Walter S. Westerman. Judgment for defendant. Plaintiff brings error.
    Reversed.

      Smurthwaite & Belcher, for appellant.

      Grant & Neal, for appellee.
   Hooker, J.

The plaintiff was defeated in an ejectment case, and he has appealed. He is, admittedly, the record owner of the land in controversy so far as the original claim of title is concerned. The defendant claims title by adverse possession. This alleged possession dates from the year 1881, when one S. W. Fowler, a lawyer, is said to have put a tenant in possession of the land, and it is claimed that this possession continued in Fowler, his tenants and grantees, until defendant acquired all of their rights under it through conveyances from Fowler’s representative. We understand defendant’s claim to be that the adverse possession ripened into a title in 1891, or 1892, and that no claim is made that the subsequent possession was continuous, and therefore that the possession after 1892 is not relied on to establish defendant’s title. The court was asked to direct a verdict for the plaintiff upon the ground that the evidence conclusively showed his record title, and that it failed to show continuous, hostile, and adverse possession in any one, for the period of 10 years after October 1, 1881.

We have examined the testimony in this case, and, with some hesitation, reached the conclusion that the court did not err in submitting the question of adverse possession to the jury. It is true that there were periods when no one resided upon the place, and when it may be doubtful whether any logging or other lumbering operations were going on ; but, on the other hand, it is claimed that such permanent and visible improvements were made and existed at all such times as must have indicated to the owner, had he seen the premises, that some one was in possession under a hostile claim, as in the cases of Whitaker v. Shooting Club, 102 Mich. 454 (60 N. W. 983); Murray v. Hudson, 65 Mich. 670 (32 N. W. 889); Lasley v. Kniskern, 152 Mich. 244 (115 N. W. 971); Kingston v. Guck, 155 Mich. 264 (118 N. W. 967); Chabert v. Russell, 109 Mich. 571 (67 N. W. 902). Possession may be evidenced in other ways than by residence on the premises.

We think, also, that there was testimony justifying an inference that these descriptions were occupied and used as one parcel, and that occupation extended to all of the land. See Kingston v. Guck, supra.

Plaintiff contends that the question should have been taken from the jury, and that all evidence tending to establish adverse possession should have been excluded for the further reason that Fowler’s conduct in allowing the lands to be assessed to the St. Mary’s Falls Ship Canal Company, and bidding them off, year after year, characterized his possession, and showed conclusively that it was not hostile, and interrupted the running of the statute of limitations.

In support of this contention, counsel cite 1 Cyc. p. 1018, where several cases are referred to. An examination of these cases will show that, in some of them, title was forfeited to the State for nonpayment of taxes, and, under the familiar rule that title by adverse possession cannot be acquired' against the State, such forfeiture interrupted the running of the statute. Such are the cases of Reusens v. Lawson, 91 Va. 226 (21 S. E. 347), and Armstrong v. Morrill, 14 Wall. (U. S.) 120, though, in the latter ease, a dissenting opinion was filed by three justices. That this is the true ground upon which most of these cases should be said to rest is indicated by the case of Harrison v. Dolan, 172 Mass. 395 (52 N. E. 513), where it was held that a sale for taxes, and a subsequent quitclaim, by the purchaser, to the disseisee, did not interrupt the possession. The court explained that the rule of the cases hereinbefore cited “could not apply, for the reason that in Massachusetts the statute runs against the Commonwealth, as jvell as private persons, and because, further, the Commonwealth never had even a momentary title to the land.” We find it unnecessary to approve or disapprove such rule, as in this case it is admitted that all of the tax titles were void, and this State never had title under the tax proceedings. Moreover, there are many authorities which hold that “ purchase of the tax title by an adverse occupant is not (necessarily) an interruption of the continuity of the possession as against the original owner,” and we approve this rule. See 1 Cyc. (II) p. 1016, and cases cited.

That the conduct of the occupant in relation to assessment, payment, or nonpayment of taxes may be admissible upon the question of hostility, in some cases, is probable. See Murray v. Hudson, 65 Mich. 670 (32 N. W. 889); Sauers v. Giddings, 90 Mich. 50 (51 N. W. 265).

