text:
    TOWNSHIP OF CEDAR CREEK v. BOARD OF SUPERVISORS OF WEXFORD CO.
    1. Boards of Health — Contagious Diseases — Claims—Liability of County.
    The allowance of claims by a township board of health under the provisions of 2 Comp. Laws, § 4424, relating to the care of persons sick with contagious diseases, is final and binding on the county as to the character of the disease, the necessity and fitness of the articles and services furnished, the fact that they were furnished, and the inability of the patient to pay.
    2. Same — Itemized Account of Expenses.
    A board of health is not required to keep, in a book of its own, an account of the items furnished each person sick with a contagious disease, if it has such an account before it, and is able to render the itemized and separate statement required by the statute.
    3. Health Officers — Compensation —Contagious Diseases — Liability of County.
    It is not necessary that a health officer should have a previous express arrangement with the board of health for. his services in treating persons sick with contagious diseases, if the board knew that they were being rendered, and afterwards allowed his bill.

      Certiorari to Wexford; Chittenden, J.
    Submitted October 20, 1903.
    (Calendar No. 19,456.)
    Decided December 1, 1903.

      Mandamus by the township of Cedar Creek to compel the board of supervisors of Wexford county to allow certain claims for expenses incurred in the treatment of contagious diseases. From an order denying the writ, relator brings certiorari.

    Reversed.

      O. C. Wheeler (Pratt & Davis and Russell C. Ostrander, of counsel), for relator.

      Fred C. Wetmore (D. F. McIntyre, of counsel), for respondent.
   Hooker, C. J.

In the year 1900 sundry expenses were incurred by the health officer of the township of Cedar Creek, Wexford county; It does not appear that this was expressly authorized by the board of health, but the items were allowed by the said board of the township, and were then presented to the board of supervisors, and they were rejected and disallowed. The claimants — i. e., the persons who furnished the services and other items — then presented them a second time to the board of health of the township for allowance and payment, and they were allowed and paid by the township. Thereafter the township presented an itemized statement of the claims to the board of supervisors for payment, and they were again disallowed.

Relator filed the petition in this proceeding, alleging the foregoing facts, and that the distinction between the township and county poor had been abolished in Wexford county, and that Cedar Creek township had no poor fund; also alleging that the State board of health classes typhoid fever as a communicable disease, dangerous to the public health. The items presented were for expenses alleged to have been incurred in the care and treatment of typhoid fever cases within the township. An answer was filed, denying that the State board of health had authority to determine what diseases were communicable and dangerous to the public health, under the statute applicable to the case, and, upon the hearing which followed, the respondent offered no evidence except medical testimony as to the character of typhoid fever.

The learned circuit judge who heard the cause dismissed the petition for the following reasons:

1. Typhoid fever is not a communicable disease dangerous to the public health, within the meaning of the health law.
2. That one Cochrane, to whom some of the items were furnished, was of sufficient ability to pay for them.
3. That the health officer was careless and negligent in the discharge of his duties, and so far exceeded his authority that the county should not be held liable for the charges, which were unreasonable.
4. That, regarding the bills for merchandise and drugs, there was not sufficient proof that those supplies were necessary for the comfort and well-being of the patients; that the evidence shows a reckless and profligate expenditure of the public funds; and that there is not only no proof that the goods were procured'for the-sole benefit of the sick, but that the proof and bills show that a large portion of the items were food and clothing procured for other persons. These items were excluded by the circuit judge.
5. A charge in favor of Dr. Corlett was disallowed upon the ground that he had “hired himself, fixed his own compensation, and audited his own account.” These bills were rejected.
6. The board of health kept no itemized account of all expenditures as required by law, and therefore the accounts were never properly presented to the board of supervisors.
7. The items for physicians’ and nurses’ services were disallowed upon the ground that they were rendered in typhoid fever cases, and were not within the provisions of the law.

The questions in the case are:

1. Were the items properly disallowed upon the ground that they were rendered in typhoid cases ?
2. Was the judge in error in holding that the ability of Cochrane to pay authorized the disallowance of items furnished to himself and family ?
3. Is the alleged negligence of the health officer a sufficient ground of disallowance ?
4. Was it proper to inquire into the uses to which articles purchased were put ?
5. Was the disallowance of Dr. Corlett’s claim proper ?
6. Was the failure of the health board to keep an account of items a sufficient ground for dismissing the petition?
7. Should an item of $7 in Dr. Morgan’s bill be deducted and disallowed ?

The statute under which these proceedings were taken is chapter 108 of the Compiled Laws, and especially section 4424, which was as follows at the time of the transactions in controversy, viz.:

“(4424) Sec. 15. When any person coming from abroad or residing in any township within this State shall be infected, or shall lately before have been infected, with the smallpox, or other sickness dangerous to the public health, the board of health of the township where such person may be shall make effectual provision, in the manner in which they shall judge best, for the safety of the inhabitants, by removing such sick or infected person to a separate house, if it can be done without danger to his health, and by providing nurses and other assistance and necessaries, which shall be at the charge of the person himself, his parents or other persons who may be liable for his support, if able; otherwise as a charge of the county to which he belongs: Provided, that the health board shall keep and render an itemized and separate statement of expenses incurred in so caring for each person.”

The health board has large discretionary powers, made necessary by the fact that it is an emergency board. When it has reason to fear danger from diseases which are generally recognized as communicable and dangerous to the public health, a court may be justified, in taking judicial notice that the disease is within the statute, which in plain terms includes all diseases where there is danger to the public health from a threatened spread of the disease. There may be other diseases which the courts can judicially know not to be within the statute; but there are still others where it cannot be a matter of judicial notice. In the case of People v. Shurly, 131 Mich. 177 (91 N. W. 139), which was a review of a conviction of a physician for failing to report a case of consumption, — section 4453 making it his duty to report all patients infected with “smallpox, cholera, diphtheria, scarlet fever, or any other disease dangerous to the public health,” — it was held that the question whether or not consumption was a disease dangerous to the public health was for the jury; and it is contended that this case is within'the rule there stated. We think not. Within reasonable bounds, at least, the health officer’s conclusion that a disease is communicable, and is a menace to public health, must be conclusive; otherwise the efficiency of health officers and boards would be seriously lessened, for persons would be likely to hesitate about furnishing necessary medicines and other commodities, and rendering services, if it involved the danger of review by another board, with power to disallow claims upon the ground that the disease was not within the statute, or the goods furnished were not necessary. We are of the opinion that the allowance by the township board of health, which is identical with the township board in townships, was designed to be final, and, where the law imposes the liability upon counties, it was intended that the allowance by the township board should bind the board of supervisors as to the character of the disease, the necessity and the fitness of the articles and services furnished and rendered, as well as the fact that they were furnished. What, if any, remedy there may be in case of fraud or bad faith on the part of the local board, we need not consider here. See Browne v. Board of Sup’rs of Livingston Co., 126 Mich. 276 (85 N. W. 745); Zimmerman v. Board of Sup’rs of Cheboygan Co., 133 Mich. 494 (95 N. W. 535); Pease v. Common Council of Saginaw, 126 Mich. 436 (85 N. W. 1082); Rae v. Mayor, etc., of Flint, 51 Mich. 526 (16 N. W. 887); Wilkinson v. Township of Long Rapids, 74 Mich. 63 (41 N. W. 861); Safford v. Detroit Board of Health, 110 Mich. 85 (67 N. W. 1094, 33 L. R. A. 300, 64 Am St. Rep. 332); Village of St. Johns v. Board of Sup’rs of Clinton Co., 111 Mich. 609 (70 N. W. 131); Alvord v. Board of Sup’rs of Calhoun Co. and Fuller v. Board of Sup’rs of Barry Co. (unreported).

