text:
    GRAHAM v. MOFFETT.
    1. Vendor’s Lien — Chattels Taken in Payment — Misrepresentations as to Value.
    A vendor has no lien for damages resulting from fraudulent misrepresentations as to the value of chattels taken by him in payment for the land.'
    a. Same — Fraudulent Modification op Contract — Rescission-Status Quo.
    Where a contract obligates the vendee to pay a given sum for land, and the vendor is' afterwards induced, by fraud,, to accept a chattel for the whole or a definitely-fixed portion of the price, he may tender back the chattel, and enforce a lien
    . for the amount represented by it.
    3. Same — Failure of Consideration.
    A vendor cannot affirm a contract whereby he agreed to take chattels in part payment of the purchase price, and maintain a lien for a deficiency arising from the failure of the chattels-to equal their repres'ented value, upon the theory that to that extent the consideration was not fully paid.
    4. Vendor and Purchaser — Fraudulent Inducement — Reference to Third Person.
    A vendor is equally responsible for fraudulent representations-inducing the sale, whether they were made by himself or by a third person to whom he referred the vendee for information with the expectation that he would be deceived.
    Appeal from Wayne; Donovan, J.
    Submitted November 16, 1898.
    Decided February 6, 1899.
    Bill by Henrietta P. Graham against Viola G; Moffett and John S. Moffett to enforce a vendor’s lien. From a decree for complainant, defendants appeal.
    Modified and affirmed.

      Haug & Yerkes (Edwin E. Conely, of counsel), for complainant.

      Frank E. Robson (Otto Kirchner, of counsel), for defendants.
   Hooker, J.

On November 25, 1895, the parties to this suit made a contract in writing, by which the complainant agreed to sell a dwelling house and lot in Detroit to the Moffetts, husband and wife, and they promised to pay therefor $11,500, in manner following, viz.:

“Five hundred dollars in cash this day, 20 shares of Ingham County Savings Bank stock, and $5,500 cash, on or before November 30, 1895, and assume a mortgage of $3,500, the interest upon which is to be paid by said party of the first part, — paid to January 1, 1896.”

This writing was the culmination of negotiations which covered a period of a week or more, during which most of the alleged misrepresentations are said to have been made.

On the 30th day of the same month, according to the testimony of Moffett, he asked Graham, who acted in the transaction on behalf of his wife, to take 5 shares more of the stock, as he was á little short of money; and it was finally agreed that the Grahams should take 11 shares more, and the deed was delivered, and the consideration, including 31 shares of the Ingham County Bank stock, was paid, and the Moffetts entered into possession of the property. Some 6 or 8 months later the bank went into the hands of a receiver, and the evidence shows that an assessment of 60 or 70 per cent, upon the stock will be required to meet its obligations.

The bill in this cause was filed in February, 1897, and alleges that Moffett fraudulently represented this stock to be worth par, thereby inducing Graham to accept it at its par value for a part of the purchase price, whereas it was in fact of no value; and the bill prays the enforcement of a vendor’s lien for the amount represented by such stock in the trade. The testimony of Graham shows that he offered to return the stock to Moffett, and demanded the property back, and that Moffett refused to accede to the demand. ' This bill appears to have been framed upon the theory that it was unnecessary to rescind the contract in toto, but that, the fraud being shown in relation to the stock, the vendor might treat the amount which it w%s understood to represent in the transaction as unpaid, and that the vendor’s lien could be foreclosed to collect it. Upon the same theory, we presume that it might be contended that an action of assumpsit would lie, under the rule that such an actionjnay be maintained for the unpaid price of real estate duly conveyed.

Lord Eldon, in defining the vendor’s lien, used the following language:

“Where the vendor conveys, without more, though the consideration is upon the face of the instrument expressed to be paid, and by a receipt indorsed upon the back, if it is the simple case of a conveyance, the money, or part of it, not being paid, as between the vendor and the vendee, and persons claiming as volunteers, upon tjie doctrine of this court, which, when it is settled, has the effect of a contract, though perhaps no actual contract has taken place, a lien shall prevail; in the one case for the whole consideration, in the other for that part of the money which was not paid.” Mackreth v. Symmons, 15 Ves. 329, 337.

There is nothing in this definition that justifies the inference that a vendor has a lien for damages resulting from a breach of a contract, and we know of no case where it has been expressly held that such is the law, unless it be cases hereinafter discussed. It merely secures the payment of the promised money or price. ,The agreed purchase price may be, in whole or in part, chattels; as an agreement to sell some land at an agreed price, for certain horses or bank stock, at a settled valuation. In case of such a contract, the vendor’s lien would secure the per-formance of the promise, which would be to deliver the horses or the stock, not to pay money in lieu thereof; especially where, as in this case, the evidence shows conclusively that the vendee refused to take the property upon a money consideration. He may have been guilty of fraud in inducing the vendor to agree to take the stock as part of the consideration, but that fact will not authorize a court to make a different contract for him. It can only award him damages for the fraud, or permit a rescission of the contract. Coit v. Fougera, 36 Barb. 195; Burns v. Taylor, 23 Ala. 255.

There is a class of cases, however, in which a vendor’s lien does exist, viz., where the contract obligates the vendee to pay a given sum for the land, and the vendor is afterwards induced, by fraud, to accept a chattel for the whole or a definitely-fixed portion of such purchase price. In such a case, the vendor may tender back the chattel, and enforce a lien for the amount represented by it. This is upon the theory that the pre-existing contract is binding. Its fraudulent modification being rescinded, the contract itself is left to stand, with its attendant right of lien in the vendor. The testimony is conclusive that this is not one of these cases as to the 20 shares; for not only does the writing show it, but the testimony is all to the effect that Moffett would not agree to buy the premises unless the 20 shares of stock should be accepted in part payment.

It is now proposed to carry this doctrine a step further, and say that although the vendee never agreed to pay cash, and expressly refused to do so, yet inasmuch as he was guilty of fraud, thereby inducing the vendor to reconsider her determination to sell for cash only, and consent to an exchange for stock, that equity will, in addition to the legal remedy through an action for damages for the fraud, and the equitable one of rescission, recognize the vendor’s right to affirm the contract, and maintain a lien for the deficiency arising from the failure of the stock to equal its represented value, upon the theory that to that extent the consideration was not fully paid. This is a persuasive view to take of the case. It is an expeditious way to relieve the complainant, and it removes whatever danger there might be of a failure to collect a judgment for damages for the fraud, should one be recovered at law. But, on the other hand, it introduces inconsistencies and far-reaching changes in the law. It enlarges the vendor’s lien to include damages for a breach of contract as well as the unpaid price agreed upon. It introduces an element of uncertainty, by making it cover unliquidated claims, which have hitherto generally been excluded. It revolutionizes the doctrine of rescission, which requires a party to rescind a fraudulent contract in toto or affirm it as made. It allows the vendor to keep the chattel, and recover the damages in equity, — a thing hitherto almost unknown.

There is a temptation to do full and complete justice between parties, if possible, especially where fraud is apparent, that tends to the extension of rules [of law, which should only be made after careful consideration, for every innovation against the logic of the law is productive of confusion. In this case it would be gratifying if we could settle this matter here, instead of requiring the complainant to pursue her legal remedy; but an illogical extension of the law of vendor’s lien to cases involving unliquidated damages for fraud would be a heavy price to pay therefor. Certainty in the law is a growing necessity, and the broader the rules can be, consistent with general justice, the better. There is always danger in disregarding the logic or reason of a rule of law, sometimes not so discernible at the time as on later occasions, when the consequences confront the courts in other cases. It may be a simple thing in this case, and justified by the proof, to say that this stock is worth nothing, and therefore that the measure of recovery — may we not as properly say damages? — is plain; but it would not be so easily and accurately determined if the chattel were a spavined horse,

i We are cited to a few cases which are alleged to support the practice contended for by the complainant. Our own case of Merrill v. Allen, 38 Mich. 487, fails to reach the point in controversy, as in that case the agreement was to deed premises in part payment for other land. It was held that a lien existed when such premises were not deeded as promised, which is a different thing from asserting a lien after conveyance, because of a fraudulent representation of value. Tobey v. McAllister, 9 Wis. 463, is more nearly in point, but that case was heard upon demurrer, and we do not know what the contract was. In disposing of the case, the court says, speaking of certain notes of third parties:

“For if we were of the opinion that the respondent, by taking such securities, and trusting to the responsibility of third persons, thereby lost the ifnplied lien upon the property which the law would otherwise have given him, yet that certainly cannot be the case if there was fraud in the transaction.”

This indicates that the vendor had a lien under the contract for the purchase money, of which he was deprived by fraud. It differs from our case, for here the purchase price was not money, but an agreed chattel, which was delivered. The question now under discussion does not seem to have heen raised, and the only proposition that appears to have been decided is that where one substitutes another’s obligation for his own, through fraud,.it does not release him from his obligation, — a rule that is undoubtedly the law. Two other Wisconsin cases are cited, but they do not throw light upon the question.

A case will be found, however, which seems on all fours with the one before us, and a lien was sustained, reversing the vice chancellor, who dismissed the hill upon the ground that the vendor’s claim was one sounding in damages, and that there could not be a partial rescission of a contract. See Bradley v. Bosley, 1 Barb. Ch. 125. With this excep.tion, our attention has been called to no case like the present one.

Our examination of the testimony satisfies us that, at the time this contract was made, Dr. Moffett knew that the bank was insolvent. He admits that he had anticipated a run upon it, and that the bank had closed its doors on a former occasion, while he was a large stockholder, a director, and a member of its discount or loan committee. He then incurred the criticism of the other stockholders for withdrawing a large deposit to avoid loss through a run which he anticipated, and which actually followed a few days afterwards, causing the suspension of the bank. The bank was reorganized, but, although he continued to hold his stock, he preferred to keep his account elsewhere, and never afterwards intrusted his funds to its keeping. He represented to Mrs. Graham and her husband that the stock was valuable, and was worth par; and we think the testimony justifies "the statement that he did not content himself with stating an honest opinion as to the value of the stock, but used persuasion to induce the belief that it was valuable and worth par. The evidence convinces us that Dr. Moffett knew that this stock was not worth par, if he did not fully believe that it was worse than valueless, - because likely to be assessed to pay debts.