The record shows that Fowler sold this land upon contract on one or more occasions, and it was claimed that this was an interruption of the continuity of his adverse possession. When Fowler recovered the possession and title through forfeiture or otherwise, from his vendees and lessees, their possession may have inured to his benefit if there was no interval between the vacation by one and the occupancy by the other. Whether this possession can be said to have been continuous, within this rule, must depend on the promptitude with which Fowler asserted his claim by possessory acts. There is uncertainty as to the time that Hull vacated and Richmeyer entered, and there is no very clear testimony that anything was done meantime. But, had Fowler moved at once upon the place, Hull’s possession might have been made to inure to his benefit through tacking; and within the rule of Whitaker v. Shooting Club, and other cases cited, if the condition of the premises was notice of a hostile occupancy, we see no reason why such possession should not carry with it the right to tack Hull’s possession. By the vacation and forfeiture, Hull surrendered his rights to Fowler with all the existing evidences of occupancy. See Vincent v. City of Kalamazoo, 111 Mich. 230 (69 N. W. 501); 1 Cyc. pp. 1001, 1003, note 60, pp. 1004, 1006, subd. 4. It is said (1 Cyc. par. B, p. 983 ):

“Actual possession of land consists in exercising acts of dominion over it, and in making the ordinary use of it, and in taking the profits of which it is susceptible. This dominion may consist in and be shown by a great number and almost endless combination of acts, and, where the statutes of limitations have not designated certain things as requisite, the law has prescribed no particular manner in which possession shall be maintained and made manifest. Nor, on the other hand, has the law attempted to lay down any precise rules by which the sufficiency of a given set of facts to constitute possession may be determined. It is ordinarily sufficient if the acts of ownership are of such a nature as a party would exercise over his own property and would not exercise over another’s. Actuality of possession is a question compounded of law and fact, and its solution must necessarily depend upon the situation of the parties, the nature of the claimant’s title, the character of the land, and the purpose to which it is adapted and for which it has been used. All these circumstances must be taken into consideration by the jury, whose peculiar province it is to pass upon the question. The only rule of general applicability is that the acts relied upon to establish possession must always be as distinct as the character of the land reasonably admits of, and must be exercised with sufficient continuity to acquaint the owner, should he visit the land, with the fact that a claim of ownership adverse to his title is being asserted. Trivial and disconnected acts, doubtful and equivocal in their character, and which do not clearly indicate the intention with which they are performed, cannot be regarded as amounting to possession; otherwise a man might be disseised without his knowledge, and the statutes of limitations might run against him while he had no ground to believe that his seisin had been interrupted.”

In his testimony, defendant introduced several contracts in relation to the premises, and, if the execution of these was proved, as we understand it to have been, they were admissible; but the admission of the memoranda and indorsements of payments, etc., thereon, was hearsay and improper. The jury might naturally infer that the possession continued under the contracts as long as the payments, so shown, continued. Indeed, counsel urge this upon us in their brief. But they were no more than unsworn evidence of facts tending to show possession, and they may have been potent with the jury.

We are constrained to reverse the judgment and direct a new trial.

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


author: Brooke, J.