It may be said that the Constitution gives to the board of supervisors the power to adjust all claims against counties, and that it cannot be taken away by statute; but a limitation on this broad proposition is found in the following cases, and this rule applies where the law has pointed out another mode of adjustment: People v. Board of Auditors of Wayne Co., 13 Mich. 233; Kennedy v. Gies, 25 Mich. 91; Mixer v. Board of Sup’rs of Manistee Co., 26 Mich. 425; McMahon v. Board of Auditors of Wayne Co., 41 Mich. 223 (49 N. W. 921); Endriss v. County of Chippewa, 43 Mich. 317 (5 N. W. 632); Van Wert v. School Dist., 100 Mich. 334 (58 N. W. 1119); Withey v. Osceola Circuit Judge, 108 Mich. 168 (65 N. W. 668); Board of Auditors of Wayne Co. v. Reynolds, 121 Mich. 103 (79 N. W. 1121). The cases cited appear to us conclusive of most questions in this case.

The question of the ability of the patient to pay is also foreclosed by the allowance by the township board. See Elliott v. Board of Sup’rs of Kalkaska Co. and companion cases, 58 Mich. 452 (25 N. W. 461, 55 Am. Rep. 706); McKillop v. Board of Sup’rs of Cheboygan Co., 116 Mich. 614 (74 N. W. 1050).

It is urged that the health board did not comply with the proviso requiring that boards keep and present an itemized statement of articles and services furnished to each person. While the board did not keep, in a book of its own, an account of items furnished each person, they had before them and allowed such itemized accoupts, and rendered such an account in this case. This was a sufficient compliance with the statute. The requirement to keep and render an account is met when the board is able to render the itemized and separate statement required by statute. In the case of Village of Durand v. Board of Sup’rs of Shiawassee Co., 132 Mich. 448 (93 N. W. 1074), the board was unable to do this, and the conclusion there reached is not in conflict with the present holding.

There was a bill for 1149.50 for attendance upon patients and consultation with other physicians allowed to Dr. Corlett, the health officer of the township. While no direction to perform these services was given by the board, they knew that they were being rendered, and appear to have acquiesced, and they afterwards allowed the bill. It may be said that the decision of the circuit judge intimates that it is his' conclusion that the “health officer hired himself, fixed his own compensation, and audited his own account;” but we are of the opinion that his language means no more than that Dr. Corlett had no previous express arrangement with the board as to performing the services, that he fixed a price upon his services by rendering a bill, and that he was a member or appointee of the board, and may have been present at its allowance. There is no dispute that his bill was allowed by the board, and nothing to show-that it did not receive the support and vote of the other members. Although .some cases have expressed disapproval and doubt of the validity of an allowance in which the claimant participated, no instance is cited where an item has been rejected for that reason, and we think it should not be in this.

The item of $7 in the bill of Dr. Morgan seems to come within the rule in the case of Browne v. Board of Sup’rs of Livingston Co., 126 Mich. 276 (85 N. W. 745), and should be disallowed.

The frequency of these cases indicates a restiveness under the application of this law, due perhaps, in part at least, to unwillingness on the part of county boards to be concluded by allowances made by local boards. While local boards might perhaps safely be permitted to bind their townships, it may be doubtful if there is not a premium on undue liberality where the allowance is to be paid by the county; The legislature seems to have been of that opinion, and one of the first acts of the last session has made radical changes in the law applicable to this case.

The order of the circuit court is reversed, with costs, and the case is remanded, with direction that the writ issue as to all but the $7 item mentioned.

Moore, Carpenter, and Montgomery, JJ., concurred. Grant, J., did not sit.

       See Act No. 7, Pub. Acts 1903.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    CULY v. UPHAM.
    1. Deeds — Delivery—Conditions.
    Under a recital in a deed that the grantee, as a part of the consideration, should live with and care for the grantor until his death, after which the deed should be delivered to the grantee and her title become absolute, living with and caring for the grantor was a condition precedent to its delivery.
    2. Same — Statute of Frauds.
    A verbal direction to a third party by the grantor in a deed, to deliver it to the grantee at his death, was ineffectual under the statute of frauds, where contrary to the written conditions in the deed.
    3. Same — Testamentary Character.
    An intent expressed in a deed that the title shall remain in the grantor until his death, and then pass to the grantee in case he shall have performed certain conditions, makes the instrument testamentary in character, preventing its being given effect as a deed.
    4. Equity Practice — Appeal.
    Chancery cases should, as a general rule, be so tried that, in case of appeal, they may be finally disposed of.
    Appeal from Gratiot; Stone, J.
    Submitted October 23, 1903.
    (Docket No. 47.)
    Decided December 1, 1903.
    Bill by Stephen Culy and others against Hannah M. Upham to set aside a deed. The case was heard, in pursuance of a stipulation, upon pleadings. From a decree for complainants, defendant appeals.
    Affirmed.

      Searl & Monfort, for complainants.

      John M. Ever den and Julius B. Kirby (C. W. Bid-dings, of counsel), for defendant.
   Carpenter, J.

William Culy died August 27, 1901. On the 1st of the preceding June he executed a deed of the land in controversy to his daughter, the defendant. This suit is brought by his other heirs at law to set aside-said deed on the ground that the grantor, at the time of' its execution, was mentally incompetent, that its execution was procured by undue influence, and that the deed was never delivered. When the case came on for hearing, the trial court was of the opinion that the recitals in the deed itself, together with the statements in the answer, proved that the title did not vest in the grantee during the grantor’s life, and thereupon, without hearing any testimony, entered a decree for complainants.

The deed recited:

“ The conditions of this deed are such that whereas I, the said grantor, am indebted to my said daughter, Hannah M. Upham, in the sum of one thousand dollars for her personal services to myself and also to my deceased wife, which amount is a part of the consideration above named. As a further consideration, my said daughter, Hannah M. Upham, is to live with me at my expense, and care for me, my wife being dead, so long as -I shall live; the lands above mentioned being ample, and the income therefrom, which can only be used to maintain and support myself, my said daughter, Hannah M., and my grand-daughter, Minnie, so long as she shall remain unmarried, but no longer than until my death.
“As a further part consideration, my said daughter, Hannah M. Upham, shall pay to my other children, within three years after my death, as follows.” (Then followed a statement giving to each of seven named persons the sum of $50.)
“It is expressly understood that my said daughter, Hannah M. Upham, shall live with me and care for me, that the expense thereof shall be derived from the use and income arising from said described lands, and also from any personal property I may have, and that she is to remain with me and care for me until my death, after which event this deed shall be delivered to her, and her title to said lands shall become absolute upon the payment of the several amounts above stated.”

It appeared from defendant’s answer that this deed, after execution, was deposited with John M. Everden, of Ithaca, Mich., who was instructed by the grantor to deliver it to the grantee after his death; that, after the •execution of the deed, the grantor informed the grantee “of what he had done, and of the contents and conditions of said deed, and stated to her that he desired to pay her for her services in caring for her mother and himself, as heretofore stated; that he did not have the money to pay her, but wished to have the matter definitely settled during his lifetime, and so had conveyed to her the said premises, on the conditions named in said deed; that he would undoubtedly require personal care and attention in his declining years, aside from the performance of household duties, and it was his desire that she should be with him and care for him so long as he might live, and give him that personal attention which he felt she alone could give; that the other conditions named in said deed were also talked over at the time, and her said father asked her if she was satisfied, if she was willing to receive her pay for the $1,000 in that way, and if she could and was willing to accept and perform the other conditions named in said deed; that she informed him that whatever was satisfactory to him would be to her; that he replied, ‘Then we will leave it just as I have arranged it,’ to which she answered, ‘ If you wish it that way, I am satisfied ;’ ” and that, after the grantor’s death, said Everden •delivered the deed to the defendant.

It is affirmed by complainants, and denied by defendant, that no title would pass until the other children were paid the sums specified in the deed. In our view of the •case, it is unnecessary to consider this question, for we think it appears clearly from the recital in said deed that the grantee, as a condition precedent to its delivery, was to live with the grantor and care for him until he died. If -she failed to perform this condition, she would not, manifestly, under the terms of the deed itself, be entitled to its •■delivery.

The argument is made that as the grantor, after the execution of the deed, verbally directed that it should be delivered to the grantee on his death, evidence is thereby afforded of an intent to waive the performance of this condition precedent. It is a complete answer to this argument to say that this direction was merely an attempted verbal modification of the written conditions of the deed, and therefore,'under the statute of frauds, entirely ineffectual.

