text:
    UHL v. WEIDEN.
    Execution — Lien—Recording Laws — Resulting Trust — Agency.
    3 Comp. Laws 1897, § 9224, providing that the lien of a levy of execution shall, after the filing of notice with the register of deeds, be valid against “prior grantees” of whose claims the execution creditor had no notice, does not enable an execution creditor to obtain by his levy superior rights in land the title to which was taken by the debtor in his own name without authority from the real purchaser, as whose agent he was acting, even though the owner delays until after the levy the recording of a deed from the agent to himself, which, upon learning the facts, he caused to be executed, since, independent of his title as grantee under such deed, he has an enforcible title by virtue of 3 Comp. Laws 1897, § 8837, which provides that a trust shall result in favor of the person furnishing the consideration for a deed when the alienee therein takes title in himself without the knowledge or consent of such person.
    Appeal from Kent; Grove, J.
    Submitted January 5, 1900.
    Decided January 23, 1900.
    Bill by David E. Uhl against Hubert Weiden and others to remove a cloud from title, and to correct a description in a deed. From a decree for complainant, defendants appeal.
    Affirmed.

      Frank W. Hine, for complainant.

      Henry J. Felker, for defendants.
   Hooker, J.

On July 16, 1898, the complainant had a contract for the purchase of certain lots in Grand Rapids from the Kent County Savings Bank, and had employed one Herrington, a real-estate dealer of that city, to negotiate sales of the same. Henderson and wife owned some lots, upon which they resided, and Herrington negotiated a trade between them and the complainant, Uhl, who accepted a proposition to trade some of his lots for the Henderson property, and authorized Herrington to make the trade. He caused the Kent County Bank to make a deed to him, and he executed a deed to the Hendersons. He directed Herrington to deliver this, and take a deed for the Henderson property. Herrington took this deed to himself, instead of to Uhl, without the latter’s knowledge, explaining it by saying he wanted it to appear that he was doing a large business, and that he was in the habit of taking deeds to himself under similar circumstances, and then deeding to his principal, which he would do in this case, and which he did. The deed to Herrington was immediately recorded, by Uhl’s direction, while the deed to Uhl was not placed of record until July 23, 1898. Meantime the other defendants, who had a judgment against the Herringtons, levied an execution upon the land, and caused the notice provided for by statute (3 Comp. Laws 1897, § 9224) to be filed. The complainant’s bill is filed to remove the cloud upon his title caused by the levy, and incidentally to correct the description in the deed from Herrington, which described the land as “lot one, and the west twelve feet of lot of Gerritt Dupree’s addition, ” instead of “lot one, and the west twelve feet of lot two, of Gerritt Dupree’s addition.’

The statute (section 9224) is as follows:

The People of the State of Michigan enact, That no levy by execution on real estate, made after this act shall take effect, shall be valid against bona fide conveyances made subsequent to such levy, until a notice thereof, containing the names of the parties to the execution, a description of the premises levied upon, and the date of such, levy, shall be filed by the officer making the same in the office of the register of deeds of the county where the premises are situated, and such levy shall be a lien thereon from the time when such notice shall be so deposited; and the lien thus obtained shall, from the filing of such notice, be valid against all prior grantees and [mortgagees] mortgages of whose claims the party interested shall not have actual nor constructive notice.”

By taking title to himself, Herrington perpetrated a legal fraud upon Uhl, though it appears to have been accompanied by no design to wrong or injure him. Had this levy been filed at once, before Uhl learned of Herring-ton’s action, or before he had an opportunity to protect himself by legal proceedings and lis pendens, we should doubt the efficacy of this statute to give the levy priority over Uhl’s title. Indeed, he would not be within the letter of the statute, for in such case it could not be said that he was a grantee of Herrington. It follows that the entire support for defendants’ claim is the fact that complainant took a deed from Herrington, — thus becoming his grantee in a technically legal sense, — instead of resorting to a court of justice to compel the declaration of a trust in his favor and a conveyance of the estate. It would seem that the law should permit the voluntary conveyance which it would otherwise compel, and that the complainant should not be permitted to lose, or the defendants to gain, by a laudable act upon the part of .Herring-ton, having for its object the conveyance of a naked legal title to one who had already the right to every substantial interest in the property conveyed. 3 Comp. Laws 1897, § 8837; Connolly v. Keating, 102 Mich. 1, and cases cited.

It is urged that the act of Herrington in taking the deed to himself was ratified by the complainant; but we are not impressed by this contention. It is obvious that he never intended that Herrington should take title; but, after he had taken it without his consent, and against his rights, he permitted him to take the shortest method of correcting the wrong. What force there is to the defendants’ claim is due to complainant’s neglect to record his deed for a few days; and had the levy been followed by a sale, and had the land fallen into the hands of a bona fide purchaser for value, it is possible that this delay might have proven fatal to the complainant’s claim under other statutes. But here there is no bona fide purchaser for value, but an execution creditor, who has lost nothing, insisting upon applying the property of A. to the payment of his claim against B. Under some circumstances this statute might require this, but its application should not be enlarged by construction. So far as the naked legal title is concerned, this deed may be declared void as against the levy; but the complainant has á better and underlying' title, one not created by this deed nor affected by it, and one not within the letter nor the spirit of the statute. He is in a different position from a purchaser from Herrington, taking title under the deed from Herrington only. Wipe out his deed, and he still has a superior claim. The case of Hawkins v. Willard, (Tex.) 38 S. W. 365, is substantially like the present case, and it was held that the recording act did not apply.

It is claimed that the record shows that Herrington concealed from Henderson Uhl’s connection with the transaction for fraudulent purposes, and that this was the reason that the deed was taken to Herrington. Henderson is not complaining, and, if he were, he, and not these defendants, should be relieved, if either. It is beyond controversy that this land was paid for by Uhl, and Herrington had no interest in it. The deed taken in his name was held in trust, under the statute cited, for complainant ; and, if we are not wrong in our view of the law, that is decisive against the only defense that the defendants can make.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    FLYNN v. THIRD NATIONAL BANK OF DETROIT.
    1. Banks — Insolvency—Negligence of Directors — Bill for Accounting — Parties.
    A bill will lie in equity, on behalf of an insolvent bank, to compel the directors to account for losses sustained by reason of their negligent administration of the bank’s affairs; and it may be brought by any shareholder, where the receiver is a director, and therefore a proper defendant to the bill.
    2. Equity Pleading — Demurrer—Multifariousness.
    A bill in equity will not be held bad, on demurrer, for multifariousness, unless the defect is pointed out in the demurrer.
    3. Same.
    A general demurrer to a bill cannot be sustained where there is matter in the bill upon which any equitable relief can be granted.
    Appeal from Wayne; Lillibridge, J.
    Submitted January 9, 1900.
    Decided January 23, 1900.
    Bill by James W. Flynn against the Third National Bank of Detroit, Joseph L. Hudson, individually and as receiver of said bank, and others, directors therein, for an accounting. From an order overruling a demurrer to the bill, defendants appeal.
    Affirmed.

      Charles S. McDonald (Edwin F. Conely, of counsel), for complainant.

      De Forest Paine and Wisner & Harvey, for defendants.
   Hooker, J.

The Third National Bank of Detroit went into the hands of a receiver, appointed, as is usual in such cases, by the comptroller of the currency, about February 1, 1894. Joseph L. Hudson, a shareholder and director, was named receiver. The bank is said to have been hopelessly insolvent, and the shareholders have since been assessed to an amount equal to 84 per cent, of its capital stock. The complainant in this suit was one of the shareholders, and his bill is filed, on behalf of himself and other shareholders, against the receiver and others, who at various times held the office of director while the bank was doing business, alleging that the loss of the assets of the bank and its insolvency are due to their neglect and maladministration of its affairs. The bill prays that the several defendants he adjudged responsible for the consequent losses to the complainant and other shareholders, and that the amount for which each should be held liable be determined, and the defendants be decreed to pay such amounts to a receiver to be appointed by the court for the benefit of the shareholders, creditors, and others entitled thereto. The bank, its directors, and the receiver are made parties defendant. Three have answered. The others have demurred. The questions raised are:

1. Want of equity in the bill.

3. That the liability alleged is an asset of the bank, which would go to the present receiver, who is not subject to the jurisdiction of the court in respect to the management and disposition of such assets.

The bill charges, among other things, that the defendants’ negligence in tbe management of the affairs of the bank made- its ruin possible, and that it would have been prevented had they been diligent; that they willfully or negligently permitted the money of the bank to be fraudulently converted, wasted, and squandered, and permitted irresponsible and insolvent persons to overdraw their accounts, and to borrow money without adequate security, whereby large sums were lost, and knowingly or negligently permitted the withdrawal of a portion of the capital stock by paying dividends in excess of the earnings; that, through their negligence, the cashier was able to abstract and misapply the funds of the bank, etc. Many other allegations of negligence are found in the bill. Some of them are even more general than these, while others are not” shown to have caused or contributed to the loss of the property of the bank. Some of those first mentioned we consider sufficiently specific, under the circumstances of the case. The case of Loud v. Winchester, 64 Mich. 23, is in point, where it is said:

“In an action for an accounting by a trustee for the alleged maladministration of the trust, it is not reasonable to require the complainant -to set out in his bill the misdoings which he could not be expected to fully understand until he had obtained disclosures, the beneficiaries not being generally presumed to possess such knowledge from independent sources. In such a suit, any testimony throwing light on the trustee’s management of the trust bears directly on the performance of this duty, and may be considered in taking the account and in determining the view to be taken of the conduct of the trustee.”

We find it unnecessary to discuss the degree of negligence which will justify a court in holding directors of a bank liable for losses. It is enough to say that the bill charges negligence in various things, and that loss resulted therefrom. That an action for such negligence may be brought on behalf of the bank we have no doubt, and that ordinarily it should be brought by the receiver is admitted. Here, however, the receiver is a director and a defendant. In cases where a receiver refuses to bring an action, it may be brought by shareholders on behalf of the bank; and we think that, where the receiver is chargeable with other directors, it cannot be supposed that he would bring an action against himself, and his refusal should not be a prerequisite to the filing of a bill. See Brinckerhoff v. Bostwick, 88 N Y. 52, 99 N. Y. 185, 105 N. Y. 567; Barr v. Railroad Co., 125 N. Y. 272; Ettlinger v. Carpet Co., 142 N. Y. 193 (40 Am. St. Rep. 587); O'Brien v. Fitzgerald, 143 N. Y. 377; Sage v. Culver, 147 N. Y. 246; Leslie v. Lorillard, 110 N. Y. 519 (1 L. R. A. 456); Hawes v. Oakland, 104 U. S. 450; Bengley v. Wheeler, 45 Mich. 493.