text:
    MACK v. ENGEL.
    1. Appeal and Error — Equity—Practice—Register’s Eee— Joint Appeal — Costs.
    Only one fee, on appeal, is required to be paid the register in chancery, under Act No. 299, Pub. Acts 1909, and after its payment by either party, the opposite party may claim the benefit of an appeal, the adjustment of costs to be made on final decree.
    2. Interest — Partnership Associations Limited — Advances by Partner.
    As between partners, one who had advanced funds for partnership purposes heyond the amount of the agreed contribution, is entitled to collect interest thereon at the legal rate, independently of any express agreement.
    3. Same.
    Interest on such advances is due a member of a partnership association, limited, as in case of an ordinary partnership.
    4. Same — Rate.
    No agreement in writing for a higher rate than 5 per cent, being shown, the rate fixed by Act No. 207, Pub. Acts 1899., i. e., 5 per cent., governs.
    5. Equity — Estoppel—Decree — Interlocutory Order — Judgment.
    A defendant, in a suit to secure an accounting of a sale of partnership property, is estopped, after obtaining an interlocutory order confirming the validity of the sale as to complainants, from setting up fraud of the vendee to invalidate it.
    6. Sales — Partnership Associations — Dealings with Partner —Corporations.
    Sales of lumber made in good faith by a member and officer of a partnership association to the firm, at current market prices, determined by agreement with other members of the association, are valid.
    7. Joint Stock Companies — Partnership Associations, Limited —Contracts.
    Such association is liable for lumber purchased of an officer in good faith, with knowledge of the complaining partners, who made po objection for more than seven years, during which the account was made, although some sales were in excess of $500 and no contract in writing signed by two officers of the association was executed, as provided by 2 Comp. Laws, § 6083.
    8. Same — Profits of Member — Bona Fides — Fiduciary Relations.
    On a proposed sale of the partnership assets, in which the defendant member attempted to secure a profit to himself by purchasing land at $1,400 and including it in the transfer at an increased price, no actual profits appearing because the deal was rescinded for fraud of the purchaser, the association was not entitled to participate in the individual transaction.
    9. Same — Accounting.
    Where the defendant agreed to accept stock in the purchasing corporation for his indebtedness due from the partnership, and was compelled by the final decree to accept the property to be transferred instead of such stock, the transfer being rescinded on his claim of attempted fraud by the transferee, the decree was equitable and defendant who thereby sustained a loss should not be further penalized.
    10. Same — Winding up — Dissolution—Parties.
    Although the partnership association, limited, was not made a party defendant in a proceeding for accounting, to which all the other persons interested were made parties, and in which they ask a decree of dissolution, an order dissolving it was properly entered.
    Appeal from Kent; Perkins, J.
    Submitted February 17, 1911.
    (Docket No. 65.)
    Decided May 8, 1911.
    Bill by Ida Mack and John Mack against George Engel, James W. Latta, Jacob L. Engel, the Doxtator Revolving Cased Shelving Company and Louis C. Parmenter for an injunction, an accounting and other relief. From a decree for defendant, complainant Ida Mack appeals.
    Affirmed.

      A. A. & H. A. Ellis, for complainants.

      G. A. Wolf (J. T. McAllister, of counsel), for defendants.
    Complainant John Mack had been engaged in manufacturing carriage bodies, sleighs, and cutters since 1873. In 1892 he erected a building in Grand Rapids and continued in the same line of business until 1902. At that time Mack had a mortgage for $1,900 on his plant besides some other indebtedness. In J une of that year, a partnership association, limited, known as the “Mack Sleigh Company,” was organized with a capital stock of $4,000. This stock appears to have been paid for wholly by a transfer to the company of the property Mack had theretofore owned. The stock was issued as follows: John Mack, $100; Ida Mack, $1,800; George Engel, $1,900; Sherwood Hall, $200.
    Hall paid nothing for his stock, and it was later purchased by Engel and reissued to defendants George and Jacob Engel and James W. Latta. Engel paid for his stock in full; the money apparently having been used to pay the mortgage upon the plant. Ida Mack paid nothing for her stock; its value being represented by the property turned over to the association by her husband. The company had no capital whatever with which to conduct its business. The money necessary to finance the concern was, from the first, furnished by defendant George Engel. Complainant John Mack, who at the time of the hearing in the court below (1910) was a man 74 years of age, was retained as manager of the manufacturing, and was paid for his services $50 per month. He continued in this position and drew this salary up to the time of the hearing.
    Defendant George Engel, at the time of the formation of the association, was a manufacturer of, and dealer in, lumber. During the eight years the business was prosecuted, he sold to the Mack Sleigh Company approximately 300,000 feet of lumber. During the same period, Mack purchased for the company considerable lumber from outside sources. At the time the association was organized, George Engel, John Mack, and Sherwood Hall were elected managers, and Engel was chosen chairman, Mack secretary, and Hall treasurer.
    Hall never performed the duties of his office, and severed his connection with the concern at an early date. From the beginning the books were kept in Engel’s office by Engel’s bookkeeper, and all the finances were handled by him, except that, ordinarily, the money for the pay roll was handed to Mack, who distributed it among the employés. Engel made advances either in money or lumber, from time to time, during the whole period of operation, and furnished to Mack trial balances each month, showing the state of the business including the amount of his own account. Included in this account were charges for interest at 6 per cent, per annum on the sums advanced by Engel, and also a charge of $100 per year for keeping the books and transacting the financial business of the firm. The concern did not prosper. Its business was light, and, as it was all the time paying interest upon all the capital required to run it, it gradually became more and more indebted to Engel, until, in the spring of 1909, his credit, exclusive of the $1,900 originally invested by him, amounted to upwards of $6,000. Prior to this time, both he and Mack had made some effort to dispose of the plant but without success. The building was out of repair and the machinery out of date. At this time (March, 1909) the defendant the Doxtator Revolving Cased Shelving Company was about to be organized, and negotiations were opened by Engel with a view to selling the plant of the Mack Sleigh Company to that concern. In order to effect this sale, Engel bought lot 6 adjoining the Mack Sleigh Company property, which was located on lot 5, for $1,400, and entered into an agreement to sell both to the Doxtator Company for $10,500. This sum was paid by the issuance to Engel of $'¡',500 par value (then supposed to be worth 80 per cent., or $6,000) of the Doxtator Company stock, and the execution of a mortgage for $3,000, covering lots 5 and 6. This transaction was authorized by the Mack Sleigh Company at a meeting, notice of which was given complainants, but which they did not attend. Upon the consummation of the deal, Engel credited the Mack Sleigh Company with the sum of $6,000 on his account.
    At this point, and on May 19, 1909, complainants filed their bill of complaint. They prayed that Engel be enjoined from disposing of the Doxtator stock and the $3,000 mortgage; that he be compelled to give an account of his dealings with the Mack Sleigh Company; that a receiver be appointed for said company; and that its affairs be closed up.
    To this bill defendant Engel answered, averring that his dealings with the Mack Sleigh Company were honest and fair, that the sale to the Doxtator Company was an advantageous one for the Sleigh Company, and, after proper averments by way of cross-bill, praying in effect that complainants be enjoined from interfering with the assets of the Sleigh Company pending the suit. The answers of the other defendants are not material to the controversy.
    On July 9, 1909, the court below entered the following interlocutory order:

      “ In this cause the order to show cause heretofore issued on defendant Engel’s cross-bill and the defendant’s motions to dissolve the injunction and also for security for costs coming on to be heard, and after reading the bill and answers and affidavits and in support thereof and hearing the arguments of counsel, and the court having duly considered the same, and it appearing to the court that the business of the Mack Sleigh Company, Ltd., is unprofitable and cannot be successfully carried on, and that the sale of the real estate known as lot 5 Factory Sites addition was made in good faith, and that the Doxtator Revolving Cased Shelving Company is an innocent purchaser thereof in good faith, on motion of G. A. Wolf, and C. Roy Hatten, solicitors for defendants, it is ordered, and the court does hereby order and decree, as follows:
    “(1) That the injunction heretofore issued herein be and the same is hereby dissolved as to the sale of said lot 5, and that said Doxtator Company are entitled to possession of the premises under their deed and agreement of purchase, subject to the right of the Mack Sleigh Company to use the machinery for ninety ( 90 ) days as agreed.
    “ (2) It is also hereby ordered and decreed that the injunction against George Engel disposing of the stock and $1,600 notes and mortgage received by him be dissolved upon his executing a bond to the complainants in the penal sum of $2,000, to be approved by the register of the court conditioned to satisfy and discharge any decree herein which may be rendered against him in their favor; and in the meantime and until the execution of such bond, that the injunction in that respect remain in full force and effect.
    “ (3) It is ordered and decreed that an injunction issue against complainants enjoining them from collecting any moneys due the Mack Sleigh Company, Ltd., and that the bills for accounts due be turned over to George Engel, treasurer, to be by him collected and the moneys disbursed for the necessary expenses in working up the material now on hand, and that he give a bond with sufficient surety in the penal sum of $500 to the complainants conditioned for his faithful accounting for all moneys received by him. And that John Mack report to Mr. Engel, treasurer, the moneys he has collected and disbursed to date.
    “ (4) That the defendants’motions for security for costs be and the same are hereby denied.”
    In December, 1909, defendant George Engel filed a supplemental cross-bill, in which he represented that he had been induced to enter into the deal with the Doxtator Company through false and fraudulent representations of Doxtator, that he had demanded a reconveyance of the property from the Doxtator Company upon the surrender of the $7,500 of stock held by him in that company, which demand had been complied with, and he prayed:
    “That the salé and transfer between this defendant and said Doxtator Revolving Cased Shelving Company may be set aside and held for naught; and that said lot 5 be considered the property of said Mack Sleigh Company, Ltd., and its business wound up.”
    Complainants, answering this cross-bill, take the position that Engel is estopped by his former action from questioning the sale to the Doxtator Company, so far as it affects them, and they claim that the credit of $6,000 should be permitted to stand, and that Engel should be compelled to account for the $3,000 mortgage less the $1,400 thereof assigned to Parmenter for the purchase of lot 6, and that he should further account for alleged over-' charges for material and interest.
    After a full hearing upon the merits, the following decree, which also contains a statement of fact as found by the court, was entered.
    “ The court does hereby find:
    “ (1) That the defendant, George Engel, did not practice any fraud upon, or in any other respect take undue advantage of, the Mack. Sleigh Company. He was a dealer in lumber. That was his principal occupation at the time the Sleigh Company was organized. He was induced to take stock in the new company to assist Mr. Mack in paying two mortgages then covering his plant, aggregating in amount about $1,800. Mr. Mack had been in business alone for some years, had erected and equipped this factory building, and needed financial assistance, and the organization of the Sleigh Company was a means to that end. At the time the company was organized, Mr. Mack had been doing some work for Mr. Engel in cutting lumber into various dimensions at the agreed rate of $3 per thousand feet. After the organization of the company, this work was continued at the same price for some time and until a number of car loads had been, cut up. It is now claimed by complainants that the company lost money in doing this work, and that Mr. Engel should account for such loss. The lapse of time that has intervened since the work was done, the subsequent business dealings between the parties, the monthly statements rendered, and the apparent acquiescence of all the parties concerned for so long a period of time, make the position of complainants equitably untenable.
    “ (2) The same conclusions must be reached with reference to the sales of lumber and the keeping of the books of the Mack Sleigh Company by the Engel Lumber Company. It does not appear that in any instance was the Mack Sleigh Company charged more than the market price for the lumber furnished, nor does it appear that more was charged for keeping the books of the Mack Sleigh Company than the work was actually worth.