“The purport of a deed cannot be changed by parol, and no condition or reservation contrary to its terms is valid.” Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291).

It is quite apparent that the grantor in this deed intended that title should remain in him until after he died, and that it should then pass to defendant, if she had performed the conditions. This intent was testamentary in character, and could not .be consummated by a deed.

“The authorities are all agreed that no deed can be valid without delivery by the grantor. It must be made operative by his act while he is able to act. * * * It seems well settled that any deed which is to be maintained after death must have been made operative by some valid delivery by the grantor during life.” Taft v. Taft, 59 Mich. 185 (26 N. W. 426, 60 Am. Rep. 291).

That decision, as shown by the following quotation from the opinion, governs the case at bar:

“In the present case there was nothing which would have justified the submission to the jury of the question of the delivery of the deed of 1878. The note, which was to be executed after Aden Taft’s [the grantor’s] death, was to be executed as a condition precedent to the transfer of the title. It was not executed earlier in fact, and the deed was never delivered earlier. Had Aden delivered it to defendant, to become operative afterwards on the performance of some condition, it might have presented a very different appearance. But the delivery was meant, to be, and was in fact, posthumous, and therefore void.”

The cases of Latham v. Udell, 38 Mich. 238, Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640), Wallace v. Harris, 32 Mich. 380, and Hosley v. Holmes, 27 Mich. 416, in which this court upheld the validity of deeds placed in the hands of third persons, to take effect upon the grantor’s death, are clearly distinguishable from the case at bar. These cases, as stated in Thatcher v. St. Andrew’s Church, 37 Mich. 264, proceed upon the theory, forbidden by the circumstances of this case, that the delivery to the third person “gives effect to the deed.”

Hitchcock v. Simpkins, 99 Mich. 198 (58 N. W. 47), relied upon by defendant, is also clearly distinguishable. In that case the .deed was actually delivered to the grantee, though his right to enjoy the property was, by the terms of the deed, postponed until the death of the grantor. There was nothing whatever in the deed inconsistent with the intent that, subject to the postponement of the enjoyment, the title passed at once, and it was so held. The reasoning in that case (see page 201) is in harmony with this opinion.

It results from these views that the decree of the court below should be affirmed.

We do not wish, by our silence, to seem to approve the procedure adopted in this case. If we had disagreed with the trial judge on the legal proposition discussed in this opinion, we could not have made a final disposition of the case. We should have been forced to remand the record for another hearing in the court below. As a general rule, suits at chancery should be so tried in the lower court that, when they are appealed, this court may finally dispose of the issue raised by the pleadings.

The other Justices concurred.


author: Grant, J.

text:
    PEOPLE v. HARRIS.
    Pure-Food Laws — Corn Syrup — Glucose.
    Under Act No. 123, Pub. Acts 1903, prohibiting the sale of cane syrup, beet syrup, or glucose unless the package containing the same be labeled with its true name, or of cane or beet syrup mixed with glucose unless the package be labeled “Glucose Mixture” or “Com Syrup,” with the name and percentage of each ingredient contained therein plainly stamped thereon, it is permissible, in stating the ingredients of a mixture of 10 per cent, cane syrup and 90 per cent, glucose made from corn, to use the term “corn syrup” instead of “glucose.”
    Exceptions before judgment from Kent; Perkins, J.
    Submitted November 3,1903.
    (Docket No. 248.)
    Decided December 1, 1903.
    Benjamin S. Harris was convicted of violating Act No. 123, Pub. Acts 1903, relative to the sale of corn syrup. Reversed.
    Respondent was prosecuted and convicted for a violation of Act No. 123 of the Public Acts of 1903, entitled “An act in relation to the sale of corn syrup,” and reading as follows:
    “ Section 1. No person shall offer or expose for sale, have in his possession with intent to sell, or sell any cane syrup, beet syrup, or glucose, unless the barrel, cask, keg, can, pail, or package containing the same be distinctly branded or labeled with the true and appropriate name; nor shall any person offer or expose for sale, have in his possession with intent to sell, or sell any cane syrup or beet syrup mixed with glucose, unless the barrel, cask, keg, can, pail, or package containing the same be distinctly branded or labeled ‘ Glucose Mixture ’ or ‘ Corn Syrup ’ in plain Gothic type not less than three-eighths of an inch square, with the name and percentage by weight of each ingredient contained therein plainly stamped, branded, or stenciled on each package in plain Gothic letters not less than one-quarter of an inch square. Each and every package of syrup, either simple or mixed, shall bear the name and address of the manufacturer. Such mixtures or syrups shall have no other designation or brand than herein required that represents or is the name of any article which contains a saccharine substance; and all brands or labels required shall be an inseparable part*of the general or distinguishing label, and that the general or distinguishing label shall be that principal and conspicuous sign under which it is sold.
    * ‘ Sec. 2. Whoever shall do any of the acts or things prohibited, or neglect or refuse to do any of the acts or things required, by this act, or in any way violate any of the provisions, shall be deemed guilty of a misdemeanor, and shall be punished by a fine not less than twenty-five dollars nor more than one hundred dollars, or by imprisonment in the county jail for a period of not less than thirty nor more than ninety days, or by both such fine and imprisonment, in the discretion of the court.”
    The complaint charges him with the unlawful sale of—
    “A two-pound can, two pounds, of a certain article, product, and compound, to wit, corn syrup, so called, made wholly or in part of cane syrup and glucose as follows, to wit: Cane syrup, ten per cent., and glucose, ninety per cent.; said can containing said article, product, and compound sold as aforesaid not being then and there stamped, branded, or stenciled with the name and percentage by weight of each ingredient contained therein, to wit, cane syrup, ten per cent., glucose, ninety per cent., but said article,.product, and compound sold as aforesaid was then and there stamped and branded as follows, to wit: ‘ Cane syrup, ten per cent., corn syrup, ninety per cent. against the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”
    Respondent moved to quash the complaint and warrant for two reasons: (1) They charged no offense; (2) the act authorizes the use of the words “corn syrup,” instead of “glucose,” in the statement of the ingredients placed upon the can.' The motion was overruled, and the case proceeded to trial upon the following agreed facts:

      1. The respondent sold on October 12, 1903, at the city of Grand Rapids, Mich., the can of Victor Corn Syrup in question.
    2. The label on said can of syrup sold, as stated in the complaint, contains the formula of contents of said can as follows: “Corn syrup, 90 per cent., cane syrup, 10 per cent.,” and is not branded or labeled as the people claim it should be, “Glucose, 90 per cent., cane syrup, 10 per cent.”
    3. The Victor Corn Syrup in question is in fact composed of 90 per cent, syrup made from corn, commercially called “glucose” or “corn syrup,” and 10 per cent, of cane syrup.
    4. Glucose contained in the Victor Corn Syrup in question is in fact a pure syrup made entirely from corn.
    5. “Grape sugar,” commercially known as “glucose,” either solid or liquid, is a generic name for starch sugar, as distinguished from cane sugar.
    6. A simple beet syrup is strictly the same as the simple cane syrup.
    7. Originally, glucose, whicn was first made from grapes, was, for the reason that starch sugars are identical with the sweet principle of grapes, termed, for a great many years, and until lately was known chemically and commercially as, grape sugar.
    8. Commercially, glucose is now made in this country entirely from corn, although abroad it is still made from potatoes.
    9. The consuming public does not understand that glucose is a syrup made entirely from corn. On the contrary, it is claimed by the respondent that the public generally supposes glucose to be an inferior product made from animal fat, or a product of the glue factory, while they do recognize corn syrup as being a syrup made from corn.
    10. Glucose, as made from corn, and contained in Victor Corn Syrup in .question, is entirely harmless, and recognized generally by highest authorities as á valuable food product.
    11. Glucose made from corn in fact costs, at the present time, owing partially to cost of raw material, more to produce, and sells for more in the markets, than manufactured cane syrup.
    The court directed a verdict of guilty.