Upon the part of the defense it is said that relief should he denied because the doctor’s representations were not the inducement upon which the complainant took this stock, but that she and her husband took other measures to-ascertain the value of this stock, and relied upon the statement of the president of the bank that it was worth par, and that he would give par for it. There is testimony that, during the negotiations, Dr. Moffett represented that other stock of the bank had been sold or traded at par and above; and proposed that Mr. Graham consult the president of the bank, Mr. Ulrich, who lived at Mt. Clemens, offering to go with him for the purpose, but ultimately offering to pay the expense of telephoning to him. Thereupon Graham telephoned to him, and was informed that the stock was worth par, and he would pay par for it. This he afterwards refused to do. Graham and his wife testify that they relied largely upon what Dr. Moffett said, but it is claimed that the testimony shows the contrary; and it must be admitted that there are, in their testimony, statements which indicate that, after receiving this information, they yielded to Dr. Moffett’s solicitation, and took the stock. Moffett testified that he had no understanding-with Ulrich, and that he was not even acquainted with him, and there is no testimony showing the contrary; yet it is manifest that, had Ulrich or Moffett stated what we believe that they must have known about the condition of the bank, the stock would not have been accepted by the complainant, and we cannot avoid a suspicion that Moffett relied on an anticipated reluctance upon the part of the president to state the true condition of the bank, or value of the stock, which, under the circumstances, would probably have been hazardous to the bank. We cannot persuade ourselves to believe that Moffett did not know that the stock was worth much less than par, and, that being so, it was a fraud to induce Graham to seek information which he hoped would be false. We are of the opinion that, when one wishes to take advantage of his fellow, he cannot shelter himself behind the doctrine of caveat emptor, if he either makes misrepresentations himself or designedly sends him to one whom he expects to give him false inf ormation, and allows the contract to be consummated with knowledge that the other party is acting on such false information. Either is fraudulent, and it matters not which is the inducement that operates on the mind of the victim. But the acceptance of the 11 shares grew out of a later conversation, in which, according to Mrs. Graham’s testimony, renewed assurances of value were asked of and given by Moffett, and we should hardly go so far as to protect the defendants in an unconscionable transaction through a presumption that Mrs. Graham did not rely upon Moffett’s statements, but did upon Ulrich’s.

It is said that it was the duty of the complainant to act promptly on discovering the fraud, by rescinding the contract; that she delayed for six months after learning the fact, in January, 1896; and that she never made a tender of the remainder of the consideration. Mr. Graham testified that he made demand for a reconveyance in January, and offered to pay back what he had received, and that Dr. Moffett said that he would not do it. Dr. Moffett denies this, but we infer that the circuit judge believed Mr. Graham’s statement; and a refusal to accept a tender makes proof of a formal tender unnecessary, even in an action at law.

We have seen that there may be cases where the chattel is taken as a substitute for an existing obligation to pay money, and, again, that it may constitute the whole or a partial consideration for the original contract. This case illustrates both classes of cases. The agreement was to make payment by 20 shares of stock, agreed to-be worth $2,000, and the assumption of a mortgage, and the remainder in cash. Afterwards the vendor was induced to allow the vendee to substitute 11 additional shares of stock for $1,100 of the sum which he was under contract obligations to pay in cash. As to the 20 shares, there was no lien, because they were delivered as promised; but as to the 11 shares the lien would exist, if their substitution was permitted by reason of the fraud of the vendee.

We regret that we cannot afford the complainant full relief, but settled rules of law forbid. The decree of the circuit court will be affirmed to the amount of $1,100, with interest from the date of the deed. As to the excess, it will be reversed, and the complainant left to her remedy at law. The defendants are entitled to costs of this court.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    CALKINS v. ANN ARBOR RAILROAD CO.
    Witnesses — Reputation eor Veracity — Competency.
    Testimony that plaintiffs reputation for truth and veracity was bad was properly stricken out where cross-examination showed that the only basis for the testimony was that the witness had heard that plaintiff did not pay his debts.
    Error to Shiawassee; Dodds, J., presiding.
    Submitted January 3, 1899.
    Decided February 6, 1899.
    Case by Elijah Calkins against the Ann Arbor Railroad Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      T. W. Whitney (Alexander L. Smith, of counsel), for appellant. «

      Watson & Chapman, for appellee.
   Moore, J.

The plaintiff recovered a judgment against the defendant because of injuries received by him when alighting from a train. Defendant has appealed from this judgment. The version of the plaintiff is, in substance, as follows :

“I was a passenger on defendant’s train, having a ticket from Ithaca to Owosso Junction. After the train left Garland, the brakeman said the next stop would be Owosso Junction. I was not familiar with the depot grounds or premises surrounding Owosso Junction. It was quite dark as the train reached Owosso. The train stopped. Just as it stopped, the brakeman came into the front end of the car, and called, ‘Owosso Junction,’ and left the door open. I asked the brakeman if this stop was Owosso Junction. He said it was. I said, ‘I want to get off at Owosso Junction.’ He said, ‘Get off.’ I asked him on which side the station was. He said, ‘On the right side.’” The train was standing still. I picked up my grips, got part way down on the steps, and the train jerked and threw me off. The train was not in motion when I got to the door nor when I went down on the steps.”

He testified he was thrown head first to the ground, "and received severe injuries. He produced other testimony as to what occurred when he left the train, and as to the extent of his injuries. His testimony was contradicted by the brakeman. The defendant also produced testimony tending to show plaintiff was not very much hurt. It also introduced impeaching testimony, by showing the reputation of plaintiff for truth and veracity was bad. On the part of the plaintiff, witnesses were produced who testified the reputation of plaintiff for truth and veracity was good. A motion for a new trial was after-wards made and overruled.

The defendant introduced five impeaching witnesses, one of whom was Mr. Randall. He testified he knew the reputation for truth and veracity of Mr. Calkins, and that it was bad. , After a long cross-examination, a motion was made to strike out this testimony, and the motion was granted. This is said to be error. The cross-examination showed that what witness heard about Mr. Galkins related to his reputation for honesty. “He was not reliable, worthy of credit, or something of that kind.” Mr. Ewers said “he promised to pay, and did not pay.” The conversation with Mr. Ford “was about my presenting the bill. He says, ‘He won’t pay it; he don’t pay anything.’ He said he was dishonest.” Mr. Clusk said “he would not do a job of work for him; because his reputation for not paying was bad.” It did not appear from his testimony that he heard any one say anything affecting the character of Mr. Calkins for truthfulness or veracity. In view of his testimony on cross-examination, we do not think the court erred in striking out his testimony.

A number of other assignments of error are argued. They do not involve any questions of importance in any other case than this, and for that reason will not be discussed. There was a sharp conflict in the testimony. The case was carefully and impartially presented to the jury by the judge. The jury accepted the version given by the plaintiff and his witnesses, rather than the version of defendant.

Judgment is affirmed.

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


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    WHELPLEY v. STOUGHTON.
    1. Witnesses — Husband and Wife — Retrial.
    The fact that a wife, on the trial of an action against her, permitted her husband to be sworn as a witness for plaintiff, does not, where the witness dies pending a retrial, render his former testimony admissible over the wife’s objection.
    2. Fraudulent Conveyances — Burden of Proof.
    Act No. 99, Pub. Acts 1897, changing the rules of evidence by placing upon the defendant in a bill in aid of execution the burden of showing the good faith of the conveyance complained of, has no application in an action upon a note alleged to have been executed by a married woman in settlement of the payee’s right to proceed against property claimed to have been fraudulently conveyed to her by her husband.

      Error to Van Burén; Buck, J.
    Submitted January 3, 1899.
    Decided February 6, 1899.

      Assumpsit by Henry Whelpley against Clarissa S. Stoughton on a promissory note. From a judgment for defendant, plaintiff brings error.'
    Affirmed.

      T. J. Cavanaugh, for appellant.

      Lincoln TL Titus, for appellee.
   Moore, J.

This case has been in this court before, and is reported in 112 Mich. 594. On the second trial it was the claim of the plaintiff that James Stoughton, the husband of defendant, was indebted to plaintiff, and, while so indebted, he conveyed his real estate, for an inadequate consideration, to his wife, the defendant; that plaintiff had an interview with Mr. and Mrs. Stoughton, in which he notified them that he should take proceedings to collect his debt; and that, to avoid having the plaintiff take proceedings attacking the validity of the conveyance, Mrs. Stoughton gave her notes for the amount of the indebtedness. This suit is brought upon one of those notes. It was claimed by defendant that the conveyance of the real estate to her by her husband was for a full and adequate consideration. She denied that the notes were given to prevent plaintiff from commencing proceedings to set aside the conveyance, or that he threatened to do so. She says she objected to giving her note, but was importuned by her husband and the plaintiff to do so, the plaintiff promising never to make her any trouble; and that the only considération for the notes was the past-due debt of her husband. Each of the parties to the litigation gave testimony tending to support their respective theories. The case was submitted to the jury, who' found a verdict in favor of the defendant.

Upon the first trial, Mr. Stoughton was sworn as a witness on the part of the plaintiff. Before the second trial, Mr. Stoughton died. His evidence given on the first trial was offered by the plaintiff. It was objected to upon tbe ground that the husband could not testify against the wife without her consent. The objection was sustained, and it is said this is error. Section 7546, 3 How Stat., provides: “A husband shall not be examined as a witness'for or against his wife without her consent,” except in certain cases. This case is not one of the exceptions.

