text:
    GATES v. COMSTOCK.
    1. Trespass — Cutting Timber — Measure oe Damages.
    In an action for trespass to land by cutting the timber thereon, an instruction that the measure of damages is the depreciation in the value of the land by reason of the trespass, and that the value of the stumpage, while proper to be considered by the jury, is not conclusive upon the amount of the recovery, is not improper, although the value of the land consisted exclusively in the timber, where there is testimony showing the value of the real estate both before and after the trespass.
    2. Same — Interest—Treble Damages.
    In such case, interest on the amount of damages from the date of the injury is allowable, and, where included in the verdict, is to be treated as a part of the damages for the purposes of 2 How. Stat. § 7957, providing for treble damages in actions of trespass.
    3. .Same — Intent.
    A trespass is willful and intentional, authorizing the trebling of damages under said statute, where it appears that the defendant and his employés knew the location of_ the boundary line between defendant’s land and that of the plaintiff before the trespass was committed.
    4. Same — Partnership.
    A member of a firm is equally liable with his copartners under such circumstances, although having no xiersonal knowledge of the situation.
    5. Same — Evidence—Cost Price.
    In trespass for cutting timber, evidence of the cost to plaintiff of that portion of the tract of land upon which the trespass was committed, based upon the purchase price for the entire tract, and the comparative value of the timber upon the two portions, is competent upon the question of damages, where such purchase price was based on the stumpage.
    Error to Alpena; Kelley, J.
    Submitted February 5, 1897.
    Decided May 28, 1897.
    Trespass under 2 How. Stat. chap. 272, by Samuel G. M. Gates against Andrew W. Comstock and William B. Comstock, survivors, etc. There was a judgment for plaintiff, and both parties bring error.
    Affirmed.

      J. D. Turnbull (Humphrey & Grant and G. L. Collins, of counsel), for plaintiff.

      Frank Fmerick and J. H. Cobb, for defendants.
   Montgomery, J.

This is an action of trespass on lands, brought under the statute authorizing recovery of treble damages in case of willful trespass. The case was before the court, and is reported in 107 Mich. 546, and was sent back for a new trial. The declaration has since been amended to conform to the requirements of the former opinion, the case again tried, and the plaintiff has recovered a verdict of $2,295, upon which judgment was entered for three times the amount by the circuit judge. The defendants again bring error.

On the last trial the plaintiff’s right to recover for any trespass actually committed upon the lands in question appears not to have been controverted. The questions for determination were whether the defendants cut and removed the “timber in question; if they did, whether they were liable in treble damages; and as to what rule should have been given to the jury on which to measure the damages in the verdict. The circuit judge charged the jury that the action was brought for an injury to the freehold; that the question for the determination of the jury was how much plaintiff’s property had been injured, — his property in the land and timber; what was the loss or injury to the real estate, to the land, to the freehold, sustained, —and further said:

“It is not, arbitrarily, so much a thousand stumpage, or so much a thousand for the boards, or anything else. * * * You may consider what the value of the timber was, as some aid to your judgments in determining what should be the compensation in this case. I have permitted to go to you the value of the logs, — the value of the stumpage, I would say, — not as conclusive, not for the purpose of governing you as to how much this plaintiff ought to recover, if he is entitled to recover at all, but for the purpose of throwing some light upon the extent of the injury to the freehold in this case.”

This instruction is complained of on the ground that, as the value of the land was shown to have been exclusively in the pine timber, the value of the stumpage should properly measure the recovery. We do not'understand counsel for the defendants to contend that the instructions do not, in the abstract, state the correct rule, but the contention is that, as applied to this particular case, such instruction is misleading. Brit we think the charge not open to this objection, under the proofs in the case. There was testimony showing the value of the real estate both before and after the trespass, which it was proper for the jury to consider.

It is further claimed that the court erred in instructing the jury to add interest to the amount of damages, from the time of the injury. We think there was no error in this. See Snow v. Nowlin, 43 Mich. 383; Cook v. Perry, Id. 623; Winchester v. Craig, 33 Mich. 205; Woods v. Gaar, Scott & Co., 93 Mich. 143.

But it is contended that if it is proper to include interest in the verdict, as a part of the damages recoverable, yet such damages should not be trebled. This question has never been expressly decided by this court. The case of Howser v. Melcher, 40 Mich. 185, is cited in support of-defendants’ contention. That case arose under a statute differing materially from the one here involved, and the verdict included an item for rent, an item of interest on the amount, and an item called “damages.” The court said:

“There is no provision to recover or treble anything else than ‘ damages,’ whatever may enter into them. Nothing except what the jury find and report as ‘damages’ is authorized to be trebled, and, in trebling the damages found, the language of the verdict must control.”

But whether the verdict would be capable of being trebled in making up the judgment, if properly found and reported as damages, the court did not decide, as it was deemed, unnecessary for the determination of the case.

The statute under consideration provides that the person guilty ‘ ‘ shall be liable to the owner of such land * * * in three times the amount of damages which shall be assessed therefor, in an action of trespass, by a jury.” 2 How. Stat. § 7957. "We think this statute contemplates the trial of the cause, the assessment of damages according to- the usual forms of law by the jury (which would, in a proper case, include interest), and that such damages, when so found, shall be trebled by the court. See Lane v. Ruhl, 103 Mich. 38.

Complaint is also made of the instruction of the court to the jury upon the subject of whether the trespass was casual and involuntary. The instruction complained of is as follows:

“If you believe the testimony of Mr. Comstock, that he knew where that line was before he commenced to cut upon his own timber, and if you further find from all the evidence in this case that a trespass was committed upon the Gates lands, and committed by these defendants, then I instruct you that it would be willful and intentional trespass.”

We think this instruction justified by the testimony in the case. Mr. W. B. Comstock testified that he knew where the south boundary line of defendants’ land was in 1891 and 1892, that the line was plainly marked when they began cutting, that he showed this line to both of defendants’ foremen, and that they both knew where it was. The real question of fact in controversy would appear by the evidence to have been whether the lands of plaintiff had been previously cut over, or whether, on the other hand, they were cut during the winter of 1891 and 1892, by defendants. This cutting was strenuously denied by defendants, and as earnestly insisted upon by the plaintiff, and the evidence was conflicting; but, in view of the testimony of Mr. Comstock, it can hardly be said that, if there was a cutting at all, it was casual and involuntary.

It is also contended in this court that it was error to treble the damages as to defendant Andrew W. Com-stock, without showing that the trespass was intentional on his part. We think this position cannot be maintained. The cutting was by the agents of the firm of which Andrew W. Comstock was a member, and we think he is liable for the full consequences of the trespass.

Complaint is made of the ruling of the circuit judge permitting testimony as to the cost of these lands to the plaintiff, and admitting the plaintiff’s own estimate of the value of the lands, it appearing that he never had seen them. The cost was shown by evidence of the purchase price paid .for these lands, together with others, in one body, upon the basis of the pine estimated; the purchase price of the whole being $22,500, and the estimated purchase price of these lands, upon this basis, being $5,500. We think this testimony was not wholly incompetent, as it tended to show what these specific lands in fact brought, if the purchase price was based upon thq stumpage, as would appear to be the case by the testimony.

The testimony of the witness Gates as to the market value, we think, should have been excluded. But it is quite evident from the testimony that the market value, which he fixed at $6,000, was really based upon the stumpage, assuming that the timber was there, and it is evident that the testimony of this witness could not have misled the jury. Indeed, the verdict of the jury shows conclusively that this testimony must have been rejected, as the verdict was for $2,295, which included interest from the date of the trespass up to the time of the trial. We are therefore of the opinion that the error worked no prejudice to defendants.

The plaintiff has also brought error, and asks that we enter judgment in this court for the amount of the purchase price of this timber,, agreed to, as paid by the plaintiff. As will appear from the opinion of the court when the case was here before, the plaintiff derived his right of action by assignment from one Hurst. Hurst had agreed to sell these lands, with other lands, to the plaintiff, at the price of $22,500. The plaintiff’s claim is that upon this basis the lands in question would have brought Hurst $5,500, and that, therefore, the damages to Hurst must have been that amount, and that, as plaintiff sues in his right, he is entitled to recover that sum. There are two obstacles in the way of granting the request of plaintiff: First, it is to some extent a matter of speculation as to whether the purchase price of these lands would be $5,500; and, second, the plaintiff submitted a special question to the jury, as follows: “Did these three forties, known as the Gates lands, or the pine timber thereon, cost plaintiff at least $5,500?” which question was answered in the negative. We certainly could not enter judgment in the face of this finding. The most we could do would be to reverse the judgment and remand the case for a new trial. As we do not understand the plaintiff to ask this, the judgment of the court below will be affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, C. J., did not sit.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    SUPREME LODGE KNIGHTS OF PYTHIAS v. IMPROVED ORDER KNIGHTS OF PYTHIAS.
    1. Fraternal and Benevolent Associations — Corporate Name.
    The act of Congress incorporating the Supreme Lodge Knights of Pythias did not confer upon such corporation an exclusive right to the use of the name "Knights of Pythias,” since that name was already in use by an existing voluntary association.
    2. Same — Schism—Reassociation Under Similar Name.
    While members withdrawing from a fraternal society are not at liberty to associate themselves under a name so like the name of the parent order as to be calculated to deceive ordinary persons proceeding with ordinary care, they may, subject to this limitation, use any derivative of such name that they may see ñt to employ.
    3. Same — Injunction.
    The name “Improved Order Knights of Pythias,” adopted by withdrawing members of the Knights of Pythias, is not calculated to mislead, and therefore its use will not be enjoined.
    Appeal from Wayne; Carpenter, J.
    Submitted April 8, 1897.
    Decided May 28, 1897.
    Bill by the Supreme Lodge Knights of Pythias against the Improved Order Knights of Pythias and others to enjoin the use of the name adopted by the defendant order. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Philip T. Oolgrove and John G. Burns (Philip T. Van Zile, of counsel), for complainant.