      Knappen, Kleinhans & Knappen, for appellant.

      Charles A. Blair, Attorney General, and William B. Brown, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). Does the statute require respondent or manufacturers to state upon their labels that corn syrup consists of 90 per cent, glucose ? No such statute has come under the decision of ' other courts. It is a new question, and must be determined upon general principles of construction. It is conceded that the label states the exact facts; that the article is made of 90 per cent, pure corn syrup and 10 per cent, cane syrup; that it deceives no one; that Victor Corn Syrup is a valuable and pure article of food, and that the ingredient 90 per cent, corn syrup “is- entirely harmless, and recognized generally by the highest authority as a valuable food product,” whether it be called “glucose” or “corn syrup.” The term “glucose” is obnoxious to many, if not a majority, of the public, and is misunderstood by them. They do not know that in this country glucose is now made entirely from corn, and that the terms “glucose” and “ corn syrup” are commercially synonymous. This 'fact is known to the manufacturers, and perhaps the dealers. A prejudice exists against the term “glucose,” because that material can be manufactured from many substances, including sawdust. In Europe it is made mainly of potatoes. By many it is associated with a glue factory. In this country “corn syrup” and “glucose” are not only commercially synonymous terms, but it is stated by counsel for respondent that they are permitted to be so used in all the other States. We have not verified this statement, but, as it is not challenged, we . assume it to be correct.

We have, therefore, a valuable and healthful product, made from two pure, valuable, and healthful ingredients, advertised and placed upon the markets for what it really is, without any deception, fraud, or chance to injure the public in any way. Yet the contention on behalf of the people is that the legislature has enacted that, in putting this product upon the market, its manufacturers and sellers must attach to it a name obnoxious to the public, and in fact calculated to deceive them. When it is claimed that such innocent acts are made malum prohibitum, there must be either an express provision of the statute so declaring, or the language of the statute must leave no other conclusion reasonable. This statute does not expressly require it.

The argument on behalf of the people is “that glucose made from corn is glucose, the simple syrup mentioned in and intended to be mentioned in said act.” The further claim is “that, had there been any intention on the part of the legislature to use the terms ‘glucose’ and ‘corn syrup ’ interchangeably and as synonymous, then the term ‘ corn syrup ’ would have been enumerated as one of the simple syrups.” We do not think this reasoning at all conclusive. Prior to the enactment of this statute, the law prohibited the sale of molasses, syrup, or glucose unless distinctly branded or labeled with its true and appropriate name; or any mixture thereof, unless it was branded or labeled “glucose mixture,” and «the per cent, in which glucose entered into its composition. 2 Comp. Laws, § 5024. The present act, which repeals the provisions of the former act, expressly permits the mixture to be labeled “Glucose Mixture” or “ Corn Syrup,”and forbids mixtures or syrups to have any other designation than required in the act, so far as such designation “ represents or is the name of any article which contains a saccharine substance.” It is a fair presumption that the legislature, in enacting this law, recognized the obnoxious character of the term “ glucose ” among the people, and permitted, and intended to permit, a mixture of corn syrup and cane syrup to be sold under the name of corn syrup. The title to the act provides for the sale of corn syrup, and in its body provides that, when cane syrup is mixed with it, the manufacturers and dealers shall state the propertionate ingredients. The small amount of cane syrup used does not change the character of the general product, any more than salt changes the character of bread, or sugar that of cake; and the act permits the sale of the mixture as corn syrup. ‘ ‘ Syrup, ” as defined by the United States Department of Agriculture, “is the product obtained by purifying and evaporating the juice of a sugar-producing plant without removing any of the sugar.” Syrup thus obtained from cane is cane syrup; syrup so obtained from sorghum is sorghum syrup; and syrup so obtained from corn is corn syrup. There is no reason why corn syrup should be labeled “glucose,” and, until the legislature has so ordered in language susceptible of no other construction, the law must be held not to bear that construction.

Conviction reversed, and respondent discharged.

Moore, Carpenter, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.


author: Hooker, C. J.

text:
    BROWN v. BROWN.
    Divorce — Alimony—Support op Children — Contempt—Imprisonment.
    A monthly allowance decreed to a wife for the support and maintenance of a child in a suit for a divorce is “alimony,” within the meaning of Act No. 230, Pub. Acts 1899, authorizing the enforcement of a decree for alimony through imprisonment for contempt.

      Certiorari to Macomb; Tucker, J.
    Submitted November 4, 1903.
    (Docket No. 81.)
    Decided December 1, 1903.
    Contempt proceedings by Lucy M. Brown against Calvin S. Brown for refusal to pay alimony. Defendant, • having been committed, obtained an order of discharge on habeas corpus, to review which petitioner brings certio-' rari.

    Reversed.

      John E. Nolan (William G-: Gage, of counsel), for appellant.

      Silas B. Spier and Robert E. Eldredge, for appellee.
   Hooker, C. J.

A decree of divorce was granted to the complainant, Lucy M. Brown, containing the provision that the defendant, Calvin S. Brown, pay to her, for the support and maintenance of their infant child, whose custody was by said decree given to her, the sum of $6 per month from the time of the enrollment of the decree to April 18,1901, and $8 per month thereafter to April 18, 1905. The defendant has not paid any portion of the sum so allowed to the complainant. On November 4,1902, she caused to be served upon the defendant a certified copy of the decree, together with a written demand upon him to pay to her the money due under said decree for the support and maintenance of said child, Earl W. Brown. Said demand not having been complied with, she filed a petition for an attachment to ' enforce compliance with. the decree. Upon return of an order to show cause, a hearing was had, and the defendant was adjudged guilty of contempt in failing to pay in accordance with the decree, and it was ordered that he be committed to the county jail, and there confined until he should pay the money due, and on January 26, 1903, a precept was issued, and he was taken into custody. On January 31st a writ of habeas corpus was allowed by the circuit judge of St. Clair county, and a hearing was had on February 7th, at which time a motion to quash the writ was made. This was before Judge Law, sitting at Mt. Clemens, and it was understood that Judge Tucker, who sát with him, should act with him in the determination of the case. Subsequently Judge Law notified counsel that he considered that the matter was one to be determined by Judge Tucker, the resident judge of the circuit, and on March 31, 1903, Judge Tucker made an order releasing the defendant from custody. The cause was brought to this court by writ of certiorari.

The important question in the case is whether the decree for payment of money for the support and maintenance of the infant may be lawfully enforced through imprisonment for contempt, and this must depend upon Act No. 230 of the Public Acts of 1899, which is amendatory to 3 Comp. Laws, § 10891. Subdivision 3 of section 10891 is as follows:

“Parties to suits, attorneys, counsellors, solicitors, and all other persons, for the nonpayment of any sum of money ordered by such court to be paid, in cases where by law ^execution cannot be awarded for the collection of such sum, and for any other disobedience to any lawful order, decree, dr process of such court.”

Under this statute it was held that contempt proceedings were not permissible as a means of enforcing a final decree for alimony, inasmuch as execution could be lawfully obtained to enforce it. See 3 Comp. Laws, § 8640; Haines v. Haines, 35 Mich. 138; North v. North, 39 Mich. 67; Swarthout v. Lucas, 102 Mich. 494 (60 N. W. 973).

In 1899 subdivision 3 of section 10891 was amended to read as follows:

“Parties to suits, attorneys, counsellors, solicitors, and all other persons, for the nonpayment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum; the disobedience of [or],refusal to comply with any order of such court for the payment of alimony, either permanent or temporary, made in any suit for divorce; and any other disobedience to any lawful order, decree, or process of such court. ”

If this provision in the decree can be called a provision for alimony, or if the case falls within the last clause,— i. e., “any other disobedience to any lawful order, decree, or process of such court,” — the procedure in the case was lawful, and the defendant should not have been discharged. The gist of petitioner’s contention is that an order providing for the maintenance of children does not fall within the term “alimony.”