      “ (3) The purchase of lot 6 from Parmenter was an individual transaction in which neither the Mack Sleigh Company nor the complainants have any interest, and therefore is not a proper subject to be considered in this suit for accounting. It may be that, in his effort to collect his claim against the Mack Sleigh Company, Mr. Engel overstepped the just bounds of his legal rights; but it is clear that he was never authorized by the company to buy this lot, nor did the company itself ever buy it. It was a separate transaction.
    “ (4) Until the filing of the supplemental answer in the nature of a cross-bill by the defendant Engel, both sides were satisfied with the conclusion reached by the court on the motion to dissolve the injunction, to the effect that the sale of the company’s property to the Doxtator Company was a good faith sale. Mr. Engel now claims that he was defrauded by Doxtator, and asks to have that sale set aside. The complainants insist that the sale should stand, and that Mr. Engel should be required to account to them on the basis of a valid sale to the Doxtator Company for $6,000, the proceeds of which have been appropriated by him. The sale should stand. The proof of fraud is too vague to justify the court’s interference, under the facts and circumstances shown by this record.
    “ (5) It appears that the defendant Engel charged up annual interest on his account against the Sleigh Company at the rate of 6 per cent. He should be permitted to charge interest on his account, but only at the rate of 5 per cent., and it should be computed to the date of the settlement of his account against the Sleigh Company.
    “(6) It appears that, aside from the real estate and machinery sold to the Doxtator Company, the Mack Sleigh Company has on hand certain tools, lumber, and accounts which should be converted into cash and distributed under the order of the court. There are very few, if any, claims against the company aside from the claim of the defendant Engel; but whatever there are should be properly proven and allowed before a final accounting is had.
    “(7) That on a full accounting between defendant George Engel and the Mack Sleigh Company there appears to be an indebtedness due from him to the company at the date of hearing of the sum of $171.72.
    “ (8) That all the parties interested in the Mack Sleigh Company, Ltd., are before the court, and desire to have its affairs wound up, and the assets sold and its debts paid, and the balance of the proceeds divided pro rata among its members in proportion to the respective shares of stock held by each.
    “ (9) That the Doxtator Revolving Cased Shelving Company conceded on the hearing that it made no claim against the parties for damages, and was willing to take back its stock from George Engel and convey to him lots 5 and 6 Factory Sites addition to the village of South Grand Rapids, subject to the reservations and incumbrances thereon.
    “Now, therefore, on motion of G. A. Wolf and J. T. McAllister, solicitors for defendant, George Engel, it is hereby ordered, adjudged, and decreed by the court as follows:

      “First. That the Mack Sleigh Company, Ltd., is hereby dissolved.

