text:
    ERDMAN v. DETROIT UNITED RAILWAY.
    Street Railways — Contributory Negligence.
    Testimony in plaintiff’s behalf that he looked both ways before turning to cross the double track of defendant street railway, that a car had just passed and he saw no other approaching until his horse reached the farther track, when he perceived a car coming on that track upwards of 280 feet away, that, believing he had time to cross, he hurried his horse and succeeded in getting out of the path of the car except his rear wheel, which the street car struck, injuring plaintiff, and that the car was running at a high rate of speed so that it ran about 100 feet after it struck the rig, presented a question of fact for the jury, and the court erred in directing a verdict for defendant on the ground that plaintiff was negligent.

    Error to Wayne; Van Zile, J.
    Submitted October 8, 1912.
    (Docket No. 1.)
    Decided May 29, 1913.
    Case by Charles Erdman against the Detroit United Railway Company for personal injuries. Judgment for defendant upon a directed verdict; plaintiff brings error.
    Reversed.

      Milligan & Milligan, for appellant.

      Corliss, Leete & Joslyn and Benjamin S. Pagel, for appellee.

       On the question of the right of a driver of vehicle to assume that motorman will give him time to cross track, see note in 5 L. R. A. (N. S.) 1081. And for injuries by street car collisions with vehicles or horses, generally, see note in 25 L. R. A. 508.

   McAlvay, J.

This is an action for damages claimed on account of personal injuries caused plaintiff by reason of being struck and thrown from his wagon by a car operated on defendant’s street railway in the city of Detroit on account of claimed negligence of defendant’s employees. A judgment in the case was rendered against plaintiff, upon a directed verdict for defendant at the close of plaintiff’s case, on the ground of contributory negligence. Plaintiff brings the case to this court for review upon a writ of error. The sole question involved is whether error was committed by "the trial court in directing said verdict. The record is very brief, and the only witness who testified relative to the accident is the plaintiff In view of the directed verdict against him, his testimony will be considered in its light most favorable to him.

This accident occurred November 15, 1910. Plaintiff was a farmer, 65 years old, who resided upon a small farm at a place called Frazer, about 15 miles from the city hall in Detroit. On the day in question he had driven into town during the forenoon, and was at the time of his injury returning home. He was driving a single horse, hitched to a three-spring wagon, going in a northeasterly direction along Gratiot avenue in the city of Detroit, upon the right-hand side of the street. Upon this street is a double track used for the operation of defendant’s street cars. As he approached the intersection of Joseph Campau avenue, he desired to cross the street car tracks and go to a grocery store. Just before he proceeded to cross the tracks a car of defendant, going in the same direction, passed him. He then looked both ways, and, seeing no car coming from either direction, turned to go across the tracks. He says that his horse was over the first track and between the two tracks when he looked again and saw a car approaching on the further track, just a little beyond Mitchell street, which is the next street east of Joseph Campau avenue. His horse at the time was just about to go onto the track along which the car was coming. He noticed that it was a big car and was coming fast. He drove his horse as fast as he could, thinking he had time to get across. The car struck the rear wheel of his wagon, throwing plaintiff out and injuring him. The record shows that the car was about 50 feet in length, and went about 100 feet after it struck the wagon.

The crucial question in the case is whether it can be said, as a matter of law, that plaintiff, when he saw the car coming rapidly toward him, should not have attempted to cross the second track. The exact distance of the car at the time when plaintiff discovered the necessity of hurrying across cannot be stated. At this time his horse was across the first track, and of necessity the. head of the horse must have been at or over the first rail of the second track. The plaintiff testifies that the car was beyond Mitchell street, which would be a distance, according to the plat in the record, of 282.86 feet. He also testifies that it was beyond Andries’ store. Measurement showed that the distance to the east side of Andries’ store was 140 feet. All of these statements are consistent with the fact that the car, when he got into this place between the tracks, was east of Mitchell street. All of the points mentioned are east of Andries’ grocery. He testified that when he found himself in this situation he thought, by hurrying up, he had plenty of time to get across. The record shows that his rear wheel wás barely struck by the car. There can be no question from this testimony but that, before crossing either track, he looked both ways and saw no car coming. He then crossed the first track, and with his horse on the space between the tracks he looked a second time and first observed this car. From his testimony, and from the distance the car ran after the collision, it is apparent that its speed was great. Under the circumstances we are constrained to hold, in view of plaintiff’s testimony and the distance the car was from him when plaintiff made his attempt to cross the second track, that the question of contributory negligence should have been held to be one of fact to be determined by the jury. These cases are determined each upon its own merits, and there is nothing in this record to indicate reckless disregard of his safety by the plaintiff. We quote the following from a recent decision of this court:

“Giving to plaintiff’s evidence its greatest probative force, as we are bound to do where a verdict is directed against him, we are unable to say, as a matter of law, that he was guilty of contributory negligence.”

Putnam v. Railway, 164 Mich. 342, 343 (129 N. W. 860, 861), citing Ryan v. Street Railway Co., 123 Mich. 597 (82 N. W. 278); Chauvin v. Railway Co., 135 Mich. 85 (97 N. W. 160), and other cases.

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

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    WARNER v. CITY OF WYANDOTTE.
    1. Municipal Corporations — Notice op Claim — Waiver.
    Where plaintiff presented to the city council, within sixty days after suffering injuries on a defective sidewalk, a written request for assistance, setting up the fact and manner of his injury; and the claim was referred to a committee, one of the members of which made an investigation and reported his conclusions to the common council, by which it was referred to the city attorney and he examined plaintiff under oath, the defendant city waived the objection that the notice of claim was defective.

    2. Same.
    In a personal injury case brought for injuries sustained in a fall on a sidewalk where a step of five and a half to seven and a half inches occurred between two portions of the walk, it was not error to exclude testimony that a witness for defendant had never had any difficulty in passing over the place in question and that the portion of the walk last built was constructed after the adjacent pavement was laid.

      Error to Wayne; Murphy, J.
    Submitted October 11, 1912.
    (Docket No. 55.)
    Decided May 29, 1913.
    Case by Hiram J. Warner against the city of Wyandotte for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      C. H. Marr and George W. Coomer, for appellant.

      Charles Bowles (W. F. McDonald, of counsel), for appellee.

       On the question of notice of claim and cause of injury as condition of municipal liability for defect in highway, generally, see note in 20 L. R. A. (N. S.) 757. And as to the validity of requirement of written notice of defect to render municipal corporation liable for injuries caused by defective highway, see note in 11 L. R. A. (N. S.) 391.

   McAlvay, J.

Plaintiff was injured on Biddle avenue, in the city of Wyandotte, and brought suit for damages for such injury against the municipality, claiming negligence by reason of a defect in the construction of a cement sidewalk within its limits on Biddle avenue in front of certain premises owned by Mr. Flowers. On this street where the accident occurred, a cement sidewalk had been constructed several years previous by several adjoining owners, and the Flowers walk in question was built at an elevation above the old walk where it joined with it of from 51/2 to iy% inches, making an abrupt step of that height on the north line of his premises. On the evening of September 11, 1910, about 7 o’clock, plaintiff had gone in haste from his daughter’s house in an automobile with the doctor to have a prescription filled for a grandchild at the drug store. He waited some minutes, and then started home with the medicine in a great hurry. He was passing rapidly over this walk, and coming to this rise struck his foot, fell forward, and was severely injured. It was very dark, and he had never before been along this walk after the Flowers walk was built.

In October he served the following paper upon the city clerk:

“Wyandotte, Oct. 18, 1910.

“To the Mayor and Council óf the City of Wyandotte—

“Dear Sirs:

“On Sunday, September 11th, as I was going from the drug store I was running on the south side of Biddle avenue, at the north end of Flowers’ store, I caught my foot on the rise in the walk and fell and hurt me so I have not been able to work since, and I think the city should help me.

“Yours truly,

“Hiram Warner,

“48 Grove Street.”

This communication was received by the common council October 26, 1910, and, as appears from their proceedings of that date, was entered at length on the record. The record then shows as follows:

“The foregoing communication was read and referred to the committee on streets.”

At the same meeting, in open council, a member of that committee was directed by the mayor to investigate this claim. Within two days this alderman called upon plaintiff, telling him he had been sent by the city to see him relative to his communication. He then made an investigation of the circumstances attending his injury and learned from him the amount of damages for which he would settle with the city. He also inspected the sidewalk at the place where the injury occurred. At the meeting of the common council next succeeding, he reported orally the result of his investigations. At a meeting of the common council held November 9, 1910, the following appears in the proceedings :

“The mayor, with the permission of the common council, referred to the city attorney the claim for damages made by Hiram Warner, who was hurt on the sidewalk on Biddle avenue.”

At a session of the common council, held March 15, 1911, the following appears:

“Communication from the mayor. The mayor recommends that he take up the matter of the suit started by Hiram Warner against the city, and see if the same cannot be adjusted.”