It is urged that the bill is multifarious, but no such defect is pointed out in the demurrer. The rule is settled that a general demurrer cannot be sustained where there is matter in the bill upon which any equitable relief can be granted.

The decree of the circuit court is affirmed, with costs, defendants to have the usual opportunity to answer.

The other Justices concurred.


text:
    MONJE v. CITY OF GRAND RAPIDS.
    1. Personal Injuries — Municipal Corporations — Presentation op Claims.
    A charter provision requiring persons claijning damages from a city for personal injuries to furnish the common council with the names of witnesses within a stated time after the injury occurred imposes no duty upon the claimant to produce such witnesses before the council.
    2. Same — Defenses—Proximate Cause.
    In an action against a city for injuries sustained by falling into an unguarded excavation at night when attempting to board a street car, the city cannot escape liability upon the ground that the company’s negligence in stopping the car so near the excavation was the proximate cause of the injury.
    3. Same — Defective Street — Liability of City
    A city being, under its charter, responsible for constructing sewers and their connections, it is liable for injury to one falling into a trench for a sewer connection negligently left uncovered, though the work was done by a licensed plumber, who alone had notice of the defect.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted January 9, 1900.
    Decided January 28, 1900.
    Case by Elizabeth Monje against the city of Grand Rapids for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      L. K. Salsbury, for appellant.

      Carroll, Turner & Kirwin, for appellee.
   Hooker, J.

The defendant appeals from a judgment against it in an action for a personal injury. Our understanding of such facts as are important to the consideration of the questions before us is that upon Ottawa street, running north and south, a trench was opened for some distance, for the purpose of repairing a sewer, by a contractor named Owens, who seems to have no interest in this case. A trench, extending from abutting property upon the east side of the street to the sewer, had been opened for the purpose of making drain connections. This was done by a plumber, Van Rossum, who was licensed by the city. There were two street-car tracks upon this street, the easterly one only .being in use that day. The intersecting trench opened by the plumber was open between the two tracks. A car came from the south, and stopped opposite this trench, a short distance north of Mason, an intersecting street. It was an open car, with a running-board upon its side. . The plaintiff came from the southwest, and, instead of taking the cross-walk to the east side of the tracks, took a diagonal course northeasterly, directly towards the car, and. attempted to board it on the west side, but fell into the trench between the tracks, whereby she was injured. It was in the night, and there is some testimony that indicates that the lights were not burning in the car.

Among the alleged errors are the following:

1. That plaintiff did not comply with the requirements of the charter in regard to the presentation of claims, and therefore the court erred in refusing to direct a verdict for the defendant.

2. That it was negligence in the car company to stop its car near the hole, instead of nearer Mason street, and therefore that the unguarded trench was not the proximate cause of the injury, and that the court erred in declining to so direct the jury.

3. The charter provides that the board of public works shall have power to license plumbers, and Van Rossum was licensed by them; and it is contended that this did not make the city responsible for the plumber’s negligence in leaving an open, unlighted trench.

4. It is maintained that, unless Van Rossum can he said to have acted as the city’s agent, there was no notice of the dangerous condition of the way.

5. The contract and bond of Owens were admitted in evidence, and it is alleged that this was erroneous.

6. It is said that the jury should have been directed to render a verdict for defendant upon the ground of plaintiff’s contributory negligence.

Sections 6 and 7 of title 4 of the charter (Act No. 374, Local Acts 1897) provide:

“ Sec. 6. If any claim for unliquidated damages is made against said city for injuries to persons or property by reason of any defect in sidewalks, streets, highways, cross-walks, bridges, alleys, courts, or public grounds or places in said city, or any claim is made against said city in an action of tort, the claimant in such cases shall present the same to the common council within sixty days after the injury or wrong occurred, which claim shall state the place where the injury or wrong was received, the names of the claimant’s witnesses concerning the same then known to the claimant, a description of the injury sustained, and a succinct statement of the facts constituting such . claimant’s demand against said city, and any further statement that may be required by said common council; and any such claim shall be void unless such claimant shall bring an action against said city for such demand within a period of one year from and after said common council has had a reasonable time to investigate and pass upon such claim, which reasonable time shall not exceed a period of thirty days.
“Sec. 7. It shall be a sufficient bar to any action or proceeding brought in any court for [the] recovery of any such claim against said city, that such claim has never been presented to the common council, or has not been presented within the time above limited, or that the action or proceeding was brought before said common council had such reasonable time to investigate and pass upon such claim, as hereinbefore stated, oy that such action or proceeding was not brought within the period of one year after the time elapsed for the common council to investigate and pass upon such claim, as hereinbefore stated.”

It appears that the plaintiff filed a written claim, duly verified, stating the facts at length, giving the names of a number of persons alleged to be her witnesses concerning the injuries. Her counsel, husband, and son met and discussed the subject with the committee of the common council, who laid the matter over a week; and, according to the statement of a member of the committee, the plaintiff’s counsel was to produce further witnesses of the transaction, but they were not produced, and subsequently the action was commenced. The claim was filed September 7th, and action was commenced late in October. We are of the opinion that the plaintiff did all that was required of her by law.

The doctrine of proximate cause has, in our opinion, no application under the facts proved. It is true that, if the car had been somewhere else, she would not have gone near the open trench; but it would be difficult to imagine a case where one would fall into a trench but for the fact that some other circumstance led him to go near enough to fall into it.

The city has the responsibility of constructing sewers and their connections, under the charter, whether it be done by its own employés, or by persons licensed to dig up its streets. Thus, in Hayes v. City of West Bay City, 91 Mich. 418, it was so held where a building was being moved under supervision of the city; and again in Joslyn v. City of Detroit, 74 Mich. 458. In Gavett v. City of Jackson, 109 Mich. 414 (32 L. R. A. 861), the distinction between the cases where the cfiy is, and those where it is not, an active agent in causing danger, is alluded to; citing the case of Hutchinson v. City of Ypsilanti, 103 Mich. 12, where it was pointed out. In Baker v. City of Grand Rapids, 111 Mich. 447, Mr. Justice Montgomery alluded to Southwell v. City of Detroit, 74 Mich. 438, stating that the rule is there laid down “that a city, when performing a duty imposed upon it by law, cannot shift the responsibility for conditions created by itself in the performance of such duty upon a contractor, and rid itself of its obligations.” Hamilton v. City of Detroit, 105 Mich. 514. These cases seem to us to dispose of the claims that the city was not responsible for the act of the plumber, and that it had no notice-of the defect.

• The testimony in relation to Owens, if inadmissible, was harmless-

The question of contributory negligence was for the jury; such negligence not being, in our opinion, conclusively proved.

It remains to say that we find no error, and the judgment is affirmed.

The other Justices concurred.


author: Grant, J.

text:
    MERCHANTS’ NATIONAL BANK OF TOLEDO v. BARRETT.
    Garnishment — Assignment—Indebtedness.
    P., the owner of a lumber contract worth $1,000 and upwards, assigned the same, for a consideration of $10, to B., who took it subject to the claim of M. After being served with garnishee process, B. assigned the contract to M., who repaid the $10, and credited the amount realized from the lumber upon his claim against P. Held, that B. was improperly held liable as garnishee of P.
    Error to Kent; Grove, J.
    Submitted January 9, 1900.
    Decided January 23, 1900.
    ■ Garnishment proceedings by the Merchants’ National Bank of Toledo, Ohio, against William E. Barrett, as garnishee of James A. Panting. From a judgment for plaintiff, defendant brings error.
    Reversed.
    This case was tried before the court without a jury, and the following findings made:
    “1. December 16,1895, Dennis Bros., of Grand Rapids, Mich., who were then the owners of a certain quantity of lumber situated at Mantón, Mich., sold said lumber to the J. S. Eck Company, of Toledo, Ohio, for $4,315.79. The J. S. Eck Company paid down on the purchase price $2,000. James A. Panting, principal defendant, after-wards purchased the interest of the J. S. Eck Company in the lumber. February 18, 1896, Dennis Bros, made a written contract with defendant Panting, by the terms of which C. S. Bacon & Co., of Grand Rapids, were to sell said lumber on a commission of 50 cents per thousand, and out of the proceeds to pay the remainder of the purchase price due Dennis Bros., and the balance to defendant Panting. March 3, 1896, said contract between Dennis. Bros, and defendant Panting was assigned in writing, indorsed thereon by defendant Panting, to garnishee defendant, William E. Barrett; and at the time the affidavit for the writ of garnishment against said garnishee defendant^ William E. Barrett, was made, and said writ of garnishment was issued and served, namely, the 25th day of March, 1896, said garnishee defendant held said contract by virtue of said assignment.
    “2. At the time said assignment was made to said garnishee defendant, said principal defendant applied to said garnishee defendant for a loan of $10, and offered said contract as security. Said garnishee defendant paid • said principal defendant $10 at that time, and took said assignment.
    “3. At the time said assignment was made, said contract was worth the sum of $1,088.64, after the payment of the balance due on the purchase price.
    “4. At the time said assignment was made, said principal defendant was indebted to the plaintiff in the sum of $942.2? on three promissory notes made by said principal defendant, by the name of James A. Panting & Co., payable to the order of the J. S. Eck Company. Said principal defendant was also indebted to the Mathias Planing-Mill Company, of Dayton, Ohio, to the amount of $2,100 or over.
    “5. Subsequent to the 25th day of March, 1896, while the said contract was in the possession of the said garnishee defendant, Barrett, the principal defendant agreed with the Mathias Planing-Mill Company to assign, said contract to it, to apply on his indebtedness to said company, with the understanding that, if the money realized from the sale of said lumber was more than sufficient to pay such indebtedness, the surplus should be paid to said principal defendant; and on the 15th of May, 1896, said garnishee defendant assigned said contract to the Mathias Planing-Mill Company, and received therefor $20, — being the $10 which he had loaned to said principal defendant, and $10 which he had expended for attorney’s fees on account of this suit.
    “6. The Mathias Planing-Mill Company realized from the sale of said lumber, after paying the balance of the purchase price due Dennis Bros., and all expenses of the sale and handling, the sum of $1,088.64, which the said Mathias Planing-Mill Company credited to the said Panting upon its claim against him of $2,100 and over, in pursuance of its agreement between it and the said Panting.
    “7. James A. Panting did business under the name of James A. Panting & Co. He had no partner. The firm of William E. Barrett & Co. consisted of William E. Barrett alone.

