author: Stone, J.

text:
    HAENER v. McKENZIE.
    1. Fraud — Peeading—Proof of Misrepresentations.
    In an action to recover for alleged fraudulent representations in tlie sale of land, plaintiff is entitled to recover upon proof of any material fraudulent representations charged, although he may have charged other acts which were not proven.

      2. Same — Material Facts — Seller’s Talk.
    Representations falsely made by defendant that the land was high and dry and good agricultural land, without mire, swamp, or boggy portions, were material facts and not mere seller’s talk, which, relied upon by plaintiff and becoming an inducing cause of the sale, render defendant liable.
    3. Same — Question for Jury.
    As to whether such representations were made as charged, held, to be for the jury.
    4. Same — Principal and Agent.
    An action will lie against defendant for a fraud knowingly committed whether he acted as principal or as agent of another.
    5. Damages — Fraud—Rescission oe Contract — Instructions— Measure oe Damages.
    In an action to recover for alleged fraudulent representations in the sale of land, it was error for the court to charge the jury that the measure of damages was the amount of money paid by the plaintiff, with interest, where there was no evidence that the contract was ever rescinded by the plaintiff and tendered back to defendant; under the pleading and evidence the measure of damages was the difference' between the value of the land as represented and what it was actually worth.
    Error to Wayne; Hosmer, J.
    Submitted January 26, 19151
    (Docket No. 50.)
    Decided September 28, 1915.
    Case by Arnold Haener against F. W. McKenzie for fraudulent representations in the sale of land. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Moore & Moore, for appellant.

      Frederick Miller and John W. Bennett, for appellee.
   Stone, J.

This case is here upon a writ of error to the Wayne circuit court to review a judgment for the plaintiff for $460 damages, in an action on the case based upon alleged false and fraudulent representations made by the defendant to the plaintiff in the making of a contract for the purchase by the latter of 40 acres of land from the defendant, as agent of the Magnolia Springs Land Company, an Alabama corporation. The land is located in Baldwin county, Ala. The declaration, in substance, alleges that on, to wit, March 1, 1912, the .defendant, representing himself .to be the agent of said defendant company, called upon the plaintiff in the city of Detroit and stated and represented to the latter that he (said defendant) had the sale of some very fine farming land in the State of Alabama which he was selling for said company; that the land was very choice stump land, consisting of a very fine black loam with a clay subsoil; that the said land was high and dry, and ideal for farming purposes; that the land was absolutely free and clear of underbrush, and positively worth $50 an acre; and that all of the land was good, substantial, and fine agricultural land, without any mire or boggy portion, and such as to guarantee to the purchaser working.the same a big return on the money invested.

It is further averred that the defendant then and there represented that the climatic conditions. were perfect, and that severe storms were unknown, and that therefore said land was never inundated by reason thereof; that said land was of such a fertile nature that 200 bushels of sweet potatoes could be raised per acre, which potatoes would sell for at least 40 cents per bushel, and that said land and climate were perfect for the raising of Irish potatoes; that all the land on the 40 acres that he was offering to sell to the plaintiff was good agricultural land, without any mire or boggy portion, and free from vermin and poisonous snakes; that all of said representations were untrue in substance and in fact, and were wilfully, wantonly, wickedly, and maliciously made by said defendant, contriving and fraudulently intending to deceive, defraud, and injure the plaintiff, and by means thereof to induce the plaintiff to purchase the said property, and advance and deliver to said defendant $400 as part payment thereof.

It is further averred that, relying on all of the aforesaid statements, representations, and pretenses, and believing the same to be true, the plaintiff on, to wit, March 14, 1912, agreed to purchase a certain 40-acre parcel of said land from the Magnolia Springs Land Company for a consideration of $1,600, and paid the defendant $400 in cash, and received a written land contract therefor signed by said company, which contract was offered in evidence by the plaintiff and appears in the record.

The declaration further avers that subsequently, and on the 5th day of September, 1912, the plaintiff moved his family, consisting of his wife and two children, to Alabama for the purpose of taking up his residence on said land; that upon investigation he found that instead of the land being black loam, with a clay subsoil, about 5 acres were covered with marsh and rank underbrush teeming with poisonous snakes and reptiles, and which no possible effort could reclaim for agricultural purposes, and that to' penetrate said underbrush was next to impossible, not alone on account of the density of the underbrush .and marsh, but also “the jeopardy of life in such a venture into this snake-infested region” ; that, in addition to said 5 acres, there were 20 acres of said land that was covered with a great swamp, being a black mire, totally unfit for agriculture “or any other purpose which might be effected by the hand of man for his sustenance”; that the remaining 15 acres were high and dry, but so impregnated with iron ore as to be wholly unfit for the purposes for which the defendant had represented the land to be suitable; that the said climate was so infested with sand flies, bugs, and vermin as to be entirely unfit for habitation; that the cultivation of Irish potatoes was impossible, because of climatic condition, and that the representation as to the quantity of sweet potatoes that could be raised per acre was absolutely.false; that said land, instead of being worth $40 an acre, was, in fact, worth only $10 an acre.

The declaration concludes as follows:

“Plaintiff further avers that after a thorough examination of the land and conditions, and upon becoming aware of the falsity of the aforesaid statements, representations, actions, and conduct of said defendant, the said plaintiff returned to the city of Detroit, and did,, on the 9th day of October, A. D. 1912, and on divers subsequent dates, demand of defendant that he return forthwith to the plaintiff the aforesaid sum of, money paid and delivered at the time of the execution of the said land contract, but said defendant did wickedly, wantonly, wrongfully, and maliciously neglect and refuse to return the aforesaid sum of money to plaintiff.
“Plaintiff further avers that by means and in consequence of the aforesaid false and fraudulent representations, statements, and pretenses, and believing the same to be true, and not knowing to the contrary, he was induced by means thereof to pay and deliver to said defendant the aforesaid sum of money, and thereby plaintiff lost and was wholly deprived of said sum of money, and plaintiff became, and was, and ever since has been, unable to secure the return, or enforce 'payment of said sum of money, or any part thereof, greatly to plaintiff’s financial loss, injury, and damage.”

Upon the trial the testimony took a wide range, and there was evidence tending to support the declaration. There was, however, a sharp conflict in the evidence as to the fertility of the land and its suitableness as farming land to raise the crops as represented. Some of defendant’s witnesses, however, testified that from 15 to 18 acres of the 40 were not high and dry, but constituted what was described as a swale, which ran through the center of the land, and would have to be drained to make it suitable for cultivation, and also 2 or 3 acres of creek head, covered with underbrush, and which was low and unsuitable for cultivation. The defendant upon cross-examination testified, in part, as follows:

“Q. You had seen the property, had you?
“A. I had seen it.
“Q. You had seen this particular farm that was sold to him — farm No. 1 ?
“A. I had seen it; yes, in a general way.
“Q. I am speaking of this 40; did you tell him that this 40 was a high and dry 40?
“A. I do not know whether I did or not. I told him it was a good-looking 40.
“Q. Would you say that you did not?
“A. I would not say.
“Q. Did you tell him that every foot of this 40 could be cultivated?
“A. I do not remember whether I did or not.
“Q. If you did say that, was that true?
“A. Yes; it would be true, because every foot of that land can be worked. Every foot of it can be worked, if properly drained.
“Q. Did you tell him that he would have to drain 15 acres of this, land before he could use it?
“A. I did not.
“Q. Now, if you had known that this was the condition of the land as shown by the surveyor, and that there were 15 to 18 acres that had to be drained before it could be cultivated, would you have told him that every foot of it could be cultivated?
“A. Not if I knew it beforehand.
“Q. You did not know it?
“A. I did not.
“Q. And it is a fact now?
“A. Well, that is according to the surveyors and according to that plat.
“Q. The surveyor says that there was 15 acres that would have to be tile drained, or drained before it could be cultivated?
“A. Yes, sir.
“Q. That is true, isn’t it?
“A. Well, to a certain extent it is true.”

There were some negotiations by telegraph looking toward an exchange of the 40 acres described in the contract, for another 40, and an unsigned contract was sent to plaintiff by defendant for-the former to sign. It was never signed, nothing came of it, and it was returned unsigned to defendant by plaintiff upon his return to Detroit. It was undisputed, and the defendant testified, that when plaintiff demanded the money back which he had paid, the defendant told him that he (defendant) did not have the money, but that the money had been sent to the company.

In submitting the case to the jury, the trial court charged them in part as follows:

“Now, gentlemen, you have heard the testimony of the various witnesses who have been called, and it is a question for you whether there was a misrepresentation made of a material matter with reference to the land in question, because unquestionably if there was a misrepresentation, as claimed by the plaintiff in this case, he would be entitled to tender back his contract to the agent from whom he had got it, and to demand, of course, the money back, and it is for you to say, having heard all of the testimony in this case, where the truth lies. * * *
“I have been asked to charge you that because Mr. McKenzie was the agent, and did not receive the money, that he would not be entitled to recover, but at the same time, gentlemen of the jury, Mr. McKenzie is bound personally by his own representations, and was the only party in the State of Michigan with whom the plaintiff ever came in contact, and I do not think the mere fact that he-had turned over the money to the company would preclude the plaintiff in this case from prosecuting this action. * * *
' _ “Now, if the plaintiff is entitled to recover, he is entitled to recover the sum of. $400, and interest from March, 1912, down to the present time, at the rate of 5 per cent, per annum.”

The defendant has. brought the case here assigning many errors, some of which we do not deem it necessary to specifically consider. The following claims are covered by assignments of error:

(1) Neither Mr. McKenzie, the agent, nor the land company, the principal, was liable for all or any of the representations alleged to have been made.