      Gonély & Taylor (Florea & Seiclensticker, of counsel), for defendants.
   Montgomery, J.

Complainant filed a bill for an injunction, praying that defendants be restrained from using the ritual and jewels of the order of the Knights of Pythias, and from using the name “Improved Order Knights of Pythias.” A careful examination of the authorities cited by counsel, and of the reasons urged by them, has failed to convince us that the learned trial judge erred in dismissing the bill. The opinion of Judge Carpenter contains so full a review of the case, and its reasoning is so satisfactory, that we adopt it as our own. That opinion is as follows:

“The Knights of Pythias is a secret, unincorporated society, organized in 1864, and has about 500,000 members. Complainant is the Supreme Lodge of the Knights of Pythias, and was incorporated by special act of Congress in 1894. The Improved Order Knights of Pythias is also a secret, unincorporated society, and had, June 30, 1895, when the last report was made, 1,738 members. It was formed in December, 1894, by former members of the Knights of Pythias. These last-mentioned members left the old order, and formed the new, because a convention of the Supreme Lodge Knights of Pythias, in August, 1894, declared that ‘ henceforth and forevermore the ritual used in this and all other English-speaking countries shall be printed in the English language only.’ Both orders are fraternal and benevolent. They have many resemblances. The important difference between them, as already indicated, is this: The ritual of the Improved Order may be printed in German, while that of the Knights of Pythias cannot be. Complainant asks an injunction restraining defendants from using the name ‘Improved Order Knights of Pythias,’ and from using the name ‘ Knights of Pythias,’ or any derivative thereof, and from printing or using any ritual in substance like that used by the Knights of Pythias.
‘ ‘ There is no proof that the defendants’ ritual is so nearly like complainant’s as to justify the interference of a court. The sole question is, then, whether defendants shall be enjoined from using the name ‘ Improved Order Knights of Pythias.’ Complainant’s counsel insist that by the act incorporating complainant as ‘ Supreme Lodge Knights of Pythias’ an exclusive right to the name ‘Knights of Pythias ’ was acquired. Numerous cases are cited holding that a corporation has an exclusive right to its name. No case, however, is cited holding that incorporation gives an exclusive right to a name already in use, as the name ‘Knights of Pythias’ was, by an existing voluntary society. On the contrary, McGlynn v. Post, 21 Abb. N. C. 97, cited by complainant’s counsel, and Black Rabbit Association v. Munday, 21 Abb. N. C. 99, hold that in such a case an exclusive right is not acquired. Indeed, if complainant, by incorporating, acquired the exclusive right to the name ‘ Knights of Pythias, ’ it could at will compel the order of which it is only the head, and all other lodges, subordinate and grand, to cease using the name ‘ Knights of Pythias.’ It seems clear, therefore, that complainant did not, by becoming a corporation, acquire the exclusive right to the name ‘Knights of Pythias,’ and that, whatever are its rights, they cannot exceed those of the order of which it is the head.
“The question, then, arises, are the rights of the order violated? Nearly all the members who withdrew from the old order and went into the new are Germans, and many of them are unable to read and understand a ritual not printed in German. Prior to the action of the order which was the occasion of their withdrawal, the order furnished for their use, and they used, rituals printed in German. Defendants therefore withdrew from the society of which they were members, because it changed, not because it continued, its policy. The propriety of the conduct of complainant in forbidding the printing of the ritual in German, the propriety of the conduct of defendants in withdrawing from the order, are questions solely for the consideration of the parties themselves. The Knights of Pythias had a lawful right to declare that its ritual should be printed only in English, and defendants had an equally lawful right to found an order whose ritual might be printed in German. Having formed this order, is it possible that defendants cannot give it an appropriate name, a name which will properly describe it? This new order is formed by the members of the Knights of Pythias who withdrew from the Knights of Pythias because that order changed its policy in a matter which it must be presumed they thought important. This order resembles the Knights of Pythias. It stands to these members in the place which the Knights of Pythias has vacated. To a certain extent it carries out a policy which the Knights of Pythias formerly carried out and abandoned. Complainant charges that the defendants have seceded from it, and have established a rival and very similar organization. No name could appropriately be adopted, under these circumstances, which did not contain the words ‘ Knights of Pythias,’ because no name could properly describe it, either by reference to its origin, its history, or its purposes, which did not contain those words. Suppose that this new order had received some other name. It would have been none the less, in the minds of complainant, a seceding faction of the Knights of Pythias; it would have been none the less, to defendants, a substitute for the Knights of Pythias; and it would have been none the less, to the impartial historian, an offshoot of the Knights of Pythias.
“One excellent test of an appropriate name to select under such circumstances is furnished by the history of schisms in other societies. Nearly all our varieties of churches of the same denomination are the result of secession or withdrawals from the parent church of that name, and it has been the usual course for the new church society to adopt as a permanent part of its name the name of the parent oi’ganization. Take one instance: A part of the Methodist Episcopal Church withdrew and established the Protestant Methodist Church. So we have the Order of Foresters of America, formerly the Ancient Order of Foresters of America; the Canadian Order of Foresters; the Independent Order of Foresters, — all of which are, as I understand, offshoots of the Ancient Order of Foresters of England. No one has ever questioned the appropriateness of using the parent name as a part of thé name of a new society formed under these circumstances, so far as I can learn. To my mind, it is clear, therefore, that defendants, in naming their order, not only could, but were almost bound to, in order to, properly describe it, make some use of the words ‘ Knights of Pythias.’ Of course, there is this limitation: Defendants should not use a name so much like the name of the order from which they have withdrawn as to work a damage to that order. The only way that the order can be damaged, as the least reflection will prove, is by depriving it of members who would otherwise join it.
“Let us apply to this case the principles by which courts determine similar controversies of trading concerns. The decisive principle is this: ‘'No man has a right to sell or advertise his own business or goods as those of another.’ Williams v. Farrand, 88 Mich. 478. ‘One must not, therefore, adopt a name so similar to that of another as to draw to himself business intended for that other.’ Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; Tallcot v. Moore, 6 Hun, 106; Potter v. McPherson, 21 Hun, 559; Holmes v. Holmes, 37 Conn. 296 (9 Am. Rep. 324). The correct principle is stated in complainant’s brief (page 71) as a quotation from the opinion of Judge Foster, of the superior court of Vanderburgh county, Indiana, rendered in the suit of St. George Lodge, K. of P., v. Rosenthal et al.: ‘Where a corporation has appropriated and used a name for such length of time as to become identified by the name, and has established a character and reputation under it, it is a fraud upon the corporation and the public if this name be assumed by others under such circumstances as would lead the public to believe that they constitute the original corporation, and, where injury will result to the corporation on account thereof, courts of equity will, at the suit of the injured parties, by injunction restrain the further perpetration‘of the wrong. It is the special injury to the party aggrieved and the imposition upon the public that constitute the wrong which the courts will redress. It is not necessary that the wrong should be intentionally committed. It is enough that the name should be used under such circumstances as would lead the public to believe that the latter organization was the former, and thereby cause injury to the former corporation.’
• “Where one uses the name of another for the fraudulent purpose of attracting to himself business which belongs to that other, no injustice will be done if the court assumes that the name chosen accomplishes this purpose, even though the resemblance be not great. If one intends that the name he has chosen shall be believed to be that of another, it is fair to infer that he will so use that name as to promote the desired belief. Accordingly we find that the motives with which a name is chosen, and the circumstances attending its use, as well as the similarity of names, have a bearing in determining whether business is liable to be diverted, and, consequently, whether the courts shall interfere. Compare Myers v. Kalamazoo Buggy Co., 54 Mich. 215 (52 Am. Rep. 811), and Williams v. Farrand, 88 Mich. 479. See, also, Higgins Co. v. Higgins Soap Co., 144 N. Y. 471. Where the name was not chosen for the purpose of deception, and has not been used under circumstances intended or calculated to deceive, the similarity of names must be such as to deceive ordinary persons proceeding with ordinary care, to justify the interference of a court. 2 High, Inj. § 1088; Seixo v. Provezende, 1 Ch. App. Cas. 192; McLean v. Fleming, 96 U. S. 251. There is not a particle of evidence in the case that defendants chose the name ‘ Improved Order Knights of Rythias ’ with the intention that their order should be supposed to be the order Knights of Pythias, nor that they have done anything since the order was founded to lead the public to believe that the orders were the same. On the contrary, the official communications issued by defendants, some of which are set up in complainant’s bill, inform all wlm read them that their order is not the Knights of Pythias» but is a separate, and, they claim, an improved, order. Defendants seem quite as anxious as complainant to have it understood that their order is not the Knights of Pythias. This, then, is the test: Is the name ‘Improved Order Knights of Pythias’ so nearly like the name ‘ Knights of Pythias ’ that ordinary persons using ordinary care would think them identical, would think them two names for the same order, or for branches of the same order, so that they would become members of the defendants’ society when they really wanted to join complainant’s society ?
“In considering this question, it should be borne in mind that no complaint is or can be made on account of any damage resulting from the fact that the defendant society is a rival and a competing organization, and that the founders of an order have the right to claim that their order is superior to any and every other order. It is fatal, therefore, to complainant’s case, if the difference of names indicates that defendants’ society is a different society (even though it is claimed to be better) from complainant’s. The law does not protect the name from any consideration for the feelings of those who bear it. Day v. Brownrigg, 10 Ch. Div. 294. The sole question is, as already stated, the effect, or probable effect, of the similarity of names, in diverting business. In determining this question, courts do > not receive much, if any, aid from adjudicated cases. In the communications of defendants set up in complainant’s bill, the name of their society appears as follows: ‘ Improved Order K. of P.’ The name of the complainant is set forth as follows: ‘ Supreme Lodge Knights of Pythias. ’ It is the head of the order ‘Knights of Pythias.’ To me it is self-evident that no careful person could think that these two orders were identical, and, as has been said, in cases of this class the question is whether the similarity is calculated to mislead the ordinary run of mankind. There certainly is just as much distinction between these names as there is between that of the Episcopal Church and the Reformed Episcopal Church, or that of the Presbyterian Church and the United Presbyterian Church.
“But we are referred to the case of Russia Cement Co. v. Le Page, 147 Mass. 206 (9 Am. St. Rep. 685), holding that the introduction of the word ‘improved’ into the name of the article manufactured by defendant will not justify its use, if, in other respects, its use is unjustifiable. Another case very similar is that of Hohner v. Gratz, 52 Fed. 871. In the former case it was held an invasion of the rights of the owner of the name ‘Le Page’s Liquid Glue’ to use the name ‘ Le Page’s Improved Liquid Glue.’ In the latter case it was held an invasion of the rights of Mr. Hohner, who made and sold harmonicas under his own name, to use the mame on harmonicas, ‘Improved Hohner.’ The distinction between these cases and the case at bar is obvious. In those cases the word ‘improved ’ indicated, not a different glue, but an improved quality of the same glue. One wishing to buy ‘ Le Page’s Liquid Glue’ would naturally wish to buy ‘Le Page’s Improved Liquid Glue.’ In the Hohner Case the court said, .‘The words “Improved Hohner” would signify his (Hohner’s) make of a better quality,’ and upon this ground an injunction was granted. Now, the name ‘Improved Order Knights of Pythias ’ does not mean, and no one can think for a moment that it does mean, that it is the same order as the Knights of Pythias. Every one who knows enough about secret societies to be qualified to join them knows that a different name of a society means a different society. He would know that the Improved Order Knights of Pythias was not a variety of the order Knights of Pythias. The difference of names would indicate to him possibly a claim on the part of defendants that theirs was the better order, of which he must for himself determine; but certainly that it was a different order. If, in the Le Page or Hohner case, the names had only indicated that a different article was claimed to be superior to one of similar name, it is obvious that the court would not have interfered. ‘Improved’ has a different signification when prefixed to the name of an order from what it has when prefixed to the name of an article.
“The case of St. George Lodge, K. of P., v. Rosenthal, decided by Judge Poster, of the superior court of Vanderburgh county, Indiana, is more nearly in point. This case was brought by a subordinate lodge Knights of Pythias against some o£ the defendants in this suit, and the same relief was sought that is sought in this suit. That case arose upon demurrer to a complaint. Judge Foster, though sustaining the demurrer on the ground that the cause of action must be enforced by the order Knights of Pythias, in that complaint stated to be a corporation, indicated his opinion, as candidly stated by him, on each question presented. He stated it to be his opinion that the assumption of the name ‘ Improved Order Knights of Pythias,’ under the circumstances alleged in the complaint, was wrongful. I have no criticism to make on this conclusion, nor, with the exception hereafter presented, on the reasoning upon which it is based. The facts alleged in that complaint and the facts established in this case differ radically. It was alleged in that case that defendants, in organizing and naming their society, were seeking to disrupt and defeat the Knights of Pythias. It did not appear, as, in my opinion, it does in this case, that the name ‘ Knights of Pythias ’ was in any way descriptive of the new organization. This circumstance is expressly alluded to in the reasoning by which Judge Foster reaches the conclusion that the assumption of the name is wrongjful. I must conclude, therefore, that Judge Foster’sr/ opinion has no application to the facts established in this case. In speaking of the difference between the name of complainant and defendants’ society, Judge Foster said, ‘It is established by authorities too numerous to need citation that such a differentiation amounts to nothing. ’ This is the only statement in Judge Foster’s opinion in which I cannot concur. I have already indicated my opinion concerning this difference, and the only cases which it is claimed hold that this differentiation amounts to nothing which I have been able to find, or which eminent counsel brought to my attention, are the cases which I have just tried to show are not in point.
“The best possible evidence that names are sufficiently similar to mislead the public is the fact that the public, or some portion thereof, has been misled. The defendant order was in existence more than a year before the testimony in this case was taken, and yet not a particle of evidence was introduced showing or tending to show that the similarity of names ever misled or deceived any one. This case must be decided, not by citation of authorities, but by answering the question: Would an ordinary person, using'ordinary care, wishing to join the Knights of Pythias, join the Improved Order Knights of Pythias ? For the reasons above stated, I must answer this question, No. A decree will he accordingly entered dismissing complainant’s bill.”