      “8. Said garnishee defendant was not a bona fide purchaser of said contract for value,' but, at the time said writ of garnishment was sued out and served, held said contract as security for a loan of 110, which was subject to payment, and which has since been paid; and he is therefore liable to the plaintiff, as garnishee defendant, for the value of said contract, namely, the sum of $1,088.64.”
    Exceptions are taken to the finding of facts. If the finding of facts is erroneous, the finding of law must fall.

      Dunham & Dunham (George P. Wanty, of counsel), for appellant.

      Hatch & Wilson, for appellee.
   Grant, J.

(after stating the facts). The theory of the plaintiff is that defendant Barrett had property, moneys, goods, chattels, credits, or effects in his hands or under his control belonging to the principal defendant, Panting. It is also the theory that the assignment by Panting to Barrett was merely as a mortgage security. If it be conceded that this was a mortgage arrangement, and that Barrett might be held for whatever property should come into his hands under the assignment, still Barrett would not be liable, provided his security was made subject to the claims of the Mathias Planing-Mill Company. The mortgagee or other security holder cannot be held liable as garnishee until he has foreclosed his security, and received either the property or money in excess of the money loaned. Whether Barrett could be held liable as garnishee if he held the contract as security merely, we need not discuss; for we are clearly of the opinion that Mr. Barrett was a bona fide purchaser of this contract, subject to the claims of the Mathias Planing-Mill Company and Dennis Bros. It is undisputed that these two claims amounted to more than the value of the property, or what was realized from the sale thereof under the contracts. Mr. Barrett made disclosure that he had no property in his hands belonging to Mr. Panting, and that he was not indebted to him. Subsequently Mr. Barrett was made a witness for the plaintiff. Mr. Barrett testified positively that he. paid Panting the $10 in absolute purchase of the contract, subject to these claims. In this he is corroborated by the only other witness who was present when the arrangement was made. The assignment was made in March, and Panting was preparing to go to Panama or South America, and went shortly after the- assignment, and before service of the garnishee process. He knew that there could not be much, if anything, left in the contract after these two claims were paid. He offered to sell the residue for $10, and Barrett purchased. Whether or not there was an absolute,'written assignment to the Mathias Planing-Mill Company prior to the assignment to Barrett, is immaterial. If Panting informed Barrett that his assignment was subject to that claim, and he purchased with that understanding, Barrett was justified in taking it subject thereto, and it would not affect the validity of his purchase. He had a right to agree that the debt of the Mathias Planing-Mill Company should be paid before he was entitled to anything under his assignment. It is true that the assignment from Barrett to the Planing-Mill Company is dated subsequent to the assignment by Panting to Barrett, and subsequent to the service of the garnishee process. But, if this was done by virtue of a prior agreement, — and we think the evidence clearly shows that it was, — it is valid. If defendant Barrett is not a bona fide purchaser, he is guilty of perjury. We do not think there is any substantial testimony in the case to contradict him.

Judgment reversed, and entered in this court for defendant Barrett.

The other Justices concurred.


author: Moore, J.

text:
    KARREMAN v. KARREMAN.

    Divorce — Appeal—Evidence.
    A decree of divorce, based on conflicting testimony taken in open court, was affirmed.
    Appeal from Kent; Grove, J.
    Submitted January 11, 1900.
    Decided January 23, 1900.
    Bill by Cora Karreman against Adrian R. Karreman for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      Wolcott & Ward, for complainant.

      Gerrit H. Albers, for defendant.

       Rehearing denied May 2, 1900.

   Moore, J.

A bill for divorce was filed by complainant in this cause, charging extreme cruelty on the part of the defendant. The testimony was taken in open court, and decree rendered by the circuit judge in accordance with the prayer of the bill. The questions involved are purely questions of fact, the discussion of which would not profit any one. The trial court saw the witnesses. The decree is justified by the evidence, under the rulings of this court in the following cases: Warner v. Warner, 54 Mich. 492; Hoyt v. Hoyt, 56 Mich. 50; Whitmore v. Whitmore, 49 Mich. 417; Briggs v. Briggs, 20 Mich. 34; Whitacre v. Whitacre, 64 Mich. 232; Cooper v. Cooper, 78 Mich. 316; Be Zwaan v. Be Zwaan, 91 Mich. 279; Nicholas v. Nicholas, 50 Mich. 162; Kirkland v. Kirkland, 111 Mich. 166; Bailey v. Bailey, 121 Mich. 236.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    PRICE v. MARTHEN.
    Contracts — Parol Evidence.
    One who signed, without reading, a contract which provided unconditionally for the purchase of a nickel-in-the-slot musical instrument, knowing'that the contract was to he for. warded by the agent who took the order to the dealers, cannot show, in defense to an action for the price, a prior parol agreement between the agent and himself that he should take the instrument and operate it upon commission.
    Error to Ogemaw; Sharpe, J.
    Submitted January 11, 1900.
    Decided January 23, 1900.

      Assumpsit by Milbert E. Price and Willard E. Main, copartners as the Equitable Manufacturing Company, against William B. Marthen, for goods sold and delivered. Erom a judgment for defendant, plaintiffs bring error.
    Beversed.
    ■ Plaintiffs were partners, doing business under the firm name of the Equitable Manufacturing Company. Their business was the manufacture and sale of musical instruments known as the “American Musical Automatons.” Their place of business was at Iowa City, Iowa. The sale was made through an agent. The contract was in writing, signed by both parties, and was executed in duplicate, —one sent by the agent to the company, and the other delivered to, and retained by, the defendant. The body of the contract was printed. The price was $135. The instrument was put in operation by dropping a nickel in the slot. The contract was forwarded to the plaintiffs. The instrument shipped was received and placed in defendant’s saloon, but, as he claimed, failed to work. He thereupon notified the plaintiffs by letter, and subsequently xeshipped the instrument to them. ’ He refused payment, and plaintiffs brought this suit in assumpsit to recover the purchase price. Attached to the plea of the general issue was a notice that the contract was obtained by fraud and false representations; that defendant was drunk and intoxicated, and in no condition to know what he was doing; that he did not know the contents of the contract, and did not read it; and that the machine was not as represented.

      F. L. Snodgrass, for appellants.

      Boss & Harris, for appellee.
   Grant, J.

(after stating the facts). There is no testimony that defendant was intoxicated, or that there was fraud or false representation, unless it be that the agent represented to defendant that he could have the machine on commissions. Under the defendant’s own testimony, all the talk about commissions was had before the contract was executed. The defendant had ample opportunity to read it. It was his own folly if he chose not to do so. It was not a long one. He knew that it was to be sent by the agent to the plaintiffs, to be acted upon by them. It contained definite terms of payment, and provided for an absolute sale. It was unambiguous. There was nothing in it about commissions. The law does not protect one against his own folly. The case is clearly within the rule of law that written contracts cannot be varied by evidence of prior or contemporaneous parol agreements. The court should have instructed the jury that the written contract in this case controlled.

Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    DAVIS v. BENEDICT.
    Deeds — Erroneous Description — Reformation — Subsequent Purchasers.
    Where a mortgagor’s vendor owned only the N. W. £ of the S. W. £ and the S. E. £ of the S. W. £ of. a section of land, but his deed to the mortgagor described the land as the N. W, £ and the S. E. £ of the S. W. £ of such section, and the mortgage, and a quitclaim deed thereafter given by the mortgagor to the mortgagee, contained the same description (the mortgagor having only taken possession of the two 40-acre tracts which his grantor in fact owned, and not having claimed title to any other lands, and the mortgage further stating that the description contained 80 acres), the mortgagor’s grantor was entitled to have his deed reformed so as to describe correctly the land intended to be conveyed, and to have the last grantee enjoined from maintaining an action against him for breach of covenant, based on the failure of title to the N. W. £ of the section.
    Appeal from Oakland; Smith, J.
    Submitted January 12, 1900.
    Decided January 23, 1900.
    Bill by Daniel L. Davis against Ellen O. Benedict and W. Webb Seeley to reform a deed and to restrain the prosecution of an action at law. From a decree for complainant, defendant Benedict appeals.
    Affirmed.

      Peter B. Bromley, for complainant.

      Baldwin, Jacokes & Moore, for appellant.
   Hooker, J.

Previous to May 29, 1888, Davis, the complainant, owned the N. W. J of the S. W. ^ and the S. E. i of the S. W. of section 36 in township 2 N., range 8 E. He did not then or at any other time own the N. W. {: of that section. On the day mentioned, one Seeley purchased the two 40-acre parcels first mentioned, understanding that he was buying them, and no other land. The price agreed on was $800, and this was paid down, $780 of it being borrowed by Seeley upon the land. To convey the land to Seeley, Davis executed and delivered a deed substantially.as follows: “Daniel L. Davis * * * conveys and warrants to the said W. Webb Seeley * * * all those certain pieces or parcels of land * * * described as * * * the northwest quarter and the southeast quarter of southwest quarter section thirty-six, * * * for the sum of fifteen hundred dollars.” Seeley took possession of the two 40’s, and no other land. On April 22, 1889, Seeley borrowed from the defendant Mrs. Benedict the sum of $1,200, to secure which he gave her a mortgage containing the following description, viz.: “The northwest quarter and the southeast quarter of the southwest quarter of section thirty-six, * * * containing eighty acres, more or less.” On June 12, 1891, Seeley wrote to the defendant that he was unable to pay the interest due upon her mortgage, and that, if he could not pay it before it should “become due again,” he would give her a deed of the place, and save her the expense of foreclosure. On April 9, 1898, he executed and delivered to her a quitclaim deed containing the same description as that contained in the deed from Davis to him. She thereupon brought an action upon the covenant contained in the deed from Davis, upon the claim that it covered the N. W. i of the section, and that he had no title to that parcel. The bill in this cause seeks to restrain the prosecution of the action at law, and to correct the deed from Davis to Seeley. A decree was granted in substantial compliance with the prayer, and the defendant Mrs. Benedict has appealed.