(2) Defendant was the agent, and, having paid over the money to his principal, is not liable for a return of the money.

(3) The declaration does not allege, nor does the evidence show, that the contract was ever rescinded, or ever tendered back to the defendant; therefore in no event could the defendant ,be liable for the purchase money paid, either under the declaration or under the evidence.

1. We have held that, if any material fraudulent representation is charged which resulted in the injury to the plaintiff complained of, he is entitled, upon the proof of the same, to recover, although the declaration may have charged other acts which were not proven. Wegner v. Herkimer, 167 Mich. 587-594 (133 N. W. 623), and cases there cited. As we also said in that case, we cannot agree with appellant’s counsel that all of the representations testified to were “seller’s talk, pure and simple.” Recognizing the rule that a seller has a right to praise his property and to give his opinion concerning it, we think that the rule cannot be extended to embrace false representations of alleged facts in a case, which may be and were relied upon by the purchaser, and became an inducing cause of the transaction. Manifestly, the representation claimed that the land was high and dry, and good agricultural land, without mire, swamp, or boggy portions, was a material representation of a fact within our numerous decisions. See collection of our decisions in the above-cited case on page 595 of 167 Mich. (133 N. W. 623) ; Hall v. Car Co., 168 Mich. 634-641 (135 N. W. 118); Allen v. Talbot, 170 Mich. 664-668 (137 N. W. 97) ; Pratt v. Circuit Judge, 177 Mich. 558, 562 (143 N. W. 890); Merlau v. Circuit Judge, 180 Mich. 393 (147 N. W. 503).

We do not think the trial court erred in submitting the question as to the alleged fraudulent representations to the jury.

2. While we agree with appellant’s counsel that there could not be a recovery here of the money paid by plaintiff in the contract, yet we are of the opinion that an action will lie against an agent for a fraud knowingly committed in behalf of a principal, even though the agent receives no personal benefit from the fraud. All persons who are active in defrauding others are liable for what they do, whether they act in one capacity or another. Weber v. Weber, 47 Mich. 569 (11 N. W. 389) ; Angell v. Loomis, 97 Mich. 5 (55 N. W. 1008); Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321 (69 N. W. 722).

3. An examination of this record discloses the fact that the declaration does not allege, nor does the evidence show, that the contract was rescinded by the plaintiff, or that he ever tendered it back to the defendant. On the other hand, the plaintiff had it in his possession and offered it in evidence upon the trial. From aught that appears in this record, the plaintiff may still be claiming rights under the contract. The trial court seems, in its charge, to have recognized the necessity of a rescission, and yet a recovery was permitted without it. We are constrained to hold that it was reversible error for the court to charge the jury that the measure of damages in the case was the amount of money paid by the plaintiff, with interest thereon. In no event could that be the measure of damages under the declaration and the evidence. It is an elementary rule of law that, in order to recover the purchase price, the plaintiff must allege and proye a tender back, or an offer to tender back; in other words, he must first place the other party in statu quo. Galvin v. O’Brien, 96 Mich. 483 (56 N. W. 85), and cases there cited.

The distinction between suing for damages in affirmance of a contract and suing to recover back the money-paid is pointed out in Patterson v. Kasper, 182 Mich. 281 (148 N. W. 690). We are not here deciding that there could be no recovery in this case, but we are deciding that under the pleadings and evidence the measure of damages would not be the money paid and the .interest thereon. The measure of damages in such a case, where there is no rescission, is the difference between 'the value of the premises had they been as represented and what they were actually worth. Wegner v. Herkimer, 167 Mich. 593 (133 N. W. 623).

We find no other reversible error in the record; but, for the errors pointed out, the judgment below is reversed, and a new trial granted.

Brooke, C. J., and Kuhn, Ostrander, Bird, Moore, and Steere, JJ., concurred.

This case was originally assigned to the late Justice McAlvay.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    PEOPLE v. ATWOOD.
    1. Witnesses — Privileged Communications — Probate Judges — Statutes — Criminal Law- — Abortion.
    Id. a prosecution for using an instrument with intent to produce a miscarriage, where the court, upon request of the prosecutor, entered orders for the probate judge and clerk to produce the records and testify to the marriage of respondent and deceased, celebrated by said judge in conformity "with Act No. 180, Pub. Acts 1897, as amended by Act No. 2S2, Pub. Acts 1899, which provide that all knowledge of any facts coming to the judge or his deputies shall be privileged communications, and that such records shall be open to inspection only upon written order of the circuit judge, such orders did not authorize either officer to state communications and facts received in confidence and privileged by the law.
    2. Evidence — Reversible Error — Appeal and Error.
    Where the facts shown by the record were otherwise proved, or admitted by respondent, its introduction was not reversible error.
    3. Same — Probate Judge — Privileged Communications.
    Where the probate clerk and judge testified as to conversations with, and statements of, respondent before the marriage, their evidence was not confined to the subjects indicated in the orders, and was prejudicial, notwithstanding that said marriage was admitted and otherwise proved, and that respondent admitted he was the father of the child, and was at the time unwilling to marry its mother.
    4. Same — Privileged Communications — Waiver — Objection —• Appeal and Error.
    Where no proper objection was made in the court below that respondent had a privilege which was being violated by the admission of such testimony, and the only objection made in this court is that such orders could not lawfully be made upon the application of the prosecuting attorney, respondent is held to have waived the privilege.
    5. Criminal Law — Abortion—Evidence—Hearsay—Inferences.
    Where the people had proved that deceased was pregnant, that an abortion had been committed, and that it caused her death, and where the relations of respondent and deceased supported an inference that he knew her condition, that she would not have an operation performed without his knowledge, and that he was cognizant of the crime, evidence that on the night she left her home and remained away she seemed in good health and spirits, and said that she was going to meet respondent, was admissible as verbal acts accompanying her going away, and whether they truthfully explained her conduct and purpose was for the jury.

      Exceptions before sentence from Ottawa; Cross, J.
    Submitted April 22, 1915.
    (Docket No. 117.)
    Decided September 28, 1915.
    Rehearing denied December 22, 1915.
    Morris Atwood was convicted of using an instrument with intent to procure a miscarriage.
    Affirmed.

      Louis H. Osterhous, Prosecuting Attorney, for the people.

      Smedley & Linsey, for respondent.
   Ostrander, J.

Respondent was, with another, charged with, and upon his separate trial was convicted of, the offense of employing an instrument, or instruments, name or names and exact nature thereof unknown, and other means, the exact nature of which is unknown, in and upon the body of Zelma Atwood, she being pregnant, etc., etc., with intent to procure a miscarriage, in consequence of which the said Zelma Atwood died, on or about October 21, 1913. The crime is alleged to have been committed on or about October 21,1913, at the township of Blendon, in Ottawa county. A motion for a new trial was denied. The motion was based in part upon alleged newly discovered evidence. Many exceptions were taken during the trial. Those relied upon are stated in the brief for respondent as follows:

“(1) Admission of evidence:
“(a) Court erred in allowing witnesses Guyola Hammond, Ralph Lowing, and Eliza Lowing, over objection and exception of respondent’s counsel, to testify as to what Zelma Atwood said on the evening she left, and refusing to strike out this testimony upon motion.
“(b) Court erred in allowing witness Agnes Frieswyck, over objection and exception of respondent’s counsel, to testify as to- what Zelma Atwood said about going for a walk with Morris, and that Morris was out waiting for her.
“(c) Court erred in permitting witnesses George Norcross, probate clerk, and Clark Higbee, probate judge, over objection and exception of respondent’s counsel, to testify in relation to the marriage of respondent and Zelma Hammond, and what was said and done by these parties on that occasion, and the admission in evidence of the files of probate court with reference to this marriage, and the refusal to strike out this evidence on motion.
“(d) Court erred in allowing respondent, over the objection and exception of his counsel, to answer the question as to the parentage of the child born in 1912, and what took place at the probate court at the time of the marriage.
“(2) Motion to direct verdict:
(a) It was error for the court not to direct a verdict of not guilty for respondent for the reasons stated in the motion.
“(3) Errors in the charge:
(a) Respondent’s first request to charge directing the jury to return a verdict of not guilty should have been given.
“(4) Argument of prosecuting attorney:
“(a) It was error for the prosecuting attorney to make the argument with reference to the Bert Tibbits Case, and the court to allow the same to stand over the objection and exception of respondent’s counsel.
“ (5) Motion for new trial should have been granted:
“(a) Because the verdict was against the great weight of evidence.
“(b) Because of newly discovered evidence.
“ (c) Because the people failed to prove the respondent guilty beyond a .reasonable doubt as a matter of law.
“(d) Because respondent is innocent of the charge made against him.”

Zelma Atwood was 33 years old. She had for some years been employed as a domestic in the city of Grand Rapids, but from some time in April, 1912, had lived with her mother, Eliza Lowing, in Blendon township aforesaid. She had two brothers and two married sisters, a daughter, and other relatives. Leaving home on Tuesday, October 21, 1913, to call upon a married daughter, Mrs. Lowing, at the request of Zelma, took with her and placed-in the Atwood mail box an envelope addressed to respondent. Returning in the evening, she found Zelma there, who left the house at about 8:30 o’clock with some dishes which she said she would carry to a neighbor, a Mrs. Frieswyck. She was dressed in a brown suit. She went to Mrs. Frieswyck’s house- at a time fixed as between 8 and 8:30 o’clock, stayed a very few moments — six or eight— and went away. No person has testified to having thereafter seen her alive.