The circuit judge charged the jury that, as plaintiff claimed the conveyance of the property was fraudulent, the burden of proof was upon him to show it was fraudulent. It is claimed this was error, for the reason the legislature has seen fit to shift the burden by enacting Act No. 99, Pub. Acts 1897. A reading of this law shows it applies only in cases where a judgment has been obtained against the principal defendant, and execution issued, and a levy made upon the property which it is claimed was fraudulently conveyed. The principle is elementary that fraud is not presumed, and the burden of proving it is on the party alleging it.

It is claimed the trial judge in his charge indicated his opinion of the merits of the controversy, and might as well have directed the verdict. There is no foundation for this claim, except by [isolating a portion of the charge from the rest of it. The requests to charge were numerous, and the charge itself was a long one, but it fairly and fully presented the questions involved to the jury. The charge is too long to reproduce here. The jury were told what was claimed by the respective parties, and then the court charged them:

“Now, it is claimed on behalf of the defendant that this note is void, as being given to pay the debt of her husband or to secure it. It is, however, a rule of law, gentlemen, that a wife may give a note in relation to her own separate estate and property, either to protect it or to add to it, or for any other purpose; and the plaintiff claims in this case that this note comes under that designation, and is one of the exceptions to the rule that has been given, that the note of a wife given to. secure or pay the husband’s debt is void. A wife may always contract with reference to her separate property, and give notes, either with her husband or without him, with reference to it, in order to protect it, or, as I said, to add to it, or for any other purpose concerning it.
“Now, the plaintiff claims that the transfer of the real estate and personal property from James W. Stoughton to the defendant in this case was void as against creditors; that it was made with the intent to hinder, delay, cheat, or defraud the creditors of James W. Stoughton of their just rights; that the property was conveyed for a consideration so grossly inadequate that a jury would be authorized to find that it was made in fraud of creditors; and that, that being the case, he, the plaintiff, went to the defendant, and asked her to give her note for her husband’s debt, threatening that, if she did not do so, in effect, that he should take steps to secure it in some way. You will remember what his language was, as testified to by himself. And he further claims that the defendant, in order to protect her property, — to keep him from getting a judgment against James W. Stoughton, and then levying upon this property, and subjecting it to his claims, as being conveyed to keep it from creditors, — that she, in order to avoid this, gave him the note in question. This the defendant denies. She claims, in the first place, that no threat of any kind was used by the plaintiff at that time; that she signed the note, with her husband as security, for or in payment of his former debt, on account of the solicitation of her husband and the plaintiff. Now, if you find the facts to be as testified to by the plaintiff, then the plaintiff is entitled to your verdict. If, on the other hand, you find the facts to be as defendant claims them to be, then she is entitled to your verdict. And the burden of proof is on the plaintiff to establish every one of the elements of his case by a fair preponderance of the evidence. If it does not preponderate as to all the elements in the case, then you should find for the defendant.”

The plaintiff has no occasion to complain of the charge as given.

The other assignments of error have been considered, but will not be discussed.

Judgment is affirmed.

The other Justices concurred.


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    CUMBERLAND BUILDING LOAN ASSOCIATION v. GIBBS.
    1. Bonds — Construction—Conversion of Moneys Collected.
    A State agent’s contract with, a loan association invested him with authority to procure applications for shares, to collect the first month’s dues thereon, and to “perform such other duties as may be required of him.” A bond executed in contemplation of the terms of the contract was conditioned on the agent’s faithful performance of all his duties. Subsequently the agent was authorized by the association to make collections, in the capacity of State agent, other than those specified in the contract. Moneys so collected were fraudulently converted to the agent’s own use. Held, that the default was within the terms of the bond.
    3. Same — Delayed Remittances — Failure to Notify Surety.
    The obligee’s failure to notify the surety of the agent’s delay in making remittances, which it attributed, not to dishonesty, but to negligence merely, did not release the surety.
    Error to Ingham; Person, J.
    Submitted January 4, 1899.
    Decided February 6, 1899.

      Assumpsit by the Cumberland Building Loan Association against L. Colfax Gibbs as principal, and William O’Connor as surety, upon an agent’s bond. From a judgment for plaintiff, defendant O’Connor brings error.
    Affirmed.

      Jason E. Nichols (Charles W. Nichols, of counsel), for appellant.

      E. S. Avery, for appellee.
   Moore, J.

The defendant Gibbs was appointed by the plaintiff its general agent for the State of Georgia. He was required to give a bond, which was signed by Mr. Gibbs as principal; and Mr. O’Connor as surety. This is an action on the bond. The trial was before the circuit judge, who rendered a judgment in favor of plaintiff for part of its claim, and refused to render a judgment in its favor for the larger portion of its claim. Defendant O’Connor appeals from the judgment.

Some of the terms of the contract are as follows:

“ That, in consideration of the agent’s agreements herein contained, the association hereby appoints the said L. C. Gibbs its general agent in and for the State of Georgia, with authority to procure applications for shares in the said association, to collect the first month’s dues thereon for the association, and to procure applications for the fully-paid shares of the association, and perform such other duties as may be required of him, subject to the rules and regulations of the association, and such other instructions as shall be given to him from time to time by the association. The agent shall receive, for services properly rendered under this contract, a commission on all dues actually collected and paid to the association, or deposited to. the credit of the association in a depository designated by the president, secretary, or manager of agencies, in the following classes, as follows: On class G, Special (limited withdrawals): On first month’s dues, one hundred per cent.; one hundred per cent, on second month’s dues, less cost of collection; on next ten months’ dues, thirteen per cent.; on the thirteenth to the one hundredth month, three per cent. On class A (free withdrawals): One hundred per cent, first month’s dues; eighty per cent, second month’s dues. * * *
“ The agent covenants and agrees with the association as follows: * * * To immediately forward all applications for shares to the home office, with the net amount due on first month’s payment; to transmit to the home office of the association, on the fifth and twentieth of each month, and at all other times when requested by either the president, secretary, or manager of agencies, all funds and property in his hands belonging to the association; all checks, drafts, money orders, or express orders to be made payable to the order of the Cumberland Building Loan Association.”

The conditions in the bond are as follows:

“ The condition of this obligation is such that whereas, the above-bounden principal has been appointed by said party of the second part as its State manager for Georgia, for the purpose of selling stock, ■ and of performing suck other duties in connection therewith as may be required by said party of the second part: Now, if the said principal shall well and faithfully discharge his duties as suck State manager, and if the said principal shall well and truly pay over all moneys at any time coming into his hands, or at any time collected by or received by him, or' for which he may be liable, which it shall be his 'duty to-pay over as such State manager, whether the same shall be or shall have been received or liability therefor incurred by him personally and solely, or through or together with any copartner, co-agent, subagent, or other person, including all money so received and all liability incurred prior to the date of this instrument, if any such there be, as well as money received or liability incurred thereafter, as also all moneys which he now owes or hereafter may owe said party of the second part, or for which he may be liable to the said party of the second part, on account of loans or advances made to said principal during the continuance of the present agency of said principal, or any future agency, for the purpose of enlarging his business ox-otherwise, and whether the said principal shall have made' any express promises to repay the same or otherwise, then this obligation shall be void, otherwise to remain in full force and effect; it being understood and agreed that this, obligation shall not be annulled or x'evoked without the-consent of the said party of the second part, but shall be and remain in force so long as said principal shall continue to be the agent of the said party of the second part, whether under his existing appointment or any future one, and whether such present or future agency be sole, or whether said principal be joined with any other person or persons, and until all transactions under such agency shall' Ixave been finally adjusted and settled, and all liabilities of said principal hex-einbefore referred to shall have been discharged.”

The court found, among other things, the bond was executed, not only in contemplation of its own terms, bub in contemplation of the terms of the contract.

While he was employed as State manager, October 10, 1896, Mr. Gibbs was specially authorized to make collections for the plaintiff during that month. It was not part of his ordinary duty as State manager to make collections other than the dues for the first month, nor was he empowered to do so, except by special authority; but he was so authorized because he was State manager, and continued to make collections by the tacit consent of the association. Mr. O’Connor was not informed-of this additional duty until Mr. Gibbs had severed his relations with the plaintiff. November 2, 1896, Mr. Gibbs made a report, but did not remit $50 of his collections, but sent his note therefor, due in 30 days. Mr. O’Connor had no knowledge of the transaction. January 2, 1897, plaintiff sent to Mr. Gibbs a statement of account, including this $50 note, showing a balance due it of $186.37. Instead of paying this amount, Mr. Gibbs sent the company his note for the amount, due in 90 days. .This was done without the knowledge or consent of Mr. O’Connor. The court held, as a matter of law, that this action extended payment of money due without consent of the surety, and released Mr. O’Connor.

The judge further found the plaintiff did not suspect Mr. Gibbs of any criminal intent in not remitting the money, but rather attributed it' to his negligence. The judge also found Mr. Gibbs received of or collected for plaintiff, as general manager and agent under the contract, the further sum of $193, which was not first months’ dues, which he fraudulently converted to his own use. The trial judge further found:

“But I do not find that plaintiff came to believe that defendant Gibbs’ conduct in the premises was wrongful or criminal until after the liability in this clause mentioned had been incurred. On the contrary, I find that plaintiff looked upon his delays in remitting as mere carelessness.”

The judge found, as a matter of law, the defendants were liable for this amount and interest, and rendered a judgment for $206.81.

It is claimed by defendant that the making of these collections was no part of the duty of Mr. Gibbs as manager, and therefore the surety is not liable. The contract provided that, in addition to procuring applications for shares and collecting first months’ dues, Mr. Gibbs should “perform such other duties as may be required of him.” The bond recited the appointment of Mr. Gibbs, as State manager, “for the purpose of selling stock, and of performing such other duties in connection therewith as may be required by said party of the second part.” The collection- of moneys due the company in Georgia was germane to the business for which Mr. Gibbs was employed, and was within the terms of the bond and contract.