We are satisfied that neither Davis nor Seeley understood that the N. W. ¿ of the section was included in the deed. The description contained therein is susceptible of either meaning contended for by the respective parties, but there cannot be a doubt that both understood that the two 40’s only were the subject of the bargain; and this is evidenced by the acts of the parties afterwards,— Seeley being satisfied with the possession of those parcels during the time he owned them, and making no other claim. It is suggested by counsel, rather than proved, that Mrs. Benedict was the victim of a shrewd scheme; but, however that may be, we cannot say that she should be allowed to recover on a covenant that neither party understood to cover more than 80 acres. Her mortgage contains a description which indicates, and should have given her to. understand, that the mortgage did not cover 200 acres, for it mentions 80 acres. While a statement of acreage does not prevail against a definite description, it may be a valuable aid to explain an otherwise ambiguous description. She took the quitclaim with full knowledge of the intention of the parties, and' subject to the equities of Davis.

The decree of the circuit court is sufficiently favorable to the defendant, and will be affirmed, with costs.

The other Justices concurred.


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    SHAYLER v. GIDDINS.
    Bills and Notes — Extension — Consideration — Belease op Surety.
    A promise to pay interest on an interest-bearing note after maturity until the note is paid is not a sufficient consideration to support an agreement by the payee to extend indefinitely the time of payment, so as to- discharge a surety thereon.
    Error to Oakland; Smith, J.
    Submitted January 12, 1900.
    Decided January 23, 1900.

      Assumpsit by Harriet A. Shayler against Eddison Giddins and Andrew A. Garner on a promissory note. From a judgment for plaintiff, defendant Garner brings error.
    Affirmed.

      Davis & Bromley, for appellant.

      John H. Patterson and Samuel J. Patterson, for appellee, cited, in addition to the cases discussed in Olmstead, v. Latimer, 158 N. Y. 313, referred to in the opinion, the following cases: Place v, Mcllvain, 38 N. Y. 96 (97 Am. Dec. 777); Dyar v. Shenkberg, 93 Iowa, 154; Eaton v Whitmore, 3 Kan. App. 760; Binnian v. Jennings, 14 Wash. 677; Bums v. Davis, 67 Mo. App. 210; Harburg v. Kumpf, 151 Mo. 16; Hunt v. Bridgham, 2 Pick. 581 (13 Am. Dec. 458); Bank v. Parsons, 138 Mass. 53; Oberndorff v. Bank, 31 Md. 126 (1 Am. Rep. 31); Bank v. McAllister’s Estate, 56 Neb. 188; Abel v. Alexander, 45 Ind. 523 (15 Am. Rep. 270); Olson v. Chism, 21 Ind. App. 40; Carton v. Bank, 34 Mich. 279; Smith v. Shelden, 35 Mich. 42 (24 Am. Rep. 529); Hayes v. Knox, il Mich. 529; Insurance Co. v. Soule, 51 Mich. 312; Casey. O’Brien, 66 Mich. 289.
   Hooker, J.

Shayler took a note signed by Giddins and Garner, the latter being known to be a surety. It was payable in one year, with interest. Garner defends an action upon the note upon the ground that he was discharged by an extension of time given to Giddins without his knowledge. It is admitted that the only consideration for the extension was Giddins’ alleged promise to pay interest after maturity, and until the note should be paid. The defendant claims that the note was extended by agreement for a year on three different occasions, when interest due was paid. The plaintiff denies an agreement to extend for a definite period, but admits that she agreed that the note might run, on payment of interest due, if Giddins was not readj' to pay the principal. The jury found specially that the plaintiff simply allowed the note to run indefinitely so long as the interest was paid, and that she at no time agreed to extend the time of payment for a year, or any other definite time. We must therefore consider this question settled, as the evidence was conflicting.

The appellant insists that the promise to pay interest after maturity for an indefinite time was a sufficient consideration for a promise to forbear suit, i. e., extend the time. We think this cannot be, for the reason that the maker was already bound to pay interest until he should ■pay the note. We are cited to three cases which are said to support this contention; but most, if not all, of them were cases where a time either definite, or susceptible of being made so, was fixed for payment. Benson v. Phipps, 87 Tex. 578 (47 Am. St. Rep. 128); Aiken v. Posey, 13 Tex. Civ. App. 607; Kearby v. Hopkins, 14 Tex. Civ. App. 166. The first seems to turn on an agreement to forbear suit for a definite time, and cites several cases in support of its conclusion that such a promise is a sufficient consideration for a promise by the debtor to pay interest for a longer period than required by the note. The opinion distinguishes cases where there is a mere, promise to forbear suit, without any corresponding promise not to pay during the period of the promised forbearance; adding, “In such cases it is clear that there is no consideration for the promise.” The others are consistent with this statement. In this connection, see the recent case of Potter v. Railway Co., ante, 179. The cases are uniform in opposition to defendant’s contention. See Olmstead v. Latimer, 158 N. Y. 313 (43 L. R. A. 685), which discusses the New York cases, .and plaintiff’s brief, which cites numerous Michigan and other cases in point.

The evidence is all before us, and as we are able to say that the court might properly have directed a verdict for the plaintiff, and that no error in the reception or exclusion of testimony appears, we may properly affirm the judgment. It is so ordered.

The other Justices concurred.


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    PIPER v. PIPER.
    Injunction — Abuse of Process.
    A complainant who, four days before he was entitled to the possession of land, obtained an injunction restraining a tenant from cutting certain immature crops, which the latter had a clear right to harvest at any time within the four days, is not in position to assert in equity his right to the crops after the four days have expired.
    Appeal from Kalamazoo; Buck, J.
    Submitted January 12, 1900.
    Decided January 23, 1900.
    Bill by Hilton E. Piper against Henry W. Piper to restrain the cutting and removal of certain crops. From a decree for complainant, defendant appeals.
    Reversed.

      Dorr O. French (Samuel W. Oxenford, of counsel), for complainant.

      Osborn, Mills & Master, for defendant.
   Hooker, J.

George Piper died testate on May 30, 1891, and his will was duly probated. His widow and son Henry W. Piper were given letters testamentary. The third clause of the will was as follows:

“And it is my will that my son Hilton E. shall not come into possession and control of the said land until he shall have attained the full age of thirty years, and, in case of his death before arriving at said age of thirty years, then said land shall descend to his said children, if any, and, if he should have no children, then the said land shall go to my son Henry W. Piper.”

On August 3, 1892, all of the heirs executed a lease to the widow of all the land belonging to the estate for the term of her natural life, with the following limitation:

“Except the last-described piece or parcel of land, which said party of the second part hereby expressly agrees to yield up and deliver to said Hilton E. Piper upon his arrival at the age of thirty years.”

She took possession, and subsequently Henry W. Piper worked the place under an arrangement with her, and put in the crop of wheat in dispute, for his own benefit, in the fall of 1897. Hilton E. Piper was born on June 27, 1868. On June 23, 1898, he filed the bill of complaint herein, and obtained a preliminary injunction restraining the defendant, Henry W. Piper, from cutting and removing the crops then growing upon the premises. The bill prayed an injunction, and contained the usual prayer for general relief. On June 29th a stipulation was filed permitting the defendant to harvest the wheat upon filing a bond to turn over the wheat, or pay the market price thereof, at the election of the complainant, if the cause should ultimately be decided in favor of the complainant. Upon a hearing, the testimony being taken in open court, it was decreed that the complainant was entitled to relief as prayed in the bill, and it was further adjudged that the defendant perform the condition of his bond by paying the value thereof within 30 days, and that it be referred to a commissioner to determine and report the value. The defendant has appealed.

It appears to be conceded by counsel for the complainant that the widow acquired a valid estate under the lease made by the heirs, which gave her the right to hold the land until June 27, 1898, the date when complainant would become 30 years old, unless such estate should be sooner terminated under the will by reason of his death. They claim, however, that upon that date the right to the possession, and all crops then growing thereon, would belong to the complainant. On the other hand, the defendant’s counsel say that the estate was one of necessarily uncertain duration, and that the widow and her tenant were, therefore, entitled to emblements. We find it unnecessary to pass upon the question of the right to emblements. If it be admitted that the complainant would become entitled to the land and all growing thereon upon the 27th o£ June, it is equally true that the defendant was entitled to the possession and full use of the premises up to that time. As he was under no obligation to plant that his successor might reap, he was not required to refrain from cutting for the successor’s benefit. If not entitled to ripen his crop, he was at least entitled to it in its immature condition, for such uses as he might choose to make of it. While the bill does not, in terms, so state, it must have been filed upon the theory that the complainant had a right to have the crop left to ripen for his benefit, if it would not ripen before the 27th. It is difficult to conceive of any other excuse for granting a preliminary injunction. Yet we fail to find that claim made in the brief. The complainant has made use of the process of the court to prevent the cutting of the wheat during the few remaining days left to the defendant to cut it, although the defendant’s right to cut it is plajn. Whether this was an intentional abuse of process or not, the effect is the same. A court of equity will not countenance a claim based on so inequitable a procedure.

The decree is reversed, and bill dismissed, with costs of both courts.

The other Justices concurred.


author: Montgomery, C. J.

text:
    COLLINS v. GORDON.
    Assignment of Mortgage — Agreement to Pay Interest— Recovery.
    •Where plaintiff assigned a mortgage to defendant on his agreement to pay plaintiff accumulated interest out of the first interest that should be paid on the debt, and defendant was compelled to foreclose the mortgage for nonpayment of interest, and realized less than the principal sum due, plaintiff was not entitled to recover such back interest.
    Error to Livingston; Smith, J.
    Submitted October 6, 1899.
    Decided February 20, 1900.