The Atwood house is about three-fourths of a mile from the Lowing house. Across the road from it, and south, is a small wood lot. The father and mother of respondent were absent upon a visit to New York. Respondent and a brother — corespondent in the information — were living at the Atwood home alone. Nothing was heard from Zelma by her relatives on Wednesday or on Thursday, and on Friday her body was found by Frank Atwood in the wood lot, hanging to a sapling by a rope tied short around her neck. Her back was towards the tree, her feet some 5 inches from the ground, a block of stove wood near her feet. She wore a tight-fitting hat, a suit of brown, a coat, and skirt and waist under the coat. She had on a corset, corset waist, underclothing, shoes and stockings, black cotton gloves. The dress, or waist, opened at the back, “and was fastened with hooks and eyes. In the front there were hooks and eyes fastening the upper to the lower part of the waist, and on the right side it was partly open, some fastenings were gone, and a pocketbook or small hand bag was found inside the waist. She had on no rubbers, and her shoes were clean. In the hand bag were three handkerchiefs, one soiled, a bow of velvet and pin, a belt like the dress, a comb, drinking cup, button hook, toothbrush, paper, and envelopes. There was also a letter in an envelope, addressed to her mother, sealed and stamped. It was dated October 21st, and read:

“Dear mother and all: I am off for good and you need not look for me as I will not be around here. You will not find [that is spelled f-i-n-e] me, but don’t blame Morris. That trouble we had a year or so, I am in the same fix now with the same féller as before. Morris is a straight feller, you cannot blame him that I take this course. Ever, daughter Zelma.”

It is conceded that it was written by Zelma. The outer clothing was somewhat moist; the underclothing was orderly, unsoiled, and dry. It'had’ rained Tuesday night, and during Wednesday afternoon there had been a fall of rain, snow, and sleet. The weather cleared during that afternoon.

The testimony tended to prove that she had not died of strangulation, but that the body had been hung up after death; that she had been pregnant and had aborted. The physical examination did not disclose whether an abortion was produced by drugs, instruments, or other means, nor whether it was performed by herself or another.

It is the theory of the people that a medical man or midwife performed a criminal operation upon Zelma at the Atwood home, by procurement of respondent; that death ensued from shock or from loss of blood resulting from the operation; that her body was concealed for some time, probably until Thursday night or Friday morning, when it was taken by respondent and his brother to the timber lot and hung to the tree where and as it was found. The motive for performing or securing performance of an abortion is found in the facts that respondent and Zelma were husband and wife, although this was not known to respondent’s family, nor generally; that he was responsible for her condition and had been the father of a child previously born, that he did not wish, at least not presently, to acknowledge the long-concealed relationship, and if it was further concealed he- would appear to the community to be the father of a bastard. Opportunity is found in the fact that his father and mother were absent from home, and he and his brother only occupied the house from Tuesday night until after the body was discovered. Testimony was introduced which, with the inferences drawn therefrom by the people, sustain this theory. Respondent denied having seen Zelma Tuesday night or thereafter and all knowledge of the circumstances which led to her death and the disposition of her body. The testimony of respondent’s brother generally supports that of respondent. With this statement we may proceed to examine the exceptions relied upon.

1. Before the people’s case was closed, testimony was given by several witnesses to the effect that they did not know until after the body was discovered that respondent and Zelma were married. Others had testified, without objection, that they knew they were married. Her mother had testified that Zelma’s first husband was named Hammond, by whom before marriage she became pregnant, who married her after he had been arrested, and then deserted her. His child, a girl, was a witness at the trial. Afterwards, in March, 1909, Zelma had another baby, by what father is not disclosed. A third child was born in March, 1912, at the Michigan Home for Girls. Later it was given away, or “bound out.” In Zelma’s family it was understood that respondent was father of the last child.

To prove the marriage of respondent and Zelma, the people called the probate clerk, the probate judge, and produced certain files and records of the probate office. Two papers from the files, an application for license to marry, and a marriage license and certificate, being offered in evidence, were objected to, “on the grounds that we admit Morris married her, and therefore it is not necessary, and I don’t think the contents of those affidavits ought to be read into the record as long as we admit that.” They were objected to as incompetent. The prosecuting attorney did not read the affidavit. The papers were admitted for the purpose of establishing the fact of a marriage, and from them the prosecuting attorney informed the jury as follows:

“The application is made under Act No. 180 of the Laws of Michigan, as amended by the Public Acts of 1892, Act No. 232. The application for the license is signed by Morris Atwood, and was subscribed and sworn to by him on April 19, 1912, before Clark E. Higbee, judge of probate, giving the name of the groom as Morris Atwood, age 37, residence, Blendon township, and the name of the bride as Zelma Hammond, age 33, residence, Grand Rapids, Mich. The marriage license and certificate included a copy of Atwood’s affidavit and application for the license, the order of the judge of probate, made upon the same day that the marriage was performed, and designating John T. Hus-ted, a minister of the gospel, of Grand Rapids, Mich., to perform the marriage ceremony, and includes this certificate of marriage: ‘I hereby certify that Morris Atwood and Zelma Hammond were joined in marriage by me at Grand Rapids, Kent county, Mich., on the 19th day of April, 1912, in the presence of George S. Norcross, of Grand Rapids, and John T. Hayes, of Grand Rapids, as witnesses. J. T. Husted, Pastor of Wallin Congregational Church.’ ”

The articles of adoption of the child were offered and received over objection to prove the respondent’s acknowledgment that he was father of the child.

To the testimony of the probate clerk and judge, in which were rehearsed conversations with and statements of respondent before the marriage, various objections were made. One was the general one that it was incompetent; another, stated with the motion to strike out the testimony of the clerk, was that the law does not permit him to divulge such matters except upon order of the court. An order had been made upon the petition of the prosecuting attorney applying to the probate judge only. The court, upon request of the prosecuting attorney, after the objection aforesaid was made, permitted an order to be entered applying to both the judge and clerks Respondent excepted. The order was entered. To the testimony of the probate judge, the objection was:

“Incompetent, contrary to public policy. These people are married now, husband and wife, and any conversation in regard to the sexual intercourse before or after marriage is incompetent.”

Act No. 180, Public Acts of 1897, is entitled “An act to provide for the protection of the reputation and good name of certain persons.” As amended by Act No. 232, Pub. Acts 1899, it empowers the probate judge of each county, and makes it his duty, to issue, without publicity, a marriage license and to celebrate marriage in certain cases. It provides that all knowledge of any facts coming to the judge or his deputies shall be deemed to be privileged communications, and-any violation of confidence a misdemeanor.

“Such file in the probate court, and the duplicate and record thereof in the office of the secretary of State, shall be open to inspection only upon the written order of the judge of any circuit or the Supreme Court of this State, and only for such use as is designated in such order. Such order shall be made only upon the written request of the person or persons who were so married, or when necessary to the protection of property rights arising from or affected by such marriage.” Section 3.

Assuming that the license and marriage might have been proved by the record, upon the order of the court, the order could properly go no further. Neither of the orders entered purports to authorize either officer to state communications and facts received in confidence and privileged by the law.

It is said that the marriage was admitted and otherwise proved, and the fact that respondent was the father of the child and was at the time unwilling to marry its mother was testified to by him. Consequently, it is argued, the error, if one was committed, was harmless. The testimony was not confined to the indicated subjects, and was, beyond question, prejudicial to respondent.

In this court counsel for respondent urge that the orders referred to could not be lawfully made upon the application of the prosecuting attorney. No such point was made at the trial. Indeed, one of the objections made was based upon the fact that as to the probate clerk no order had been entered. And it is not asserted in this court, and was not in the court below, that respondent had a privilege which was being, violated. What the record showed was otherwise proved or admitted, and therefore its introduction was not reversible error. The testimony of the witnesses as to matters not appearing of record, as to admissions and statements made by respondent, would undoubtedly have been excluded upon the objection that whatever respondent had said was privileged. No such objection was made, nor is it made in this court. If the privilege is his, respondent may waive it. Upon this branch of the case the exception must be overruled.

2. The people’s witnesses, Guyola Hammond, Ealph and Elgie Lowing, Agnes Frieswyck, and Mrs. Lowing, were permitted to state what deceased said on the evening she was last seen by them alive. The testimony of Guyola Hammond, daughter of deceased (and that of the Lowing boys was substantially the same), was:

“Q. What did you hear your mother say, if dnything, * * * about where she was going and what she was going to do? * * *
“The Court: Fix the time.
“Q. As near as you can tell, about what time was it when you heard them talking?
_ “A. About supper time; I don’t know just what time it was. I didn’t notice. My grandma had been away, and she didn’t come home until almost dark. I couldn’t tell just what time it was.
“The Court: How long after that did she leave?
“A. I don’t just remember. I think she left about 8 or a little after. I don’t know how long it was before they were talking. * * * I heard her say something about going to Grand Rapids, and that she was going to be married.
“Q. Just what did she say about it — about when and where she was going and who she was going with, and all about it?
“A. I don’t just remember all she said. I know something about she was going to Grand Rapids to be married, is all I remember.
“Q. Did she say when she was going and who she was going with?
“A. I think I understood her to say she was going with Morris.
“Q. And when?
“A. That night; they were going to Grand Rapids. * * * My grandma told her she didn’t want her to go alone. She said not — she was not; that Morris was going with her.”

Mrs. Lowing testified:

“Q. What, if anything, did Zelma say that evening about where she was going and what she was going to do?
“A. She told me she was going to Grand Rapids. * * *
“Q. Who did she say she was going to Grand Rapids with, and what did she say she was going to Grand Rapids for? * * *
“A. She said she was going with Morris Atwood.
“Q. For what?
“A. They were going to be married.
“Q. And at what time and place was, or did she say, she was to meet Morris?
“A. He was to meet her at 8 o’clock.
“Q. Where?
“A. At the house.
“Q. At your house?
“A. Yes, sir. When she came downstairs she was dressed in a brown suit. She did not seem to be excited or nervous that evening. She was quite jolly and jovial, the same as usual. Morris did not come to the house to meet her. She left the house about half past 8, as near as I can remember. * * *
“Q. Just tell us what she said about the time she left the house?
“A. She said she would go to Mrs. Frieswyck’s, and if she met Morris — if she didn’t meet Morris, she would be right back, but ‘if I do meet him, you will know we have gone.’ Mrs. Frieswyck lives between our house and the Atwood house.”