After the mayor had this claim referred to the city attorney, plaintiff called upon such city attorney on December 12, 1910, and upon examination by him under oath, which was reduced to writing in narrative form, made a statement of the facts and circumstances of his injury. There is a dispute between these parties as to the substance of this statement; plaintiff claiming that it contains things he did not say and which were not read over to him. Nothing further appears to have been done prior to commencement of suit. The trial resulted in a verdict and judgment for plaintiff. Upon a writ of error a reversal is asked by defendant, and the material errors assigned will be considered.

The principal question in the case arises upon the holding by the court that, as a matter of law, under the undisputed facts, the defendant had waived the formal statutory notice of the injury to plaintiff. Upon this action several assignments of error are based.

As already appears, this record shows the following undisputed facts: The plaintiff’s claim was filed seasonably with the proper officer and subsequently presented to the council.. The council proceedings show that it was received and spread upon the records October 26, 1910; also that it was read and referred to the committee on streets. It appears without dispute that one of this committee was directed by the mayor to investigate; that he made the investigation and reported to the common council. The proceedings of the common council of a meeting held on November 9,1910, show that—

“The mayor, with the permission of the common council, referred to the city attorney the claim for damages made by Hiram Warner, who was hurt on the sidewalk on Biddle avenue.”

It appears that, after the claim was referred to the city attorney, the plaintiff went to his office on December 12, 1910, where the city attorney drew his statement, which we have referred to. On March 15th the council proceedings show a communication from the mayor recommending “that he take up the matter of the suit started by Hiram Warner against the city and see if the same cannot be adjusted.” All of these facts, except taking plaintiff’s statement by the city attorney, transpired within the statutory period of 60 days allowed plaintiff for presenting his claim, and no suggestion or claim appears to have been made to him that the notice of his claim was deficient or that any further statement of the claim was required. From these facts the court was warranted in holding as a matter of law that defendant had, by its conduct, waived any further notice. That a common council may waive the formality of a notice has been repeatedly held by this court. Lindley v. City of Detroit, 131 Mich. 8 (90 N. W. 665), citing Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78) ; Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444) ; Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663); Wright v. Village of Portland, 118 Mich. 23 (76 N. W. 141).

In the principal case cited the court said, speaking of the waiver of a formal notice by a common council:

“Whether it has done so or not is usually a question of fact to be submitted to a jury; but the facts are undisputed in this case, and we think it was proper for the circuit judge to instruct the jury that by referring the claim to its committee to investigate upon its merits, and through the action of its committee in dqjng so, it waived a right of further notice.”

The instant case is within the case cited, and the same rule applies.

This also disposes of all the assignments of error upon the admission or exclusion of testimony except two, which occurred during the examination of defendant’s witness Burnowski, who was not allowed to answer the question, “Did you ever have any difficulty in passing over this stretch of walk?” and also in not allowing his testimony to stand, to the effect that the Flowers walk was built after the pavement was laid. The court correctly held in both instances that the testimony was incompetent and immaterial.

The requests of defendant refused by the court were based upon the statutory provision relative to notice of injury to persons by reason of defective sidewalks or highways in fourth-class cities. These propositions are all disposed of in holding the court correct in its ruling upon the waiver of notice.

The judgment of the circuit court is affirmed.

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


author: Bird, J.

text:
      In re SELLMAN’S ESTATE. STEUARD v. SELLMAN’S ESTATE.
    1. Limitation of Actions — Estates of Decedents.
    Under 3 Comp. Laws, §9737 (5 How. Stat. [2d Ed.] § 14144)', allowing two years after appointment of an administrator or executor in which to present claims against decedent’s estate if barred by tbe statute of limitations during that period or 30 days before the death of deceased, a claim presented upwards of two years and four months after an administrator was appointed, having run six years and six months before it was presented, should have been disallowed on the ground that it was not presented during the two-year period.
    2. Same — Trusts—Implied Trusts.
    While the statute of limitations does not affect express trusts, it bars an action on an implied trust arising from the fact that decedent took charge of claimant’s funds at a time when claimant was taken ill and went to a hospital.
    Error to Kalamazoo; Smith, J., presiding.
    Submitted June 17, 1912.
    (Docket No. 113.)
    Decided May 29, 1913.
    Claim by Horace A. Steuard as administrator of the estate of Emily Coe, deceased, against the estate of Betsey Sellman, decedent, for money had and received. From the allowance of part of the claim, claimant appealed and obtained judgment in circuit court. Defendant estate brings error.
    Reversed; new trial refused.

      E. M. Irish, for appellant.

      W. S. Powers, for appellee.
   Bird, J.

Emily Coe and Betsey Sellman were sisters, and in the year 1903 were living together at Galesburg. On March 5, 1904, Emily, being ill, was taken to the hospital, where she died a year later, on the 7th day of March, 1905. It appears that, after she was taken to the hospital, Betsey took charge of certain moneys, about $400, which Emily had left in her bureau drawer, and deposited it in the bank in her own name. It was claimed that she had possession of other moneys belonging to Emily and that it all aggregated the sum of $1,200. While matters stood in this way, and on the 28th day of April, 1907, Betsey died, and afterward and on the 28th day of April, 1908, one Albert Mack was appointed administrator, with the will annexed, of her estate. On the 27th day of October, 1909, Horace Steuard was appointed administrator of Emily’s estate. Emily died intestate and Betsey testate, leaving two sets of beneficiaries, which accounts for this litigation. They not being able to agree among themselves, Horace Steuard, administrator of Emily’s estate, filed a claim with the commissioners of Betsey’s estate in the sum of $1,200, and it was allowed by them at the sum of $515.88. An appeal from the decision of the commissioners to the circuit court resulted in the allowance of the claim at the sum of $1,577.50. From this judgment the administrator of Betsey’s estate has taken an appeal to this court, and the complaint made is:

(1) That the claim is barred by the statute of limitations.

(2) That the judgment was established by incompetent testimony.

1. Was the claim barred by the statute? It appears from the testimony that these two sisters were the only surviving members of their family, and that they lived together in the old homestead on good terms. After Emily was taken to the hospital, Betsey took charge of her effects, and one witness testified that she placed the $400 in the bank in her own name, although none of the bank books was produced to substantiate it. It was shown by the admissions of Betsey that she had other moneys belonging to Emily. The date of taking charge of the $400 was within a week after Emily was taken to the hospital. This would fix the date then as March 12, 1904, when the statute began to run. The claim was not presented to the commissioners of Betsey’s estate until the 12th day of September, 1910. It is therefore obvious that the claim was barred six months before it was presented for allowance, unless it was saved by section 9737, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14144). That section provides that:

“If any person entitled to bring any of the actions before mentioned in this chapter, or liable to any such actions, shall die before the expiration of the time herein limited, or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be commenced by or against the executor or administrator of the deceased person or the claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within two years after granting letters testamentary or of administration, and not afterwards, if barred by the provisions of this chapter.”

This statute was construed in Morse v. Hayes, 150 Mich. 597 (114 N. W. 397, 13 L. R. A. [N. S.] 1200, 121 Am. St. Rep., 643), and it was there held that the statute applied only to claims which would expire by limitation within the two years following the granting of letters of administration, and those which would become barred within the 30 days before death. Administration was granted upon Betsey’s estate April 28, 1908. Two years added to this date would extend the time to April 28th, 1910. As the claim would become barred on March 12,1910, it would expire within the two years allowed by the statute, and therefore the statute would apply to the claim and extend the time in which it might be presented to April 28, 1910. It was not, however, presented until September, 1910, nearly five months after the extended time had expired. We therefore conclude that the claim was one which came within the saving grace of section 9737, but was- lost because of the failure to present it within the time allowed by that section.

It is further contended by claimant that the amount due from Betsey’s estate was a trust fund, and, as the statute of limitations has no application to trust funds, the claim is not affected by the statute. This position would probably be the correct one if it were an express trust (Frank v. Morley’s Estate, 106 Mich. 635 [64 N. W. 577]); but it is not an express trust. If it can be said to be a trust, it is an implied trust, and as against such trusts the statute of limitations operates. 25 Cyc. p. 1155; German American Seminary v. Kiefer, 43 Mich. 105 (4 N. W. 636). We are of the opinion that the claim was barred by the. statute when presented for allowance, and that it should have been disallowed by the commissioners. In view of this conclusion, it will be unnecessary to consider the other question presented.

The judgment of the trial court will be reversed, and no new trial granted.

Steere, C. J., and Moore, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred.


text:
    WILES v. SHAFFER.
    Vendor and Purchaser — Deed as Mortgage — Liens—Bona Fide Purchaser — Notice—Payments.
    Where complainant claimed that he provided the purchase price of real property and his wife took title in her name and gave a deed as security for a loan without his consent, a bona fide purchaser on contract from the mortgagee and apparent owner will be protected only as to payments made before he received notice of the fact that the deed was a mortgage.
    Appeal from Gladwin; Sharpe, J.
    Submitted November 12, 1912.
    (Docket No. 35.)
    Decided May 29, 1913.
    Bill by Martin E. Wiles against Daniel P. Shaffer and others for an injunction, to set aside a deed, and other relief. From a decree granting partial relief, complainant appeals.
    Modified and affirmed.