The common-law definition given by law writers of the term “alimony” is perhaps not broad enough to include suit money or provision for infant children of the parties to a divorce. See 1 Bish. Mar., Div. & Sep. §§ 1385, 1386; 2 Bish. Mar., Div. & Sep. § 829 et seq.; 2 Am. & Eng. Enc. Law (2d Ed.), 92 et seq.; Taylor v. Taylor, 98 N. C. 418 (53 Am. Rep. 460). These authors state, however, that some of the statutes and decisions give a broader meaning to the term. 2 Bish. Mar., Div. & Sep. §§ 829, 835, 907, 1020, 1213; 2 Am. & Eng. Enc. Law (2d Ed.), 92; 9 Am. & Eng. Enc. Law (2d Ed.), 862, 863; Whieldon v. Whieldon, 2 Swab. & T. 388; Richmond v. Richmond, 2 N. J. Eq. 90. Our statutes bearing upon this subject are as follows:

“(8638) Sec. 23. Upon every divorce from the bond of matrimony for any cause except that of adultery committed by the wife, and also upon every divorce from bed and board for any cause, if the estate and effects awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband, and such alimony out of his estate, real and personal, to be paid to her in gross or otherwise, as it shall deem just and reasonable, having regard to the ability of the husband, and the character and situation of the parties, and all the other circumstances of the case.”
“(8640) Sec. 27. In all cases where alimony or allowance for the support and education of minor children shall be decreed to the wife, the amount thereof shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and, in default of payment of the amount so decreed, the court may decree the sale of the property against which such lien is decreed, in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the same; or the court may sequester the real and personal estate of the husband, and may appoint a receiver thereof, and cause such personal estate and the rents and profits of such real estate to be applied to the payment thereof; or the court, in lieu of a money allowance, may decree such a division between the husband and wife of the real and personal estate of the husband, or of the husband and wife by joint ownership or right, as he shall deem to be equitable and just.
“(8641) Sec. 28. After a decree for alimony or other allowance for the wife and children, or either of them, and also after a decree for the appointment of trustees to receive and hold any property for the use of the wife or children, as before provided, the court may, from time to time, on the petition of either of the parties, revise and alter such decree respecting the amount of such alimony or allowance, and the payment thereof, and also respecting the appropriation and payment of the principal and income of the property so held in trust, and may make any decree respecting any of the said matters which such court might have made in the original suit.”

An examination of those statutes leads us to believe that the legislature intended to provide relief of two kinds, viz.: (a) An allowance of specific property; (b) a sum to be paid to the wife by the husband for the support of the wife and such children as should be placed in her custody; and that this latter sum, which the statute contemplates is to be paid to her from his estate for her own or the children’s support, or both, is called “ alimony ” in the statute. Several of our decisions seem to have so treated it. Thus, in Swiney v. Swiney, 107 Mich. 460 (65 N. W. 287), Mr. Justice Montgomery used the following language:

“As to the question of alimony, it appears that the complainant herself is possessed of $3,500, and that the defendant is worth $5,500. The Court below was of the opinion that, in view of the fact that the custody of the only dependent child of’ the parties was accorded to complainant, an allowance of $1,000 should be made for her support and maintenance. We are satisfied that this conclusion was not inequitable, but, under section 6245 of 2 Howell’s Annotated Statutes, the award in such cases should be made to the wife, and we find no authority for making an allowance to a child or its guardian.
' “The decree will be modified, and the sum of $1,000 will be awarded to complainant in full for alimony, and, as so modified, the decree will stand affirmed, with costs.”

Again, in Glick v. Glick, 110 Mich. 304 (68 N. W. 153), the late Mr. Justice Long spoke as'follows of an order for the maintenance of a child, viz.:

“ The lien was declared December 30, 1893, principally to secure payment of alimony for the maintenance of an infant child of the parties, about four years of age. The decree required Albert to pay to complainant the sum of $20 every three months for the support, care, and education of the child until it arrived at the,age of 12 years, giving its custody to the complainant.”

In Judd v. Judd, 125 Mich. 228 (84 N. W. 134), Mr. Justice Moore said:

“The decree, in addition to other things, provided for the payment by defendant to complainant of $75 on the 1st day of each month for permanent alimony for the support of the complainant and the child.”

A petition for an attachment was dismissed, but this decision was reversed. The question now raised was not discussed, but it was necessarily involved in the case; and, while it may be that it is not otherwise adjudicated by any of the cases cited, they serve to show the interpretation placed upon the statute, and we think it a correct one.

There is as much necessity for stringent measures to compel the support of helpless children as there can be for that of the divorced wife; and, whether or not she is entitled to share such provision, the fact that it is payable to her, and is apparently called “alimony,” and relieves her from a burden of supporting her children, which the law places upon her under some circumstances, makes it reasonable to believe that, in amending section 10891, the legislature so construed these statutes and used the word “alimony.”'

It is unnecessary to pass upon other questions discussed. It follows that the court was in error in ordering petitioner’s discharge. The writ of habeas corpus is dismissed, and the defendant is remanded to the custody of the law, under the precept issued in the contempt proceedings, to be dealt with according to law. The appellant is entitled to costs against the petitioner.

The other Justices concurred.


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    HOVEY v. GRAND TRUNK WESTERN RAILWAY CO.
    1. Landlord and Tenant — Title to Crops — Evidence.
    Where plaintiff testified that he was in possession of a farm and had crops growing there, in which a tenant had a share, it cannot be said that there was no evidence that plaintiff had an interest in the crops, although it appeared that his father and mother owned the land and had leased it to the tenant.
    2. Pleading — Assignment.
    Where plaintiff acquired an interest in crops by assignment before they were damaged by flooding, it was unnecessary to allege the assignmént in an action for the damages.
    3. Assignment — Right op Action.
    An assignment of all damages sustained by flooding certain land on a certain date is sufficient to transfer the right of action for the damages sustained by the flooding.
    Error to Shiawassee; Smith, J.
    Submitted November -1, 1903.
    (Docket No. 80.)
    Decided December 1, 1903.
    Case by Eben Hovey against the Grand Trunk Western Bailway Company for damages to crops caused by the •obstruction of a watercourse. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      E. W. Meddaugh (L. C. Stanley, of counsel), for-appellant.

      Watson & Chapman, for appellee.
   Carpenter, J.

In his declaration, plaintiff avers that on July 3, 1903, certain growing crops belonging to him and one Alvin Woodthorp, situated on the west 96 acres of the southwest quarter of section 14, Vernon township, Shiawassee county, were, through defendant’s negligence, flooded by water and damaged, and that Woodthorp assigned his claim to plaintiff. The issue was submitted to a jury, who rendered a verdict in plaintiff’s favor. Defendant seeks a reversal of that judgment on the ground that there was no evidence that plaintiff owned an interest in those crops', and that the assignment of Woodthorp was insufficient to transfer his cause of action.

Was there any evidence that plaintiff owned an interest in these crops ? The testimony proves that the title-to the land upon which these crops were raised belonged to the father and mother of plaintiff as long as either should live; that on the death of the survivor it vested in plaintiff; that the father and mother made a lease to Woodthorp, presumably prior to January 1, 1903, under which the latter was to work the farm on shares, and under which he entered into possession. If this were all that the record showed, the conclusion would follow that the crops belonged to plaintiff’s father and mother and Woodthorp.' But this is not all that the record shows. We quote from the plaintiff’s testimony:

Q. Who was in possession and occupancy of that farm last spring during the months of June and July, 1903?
“A. I was.
“Q. Did you have any crops growing there ?
“A. I did. Alvin Woodthorp, tenant, had half share.”

Witness then described the damaged crops in detail* referring to them repeatedly as his.

The fact that plaintiff’s father and mother owned the-land and leased it did not prevent their transferring the crops to the plaintiff. If his testimony is to be believed — and its credibility was for the jury — we are bound to assume that in some way plaintiff acquired his parents’ interest in the growing crops, and acquired it, too, before the crpps were damaged by the defendant.

The objection urged by defendant’s counsel that there can be no recovery because there was no averment of an assignment to plaintiff from his father and mother is not well taken. According to plaintiff’s testimony, he owned an interest in these crops at the time they were damaged. The cause of action was therefore his when it arose. 'There was therefore no assignment, and consequently no reason for averring it.