The decree will be affirmed.

Grant, Hooker, and Moore, JJ., concurred. Long, O. J., did not sit.


author: Moore, J.

text:
    SMALLEY v. NORTHWESTERN TERRA-COTTA CO.
    1. Mechanics’ Liens — Statutes—Rule of Construction.
    Mechanics’ liens are in derogation of the common law, depending for their existence wholly upon the statute, and therefore, upon the question whether a lien attaches at all, a strict construction of the statute is proper; but, after the lien has once attached, a liberal construction should be put upon the statute, for the pm-pose of fulfilling its objects.
    2. Same — Directory Provisions — Filing of Proof of Service.
    Failure of a claimant under the mechanic’s lien law to file with the register of deeds, before commencing proceedings to enforce his lien, proof of service upon the owner of a copy of the statement. of lien, will not invalidate the proceedings as to such owner, where all of the steps to establish the lien have been regularly taken, and the owner’s rights have been fully protected.
    3. 'Same — Pleading—Amendments—Statute of Limitations.
    Section 10 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891) provides that amendments may be made to any bill or cross-bill at any time before final order. Section 27 provides that amendments to any process, pleadings, or proceedings, either in form or substance, shall be allowed at any time before final decree is rendered, upon such terms as justice may require. Held, that an amendment to an answer in the nature of a cross-bill may be allowed in such proceedings, if it seeks, not to introduce a new cause of action, but to state properly the facts which constitute the cause of action set up in the original answer, even though the statute of limitations would bar a new bill.

      4. Same — Answer in Nature of Cross-Bill.
    Section 10 of the mechanic’s lien law (Act No. 179, Pub. Acts 1891) requires the complainant in lien proceedings to make all persons having rights affected by the lien claimed, all holding like liens, and all who have filed notice of an intention to claim a lien, parties to the action; authorizes such persons to make themselves xiarties, on motion and notice to complainant, and to file their intervening or cross bills, or answers claiming the benefit of cross-bills, and notices of lis pendens therein; and xn'ovides that such cross-bills shall he ' sworn to, and shall be evidence of the matters therein charged, unless denied by answer under oath. Held, that a defendant may obtain affirmative relief against a co-defendant by an answer in the nature of a cross-bill; it being clear that the statute contemplates that all the parties in interest may be brought into court and have their respective interests adjudicated in one proceeding.
    Appeal from Wayne; Adams, J., presiding.
    Submitted April 8, 1897.
    Decided May 28, 1897.
    Bill by William Smalley and others against the Northwestern Terra-Cotta Company, impleaded with Traugott Schmidt and others, to enforce a material man’s lien. The defendant company filed an answer in the nature of a cross-bill, to which defendant Schmidt demurred. From an order dismissing the answer in so far as it claimed the benefit of a cross-bill against defendant Schmidt, the Northwestern Terra-Cotta Company appeals.
    Reversed.

      Warner, Oodd & Warner, for appellant.

      Walker & Spalding, for appellee Schmidt.

      H. TI. & C. H. Hatch, for appellees Smalley and others.
   Moore, J.

The defendant Schmidt, the owner of land in Detroit, in the spring of 1895, contracted with Mr. Gearing, a building contractor, for the erection of a business block théreon. In the fall of 1895, when the building was partially completed, a number of material men filed liens against the lot and building for materials which they severally claimed to have furnished to Mr. Gearing. The original bill of complaint in this cause was filed in January, 1896, for the enforcement of one of these liens, and the other lien claimants and the defendant Schmidt, as owner of the land and building, were made defendants. On March 17, 1896, the defendant the Northwestern Terra-Cotta Company, one of the lien claimants, filed an answer in the nature of a cross-bill, praying for the enforcement of its lien, which was filed on the 14th day of November, 1895. To this answer, in so far as it claims the benefit of a cross-bill, the defendant Schmidt filed a general demurrer on the 19th day of March, 1896. On Januai’y 2, 1897, the court sustained the demurrer, upon the ground that the answer failed to show that any copy of the statement of lien filed with the register of deeds was served upon the defendant Schmidt, and that it failed to show that any proof of service of a copy of that statement upon said defendant Schmidt was filed in the office of the register of deeds before the institution of proceedings to enforce the lien. The order gave leave to amend. Upon the same day an amended answer was filed, setting up the service of a copy of the statement upon Schmidt on the 22d day of November, 1895, and averring that on the 11th day of December, 1896, proof of that service by affidavit was filed in the office of the register of deeds. Immediately upon the filing of this amended answer, a demurrer thereto was filed, setting up the following grounds of demurrer:

1. That the order permitting the filing of this amended answer in the nature of a cross-bill, and the filing thereof, were unauthorized and unwarranted by law, because the order itself was made and the amended bill was filed more than six months after the time when the statement of the lien of the Terra-Cotta Company was filed with the register of deeds.
2. Because the proof of service of said statement of lien upon the defendant Schmidt, as averred in said amended answer in the nature of a cross-bill, was filed with the register of deeds more than six months after the time when the statement of lien was filed, and after the filing of the original answer in the nature of a cross-bill for the enforcement of said lien.
3. Because the court had no power, under an answer in the nature of a cross-bill, to grant to the defendant filing such answer any relief against a co-defendant or against the property of such co-defendant.