      “Second. That Edward L. Eardley, Esq., the circuit court commissioner of this county, be and he is hereby appointed receiver of the assets of said Mack Sleigh Company, Ltd., consisting of cash in the hands of George Engel, accounts due said company, stock on hand, consisting among other things, of a quantity of elm, beech, and basswood lumber, unfinished sleighs, tools, and all other property; and- said receiver is hereby authorized, empowered, and directed to take possession of said property.

      “ Third. That said receiver proceed to sell all said property, assets, and effects at public sale, and convert the same into money, after giving like notice as is required by sheriffs’ sale of personal property. That out of the moneys realized said receiver shall first pay the costs of this suit to the defendant George Engel or his solicitors, and the costs of said sale, and his own fees. That he shall then pay all indebtedness of the Mack Sleigh Company, Ltd., and shall previously give reasonable notice to all creditors to present and prove their claims before him. That any balance remaining he shall divide among the members of said Mack Sleigh Company, Ltd., in proportion to their respective stockholdings, viz.:
    George Engel, 19 shares...--------------------------$1,900
    Ida Mack, 18 shares.................................1,800
    John Mack, 1 shares................................ 100
    Jacob L. Engel, 1 share............................. 100
    James W. Latta, 1 share.............-.............. 100
    Forty shares........ — ..........................4,000

      “ And that he promptly file his report of his doing hereunder in this cause.

      “ Fourth. That the cross-bill of the Doxtator Revolving Cased Shelving Company be and the same is hereby dismissed, without costs.

      “Fifth. That the defendant George Engel recover his costs to be taxed, and that they be paid from the funds of the company by the receiver.”
    From this decree complainant Ida Mack has appealed. Defendant George Engel likewise filed a claim of appeal. Complainant made a motion that ‘ defendant’s appeal be not considered for the reason, among others, that he had not paid the fee of $5 to the register in chancery as required by section 2, Act No. 299, Pub.' Acts 1909. This motion was argued with the case.
   Brooke, J.

(after stating the facts). We will first dispose of the questions raised by the motion. We are of opinion that the statute relied upon by complainant contemplates the payment of but one fee to the register. When this fee is once paid by either party, the opposite party may seasonably claim an appeal, and the costs, including the appeal fee, will be taken care of by the final decree. The other reasons'assigned by complainant for the dismissal of defendant’s appeal have been examined, but we find them to be without merit. The motion to dismiss is therefore denied.

The next question raised is that of interest on sums due from the Mack Sleigh Company to George Engel, computed from time to time at the rate of 6 per cent, per annum. On behalf of complainant it is urged that no interest should be allowed. On the other hand, defendant Engel contends that it was error to reduce the amount charged from 6 to 5 per cent.

As between partners, there is no doubt that a partner who makes advances for partnership purposes beyond the amount of his agreed contribution is entitled to collect interest thereon, at the customary legal rate, even in the absence of any express agreement therefor with his co-partners. 30 Cyc. p. 444, note 19; Bundy v. Youmans, 44 Mich. 376 (6 N. W. 851).

A member of a partnership association, limited, would certainly be in no worse position as to interest upon advances than a member of an ordinary partnership. 2 Cook on Corporations ( 6th Ed.), § 692.