      Campbell & Foster, for complainant.
    G. G. Leibrand, for defendant Gregersen.
   McAlvay, J.

Complainant filed his bill against these defendants for the purpose of setting aside a deed made by Maggie E. Wiles, his former wife, to defendant Daniel P. Shaffer, and for a release from the defendants Shaffer and Gregersen to him of all right and interest claimed by them in and to certain land situated in Gladwin county, described in the bill of complaint, also for an injunction restraining the defendants from interfering with his possession, and for general relief.

There appears to be little dispute between the parties upon the facts in the case. The complainant and appellant admits that the facts as found by the court, with one exception, which will be mentioned later, are correct. These facts are substantially as follows: That prior to June 18, 1906, complainant and his wife lived on these premises six or seven years, having purchased the same under contract from one Jacob Schwartz, and had made certain improvements during that time, consisting of clearing 12 acres and building a small house, barn, and. other buildings; that on that date the complainant gave his wife the money to complete the payment of the entire purchase price; that she paid part only, talcing a deed in her own name, and gave a mortgage back to the grantor for $99. The bill shows that he “consented that the title to the land should be placed in her name.” The parties separated about this time, -the complainant alleges owing to the undue intimacy between Shaffer and his wife. He locked up the house and went away, remaining more than a year. On January 22, 1907, Mrs. Wiles conveyed the land to Shaffer as security to him for cash loaned to her by him to pay the Schwartz mortgage, amounting to $106 and $10 additional, making a total of $116. This was a deed absolute in form, but defendant Shaffer admits he was to reconvey on payment to him of this amount. He recorded his deed soon after this date. Shaffer for a time went into and held possession of the premises, which had been unoccupied since the parties separated.

On March 27, 1909, Shaffer sold this land under contract to defendant Gregersen for $600, of which $150 was paid in cash, the balance payable in five years with interest. He also received from Gregersen $81.50 as interest March 25, 1910. Shaffer paid the taxes of 1907, amounting to $6.61. Gregersen, at the time he took the contract from Shaffer, had no notice that Shaffer’s deed from Mrs. Wiles was a mortgage, and made .the purchase in good faith, relying upon the record title. He went into possession by putting a tenant on the land. The length of time he remained there does not appear. The evidence does not show that he made any improvements. The court inadvertently found to the contrary. This defendant paid the taxes of 1908, 1909, and 1910, amounting to $29.15. In June, 1910, complainant returned to these premises, entered upon, and took possession of them, and has continued in possession ever since." He has cut some wood and a little timber since his return. In his bill of complaint complainant asks that he be decreed to be the legal owner of these premises, and that the deed to Shaffer be canceled, and that the defendants convey and release to him any interest they may have in the land, and also for general relief. The bill was taken as confessed by defendant Maggie E. Wiles, who has conveyed all of her interest to complainant. Defendant Shaffer denies that complainant is entitled to any such relief as against him. Defendant Gregersen insists that he is protected as a bona fide purchaser, offering to make payment of the balance due under the contract to the party declared to be entitled thereto.

The court found as a matter of law: That the deed from Mrs. Wiles to defendant Shaffer was in fact a mortgage, to secure the total sum of $137.61; that his conveyance to defendant Gregersen was without authority, and that he had received from him $43.89 belonging to complainant over and above the entire amount for which he held the land as security, less a certain small difference in computing interest; that Shaffer should reconvey to complainant; that Gregersen was a bona fide purchaser, and his contract was enforceable against complainant; and that upon payment of the balance due thereon to him he would be entitled to a deed from complainant; A decree was entered in accordance with the findings and conclusions of the court, and complainant has appealed therefrom, and asks for a reversal of that portion of the decree which determines the Shaffer contract to Gregersen as enforceable, requires a conveyance from him to defendant Gregersen of the said premises upon payment of the entire balance due on said contract. This is the only question to be determined by this court.

The complainant’s contention is that he is the owner in fee of these premises, having since suit was commenced acquired by deed the interest of his former wife, Maggie E. Wiles; that, as found by the court,, the interest defendant Shaffer acquired by the conveyance from Mrs. Wiles was a mortgage interest to secure the amount loaned her; that the contract of Shaffer with defendant Gregersen to sell and convey said premises was unauthorized, and that defendant Gregersen, in entering into such contract as purchaser without a deed, is protected by his good faith only so far as he has made payments before notice; that the decree should be so modified, fixing the amount to be paid Gregersen for payments made with interest and taxes up to the time of notice of complainant’s claim to the premises. Gregersen. is the only defendant who has filed a brief in this court, and in it he contends against the determination of the court below relative to the nature of the conveyance from Mrs. Wiles to Shaffer. The determination of the trial court that the legal title did not pass to Shaffer by the. conveyance to him from Mrs. Wiles, which he admits in his answer was intended as security, cannot be questioned in this court by the appellee Gregersen. That question is foreclosed to him. The appellant accepts it, and bases his right to question the bona fules of defendant Gregersen upon it.

This defendant is a contract purchaser without a deed. The question here is whether the rule applies that he is only protected as a good-faith purchaser to the extent of his payments before notice. It appears to be the well-settled doctrine in this State, under the repeated decisions of this court, that in this class of cases, to constitute a bona fide purchaser, there must be want of notice both at the time of the purchase and at the time of payment of the purchase money. This court, in a case where a purchaser, as in the instant case, had notice of the litigation and injunction, said:

“But if he had notice of the suit and of the process of injunction, as it seems that he did, his position as a bona fide purchaser could not constitute full protection. He had as yet no deed, and he had only paid the purchase price in part; and at most, therefore, he would be protected only to the extent of such payments. Warner v. Whittaker, 6 Mich. 133 (72 Am. Dec. 65) ; Blanchard v. Tyler, 12 Mich. 339 (86 Am. Dec. 57).”

See, also, Dickinson v. Wright, 56 Mich. 42, 49 (22 N. W. 312) ; Carveth v. Winegar, 133 Mich. 34 (94 N. W. 381).

The contention of complainant must be sustained. The payment to defendant Gregersen to the extent of the protection given him as a bona fide purchaser is complete and adequate.

The decree will therefore be modified accordingly, with costs of the court below in favor of complainant against both of these defendants, and the costs of this court against defendant Gregersen, all to be taxed.

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


author: Me Alva Y, J.

text:
    CHADDERDON v. MAXWELL.
    Mechanics’ Liens — Appeal and Error.
    Giving to the findings of fact made by tbe trial court tbe benefit of tbe presumption arising from tbe fact that be beard tbe testimony and saw tbe witnesses, and, in this instance, viewed tbe premises, tbe judgment in a suit to enforce a mechanics’ lien, denying defendant’s claim of recoupment, is affirmed.
    Appeal from Allegan; Padgham, J.
    Submitted November 13, 1912.
    (Docket No. 62.)
    Decided May 29, 1913.
    Bill by Ira Chadderdon and another against Jonathan D. Maxwell to foreclose a mechanics’ lien. Defendant claimed recoupment for defective work and filed a cross-bill. From a decree for complainants, defendant appeals.
    Affirmed.

      Charles Thew, for complainants.

      O. S. Cross, for defendant.
   Me Alva Y, J.

The bill of complaint in this case was filed by complainants for the purpose of foreclosing a mechanics’ lien for a balance claimed to be due them from defendant, for furnishing all the material and performing all the labor in erecting and constructing a certain barn for defendant, upon his farm in the township of Trowbridge, Allegan county, Mich., under a certain written contract between the parties, for a stated price of $2,800 and extras; also to reform a claimed mutual mistake in one clause of said contract relative to a litter carrier. Defendant answered the bill of complaint, including in his answer allegations in the nature of a cross-bill, praying for affirmative relief by reason of the nonfulfillment of the contract on the part of complainants. Issue was joined, and the case was heard upon proofs taken in open court. At the conclusion of the case it was stipulated between the parties that the trial judge should view the premises and building involved in this case. According to this stipulation the judge went twice to the premises and examined the barn, that, as he says, he “might understand and apply the testimony given in the case.” After such inspections and examinations the trial judge made the following written findings:

“Complainants file this bill to foreclose a lien on certain lands owned by defendant, and upon which lands complainants built a barn in accordance with a contract entered into between the parties some time in June, 1910.
“The defendant has always been a resident of the State of New York, and at the time of the making of said contract, defendant’s brother, W. E. Maxwell, acted as his agent in making the contract, and who has resided on and operated the farm as agent of his brother, the defendant, during the time of the construction of said barn. At the time of the execution of the said contract there were also plans and specifications accompanying the same, and made (part) thereof. The contract, in substance, provided that the complainants should build a barn of certain dimensions for the agreed price of $2,800, they to furnish all the materials therefor, including lumber, cement, and the hardware, and to complete the same on or before the 1st day of August, 1910; the said barn to be built on the land described as follows: The west one-half (W. y%) of the southeast quarter (S. E. %) of section one (1) in the township of Trowbridge, in the county of Allegan. The said contract further provided, in substance, that when the lumber should arrive in the car it should be inspected by first party (via the defendant), and if satisfactory, the bill of lading being accompanied with a draft for the amount of the lumber, said first party should pay the same and the amount thereof credited as first payment on the contract. It was further provided that when the barn was inclosed, sided, and roof on, first party should pay the'difference between $2,000 and the amount of said draft, the balance of $800 to be paid when the barn was completed. It was further provided that if the first party desired to make or require alterations in the plans and specifications at any time during the progress of the work, it might be done without annulling or invalidating the contract, and the cost of such alterations should be added or taken from the amount of the contract price, as the case might be. Soon after the making of. the contract the parties of the second part began work on the said barn. The agreed price under the contract was $2,800; parties of the second part to furnish all the material and do all the work.
“Defendant by his agent, in the answer filed to this bill, finds much fault with the manner in doing the work, and because the job was not completed by the 1st of August as per contract. It appears in the proofs, but not in the contract, that this barn was to be built upon a foundation that would come on the spot where an old barn then stood, and which was to be removed by first party to enable the second parties to place the foundation wall of the new barn. This old barn was not entirely removed in time for the new wall to be built at one time, and on that account the new wall, or part of it, had to be finished later, after the old barn had been entirely removed. This fact caused some delay, and in July the defendant put in some hay in the barn while the carpenters were at work, causing some delay, in all from six to ten days, which was not the fault of the complainants.
“Defendant, by his said agent, claims that the cement floors are defective and not properly put in, and that they are hollow in places and cracked some, and the approaches are not made with proper cement, and crumble and break when traveled over by-horses and wagons, etc. The proofs show that, after the grout work was in and dry, the defendant dug a trench through part of it and laid water pipes in the trench, and when this was done it sounded hollow under it.
“This may be the cause of it. It further appeared in the proofs that after the cement work was finished the defendant’s cattle got in and trampled over it, which defendant fixed himself, and laid no blame to complainants for that.
“It also appears by the proof in the case that the complainants were annoyed while building the cement wall by defendant’s cattle tearing down the lines and trampling over the wall, breaking it in places, which may account for the rough appearance in the wall which defendant complains of.
“Much fault is found by defendant about the carpenter work, in the use of short pieces in the foundation sill, and those pieces used in siding the stalls, the doors not properly fitted, and nails not clinched; the ladders in the hayloft too short and not reaching down to the floor. These are some of the defects in the carpenter work which defendant claims is not done in a workmanlike manner. Testimony went fully into all these matters in detail, upon the hearing.
“The contract, plans and specifications, originally drawn for this building, were departed from and not followed to any great extent, but changes were made to suit the defendant as the work progressed. The plans at first provided for a door in the end of the barn, through which the hay was to be put in. This was changed at the request of the defendant, and a space over the barn floor 12x24 feet was to be used for the purpose of filling the barn with hay at that place instead of the door above mentioned. The plans -also provided for stairs to reach the hayloft. This part was abandoned at the request of the defendant, and a cupboard built in the space for the stairs, and many other changes were made as the work went along.
“The defendant’s agent, W. E. Maxwell, lived on the farm and was every day present and saw what was being done, and made such changes and suggestions as he saw fit. He had built barns himself before, and had worked more or less in cement work. The proofs show that while the work was being done he found no fault with the manner in which it was done, and insisted on doing some of it himself. It also appears in evidence that on two or three occasions he expressed himself as being satisfied with the work, even up to the time when the job was completed. It was claimed by the defendant that two litter carriers were to be placed in the barn, and that the contract called for two. The complainants, on the other hand, claim that one only was provided for in the contract, and that by mistake the wording of the contract is ambiguous. As written in the contract, this wording is as follows: ‘One Lowden litter carrier to run behind the single stalls and one outside of the barn for the box stalls.’ The complainants in their bill asked to have the contract reformed in this particular, that it may read as per the agreement at the time the agreement was entered into. Complainants contend that one litter carrier only was to be put in the barn; that by mistake the word ‘one’ was written instead of the word ‘on.’ The wording would then read as follows: ‘One Lowden litter carrier to run behind the single stalls and on the outside of the barn for the box stalls.’ Testimony was given on this point, and I am satisfied by the proofs that the latter reading is correct, and the contract should be reformed as prayed in the bill. Inasmuch as the litter carrier track is running behind the single stalls (inside) and runs outside past the doors of the box stalls, which open outside, it would seem the intention was to reach all the stalls by one litter carrier. No provision was made for the building of another on the outside, either in the plans or specifications.
“Complainants make a claim for certain extras over and above the written contract. The proofs show that some extra work was done at the request of the defendant. A bill of particulars of these items was filed and proofs taken on the hearing as to these matters, some of which I think should be allowed, viz. :
Building the cupboard, 1 day’s work.. $3 00 Nailing screen on cupola, % day’s work 1 50 Extra barn door, work and material.. 5 00
Extra ceiling, siding of stalls, work... 3 00
457 feet of ceiling for the same........ 11 27
“The approaches to the barn were first built with grooves for doors to run in. At defendant’s request this part of the cement work was removed after it was set, and finished over, so that doors closed over the approach, instead of running in the grooves at the bottom. For this change it took:
Two barrels of cement................ 3 00
Two loads of gravel................... 1 50
Labor ................................ 1 75
“The defendant agreed to deliver on the ground, for the foundation wall, 20 loads of stone, but delivered only" 16 loads, which necessitated the use of:
Cement to make up the lack of the 4 loads, estimated at .................. 5 00
Labor and extras, total................ $36 02
Extra pieces stuff, 72 pieces in all, as per bill particulars..............'---- 20 26
Making a total for extra material and labor of ............................ $56 28
The amount claimed to be due when this lien was filed, as per lien................ $884 62
Defendant has paid to labor and for materials since the suit was begun.. $437 88 Defendant should also be allowed for painting windows at the end of barn. 1 60 Litter carrier track on outside of barn,
not painted ........................ 2 50
Fixing the doors, clinching nails, bottoms, tongue, and gravel............ 2 50
Making a total credit in behalf of defendant since suit began of..................$444 48
Deducting this amount from the sum of $884.62, leaves a balance due on the work and material for the barn of........$440 14
“Complainants were entitled to the pieces of lumber left over at the completion of the building, and when taking them defendant forbid them taking such pieces, and claiming to be entitled to them. These pieces of odds and ends were valued at (estimated) $5. Adding this to the above $440.14 makes the sum of $445.14 which amount the said ■ complainants are entitled to receive from the defendant, and for which sum complainants are entitled to their said lien on the premises hereinafter described, and to a decree foreclosing the same, with interest at the rate of 5 per cent, on the original amount of $884.62 from the 26th day of August, 1910, to the 16th day of September, 1911, and from that date to the present time, interest at 5 per cent, on the amount due, to wit, $445.14.
“At the close of taking the proofs in this case in open court, the counsel for both parties requested that I should visit the premises and said barn personally and look it over. I have done so, and have been to look the barn over twice, that I might understand and apply the testimony given in the case.
“A decree may be prepared in accordance with this finding for signature. Complainants will be entitled to costs to be taxed.”

A decree was granted in accordance therewith in favor of complainants and duly entered.

Defendant has appealed to this court for a reversal of this decree, on the ground that the evidence in the case conclusively shows that all of the defects claimed by him in the construction of this barn exist, and that it was not constructed in a workmanlike manner.

The questions involved in the case are questions of fact. The record is quite voluminous, and we are satisfied from a careful examination that the findings of the trial judge are warranted by the evidence. We have given these findings in full for the reason that they present in detail the contentions of the parties, and are the result of the great care and deliberation exercised by the trial judge, who saw and heard all the witnesses and made two inspections of the building, and was therefore much better able than this court, in a case of this character, to understand and apply the testimony. To go over this record and give in detail a digest of the evidence would be of no benefit to the profession and would result in a repetition of the findings of that court.

The decree of the circuit court is affirmed, with-costs to complainants.