      Assumpsit by Áddison C. Collins against Thomas Gordon, Jr., upon an agreement to pay the accumulated interest on a mortgage. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed. '

      Fred H. Warren and William, P. Van Winkle, for appellant.

      Louis E. Howlett, for appellee.
   Montgomery, C. J.

This is an action of assumpsit, brought to recover $241 and interest, claimed to be due upon the following paper writing:

'“$241.00.
“For value received, I promise to pay to Addison C. Collins the sum of two hundred forty-one dollars, being the accumulated interest on a certain note secured by mortgage, given by Peter Pergau and Julia Pergau to Addison C. Collins and Jane Collins, his wife, for the sum of five thousand dollars principal, bearing date March 29, 1895, out of the first moneys paid on said note as interest, and out of the first moneys by me collected on. said note as interest, as soon as the same is paid, collected, and received; which said note secured by mortgage was duly sold and assigned to me by Addison C. Collins and Jane Collins, his wife, by assignment dated December 3, 1895.
“Dated December 7, 1895.
“[Sgd.] Thomas Gordon, Jr.”

On the 3d of December, 1895, the plaintiff and his wife sold and assigned to the defendant a note and mortgage for $5,000, given March 29, 1895, by Peter Pergau and wife to said plaintiff and wife, on 200 acres of land in Washtenaw county, Mich. The amount paid by the defendant for the note and mortgage was $4,500, and, in addition, he agreed to pay the further sum of $241 “ out of the first moneys paid on said note as interest, and out of the first moneys by me collected on said note as interest.” No payments of either principal or interest were ever made on said note and mortgage. May 6, 1896, a bill of complaint was filed by defendant in the Washtenaw circuit court, in chancery, to foreclose said mortgage, wherein it was charged that the premises were a scanty security for the indebtedness represented by the mortgage, that they were so situated that they could not be sold in parcels, and praying that the money realized from a sale of the entire property might be' applied towards the payment of the whole amount secured by said mortgage. December 22, 1896, a decree was made ordering a sale of the entire property, and that out of the proceeds the complainant should be paid “the whole amount secured to be paid by the said note and mortgage.” August 16, 1897, the property was sold under said decree to the complainant, Gordon (defendant here), who bid $5,000, and received a deed therefor; the commisdoner certifying that he paid said amount, less costs, to the complainant by deed. It further appeared that the plaintiff knew the property was advertised to be sold on foreclosure sale, but made no effort to find out when the sale was to take place. Upon the foregoing state of facts the circuit judge directed a verdict for the plaintiff for $265.10 (being $241 and interest from date of foreclosure sale), and judgment was entered accordingly. When the bill was filed, only.interest was due. The decree was for the sale of all the premises to satisfy the amount due and to grow due on the mortgage. The sale was for $5,000.

Plaintiff contends, first, that, as the interest only was due, the defendant received the amount of the note in suit on the interest, or, at least, that the plaintiff is entitled to prorate. Defendant contends that the contract was to pay out of money realized, and that he has not received the money, and, further, that, if- the purchase of lands be treated as a payment of money, what he received was the principal, and not the interest; that the true intent was that, if the defendant received the principal, and the interest in addition, he was to be liable, but not if he received the amount of the principal only. We think the latter the true construction of the agreement. The transaction indicated that the parties intended that, as a condition to the payment of the undertaking in suit, the maker of the mortgage should make payment of the interest money to grow due, leaving the defendant’s security for the principal sum of $5,000 intact. This never occurred. The defendant was compelled to foreclose his security, and has realized much less than the principal sum due. The case is somewhat like Reed v. Northrup, 50 Mich. 443.

The judgment will be reversed, and no new trial ordered.

The other Justices concurred.


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    PEOPLE v. CARTER.
    1. Criminal Law — Embezzlement — Absconding Defendant — Proof'of Demand.
    Omission, to prove a demand for money alleged to have been embezzled is not fatal where the accused absconded after receiving the money, and admitted that the money had been lost on the races.
    2. Same.
    Upon a prosecution for embezzlement, proof that respondent receipted for certain moneys as treasurer of an association, and that the moneys were intended by the depositor to be applied to the purchase of stock therein, sufficiently shows that the moneys belonged to the association.
    3. Same — Corporation De Paoto.
    Where an attempt was made by an association to organize a corporation under a state law, and articles of association were prepared, and the incorporators assumed to do business as a corporation, the association became a corporation de facto, within 3 Comp. Laws 1897, § 11591, punishing embezzle, ment from an “incorporated company.”
    4. Same.
    Upon a prosecution for embezzlement from a corporation, it is sufficient to show that the property embezzled was the property of a corporation defacto.

    Error to recorder’s court of Detroit; Chapin, J.
    Submitted October 26, 1899.
    Decided February 20, 1900.
    Samuel G. Carter was convicted of embezzlement, and sentenced to imprisonment for one year in the Detroit house of correction.
    Affirmed.

      Watters, Humphrey & Watters, for appellant.

      Allan H. Frazer, Prosecuting Attorney, and William H. Turner, Assistant Prosecuting Attorney, for the people.
   Montgomery, C. J.

On the 19th of May, A. D. 1899, defendant was tried and convicted in the recorder’s court of the city of Detroit bn an information charging him with embezzling $100 in money belonging to the Detroit Temple of Labor Association, a corporation organized under Act No. 13 of the Public Acts of 1897, entitled “An act to provide for the incorporation of labor associations,” which said money had come into his hands as agent of the said association. At the trial it was shown that he was agent and officer of said corporation, and on the 14th day of June, A. D. 1898, was its treasurer, and received the said sum of $100 from the Detroit Typographical Union No. 18, giving his receipt therefor, dated said June 14, A. D. 1898, in return for which he was expected to issue 100 shares of stock of said association. Defendant admitted at the trial that he received this amount of $100, and, in addition, other amounts, as such agent and officer of said association, aggregating between $800 and $1,100; that he had spent all of this money betting on horse races in Detroit, Windsor, Mt. Clemens, and Chicago. Defendant claims :

(а) That no demand was made upon him for the money alleged to have been embezzled.

(б) That the $100 alleged in the information to have been embezzled was not the property of the Detroit Temple of Labor Association.

(c) That the money charged to have been embezzled was not received by him in the course of his duties, and that he was not authorized to receive it.

(d) That the articles of association of the Detroit Temple of Labor Association were not filed as required by law.

(e) That the Detroit Temple of Labor Association is not a corporation.

(/) That the persons who signed the articles of association, of whom defendant was one, were partners, and that defendant’s act was, therefore, not embezzlément.

(g) That the Detroit Temple of Labor Association is not such an “incorporated company ” as is meant by that term as used in the embezzlement statute (3 Comp. Laws 1897, § 11591).

(h) That Act No. 13, Pub. Acts 1897, is unconstitutional and void.

It appears that the defendant absconded after receiving the money into his possession, and there was evidence that he subsequently admitted that the money of the association was gone, and that he lost it on the horse races. Under these circumstances, the omission to prove demand is not fatal. See Kossakowski v. People, 177 Ill. 563.

We think there can be no doubt that the money charged to have been embezzled was the property of the Detroit Temple of Labor Association. The defendant receipted for the money as treasurer, and it was intended by the depositor to be applied to the purchase of stock in the association. There is no doubt, either, from the record, that the money was received by the defendant in the course of his duties.-

The remaining questions raised may be treated briefly. All these objections are answered if embezzlement can be committed as to a corporation de facto. It appears conclusively that an attempt was made to organize a corporation under Act No. 13 of the Public Acts of 1897, that articles of association were prepared, and that the incorporators assumed to do business as a corporation. The association, therefore, became a corporation de facto. The rule is well established that, in a criminal prosecution for embezzlement, it is sufficient to show that the property embezzled was the property of a corporation de facto. 8 Am. & Eng. Enc. Law (2d Ed.), 757, note; People v. Hawkins, 106 Mich. 479; Smith v. State, 28 Ind. 321; Kossakowski v. People, supra ; People v. Oldham, 111 Cal. 648.

The conviction is affirmed.

The other Justices concurred.


author: Long, J.

text:
    STEVENS v. BEARDSLEY.
    1. Landlord and Tenant — Action eor Rent — Evidence.
    In an action for rent, where the amount was in dispute, it was error to admit evidence as to what the tenant of adjoining premises, also owned by plaintiff, paid him for their rental.
    3. Same — Value—Credibility oe Witnesses.
    It was proper, however, where defendant alleged, and plaintiff denied, an agreement that he should occupy at a reduced rental, to show, as bearing upon the probabilities of the truthfulness of the parties, that rents in the locality had depreciated during the period of defendant’s occupancy.
    3. Evidence — Admissibility.
    It is reversible error for the trial court to allow the introduction of testimony as to matters outside the issue, calculated to prejudice the jury against one of the parties. So held, where certain irrelevant verses, written by plaintiff upon the reverse of a letter to defendant’s attorney, were permitted to be read in evidence.
    Error to Montcalm; Davis, J.
    Submitted November 14, 1899.
    Decided February 20, 1900.

      Assumpsit by William H. Stevens against William R. Beardsley for rent. From a judgment for defendant, plaintiff brings error.
    Reversed.

      V. H. & H. H. Smith, for appellant.

      L. C. Palmer, for. appellee.
   Long, J.

Plaintiff sued defendant for rent of a store ■ building in the city of Stanton, the claim being for rent from October 8, 1887, to December 31, 1892, five years and three months, at $8 per month, amounting to $604. The defendant claimed as a set-off the payment of $304 in merchandise and- cash, and also the payment of $24 rent to March 19, 1888. He also claims that the contract for the rent of the store was for $8 per month from October, 1887, to March 19, 1888, and that at the latter date a new agreement was made at the rate of $6 per month; that he occupied it at the new rate until March 19, 1889, when the rent was again lowered to $5, at which rate he occupied it until January 2, 1893. The use and occupation of the premises for the full period claimed is admitted by the defendant. The plaintiff admits receiving payments amounting to $230.95, but denies the balance of defendant’s set-off, $73.05. He also denies payment in full to March 19, 1888, and claims there is due, including interest, $368.10. The jury found in favor of the defendant, allowing him all his set-off, giving him a verdict for $5.34, upon which judgment was entered for that amount. Every item of defendant’s set-off was necessary to give the balance in his favor. The following items, with others, were especially disputed by plaintiff: $35 claimed to have been paid by defendant by his giving plaintiff an order for that .amount on a third person; $9.80 claimed to have been expended by Beardsley in building a partition in the store, which he claimed plaintiff was to furnish; and $24 claimed to have been paid in February, 1888. Plaintiff brings error.