It is also claimed that, when plaintiff learned Mr. Gibbs was not remitting as he agreed, it was its duty to inform Mr. O’Connor, and allow him to pay up any arrearages, and end his liability. Because this was not done, it is said Mr. O’Connor is not liable; citing JEtna Ins. Co. v. Fowler, 108 Mich. 557. We think this case does not sustain the contention of counsel, but, on the contrary, is against their contention. As already stated, the trial judge found, that plaintiff did not suppose Mr. Gibbs had fraudulently appropriated the money, but supposed Mr. Gibbs’ failure to remit was due to negligence. A failure to notify the surety of what the plaintiff supposed was mere negligence in making remittances will not release the surety. 24 Am. & Eng. Enc. Law, 796; 2 Brandt, Sur. (2d Ed.) §§ 423, 424; Ætna Ins. Co. v. Fowler, supra, and cases cited therein.

Judgment is affirmed.

The other Justices concurred.


text:
    McCABE v. LOONSFOOT.
    Replevin — Judgment—Appeal—Change oe Issue.
    Defendant in replevin, who obtains a judgment in justice’s court for a return of the property, may, upon the plaintiff’s appeal to the circuit court, if he prevails, waive a return, and take judgment for the value; there being nothing in such a course that contravenes the rule that the “issue” must not be changed on appeal.
    Error to Baraga; Haire, J., presiding.
    Submitted January 5, 1899.
    Decided February 6, 1899.
    Replevin by Michael J. McCabe against James Loons-foot. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Button & Culver, for appellant.

      Philip B. McKernan, for appellee.
   Moore, J.

This is a replevin case commenced in justice’s court for one horse, which was delivered to plaintiff. On the return day of the writ, plaintiff filed a written request with the justice to discontinue the case, but did not return the property to defendant. A judgment was entered in favor of defendant for a return of the property and for damages because of its detention. From that judgment plaintiff appealed the case to the circuit court. Upon the trial in the circuit court, the defendant waived a return of the property, and, against the objection of plaintiff, a judgment for its value was rendered in favor of defendant. From that judgment the case is brought here by writ of error.

The only question in the case is, Can the defendant, who obtained a judgment in the justice’s court for a return of the property, waive its return in the circuit court, and have judgment for its value ? It is the claim of plaintiff that to allow him to do so is to allow him to change the issue which was tried in the justice’s court. This contention cannot be sustained. The issue in a replevin case is, Who is entitled to the possession of the property ? 2 How. Stat. § 8315, and the many cases there cited. On the return day the plaintiff did not appear and prosecute his suit. The defendant did not waive a return of the property. The justice did what the law required him to do under such circumstances; he gave a judgment in favor of the defendant for a return of the property and for damages for its detention. The plaintiff was not content with this judgment, but removed the case to the circuit court by appeal. This gave the circuit court jurisdiction of the cause, the same as though it had been originally commenced there. 2 How. Stat. § 7014. The issue in the circuit court was the same as in the justice’s court, — who was entitled to the property when the suit was commenced? That issue having been decided in favor of defendant, he might either have a judgment for the return of the property and damages for its detention (Id. § 8346), or he might elect to waive its return, and take judgment for its value at the time of the commencement of the suit (Id. § 8347; Soper v. Hawkins,, 56 Mich. 527).

Judgment is affirmed.

The other Justices concurred.


text:
    AURORA IRON MINING CO. v. CITY OF IRONWOOD.
    1. Taxes — Payment under Protest — Irregularities in Assessment.
    In an action to recover taxes paid under protest, the assessment cannot be shown to he invalid for reasons not specified in the protest.
    2. Same — Overvaluation—Review of Assessment.
    The court will not interfere with an assessment, in the making and confirming of which the assessor and board of review acted in good faith, because of an alleged overvaluation of the property.
    Error to Grogebic; Haire, J.
    Submitted January 5, 1899.
    Decided February 6, 1899.

      Assumpsit by the Aurora Iron Mining Company against the city of Ironwood to recover taxes paid under protest. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      C. E. Miller, for appellant.

      George Hayden, for appellee.
   Moore, J.

In December, 1892, the plaintiff paid, under protest, to the defendant, its taxes, amounting to $20,245.55. Within 30 days thereafter it brought suit to recover back the amount thereof. The case was tried in July, 1894, before the circuit judge without a jury, and was argued here at the present term. More than 80 errors are assigned, but those insisted upon are stated as follows in the brief of counsel:

“1. It is claimed that the body which imposed the taxes for 1892 in the city of Ironwood was not the legal common council of the city of Ironwood, for the reason that no quorum was present at that time.
“2. It appears, from the records, that the taxes were levied at what was known as a ‘special meeting’ of the council, and that there is no proof of the service of any notice of such special meeting, although all the members of the common council were not present at the time of imposing such taxes.
“3. The valuations of property of the city of Ironwood made by the assessor of the city were unjust and inequitable, and the property of the plaintiff was assessed very much above its market value by the assessor, and this high assessment was made by the assessor without pursuing any proper course to determine its correct value.
“4. The board of review of the city of Ironwood acted illegally, in not giving the plaintiff an opportunity to be heard before them before the fixing of the valuation upon the plaintiff’s property by such board of review.
“5. The board of review, in fixing valuations in the city of Ironwood, including the valuation of the plaintiff’s property, acted illegally, in that it did not exercise its judgment at all in fixing such valuation, but, on the contrary, it decided such valuation by lot, and, as a result, the property of the plaintiff was assessed at very much above its market value, whereas other property in the city of Ironwood was assessed at very much below its market value.
“6. The board of review acted illegally and inequitably, in that it assessed the plaintiff’s property at an amount above its market value, and assessed the property of the Metropolitan Iron & Land Company, in the city of Ironwood, at below its market value; and this action of the board of review was taken willfully, and with full knowledge that such valuation upon plaintiff’s property was too high, and that the valuation upon the property of the Metropolitan Iron & Land Company was too low.”

Of these grounds .for reversal, the first, second, and fourth were not covered by the protest filed, and for that reason will not be considered.

As to the remaining propositions, the circuit judge made findings of fact as follows:

“The valuation placed by the assessor upon the property in question was not unjust or unfair, when compared with the valuations placed by the assessor upon other properties of like kind in that year in the city of Ironwood.
"The assessor of the city of Ironwood did not act unfairly, or willfully or knowingly wrong, in placing the valuation of the property of the plaintiff in controversy in this suit atthe sum of $1,376,000, the amount at which the same was assessed by him.
“ The assessor of the city of Ironwood was not guilty of any intentional wrong, or of any kind, of fraud, in fixing the valuation of plaintiff’s property in question at the sum assessed upon it by him as shown in the evidence.
“The property of the plaintiff was not fraudulently overvalued by either the ¿ssessor or by the board of review, in said year 1892, for purposes of assessment of taxes thereon, either actually, or relatively with reference to the values placed upon other properties' of like kind in said city in said year.
“I further find that an arrangement was made between all of the several mining companies owning mining property within the city of Ironwood with the assessor of the city, early in May, 1892, to which arrangement the plaintiff company was a party, and which was brought about by the suggestion of the managing officer of the plaintiff company, by virtue of which the assessor was to be furnished. by each company, sufficiently early in May to enable the assessor to make use of the same as a means of arriving at the relative values of the several mining properties for assessment purposes, with a statement, based on the estimates of the mining engineers of each company, or other best evidence within reach of each company, respectively, showing the estimated quantity of ore in sight in' each mine above the bottom level at that time, and also the quantity of ore mined and in stock-pile at each of the said mines at that time. And I further find that accurate knowledge of the quantity of ore existing in the mines at that time, respectively, was the most certain and important factor to bé taken into consideration by the assessor, together with the amount of undeveloped territory adjoining the mine itself, in determining the true and actual cash value of such property as a mine. I find it was also contemplated by the arrangement that the ore in stockpile should be considered with the ore in sight in the mine in determining the value of the mine itself.
“I further find that all the mining companies, with the single exception of the plaintiff company, carried out the arrangement agreed upon, by furnishing statements of the information contemplated in the arrangement mentioned, but that plaintiff company did not furnish such statement or information, either to the assessor or the board of review, in time for their action thereon.
‘ ‘ I further find that the assessor gave due- consideration to the statements rendered him pursuant to the arrangement mentioned. And I further find that, in the absence of any statement from the plaintiff company relative to the ore in the mine, the assessor acted properly, fairly, and honestly in placing such a valuation upon the property of the plaintiff in question as he was required by law to do, using his best judgment to that end.
‘ I further find that the board of review reduced the assessor’s valuation upon the property of the plaintiff by the amount of $150,000, and that this reduction was a greater relative reduction than any reduction made by the board of review from the assessor’s valuations placed upon other mining properties.”

There was testimony upon which to base these findings. This being so, the court will not review the questions of fact. It is not claimed the assessor or the board of review acted fraudulently, but it is claimed they acted illegally and inequitably. The case is ruled by Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510, and Pioneer Iron Co. v. City of Negaunee, 116 Mich. 430.

Judgment is affirmed.

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


author: Long, J.

text:
    BROOKS v. AUDITOR GENERAL.
    1. Tax Sales — Setting Aside — Jurisdiction.
    It is not within the power of the court to set aside a tax sale after confirmation, even though the decree has not been enrolled, except for a total want of jurisdiction to enter the decree, or for one of the causes specified in section 70 of the tax law (Act No. 206, Pub. Acts 1893), namely, that the taxes were paid or the land was exempt from taxation.
    2. Same — Proof of Publication — Sufficiency.
    The yalidity of a tax decree is not affected by the fact that, after the affidavit of publication of the petition and order of hearing had been duly filed with the register of the court, as required by the statute, he inserted it in the tax record.
    Appeal from Clare; Dodds, J.
    Submitted January 5, 1899.
    Decided February 6, 1899.
    Petition by Leroy Brooks and others against Boscoe D. Dix, auditor general, and William G. Roche, to set aside a tax sale. From a decree for petitioners, defendant Roche appeals.
    Reversed.