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


text:
    FOILES v. DETROIT FIRE & MARINE INSURANCE CO.
    1, Insurance — Land Contract — Change op Interest.
    A conveyance or transfer that tends to increase the interest of an insured owner, as by a default under a land contract outstanding at the time of issuance of the policy, and reconveyance or surrender of the contract equity to the vendor, does not come within the provisions of a policy requiring notice to the insurer of a material change in interest of the policyholder.
    2. Same — Fire Insurance — Notice.
    Where a mortgage foreclosure occurred, afterwards redeemed from by the insured, and the proceedings were conducted by advertisement without the knowledge of the mortgagor, there was not a breach of the clause in the policy requiring notice of foreclosure proceedings known to the insurer, although it appeared that the attorney who foreclosed the instrument had, some months before the sale, acted for the insured in relation to another matter that had no connection with the real property.
    3. Same — Value of Destroyed Property — Evidence.
    Evidence showing the actual cost of a building destroyed by fire, and the estimated cost of reproducing it at the time of loss, with sworn proofs of loss giving its value, was sufficient to sustain a judgment on an insurance policy for a small part of the value which greatly exceeded the total amount of insurance.
    4. Same — Proofs of Loss — Waiver—Estoppel.
    After receiving proofs of loss under an insurance policy and objecting to them for insufficiency, a defendant insurance company, which received further proofs and made no further complaint, waived any insufficiency in the proofs furnished, and, the facts being undisputed, there was no question for the jury.
    5. Same.
    The court properly directed a verdict for plaintiff on „ the policy, when no question of fact was raised by the evidence, which was undisputed.
    Error to Houghton; Streeter, J.
    Submitted November 18, 1912.
    (Docket No. 83.)
    Decided May 29, 1913.
    Assumpsit by Ella Foiles against the Detroit Fire & Marine Insurance Company on a policy of fire insurance. Judgment for plaintiff on a verdict directed by the court. Defendant brings error.
    Affirmed.

      Hanchette & Lawton, for appellant.

      Burritt & Burritt, for appellee.
   McAlvay, J.

Plaintiff brought suit upon a certain fire insurance policy issued to her by defendant for $500 upon a certain frame dwelling house located at South Range, in Houghton county. Plaintiff recovered judgment in the case upon a verdict instructed by the court in her favor against defendant for the amount of the policy, with interest. Defendant asks for a reversal of this judgment upon a writ of error.

This is one of three separate suits brought by the same plaintiff- against three insurance companies to recover for a total loss claimed upon this dwelling house and its contents. In the instant case the policy covered only the dwelling house. This policy was issued April 22, 1910, for the term of one year. It was the regular standard form Michigan policy. The following rider was attached to it:

“It is understood and agreed that property insured hereunder has been sold under contract to Mrs. Madge Bietila.”

And also the following clause:

“Subject to all the terms and conditions of this policy, loss, if any,, hereunder, is payable to William Humphreys, as his interest may appear.”

The real estate upon which this building was situated is described in the policy as: “Lot No. 1, block No. 5, South Range, ^Michigan.” The building was also described as occupied by a female boarding house. The building and contents were entirely destroyed by fire August 22, 1910. At the time of the fire plaintiff was in Minneapolis, where she had been for about two weeks, and the building and contents were in charge of a caretaker employed by her to live in the house and take care of the property. She received notice of the fire by telegram while in Minneapolis a few days after the death and burial of her grandchild, and returned home promptly.

This insurance had been placed for her by Mr. James, who conducted an insurance agency. Upon her return she telephoned at once asking him what she should do about her fire loss and was told by him that he would attend to it for her. Before the expiration of the 60 days after the fire plaintiff made sworn proofs of loss and caused the same to be served on the defendant. Afterwards, on December 12, 1910, defendant acknowledged receipt of these proofs of loss by letter, stating that they could not be accepted by the company as satisfactory. Plaintiff then made and verified additional and amended proofs of loss, which her attorney testifies were prepared by him and forwarded to defendant by registered mail. He produced a letter inclosing such proofs of loss and a post office registry receipt. Defendant made no objection to the amended proofs of loss furnished by plaintiff and did not question their sufficiency, and upon the trial they were offered in evidence by plaintiff, without objection, except as to their sufficiency.

The record shows that William Humphreys, mentioned in the policy, held a mortgage upon the house and lot at the time the insurance was effected. Proceedings were commenced to foreclose the same by advertisement and a sale made June 22, 1910. Of these foreclosure proceedings plaintiff had no knowledge until September, 1910. She redeemed from such foreclosure sale in full before the expiration of her equity of redemption.

The contract to Mrs. Madge Bietila, mentioned in the policy, having been forfeited by her, on June 22, 1910, she surrendered and transferred all her interest in and to these premises under it by quitclaim to the plaintiff, who from that time up to the time the loss by fire occurred, with the exception of about one week, had control and possession of all of said property, both real and personal. At the close of the case, each of the parties moved the court for an instructed verdict. The motion on the part of the plaintiff was granted.

Many errors are assigned by the appellant which in the presentation of the questions involved in its brief are discussed in five groups. These will be considered in the order presented and discussed.

The contentions of the appellant are as follows:

First. No notice was given the defendant of the transfer of the interest in the insured property, as required by the policy. This is based upon the transfer of this property made to plaintiff by Mrs. Bietila, which had been sold to her under contract, as stated in the insurance policy. As already appears, Mrs. Bietila, having defaulted in her payments under this contract, reconveyed all her rights under it to the plaintiff. This was a transfer by Mrs. Bietila of her equitable interest under her contract. This insurance was placed by defendant upon this dwelling with full knowledge of this interest. The defendant insured the interest of the plaintiff, who held the legal title, and this transfer to her was not such a change of interest in the property insured as would, within the provisions of the policy, make it void. This transfer increased the interest of the insured in this property, giving her the entire estate, both legal and equitable.

“A sale or conveyance of property which increases the interest of the insured, as where the insured mortgagee buys in the property at foreclosure sale or takes a conveyance from the mortgagor, thereby acquiring the whole interest, is not a breach of this condition.” 13 Am. & Eng. Enc. Law (2d Ed.), p. 242, and cases cited.

The authorities relied upon by appellant to sustain its contention are all to the effect that these provisions under such a policy refer to any material change in’ the interest of the insured in the property.

Second. No notice was given defendant by plaintiff of the foreclosure of the Humphreys mortgage. The provision of the policy claimed to have been violated, and which made the policy void, is as follows:

“This entire policy * * * shall be void, * * * if, with knowledge of the insured, proceedings be commenced or notice given of the sale of any property covered by this policy by virtue of any mortgage or trust deed.”

The evidence in the case is undisputed that plaintiff had no knowledge that proceedings had been instituted to foreclose this mortgage. The defendant by its policy knew of and recognized the Humphreys mortgage on these premises. The proceedings were begun by advertisement, and the property was sold without the knowledge of plaintiff. The record shows that she first acquired that knowledge in September, 1910, after the fire. Appellant contends that she had constructive knowledge of such proceedings because the attorney for the mortgagee also had done business for the plaintiff as an attorney. The record shows that their relations ceased in April, 1910; that this attorney was not acting for her at the time the foreclosure proceedings were commenced; that he was never employed by her to look after this property; and he testifies that he never gave her notice of these foreclosure proceedings. Therefore plaintiff had no knowledge of these proceedings, either actual or constructive. Under the undisputed facts of this case, there was therefore no forfeiture under this clause.

Third. It is contended that no sufficient evidence of the value of the property destroyed was shown. There was evidence in the case tending to show that four years before the fire the value of the building was from $1,600 to $1,700, and its depreciation would not exceed 3 per cent. This estimate was made before the building was enlarged by raising one story and adding seven rooms, the materials for which cost $600. There was evidence tending to show that after the building was enlarged, and at the time of the fire, it would cost $3,500 to build it. The total insurance on the building was only $1,300, and the amount claimed under this policy was $500. In any view of the evidence upon the question of the value, it was largely in excess of the total amount of insurance, and the building was a total loss. No evidence was offered on the part of defendant relative to values. The sworn proofs of loss referred to were both offered and received in evidence, and each shows as the “sound value” of the building destroyed the sum of $8,000. As already stated, after the amended proofs of loss were furnished, defendant made no objection that they were not sufficient upon the statement of value or any other matter. The evidence in the case upon the question of value of this building was sufficient to justify the court in holding that the building was a total loss and of a value greater than the total insurance.

Fourth. Insufficiency of proofs of loss. Appellant contends that under the policy insufficient proofs of loss were furnished by plaintiff. A full statement has. already been made as to the proofs of loss furnished by plaintiff. The objection made to the first proofs was general, and not specific, and plaintiff undertook to and did furnish further proofs of loss, which were received by defendant, and no further objection was made that they were unsatisfactory and insufficient in any particular. By remaining silent and calling for no further information, defendant is estopped from claiming upon the trial that these proofs of loss were defective. Mercantile Ins. Co. v. Holthaus, 43 Mich. 423, 427 (5 N. W. 642); Marthinson v. Insurance Co., 64 Mich. 372, 383 (31 N. W. 291), and cases cited.

Where there is a dispute relative to the acts of the defendant which are claimed to constitute a waiver, or as to what would be a reasonable time in delaying to require further proofs of loss, this court has held that the question is one of fact for a jury; but in cases like the instant case, where there is no dispute upon the facts, this court has determined the question as one of law.

Fifth. Error committed in directing a verdict for the plaintiff. It is urged by appellant that, in any view of the case, it should have been submitted to the jury for determination upon the facts. In our opinion the facts in the case were conclusively established in favor of the plaintiff upon undisputed evidence.