It appears that the block, a part of which defendant occupied, was divided into three stores, the defendant occupying the half of the middle one. The plaintiff testified that he did not know what year the corner one was occupied after defendant went in. He was then asked on cross-examination, “Do you know how much he [the occupant of the corner store] paid you per month?” This was objected to by plaintiff’s counsel, the objection overruled, and plaintiff was directed to answer, and* did answer, “Eight dollars per month.” The first assignment of error is based upon this ruling. We think this was error. This evidence could have no bearing whatever on the question of the amount of rent to be paid by defendant for the other store. It is sometimes permissible to show the value of the article in- dispute as bearing upon the probability of the truthfulness of the parties, but under no rule can the price or value of other articles, or the rental value of other property, be shown as bearing upon the probability of the truthfulness of the parties.

The court admitted testimony tending to show that the rent of other business houses in the city of Stanton depreciated during the time of defendant’s occupancy, as relating to the tendency of the prices for rents, whether upward or downward, or whether rents remained stationary. This is assigned as error. We think the court was not in error in this. It has frequently been held that, where the contract price is in dispute, testimony as to value may be shown as bearing upon the probabilities of the truthfulness of the parties. Misner v. Darling, 44 Mich. 440; Wickes Bros. v. Swift Electric Light Co., 70 Mich. 322.

The principal error claimed, however, relates to the ruling of the court in admitting in evidence a certain letter written by plaintiff to the defendant’s attorney, upon the reverse side* of which was written by the plaintiff certain verses, which reflected severely upon the integrity of the defendant. The court permitted these verses, as well as the letter, to be read in evidence. We think the court was in error in receiving the letter and verses in evidence. The letter itself contained no admissions that the defendant was not liable for rent, and in fact it expressly charged that “Ranee [the defendant meaning] won’t pay his rent.” The verses might well tend to prejudice the plaintiff’s case before the jury. It was held in Bennett v. Eddy, 120 Mich. 300, that it was error for the trial court to allow the introduction of testimony as to matters outside the issue, and which would tend to prejudice the jury against one of the parties.

Some other errors are claimed, but those questions are not apt to arise on another trial, and we therefore do not deem it necessary to pass upon them. For the errors pointed out, the judgment must be reversed, and a new trial granted.

The other Justices concurred.


text:
    CITY OF MT. CLEMENS v. SHERBERT.
    Municipal Corporations — Peddlers—License Fee — Validity of Ordinance.
    Under 1 Comp. Laws 1897, § 8107, subd. 11, authorizing cities of the fourth class to regulate by ordinance the licensing of peddlers, but conferring no discretion upon the city officers in the matter of fixing license fees, an ordinance which purports to prohibit the sale from house to house of a certain commodity without a license, but fails to fix the license fee, is invalid.
    Exceptions before judgment from Macomb; Eldredge, J.
    Submitted November 15, 1899.
    Decided February 20, 1900.
    William Sherbert was convicted of peddling without a license.
    Reversed.

      W. W. Wicker (Humphrey & Grant, of counsel), for appellant.

      O. C. Lungerhausen, City Attorney, for appellee.
   Hooker, J.

The defendant was convicted of the offense of peddling tea, in contravention of an ordinance of the city of Mt. Clemens which provides:

“No person shall in any way peddle in the city of Mt. Clemens without having first obtained a license therefor from the mayor or common council of said city; and the selling of any commodity from a wagon, hand-cart, or other receptacle, upon the streets of said city, and as well' selling from house to house, whether for present or future delivery, shall be deemed peddling, within the meaning of this ordinance.”
“Sec. 3. The provisions of this ordinance shall not apply to the sale of any article or commodity used for feed or food when sold by the original grower or producer thereof, or fish when sold by those who caught them, nor to Indian baskets and beadwork when sold by makers thereof, nor to the sale of books.”

It is contended that the defendant was improperly convicted, for the reason that no license fee is fixed by the ordinance for selling tea. The ordinance enumerates a long list of articles, and then provides (section 6) that:

“At any time license is desired to sell any article or commodity which is not herein especially provided for, the petition for that purpose shall be submitted to the common council, and their action upon such petition taken.”

The city is authorized to pass ordinances—

“To license hawkers, peddlers, and pawnbrokers, and hawking and peddling, and to regulate, license, or prohibit the sale or peddling of goods, wares, merchandise, refreshments, or any kind of property or thing by persons going about from place to place in the city for that purpose.” 1 Comp. Laws 1897, § 3107, subd. 11.

Until an ordinance is passed providing for such license, there is nothing to prohibit the sale of tea from house to house, which is a lawful occupation. The ordinance in question prohibits the sale from house to house of all commodities without a license, but it does not fix the license fee that shall be paid for the privilege of selling tea. While it fixes a schedule of fees for many articles, tea is nowhere included, and one who wishes to engage in the sale of tea must make an application, and await the action of the common council. The ordinance should definitely fix the fee,.that one engaging in that business may know what it is, and have some assurance of uniformity of charge to those engaging in such business. See Bull v. City of Quincy, 9 Ill. App. 131; Besse v. Village of Grotty, 93 Ill. 180. This charter does not purport to give discretion to the city officers in fixing a license. It authorizes the regulation of the subject by ordinance. In discussing a similar question, the supreme court of Indiana said, in the case of Bills v. City of Goshen, 117 Ind. 226 (3 L. R. A. 264):

“Horr & Bemis’ work on Municipal Police Ordinances (section 13) says: ‘ The extent to which discretion may be given to the ministerial officers in the granting of licenses is in dispute. Express power in the charter wall warrant such delegation. The authorities differ widely, but the proper conclusion seems to be that as little latitude should be given to the ministerial officer as possible. In exercising a power to license certain occupations, the council should, by its ordinance, prescribe the exact occupation to be licensed;'the amount of the fee to be charged, either uniformly or by reasonable classification; the conditions upon which the license may be issued, and the duration of its validity,’ etc. Section 263, same authority, says: ‘As has been already stated, no discretionary powers should be vested in the officers whose duty it is to execute the provisions of ordinances, and the rule is entirely applicable to this class of ordinances. The ordinance itself should specify every condition of the license, and the officer should be merely intrusted with the duty of issuing licenses to all who comply with the prescribed conditions.’ This is undoubtedly the true theory and the correct law governing ordinances for license. The statute provides that the common council may, by ordinance, license, and may prohibit certain pursuits without first being licensed; and it further provides that ordinances prescribing penalties for the violation of the same shall be published. It is, further, a well-settled principle. that cities cannot discriminate between citizens engaged in the same business; that, if they license, theyjffiust license all alike. See Graffty v. City of Rushville, 107 Ind. 502 (57 Am. Rep. 128); Benjamin v. Webster, 100 Ind. 15. It is therefore material to the validity of an ordinance that a fixed and definite license fee should be named therein, which all persons engaged in like business shall pay. Section 2 of the ordinance in question in this case is defective in that it does not fix any amount to be paid as a license fee, but leaves it open for the common council to fix the fee to he charged in each particular case. Besides, it seeks to delegate the power to fix the fee to be charged in each case to the mayor of the city, which there was no right to do. It is also defective in that it does not state the time of the duration and validity of the license to be issued. As we have stated, this ordinance provides a penalty for the violation of the ordinance, and the violation consists in the doing c>£ the things specified without first having procured a license. The statute requires such ordinances to be published, and the material matters omitted from that ordinance are such as ought to be published, to advise the citizens what they are required to do to comply with the city law. By the reading of this ordinance it could not be determined what license fee must be paid, nor the duration of the validity of the license. It follows as a conclusion that, if the defects could be supplied by the passage of another ordinance by the council (which must be conceded to be exceedingly doubtful), such supplemental ordinance must be published before it could be effective.”

It is unnecessary to discuss the other questions raised.' The conviction is set aside, and no new trial ordered.

The other Justices concurred.


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    RICE v. DETROIT, YPSILANTI & ANN ARBOR RAILWAY.
    1. Street Railways — Franchises—Sales oe Tickets.
    A franchise to a street-railway company by a village, providing for the sale of tickets on cars of the company, good either way between the village and a specified city, in strips of five at a reduced rate, requires such tickets to be kept for sale on cars at any point on the line, and not solely at points within the limits of the village.
    :2. Same.
    Where a street-railway company neglected to furnish its conductors with through tickets, good between a village and a city, for sale at a reduced rate, as required by its franchise, but provided, in lieu thereof, coupon tickets in two parts, one good between the village and an intermediate point and the other between that point and the city, it could not defend an action brought by a through passenger who was compelled to pay an increased fare because of his inability to obtain from the conductor at the intermediate point one of the coupon tickets aforesaid, upon the ground that the ticket demanded, and which it was accustomed to sell, was not the kind required by the franchise.

      Error to Wayne; Frazer, J.
    Submitted November 15, 1899.
    Decided February 20, 1900.

      Assumpsit by Alfred Rice against the Detroit, Ypsilanti & Ann Arbor Railway to recover excess fare paid under protest. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      J. Emmet Sullivan, for appellant.

      Smith & Curtis, for appellee.
   Montgomery, C. J.

The defendant and appellant in this cause is a street railway that maintains and operates a railway between the cities of Detroit and Ann Arbor, in the township of Springwells, in the village and township of Dearborn, and other places. The cars of the defendant go over the track of the Detroit Citizens’ Street-Railway Company to the city hall, in the city of Detroit. Defendant has been selling five tickets for 50 cents, each good for a trip between the city hall, in the city of Detroit, and the village of Dearborn. Each of the five tickets is divided into two parts, — one good from the village of Dearborn to-the Flint & Pere Marquette Railroad crossing, and the other good between the Flint & Pere Marquette Railroad crossing and the city hall, in the city of Detroit. The franchise granted to defendant by the village of Dearborn provided as follows:

“It is further provided that the said grantee shall charge not to exceed the following rates, to wit: From any point in said village of Dearborn to Woodward avenue, in the city of Detroit, or any point west of Woodward avenue, in the city of Detroit, fifteen (15) cents cash fare, good either way, or two tickets for twenty-five (25) cents, good either way; a strip of five (5) tickets shall be sold for fifty (50) cents.”