      Frank L. Prindle, for petitioners.

      James H. McFarlan, for'appellant.
   Long, J.

Petitioners were the owners of the lands in controversy. They filed a petition to set aside a decree for the sale of the lands as delinquent for taxes.

It appears that petitioners contracted to sell the lands to one Wyckoff in 1886. He paid a small amount down at the time the contract was made, and entered into possession, and resided thereon up to the time of his death, in 1893, and since that time his widow has resided thereon. By the terms of the contract, it was the duty of Wyckoff to pay all the taxes assessed against the land, which he did, except for the year 1892. Petitioners had a tax agent, whose duty it was to see that all returned taxes were paid on the lands of petitioners. In the summer of 1893 this agent sent to the county treasurer of Clare county, where the land in controversy was situate, a list of petitioners’ lands, including these lands, requesting the treasurer to mark all returned lands, which he did, including these lands; but, by some oversight, the agent failed to pay the taxes on this piece. Petitioners did not learn that these taxes were not paid until July, 1897, when they were informed that the land had been sold and deeded to defendant Roche. The court below set aside the decree and sale upon the payment of the taxes and interest. Defendant Roche appeals.

The reasons given by the court below for setting aside the sale were that the provisions of sections 70 and 76 of the tax law of 1893 (Act No. 206, Pub. Acts 1893) do not apply to a proceeding to open a decree and allow redemption where the decree has not been enrolled; that the decree had not been enrolled.; and that the matter was therefore in the discretion of the court. The court below seems to have construed some language used by this court in Benedict v. Auditor General, 104 Mich. 269, as . authorizing this course. „We think the learned judge misconstrued that case. The real point upon which that case turned was*that the court below had no jurisdiction to enter the decree for the sale of the lands. It is true that it was there said that, the decree not having been enrolled» the party might proceed by petition. That had reference to the mode of procedure, and nothing more. In the present case the court had jurisdiction to enter the decree ordering the sale. * The sale was ordered, the land sold, and defendant Roche became the purchaser. Section 70 of the tax law'of 1893 provides that all sales shall stand ' confirmed, subject to the right of redemption provided for in section 74, unless objections thereto are filed within eight days after the time limited for filing such report, without the entry of an order or further notice: “Provided, further, that no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation.” There was no showing in the present case that either of these causes existed. The court below was in error in supposing that the matter was discretionary with the court to set aside the sale. It could only be done for the causes set forth in the statute, unless it appeared that .the court had no jurisdiction to make the decree and order of sale in the first instance.

• Some question is raised over the proof of publication. It appears that the affidavit of publication of notice was duly filed with the register of the court, and that fact noted in his calendar. The register chose to put this affidavit into the tax record; but this in no way affected the legality of the notice. He received and filed it, and that was sufficient.

The decree below must be reversed, and a decree entered here dismissing the petition, with costs of both courts in favor of defendant Roche.

The other Justices concurred.


text:
    PERLICK v. DETROIT WOODEN-WARE CO.
    Master and Servant — Dangerous Machinery — Contributory Negligence.
    A servant who, with knowledge of a dangerous machine, unnecessarily places a stepladder in close proximity thereto while discharging his duties as oiler, and unconsciously places his hand on the machine, is guilty of contributory negligence, precluding a recovery for the resulting injury.
    Error to Wayne; Donovan, J.
    Submitted January 5, 1899.
    Decided February 6, 1899.

      Case by Otto Perlick against the Detroit Wooden-Wáre Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Moore & Moore, for appellant.

      William Look and Ira G. Humphrey, for appellee.
   Long, J.

This action was brought to recover damages for injuries received by plaintiff in defendant’s factory. It appears that plaintiff entered defendant’s employ in October, 1892, and continued there until June 29, 1893, when he was injured. For a month or more before the injury, his work consisted in oiling the shafting in the factory and handling lumber. He usually commenced oiling about 7 o’clock in the morning, and it took him about three hours. The rest of the day he was engaged in taking lumber to and from the planer. The shafting he oiled was situate on three different floors. On each of these floors were buzz-saws, re-saws, edgers, turning lathes, and various other rapidly revolving machinery used in wooden-ware manufacturing; and the plaintiff passed along'the entire line of this machinery, on all three of these different floors, every day, in performing his duties as an oiler. In May or June, 1893, the defendant purchased, and erected on a brick foundation, a new re-saw. It consisted of two wheels, each feet in diameter, one set directly over the other, and 21 inches apart at their nearest point. The whole, when erected, was 10 feet in height; and over the wheels a band-saw, about one foot wide and 27 feet long, revolved at the rate of 100 revolutions a minute. The top wheel had a hub, with several spokes and a rim, and made more or less noise. The machine was received about June 9th, and the erection began at once, and was completed and the machine put in operation about June 17th. The plaintiff, in going and coming from his work, passed, every day, on one side or the other of this machine. He walked around it, every day, in performing his duty as an oiler. He testified that he looked at the machine, but did not know what kind of machine it was. The planer, from which the plaintiff took the lumber, and where he worked more than half his time, was about 30 feet from this new re-saw. The re-saw was between the planer and the windows, and plain to be seen. On June 39th, plaintiff began oiling at about 7 o’clock. It was broad daylight. His eyesight was good, and he was a man of ordinary intelligence, about 33 years of age. After he had oiled a few boxes, his attention was called to the fact that an oil-box was smoking, and he went to oil that. He placed his stepladder,under the box he was intending to oil, and, stepping up, put out his hand, intending to put it against a dust-box that stood practically between him and the band-saw; but, without looking to see where he was placing his hand, he placed it in front of the dust-box, and against the saw, and was injured.

The defendant asked the court to charge the jury that, under the evidence in the case, the plaintiff could not recover. This was refused, and the court submitted the case to the jury, who returned a verdict in favor of plaintiff.

The court was in error in not directing the verdict in favor of defendant. The plaintiff was in the discharge of his duties as an oiler. He knew, or was chargeable with notice, that the band-saw was there. He had worked there continually while it was being put in place. The saw was not dangerously near the place where he was called to do the oiling. It was more than three feet from there, and, in oiling, he was not required to get within three feet of it. It appears that he could have put his stepladder at least four feet from the saw, and yet reach the box to be oiled. If he had exercised the least care, he would not have put his hand near the saw. The case is ruled by Sakol v. Rickel, 113 Mich. 476.

The judgment must be reversed, and new trial granted:

The other Justices concurred.


author: Hooker, J.

text:
    ROELOFS v. WEVER.

    1. Degree — Rehearing—Insufficient Grounds.
    A rehearing of a circuit court decree determining the title to certain premises against the petitioner’s contention was asked on the ground that no allowance was made for a building erected by the petitioner. The petition itself showed that the petitioner had omitted at the hearing to bring the matter to the attention of the court. Held, that the petition was properly denied.
    2. Same — Parties.
    Defendant is not entitled to a rehearing of a decree determining the title to certain lands to be in complainant merely because a person holding an unrecorded deed from defendant was not made a party, where the omission is not shown to have been prejudicial to defendant.
    3. Accounting — Authority of Court.
    The circuit judge has a right to take an account himself, without reference to a commissioner.
    Appeal from Ottawa; Padgbam, J.
    Submitted January 24, 1899.
    Decided February 6, 1899.
    Bill by Hendrik J. Roelofs against John Wever and Alice Wever to restrain proceedings for an eviction, and for an accounting. There was a decree for complainant, and defendants filed a petition for a rehearing. From an order denying the petition, defendants appeal.
    Affirmed.

      Gerrit J. Diekema, for complainant.

      McGarry & Belden, for defendants.

       Rehearing denied May 23, 1899.

   Hooker, J.

About March 1, 1895, complainant was the owner of, and resided upon, a farm of 60 acres of land. One Pycock held three mortgages upon the property, aggregating $2,438.39. A clay bank upon the farm made •it valuable for brick making, and a contract was made between complainant and the defendants (who are brother and sister) in substance as follows, viz. ■: The defendants were to pay the amount due upon the three mortgages, and receive a deed of the farm. They were to give back to the complainant a land contract, by which they were to agree to reconvey to the complainant at any time within five years, provided that he should pay to them one-third of the money paid by them upon the mortgages, and give them a mortgage upon the premises for the remaining two-thirds of said sum. The complainant and the defendants were to become copartners in the brick business, complainant to furnish the clay and the use of so much land as should be necessary for the business, and the •defendants to furnish necessary machinery and tools; the parties to share equally in profits and losses. The land contract was executed and delivered to the complainant; the deed'was delivered to the defendants; and the business of the partnership was conducted for a time. Defendants obtained a release of the three mortgages, by paying $1,038.39 in cash, and giving to Pycock a promissory note for $1,400, secured by their mortgage upon the premises.

Complainant claims that, after conducting the business for a time, the defendants stole and destroyed the land contract, claimed that the complainant was not a partner, and that they were sole owners of the land and machinery, forcibly excluded him from participation in the business before any brick could be sold, and commenced summary proceedings to evict him from' the farm. Complainant filed the bill in this cause to restrain the proceedings before the circuit court commissioner, and for an adjustment of the dealings between the parties. The cause was heard upon pleadings and proofs taken in open court; and in his decree, dated December 15,1897, the learned circuit judge adjudged the facts to be substantially as alleged by the •complainant, and decreed that the partnership be dissolved, and that no further accounting was necessary; that no profits were realized in the business, and that there was no property left to be divided; that the defendants should remove the brick and machinery, and might dispose of them for their own use, within a period not later than May 15, 1898, and not thereafter; that the deed to the defendants should be treated as a mortgage, and that complainant might, at any time within five years from March 26, 1895, pay to the defendants the-sum of $1,038.39, with interest, together with any sums that they should thereafter pay upon the mortgage given by them, and that, upon full payment or tender, the defendants should convey to him, by deed, with covenant against their own acts, the land aforesaid, subject to any remaining unpaid balance upon the mortgage; and that in case of refusal or neglect upon the part of ■ the defendants to receive the money, or to execute and deliver such deed upon payment or tender of the amount prescribed by the decree, the complainant might apply to the court for a further decree.