The court therefore was not in error in directing a verdict for the plaintiff for the amount of the policy, with interest.

The judgment is affirmed.

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


author: Steere, C. J.

text:
    FOILES v. DIXIE FIRE INSURANCE CO.
    Error to Houghton; Streeter, J.
    Submitted November 18, 1912.
    (Docket No. 82.)
    Decided May 29, 1913.
    Assumpsit by Ella Foiles against the Dixie Fire Insurance Company upon a policy of insurance. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Affirmed.

      Hanchette & Lawton, for appellant.

      Burritt & Burrit, for appellee.
   Steere, C. J.

This is a companion case of, and was submitted with, Foiles v. Insurance Co., ante, 716 (141 N. W. 879), decided herewith. It involves the same form of insurance policy, substantially the same state of facts, and the same legal questions as, and is controlled by, the decision in that case.

In harmony with that decision, the order of the trial court in directing a verdict for the plaintiff herein and' the judgment entered on such verdict are hereby ap-. proved and affirmed.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


text:
    DIENST v. DIENST.
    Frauds, Statute of — Marriage—Promise Made in Consideration of — Divorce.
    In divorce proceedings, a demurrer was correctly sustained to the husband’s cross-bill which averred that, as a further consideration for the consummation of the engagement of marriage, complainant, the wife, agreed that she would, immediately after marriage, make such provision that defendant would become the owner of her property at her death, that defendant gave up his employment and prospects of political preferment and entered on the engagement. The agreement was invalid because it was not in writing as required by 3 Comp. Laws, §9515, subd. 3 (4 How. Stat. [2d Ed.] § 11399), and was clearly “made upon consideration of marriage,” not in consideration of defendant’s abandoning his prospects and employment.
    Appeal from Kalamazoo; Knappen, J.
    Submitted November 21, 1912.
    (Docket No. 156.)
    Decided May 29, 1913.

      Bill by Anna E. J. J. S. Dienst against Andrew Dienst for divorce. From an order sustaining a demurrer to defendant’s cross-bill, defendant appeals.
    Affirmed.

      Titus, Van Horn & Titus, for complainant.

      D. O. French, for defendant.
   McAlvay, J.

Complainant filed her bill of complaint against defendant, praying for divorce on the ground of extreme cruelty. Defendant appeared and filed an answer to said bill of complaint, coupled with a cross-bill, wherein he set up a verbal antenuptial contract, by which it is claimed that she agreed to make provisions for him after the marriage by executing a will of all her property in his favor in case he survived her. The relief prayed for in said cross-bill is that complainant produce and file such will, which is claimed to have been made soon after the marriage, and that it be declared binding as a settlement of the property rights of the parties; that in case the will has been destroyed by her she be required to make and execute a duplicate thereof; that in case she refuses so to do within the period of five days after decree, the decree stand in the place and stead of said will and be final; that the rights and interest of defendant in said property be declared fixed,' binding, and vested; that complainant be enjoined from disposing of any of her property except in accordance with the agreement claimed, and for general relief. He does not pray for a decree of divorce. Issue was joined by a replication to the answer.

A general demurrer was interposed by complainant to the cross-bill of defendant on the ground of want of equity for several reasons, the chief of which was that the claimed antenuptial contract was within the statute of frauds. This provision of the statute reads:

“Every agreement, promise or undertaking, made upon consideration of marriage, except the mutual promises to marry, shall be void unless such agreement, contract or promise, or some note or memorandum thereof, be in writing, and signed by the party to be charged therewith.” Section 9515, subd. 3, 3 Comp. Laws.

The claimed agreement, which defendant seeks by his cross-bill to specifically enforce, he avers was entered into between the parties before any engagement or contract of marriage existed between them. The material part of it is set forth in his cross-bill, as follows: '

“And the said complainant then and there, as a further consideration for the consummation of said engagement of marriage, promised and agreed that she would, immediately after their said marriage, make such provision that the said defendant would come into possession and ownership of all of her said property upon her .death, and that thereupon, immediately thereafter, relying upon such representations, promises, and agreements on the part of the said complainant, and in consideration thereof, he gave up and abandoned his employment, position, and prospects, * * * which he then and there had, and immediately proposed marriage to the said complainant” (suggesting delay in a matter of so great importance), “but that said complainant then and there stated that she had fully considered the matter and was satisfied, and declined to further consider said matter, and immediately thereupon accepted the defendant’s proposition of marriage.”

Á very brief statement of the circumstances which brought about the marriage between these parties will be made. It appears that in November, 1908, a correspondence between them was begun, the initial letter having been written by complainant. Both were subscribers to the publication of a marriage brokerage called “The Correspondent,” in which complainant discovered an attractive description of defendant. Complainant was of the age of 62 years and defendant 66 years. Both had been previously married, and each had been widowed by death. She was possessed of an estate, real and personal, in her own right, of between sixty and seventy thousand dollars. Defendant was penniless. A lurid correspondence, thus begun between the parties, of which we are furnished only that of complainant, appears as exhibits to his cross-bill (he modestly withholding his contributions to the same), and within a few months culminated in their engagement, which was speedily followed by a marriage, growing out of which this litigation, to sever the marital relations between them, naturally followed.

Counsel for defendant apparently appreciates and admits that if the agreement sought to be enforced was made and entered into upon consideration of marriage, not having been reduced to writing, it- is void under the statute of frauds. However, he contends that the agreement relied upon by him was “not made upon consideration of marriage”; that the agreement was that if defendant would give up his home and employment and abandon prospective political preferment, come to Kalamazoo, marry, and reside with complainant and not return to Kansas, she would not only support him, but would make a will, as already stated. It appears, however, that the only agreement which defendant charges in his cross-bill was entered into by complainant, and which he avers he relied upon, is the agreement.set forth in the excerpt from his cross-bill above quoted, to the effect that she—

“Then and there, as a further consideration for the consummation of the said engagement of marriage promised and agreed that she would, immediately after their said marriage, make such provisions that the said defendant would come into the possession and ownership of all of her said property upon her death.”

That this was the inducement appears from his averment as follows:

“And that thereupon immediately thereafter, relying upon such representations, promises, and agreements on the part of the said complainant, and in consideration thereof, he gave up and abandoned his employment, position, and prospects, * * * which he then and there had, and immediately proposed marriage to the said complainant,” which proposal complainant immediately accepted.

It is clear to us that this claimed agreement and undertaking between these parties was made upon consideration of marriage, and was within the prohibition of the statute of frauds. It was therefore void and not enforceable.

The other questions discussed in the briefs of the parties do not require consideration. The order and decree of the circuit court in sustaining the demurrer of complainant is affirmed, and the cross-bill is dismissed, with costs of both courts to complainant. The cause will be remanded, and will proceed in due course.

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

       4 How. Stat. C2d Ed.) § 11399.


text:
    JAPES v. HARMON.
    1. Contracts — Building Contracts — Acceptance of Work.
    The owner of a building in process of construction, wbo is compelled by tbe expiration of a lease beld by bim to occupy tbe premises before tbe work bas been completed as required by bis contract witb tbe builder, does not thereby accept tbe building.
    2. Same — Architect’s Certificate — Payment—Accord.
    Where defendant, in an action to recover a claimed balance due on a building contract, produced testimony to show that certain work and materials furnished were defective and tbe contractor bad received bis final certificate from tbe architect as payment in full, tbe amount remaining to be beld by tbe owner to cover tbe cost of replacing tbe work objected to, it was not error to admit evidence of tbe contractor’s agreement to accept such certificate in full satisfaction, and tbe court correctly instructed tbe jury that, in tbe absence of a denial by such contractor as to tbe alleged settlement, be could not recover.
    Error to Wayne; Mandell, J.
    Submitted January 30, 1913.
    (Docket No. 89.)
    Decided May 29, 1913.
    Assumpsit by Henry Japes against Claude M. Harmon for a balance due under a building contract. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Henry C. L. Forler, for appellant.

      Chamberlain, May, Denby & Webster, for appellee.
   McAlvay, J.

This is an action in assumpsit brought by plaintiff, as assignee, against the defendant in justice’s court, and later appealed to the circuit court, where a verdict of no cause of action was directed. From a judgment entered upon such verdict, the case is removed to this court for review upon a writ of error.

Dettloff Bros, were contractors and builders in the city of Detroit and entered into a written contract with defendant to perform only the carpenter work, including the furnishing of all necessary material for a house being built by him. This suit is brought by plaintiff as assignee to recover a balance claimed to be due and unpaid upon Dettloff Bros.’ contract. The contract price was $2,561, which, with certain extras allowed at $76.35, amounted to $2,637.35. The total of this amount, excepting $163, has been paid.