Upon the same day, January 22, 1897, this demurrer was sustained, and the amended answer in the nature of a cross-bill, in so far as it claims the benefit of a cross-bill against the defendant Schmidt and his property, was dismissed. From this order the Terra-Cotta Company takes the present appeal. No demurrer or other objection was filed by any other person than defendant Schmidt to this answer in the nature of a cross-bill.

It is the claim of appellee Schmidt that the law makes the following things necessary conditions precedent to the taking of proceedings for the enforcement of a lien by any person not contracting directly with the owner:

1. Filing with the register of deeds a statement of lien within 60 days after the last furnishing of labor or material.
2. Service upon the owner or his agent, personally, of a copy of the statement within 10 days after the filing, or, if neither owner nor agent can be found within the county, service by posting on the premises within 5 days more.
3. Filing proof of such service with the register of deeds before the commencement of proceedings to enforce the lien.

He contends that, as the taking of these steps is made by the statute prerequisite to the enforcement of the lien, the performance and the averment of performance of each of them are necessary allegations in any bill to enforce such a lien, and that, as an original bill could not be filed for that purpose more than six months after the lien was filed, neither could a bill filed within six months, but omitting any ■ of these necessary allegations, be . so amended as to include them after the six months had expired. It will be observed that the amended answer shows that all these conditions were performed, except the filing of the proof of the service of the notice with the register of deeds, before the commencement of the proceedings to enforce the lien. The question, then, is whether, when all the steps to establish a lien have been taken, except the filing with the register of deeds of proof of service of the statement of lien on the owner before commencing proceedings to enforce the lien, the proceedings must fail.

It is the contention of the appellee that, as this is a proceeding in derogation of the common law, the statute must be strictly construed, and, as the pleadings do not show a compliance with the law, the proceeding must fail. It is admitted on the part of the appellant that, as to all those requirements of the statute necessary to create the lien, the statute is mandatory, and must be followed; but it is claimed that, after the lien is once established, its provisions are directory, and that if such steps are taken as fully protect the owner, as in this instance, by giving him notice of the claim within the time fixed by statute, he is not harmed, and cannot complain.

It has long been the settled law in this State that these proceedings are purely statutory, and that, to create a lien under them, the statute must be followed in all its essentials. Wagar v. Briscoe, 38 Mich. 587; Peninsular General Electric Co. v. Norris, 100 Mich. 496; Hannah & Lay Mercantile Co. v. Mosser, 105 Mich. 18. In the case of Sheridan v. Cameron, 65 Mich. 680, which was a proceeding to enforce a mechanic’s lien, where the proceedings were attacked on the ground that they were prosecuted too late and irregularly, the petition was filed within the 60 .days allowed by statute, but it did not contain a prayer for process. The notice of lis pendens was filed after the 60 days expired. It was claimed that for these reasons the proceeding must fail. In discussing the case, Justice Campbell said:

“The plea does not set up a failure to file notice of lis pendens as a defense, and it is not, therefore, in issue; but, taking the whole statute together, it seems that its chief purpose is to bind subsequent interests, and to serve the same purpose as notices of lis pendens under the general chancery practice. At all events, no other purpose is indicated on the face of the statute, and it hardly seems necessary as against the original parties to the bill, unless, possibly, during the interval before service of process or other • notice to come in. * * * The claim made that the lien law is to be rigidly construed is not correct, in- the full extent claimed. There is no doubt that a purely statutory lien must conform exactly to the statutory conditions; but when it once attaches, and is put in process of foreclosure, the proceedings, while in part definitely fixed, are nevertheless in important particulars left to the general course of practice. No construction should be strained at in order to defeat them, but the rights of all parties should be harmonized and respected as far as is reasonably practicable.”

In the case of Mouat v. Fisher, 104 Mich. 262, the lienor, instead of serving notice on the landowner, obtained from him an acceptance of service. It was claimed by the landowner that the statutory requirements had not been complied with, and the proceeding must fail. It was held that, where the landowner has accepted service in lieu of the statutory service, he should not be heard to complain that the statutory steps were not taken, and the decree of the court below was affirmed.

In De Witt v. Smith, 63 Mo. 263, it is said:

“The courts at one time- were inclined to hold that enactments for mechanics’ liens were in derogation of the common law, and their provisions should therefore be construed strictly against those who sought to avail themselves of their benefits; but the better doctrine now is that these statutes are highly remedial in their nature, and should receive a liberal construction, to advance the just and beneficent objects had in view in their passage. Their great aim and purpose is to do substantial justice between the parties, and this should never be lost sight of in giving them a practical construction. * * * The object of the law, so far as securing the validity of the lien against the owner is concerned, when a material man seeks to avail himself of the advantages, is that, by the notice, the owner may keep back enough of the contract price to indemnify himself against the liability.”

In that case it was held that, as between the mechanic and the owner, the lien would not be defeated where the property was described as a three-story brick building on lots 19 and 20, block No. 2, when it should have been' block 20, when the evidence disclosed the owner had no other three-story building for which material was furnished by the mechanic, and that he owned no other lots than those in block 20.

In Maynard v. Ivey, 21 Nev. 241, it is said:

‘ ‘ The right to liens given to mechanics and laborers is introduced into the statutory law of the States by positive statutes. These statutes were at first looked upon by the courts to be in derogation of the common law, and hence they were strictly construed. They have now, however, become an integral part of our law, and their justice and beneficence have become so apparent that it was not intended by the legislature that laborers’ lien statements should he strangled by technicalities, but, being remedial in their nature, they were to receive a broad and liberal construction.”

In Bullock v. Horn, 44 Ohio St. 420, in construing the lien law of that State, this language was used:

“The statute is highly remedial in its character, and should receive such liberal construction as will carry out the purpose of the legislature in its enactment. The labor of the workman and the material of the material man having contributed to the erection of the structure, — having, indeed, created in part the very property on which the lien is sought to be attached, — the purpose of the law is to give to such parties the right, where the contractor refuses to pay, to be paid for their labor and material out of the fund which has been earned under the contract, and out of the structure and the land upon which it stands; such claim, as to amount, not to be in excess of the claim of the contractor, as measured alone by the contract and his performance of it.”

And it was held the statute should be given such a construction as would carry out its object.

It may be difficult to harmonize all of the language in these decisions. It seems to me, however, that the rule is correctly stated in 2 Jones, Liens, § 1554, where it is said:

“ The rule of construction applicable to questions arising under these liens may be strict at one stage of the proceedings, and liberal at another. Mechanics’ liens are in derogation of the common law, depending for their existence wholly upon statutes, and therefore, upon the question- whether a lien attaches at all, a strict construction is proper. ”

Section 1556 of the same author reads:

“But, after the lien has once attached, a liberal construction should be put upon the statute, for the purpose of fulfilling its objects. The statute is highly remedial in its nature, and should receive a practical and reasonable construction to effect its objects.”

All of the proceedings required by the statute to create a lien, up to the time when proceedings were about to be instituted to enforce the lien, had been taken. The statute does not require the filing of proof of service of notice in order to establish the lien, but simply makes that a prerequisite to the proceedings to enforce the lien. The object of a notice to the landowner is to prevent him from paying the principal contractor. Lamont v. Le Fevre, 96 Mich. 177. The notice having been given to the landowner within the time required by statute, it is difficult to see how he is harmed by a failure to file proof of service of notice upon him with the register of deeds. The case would be very different if he were an intervening lienor or a subsequent purchaser. He had all the notice that it was possible to give, and I do not see how he can complain of a failure to file proof of the service of a notice upon him with the register of deeds. I think all of the essentials of the statute, so far as they relate to him, have been met. Applying the principles of construction just stated to this case, I am convinced that, if the amended answer was filed in time, the demurrer to it ought to have been overruled.

It is conceded that the original answer was filed in time, but it is insisted it was not proper to allow an amendment to it, and that the amendment came too late. As to the objections to the allowance of an amendment to the answer in the nature of a cross-bill: The amendment was in relation to facts which existed at the time when the original bill was filed. The statute evidently contemplates such amendments. Section 10 of the act provides:

‘ ‘ Amendments may be mad,e to any bill or cross-bill at any time before final order, and, if it shall appear that any party has had insufficient notice of any such [proceedings] proceeding, such further notice shall be given as the court shall think just.” Act No. 179, Pub. Acts 1891.

It will be observed this section provides for further notice any time before the • final order is made, if such notice is made necessary by the amendment.

Section 27 provides:

“Amendments to any process, pleadings, or proceedings in such actions to enforce the liens given by this act, either in form or substance, shall be allowed at any time before final decree is rendered, on application of either party, upon such terms and conditions as justice may require.”