Was there sufficient evidence of an assignment to plaintiff of the cause of action of Woodthorp ? That assignment was in writing, and reads as follows:

“For a valuable consideration, I hereby sell, assign, and set over to Eben Hovey all damage which I sustained on account of flooding on the 2d day of July, 1902, on south side of Grand Trunk Western Railroad, on the west 96 acres of the southwest quarter of section 14, in the township of Vernon, Shiawassee county, Michigan.”.

It is objected that this assignment is too indefinite to transfer anything; that no right of action is mentioned. We think this objection not well taken. The assignment, though inartificially drawn, clearly shows the intent of the assignor to transfer to plaintiff his right of action for all damages sustained on account of the flooding under consideration.

It results, therefore, that the judgment of the trial court must be affirmed, with costs.

The other Justices concurred.


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    TRUAX v. HEARTT.
    1. Recoupment — Burden of Proof.
    Recoupment being an affirmative defense, the burden of proof' to establish it is upon the defendant.
    2. Pleading — Affirmative Defense — Notice.
    A defendant cannot insist on an affirmative defense not fairly-set up in his notice under the general issue.
    3. Contracts — Breach—Recoupment—Fire—Instructions.
    Under a notice of recoupment that plaintiff had agreed to employ a night watchman in a shingle mill, and leave a boiler . and engine in like good condition as wherq taken, except for natural wear from proper use, and that, because of plaintiff’s negligence in not employing a night watchman, the engine and boiler were damaged by a fire, a charge that, if the fire was due to plaintiff’s failure to employ a night watchman, defendant would be entitled to damages, was as favorable as defendant was entitled to.
    4 Appeal — Questions Not Raised on Trial.
    A judgment will not be reversed on a point raised for the first time on motion for a new trial.
    Error to Tuscola; Beach, J.
    Submitted November 5, 1903.
    (Docket No. 89.)
    Decided December 1, 1903.

      Assumpsit by Lewis C. Truax against William A. Heartt for work and labor. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      F. S. Wheat, for appellant.

      Atwood & Pulvqr, for appellee.
   Hooker, C. J.

The plaintiff brought this action to recover compensation for sawing certain shingles for the-defendant. The declaration was upon the common counts, and a bill of particulars was filed. Neither appears in the printed record, and no question has been raised making it necessary. Plaintiff’s claim was $108, and for this sum he was given a verdict and judgment.

A written notice of recoupment was filed with the plea of the general issue. This notice alleged that the shingles were sawed under a written contract made between the parties and set up in the notice. The substance of this agreement, so far as it is necessary to state it for an understanding of the questions before us, was as follows', namely: Defendant had some shingle stock and an engine and boiler on his property at Wahjamega. The plaintiff owned a shingle mill, which he agreed to place upon the defendant’s property, and manufacture the shingle stock, in workmanlike manner, forthwith, and without delay. It was further agreed that during the prosecution of the work he should “keep employed a night watchman, to avoid accidents from fires.” It was also agreed that “ party of the first part is to have the use of the boiler and engine now in mill frame, or adjoining, in cutting the shingles, and agrees to leave it in like good' condition when the job is completed as now, save and except natural wear from proper use.”

The notice stated further that the plaintiff delayed the removal of his mill to Wahjamega, and delayed working up the timber, contrary to the terms of the contract, and that he did not employ competent men as required by the contract, and that the cutting, assorting, and packing were done “not carefully and savingly;” that, instead of restoring the engine and boiler in like good condition as when taken, save natural wear from proper use, “on or about February 1st last [1902] said engine and boiler have been unfit for use, because of the gross carelessness and negligence of the plaintiff;” and “during.the prosecution of the Work said plaintiff agreed to employ a night watchman, to avoid accident from fire, etc., instead of which for a part of the time only was a night watchman so employed, because of which, on or about February 1st last," a fire occurred, to the injury of this defendant;” ‘ ‘ because of said fire, resulting from the gross carelessness and negligence of said plaintiff, a large amount of timber suitable for making shingles, as well as manufactured shingles, in and about the mill and mill premises, together with the mill frame of this defendant, was destroyed, and wholly lost to this defendant.” A motion for new trial was made upon various grounds, and this was denied, and defendant has brought the cause to this court by writ of error.

It was conceded on the trial that the injury to the engine and boiler amounted to $129, that being the cost of repairs. It was contended on the motion for a new trial and upon the hearing- that plaintiff was chargeable with this item under the express provisions of the contract, and that the jury should have been so directed. It was «also shown that no night watchman was kept upon the premises, except that plaintiff’s fireman sometimes slept there nights, and had done so regularly for a week before the fire; that, when the contract was executed, plaintiff said: “ This is the kind of a night watchman I propose to have. My fireman says that he will sleep in the mill nights, in a small house near the boiler.” “I said, ‘That’s the kind of a night watchman I propose to have,”’ and that defendant made no objection. On the occasion of the fire the fireman left for supper at 25 minutes past 6, and the alarm was given about 20 minutes before 7, the same evening. Counsel claims that the failure to keep a night watchman was a breach of the contract, entitling defendant to recoup damages to the engine and boiler.

In his charge, which appears to have treated the case upon some of its points as one of negligence, the court said that the plaintiff would be entitled to a verdict for $108, unless defendant showed a right to damages, and that the “burden is upon the defendant to show, by a preponderance of the evidence, that he has sustained them.” Error is assigned upon this. He left the question of damages arising from delay to the jury, and there is no occasion to discuss that subject. Referring to the fire, he said:

“The other item of claimed damages is that the mill burned. There is no dispute here but that he owned the engine and boiler, and the claim is that, by reason of the fire, this engine and boiler were damaged. He has put before you testimony which he claims to have been the items constituting that damage, — what it would cost to repair the engine and boiler. It does not follow, simply because he sustained that loss, that the plaintiff is responsible for it. But the claim is made upon the theory that the fire which caused the loss was a negligent fire. The contract calls for a night watchman to be employed by Mr. Truax. The claim of Mr. Truax [Heartt] is that, by reason of negligence in that respect, the fire occurred; occurred from, and can be directly traceable to, a breach of the contract in that respect, — the nonemployment of a night watchman.
“You have heard the testimony as to the time when the fire occurred, and the manner in which it occurred, so far as it is known. I will say to you, in the first place, that a fire occurring in this way— We all know, from the character of the work, the character of the machinery, and the work being done, and all that, that there is danger attending the working of a shingle mill, and that there are probabilities of fire occurring, and, to guard against this, this clause was put in the contract. But at the same time we know that, even with night watchmen and everything properly guarded, a fire might take place for which no one would be particularly responsible. From the character of the business it is one of the risks, and I say to you there is not very much testimony here as to the origin of the fire; but it is your duty to pass on that question, and if the testimony, by the preponderance of the testimony, convinces you that the neglect to employ a night watchman resulted in this fire, that the fire was an act of carelessness which might have been guarded against by the employment of a night watchman, why it would be a breach of this contract, and Mr. Heartt would be entitled to recoup the damages which he sustained to this mill. But, as I say to you, the burden was upon the defendant to trace this fire by some testimony — by some evidence — which preponderates in your mind, in favor of a theory of a negligent fire, before he can recover under that claim. If the fire was negligent, I say to you that this would be a breach of this contract. If the fire occurred as one of the incidents of a risky business, the plaintiff would not be chargeable with the loss. If you find that Mr. Heartt has sustained damages under these claims, then you will compute the amount of those damages, and set it off against the claim of the plaintiff here for $108.6?, and render a judgment for the plaintiff for the balance. If they exceed the claim of the plaintiff, — if those damages, in your mind, when you have settled them, exceed the claim of the plaintiff, — then you will render a verdict for the difference in favor of the defendant.”

It is now claimed that this charge was erroneous in limiting the right to recover damages by what was said about negligence, and in what was said regarding plaintiff’s non-liability if the fire occurred as one of the incidents of a risky business, and not from negligence in plaintiff’s failure to employ a night watchman.