Mr. Stevens was the architect and superintendent of the building. This was the uniform building contract adopted by the American Institute of Architects, and in the contract and specifications provision was made that payments to the contractor should be made only upon the certificate of the architect and superintendent. No disagreement arose between the parties to this contract, except on account of certain cornice work, sash, and doors, which were furnished to the contractors by this plaintiff, who was engaged in that business. The matter of the cornice work was adjusted. Mr. Stevens, the superintendent, decided that the doors and sash were not according to specifications on account of certain defects. This objection was called to the attention of plaintiff by Dettloff Bros., and some steps were taken looking toward an adjustment between them by arbitration. This, however, was not consummated.

On April 17, 1907, Herman Dettloff, one of the contractors, representing his firm, went to the superintendent for a final certificate. The matter of the imperfect doors was discussed between them, and a certificate for $174.35 was issued to Mr. Dettloff, presented to defendant, and paid by him. Mr. Dettloff had a conversation with defendant at the time it was paid. Soon afterwards Dettloff Bros, made an assignment of the balance now claimed by plaintiff to be due and unpaid on Dettloff Bros.’ contract.

At the close of the case counsel for defendant moved for a directed verdict on the ground that under the contract payments were to be made by defendant only on the certificate of the superintendent, and that plaintiff, as assignee, received no such certificate, and that there was no evidence of fraud or collusion by the superintendent with the owner or bad faith on his part in withholding the certificate; that neither plaintiff nor his assignors ever requested or demanded from the superintendent a certificate covering this claim; that under the evidence in the case it appears that the difference between the contract price and the amount paid by agreement was retained to cover the cost of fixing or replacing the doors and sash; and also that the plaintiff under the contract could not recover upon a quantum meruit. Quite a number of errors are assigned and relied upon by appellant and discussed in his brief. The important contention made by him in the case is that the court was in error' in directing a verdict against plaintiff.

It is important to state, before discussing the errors assigned, that the plaintiff is not correct in intimating that the building was accepted by defendant on March 1, 1907. It was not at that time completed for accepting. The defendant, Mr. Harmon, by force of circumstances, occupied this building before it was completed and accepted, having been forced to do so by the expiration of the lease of the premises then occupied by him.

It seems that the whole case turns upon the agreement claimed by defendant to have been made at the time the last certificate was issued to Dettloff Bros, to the effect that it was made out and accepted by Dettloff Bros, as a final payment due to them from defendant. The testimony of Mr. Stevens, the superintendent, is positive that the $163 was held back to cover the cost of fixing or replacing the doors and sash in question. He testifies as to his conversation with Mr. Dettloff, as follows:

4<He came to me after the house had been completed ■and said he wanted to get his money, and he came to the office, and we had quite a little talk, and I said, "What are you doing about the doors and sash?’ and he said, 'You keep out what you think that is worth, and I will keep it out of Japes, but I want to get my money out of the job.’ I said that was agreeable as far as we were concerned. I had to ask my client, and these matters had been promised to be fixed up, and I was willing to withhold the money until such time as he saw fit to fix them, and that was the understanding that this certificate was given absolutely.
“Q. That amount of money was agreed upon between you and Mr. Dettloff to hold out?
“A. Yes, sir.
“Q. $163?
“A. Yes, sir.”

This was objected to and a motion made to strike it out, including all of the interview between Stevens and Dettloff, on the ground that the certificate speaks for itself. This was overruled.

Mr. Harmon testifies as to what occurred when he paid this certificate as follows:

“* * * And when he brought this in I understood from him that this was the final certificate for the last payment and I brought up the question of the doors and sash, and he said, Mr. Dettloff said to me, that he had made an agreement with Mr. Stevens, the architect, to hold this $163 to cover the cost or to replace the doors and the sash, being the rejected material that the architect had rejected. I afterwards paid him $174.35. Mr. Dettloff said that he was going to hold out the amount of $155 which he owed Mr. Japes to cover this rejected material.”

The testimony of Mr. Dettloff, who was a witness for plaintiff, shows that he was on friendly terms with Mr. Stevens, and says that he was paid this $174.35 the day he received the certificate for it. He testified as follows:

“Q. Do you remember going to Mr. Stevens a long time after the building had been turned over and telling him that you wanted to get this money that was paid to you on the 17th of April?
“A. Yes, sir; I think I must have told him I wanted to clean up there.”
He testified later:
“A. I did understand why it was held back.
“Q. You agreed to that?
“A. I didn’t really agree to it.
“Q. You didn’t refuse it and insist upon a certificate?
“A. No, I had quite a little money coming, and I didn’t refuse it.”

The testimony above quoted of defendant Harmon and the superintendent was given before Mr. Dettloff had testified, and, although he was afterwards recalled twice as a witness, he did not deny the agreement or explain it in any way. The motion of plaintiff that the testimony of Mr. Stevens and Mr. Harmon was not admissible and should be stricken out was properly overruled by the court.

Plaintiff stands in the shoes of Dettloff Bros, as assignee of this claim. No further certificate has been requested by plaintiff or his assignors from the superintendent. It is apparent that at the time of this last payment Dettloff Bros, were desirous of cleaning up this matter, as Mr. Dettloff testified, and that this certificate was accepted by him as the superintendent and defendant testified. Giving to Dettloffis testimony on the part of plaintiff its strongest probative force, it was not sufficient to warrant the submission of the case to the jury. The court was not in error in directing a verdict of no cause of action against plaintiff. The remaining questions presented by plaintiff do not require consideration.

The judgment of the circuit court is affirmed.

Steere, C. J., and Moore, Brooke, Kuhn, Stone, and Bird, JJ., concurred. Ostrander, J., did not sit.


text:
    PUBLIC SCHOOLS OF THE CITY OF MUSKEGON v. WRIGHT.
    1. Schools and School Districts — Apportionment of Primary Fund.
    In apportioning to the several school districts, semi-annually, the primary school money, pursuant to statutory requirements (1 Comp. Laws, §§ 4642-4644, Act No. 36, Puh. Acts 1905), in 1908, it was the duty of the superintendent of public instruction to determine the number of children in a district from the best evidence in his power to obtain, rejecting from the census reports, if defective, the names of children which should not appear therein, and he should base his action upon a report received from the secretary of a municipal school board made up from the best obtainable sources, showing the names of children who ■ resided in the district at that time, and the names included in the census which ought to be rejected, even though the report was received late in the year, just befbre the May apportionment.
    2. Same — Superintendent of Public Instruction — Census.
    It was an improper exercise of the superintendent’s discretion to reject from the list of names 91 school children whose parents or guardians, as shown in the report of the secretary of the public schools, resided iu the district, and it was unlawful to reject the names of five children who were orphans attending school in the city and living with relatives that stood in loco parentis.

    Mandamus by the public schools of the city of Muskegon against Luther L. Wright, superintendent of public instruction, to compel respondent to change his apportionment of primary school funds for the year 1908.
    Submitted April 8, 1913.
    (Calendar No. 23,853.)
    Writ granted May 29, 1913.

      William Carpenter (F. A. Nims, of counsel), for relator.

      Grant Fellows, Attorney General, and Thomas A. Lawler and F. Carew Martindale, Assistant Attorneys General, for respondent.
   McAlvay, J.

The controversy in this case arises on account of the rejection by respondent of the names of certain persons resident in the school district from the census list of the relator for the year 1908 of children of school age, made under the requirements of the statute, after such census list, duly verified, was filed in the office of respondent. It was claimed by him that an examination showed that certain persons were included who by former reports appeared to be beyond the age limit, and others were claimed to be nonresidents of the district. The matter was taken up between the parties, and after some correspondence the respondent notified the secretary of relator that he had stricken from the census list 56 names of persons 20 years of age; 49 names, no parent given; 25 names, no birthday given; and one name of a child four years of age, making a total of 131 names. Upon request of relator’s secretary, respondent sent him the list of these names. Relator at once made a thorough examination and investigation relative to the information desired and made a full report, giving in detail the date of birth of those whose ages were questioned and the names of guardians or parents when required. This new list was taken by the secretary of relator to the office of respondent, where explanation was made to the deputy superinténdent and a request made that the action of the department be corrected. This was promised by the deputy superintendent, who informed relator’s secretary that it was too late to make the correction for the May apportionment of moneys, but that it would be done in time for the November apportionment. No correction was ever made. When this was discovered by relator and called to the attention of respondent, he refused to make any correction. Application was then made for the writ of mandamus in these proceedings.

The foregoing facts are taken from a stipulation entered into between the parties, which also shows that those children whose names were included in the new list at the time the census was taken were over the age of five years and under the age of 20. None of the names rejected were included in the new list where any doubt existed as to the right to be enumerated in the census. Five of these names were stricken from the list because in the judgment of respondent they had no parent or legal guardian' living in the city of Muskegon. Relator admits that 39 names of children, of the 131 included in respondent’s list furnished, were properly rejected; but insists in these proceedings that the balance of the names should have been accepted and included by respondent in the census of 1908. The apportionment of money mentioned is the primary school money, apportioned semi-annually by respondent, and paid out of the State treasury to each county according to the census of children of school age in such county..