The counsel for Mr. Schmidt contend that, where the statute of limitations has run against the cause of action since the commencement of the suit to enforce it, no amendments to the pleadings introducing any new averments will be allowed, — citing Gorman v. Newaygo Circuit Judge, 27 Mich. 138; Michigan Central R. Co. v. Kalamazoo Circuit Judge, 35 Mich. 227; Wingert v. Wayne Circuit Judge, 101 Mich. 395. An examination of these cases will show that the amendments proposed, in each instance, a new and distinct cause of action, while the amendment allowed in the case at bar does not seek to introduce a new cause of action, but to properly state the cause of action which was not sufficiently stated in the original petition. This was allowable under the sections just cited. See Burk v. Muskegon Machine & Foundry Co., 98 Mich. 614; Steel Brick Siding Co. v. Muskegon Machine & Foundry Co., Id. 616; Phil. Mech. Liens, § 429; Willer v. Bergenthal, 50 Wis. 474; Huse v. Washburn, 59 Wis. 414; Pratt v. Montcalm Circuit Judge, 105 Mich. 499.

As to the objection that an answer in the nature of a cross-bill is not allowed in a proceeding of this kind, it may be said that section 10 of the lien law provides as follows:

(a) “The complainant shall make all persons' having rights in said property affected or to be affected by such liens so filed in the office of the register of deeds, and all persons holding like liens so filed, and those having filed notice of intention to claim a lien, parties to such action.
(b) “And all persons holding like liens, or having filed notice of intention to claim a lien, or any other persons having rights in said property, may make themselves parties thereto on motion to the court and notice to complainant, and may file their intervening or cross bills, or ansioers claiming the benefit of cross-bills, and notices of lis pendens therein.
(c) “Intervening or cross bills shall be on oath, and all bills sworn to shall be evidence of the matters therein charged, unless denied by answer under oath.”

We think the purpose of these provisions of the statute in relation to the pleadings is to provide a practical method by which all the parties in interest can be brought into court and have their respective interests adjudicated in one hearing and in one proceeding. There is no incongruity in providing for an answer in the nature of a cross-bill which shall perform the office of a cross-bill. We can see no particular merit in requiring two pleadings upon separate papers when one will do as well. Evidently the legislature was of that opinion, as indicated by the legislation upon that subject. The pleadings in that respect are unobjectionable. Story, Eq. Pl. § 392; Puter. Mich. Ch. 322; Feige v. Babcock, 111 Mich. 538; Thielman v. Carr, 75 Ill. 385.

The demurrer should have been overruled.

The decree is reversed, and defendant Schmidt is given 20 days in which to answer. Appellant is given costs. of this court.

The other Justices concurred.


author: Hooker, J.

text:
    MASON v. WIERENGO’S ESTATE.
    1. Landlord and Tenant — Holding- Over — Act oe God.
    The fact that a tenant for a term of years becomes seriously ill shortly before the expiration of his term, and after removal operations have actually begun, does not deprive the landlord of his right to treat the tenant’s failure to complete the removal before the lease expires as a renewal of the lease for another year.
    2. Same — Intent—Election oe Landlord.
    The right of a lessor to treat a lessee who holds over after the expiration-of his term as a tenant, and not a trespasser, is not affected by the fact that the lessee had no intention of renewing his lease.
    Error to Muskegon; Russell, J.
    Submitted April 9, 1897.
    Decided May 28, 1897.
    Lyman G. Mason presented a claim for rent against the estate of Andrew Wierengo, deceased. The claim was disallowed by the commissioners, and claimant appealed to the circuit court. From a judgment for part of the amount claimed, on verdict directed by the court, claimant brings error.,
    Reversed.

      Arthur Jones, for appellant.

      Bunker & Carpenter, for appellee.
   Hooker, J.

The plaintiff, being owner of a building, leased the same for a term of years, at an annual rental, to Wierengo, who occupied it as a store. A short time before the expiration of the lease, Wierengo rented another building, and informed the plaintiff that he should vacate the building owned by him at the expiration of the lease. Preparation for removal began September 19th, and actual removal began before September 26th. Counsel for the defendant claim that the lease expired October 1st, at midnight. On September 26th, after the removal began, Wierengo was taken sick. ' The work of removal was continued by his clerks, but was not finished until October 11th. Mr. Wierengo died on the 6th of October. ’ Under these circumstances, counsel for the defense assert that the presumption of a renting for another year is rebutted. They also contend that it was made impossible for Wierengo to vacate, by the act of God.

If it is contended that the act of God excuses one from the performance of his express contract to yield possession at the expiration of his lease, we are unable to acquiesce in the contention. It is only in those contracts which the act of God renders impossible of performance — as where the subject-matter of the contract dies, or is destroyed, or where personal labor is contracted for^ánd the person dies or becomes incapacitated through the act of God — that a party is excused from performance. See Beach, Cont. § 217, where this question is discussed, and 1 Am. & Eng. Enc. Law (2d Ed.), 588-592, where a large list of authorities confirm this doctrine. If, therefore,’ the sickness of Mr. Wierengo has any bearing upon the case, it is as a circumstance bearing upon the question of the rebuttal of the presumption.

Counsel urge strenuously that the presumption of an intention to renew the lease for a year arising from holding over is not conclusive, but that it may be rebutted. As a matter of fact, undoubtedly it may; but it is not so clear that it would constitute a defense against the claim of a landlord who should acquiesce, and elect to treat the holding over as a renewal of the lease for a year, rather than as a trespass. In the absence of qualifying circum-, stances implying consent to a holding under some new ; arrangement, the holding over is a legal trespass, and ! does not.depend upon the intention of the tenant.' It is a t wrongful holding, whatever the cause, though perhaps not culpable in a moral sense, and the rights of the landlord are definitely fixed by the law. This question was reviewed in Campau v. Michell, 103 Mich. 623, and the opinion of the court as there indicated was contrary to the defendant’s position in this case, j That case was exceptional, in that the defendant’s tenant was,induced to hold over by the mistake or misconduct of the plaintiff’s agent,land the doctrine of estoppel was applied.! See, also, Bradley v. Slater, 50 Neb. 682.

We think that there is uniformity in the decisions against tlie[contention that the intention to vacate as soon as possible1 can affect the right of the landlord to elect to treat the holding over as a renewal of the lease for a year.: It requires some express or implied consent upon his part to a holding over upon other conditions. This is wanting here. Counsel urge the hardship of the application of the rule in this case; but we cannot say that there is or is not hardship, .or that we would be justified in’imposing a burden upon the plaintiff to relieve the defendant from a legal obligation. He appears to have tried to rent the place, and has given defendant credit for what he has been able to derive from the building. • Had Wierengo lived, he might have made the same claim if asked to pay the rent for another year, but it would not have relieved him.' The situation, as it is, only differs in the degree of inconvenience, intensified as it is by the death of Wierengo, and the change in his affairs naturally resulting. It is unfortunate for his representatives that the store was not vacated, but we discover no legal reason for lifting the burden of misfortune from them, and imposing it upon another, who is in no way responsible for it.

The judgment is reversed, and a new trial ordered.

The other Justices-eeneurred.


text:
    MORCH v. TOLEDO, SAGINAW & MUSKEGON RAILWAY CO.
    Railroad Companies — Fellow - Servants — Vice Principal — Foreman op Work Train — Negligence.
    A road-master, being prevented by illness from accompanying a work train sent out to distribute railroad ties along the right of way, placed a section foreman in charge of the train, with instructions as to the loading, removing, and handling of the ties. No general power was conferred upon the foreman to make up and send out trains, to determine when and where they should go, to employ and discharge workmen, or to represent the road-master other than upon the particular occasion, and in accordance with his instructions. Held, that the foreman did not become a vice principal of the company, so as to render it liable for injuries to one of the workmen resulting from the negligence of the foreman while in charge of the train.
    Error to Muskegon; Russell, J.
    Submitted April 9, 1897.
    Decided May 28, 1897.
    Case by John Morch against the Toledo, Saginaw & Muskegon Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Geer & Williams (E. W. Medclaugh, of counsel), for appellant.

      Chamberlain & Cross (Turner & Turner, of counsel), for appellee.
   Moore, J.

The plaintiff sued defendant to recover for seyere personal injuries received by him while he was in the employ of defendant, and recovered a judgment, from which defendant appeals. The avocation of plaintiff was that of a section hand on defendant’s road. At the time he received his injuries he was standing upon the steps or platform of the front end of the caboose, which was attached to a train consisting largely of flat cars loaded with ties. The train was in motion. The men would throw one end of the tie off the train,.and the motion of the train would carry the other end of the tie forward, until the tie would drop upon the roadbed. Some of the ties would drop in such a way as to be dangerously near the track. Upon the day in question, the plaintiff had jumped from the front end of the caboose, thrown a tie back, and got on at the rear end of the caboose, gone through the car, and was in a position to get off again, should occasion require. His claim is that the speed of the train was quickened so as to make it unsafe to get off, and unsafe to throw the ties, and that, while so standing there, one end of a tie was resting on the ground, and the other end came against his leg and crowded him against the car, resulting in his loss of a leg and other serious injuries. ,

The declaration alleges that the train was in charge of a road-master, or an assistant road-master, who represented the master, and that, while following his directions, the injury occurred. It is the claim of plaintiff that the train was in charge of Philander Schuman, who was then acting in the capacity of road-master; that the plaintiff was acting under his orders; that it was by the direction of Mr. Schuman that the speed of the train was increased, making the work so hazardous as to result in the injury to the plaintiff. The important question, then, is, in what capacity was Mr. Schuman acting ? The road-master was Mr. Raynor.' The road had no officer who was designated as an assistant road-master; but it is claimed that the character of the duties of Mr. Schuman was such as to make him the representative of the road for the day, and that for the purposes of this case he must be treated as an assistant road-master. The record discloses that the usual employment of Mr. Schuman was foreman of section 6 at Greenville. He had three or four men under his charge, with the right to discharge them for cause, and hire other men in their places. Mr. Schuman lived in Greenville. The road-master, Mr. Raynor, also lived at Greenville. He had been sick at times, and at the time of the accident was sick at Green-ville.