Circuit Court Rule No. 7 requires notice of an affirmative defense. Recoupment is such, and the learned circuit judge was clearly right in saying that the burden .of proving it was upon the defendant. Again, the plaintiff was not bound to meet any affirmative defense not set up in such a way as to fairly apprise him of it. The notice in this case shows a claim, based upon a breach of contract, for damages in the manufacture of the shingles, and this was submitted to the jury. The same may be said of his failure to employ a night watchman; and ' the court instructed the jury that, if the fire was due to the plaintiff’s negligence to employ a night watchman, defendant would be entitled to damages for injury to the engine and boiler, and this was as favorable instructions upon that subject as the defendant had a right to expect.

To the claim that the failure to restore the boiler and engine in the condition required by the contract entitled defendant to recoup damages, a sufficient answ.er is found in the fact that the notice contains no such claim. Moreover, the case was not tried upon such a theory, and defendant’s requests contain no allusion to it. The court tried the case and charged the jury in exact accordance with thp notice, and, having done so, he properly denied the motion for new trial. We fail to discover anything to indicate that the present claim was in any way made upon the trial.

The judgment is affirmed.

The other Justices concurred.


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    SOULE v. HARRINGTON.
    1. Chattel Mortgages — Filing—Notice—Purchaser.
    One who buys chattel-mortgaged property subject to the claim of the mortgagee cannot complain because the mortgage was not filed in the office of the clerk of the township where the mortgagor resided.
    2. Same — Fraud.
    A purchaser of mortgaged chattels cannot defeat the mortgage on the g/ound that the mortgagor was induced to execute it by fraudulent representations.
    3. Sale — Fraud.
    Fraudulent representations made to a purchaser after the purchase give him no cause of action.
    Error to Otsego; Sharpe, J.
    Submitted November 6, 1903.
    (Docket No. 112.)
    Decided December 1, 1903.
    Replevin by Charles P. Soule against William A. Harrington. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      William A. Harrington, in pro. per.

      W. L. Townsend, for appellee.
   Carpenter, J.

This is a suit in replevin to recover the possession of two printing presses. These presses were sold by plaintiff, doing business as the Crescent Type Foundry, to a partnership doing business as Babcock & Marlatt. Babcock & Marlatt secured payment of part of the purchase price by a chattel mortgage. This chattel mortgage was filed, not where either Babcock or Marlatt resided, but, through some mistake, in the township where thej7' did business. Babcock & Marlatt subsequently sold t the presses to defendant. Defendant neglected to pay the amount secured by the mortgage, and refused to deliver possession, and thereupon this suit was brought. A verdict was directed for plaintiff. We are asked to reverse this judgment on three grounds, each of which will be stated and disposed of.

It is claimed that, in directing a verdict for the plaintiff, the court erred in assuming that defendant had notice of this mortgage before he made his purchase. We think this assumption warranted by the following testimony of defendant:

“I bought the property subject to the claim that the Crescent Type Foundry had against Babcock & Marlatt.
Q. Very well. This was one claim, and he told you they had a mortgage against it. Don’t you know how much ?
“A. No, I didn’t know how much.
Q. What is the reason you didn’t find out ?
“A. Well, I" say I went to the township clerk’s office for the township of Livingston, to ascertain what the condition of the mortgage was, and I didn’t find it.
Q. Well, you talked it over with Mr. Babcock ?
“A. There wasn’t very much said about it, as I remember it. * * *
Q. Well, you knew how much it amounted to, or very nearly so, before you found where it was filed, didn’t you ?
“A. Why, perhaps I knew approximately. I don’t think I knew to a certainty the amount of their claim.”

It is claimed that the court erred in excluding testimony tending to prove that Babcock & Marlatt executed the mortgage because of fraudulent representations. We approve the decision of the trial judge, for the reason stated by him “that the right of Babcock & Marlatt, if they had any claim for fraud in connection with the making of this mortgage, did not pass to the purchaser from them.”

It is claimed that the court erred in excluding testimony that an agent of plaintiff reiterated the false representations made to Babcock & Marlatt to defendant after defendant acquired the property. We think the court properly excluded this testimony on the ground that defendant was at this time the owner of the property, and v therefore these representations did not give him a cause of action.

The judgment will be affirmed, with costs.

The other Justices concurred.


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    HUXTABLE v. KIRBY.
    Drains — Board of Review — Costs.
    Section 6, chap. 5, Act No. 272, Pub. Acts 1899, .amendatory of the drain law, providing that the judge of probate shall tax the costs of the board of. review if the assessment of the drain commissioner shall be sustained, does not authorize him to „ tax their costs where the commissioner’s assessment was not sustained.

      Certiorari to Ottawa; Padgham, J.
    Submitted November 10,1903.
    (Calendar No. 20,049.)
    Decided December 1, 1903.

      Mandamus by Henry Huxtable and others to compel Edward P. Kirby, probate judge of Ottawa county, to tax relators’ costs as members of the board of review in a drain proceeding. From an order denying the writ, relators bring certiorari.

    Affirmed.

      Smedley & Corwin, for relators.

      C. B. Wilkes, for respondent.
   Carpenter, J.

In 1898, proceedings were taken to locate and establish a certain drain in Ottawa and Allegan counties. The county drain commissioners of the two counties located and established said drain, and made an assessment roll. On the application of the owners of certain lands included in the assessment roll, the judge of probate of the county of Ottawa, acting under Act No. 272 of the Public Acts of 1899, appointed relators a board of review. Proceeding under said act, relators revised the assessment roll made by the two drain commissioners, and materially changed their assessments. The county drain commissioner ignored relators’ action. A mandamus to compel him to recognize said action was denied on the ground that, as the proceedings to locate the drain in question were pending when the act of 1899 took effect, they were not governed by said act. See Gitchel v. Whipple, 126 Mich. 646 (86 N. W. 144). Thereupon relators applied to the probate court to tax their costs, under chapter 5 of the drain law, as amended by said Act No. 272 of the Public Acts of 1899. The probate judge refused this application. Relators applied for a mandamus in the circuit court for the county of Ottawa to compel the probate judge to tax said costs. That court refused the order, and relators, by writ of certiorari, bring the proceedings to this court.

The authority of the judge of probate to tax the costs in controversy depends upon the proper construction of section 6 of said chapter, which reads:

‘ ‘ In case the assessment of the county drain commissioner shall be sustained by such board of review, the appellant shall pay the whole costs and expenses of such appeal. Such costs and expenses shall be ascertained and determined by the judge of probate, and, if not paid, the appellant shall be liable on his bond for the full amount of such costs, in an action at law, to be brought by the county drain commissioner on the bond before any court having competent jurisdiction.”

We agree with the judge of probate that he has no authority under this section to determine the amount of costs, except when the assessment of the county drain commissioner is sustained by the board of review. As in this case it was not sustained, the probate judge had no such authority. Cases touching the liability for costs of petitioners for a drain, relied upon by relators (see Rosenstiel v. Miller, 96 Mich. 99 [55 N. W. 655]; Case v. Telling, 112 Mich. 689 [71 N. W. 510]), are clearly distinguishable. The statute there involved makes the applicants liable for costs in case the commissioner “shall determine that the same is unnecessary or impracticable, or in case the proceedings shall be dismissed for other cause.” 3 How. Stat. § 1740b5; 2 Comp. Laws 1897, § 4319.

In reaching this conclusion we have not overlooked the contention of relators that their claim is particularly equitable against those who petitioned for their appointment. Whether or not those equities give them a right of action we cannot, in this proceeding, undertake to determine. It is sufficient to say that those equities do not, under the statute, give the probate judge authority to grant their prayer.

The order of the court below will therefore be affirmed, but, under the circumstances of this case, no costs will be awarded.