The portions of the statute of this State relative to taking the annual school census, which are necessary to be considered in this case, provide as follows: 2 Comp. Laws, §4687 (section 22), as amended by Act No. 36, Pub. Acts 1905 (4 How. Stat. [2d Ed.] §9908).

"It shall be the duty of all school boards and boards of education in this State to make an annual school census in their respective districts or cities as is provided in this section. * * * Second. In all incorporated cities or special legislative district having a population of three thousand or over, within twenty days next previous to the first Monday in June of each year, the secretary of the board of education, or other reputable and capable person or persons employed by the board of education, shall take the school census of such city as follows: (a) The census shall be taken and reported by wards, (b) Each enumerator shall make a list in writing of the names and ages of all children who are five years of age and under twenty years of age, whose parents or legal guardians reside in the ward or portion of the ward allotted to said enumerator, together with the names of said parents or legal guardians, giving the street and residence number in each case, said list to be in such form as the superintendent of public instruction may prescribe, and it shall be verified by the oath or affirmation of the person making the same by affidavit appended thereto or indorsed thereon, setting forth that it is a correct list of the parents or legal guardians, their street and residence number, the names and ages of all the children between the ages aforesaid residing in the ward, or part thereof as allotted to him. * * * Fourth. In cities having a population of three thousand or over, the secretary of the board of education and the several enumerators shall, immediately after the first Monday in June in each year, compare, correct and compile the entire census. The said secretary of the board of education shall then attach thereto his affidavit that the several enumerators were duly employed by the board of education and that said census has been properly compared, corrected and compiled; and forthwith, and before the second Monday in July thereafter, transmit to the superintendent of public instruction the entire census, together with his affidavit and the affidavits of the several enumerators, and at the same time he shall transmit to said superintendent the annual statistical and financial report of said city or district. * * *”

The authority and duties of the superintendent of public instruction relative to the apportionment of the primary school money to each county according to the school census returned to him from each school district are prescribed by the following sections of the Compiled Laws of 1897 (4 How. Stat. [2d Ed.] §§ 9863-9865):

“Sec. 4642. He shall semi-annually, on receiving notice from the auditor general of the amounts thereof, and between the first and tenth days of May and November, apportion the primary school interest fund among the several townships and cities of the State, in proportion to the number of children in each between the ages of five and twenty years, as the same shall appear by the reports of the several boards of school inspectors made to him for the school year closing prior to the May apportionment and shall prepare a statement of the amount in the aggregate payable to each county, and shall deliver the same to the auditor general, who shall thereupon draw his warrant upon the State treasurer in favor of the treasurer of each county for the amount payable to each county. He shall also send written notice to the clerks of the several counties of the amount in the aggregate to be disbursed in their respective counties, and the amount payable to the townships and cities therein, respectively.
“Sec. 4643. Whenever the returns from any county, township, city, or district, upon which a statement of the amount to be disbursed or paid to any such county, township, city, or district shall be so far defective as to render it' impracticable to ascertain the share of primary school interest fund which ought to be disbursed or paid to such county, township, city, or district, he shall ascertain by the best evidence in his power the facts upon which the ratio of such apportionment shall depend, and shall make the apportionment accordingly.
“Sec. 4644. Whenever any county, township, city, or district, through failure or error in making proper report, shall fail to receive its share of the primary-school interest fund, the superintendent of public instruction, upon satisfactory proof that said county, township, city, or district was justly entitled to the same, shall apportion such deficiency in his next apportionment. * * *”

Respondent contends that his determination of the matter in rejecting such corrected list is final and authorized by the authority vested in him under the statute above quoted and that such determination is not subject to review. It is admitted on the part of relator that respondent has authority under section 4643, above quoted, Under certain conditions, to make an investigation to ascertain the ratio of the apportionment of primary school money; but it is insisted that his action must be based, as provided by the statute) upon the best evidence in his power to obtain undér thfe circumstances. Authority is claimed by respondent to sustain his contention under section 4643, above quoted. He contends that his decision has been strictly within the provisions of this section.

In applying the provisions of this law to ascertain the ratio of apportionment of primary school money to the different school districts of this State, the department of education has adopted the commendable practice of comparing a current census report with former reports, and in the instant case, in making out the list of names rejected from the census report for 1908 returned by relator, referred to former census reports filed with the department by relator, from which it appeared that certain children were returned for more than one year as of the same age; that the date of birth was different, and other material discrepancies. It cannot be doubted but that for purposes of reference and establishing, certain facts, if such facts were all that could be ascertained, former census reports might be used by respondent in fixing the ratio of apportionment. It has from the beginning been the policy of this State to maintain its primary schools for the education of children within school age, and to that end it has always caused to be set aside certain revenues, which, by statute, are apportioned to the several counties according to the number of children residing in each county within the age limit, “as the same shall appear by the reports of the several school boards or school inspectors made” for that purpose. The machinery of this statute is not intricate; in fact, it would be impossible to simplify it in any respect. These census reports, made by the several school districts, are the basis upon which the entire system of apportionment of primary school money is founded. That such census reports must be accepted unless they “shall be so far defective as to render it impracticable to ascertain the share of primary school interest fund which ought to be disbursed or paid,” in which case authority is given, as already stated, to the superintendent of public instruction to ascertain the facts, and the legislature has been careful to point out to this officer how this shall be done, namely, “* * * he shall ascertain by the best evidence in his power the facts.”

Whatever difference there may be between relator and respondent as to the method of ascertaining the facts, there is no dispute whatever but that he must act under this law and exercise his authority according to its terms. Respondent in the instant case had the right and it was his duty to report to relator such names as, from the facts within his knowledge, he considered should be rejected, and in communicating with relator and its officers he was clearly within the exercise of his duty and his authority. Complaint is made on the part of respondent that relator neglected to give prompt attention to his notices. We think it clear from the record that, although there was some delay, as soon as relator understood the exact reasons for rejecting these names from this census return, and the information desired, the action on the part of relator was prompt and sufficient. It appears that every effort was made and every source examined, even the records of births, in order to perfect the report to the satisfaction of respondent’s department. It is apparent, and appears to be uncontradicted, that the department was satisfied, and a promise made by the deputy superintendent that favorable action would be taken. Respondent therefore at that time, whether it was early or late for the apportionment of that year, was in possession of facts presented to him, ascertained by the best evidence obtainable under the circumstances, and it was then his duty to accept such evidence and act upon it. It appears from this record that he refused to do so and contended in the argument before this court that his action is justified under the law and not subject to review by this court.

Attention is called to the fact that relator in its investigation was satisfied that some of the names had been properly rejected by respondent, but as to the names of 91 children of proper school age, whose parents or guardians resided in the school district at the time the census was taken and which respondent has refused to include in making the apportionment required by the statute, relator insists that under the law the department had no right to exclude, and this court should order that they be included and enumerated.

Relator also contends that five other persons were improperly excluded by respondent from this census report. They were all children of school age. Respondent contends that they should not be included for the reason that it does not appear that their parents or legal guardians resided within the district. The stipulated facts show that three of these children are orphans. Two of these orphans reside with their respective sisters, who care for and have control over them. The third orphan has lived with a woman not a relative for several years and she supports and has control over him. Of the remaining two, the father of one lives in Norway, and the child has lived in Muskegon for several years with an aunt, who brought her to this country and has control over her. The other has but one parent, a father, living, who has not resided in this State for eight years. She has lived in Muskegon during all that time with her grandfather, who has cared for and controlled her. She is enrolled in the public schools. None of these five persons, who exercise the custody and control over these children, has adopted them or been appointed guardian over them. These five children have all resided within this school district for several years.. They are of school age, and under the law they are entitled to be received and instructed in the public schools. These persons who control, care for, and maintain them, upon refusal to send them to such schools, may, under the compulsory attendance act, be prosecuted, fined, and imprisoned for such neglect. These people in all respects stand in loco parentis to each of these children, being actual guardians, and should be considered as their legal guardians under this statute, and they should be included in the school census. Such construction, under the liberal educational policy of this State, is a natural and reasonable one in the interest of these children and for the public good, and cannot be considered as allowing an indiscriminate addition of aliens and nonresidents to the school census, but can extend only to cases where the facts are similar to these under consideration.

In our determination of the important questions presented upon this record we do not in any manner limit the duties and authority of the respondent. He is at liberty under this law, of his own motion, to make any reasonable investigation in cases of this kind, for the purpose of correcting defective census reports in order to ascertain the ratio for the apportionment of primary school funds. As already stated, his conclusion must be founded upon the best evidence in his power obtainable.

Our conclusion therefore is that relator, both as to the 91 children and the five children, whose names were rejected by respondent, is correct in its contention that they should be included and enumerated in the census report of 1908, and that it is entitled to the relief prayed. A writ of mandamus will issue in accordance with the prayer of the petition, without costs to either party.

Stbere, C. J., and Moore, Brooke, Stone, and Ostrander, JJ., concurred. Kuhn and Bird, JJ., did not sit.