Upon the morning of the day of the accident, Mr. Raynor sent Mr. Schuman out with the train upon which plaintiff was hurt. He gave him instructions in relation to-the loading, removing, and handling of the ties, and it was Mr. Schuman’s duty to report to Mr. Raynor in the evening what he had done. Mr. Schuman had been sent by Mr. Raynor with the train upon a number of occasions before this, receiving his instructions before he started out, and reporting what he had done upon his return. The trainmen consisted of the engineer and fireman, a conductor, and one or two brakemen, and three or four section foremen and their section men. It was the duty of the trainmen to handle the train, and the duty of the section foremen and the section men to handle the ties. When the ties were distributed upon a given section, the foreman of that section indicated what ties, and how thickly he wanted them distributed; and I think the record fairly discloses that he communicated his desires to Mr. Schuman, and he in turn indicated to the conductor any change desired in the speed of the train, to facilitate the distribution of the ties. I think, too, the record fairly discloses that Mr. Schuman was authorized to direct the movements of the train for the time during which he had charge of it. Does that make him vice principal? He had no right to direct when a train should be made up and sent out. The road-master had such right. He had no right to determine where the train should go, and when, except as he received his instructions from the road-master. The road-master had the right to determine both these things. Mr. Schuman had no right to hire or discharge any men except the three or four men employed on his section (though the plaintiff says he heard him say he had such authority). The road-master had authority to employ and discharge men. Mr. Schuman had no authority outside of his work as section foreman, except what was conferred upon him, for the time being, by Mr. Raynor, the road-master.

It is true, Mr. Schuman had charge of the train when the accident "occurred, but does that make him a vice principal ? Where a number of men are employed, some one must be at the head of them. ■ A section gang must have a foreman. A bridge gang must have some one in authority. Freight trains must be in charge of some one who must be obeyed. He is usually known as a conductor. Where concert of action is required, there must be some one who has authority and control over the others. It does not follow from that, however, that the one occupying a superior position to another, with the right to give instructions which must be obeyed, is a vice principal. Quincy Mining Co. v. Kitts, 42 Mich. 34. It has been repeatedly held that a foreman of a section gang and the section men are fellow-servants. Hammond v. Railway Co., 83 Mich. 334; Timm v. Railroad Co., 98 Mich. 226. It has been held that the conductor," engineer, and other employés of freight trains are fellow-servants. Stanley v. Railway Co., 101 Mich. 202. The case at bar is unlike the cases cited by counsel for plaintiff. In the case of Harrison v. Railroad Co., 79 Mich. 409 (19 Am. St. Rep. 180), the train was in charge of the assistant road-master, who had general charge of a division of the road. In the case of Erickson v. Railway Co., 93 Mich. 414, the train was in charge of one who had full charge of it, and complete control over every one employed, with full. power to hire all laborers employed; to whom alone they could make complaint. In the case of Palmer v. Railroad Co., 87 Mich. 281, the work was under the direction and control of the assistant road-master. The case at bar is not so strong a case against the defendant as Schroeder v. Railroad Co., 103 Mich. 213, in which this court held that the plaintiff could not recover. We think the last-named case disposes of this one.

Judgment is reversed. No new trial ordered.

The other Justices concurred.


text:
    DOUVILLE v. FARMERS’ MUTUAL FIRE INSURANCE CO. OF SAGINAW COUNTY
    1. Insurance — Defenses—Waiver.
    An insurance company, by placing its refusal to pay a loss solely upon the ground that the policy had been canceled, ' waives its right to assert as a defense to an action thereon that the insured had not submitted his claim to arbitration, that he was not the owner of the property insured, or that he had failed to disclose incumbrances.
    3. Same^-Mutual Companies — By-Laws—Cancellation of Risk —Public Policy.
    The power conferred upon the directors of a mutual fire insurance company by 1 How. Stat. § 4253, to make such by-laws, not inconsistent with the Constitution and laws of the State, as may be deemed necessary for the government of its officers and members and the conduct of its affairs, authorizes a bylaw requiring the secretary to cancel any risk which, in his opinion, is unsafe; and such by-law is not contrary to public policy.
    3. Same — Scope of Contract.
    The by-laws of a mutual insurance company are a part of the insurance contract, as binding upon the member as the policy itself.
    Error to Saginaw; Kendrick, J-.
    Submitted April 13, 1897.
    Decided May 28, 1897.

      Assumpsit by Henry Douville against the Farmers’ Mutual Fire Insurance Company of Saginaw county on a policy of insurance. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    He ver sed.

      D. P. Foote, for appellant.

      Crane & Crane, for appellee.
   Moore, J.

On the 27th of April, 1895, the defendant company issued to the plaintiff a policy of insurance upon a house and contents and barn and contents belonging to the plaintiff. In the policy it is stated that the buildings were on section 31. The policy contained a clause reading as follows:

“The said company have the right to cancel any policy whenever the board of directors shall deem there is sufficient cause therefor. In such case the secretary shall give the party insured, and the party to whom this policy is payable in case of loss, notice in writing or otherwise of the determination of the company to exercise this right, and upon such cancellation the secretary shall pay such member an equitable proportion of the funds remaining after payment of all losses and debts then due.”

A by-law of the company, a copy of which was contained on the back of the policy, reads as follows:

“The secretary is instructed to cancel each policy whose holder has not paid his assessment for a period of 30 days after the expiration of the time stipulated for such payment; also every risk which, in his opinion, is unsafe,” etc.

The policy also contained a provision reading as follows :

“No suit or action at law or in chancery shall be commenced or maintained against this company by reason of this policy, but all questions of dispute arising between this company and the assured, or any person claiming under him, her, or them, shall be Settled by arbitrators or referees, subject to the charter and by-laws, and their' award in writing shall be binding upon the parties, and final.”

Section 23 of the charter provides:

“In case of loss by fire, it shall be the duty of the board of directors, or some one or more of them, with the approval of a majority of them, to visit the place of the fire, to ascertain by evidence, under oath, the liability of the company, and the amount thereof; and in case of any disagreement between the board and the loser, either as to liability in whole or in part, said board shall select a suitable and disinterested person, not a member of said company, residing in said county of Saginaw, and in some town other than the one in which the loser shall reside, to act as referee; the loser shall choose another like situate as above, and the two referees so chosen may select a third,” etc.

By-law No. 10 provides:

“All applicants for insurance shall state the amount of incumbrance on the premises whereon the property to be insured is situated.”.

The record discloses that the insurance was effected through Mr. Thomas, who knew the premises. Mr. Thomas filled out the application blank. The application is silent upon the question of incumbrance and the value of the property. Plaintiff says, if Mr. Thomas asked him about the incumbrance, he stated to him just what the facts were. The wife of the plaintiff says that Mr. Thomas did ask about the incumbrance, and was told the amount of it. The buildings were not on the description of land stated in the policy. The testimony is that Mr. Thomas was familiar with the premises, saw the buildings, and was furnished with a tax receipt, for the purpose of getting a description of the premises. The premises had been insured about three years before the policy sued upon was issued.

On the night of July 25, 1895, a loss by fire occurred at the house covered by the policy. The fire was set under the house. The plaintiff thought it was set by a neighbor. There is testimony tending to show that when the officers of the company were adjusting this loss, the last of July or the first of August, they notified him there was an assessment due on. his policy, and he would find notice of it in the post-office. This assessment was made in July, and amounted to $2.74. Notice of the assessment was sent August 1st, and on the 3d of August was paid by plaintiff. The secretary of the company testified that the payment of this amount would put the plaintiff in good standing until July, 1896, though he also testified that the company had notes out that would amount to as much as the money it had on hand. On the 6th of August the secretary sent notice to the plaintiff that his policy was canceled, which notice was received by plaintiff a few days thereafter. On the 16th day of August the barn and contents were burned. The plaintiff at once notified the secretary, of the company of his loss. The secretary then told him that the company was not liable, as his policy had been canceled, and the officers of the company refused to send any adjusters to view the premises. August 24th, Mr. Crane, an attorney, appeared before the officers of the company, and asked them to adjust the loss. They denied that there was any liability against the company, upon the ground that the policy had been canceled. He then made a written demand upon them as follows:

“'Saginaw, August 24, 1895.
“Farmers’ Mutual Fire Ins. Co., Saginaw, Mich.,
To Henry Douville, of Hemlock, Mich., Debtor.
“To loss under certificate number 1,710 on account of fire which occurred on the night of August 16, 1895, by which the assured lost barn and shed; also granary; also his hay and grain in said barn and stacks; also some farm implements, — all of which'the assured insists is a valid claim against the company, and asks that the same be adjusted according to the terms and conditions of said certificate.
“Henry Douville,
“By W. E. Crane, His Attorney.”

The attorney of Mr. Douville was then told that the company denied there was any liability, and if the bylaw was of no force they wanted to know it, and Douville could sue as soon as he had a mind to- Later the officers of the company caused this letter to be' sent:

“Treasurer’s Office, Saginaw, Mich., Sept. 14,1895.
“Mr. William E. Crane.
Dear Sir: Yours of the 6th received, and I have this day presented it to the board of directors. In regard to the loss or damage to the house, we are liable, and will settle with H. Douville when he will sign a receipt. On barn and contents we are not .liable.
“Yours truly,
“Lewis Liskow, Sec.”