No appeal was taken from this decree, but on April 30, 1898, the defendants filed a petition for leave to apply for a rehearing, which being granted, a petition was filed in May. The answer was filed, and, upon.the hearing, the prayer of the petition was denied, in August, 1898, and the defendants have appealed from the order denying the rehearing. As reasons why the rehearing should have been ordered, counsel assert that the petitioners had erected a brick house upon the premises, for which no allowance was made, and that they had deeded a portion of the premises to a Mr. DeWitt, who was not made a party. It is further urged that the court erred in not ordering an accounting, and that the decree “authorizes the performance of contingencies out of court, and makes the complainant the judge of their sufficiency,” and that “it declares the Wevers’ deed a mortgage, but makes no provision to foreclose as in case of default,” and that the decree “directs defendants to reconvey a fee, while declaring them only mortgagees.”

If it is true that a house built by the defendants should have been considered, the opportunity was afforded upon the hearing; but there is nothing to indicate that they offered proof upon the subject, or even called the attention of the court to it. The latter omission appears from the petition. In such cases it is the rule not to grant a rehearing. Detroit Savings Bank v. Truesdail, 38 Mich. 430; Sherwood v. Central Mich. Savings Bank, 104 Mich. 65.

Had the defendants desired that DeWitt be made a party, steps to that end should have been taken at an early stage of the proceedings. It is not shown, however, that the defendants are injured by complainant’s failure to make him a party. Counsel for the complainant claims that his deed was not recorded, and that he was unaware that he had an interest. We do not discover that he was an indispensable party.

It is not necessary that a reference be made to take an account, as the circuit judge has a right to hear it. Barnebee v. Beckley, 43 Mich. 613. Whether the court proceeded properly or not does not appear. If he did not, counsel should have asked that he do so; but it is not shown that any complaint was made, and the petition for rehearing is not based upon that ground.

We think that the other questions are without merit, and the order denying a rehearing is «affirmed, with costs.

The other Justices concurred.


text:
    CLARE COUNTY SAYINGS BANK v. GOODMAN.
    Mortgages — Collateral Security — Enforcement. ■
    One who gives a mortgage in terms securing the payment of the notes of a third person cannot require the mortgagee to resort to the notes before proceeding upon the mortgage.
    Appeal from Clare; Wisner, J., presiding.
    Submitted January 24, 1899.
    Decided February 6, 1899.
    Bill by the Clare County Savings Bank against William H. Goodman and wife to foreclose a mortgage. From a decree for complainant, defendants appeal.
    Affirmed.

      C. W. Perry, for complainant.

      Spaulding & Norton (John C. Pooling, of counsel), for defendants.
   Hooker, J.

The defendant William H. Goodman and his son, W. A. Goodman, were copartners in trade, and had dealings with the complainant, and with Patterson & Co. Patterson & Co. gave a note to the Goodmans, in payment of an account due them, for $173. It was made payable to W. A. Goodman, the son, who indorsed it, and discounted it with the complainant. Goodman & Co. received credit. Patterson & Co. gave two other notes, of $500 each, payable to Tonkin, Harris & Co. These were indorsed by Tonkin, Harris & Co., and by W. A. Goodman. It is claimed by W. A. Goodman that these last-mentioned notes were signed by him for the accommodation of Patterson & Co.; but counsel for complainant asserts that they were turned over to some men named Morley, upon an indebtedness due the Morleys from the Goodmans. The Morleys negotiated the paper in Saginaw, and the money to pay them when due was obtained from the complainant by the Goodmans, and all of the notes were renewed from time to time afterwards, at complainant’s bank, and the indebtedness of the Goodmans to the Morleys was paid through thése notes. This claim of the complainant seems to have been the understanding of the senior Goodman, and we have no doubt that it is correct. Subsequently, the bank became dissatisfied with the paper, and asked the Goodmans to secure it. The younger Goodman accordingly deposited with the bank, as collateral, some paper belonging to his firm, and some bank stock which he claims to have owned at the time, but which his father testified was owned by the firm. The bank collected some of the paper left by Goodman, and the stock was sold, and the proceeds were held as collateral, and they lacked about $200 of equaling the amount of the Patterson notes. The elder Goodman called upon complainant, and arranged to take the proceeds of the collateral, and gave the mortgage in suit therefor. This suit is brought to foreclose the mortgage, and the defendants appeal from a decree in favor of the complainant:

It is claimed by the defendants that the indorsement of these notes by W. A. Goodman, and his subsequent delivery of the paper belonging to the firm as collateral, were unauthorized, and that the bank acquired no right to hold them, against this defendant W. H. Goodman, and counsel assert that the mortgage in question was obtained “by a species of duress.” The mortgage contains the following provision:

“Provided always, and these presents are upon this express condition, that if the said parties of the first part shall and do well and truly pay, or cause to be paid, to the said party of the second part, the sum of eleven hundred and seventy-three dollars on or before two years from date, with interest at eight per cent, per annum, payable annually, on all sums unpaid, at the Clare County Savings Bank, in Clare, Michigan (this mortgage is given as collateral security for the payment of three notes given by P. D. Patterson & Co., two of which are for five hundred dollars each, and dated August 18, 1893, and indorsed by W. A. Goodman and Tonkin, Harris & Co., and the other for one hundred and seventy-three dollars, dated August 22, 1893, and indorsed by W. A. Goodman, and all held by said second party, bearing date and executed as above set forth, and when same are paid), then these presents and said notes shall cease and be null and void.
“And it is hereby expressly agreed by and between said parties that should any default be made in the payment of said interest, or any part thereof (or of any installment of principal, or of any part thereof), on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrears for the space of 30 days, then and from thenceforth — that is to say, after the lapse of the said 30 days ■ — so much of the aforesaid principal sum of eleven hundred and seventy-three dollars as remains unpaid, with all arrearages of interest thereon, shall, at the option of said party of the second part, its successors, executors, administrators, or assigns, become and be due and payable immediately thereafter, although the period above limited' for the payment thereof may not then have expired, anything hereinbefore or in said notes contained to the contrary thereof in any wise notwithstanding.”

Counsel claim that the portion of this provision in the first paragraph, commencing with the words “this mortgage,” was inserted by the request of the mortgagor; that he refused to execute the mortgage without it; and that it was the express understanding that the complainant was to attempt to collect the notes from the makers and indorsers before resorting to the mortgage. We think there is no merit in either contention, as, in our opinion, the preponderance of proof is with the complainant upon both questions. The mortgage, by its terms, secures the payment of the notes; and, if defendant desires the doubtful experiment of an attempt to collect them to be made, he can make it himself, upon payment of the mortgage. The bank is entitled tq hold both notes and mortgage until its claim is paid, as in other cases.

The decree is affirmed, with costs.

The other Justices concurred.


text:
    JOHN A. TOLMAN CO. v. WAITE.
    1. Trover — Efeeot oe Judgment — Title.
    The mere rendition of a judgment for the plaintiff in an action of trover does not operate to transfer to defendant the title to the goods converted.
    2. Same — Judgment against Decedent — Certification to Probate Court.
    Whether the certification to the probate court of a judgment in trover against a decedent, who died during the pendency of the action, would pass title, — queere.
    Case made from Iron; Stone, J.
    Submitted January 24, 1899.
    Decided February 6, 1899.
    Trover by the John A. Tolman Company against Man-ville B. Waite, sheriff of Iron county. Plaintiff had judgment, and defendant assigns error.
    Affirmed.

      Fred H. Abbott, for appellant.

      A. L. Flewelling, for appellee.
   Hooker, J.

The facts in this case were stipulated, and a judgment was rendered for the plaintiff by the court, from which the defendant has appealed.

Ball, as sheriff, seized, by virtue of a writ of attachment against Bannerman, at the suit of Fisher, personal property which in fact belonged to the plaintiff,- who brought an action of trover therefor. Ball died during the pendency of the action. His death was suggested, and his administrator defended the action, which resulted in a judgment against the administrator, for $275, including damages and costs. Nothing was ever paid upon this judgment. On February 8, 1896, judgment was rendered for the plaintiff, Fisher, against Bannerman, the defendant in the attachment suit, and on February 16, 1897, an execution was issued. This was levied on the property-attached, which had in the meantime been held under the attachment, and it was subsequently sold, to apply on the execution, by a deputy of the defendant, who had succeeded to the office of sheriff. The value of the property was $200. The plaintiff then brought this action of trover for a conversion through the execution sale. The only question in the case is whether the title to the property passed from the plaintiff by virtue of the judgment against Ball’s estate. Counsel for the defendant claims that a recovery in trover for the full value of the property operates to transfer the title, whether the judgment is satisfied or not. Counsel for the plaintiff insists that satisfaction of the judgment is a prerequisite.

We are of the opinion that the weight of authority in this country supports the plaintiff’s contention, and that this court has not gone so far as to hold that the mere rendition of a judgment for the plaintiff in trover operates to transfer the title to the defendant. See note, to Brady v. Whitney, 24 Mich. 154. In that case the court said that “the general rule is that a defendant in trover, against whom damages are given for the full value of the property converted, gets title to the property, either by the judgment itself or by its payment.” This is not an unambiguous statement, and, we think, cannot be said to hold that a mere judgment is sufficient. In Kenyon v. Woodruff, 33 Mich. 310, an execution had issued upon the judgment, and been levied upon property sufficient to satisfy the judgment. Under the circumstances of that case it was held that title passed, under the election of the plaintiff to look to the judgment debtor alone; citing Boardman v. Acer, 13 Mich. 77 (87 Am. Dec. 736). This may properly be supposed to qualify the statement on page 315, viz.:

“The recovery of Schulenberg against Woodruff for the conversion of the tables put an end to Schulenberg’s right to reclaim them (Brady v. Whitney, 24 Mich. 154), and left them as the property of plaintiffs in error, at whose instance and for whose sole benefit the conversion was brought about.”