Mrs. Frieswyck testified:

“I remember Zelma Hammond or Zelma Atwood coming to my house on Tuesday evening of October 21st. It was between 8 and half past. Zelma brought some dishes back. She came into the kitchen, where I was busy. One side of the kitchen is facing the road. Zelma had on what I might call a brown or tan suit. She had on a blue velvet cap and some ragged gloves. She had on some button shoes. She stayed perhaps six or eight minutes. I don’t know just exactly; not very long I know. * * *
“Q. What did she say about where she was going and whom she was going to see?
“A. She said she was going for a walk with Morris.
“Q. Did she say where Morris was?
“A. She said he was out waiting for her.”

The objection made to receiving the testimony of • Guyola Hammond was that it was—

“incompetent and irrelevant. The respondent was not present. He cannot be bound by it.”

Before the question was finally answered, the objection was repeated in the following language:

“We object to the question and answer for the reason that it is hearsay, and that it is purely narrative statement, and for the further reason that the prosecutor knows that no statement that this witness is about to make can be connected up with the respondent and that the respondent was not present. * * * It appears from the examination taken before the justice of. the peace that the statement about to be made by the witness cannot be connected up with the respondent in any way, and that is known to the court and also known to the prosecuting attorney at the present time.”

To the testimony of Mrs. Frieswyck the objection first above noted was entered. To the testimony of Ralph Lowing the objection made was:

“I object to that as incompetent, for the reason, as stated before, that the respondent was not present, and that the prosecutor does not propose to make any connection between the conversation and anything that the respondent did; that is, he does not propose to show that Morris did go with her to Grand Rapids to get married or anything else, and he does not propose to show that Morris, was seen with her that night, and therefore it is incompetent, and not a connected story.”

To the testimony of Elgie Lowing and Mrs. Lowing the objection first above stated was made. I find in the record no statement of the purpose for which the testimony was offered, no ruling upon the subject of its limitations or effect. No request to charge concerning its legitimate purpose appears to have been preferred, and no reference to it is made in the charge. What use was made of it in argument we cannot know. Generally, the prosecuting attorney says of this testimony:

“There surely can be no question but that this testimony was admissible for the purposes for which it was offered and the purposes for which it was used. These purposes were not to show that deceased actually went to Grand Rapids to be married, or that she was intending and planning to have an abortion performed, or that ah abortion was performed. The declarations in question were not proof of any one of these three things, and no one but respondent’s counsel ever suggested that they might be so considered, or were so considered. The testimony was offered, admitted, and used as evidence of verbal acts explanatory of and cnaracterizing the act of deceased in going away from home, as original evidence of material facts showing the state of mind and intention of deceased, and as part of the res gestse. So offered, received, and considered, these declarations of deceased were competent evidence, and the court did not err in admitting proof of them.
“The state of mind and intention of deceased were especially important in this case, because it is one of the claims of respondent’s counsel that she had herself planned and arranged for the abortion before leaving her home. And counsel admit the testimony in question to have been competent for the purpose of showing her intent and purpose in leaving.”

And he cites People v. McDowell, 63 Mich. 229 (30 N. W. 68); People v. Fritch, 170 Mich. 258 (136 N. W. 493) ; Martin v. State, 77 Ala. 1; Harris v. State, 96 Ala. 24 (11 South. 255) ; Thomas v. State, 67 Ga. 460; Warrick v. State, 125 Ga. 133 (53 S. E. 1027) ; State v. Peffers, 80 Iowa, 580 (46 N. W. 662); State v. Winner, 17 Kan. 298; Commonwealth v. Trefethen, 157 Mass. 180 (31 N. E. 961, 24 L. R. A. 235) ; State v. Hayward, 62 Minn. 474 (65 N. W. 63) ; State v. Thompson, 132 Mo. 301, 321 (34 S. W. 31) ; Id., 141 Mo. 408 (42 S. W. 949) ; Hunter v. State, 40 N. J. Law, 495; Kirby v. State, 7 Yerg. (Tenn.) 259; State v. Mortensen, 26 Utah, 312 (73 Pac. 562, 633) ; State v. Goodrich, 19 Vt. 116 (47 Am. Dec. 676); State v. Howard, 32 Vt. 380; Cluverius v. Commonwealth, 81 Va. 787; Tilley v. Commonwealth, 89 Va. 136 (15 S. E. 526) ; State v. Power, 24 Wash. 34 (63 Pac. 1112, 63 L. R. A. 902) ; State v. Dickinson, 41 Wis. 299; United States v. Nardello, 15 D. C. (4 Mackey) 503.

For respondent the proposition is advanced that:

“Before declarations of deceased made under these circumstances can be admitted as competent evidence, it must appear: First, that the thing she said she was going to do was actuallv done; second, the respondent must be connected up with the statement by some other proof; third, the declarations cannot relate to any understanding or arrangement deceased had with respondent.”

Again, with reference to the testimony of Mrs. Frieswyck, it is said:

“We submit this testimony was clearly incompetent because it was hearsay; and it was clearly prejudicial because the jury was allowed to use this for the purpose of connecting respondent with the disappearance of deceased. The process of reasoning on the part of the jury could only be this: Zelma said she was going for a walk with Morris; that Morris was waiting for her. We conclude Zelma did go for a walk with Morris. Morris was out waiting for Zelma, and therefore Morris committed the abortion because he took a walk with Zelma and had the opportunity. * * * There is a further reason wiiy this testimony was incompetent. The alleged declarations made by deceased were made by the wife of respondent. If living, she would not be a competent witness against him without his consent.”

Having proven by other testimony that Zelma Atwood was at the time pregnant, that an abortion had been committed, that it caused her death, the people were bound to prove that respondent was in some way responsible for the crime and for its result. That Zelma left her home on Tuesday evening and remained away, and that when going away she seemed in good health and good spirits, were relevant facts. But in trying to reconstruct for the tribunal of inquiry the res gestee, the things which occurred from the time she left home until her body was found, it was necessary, to some extent, to employ inferences. No witness could be produced who saw the alleged crime committed or the steps taken to dispose of the baby; none who saw respondent with her or who knew where she went. The rope, which came from respondent’s barn, the-piece of wood at her feet when she was discovered, the place where the body was found, and the fact that it was discovered by the brother of the respondent soon after knowledge had come that the authorities would probably conduct, ‘or had begun, an inquiry, were circumstances tending to support the inference that the crime was committed in the immediate neighborhood. The relations of respondent and Zelma supporting an inference that he knew her condition and that she would not likely submit to having an operation performed without his knowledge, the manner in which the rope which suspended her body was tied, the apparent indifference of respondent when informed of the disappearance of Zelma and asked to aid in finding her, are all circumstances supporting an inference that respondent was at least cognizant of the crime. We are of opinion that it was competent to prove her utterances made when she was leaving home, and the neighbor’s home, on Tuesday evening, not as evidence' of the fact that she met respondent, but as evidence of her intention to meet him and explanatory of her purpose in going away. Her utterañces were in the nature of verbal acts accompanying, the, act of going away. Whether they truthfully explained her conduct and purpose was a question for the jury. The testimony being competent, the exceptions taken to the ruling admitting it must be overruled.

With respect to other exceptions the record has been carefully examined, with the result that we are unable to sustain any of them. We have especially considered whether the verdict was palpably against the great weight of evidence. This is one of a class, of cases in which the result may be questioned, especially by one who reads the record and had not the advantage of seeing and hearing the witnesses. That there is testimony strongly pointing to respondent as a participant in committing the crime charged, cannot be doubted. We cannot say that the court erred in refusing .a new trial.

The exceptions are overruled, and the court advised to proceed to judgment.

We cannot pass without some notice matter found in the briefs; that in the brief for the. people being largely in reply to the statements in the original brief for respondent. For example, the court is informed by respondent’s counsel that:

“An examination was had in justice court where respondent was bound over for trial. All this testimony was before the circuit judge, and before starting on the trial of the case the question as to the admissibility of this evidence was taken up by the circuit judge, prosecuting attorney, and respondent’s counsel, and the prosecuting attorney then contended that, unless-the same was admitted, he would have no case to submit to the. jury, because without this testimony the evidence would fail to connect the respondent with the commission of the offense.”

Again:

“The jurymen' were mostly of Holland nationality — - moral men who believe in the solemnity of the marriage ceremony. They were filled with religious passions and prejudices, and immediately they stigmatized respondetit as a bad man because he married a woman and did not live with her as her husband. The prosecuting attorney knew too well the men before whom the casé was being tried, and never failed to inject in the case details of the secret marriage; the name and adoption of the bastard child; the fact they had not lived together after marriage. In addition, the prosecuting attorney in his closing argument, by inference at least, held out the hope to the jury that respondent, if convicted, would make a confession as in the Bert Tibbits Case”

After quoting from the argument of the prosecuting attorney, it is said:

“This might be the natural and logical reasoning of this jury, and if we were to go outside the record, we can say we know it was at least with one juror.”

On the other hand, we are informed that a minority only of the jurors were of Holland descent, and that “Hollanders make mighty good, careful, and conscientious jurors, anyway.” There is more of this. We are told that:

“Not one of them entered upon the trial of the case with any prejudice or any opinion,” etc.