By the terms of the Dearborn franchise, the defendant may charge 5 cents for a ride in said township; and the Springwells franchise permits a charge of 5 cents from the Flint & Pere Marquette Railroad crossing to Dearborn township.

The plaintiff, on the 21st day of July, 1898, in the city of Detroit, boarded a car bound for the village of Dear-born. He gave the conductor a portion of a through ticket, which entitled him to ride to the Flint & Pere Marquette Railroad crossing, in the township of Springwells. Upon arriving at the crossing, the conductor came to take up fare for the trip between the Flint & Pere Marquette Railroad crossing and the village of Dearborn. Plaintiff tendered 50 cents, and demanded a sale to him of a strip of five tickets good between the city hall, or Woodward avenue, in the city of Detroit, and the village of Dear-born, — not specially for the purpose of paying his fare to Dearborn with a portion of the strip, but for the purpose of being carried to and fro between the city hall, in the city of Detroit, and the village of Dearborn. The conductor, not having any of these strips of tickets, demanded that the plaintiff pay 10 cents for the trip between the Flint & Pere Marquette Railroad crossing and the village of Dearborn, which plaintiff paid under protest. He thereafter brought suit against defendant for 5 cents. A judgment in the circuit court, on appeal from the justice, was rendered for the plaintiff for 5 cents and costs, by direction of the court.

The pleadings are not printed in the record, so that we must assume that no point was intended to be made as. to the sufficiency of the declaration. We have, then, a case in which defendant is operating under a franchise imposing a duty to sell five tickets for 50 cents, good between the city hall, Detroit, and any point in the village of Dearborn. The franchise further provided, “All such tickets shall be kept for sale upon each and every car operated by it. ” It is contended that the franchise is in force only within the territorial limits of the village, and does not cover territory in other townships. We do not think this contention can be sustained. The franchise is in the nature of a contract, and imposes obligations upon the company which those having occasion to ride from Dearborn to Detroit have a right to enforce. It is urged that the case of Kissane v. Detroit, Ypsilanti & Ann Arbor Railway, 121 Mich. 175, is authority for defendant’s contention. No such doctrine is announced in that case. It was held, it is true, that the plaintiff was not compelled to rely on the restrictions contained in the franchise granted by the municipality in which he boarded the car, but that he might, under such franchise, pay his fare to a point in another municipality, and there avail himself of the terms of a franchise granted by the latter. The plaintiff’s right under this franchise is not different than it would have been had the franchise in Springwells been silent on the subject of fares. The defendant saw fit to contract with the village of Dearborn for a rate outside the limits of the village, and to agree that tickets should be sold on its cars. This contract it cannot repudiate.

But it is urged that no damage was shown, for the reason that the tickets which the defendant was accustomed to sell (consisting, as they did, of two parts) were not the kind of tickets required by the franchise, and that the company was not required to accept the strip from the Flint & Pere Marquette crossing to Dearborn, but was only required to furnish a through ticket. It might be a sufficient answer to say that a failure to sell the tickets to plaintiff when demanded entitled him to nominal damages, at least, and that no more than nominal damages were recovered; but a further answer is that defendant has placed its own construction on the requirements, and has provided tickets in form to suit itself. The plaintiff was entitled, by means of such tickets, to a ride from the city hall to Dearborn for 10 cents. He sought to obtain it by means of the only ticket kept by the defendant for sale. One part of such a ticket had been given up, and, if he had been able to obtain the tickets requested, the remaining portion of the ride could have been paid for with the other coupon.

The judgment is affirmed.

The other Justices concurred.


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    CLINK v. CARPENTER.

    Accounting — Premature Suit.
    Defendant furnished money to purchase lands sold for taxes, and complainant was to attend to the legal business connected therewith, manage the enterprise, and receive one-half of the profits on sales, after deducting the purchase price and expenses. Lands not sold were to belong to the parties equally. Complainant testified that it was understood that the properties might remain in defendant’s name one year, if not sold. Held, in a suit for an accounting brought before the expiration of the year, that complainant was not entitled to a one-half interest in the lands except on payment of one-half of the purchase price.
    Appeal from Muskegon; Russell, J.
    Submitted November 16, 1899.
    Decided February 20, 1900.
    Bill by Stephen H. Clink against George W. Carpenter for an accounting. From a decree for complainant, defendant appeals.
    Reversed.
    Complainant, an attorney-at-law, and defendant, a farmer, entered into the following agreement:
    “It is hereby agreed by and between George W. Carpenter, of Coopersville, and Stephen H. Clink, of Muskegon, that they shall operate jointly in the purchase of tax titles, and in disposing of the property purchased.
    “ It is agreed that the said Carpenter has furnished the money to purchase twenty-one descriptions in the city and county of Muskegon.
    ‘ The said Clink shall put in his time and legal skill in the management of this enterprise, and all law business of every nature pertaining to the same. Then, as each piece is disposed of, the said Carpenter shall take out for himself whatever sum of money he has expended in the purchase of said piece, and the expenses, and the balance shall he divided equally between said Clink and said Carpenter ; and any piece that cannot be sold or disposed of satisfactorily to both parties within a reasonable time shall belong equally to said parties. Whatever further purchases are made shall be governed by these same conditions. ”
    While the contract was dated January 5, 1897, it was not executed until February 5th. For these 21 descriptions, defendant paid $1,800. Other lands were after-wards purchased. Several pieces of the lands had been sold by Mr. Carpenter, and settlement made. Trouble arose between defendant and complainant, whereupon complainant, on May 16, 1898, filed this bill, praying for an accounting, that defendant be compelled to convey to him a one-half interest in the lands unsold, and that the same be partitioned and divided. The case was heard upon pleadings and proofs in' open court. There were many disputed items, but the principal questions arose over the construction of the contract, and the effect of a deed of what is known as the “ Sullivan Farm ” by complainant to defendant; the former claiming that it was a sale for $1,400, and the other claiming that it was a mortgage to secure a loan of $126. The court below decided all the contentions in favor of the complainant; held that, by the terms of the contract, complainant was entitled to a one-half interest in the lands, without payment to defendant for the moneys which he had advanced; that defendant was indebted to complainant in the sum of $688.94; and directed a sale of the premises upon failure of defendant to pay.

      Stephen H. Clink {Walter I. Lillie, of counsel), in pro. per.

      Henry B. Fallass {A. C. Denison, of counsel), for defendant.

       Rehearing denied May 18, 1900.

   Grant, J.

{after stating the facts). 1. The titles to a part of these lands were obtained from the auditor general the latter part of July, 1897, and the titles to the other portions were not obtained until August and November of the same year. Complainant filed his bill May 16, 1898, — less than 10 months after the first titles were obtained, and about 6 months after the last title was obtained. It is the theory of the complainant, and the court so held, that a year was a reasonable time within which to dispose of these lands, and thus enable Mr. Carpenter to receive back the purchase price. Complainant testified that, before the contract was drawn, it was understood — that he had a conversation with defendant in which it was said — that the property should remain in his (defendant’s) name one year, if not sold. Under the decree, complainant receives the benefit of the money paid by defendant in the purchase of the lands remaining unsold, which was about $2,000. Defendant is also compelled to pay the expenses (or at least one-half of them) paid out by Mr. Clink in the joint venture. It is contended by the defendant that the plain construction of the contract is that, when the lands were sold, he was to receive back the amount advanced, and that complainant was limited to one-half of the net profits. We need not determine which is the correct construction. The decree is contrary to the complainant’s own theory and testimony. The year had not expired when he filed the bill. He was not entitled to his one-half interest in the lands, relieved from his obligation to pay half of the purchase price, until after a year from the date of each deed. Complainant chose to dissolve the partnership, and filed his bill for an accounting. He must lie in the bed he has made. At that time he was not entitled to his one-half interest. He has thereby waived the question of time, and is only entitled to his interest upon paying one-half of the purchase price and expenses paid by defendant.

2. Clink was once the owner of what is known as the “Sullivan Farm;” mortgaged it to one Torrent, who foreclosed and bid it in; neglected to pay the taxes; deeded it to his wife; purchased the tax title; and, about the time that the contract which is the subject of this controversy was made, gave a warranty deed to the defendant. The only title he then had was the tax title. The courts subsequently held that tax title void. Complainant contends that this conveyance was an absolute sale for the sum of $1,400, $100 of which he testified was paid at the time, and that the balance was made up of various items which defendant contends were to be used, and some of which were used, in the purchase of these titles. Complainant made defendant his own witness, who testified that the deed was given him to secure a loan of $126. Complainant afterwards took the stand and contradicted him, testifying that it was a sale. Complainant therefore stands in the position of contradicting his own witness in matters as to which it was entirely unnecessary to call him. Whether he is bound by his testimony under such circumstances, we need not determine. Wé have no hesitation in holding that the clear weight of the evidence upon the point is with the defendant, Carpenter. It follows that the court was wrong in holding that this conveyance was a deed, and not a mortgage. It also follows that the moneys which the complainant received from defendant, and which he sought to apply upon the payment of the purchase price of this land, must be charged up to complainant in the accounting.

There are other small items of difference, unimportant here to determine. In so far as they are not covered by the above rulings, they can be disposed of upon the settlement of the decree.

Decree reversed, and entered here in accordance with this opinion, with costs.'

The other Justices concurred.


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    CORNETT v. CORNETT.
    Insane Persons — Guardianship — Petition for Estoppel. Discharge —
    A proceeding by an adjudged lunatic in probate court, under 3 Comp. Laws 1897, § 8724, which provides that the guardian of any insane person may be discharged when it shall appear on application of the ward or otherwise, that such guardian, ship is “no longer” necessary, will estop the ward from subsequently going into equity and attacking the validity of the original appointment.
    Appeal from Jackson; Peck, J.
    Submitted January 3, 1900.
    Decided February 20, 1900.
    Bill by George Cornett to restrain William H. Cornett from assuming to act as complainant’s guardian, and to set aside the proceedings under which he claimed authority so to act. From a decree dismissing the bill on demurrer, complainant appeals.
    Affirmed.