Furthermore, had the court considered Brady v. Whitney, supra, to have held that the judgment was alone sufficient, it would have been unnecessary to consider the point on which the later case really turned.

In the present case no execution was issued. Counsel asserts that execution could not issue, and that certification to the probate court was equivalent thereto; but, as we do not find that the judgment was certified, there is no occasion to discuss the question.

The judgment is affirmed.

The other Justices concurred.


text:
    KREIBICH v. MARTZ.
    1. Vendor and Purchaser — Land Contracts — Rescission—Con-
    VEYANOE TO THIRD PERSON.
    The fact that the vendor of land under an executory contract conveys by warranty deed to a third person, without reserving therein the vendee’s rights, does not entitle the latter to rescind, and recover back moneys paid by him, where the grantee accepts his deed with the understanding that it is subject to the contract.
    2. Same — Waiver oe Right to Rescind.
    Any right that a vendee in a land contract might have to treat the contract as rescinded because of a conveyance to a third person, who took subject to the contract, would be waived by his requiring the grantee to furnish him an abstract, and negotiating with him respecting payments.
    Error to Wayne; Carpenter, J.
    Submitted January 24, 1899.
    Decided February 6, 1899.

      Assumpsit by Ka jetan Kreibich against George H. Martz to recover moneys paid under a land contract. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      James Swan, for appellant.

      John G. Hawley, for appellee.
   Hooker, J.

On June 23, 1891, Martz executed and delivered to the plaintiff a written contract for the sale of some lots in the city of Detroit, receiving $100 down upon the sale. Kreibich afterwards paid some interest and taxes, as required by the terms of the contract, though upon September 29, 1897, he was more than a year in default in the payment of $1,700, principal, and the city taxes for 1896. Upon that day Martz and wife executed and delivered to William W. Hannan and his wife a warranty deed of the premises. This was done in the course of a division of a large tract of property, owned by the defendant, Hannan, and Schwartz, who platted the lots, the title being held by the defendant for a time under an arrangement between them. It was so held at the time the contract was made, and, when the deed to Hannan was made, it was the understanding that he took the same subject to the rights of the plaintiff. The plaintiff was informed that Hannan had these lots, and said he did not want to deal with Hannan, and that he thought it was a put-up job, as Martz would not want to foreclose the contract. Subsequently, in an interview with Hannan, he was asked to pay, and said he did not know as he could pay it all, and Hannan offered to take part, and let the rest stand. He then asked for an abstract, which Hannan afterwards procured and delivered to him. He took the abstract, and some time after, acting under the advice of counsel, notified Martz that he considered the contract rescinded, tendered him the contract, and demanded re-payment of the amount paid upon the contract. It was conceded by counsel that the- case involved only a question of law, and the court instructed the jury to return a verdict for the defendant, which they did. The plaintiff has appealed.

The plaintiff’s right .to recover rests upon the proposition that, by executing and delivering a warranty-deed to Hannan, the defendant gave the plaintiff a right to treat the contract as rescinded, under the decisions in the cases of Atkinson v. Scott, 36 Mich. 18, and Weaver v. Aitcheson, 65 Mich. 285. In the case before us it appears that the understanding between the defendant and Hannan was that the latter took the deed subject to the contract, and the plaintiff was informed of this. Hannan never was in a position where he could deny or deprive the plaintiff of his rights under his contract, for he had full notice of them, and accepted his deed upon the understanding that the plaintiff’s rights were to be respected. Moreover, the plaintiff, being so informed, could not have understood that it was defendant’s intention to rescind the contract. The case is properly distinguishable from those cited, in both of which there is reason to suppose that the premises were conveyed in disregard of the vendee’s rights, if not under circumstances which put it out of the vendor’s power to perform the contract.

In the case of Hoock v. Bowman, 42 Neb. 87, it was held that, where the vendor conveyed to a stranger to the contract, which was recorded, such stranger took with notice of the vendee’s rights, and subject to them, and that, under such circumstances, the vendee had not the right of rescission. This is a just rule, and will apply equally well in any case where the grantee takes with notice, either actual or constructive, of the vendee’s rights. Lowrie v. Gourlay, 112 Mich. 641.

Again, the negotiations with Hannan would have amounted to a waiver of the right to rescind, had there been any such right.

It is unnecessary to discuss the other questions raised, as they do not affect the question upon which the case turns.

The judgment is affirmed.

The other Justices concurred.


text:
    GRIFFIN v. WATTLES.
    1. Pleading — Court Rules — Joining Dilatory Plea and Plea
    to Merits — Appeal.
    Circuit Court Rule No. 6, permitting the filing of a plea to the merits with a plea in abatement, and prescribing the order in which the respective issues shall be tried, does not abrogate the common-law rule that the overruling of a dilatory plea cannot be reviewed on appeal when the defendant proceeds with a trial upon the merits.

      2. Same — Waiver.
    Whether the fact that a defendant, under the rule, files a plea to the merits with his dilatory plea, should in itself be construed as a waiver of the right to a review of the court’s decision upon the dilatory plea, — qucere.
    3. Same — Construction—Presumptions.
    While it is competent for a defendant to file a dilatory plea to one count of a declaration, and plead to the merits to another count, still, where a declaration contains a special count and the common counts, and a plea in abatement to the special count is accompanied by a plea to the merits which is in terms broad enough to cover all of the counts, it will be presumed that it was intended to be so construed.
    4. Same.
    But, conceding that the plea to the merits, when filed, went to the common counts merely, a motion by defendant to set aside his default entered on the special count, after the overruling of the plea in abatement, upon the ground that a plea to the merits had been filed in the case, would be equivalent to a new plea to the merits on the special count.
    Error to Wayne; Donovan, J.
    Submitted January 24, 1899.
    Decided February 6, 1899.
    Debt by Levi T. Griffin against Greenleaf O. Wattles upon a judgment. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      J. A. McLennan, for appellant.

      Levi T. Griffin, in pro. per.

   Hooker, J.

In an action commenced in circuit court, a declaration containing the common counts and a special count upon a New York judgment was filed. To this the defendant filed a plea in abatement as to the special count, alleging the pendency of another suit. At the same time he filed another and separate plea of the general issue, to . which he appended a notice of the statute of limitations, which notice is, by its express language, made applicable to each cause of action declared upon. A demurrer was filed to the plea in abatement, which demurrer was sustained, and the defendant was required to answer over within 15 days, and, in case of his failure to do so, it was provided that his default might be entered. His default was accordingly entered on the special count. Counsel for the defendant then made a motion to set aside the default, upon two grounds: First, because a plea of the general issue was filed with the plea in abatement; second, because, pending the issue raised by the demurrer, the cause was noticed for trial by counsel for the plaintiff. The fact is that it was noticed for hearing upon the demurrer, and for trial. The default was set aside, with costs against the plaintiff, and the parties proceeded to trial, without objection upon the part of the defendant. Judgment was rendered in favor of the plaintiff, and the defendant has brought the case here by writ of error. The errors assigned are that the court erred in sustaining the demurrer to the plea in abatement, and in directing a verdict for the plaintiff, and rendering judgment thereon.

The first question to be considered is whether, upon the record, the ruling upon the demurrer can be reviewed. It is a rule of the common law that rulings upon dilatory pleas cannot be reviewed when the defendant has subsequently pleaded to the merits, as the right to review is thereby waived. Under that practice, a plea in abatement must precede the plea to the merits, and the practice of accompanying a plea in abatement by a plea to the merits, to the same count, was unknown. 1 Enc. Pl. & Prac. 32, 33, and note 1. Cir. Ct. Rule No. 6 permits this practice, and provides the order in which the respective issues of fact shall be tried. It is urged that the object of this rule was to give to the defendant the right to review questions which arise upon the dilatory plea, notwithstanding the fact that he shall have proceeded with a trial of the merits upon the other plea. We find nothing in the rule to indicate such an intention. It would have been easy for the court, in framing the rule, to have placed this question beyond dispute, had it been the intention to give the rule such effect. 2 How. Stat. § 6409, in authorizing this’ court to frame rules for the circuit courts, requires the court to make said rules with the view of “ abolishing all fictions and unnecessary * * * proceedings,” the “simplifying and abbreviating of the pleadings and proceedings,” the “expediting of the decisions of causes,” etc. We have seen that the common law, with a view to the same end, prohibits a defendant from putting his adversary to the expense of a trial of the merits, if he would test the correctness [of proceedings upon dilatory pleas. To review such questions, he must incur the hazard of a judgment against him. This court has steadily adhered to this practice, although frequently importuned to so change the rules as to permit the course which the common law condemns. The statute, like the common law, looks upon a speedy trial of the merits as a desirable result; and a practice which delays, by permitting technical and dilatory tactics, is contrary to the policy of both, and we cannot give an unnecessary construction to Rule 6 which would have that effect. Indeed, a plausible view to be taken of Rule 6 is that filing a plea to the merits with the plea in abatement, to one and the same count, is in itself a waiver of the right to review the decision of the court upon the plea in abatement, if adverse to the defendant, especially as in such case it provides for an immediate trial upon the plea to the merits, and that, unless a defendant is content to abide the decision of the trial court upon the questions raised byathe dilatory plea, he should not accompany it by a plea to the merits. If, on the contrary, he desires to take the judgment of the court thereon, without delaying proceedings, he may file both pleas.

But we find it unnecessary to pass upon that question. The defendant went to trial upon the merits. Our attention is not called to any claim upon the trial that this plea applied merely to the common counts. Counsel relies on Buie 6 as a justification for his practice; yet, if the plea of the general issue was intended to apply merely to the common counts, the invocation of the rule is unnecessary, for it was always competent to file a dilatory plea or demur to one count, and plead to the merits to another. Steph. Pl. 257. Again, the plea itself and the notice accompanying it are broad enough to cover all counts, and they not only do not state that they were intended to apply only to the common counts, as they should do if that were the design, but the notice is expressly made to cover all causes of action declared upon.