We cannot suppose that it is believed that the court should be influenced by such statements, even though made by eminent counsel. It must have been supposed that the court might be influenced by them.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

This was one of the causes assigned to the late Justice McAlvay, undetermined at the time of his death.


text:
    JOHN S. NOEL CO. v. NEWCOMB.
    2. Contracts — Sales—Installing Acetylene Gas Plant — Part Performance — Damages.
    Where plaintiff sold defendant an acetylene gas generator and certain fixtures by written contract, and agreed orally to install the same, and after the generator was delivered and partly installed defendant refused to allow him to finish, plaintiff is entitled to recover the contract price of the generator, and for such pipe and materials as had been used, at the contract price.

      2. Trial — Misconduct of "Witness — New Trial.
    Although it was highly improper for plaintiff’s witness to engage in a heated discussion about the case with a witness for defendant in the corridors of the courthouse, during a recess, the action of the judge, who investigated the incident at the time, in overruling a motion for a new trial, will not' be reversed, where it does not appear that any juror heard what was'said.
    Error to Montcalm; Davis, J.
    Submitted January 11, 1915.
    (Docket No. 55.)
    Decided September 28, 1915.
    Assumpsit by the John S. Noel Company against Sol B. Newcomb for the price of goods sold and delivered and work done. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      F. A. Miller and N. O. Griswold, for appellant.

      J. Claude Youdan, for appellee.
   Ostrander, J.

In the amended narr. plaintiff set» up an express written contract for the sale and purchase of an acetylene gas generator and certain fixtures, and an express parol contract for its installation, the delivery of the generator, partial performance of the parol contract, refusal of defendant to permit complete performance, and consequent damages. The common counts in assumpsit are added. Defendant pleaded the general issue, with notice that it would show certain representations made by plaintiff respecting the generator, and certain items of the parol contract and representations made therewith, breaches of them, and consequent damages, which he would recoup.

The written contract contains a guaranty not involved here, and recites the understanding of the parties thereto that the instrument covers all agreements, that no agent or representative of plaintiff has made any statements or verbal agreements modifying or adding to its terms or conditions.

The generator was delivered.,, The parol contract for installation admittedly was not fully performed. In a charge favorable to defendant the court submitted all issues of fact to a jury, which returned a verdict for plaintiff. Upon the merits of the case counsel for appellant refers in the brief to no exception and to no specific ruling of the court, except the one refusing at the close of plaintiff’s case to direct a verdict for defendant. It is argued, however, that an improper rule for measuring plaintiff’s damages was given to the jury. It does not appear that defendant preferred any requests for instructions, and a review of the charge does not satisfy us that the court failed to properly instruct the jury. The price of the generator was fixed. To install it, it was necessary to use pipe, the price of which, per foot, was fixed. Certain fixtures were to be installed, and the prices were fixed. Plaintiff claims, and the jury sustained the claim, that such fixtures as it had not furnished the defendant refused, that any defects in piping it would have repaired if permitted to do so. The jury was permitted to find, and did find, that plaintiff was entitled to recover the contract price of the generator and for certain pipe at 10 cents, a foot. It is not apparent in what way the defendant was injured by this ruling.

A motion for a new trial was refused. The motion was based, in part, upon grounds affecting the merits, which deserve no attention here, in view of what is hereinbefore said, and in part upon affidavits tending to show that John S. Noel, a witness for plaintiff, had been guilty of improper conduct during the progress of the trial, prejudicial to defendant. Specifically, the charge is that this witness, during a recess of the court, engaged in a heated controversy and argument about the case with a witness for the defendant in the corridor of the courthouse in the presence and hearing of members of the jury impaneled to try this cause; that he persisted, after being twice admonished by an officer of the court. None of the affidavits filed for the motion were made by jurors. Counter affidavits were filed, among them those of four of the jurors. In denying the motion, the court said:

“It has considered the complaint of the defendant, and all the affidavits submitted, and particularly the affidavits of the jurors filed in connection herewith, and in consideration of the further fact that at the time of the incidents complained of by the defendant the court made some personal investigation of the matter, not having been able to find any evidence of misconduct on the part of the witness that would justify further inquiry at that time on my part, I hereby certify that in the judgment of the court, after considering all of the evidence submitted and making the aforesaid investigation, that the claims of the defendant are not supported by facts sufficient as a reason for granting new trial. I further find that counsel for the defendant were advised of the incident complained of, and that one of counsel for the defendant was a witness to part of the conduct complained of, and that the defendant continued the trial of said cause after being so advised and informed.”

It is said the court erred in not setting aside the verdict and granting a new trial. This court has had occasion in a few cases to consider similar questions. Many of them are collected in the opinion of this court in McCartney v. Saul, 180 Mich. 502 (147 N. W. 566). The impropriety of the conduct complained of is apparent; but it was not conduct which could influence a juror, unless a juror heard what was said. If it appeared that jurors listened to the conversation, or argument, we might ignore the question of its influence upon them. It does not appear that any juror heard what was said. We are disposed to accept the conelusion of the court, who was immediately informed, and then made some personal investigation.

The judgment is affirmed.

Brooke, C. J., and Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred.

The late Justice McAlvay heard the argument' in this cause, but took no part in this decision.


author: MOORE, J.

text:
    LAFAYETTE BENEVOLENT SOCIETY v. RICHARDSON.
    Equity — Judgment—-Cancellation of Sheriff’s Deed — Deeds.
    Equity will not interfere to set aside a deed of real property sold by the sheriff on execution issued out of the circuit court upon a transcript of judgment rendered in justice’s court in favor of defendant, where it appears that defendant acted in good faith in the proceedings before the justice, and that the garnishee summons was personally served upon an officer of complainant and an opportunity given to urge any defense it-had.
    Appeal from Wayne; McDonald, J., presiding.
    Submitted April 9, 1915.
    (Docket No. 31.)
    Decided September 28, 1915.
    Bill by the Lafayette Benevolent Society, a corporation, against James W. Richardson and'another for the cancellation óf a sheriff’s deed and other relief. From a decree for defendants, complainant appeals.
    Affirmed.

      Oxtoby & Wilkinson, for appellant.

      Ralph B. Wilkinson, for appellees.
   MOORE, J.

This is an appeal by the complainant from a decree in chancery dismissing the bill of complaint! The bill was filed for the purpose of setting aside as void a sale made by the sheriff of Wayne county of real estate of complainant. The sale was made by the sheriff under an execution issued out of the circuit court for Wayne county upon a transcript of judgment rendered in favor of the defendant James W. Richardson, by Louis Ott, a justice of the peace, and against the complainant as garnishee of Horton & Stoner. The bill prays that the judgment against the complainant, the sale, and the sheriff’s certificate of sale be declared void and canceled, and that the sum of $501.59 paid under protest by the complainant to the register of deeds on June 2, 1913, for the purpose of redeeming said property may be returned to it. This money is still in the custody of the register of deeds by reason of a writ of injunction issued in this cause. The cause was heard in open court.

The record discloses that on November 10, 1911, the defendant James W. Richardson commenced a suit against Horton & Stoner, “whose first name is not known, but whose person is well known,” doing business as Horton & Stoner. The original summons was returned not served on either of the defendants personally, nor by leaving a copy thereof at the last place of abode of either of said defendants. On November 20,1911, an alias summons in the long form was issued. This summons was returned by the constable served on defendants Horton & Stoner, “whose first name is únknown, but whose person is well known,” by personal service on Edgar H. Horton, “one of the within-named defendants, doing business as Horton & Stoner.” Upon the return of the summons the plaintiff declared in assumpsit on all the common counts, and, no one appearing on behalf of the defendants, judgment was rendered on December 1, 1911, in favor of the plaintiff and against the defendant for $439.73, and costs.

The claim is that, as the docket entries fail to disclose that at any time there was an amendment made in the process or pleadings to show that Edgar H. Horton, the person served with the alias summons, was the same person as the Horton named in said alias summons, and substituting the said Edgar H. Horton so served with the alias summons as the Horton referred to in the original summons, the judgment is void.

On November 11, 1911, defendant James W. Richardson instituted a garnishment proceeding against the complainant, as garnishee of Horton & Stoner. The important docket entries in that proceeding are as follows:

“Nov. 10, 1911. Affidavit of garnishment filed. Summons issued in hands of Constable Paradis, returnable Nov. 22, 1911, at 9 o’clock a. m.
“Nov. 11. Summons returned served by Constable Paradis on Joseph Aubrey, Treas., Nov. 11, 1911.
“Nov. 20, 8 a. m. Case called. Parties in court. Case adj. by consent to Dec. 4, 1911, a. m.”

The record shows several adjournments by consent, and continues:

“Jan. 16, 9 a. m. Case called. Parties in court. Case adjourned by consent to Jan. 18, 1912, 9 a. m.
“Jan. 18, 9 a. m. Case called. Plaintiff in court. Defendant did not appear. Plaintiff declared in an action of assumpsit on all the common counts, especially for money had and received, claim damages •$500.00 or under. James W. Richardson sworn for plaintiff. I thereupon rendered judgment in favor of plaintiff and against defendant for four hundred forty-one and 88/100 dollars damages and two dollars costs against garnishee defendant, Lafayette Benevolent Society.
“$441.88 Damages.
“ 2.00 Costs.
“Louis Ott,
“Justice of the Peace.”

If we understand the claim of counsel, it is that, as the summons against the principal debtors and the summons in.the garnishment case were issued simultaneously, the garnishment proceeding is void. A further claim is made that Mr. Aubrey did not understand what it was necessary for him to do, and that he was told by the magistrate he might go, and that he supposed this proceeding was at an end.