Suit was brought by plaintiff, October 1, 1895. The defendant pleaded the general issue, and gave notice that plaintiff was not the owner of the property described in the insurance policy; second, that said policy had been canceled; third, that the application for insurance contained a statement that there was no incumbrance upon the property, when, in fact, there was an incumbrance of $500. The testimony of Mr. Thomas, who took the insurance, tended to show that the buildings he insured in 1895 were located just the same as those he insured in 1892, and that the long 40 was worth $2,500, and that an incumbrance of $500 would not cause him to reject the property for insurance, if he had known of the incumbrance. Upon the trial of the case it was insisted, in addition to the defenses set up in the pleadings, that this suit could not be maintained, for the reason that the policy of insurance provided that no suit or action at law should be commenced against the company by reason of' this policy. After the testimony was all in, the defendant requested the court to direct a verdict in its favor. The court declined to do this, and instructed the jury to return a verdict in favor of the plaintiff for the amount claimed by him. Defendant appeals.

It is claimed bn the part of the plaintiff that the only defense which can be urged by the company is that prior to the loss the policy had been canceled, as that is the only reason that the company gave to the plaintiff or his counsel before suit was brought why the loss was not paid; that, upon the ground of waiver and estoppel, it is now precluded from taking any other position. The record discloses very clearly that, whenever anything was said to any of the officers of the company about settling or adjusting the loss, they insisted the company was not liable, and assigned as a reason why it was not liable that the policy had been canceled. It was their contention that by-law 17 authorized the secretary of the defendant to cancel the policy; that he had done so; that the plaintiff had notice of the cancellation, and the officers of the company desired to know whether the by-law had any validity or not, and said to the plaintiff, in substance, that if he thought he had a claim he had better sue it. No suggestion was made at any time before suit that the policy required the claim to be arbitrated, or that the buildings insured were not the property of the plaintiff, or that it was incumbered. The refusal to pay was based solely upon the ground that the policy had been canceled. It is said in Herman on Estoppel and Res Judicata:

“Requirements that are for the benefit of the company may be waived or modified by the company; and it is well settled, both upon principle and authority, that if a party insured calls upon the insurer to pay his loss, and the latter makes no specific objection to the form or sufficiency of such proofs of that loss as are offered, * * * but declines to pay the claim upon other and different grounds, specifying them, it will be estopped from thereafter setting up defects in the proof of loss as a defense to the claim, being presumed to have waived them. Generally, a refusal by the company to pay, or a denial of its liability, before any preliminary proofs are made as required on the face of a policy, whereby the insured is induced not to comply with the conditions of the policy in that respect, is in law a waiver of the conditions of the policy requiring such proofs to be made. * * * The doctrine that an insurance company, by putting its refusal to pay the loss upon a definite ground, different from a want of preliminary proofs, or of defect in their form or substance, waives the right to insist upon the failure to make such proof as a defense to an action on the policy, is in harmony with the elementary principle that a party who' places his refusal upon one ground cannot, after action, change it to another and different one." 2 Herm. Estop. & Res. Jud. §§ 1210, 1211; O’Brien v. Insurance Co., 52 Mich. 131; Towle v. Insurance Co., 91 Mich. 219; Lum v. Insurance Co., 104 Mich. 397.

As was said in Towle v. Insurance Co., when the defendant was asked to adjust this loss, good faith required that the company should apprise plaintiff fully of its position, and, failing to do this, it estops itself from asserting any defense other than that brought to the notice of the plaintiff. "We think the only question open to it is whether or not the policy had been canceled at the time of the fire.

It is claimed on the part of the plaintiff that the secretary had no authority to cancel the policy. It is said the act of cancellation can be exercised only by the board of directors; that, as a condition precedent thereto,, the company must account with and pay to the insured his unearned premium before cancellation. In relation to the return of the unearned premium, it may be said the record discloses that there was no unearned premium to return. The liability of the company at the time this policy was canceled was in excess of the money on hand. The statute under which this company was organized (1 How. Stat. § 4253) provides, in express terms, that the corporators or trustees or directors shall have power to make such by-laws, not inconsistent with the Constitution and laws of this State, as may be deemed necessary for the government of its officers and members and the conduct of its affairs. Section 7 of the charter provides:

“The board of directors shall have power to make and adopt such by-laws, not inconsistent with the Constitution and laws of the State of Michigan or with this charter, as they may deem necessary for the government of said company and members and the conduct of its affairs, which said by-laws the members of the company shall be bound to observe.”

We have already quoted the provision of by-law 17, and we find nothing in its provisions inconsistent with the charter provisions or the statutory provisions heretofore quoted. The by-law appeared upon the certificate of insurance issued in this case, and it is to be presumed the insured had notice of it. It has been repeatedly held that when a policy of insurance is effected in a mutual insurance company, the insured becomes a member of the corporation, and is bound by its charter and by-laws. The by-law is as much a part of the contract of insurance, and as binding upon the member, as the policy itself. Becker v. Insurance Co., 48 Mich. 610; Borgards v. Insurance Co., 79 Mich. 440.

It is urged that this by-law was contrary to public policy. It is difficult to see upon what ground this objection can be urged. A condition of things can readily be imagined when a risk becomes so hazardous that, in the interest of the insurance company, it ought to be canceled, and canceled quickly. This by-law was evidently adopted to meet just such an emergency. By becoming a member of the company the insured assented to the by-law, and, we think, is bound by it. A careful examination of the record discloses such a condition of things that we think it was the duty of the learned judge to direct a verdict for the defendant.

Judgment is reversed, and no new trial ordered.

The other Justices concurred.


author: Hookek, J.

text:
    MIOTKE v. MILWAUKEE MECHANICS’ INSURANCE CO.
    1. Insurance — Representations as to Title.
    The statement of an applicant for insurance, that he holds the property sought to be insured on contract, does not, in itself, amount to a misrepresentation of his interest, although the contract runs to himself and wife.
    2. - Same — Waiver op Conditions — Estoppel.
    The conditions of an insurance policy may be waived by the company, not only by express agreement, but by conduct which amounts to an estoppel.
    3. Same.
    Where an insurance company employs, as a solicitor of insurance, a foreigner who is not possessed of a sufficient knowledge of the English language to enable him to fill the blanks in his daily report, and the solicitor, having secured the application of a foreigner of a different nationality, with whose language he is likewise unfamiliar, leaves blank the space designed to show the holding of the applicant, being advised by his superior that, if the blanks are not filled, he will “fix it over,” and the company accepts the consideration and issues the policy, it will be estopped to assert, after a loss, that it took it for granted that the blank indicated title in the applicant by deed, and will be held to have contracted to insure the interest which the applicant actually had, notwithstanding a provision in the policy that it should be void if the interest of the insured were other than unconditional and sole ownership.
    4. Same — Insurable Interest — Husband and Wipe.
    A husband has an insurable interest in real property held under a contract running to himself and wife jointly, and the amount of his recovery does not depend upon the loss to his individual interest, but on the damage accruing to whatever interests are covered by the policy, where the wife authorized or ratified his act in procuring the insurance.
    Error to Wayne; Hosmer, J.
    Submitted April 13,1897.
    Decided May 28, 1897.

      Assumpsit by Frank Miotke against the Milwaukee Mechanics’ Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Wilkinson & Post, for appellant.

      Morse Rohnert, for appellee.
   Hookek, J.

The plaintiff is a Polander, who is unable to write or speak the English language. He was approached by the defendant’s solicitor, who proposed to insure his house, and he finally consented to allow him to do so. When he was asked to insure, he at first declined, saying that he had the place on a contract, which was not paid up, and he needed his earnings to pay upon it. Again, the solicitor says that he inquired what title he had, and plaintiff said that he had it on contract, and that he (the solicitor) so informed his superior before the policy issued. There was no written application. A loss occurred, and an interview was had, and the amount of loss was agreed on, and proofs of loss were prepared by the agent in conformity thereto. At this time it became known to the agent that the contract ran to the plaintiff and his wife jointly. The agent testified that ■this was the first knowledge that he had that the place was held upon contract, while the solicitor testified that he so informed him at the time the insurance was effected. It seems undisputed, however, that nothing was said or known by either in regard to the wife’s relation to the contract previous to the making of proofs of loss. This discovery was followed by a denial of liability by the defendant, and a transaction in which the plaintiff was pa,id $200. The defendant claims this to have been a settlement, while the plaintiff and his witnesses say that the defendant’s agent said the company was not liable, and would not pay, because he had not told that the land was held on contract, but that, as plaintiff was a poor man, he would make him a present of $200 out of his own pocket, and did so. The jury must have believed the latter version. Upon the trial a verdict and judgment for the plaintiff were rendered for the amount of the loss and interest, less the $200, which his counsel asked the jury to deduct from the amount of the loss.

The plaintiff cannot be said to have misrepresented his interest in the premises in saying that he held it on contract, and the policy does not contain anything indicating that he made any claim about it. It does not purport to insure his property in terms, but “the house situate,” etc. The defendant relies upon the condition in the standard policy which reads as follows:

‘ ‘ This entire policy shall be void if the insured has concealed or misrepresented, in wi'iting or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein, or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than unconditional and sole otvnership, or if the subject of insiirance be a building on ground not oivned by the insured in fee simple.”

The day has gone by in Michigan for successfully contending that the mere acceptance of a policy containing a condition like this makes it conclusive against the holder, who accepts it in ignorance of the clause, and whose title does not conform to the strict letter of the condition. Even in the case of Schroedel v. Insurance Co., 158 Pa. St. 459, which counsel for the defendant cite, there is a plain intimation that the condition cannot stand against fraud on the part of the company, or mistake; and there are many cases that hold that these conditions may be waived, not alone (as counsel contend) by express agreements to waive, but by conduct which amounts to an estoppel.