The other Justices concurred.


author: Moore, J.

text:
    WEEKS v. HUTCHINSON.
    1. Partnership-Admissions — Cross-Examination.
    A witness who denies that he and plaintiff were partners maybe asked on cross-examination if he has not made statements admitting the partnership.
    2. Evidence — Objections—Appeal.
    Grounds of objection to evidence not stated at the trial will not be considered on appeal.
    3. Same — Knowledge op Witness.
    It was not error to strike out an answer of a witness not based on his own knowledge.
    • 4. Same — Partnership—Admissions—Instructions.
    Where, in a suit to recover a board bill, defendant testified that his contract was made with plaintiff and a third person, a charge that a partnership between plaintiff and the third person might be found from what they held themselves out to be, and what they said about it, was not erroneous as permitting the statements of either to be taken as evidence of the partnership.
    5. Partnership — Agency—Instructions.
    In a suit in which defendant claimed that plaintiff and a third person were partners, a charge that, if the jury should find that the third person acted as agent for plaintiff in the business, that would bind her, and if they should find from the manner in which plaintiff held herself out to defendant, or from the general agency exercised by the third person, that he was a partner, their verdict must be “No cause of action,” was not erroneous, where the court had fully and properly defined a partnership.
    Error to Calhoun; Winsor, J(.
    Submitted June 5, 1903.
    (Docket No. 41.)
    Decided December 22, 1903.

      Assumpsit by Sarah Jane Weeks against Leonard D. Hutchinson for a board bill. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Hatch & Page, for appellant.

      North & Salisbury, for appellee.
   Moore, J.

The circuit judge, in his charge to the jury, stated the claims of the parties in substance as follows:

“ The plaintiff brings her action to recover from the defendant for aboard bill from the 10th day of October, 1897, to April 27, 1901, less about five weeks, and alleges and proves that the same was worth $3.50 per week. I believe there is no dispute about this amount. Also $100 for feed for horses, paid by her for defendant.
“ The theory of the plaintiff in this case is that she took this man to board; that they had no contract or agreement at the time, but that he had board during this period,— three years, six months, and seventeen days, less about five weeks he was in Canada. If you believe her testimony, I say to you as a matter of law that it is not necessary to have a contract; that she can recover, if you find that she is entitled to recover, what that board was reasonably worth in Battle Creek at that time; and that is proven here, and I think it is undisputed, was $3.50 per week.
“The defendant says he had an agreement with her in the beginning that he was to have board and live in the family, — a sort of family relation, — and was to pay the first cost of his board and room, and that he has paid all that would call for. He claims also that in making that contract he made it with the plaintiff in this case and a Mr. Bartley, who, he says, was a partner of hers, and that he made this contract with them together.”

The plaintiff denies there was any partnership. The parties gave testimony in support of their respective claims. The jury returned a verdict in favor of defendant. The plaintiff has brought the case here by writ of error.

The first assignments of error relate to the examination of the witness Bartley. As stated above, the defendant claims the arrangement was made with the plaintiff and Bartley, and swore to the arrangement. Bartley was a witness. He denied the arrangement as claimed by defendant, and denied that plaintiff and he were in partnership. The questions put to him were whether he had not made statements admitting the partnership. The judge ruled he might answer for the purpose of impeachment, and the answers were taken. It is now said that, as partnership 'could not be proved by the admission of one partner, the testimony was incompetent.' We think this was proper cross-examination in view of the conflicting testimony about the partnership.

It is said error was committed in admitting the following question and answer:

“ Q. Did Mr. Bartley state to you that they were in partnership ?
“Mr. Hatch: I object to that, because a partnership cannot be established in that way.
The Court: It is an impeaching question. You may answer it.
“Answer by Chapelt: He did. He carried the idea, any way, that way. ”

It is now said Mr. Bartley’s attention had not been called to this conversation, and therefore the proper foundation had not been laid. If that objection had been made in the court below, it doubtless would have been sustained, and the foundation for admitting the testimony could have been laid before the witness was allowed to testify. That objection, however, was not made, and it is too late to make it here for the first time. Ives v. Leonard, 50 Mich. 296 (15 N. W. 463); Mahiat v. Codde, 106 Mich. 387 (64 N. W. 194); Mulliken v. City of Corunna, 110 Mich. 212 (68 N. W. 141).

Mr. Hutchinson claimed he did work on the Funda farm for which he should have credit. When Mr. Bartley was a witness he was asked:

“ Q. Who ran the Funda farm in 1899 ?
“A. Mr. Hutchinson.
Q. Did you know of Mrs. Weeks at any time ordering him to do any plowing on the Funda farm F
“A. No, sir; she didn’t know anything about it until after it was done.”

On motion the last answer was stricken out, and it is said this is error. It will be seen the last part of the answer was not responsive to the question, and it is difficult to see how, upon his own knowledge, the witness could make the answer he did. Immediately after this ruling the witness testified:

Q. Did she know anything about it ?
“A. She never got him to do any work there that I know of, and I would have known it if she had.”

The witness stated all he knew about it, and we do not think the assignment of error is well taken.

The other assignments of error in relation to the admission of testimony have been examined, but we do not ■deem it necessary to discuss them.

The court charged, among other things:

“Now, if you find that there was a copartnership existing all the time, — and that you can find from what they held themselves out to be, from the circumstances and conditions, and what they said about it, if you find they said anything about it, or if they held themselves out at all,” etc.'

It is claimed this is error, ‘ ‘ because the existence of a partnership cannot be proved by the admission of one of the partners so as to bind the other supposed partner, nor can the holding out as a partner by one person bind the other supposed partner,” and the charge permits the statement of either of them to be taken as evidence of partnership. The defendant gave evidence that his contract was made with both of them, and we think the charge did not misstate the law.

It is said the court erred in instructing the jury as follows :

“I would say that, if you find that Mr. Bartley acted as the agent of Mrs. Weeks- in the business, that would bind her also, if you find any such fact from the evidence in the case. * * *
“ I charge you that one of the circumstances and facts of a partnership is the fact of general agency exercised by the parties in conducting their business; and if you find in this case from the manner in which the plaintiff held herself out to the defendant, or from the-general agency exercised by Mr. Bartley, that he was in fact a partner, or that defendant would be justified in dealing with the plaintiff on the assumption that she and Mr. Bartley were partners, then your verdict must be ‘No cause of action,’ unless you find, gentlemen, that, under the agreement, he is owing upon either one of the understandings.”

This portion of the charge should be read in connection with the following:

“Now, if you find that there was a copartnership existing all the time; — and that you can find from what they held themselves out to be, from the circumstances and conditions, and what they said about it, if you find they said anything about it, or if they held themselves out at all— You cannot find it from the fact that a man buys a piece of goods, and sends it down to the house, and has it charged to him but if you find that there was an actual understanding existing between Mrs. Weeks and Mr. Bartley at the time-Mr. Hutchinson boarded there, and understood each other, that they had an agreement that they should share in the-profits and losses of the business, then you can find that they were copartners, and the admission of one copartner to Mr. Hutchinson in relation to bargains made for them both, or in the way of their business, would be binding upon both the partners. I think you understand that.
“ Partnership is a contract of two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to-divide the profit and bear the loss in certain„proportions. And it may be inferred from the facts and circumstances, even as between the parties themselves. Persons engaged in a business or adventure for their mutual benefit may not always be partners as between themselves, even though they may have a communion of interest in the profits; but they may be frequently treated as partners-by third persons, when there is in fact no partnership, as we shall hereafter see. A partnership in fact can only exist when there is a voluntary agreement made for that purpose, and there cannot be such partnership against the intention of the parties to the contract.
“Now, you must find, if you find at all, from the evidence that has been testified to here, and such as you find from the circumstances here, such as will convince you. that there was a copartnership existed between these peopie, before you can consider the other subject at all. Now, if you find that there was such a partnership existing, .such as is established by a preponderance of evidence ■offered by the defendant, Mr. Hutchinson, then you may ■consider these agreements that have been testified to here. You would have to find that they contracted about this business of boarding, and not about outside business. You could not find this partnership from contracting ■about fuel, or merchandise, or anything of that kind; it must be a contract about keeping á boarding house, and .nothing else.”

We think the jury were not misled^by the charge. We do not find reversible error in the case.

Judgment is affirmed.

Carpenter, Grant, and Montgomery, JJ., concurred. Hooker, C. J., took no part in the decision.