It is not claimed that Horton & Stoner did not owe Richardson the full amount of the judgment, nor is it claimed that the Horton, upon whom service was made, was not, in fact, a member of the firm of Horton & Stoner. It has already appeared that the garnishee summons was personally served upon the treasurer of complainant, and that complainant appeared, and that the garnishee case was adjourned by consent from time to time. See Chamberlain v. Wallace, 176 Mich. 609 (142 N. W. 1072). It is, we think, apparent that an opportunity was given complainant in the garnishment case to urge any defense to the proceeding which it had.

In Gray v. Barton, 62 Mich. 186 (28 N. W. 813), the following appears:

“Equity will not relieve a party against a judgment at law on the ground of its being contrary to justice, unless the defendant was ignorant of his defense pending the suit, or facts could not be received as a defense at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident, or the act of the opposite party, from availing himself of his defense. * * *
“In Miller v. Morse, 23 Mich. 368, where a new trial was asked in a court of equity to relieve against a judgment at law alleged to have been obtained by the fraudulent conspiracy and false swearing of the plaintiff, this court held that the complainants were not entitled to relief, and Cooley, J., says:
“ ‘And we do not see why, if this hill should he sustained, the defeated party might not maintain a similar one in nearly every case which the courts at law dispose of.’
“In that case, it is true, no new facts were presented to the court discovered after the motion for new trial had been made in a court at law; but the general doctrine is there maintained that courts of equity do not permit cases to be retried therein except where the judgment recovered is against conscience, and where the defeated party has been prevented from making his defense by the fraud or improper conduct of the opposite party, and without fault on his own part.”

The doctrine of that case is reaffirmed in Finn v. Adams, 138 Mich. 258 (101 N. W. 533, 4 Am. & Eng. Ann. Cas. 1186), where Justice Montgomery, speaking for the court, said:

“A judgment at law may be vacated by a court of equity in a proper case, but the exercise of such jurisdiction is rare. It is only exercised after it has been made to appear clearly that an injustice has been done. Cleveland Iron Mining Co. v. Husby, 72 Mich. 61 [40 N. W. 168]; Mueller v. Marsh, 116 Mich. 378 [74 N. W. 513].”

There is nothing in the record to indicate that in the proceedings before the magistrate Mr. Richardson was acting other than in the utmost good faith. It is also clear that complainant is not free from negligence. If the chancery court is to take cognizance of cases like this, continued litigation would be encouraged.

The decree is affirmed, with costs.

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

The late Justice McAlvay took no part in this decision.


author: Moore, J.

text:
    ROGERS v. FORD.
    1 Carriers — Negligence—Contributory Negligence — Weight of Evidence.
    In a suit for personal injuries caused by falling down an elevator shaft, where there was evidence to support plaintiff’s theory, and the questions at issue were submitted to the jury under proper instructions, the verdict and judgment will not be set aside as against the great weight of the evidence.
    2. Trial — Argument of Counsel — New Trial.
    Argument of plaintiff’s counsel, invited by argument of opposing counsel, while not to be commended, where the trial judge in his charge to the jury endeavored to correct it, and the amount of the verdict was not excessive, is not sufficient cause for reversal.
    3. Damages — Carriers—Excessive Verdict.
    In an action for personal injuries caused by falling down an elevator shaft, causing plaintiff, a police captain, much pain and suffering, and possible permanent injury, a verdict for $2,250 will not be set aside as excessive.
    Error to Wayne; Gage, J., presiding.
    Submitted January 18, 1915.
    (Docket No. 118.)
    Decided September 28, 1915.
    Case by Andrew J. Rogers against Edward Ford for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Thomas M. Cotter (Edward Donnelly, of counsel), for appellant.

      Richard I. Lawson, for appellee.
   Moore, J.

This is a personal injury case. From a verdict and judgment in favor of the plaintiff in the sum of $2,250, the case is, brought here by writ of error.

The appellant asks that the case be reversed for the following reasons:

I. The verdict is contrary to the greater weight of the evidence.

II. The verdict is grossly excessive in amount.

III. There was error in argument of plaintiff’s counsel.

IV. Refusal of defendant’s fifth request to charge.

V. The overruling of defendant’s objection to the question: “Is it a usual thing to operate the elevator when the doors are open ?”

VI. Denial of motion for new trial.

The first and sixth of these reasons may be considered together. Plaintiff, on April 5, 1913, went to the Ford Building for the purpose of getting lunch at a restaurant on the second floor. This is a large office building owned by defendant. The plaintiff entered an elevator on the ground floor. The elevator, at the request of the plaintiff and another passenger, stopped at the second floor. The other passenger, a Mr. Wright, who was a witness in the case, got off at the second floor. The plaintiff attempted to follow Mr. Wright from the elevator, and as he was doing so met with the accident resulting in the injuries for which this suit is brought. Before plaintiff succeeded in leaving the elevator, it started upward. It was stopped soon after suddenly, and plaintiff fell upon the second floor of the building. From this point he either rolled or bounded back into the elevator shaft; the doors to the shaft at that floor having reopened, and the elevator having gone about three or four feet above the second floor. The plaintiff grasped the cable that hung beneath the elevator car. The elevator was then lowered to the ground floor, and the plaintiff was released.

It was the plaintiff’s theory that the elevator started without notice to him while he was attempting with due care to leave it, that the doors of the elevator were •fully opened and the elevator stationary when he attempted to leave it, and that he followed Mr. Wright promptly in leaving the elevator. He gave testimony tending to support this theory.

It was defendant’s theory that, after Mr. Wright left the elevator, the plaintiff did not follow him, or move to follow him, or give any indication or desire to leave the elevator, and that the operator thereupon started to close the doors, and while they were closing, and as the elevator started to rise, the plaintiff attempted to get out by thrusting himself between the closing doors, and that he was guilty of contributory negligence in so doing. There was testimony tending to support this theory.

The testimony was not in harmony. The trial judge left these conflicting theories under a fair charge to the jury, with the result already stated. After the verdict a motion was made.for a new trial for substantially the same reasons for which a reversal is asked here. In denying the motion the trial judge stated he thought there was an abundance of testimony to justify the verdict. We agree with him.

Should the case be reversed because of the argument of counsel? It is stated in the brief, and was stated on the oral argument, that the argument now criticized was invited by the argument of opposing counsel. The trial judge dealt with part of the argument at the time. In denying the motion for a new trial, he said of it:

“As to the third ground, I was of the opinion at the time of the argument that the counsel for the plaintiff, in his,zeal, made statements that he should not have made; but I endeavored to correct them in the charge, and if a slip is made by ah attorney in his argument it can be corrected by the cautions and instructions of the judge. I believe that was done in this case.”

The argument is not to be commended, but' in view of what was done by the trial judge, and the amount of the verdict, we do not think the case should be reversed because of the argument.'

This brings us to the remaining question requiring discussion. Should the case be reversed because the verdict is excessive? It is true plaintiff was getting old; but he seems to have been in good health at the time of, and for many years prior to, the accident. He was a captain of the police force. He described in detail the injuries he received and the pain he has suffered and is suffering. One' of the doctors described the physical condition of the plaintiff as he found it, and testified:

“In my opinion this injury will have a tendency to shorten the life of the plaintiff. My reason for so stating is that the suffering of this pain tends to shorten a person’s life to a certain extent, and the pain is caused by internal organs and the muscles, which is liable to be very serious at any time.”

Another physician who saw the plaintiff in the lobby of the Ford Building, and his injuries immediately after the accident, and who saw him later and examined him with care, described in extenso the conditions he found, and testified:

“Q. Can you say in your judgment that the injury is not permanent?
“A.. No; I cannot. I say in my estimation the injury is permanent. That is all I can say, I can’t go beyond that; no one can.
“Q. The injury is permanent?
“A. In my opinion.”

There is other testimony of a like character. We find no reversible e.rror.

Judgment is affirmed.

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

This case was originally assigned to the late Justice McAlvay.


text:
    WOLVERINE LAND CO. v. JEROME.
    Taxation — Tax Deeds — Limitation of Actions — Statutes.
    In an action of ejectment to recover possession of land purchased by tax deeds, one dated February 10, 1897, for the taxes of 1893, and the other May 3, 1898, for the taxes of 1894, the court was, in error in directing a verdict for defendant on the ground that the provisions of section 115, Act No. 153, Pub. Acts 1885, limiting the right of action to five years after the execution of the tax deed, controlled; the section relied upon having been repealed by Act No. 206, Pub. Acts 1893.
    Error to Oakland; Smith, J.
    Submitted April 22, 1915.
    (Docket No. 97.)
    Decided September 28, 1915.
    Ejectment by the Wolverine Land Company against Edwin Jerome for the possession of land purchased by tax deed. Judgment for. defendant on directed verdict. •Plaintiff brings error.
    Reversed.

      D. W. Closser (Peter B. Bromley and R. S. Woodliff, of counsel), for appellant.

      James H. Lynch, for appellee.
   Moore, J.

This is an action of ejectment, brought to recover the possession of an undivided one-half of 40 acres of land in Royal Oak township. From a directed verdict in favor of the defendant, the case is brought here by writ of error.

Defendant is the owner of an undivided half of said land by line of conveyance. Plaintiff claims title by virtue of tax deeds, one dated February 10, 1897, for the taxes of 1893, and the other May 3, 1898, for the taxes of 1894. These deeds were acquired from the State by Judge Baldwin, who subsequently died, and whose representatives conveyed the land to the plaintiff May 29, 1903, 5 years and 26 days after the date of the latest deed to Judge Baldwin.

The plaintiff filed a petition for writ of assistance, which is sworn to July 16, 1903, which states in paragraph 9 thereof “that the said lands are now in possession of Edwin Jerome and Frank H. Jerome.” Frank, who was a brother and tenant in common with defendant, Edwin Jerome, subsequently purchased the title of plaintiff in said lands. Consequently by the sworn petition of plaintiff the defendant, Edwin Jerome, was in possession of these lands 5 years and 2½ months after the date of the tax deed of May 3, 1898.