There is evidence in this case that the solicitor asked the agent whether it was necessary to fill the blanks in the daily report in relation to the condition of the property, and was told that it was, to which the solicitor, who was a German, replied, “ Well, I can’t make that; I understand not so much English,” etc., and was answered, “All right; we will fix it over.” The agent testified:

“We insist on a report containing the statement of the nature of the holding. We take it for granted that the land is held by deed, or else the agent has to insert it, and make an indorsement in the front part of the policy. There is a blank to state what the holding of the property is. We take it for granted that it is owned by deed in that case.”

The unfairness of indulging in such a practice, in case of an ignorant person who is unacquainted with the English language, who takes insurance through a solicitor selected by the defendant, who is also a foreigner, and so poorly equipped for his business as to be unable to make out the papers required of him, and who can himself communicate with the person he solicits only through an interpreter, is manifest. Fair dealing dictates that the agent should see that the information required, and which is necessary to determine whether the policy is valid or not, should appear on the face of the papers. Neither he nor the home office should accept such documents and the consideration, relying upon the right to treat the policy as void if it shall later be discovered that a quibble can be raised over some condition in the policy. And there is nothing unjust in holding that such conduct justifies the inference that the insurer was content to waive the condition, and treat the policy as a contract to insure the interest which the applicant actually had. See Sibley v. Insurance Co., 57 Mich. 14; Castner v. Insurance Co., 46 Mich. 18; O’Brien v. Insurance Co., 52 Mich. 135; Guest v. Insurance Co., 66 Mich. 98; Hoose v. Insurance Co., 84 Mich. 321. It is contended that, at the least, the defendant was entitled to go to the jury with the question; but we think the undisputed evidence justified the instruction by the learned circuit, judge that “this was a valid policy at its inception, and that it was-not invalidated by the assignment of the land contract, which was ineffective.”

The question of settlement was left to the jury under a proper charge.

It is" contended that the plaintiff should be restricted to the recovery of one-half the value of the building, inasmuch as the holding was a joint one, and his wife had an equal interest with himself. Some interesting questions are suggested by the claim. It is settled that the husband was, in one sense at least, the owner of more than an unqualified undivided half that would entitle him to that and no more on partition. He has the right to a joint occupancy for life, with a right of survivorship. It is true, however, that he had no greater interest than his wife, and in that sense, may be said to have had a half interest. In Manhattan Ins. Co. v. Webster, 59 Pa. St. 227 (98 Am. Dec. 332), it is held that a partner has an insurable interest to the amount of the entire stock; and in Trade Ins. Co. v. Barracliff, 45 N. J. Law, 543 (46 Am. Rep. 792), it was determined that ‘ ‘ a husband, in possession and enjoyment with his wife of her real and personal property, with an inchoate right of curtesy, has an insurable interest in both, and, where the intention was evinced to insure the whole ownership, may recover the whole loss.” This case contains an interesting discussion of the subject, and asserts the doctrine that the amount to be recovered will depend, not on the loss happening to the individual interest of the assured, but on the damage accruing to whatever interests are covered by the policy, so far as the assured represents those interests, whether as his own or by the precedent authority or subsequent ratification of others. See Waring v. Insurance Co., 45 N. Y. 606 (6 Am. Rep. 146). We think the doctrine applicable here.

We find no error in the case, and the judgment is affirmed.

The other Justices concurred.


text:
    McKENZIE v. LAUTENSCHLAGER.
    1. Husband and Wife — Alienation of Affections — Witnesses.
    Statements made by a wife, not in the presence of defendant, and letters written by her, may be admissible, in an action by her husband for alienating her affections, for the purpose of showing her state of mind towards him.
    3. Same.
    Under 3 How. Stat. § 7546, a husband is disqualified to testify, in an action brought by him for the alienation of his wife’s affections, to conversations between himself and wife, not occurring in the presence of defendant, unless the wife consents.
    Error to Monroe; Kinne, J.
    Submitted April 14, 1897.
    Decided May 28, 1897.
    Case by Burton McKenzie against John J. Lautenschlager and Mary Lautenschlager for alienating the affections of plaintiff’s wife. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Landon & Lockwood, for appellants.

      Charles A. Golden and Edward B. Gilday, for appellee.
   Moore, J.

Plaintiff recovered a judgment against the defendants for alienating the affections of the wife of the plaintiff, who was a daughter of the defendants. Defendants appeal. It is their claim that a verdict should have been directed in their favor; citing White v. Ross, 47 Mich. 172. The testimony is conflicting, and we cannot say that there was no testimony, tending to establish plaintiff’s case, that should have been submitted to the jury-

Plaintiff was allowed to introduce in evidence statements made by his wife not in the presence of defendants, and letters written by her. The wife was afterwards called as a witness by the defendants, and upon objection by the plaintiff her testimony was excluded. The. defendants say this resulted in the plaintiff getting the benefit of admissions and statements made by the wife in his favor, without giving the defendants an opportunity to have the version of the wife, which would have been in their favor, and that this was error; citing White v. Ross, 47 Mich. 172. Under a later case, we think the testimony was admissible for the purpose of showing the state of mind of the wife towards the husband. Perry v. Lovejoy, 49 Mich. 529.

Plaintiff was allowed to testify to conversations between himself and his wife which did not occur in the presence of defendants, the record not showing that the wife consented to his testifying. This was contrary to section 7546, 3 How. Stat., as repeatedly construed by this court. Maynard v. Vinton, 59 Mich. 139; Hitchcock v. Moore, 70 Mich. 112 (14 Am. St. Rep. 474); Rice v. Rice, 104 Mich. 371.

The other assignments of error do not call for discussion, as we do not think they were well taken.

Judgment reversed. New trial ordered.

The other Justices concurred.


text:
    VINCENT v. HANSEN.
    1. Chattel Mortgages — Sale—Fraud—Estoppel.
    A vendor of goods is not estopped to reclaim them ground that they were procured by fraud, by reason of his having had notice, at the time of sale, of a mortgage given by the vendee to secure a, pre-existing debt, and covering accessions to the stock. on the
    2. Same — Judgment—Ees Judicata.
    A judgment in replevin in favor of the vendor of goods, based upon the fraud of the purchaser, is not res judicata as to one to whom the goods were mortgaged before the claim of fraud was made.
    Error to Manistee; McMahon, J.
    Submitted April 14, 1897.
    Decided May 28, 1897.
    Replevin by William Vincent against John Hansen. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      F. F. Withey, for appellant. •

      Peter Doran (McAlvay & Grant, of counsel), foxappellee.
   Hooker, J.

The Reeder Bros. Shoe Company brought replevin against Carpentier for goods which the formexsold to the latter in May, 1895, claiming that they were procured through fraxxd. The action was commenced on December 4, 1895, on which day the Reeder Bros. Shoe Company received the goods from the sheriff, and gave the statutory bond. On the same day or the next, the Reeder Bros. Shoe Company sold these goods to Hansen, the defendant, from whom they were replevied by the plaintiff, December 5, 1895. The plaintiff’s claim is based on two chattel mortgages, one of which was given him by Carpentier on November 25, 1895, for $500, for rent then and thereafter to become due, while the other was assigned to him by the mortgagee after the replevin suit by the Reeder Bros. Shoe Company was begun. This mortgage was given in 1892, and covered Carpentier’s stock of goods, and such goods as might thereafter be added thereto, and was given to secure a pre-existing indebtedness of $1,400. The Reeder Bros. Shoe Company knew of the existence of this mortgage. The first replevin case was tried in September, 1896, and a verdict was rendered and judgment duly entered for the plaintiff. This action was brought on for trial subsequently, but at the same term, and the judgment in the other suit was interposed as a bar, and the court thereupon directed a verdict for the defendant.

Error is assigned upon several rulings, but they are all covered by the question mentioned. As no question is raised regarding it, we shall discuss the case upon the. assumption that the judgment rendered two days before the trial was offered in evidence under proper pleadings. The judge held that these mortgagees were privies to the mortgagor; that their rights would be no greater or other than his; that, if he got no title tor these goods, he could convey no title to them; and that, when the Reeder Bros. Shoe Company’s title was adjudicated against him, it was adjudicated against them. The learned circuit judge expressed doubt upon the question, and recognized the impropriety of enforcing this doctrine against a purchaser for value before the adjudication, and without notice.. The claim is made that the Reeder Bros. Shoe Company should be estopped from asserting title as to the bank mortgage, of the existence of which it was advised, as the bank might be supposed to rely upon accessions, to make good depletions by sales; but we -think there is no force in this. The mortgage, when given, was for a past-due indebtedness, and was not good against a claim for fraud as to the goods then on hand.; and we think it would be no better as to accessions. Schloss v. Feltus, 108 Mich. 525. The other mortgage may have been on a different footing, as it was given to secure rent to accrue later, and, to some extent, may have been based upon a valuable consideration, within the meaning of the term as applied to such cases. But however that may be, and although it should be held that by neither mortgage did Mr. Vincent get a better title than the mortgagor had, we are of the opinion that he should not be held concluded by the judgment in the case to which he was not a party.. Both mortgages were given before the claim of fraud was made, and the mortgagees had the right to try the question of the mortgagor’s title. To hold otherwise would be to make it possible for collusion between the debtor and creditor to defeat a mortgage, without the possibility of his defending his claim. It is suggested that these were cross replevins within the statute, but we think not. Vincent’s claim is one personal to himself.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.