      Pringle & Hewett, for complainant.

      Blair, Smith & Townsend, for defendant.
   Montgomery, C. J.

The complainant’s bill alleges certain fraudulent proceedings in the year 1896 by the defendant to get possession of his property from a custodian in another county, and the bringing of it to the county of Jackson, for the purpose of giving a seeming jurisdiction to the probate court for proceedings to appoint a guardian, and the following up of that fraud by statements, without any reason or foundation of facts, to show that the complainant was insane; that by such means, while the complainant was entirely sane and competent, and transacting business as a traveling salesman in the State of Indiana, the defendant, without actual notice to him, or his knowledge, fraudulently procured a decree of the probate court adjudging the complainant incompetent to take care of himself or manage his property, and the appointment of the defendant as guardian of his person and property. The guardian qualified and acted, and in January, 1898, filed with the probate court an account, alleging that he had expended, or become entitled to compensation as guardian to, the sum of $135.48. At the time of filing the bill, the guardian claimed to have an additional account, which had not then been presented. The complainant’s bill is in the nature of a review of such proceedings, and was demurred to for the reason, among others, that it appeared by the bill that, before it was filed, the complainant had applied to the same court by petition, and on such application had been discharged from guardianship. The circuit judge found as follows:

“It appears from the bill that the defendant was appointed special guardian of the complainant by the probate court of Jackson county on or about the 15th day of May, 1896; that he filed a bond as such guardian, which was approved June 15, 1896, and entered upon the discharge of his duties as such guardian; that on the 24th day of August, 1896, the defendant’ was appointed guardian of the complainant by the said court, filed a new bond, which was approved August 29, 1896, and from that day forward assumed to be and acted as guardian of the complainant. It further appears from the eighth paragraph of said bill, and the probate files, that on the 6th day of January, 1899, complainant filed a petition in the probate court alleging his then present competency to manage his own affairs, and praying that he be discharged from said guardianship; that a hearing was had in said court on that petition, and the testimony of numerous witnesses taken; and that on or about the 9th day of February, 1899, an order was made by said court thereon, relieving the complainant from said guardianship, and ordering the defendant, as such guardian, to turn over the property in 'his hands to the complainant, and within 10 days thereafter to file his final account as such guardian. In the ninth paragraph of his bill the complainant refers to all the records and files in the probate court in said matter, in order to show more fully the matters alleged in the bill. Referring to the records and files of the probate court in said matter, which were exhibited at the hearing of this demurrer, it appears that on March 3, 1899, the defendant, in pursuance of said order of the probate court, did file his account as such guardian, but that no hearing has yet been had upon said account in said court, nor has any ■order for such hearing been made. By the present bill the complainant prays for a decree declaring the appointment of the defendant as his guardian by the probate court, and all proceedings therein, without jurisdiction •and void, because of frauds and defects in the proceedings themselves.”

The circuit judge sustained the demurrer, and from a ■decree dismissing complainant’s bill the complainant ■appeals.

The circuit judge was of the opinion that the complainant should be held to have voluntarily submitted to and invoked the jurisdiction of the probate court, with full knowledge of all the facts, and should be held estopped from complaining of the fraud or jurisdictional defects set up in the bill. In this conclusion of the learned circuit judge we concur. The proceeding by complainant in probate court was taken under section 8724, 3 Comp. Laws 1897, which provides:

“The guardian of any minor, spendthrift, insane or ■other person may be discharged by the judge of probate when it shall appear to him, on application of the ward or ■otherwise, that such guardianship is no longer necessary.”

The application under this provision must, of necessity^ assume the fact of guardianship. The statute designates only those who are under guardianship as the ones who ■are entitled to proceed under it. A proceeding under this section is therefore entirely inconsistent with a claim that no guardianship existed. The claim that no cause existed for appointing a guardian in the first instance, or that the court was imposed upon, if established in a proper proceeding, would have fixed the status of the complainant for the future, without the necessity of any proceeding under this statute. When such a proceeding is taken, it must be held that it precludes the ward from going back and attacking the original appointment. To hold otherwise would admit of the ward obtaining relief piecemeal, — part in one court, and part in another.

The decree is affirmed, with costs-

The other Justices concurred.


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    PIPPER v. WAYNE CIRCUIT JUDGES.
    Title to Office — Contesting Claimant — Mandamus.
    The title of the incumbent of an office who is prima fade entitled thereto, and who is actually exercising its functions, will not be tried in mandamus proceedings instituted by a contesting claimant.

      Mandamus by Jacob Pipper to compel William L. Carpenter and Robert E. Frazer, circuit judges of Wayne county, to determine, in mandamus proceedings instituted by relator against William Blanck, the title to the office of supervisor of the township of Hamtramck.
    Submitted January 2, 1900.
    Writ denied February 20, 1900.

      Jasper O. Gates, for relator,

      Bacon & Yerbes, for respondents.
   Moore, J.

On the 11th day of October, 1899, a judgment was entered in the circuit court for the county of Wayne in an action of quo tvarranto brought by Allan H. Frazer, prosecuting attorney, against Bernard Monaghan, who was holding and exercising the office of supervisor of the township of Hamtramck, ousting the said Monaghan therefrom; and by virtue of such judgment the office of supervisor of the township of Hamtramck became vacant. On the 13th day of October, 1899, a meet-' ing of the township board of the township of Hamtramck was held for the purpose of filling the vacancy in the office of supervisor of that township, and the action taken by the board is recorded as follows:

“Township board of township of Hamtramck met at the office of the township clerk on Friday, Oct. 13, A. D. 1899. Present at said meeting: John Reed, chairman; James Colquett, J. P.; and George Gable, clerk. The meeting being called to order, the chairman announced that he wanted a full board to choose a supervisor, and Justice Dickinson was called to act. There being no preliminary business, the board at once proceeded to ballot for supervisor. For twenty-five ballots the vote stood two for Wm. Blanck and two for Jacob Pipper. On the twenty-sixth ballot the vote stood three for Wm. Blanck and one for Jacob Pipper, and Wm. Blanck was declared duly appointed supervisor. He at once qualified, and was given credentials to the board of supervisors.
“Recorded this 17th day of October, 1899.
“George Gable, Township Clerk.”

1 On the same day, and after such appointment was made, William Blanck took the oath of office as prescribed by the Constitution of the State, and filed the same with the clerk of said township, and immediately upon taking such oath of office he took possession of the hooks and papers belonging to such office, and entered upon the performance of its duties, and on the same day received a certificate of appointment from the township clerk, which, is as follows:

“Hamtramck, Oct. 13, 1899.
“To the Honorable Board of Supervisors of Wayne County:
“Gentlemen: At a meeting of the township board of the township of Hamtramck, held at the office of the township clerk, William Blanck was duly appointed supervisor of the township of Hamtramck to fill the vacancy caused by the removal of Bernard Monaghan.
“George Gable, Township Clerk.”

On the 14th day of October, 1899, William Blanck presented such certificate to the board of supervisors of the county of Wayne, which was then in session, and was admitted to a seat on said board as supervisor of said township of Hamtramck, and continued to act as a member of said board during the entire session.

Relator claims to have been appointed supervisor at the same meeting, and on the 20th day of October, 1899, relator filed a petition with the respondent William L. Carpenter, praying for an order to show cause why William Blanck should not be required to deliver oyer to the relator the books and- papers belonging and appertaining to the office of supervisor of the township of Hamtramck. Relator alleged in his petition that at the meeting of the township board held on the 13th day of October, 1899, George Gable, township clerk, and James Colquett, justice of the peace, on the first ballot, voted to appoint relator supervisor of said township, and that John Reed and William Dickinson, a justice of the peace of the township of Hamtramck, voted for William Blanck; that William Dickinson was not a member of such board, and was not" entitled to sit thereon, and his vote was invalid, and therefore relator received a majority of the legal votes cast, and was elected on the first ballot. Relator also alleges in his petition that William Blanck pretended that he was appointed supervisor of the township of Hamtramck, and that William Blanck had qualified as such supervisor, and claimed and pretended to be the supervisor of said township. William Blanck filed an answer, in which, among other things, he denied that relator was appointed to the office of supervisor of the township of Hamtramck, and alleged that he (William Blanck) was appointed to that office, and that he had qualified and entered upon the performance of the duties of supervisor of the township of Hamtramck, and held the books and papers by virtue of such appointment; and also alleged that, under the undisputed facts, respondents had no jurisdiction to make the order prayed for. At the hearing before the respondents it was decided that, on the face of the records, William Blanck was appointed supervisor, and was prima facie entitled to the possession of the books and papers, and that respondents had no authority to enter into an inquiry as to the merits of the claims of the relator and William Blanck to such office in these proceedings. An order was made dismissing relator’s petition.

A similar question was before us in the case of Ashwell v. Bulloch, ante, 620. At the hearing in that case our attention was not called to the case of Culver v. Armstrong, 77 Mich. 194, which is cited here by the counsel for relator. We agree with the views expressed by the circuit judges in relation to that case, — that it appeared from the record therein that Speers and Ricker were duly elected, and that there was no bona fide controversy as to who was elected to the respective offices, but, as stated by Justice Morse, the attempt to keep them out was the result of a conspiracy for personal ends. In this case the record discloses that Mr. Blanck was duly appointed to the office, and is now in the discharge of its duties. It is the claim of the relator that the record is ambiguous, and, in order to show just what was done by the town board, if is proposed to give oral testimony. Relator is not able to make his case without doing so, and it will also be necessary to enter upon the inquiry for whom the respective members of the town board voted. Mr. Blanck is prima facie entitled'to the office. He is now in the discharge of its duties. The relator claims he was duly appointed, and that he is entitled to the books and papers pertaining to the office. This raises such an issue as ought not to be tried in this proceeding. The case is ruled by Ashwell v. Bulloch, supra, and the cases there cited.

The writ of mandamus will be denied.

The other Justices concurred.