Counsel for the appellee concedes (we quote from the brief):

“If plaintiff’s right to possession under these deeds was not barred July 16, 1903, then defendant has no defense. If it was barred, then plaintiff has no standing in this suit.”

A disposition of the case makes it necessary to refer to certain tax statutes. Act No. 153, Pub. Acts 1885, was a general tax law. Section 115 reads:

“The right to recover possession of any land by any person claiming through or under any deed, executed by the auditor general by virtue of the provisions of this act shall be forever barred by the actual, open, and continuous possession of any person claiming such land adversely to such tax deed for the period of five years after the execution of such tax deed: Provided, that if the person claiming through or under such tax deed shall have once taken actual and peaceable possession of such land, by virtue of his deed, and shall have continued in such actual possession for five years next thereafter, then the provisions of this section shall not apply, but in such case he shall be conclusively deemed the owner in fee simple of such land.”

It is the claim of appellant that the tax law of 1885 was superseded by Act No. 195, Pub. Acts 1889, which later act was superseded by Act No. 200, Pub. Acts 1891, which was in turn superseded by Act No. 206 Pub. Acts 1893, which later act it is claimed was in full force when the tax deeds involved in this proceeding were obtained.

It is the claim of the appellee that the limitation clauses of the act of 1885 remained in force until 1907. We quote from the brief:

“The proposition, then, before the court, is simply this: Are the provisions of section 115 of the tax law of 1885 applicable to plaintiff’s deed acquired in 1893 ? I think they are.”

The circuit judge accepted the contention of counsel for appellee, and it is claimed that the case of St. Mary’s Power Co. v. Water-Power Co., 133 Mich. 470 (95 N. W. 554), sustains the action of the circuit judge. The tax deed in that case was issued upon a sale made October 2, 1888, and it was held in the case cited that the provisions of section 115, supra, applied. In the instant case the tax deed was obtained in 1897 for the taxes of 1893, and the plaintiff claims that Act No. 206, Pub. Acts 1893, which has no limitation provision like that contained in the act of 1885, should control. So far as the decision in St. Mary’s Power Co. v. Water-Power Co., supra, is applicable to the instant case, it would tend to sustain the contention of appellant. Justice Hooker used the following language:

“If, as contended by counsel for the defendant, sections 115 and 116 of the law of 1885 were substantially re-enacted in section 66 of the law of 1889 and section 67 of the law of 1891, they fell with the rest of those acts by the explicit repeal in 1893.”

The title of Act No. 206, Pub. Acts 1893, closes as follows:

“And to repeal act number two hundred of the Public Acts of 1891, and all other acts and parts of acts in any wise contravening any of the provisions of this act.”

The repealing language in the body of the act is contained in section 126. We think it must be said that the instant case is controlled by the law of 1898, instead of by the law of 1885.

The judgment is reversed, and a new trial granted.

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

The late Justice McAlvay took no part in this decision.


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    PARENT v. HODGES.
    Boundaries — Line Pence — Quieting Title — Evidence.
    In a suit to establish a boundary line and quiet title to land, brought under section 11965, 4 How. Stat. (2d Ed.), evidence examined, and held, to establish the existence of the boundary line, as at present occupied by a fence, for more than 20 years, and a decree for complainant is affirmed.
    Appeal from Oakland; Smith, J.
    Submitted June 8, 1915.
    (Docket No. 8.)
    Decided September 28, 1915.
    Bill by Dollie B. Parent and others against George S. Hodges and others, under section 11965, 4 How. Stat. (2d Ed.) to establish a boundary line and quiet title to- land. From a decree for complainants, defendants appeal.
    Affirmed.

      Dondero & Howarth (Pelton & McGee and Peter B. Bromley, of counsel), for complainants.

      Patterson & Patterson, for defendants.
   Moore, J.

This bill was filed February 25, 1914, for the purpose of establishing a boundary line and quieting title to land. From a decree in accordance with the prayer of the bill of complaint, the case is brought here by appeal.

Virgil M. Rose, on the 17th of July, .1883, conveyed by warranty deed to Mariva Hodges, his daughter, the south 40 acres off from that portion of the N. W. % of section 27, in township 1 N., of range 11 E., in Royal Oak, Mich., lying east of the Detroit and Birmingham plank road, reserving a life estate to Virgil M. Rose. On February 20, 1893, Mr. Rose quitclaimed to Mrs. Hodges the 40 acres above conveyed, thereby releasing his life estate to her. On July 31, 1883, Virgil M. Rose conveyed to Harriet D. Carew, his daughter, all that portion of the N. W. % of section 27, in the township of Royal Oak, Oakland county, Mich., lying east of the Detroit and Birmingham turnpike, containing 122 acres, more or less, except 40 acres off the south side, reserving a life lease. Mr. Rose died in June, 1894. On February 21, 1905, Harriet D. Carew conveyed to her daughters, Dollie B. Parent, Bessie D. McGuire, Kittie H. Wilcox, and Delia M. Hamilton, the premises mentioned in the deed from Virgil M. Rose to Harriet D. Carew. At the time of the death of Mariva Hodges, in November, 1904, she owned the 40 acres, and George S. Hodges, as one of her two heirs, inherited an undivided one-half of the property and received a deed from Helen M. Bertrand, daughter of his brother, Schuyler G. Hodges, deceased, of the other half. The daughters of Mrs. Carew divided the land deeded to them into four equal parts, and the parcel of 24.15 acres immediately north of the Hodges 40 was set off to Dollie B. Parent, the complainant. About 4 years before the bill of complaint was filed, Dollie B. Parent built a house near the fence on the north side of the 40 acres and on the strip of land now in dispute; the house being valued at $10,000. She claims that, while she was building it, George S. Hodges, the defendant, came to the house and talked with her and made no claim that she was building her house on his land. Mr. Hodges, before this suit was brought, gave the Michelson Land Company a land contract for his 40 acres. This company claimed to own the land north of where Mrs. Parent claims is the boundary fence, including the land upon which Mrs. Parent has built her house.

The complainants claim the right to file this bill of complaint by virtue of section 11965, 4 How. Stat. (2d Ed.). The litigation grows out of conflicting surveys. The complainants claim that a survey made by a Mr. Wilmarth in 1888 is the correct survey, while defendants claim that a survey made by Mr. Russell should control. Complainants also claim that a boundary fence between the Hodges 40 and the land claimed by complainants has existed and been recognized for more than 30 years. As to the fences we quote from the brief of defendants:

“Regarding the north line of the Hodges 40, it appears that the present post and wire fence that is referred to in the record has been built only 7 or 8 years, and that fence has not been built long enough to be used as a boundary fence to establish the ownership of the parties on either side of it. With the exception of this post and wire fence, wfiich was built by Mrs. Parent, the other fences referred to were in existence for many years, and during the lifetime of Virgil M. Rose, when he owned and occupied and controlled the entire property. This post and wire fence was placed on the line run by Surveyor Slater, when he was instructed to run an arbitrary line to include 40 acres from the Wilmarth quarter line, so that occupancy or claim of possession on the part of Mrs. Parent is not sufficient under the statute to base a claim, and I therefore contend that the north line of the property is to be determined and depends upon the location of the quarter section line. Whatever the character or location of the old fences that were in existence during the life of Virgil M. Rose, they certainly cannot be construed to be and were not division fences.”

In this connection it should not be forgotten that Mr. Rose parted with all his interest in the south 40 acres 21 years before this suit was brought, and died nearly 20 years before.

The case was tried in open court. As to the boundary fence the court found:

“For 35 years or more a fence has existed, renewed when burned or decayed, and upon the same line as the present fence, separating what is called in this case ‘the timber lot’ from the remainder of the farm. The proofs are so preponderating that I call them conclusive that Mr. Rose supposed this timbered lot contained 40 acres. It did, if the Wilmarth survey is correct. It was called the south 40 acres. * * * All three parties clearly then understood the line of the fence was the division line. * * * It marked the line of the lands the parties understood he was giving to his daughters. The daughters of Mrs. Carew so understood it when they received their deed, and when they so divided it as to give Mrs. Parent this strip in her one-fourth. Mr. Rose, since the quitclaim deed of his life estate to Mrs. Hodges in February, 1893, also Mrs. Carew and her daughters, since the death of Rose in 1894, have been in actual and adverse possession of the land to this fence.”

As to the surveys he expressed himself as follows:

“Because the solicitors were so urgent as to these various surveys in the record, they are considered briefly. A certified copy of the field notes of the original United States government survey made in 1816 was presented. One Hervey Parke, of Pontiac, did much surveying in Oakland, after the county was settled, or partially so. tie left notes, among which were some of this section. In 1865 the board of supervisors purchased the Parke notes, and subsequent surveyors made records in books from them, which are kept in the county clerk’s office. Whether the Parke survey of section 27 was based upon the government survey and monuments, or on the location of the highways, or whether it was correct, does not appear. County surveyors have since added to these books of record, and surveyors use them. Reuben Russell seems to have made a survey on section 27, based upon the Parke survey, which gave rise to the controversy over the boundary lines. It is claimed the Duffields moved their north line, so as to take in a strip from the Hodges 40, because of the new surveys. Just how much does not appear. I have no confidence in the correctness of the Russell surveys. If the statement purporting to come from Serrell (a surveyor of much experience here, who assisted Russell) is admissible, Russell found no posts or monuments, but set corner posts where he claimed he remembered they had been. It is a part of the record that he made a survey on section 28, and later admitted he had made a mistake of 4 rods. - The surveys made by Messrs. Slater and Fisher were based upon the Pontiac records of the Parke and Russell survey. Upon this record I think the Wilmarth survey the more reliable, and as more nearly agreeing with the original government survey. It seems probable that Messrs. Wilmarth and Wilcox did discover what had once been the marking of the quarter section corner by the government surveyors.”