Assuming, therefore, the right of George Engel to collect interest on his advances, to the Mack Sleigh Company, at what rate should it be computed ? Act No. 207, Pub. Acts 1899, fixes the legal rate at 5 per cent., but provides that it shall be lawful for the parties to stipulate in writing for the payment of any rate of interest, not exceeding 7 per cent, per annum. It was claimed by defendant that it was agreed between him and complainant John Mack that a rate of 6 per cent, should be charged. We are disposed to believe that this agreement was made as claimed, in view of the undisputed testimony that Engel, himself, was borrowing money for the Sleigh Company, and paying that rate for it, and further, that he rendered monthly statements to Mack showing the balance due which included interest charges. 'It would be entirely equitable, therefore, to make the allowance at 6 per cent.; but, inasmuch as there is no claim made that the agreement for that rate was in writing, as required by the statute, we must hold that the learned circuit judge was correct in reducing the rate to 5 per cent.

Defendant’s second position, in which he now seeks, as between himself and the Macks, to avoid the effect of the sale of the Mack Sleigh Company to the Doxtator Company, is untenable. He himself procured the interlocutory order confirming that sale, and we think he is now estopped from questioning its validity, so far as it affects the status of the Macks.

It is claimed by complainant that George Engel should not be permitted to make a profit on his sales of lumber to the Mack Sleigh Company. 2 Cook on Corporations (6th Ed.), § 662, discussing such contracts, says:

“ Such contracts as these are investigated very closely by the courts. They are not necessarily void, and are not constructively fraudulent. But if there is actual fraud, or if.there has been an undue advantage taken, or an unconscionable bargain made, the court will'set it aside. If the transaction is fair, the court will sustain it; if it is unfair, the court will undo it.”

We have examined the record carefully and are convinced that Engel dealt with the Mack Sleigh Company in good faith, and charged no more for the lumber sold to it than the current market price for such stock, and that the prices charged were at all times agreed to between himself, or his subordinate Miller, and Mack.

Complainant invokes section 6088, % Comp. Laws, and claims that, as several of the purchases of lumber amounted to more than $500, Engel may not recover. As before pointed out, the transactions were in good faith, were fully executed, and the lumber, the subject-matter of the contracts, appropriated to the use of the Mack Sleigh Company. Aside from this, the association is not a party to this proceeding, and the acts of the complainants, covering a period of seven years, during which they acquiesced in the course of dealing, should now be held to estop them from questioning the validity of the transactions. As bearing upon this question, it may be noted that each year reports were made to the secretary of State as required by law, which reports were signed by George Engel and John Mack, and verified upon oath by John Mack. The indebtedness due from the company to Engel was truthfully shown in these reports, and included in such balances were the sums charged by Engel for the lumber sold and delivered, as well as those charged for interest and keeping the books.

The disposition made by the court below of the claim that Engel compelled the Mack Sleigh Company to do re-sawing for him at a loss during the first months after the association was formed is affirmed. Engel’s account, therefore, as fixed by the circuit judge, will be permitted to stand.

Complainant claims that she should be permitted to participate in the profit made by Engel on lot 6, which he bought for $1,400, and sold to the Doxtator Company for $3,000. We agree with the court below in holding that this was an individual transaction on the part of Engel but, aside from that, the sale to the Doxtator Company, now having fallen through, there are no profits. Engel has bought and paid for lot 6, and he now has it on hand, and has offered to turn it over to complainants for $1,400, the price at which he purchased it.

Complainant Ida Mack, whose stock in the association had been presented to her by her husband at the time of the organization, evidently intrusted her interest to her husband. His salary, as manager, during the eight years of operation just about equals the amount of the indebtedness to Engel. After the lapse of all these years, she cannot be heard to say that, in conducting the business as he did, he acted without her authority. By compelling Engel to stand by his proposition to credit his account with $6,000 for the Doxtator stock, it is apparent he will lose a considerable sum on the re-transfer of the property to him. The record shows that lot 5, together with the building thereon, is probably worth not to exceed $3,000 or $4,000. Aside from this loss, the original investment of over $2,000 is a total loss. To further penalize Engel for an attempt, made in good faith, to put new life into a, moribund concern, would, in our opinion, be inequitable.

Although the Mack Sleigh Company is not a party to this proceeding, we can see no reason why the order for its dissolution should not stand. All parties in interest ask for such a decree, and the rights of creditors are protected by its terms.

The decree of the court below is affirmed, and the cause remanded for further proceedings in accordance therewith. No costs will be allowed either party upon this appeal.

Hooker, Moore, MoAlvay, and Blair, JJ., concurred.