Furthermore, defendant obtained an order setting aside the default upon the special count, upon the ground that there was a plea to the merits filed in the case; and, unless that plea was understood to apply to the special count, he was not entitled to that order. In our opinion, such motion and order, followed by a trial upon all of the counts, should be held equivalent to a new plea to the merits upon the special count, were we to hold that the plea, when filed, was to the common counts merely. It will not be contended that had the defendant filed a new plea to the special count, as permitted by the order sustaining the demurrer, he could still review the questions involved in the dilatory plea. In our minds, the course taken by counsel for the defendant amounted to the same thing.

We think, therefore, that the questions arising upon the . plea in abatement cannot be reviewed here, and, as counsel discusses no question that does not depend upon that plea, the judgment must be affirmed. It is so ordered.

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


author: Montgomery, J.

text:
    MORGAN v. TWEDDLE.
    1. Taxes — Validity op Degree.
    A tax decree is ineffectual, and will be vacated at the instance of a property owner, where no amounts were extended in the column of the tax record headed “Amount Decreed against Lands,” as required by Act No. 206, Pub. Acts 1893, § 66, except by the county treasurer, without the authority of the court, after the record had passed from the control of the court.
    2. Same — Setting Aside Sale — Conditions.
    As a condition to relief from an invalid tax sale, the petitioner should be required to pay the taxes, interest, and charges against the land.
    Appeal from Grand Traverse; Corbett, J.
    Submitted January 24, 1899.
    Decided February 6, 1899.
    Petition by Birney J. Morgan against John J. Tweddle and others to correct a tax decree, and to set aside the sale thereunder. From a decree dismissing the petition, petitioner appeals.
    Reversed on condition.

      Pratt & Davis, for petitioner.

      George H. Cross, for defendants.
   Montgomery, J.

This is a proceeding to correct a decree in a tax proceeding which on its face decrees a sale of land belonging to petitioner. The petitioner sets up that the decree in the tax proceeding, both at the time it was sigped and at the time when, under the law, the tax record was turned over to the county treasurer, was incomplete, in that, while the decree in form determined and adjudged that the amount of taxes, interest, collection fee, and charges set down in the column headed “Amount Decreed against Lands” was a valid charge against the lands, there were in fact no figures whatever entered in this column. The evidence fully sustains this allegation. It appears thereupon that at no time while the record was in the control of the register, either before or after the decree was signed, were the figures in this column extended, but that the same were extended by the county treasurer not more than one week prior to the sale. The circuit judge dismissed the petition, and petitioner appeals.

Section 66, Act No. 206, Pub. Acts 1893, provides that the total amount of taxes, interest, and charges, as fixed by the court, shall be entered by the register of the court opposite each parcel of land in the column of said record under the heading “Amount Decreed against Lands.” The same section provides:

“At least ten days prior to the time fixed for the sale of such lands, the court shall make a final decree in favor of the State-of Michigan for such taxes, interest, and charges as shall be valid, and determine the total amount thereof chargeable against each parcel of land, and shall order and decree that such several parcels of land, or so much of each as may be necessary to satisfy the amount fixed by such decree, shall severally be sold as the law directs. Such decree shall be considered as a several decree in favor of the State of Michigan against each parcel of land for each tax included therein.”

Should it be held, as contended by counsel for appellees, that an omission to comply with these requirements is a mere irregularity ?

As to antecedent acts of taxing officers not affecting the jurisdiction of the court to pass a decree, and when the irregularity does not work any injury to the taxpayer. irregularities may well be overlooked; and when the error in entering judgment is one which corrects itself, or consists of an omission to observe some provision which may be considered directory merely, the provision may be overlooked. But it cannot be suffered in tax proceedings, any more than any other court proceeding, that the duty of entering judgment shall be intrusted to strangers, or others in no way connected with the court officially. While it may not be necessary to hit the bird in the eye, we are not prepared to hold that the firing of a blank cartridge is all-sufficient. The judgment of the court should be complete in itself, and, where a judgment is entered with blanks to be supplied, it is invalid. 11 Enc. Pl. & Prac. 935; School Directors v. Newman, 47 Ill. App. 364. So, where the judgment was rendered in figures, without the word “dollars” or any dollar mark, it was held invalid. Millard v. Truax, 99 Mich. 157; Giddings v. Giddings, 70 Iowa, 486; Easterling v. State, 35 Miss. 210. In this case the record does not show, nor could it well show, that the circuit judge determined the amount to be decreed against the land. It is improbable that any oral decree or judgment was announced. The decree was signed with the amount left blank.'

We do not determine what the effect of a subsequent entry by the register, under the direction of the judge, might have been. Such is not the case before us. What we do decide is that, inasmuch as the record had passed from the control of the court when these figures were entered, the decree was ineffectual, and should be vacated as to the petitioner. As a condition to relief, the petitioner should be required to pay the taxes, interest, and charges, and he will recover costs of this court against contestants.

The other Justices concurred.


text:
    FOSTER, CHARLES & EWEN CO v. FELCHER.
    Married Women — Contracts—Original Promise.
    A married woman who, after being informed that chairs had been ordered by her husband for use on a pleasure-boat operated by him for her as the owner, and had been delivered upon the husband’s assurance that she would settle for them, called on the person who furnished them, and stated that she would see that the chairs were either returned or paid for within 10 days, may be held liable for the purchase price; it appearing that no contract had been made with, nor credit extended to, the husband.
    Error to Saginaw; Snow, J.
    Submitted January 25, 1899.
    Decided February 6, 1899.

      Assumpsit by the Foster, Charles & Ewen Company against Rebecca L. Felcher for goods sold and delivered. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Trask & Smith, for appellant.

      Crane & Crane, for appellee.
   Montgomery, J.

Plaintiff recovered a judgment for the purchase price of 30 dozen chairs at the price of #5 per dozen. The defendant brings error.

The testimony on the part of the plaintiff tended to show that in August, 1895, Capt. Felcher, defendant’s husband, called at plaintiff’s shop, and ordered the chairs for use on the boat Periwinkle, of which he was master. The boat was then at the dock in Saginaw, The order was noted on plaintiff’s book, “Captain Felcher; boat Periwinkle.” This, as testified by plaintiff’s salesman, was a memorandum of delivery. Plaintiff did not have the chairs in stock, but ordered them from Detroit. Before they arrived, plaintiff investigated the financial standing of Mr. Felcher, and claims that it extended no credit to him. Plaintiff’s witness testified that, before the chairs were delivered, he went down to the boat, saw Mr. Felcher, told him the chairs had arrived, and asked him when plaintiff was going to get its pay; that Capt. Felcher replied that he didn’t know whether he would need all the chairs, but added, “You have them brought down here, and we will take what we need, and I will have Mrs. Felcher come in and settle for them;” adding, “She is good for them; she owns the boat.” Witness testified that he relied on this statement, and delivered the chairs at the dock; that, a few days later, the defendant came in, and said: “Capt. Felcher has spent altogether too much money on my boat now. I don’t know what he wants of the chairs, for there are chairs enough there without them; but,” she added, “I will see that you either get those chairs back, or get paid for them, in 10 days.” The defendant and her husband gave testimony contradicting that of plaintiff in material facts.

The court charged the jury as follows:

“The plaintiff in this case, in July, 1895, was engaged in the mercantile business in this city, selling furniture. They claim that, some time in July of that year, one Felcher came to them, and represented that his wife was the owner of a boat called the ‘Periwinkle,’ and that they desired to purchase some chairs to be used upon this boat. They also claim that they refused to give credit to Mr. Felcher for the chairs, but that they sold the chairs to the defendant, Mrs. Felcher. The burden of proof is upon the plaintiff to establish their case, and to establish each and every element necessary to make out their case, by a fair preponderance of evidence. If you find, from the evidence in this case, that the sale of these chairs was actually made to the defendant, that she was the person that was given credit for these chairs, and that she represented to the plaintiff at the time that she was the owner of the boat Periwinkle, then the plaintiff would be entitled to recover the value of the chairs. On the other hand, it is claimed by the defendant that she did not purchase these chairs, and that the chairs were purchased by her husband. She also claims that she is not the owner of the Periwinkle. She also claims that she never gave her husband any instructions to buy any chairs for her, or to buy any chairs to place upon this boat. She also claims that she never bought the chairs, or had any conversation in regard to buying the chairs. If you should find, from the evidence in this case, that the chairs were sold’ to Mr. Felcher (Capt. Felcher), and delivered to him, and that afterwards the defendant in this case, Mrs. Felcher, agreed to pay for them within 10 days, or return the chairs, if you should find that to be the fact in this case, then plaintiff cannot recover, because it would be the promise merely to pay the debt of another, and, in order to bind the defendant upon any such terms, it is necessary, under the law, that the promise should be in writing, and signed by the defendant, in order to bind her, or charge her with the indebtedness. ”

Defendant’s counsel contend that the testimony on the part of the plaintiff shows that the alleged promise to plaintiff was a promise to answer for the debt of another, and therefore, not being in writing, void. We think the testimony of plaintiff tends to show that the only contract made for the sale of the chairs was that made with defendant. This was the sole, question in the case: With whom was the contract made? This was submitted under proper instructions. Lempke v. Felcher, 115 Mich. 37; Hirshfield v. Waldron, 83 Mich. 116; Meads v. Martin, 84 Mich. 308; Mosher v. Kittle, 101 Mich. 345; People’s Building & Loan Ass’n v. Billing, 104 Mich. 186; Goodman v. Shipley, 105 Mich. 439.

Defendant’s counsel rely on the case of Goodman v. Felcher, 116 Mich. 348. In that case, however, the proofs failed to show an original promise by the defendant, but did disclose that she promised’ as surety for her husband.

The judgment is affirmed.

The other Justices concurred.