The case is well briefed, and it was argued at length orally. The record has more than 200 printed pages. In addition, we have many blueprints and tracings, and copies of field notes. It would do no one any good to set out the record in detail. We think it establishes the fact of the existence of the boundary fence for more than 20 years, and that if the Wilmarth survey is to prevail, and it ought to prevail, the fence is in the proper place.

The decree is affirmed.

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

The late Justice McAlvay took no part in this decision.


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    GREENMAN v. GILLERMAN’S ESTATE.
    1. Parent and Child — Support and Maintenance — Evidence— Directed Verdict.
    In an action by tbe natural mother against the estate of an adopting father for the support and maintenance of the adopted child, the action of the trial court in directing a verdict for the defendant is erroneous, as the evidence, considered most favorable to plaintiff, showed that both claimant and decedent expected he would at least contribute to the support of the child.
    2. Same — Adoption—Liabiuty for Support.
    A person adopting a child under section 11640, 4 How. Stat. (2d Ed.), stands in the place of a parent to such child and Is liable to all the duties and entitled to all the rights of a parent.
    Error to Kent; North, J., presiding.
    Submitted June 21, 1915.
    (Docket No. 80.)
    Decided September 28, 1915.
    Esther Greenman presented a claim against the estate of August Gillerman, deceased, for the support of an adopted child. From an allowance of the claim in the sum of $266.75, the administrator appealed to the circuit court. Judgment for defendant on a directed verdict. Claimant brings error.
    Reversed.

      E. A. Maher, for appellant.

      Corie C. Coburn, for appellee.
   MOORE, J.

The claimant presented against the estate of August Gillerman, deceased, a claim for the board, clothing, and care of Florence Gillerman from August 19, 1911, to August 20, 1913. The claim was allowed in the probate court at the sum of $266.75. Upon appeal by the administrator to the circuit court, the cause was brought on for trial before a jury and the trial judge directed that a verdict be entered disallowing the claim. The case is brought here by writ of error. The sole question is: Was the judge justified in directing a verdict?

In June, 1906, Mr. and Mrs. Greenman were very poor. Mr. Greenman was a dissipated man and had been away from his family for about three years. On the 6th of June, 1906, Mr. and Mrs. Gillerman by proceedings in probate court formally adopted Florence Greenman, who was then five years old. Mrs. Carrie Gillerman became insane about 1910, and later died. Florence was then for a time in the family of Mr. and Mrs. John Edwards, where Mr. Gillerman boarded, and he paid for her care. After a time Mrs. Edwards’ health failed, and Florence was taken to the Blodgett Home, where Mr. Gillerman paid for her care. Later she was returned to the Edwards home for a little time, when, because of the ill health of Mrs. Edwards, it was arranged with the claimant to take care of her. When this arrangement was made, the child had been with the Gillermans so long that she did not know that the claimant was her mother. Some time after this arrangement was. made Mr. Gillerman married again. He was for a long time out of health, and later died. His estate consists of money paid by the railway company for injuries which caused his death.

The circuit judge was of the opinion that, the case was controlled by Thorp v. Bateman, 37 Mich. 68 (26 Am. Rep. 497), and for that reason directed a verdict in favor of the estate. Counsel for appellee insist that not only is the case within Thorp v. Bateman, but that it is also within Harris v. Harris, 106 Mich. 246 (64 N. W. 15), Decker v. Kanous’ Estate, 129 Mich. 146 (88 N. W. 398), Rodgers v. Lamb’s Estate, 137 Mich. 241 (100 N. W. 440), and In re Colburn’s Estate, 153 Mich. 206 (116 N. W. 986, 126 Am. St. Rep. 479), and that judgment should not be disturbed.

The case is a peculiar one in its facts. It should be decided upon the status of the arrangement between the adopted father and the natural mother, coupled with the obligations growing out of those relationships. There is no question but that Florence was. legally adopted by Mr. Gillerman, and his duties to the child then became fixed by the statute. She went to live with him, and he supported her until after the death of his wife and until Mrs. Edwards, with whom Mr. Gillerman boarded, became so ill the child could no longer remain there.

Mrs. Edwards testified that she went to see Mrs. Greenman at Mr. Gillerman’s request.

“He asked me if I would do him that favor, to go there, and I did.

“Q. What was the reason the child went away from your place, or was going away again?

“A. I was sick at the time and unable to take care of her. Mrs. Greenman came to my place to see Mr. Gillerman the next morning after I saw her. I heard some talk between Mr. Gillerman and Mrs. Greenman at that time. I did not hear much of the conversation, but I heard him tell her that he would help her to take care of Florence, and that she would never want. Florence was taken to Mrs. Greenman about a week later. She remained at our place in the meantime. I heard Mr. Gillerman say to Florence that he was going to take her to her mother, and she said that she did not want to go there, because she was not her mother. After the child was taken to Mrs. Greenman, Mr. Gillerman continued to live at our house. While the child was living at our house Mr. Gillerman paid for her board. He also paid for her board at the children’s home. While Florence was in our house Mr. Gillerman was there every day. He worked during the day and came home to dinner. Florence was attending school at that time. Mr. Gillerman purchased her clothing. I did her laundry work.”

Florence Gillerman was a witness. She testified in part as follows:

“Q. Who did you go there [to the claimant’s] with in the first place?
“A. My papa, Mr. Gillerman.
“Q. Did he talk with you about taking you there before he went there?
“A. Yes, sir.
“Q. Did you know Mrs. Greenman was your mother at that time?
“A. Yes; just the night before he took me there.
“Q. Had you understood that you was an adopted child of Mr. Gillerman?
“A. No, sir.
“Q. Had you supposed that you were his own child up to that time?
“A. Yes, sir.
“Q. Had you ever seen Mrs. Greenman?
A. Yes; she worked at Mr. Edwards’.
“Q. Do you know whether she depends on her work for her living?
“A. Yes, sir.
“Q. Where did Mr. Gillerman talk with you first about taking you there?
“A. The night before he took me there he said that I should be a good girl, and when I got bigger he would come and get me.
“Q. Who went with you when you went to Mrs* Greenman’s ?
“A. Mr. Edwards and papa.
“Q. By ‘papa’ you mean Mr. Gillerman?
“A. Yes, sir.
“Q. What did you hear said there when you got there? Did Mr. Gillerman talk with you there?
“A. Yes, sir.
“Q. Did he talk with Mrs. Greenman?
“A. Yes, sir.
“Q. What did he say to you there?
“A. He said he would help me along and buy me some clothes as soon as he got some money, and see that I had a good education.
“Q. What did he say to Mrs. Greenman?
“A. I don’t know; I was. crying.”

John Edwards testified in part as follows:

“Florence lived in our family better than a year. August Gillerman lived there at the same time. Florence did not live there continually. She was at the Blodgett Home for one month. I guess that is all until she went to her mother’s. I went with Mr. Gillerman when Florence was taken to Mrs. Greenman’s.
“Q. What did he say, or did he say anything, about his purpose in taking her there, to you or in your hearing?
“A. Why, I did not pay much attention to it at that time. He spoke about leaving her there. I don’t know just what the conversation was.
“Q. Did you hear any conversation between Mr. Gillerman and Mrs. Greenman when he left Florence there ?
“A. Not that I remember; no.
“Q. Did you hear any talk about it at all.
“A. Nothing any more than he would look after her and see that she did not want for anything; that is all I remember of him saying. * * *
“Q. As a matter of fact, you never heard Mr. Gillerman say anything to Mrs. Greenman about his paying her, did you ?
“A. No, sir.
“Q. The only thing you heard Mr. Gillerman say was that he would take care of the child?
“A. Yes, sir.
“Q. What was that?
“A. That was the night he took her home. She sat on his lap and cried, and he cried himself and he promised her that he would never see her in want.”

At the time of the arrangement the claimant was still very poor and was making a living by taking in washings and going out to wash. Her husband was then at home occasionally, but remained dissipated and did but little for the family. Later he was sent to prison, and the claimant got a divorce from him. It is claimed there was a paper showing claimant was willing to readopt the child. She attempted to testify about this, but was not allowed to, because of the objection of counsel for appellee. The paper does not appear in the record, but it does appear that no proceedings were had in probate court.

We have purposely quoted the testimony most favorable to claimant. The difficulty of showing what the arrangement was is apparent, as no one who was taking notice was present when it was made, except Mrs. Greenman, whose lips are sealed by the statute, and Mr. Gillerman, whose lips aré sealed by death. Enough does appear, however, to indicate that Mr. Gillerman expected to at least contribute to the support of the child, and that the claimant expected he would do so.

. A reading of the cases relied upon by the appellee will show them distinguishable from the instant case. When Mr. Gillerman adopted the child the statute (4 How. Stat. [2d Ed.] § 11640) fixed his relations toward it, “whereupon * * * the person or persons so adopting such child shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled 'to all the rights of parents thereto, * * * the same as if he or she were in fact the child of such person or persons.” The obligation of a parent to support a child is discussed in Courbright v. Courbrighb, 40 Mich. 633, and Finn v. Adams, 138 Mich. 258 (101 N. W. 533, 4 Am. & Eng. Ann. Cas. 1186).

We think the judge erred in stating, as a matter of law, that Mr. Gillerman was relieved of the duty of supporting this child, and that it devolved upon the claimant.

The case is reversed, and a new trial ordered.

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

The late Justice McAlvay took no part in this decision.