text:
    RAYMOND v. GREEN.
    1. Gaming — Slot Machines — Recovering Monet Lost — Statutes.
    A slot machine is a gambling device within the provisions of section 5929, 2 Comp. Laws, 2 Comp. Laws 1915, § 7795, authorizing the recovery of money lost by playing or betting on cards “or by any other device in the nature of such playing and betting.”

    2. Same — Ownership—Delivery oe Winnings.
    The deposit of money in the machine was a delivery to the owner thereof, since no one else had access to it; and it cannot he contended that those playing the machine were playing with each other, because it could not he played in such a way as to eliminate the owner as a factor in the game.
    3. Same — Recovering Money Lost.
    Where the money lost was embezzled by plaintiff from a railroad company, of which he was agent, he was the lawful custodian of it when it went into the machine, and ■ he had the right to recover it, as against the defendant.
    4. Same — Damages—Amount Lost — Evidence.
    Evidence by plaintiff of the total amount of his income, and of his various expenditures for living expenses during the time involved, held, sufficiently definite to justify la judgment for plaintiff of $145.
    Error to Bay; Coumans, J.
    Submitted October 5, 1916.
    (Docket No. 42.)
    Decided March 29, 1917.
    Assumpsit by Shirley D. Raymond against James Green and another for money had and received, under section 7795, 2 Comp. Laws 1915. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      W. A. Collins and C. W. Hitchcock, for appellants.

      H. Victor Spike (J. C. Hewitt, of counsel), for appellee.

       On the operation of slot machine as gambling see notes in 20 L. R. A. (N. S.) 239; 34 L. R. A. (N. S.) 573; 42 L. R. A. (N. S.) 720.

   Bird, J.

Plaintiff was station agent for the Michigan Central Railroad Company at Auburn, and between the dates of July 1, 1913, and April 21, 1914, he embezzled the company’s funds to the amount of $1,-044.59. It is his claim that $320 of this sum went into defendants’ slot machine, which was kept in the saloon of the defendant James Green, and he brought this suit to recover it under 2 Comp. Laws, § 5929 (2 Comp. Laws 1915, § 7795), the material part of which reads:

“And any person that shall lose any sum of money, or any goods or articles of value, by playing or betting on cards, or by any other device in the nature of such playing and betting, and shall pay or deliver the same or any part thereof to the winner, the person so playing or delivering the same may sue for and recover such money in action for money had and received, to the use of the plaintiff; and such goods or other articles of value in an action of replevin, or the value thereof in an action of trover, or in a special action on the case.”

The jury found that the plaintiff had lost $145 in the machine, and rendered a verdict therefor. Defendant has assigned several errors on the proceedings.

I. The defendant Bert Green, who owned the machine, testified that:

“The machine is self-regulating, and I kept it for the purpose of having it operated. There are 32 marks of the reds and 32 of the blacks. The player has a chance of winning every time the machine operates. The chance of the machine winning is 62 out of 94. This machine is a gambling device. * * * in order for a person who plays the slot machine to win it is essential that the color that he plays on stops under the dial.”

It is not seriously contended by defendant’s counsel that the slot machine was not a gambling device, but they insist that it is not such a one as comes within the range of the foregoing statute, because it lacks certain essential elements, which are:

(a) “That a sum of money shall have been lost.”

(b) “That it be by playing or betting on cards or by any other device in the nature of such playing or betting.”

(c) “That the money shall have been paid or delivered or some part thereof to the winner.”

(а) That a sum of money was lost by playing the machine was established to the satisfaction of the jury by the testimony of plaintiff and others who saw him playing it.

(б) The slot machine is a device upon which one may play and lose or win. One who plays thereon bets that the dial will stop in a certain position, and whether it does or not determines who is the winner. If the player wins the money is delivered to him automatically by the machine; If he loses the machine retains the nickel deposited by him. In what essential way this mode of gambling differs from betting on the outcome of a game of cards is not apparent. In both a bet is made on the outcome of an uncertain event, and its outcome determines who is the winner and who is the loser. The slot machine in question is clearly embraced within the language of the statute “or by any other device in the nature of such playing or betting.” gee Shaw v. Clark, 49 Mich. 384 (13 N. W. 786, 43 Am. Rep. 474);

(c) The machine was owned and controlled by the defendants. No one save them had access to the money deposited in the machine. The machine was operated at their will, and a deposit of a nickel in the slot was as much a delivery to them as it would have been had their agent stood by the machine and taken it for them.

But it is said that the slot machine is a gambling proposition in which, each person playing the machine is playing with every other person who plays it. We think not. Every person that plays the machine plays with the person who owns or controls it. No two or more persons can play the machine in such a way as to eliminate the owner as a factor in the game. Whoever plays, the stakes are always held by the owners, and he either wins or loses.

The point is made that the money deposited by the plaintiff in the machine was not his money, but the money of the Michigan Central Railroad Company, from whom he embezzled it, and therefore plaintiff had no title to the money and had no right to its possession. The plaintiff was agent of the Michigan Central Railroad Company, and received the money as its agent. It came rightfully into his possession, and he was the lawful custodian of it when it went into the machine. As against the defendants he had the right to recover it. 28 Am. & Eng. Enc. Law (2d Ed.), p. 674.

The further point is made that there is no evidence upon which to base a verdict for any particular amount. -The plaintiff submitted his proofs on this phase of the case in the following form: From July 1, 1913, to April 21, 1914, he took $1,044.59 from the company. During that time his salary was $500, making a total of $1,544.59. He then showed his various expenditures for living and other purposes during the same period. Deducting this from the total income he arrives at the amount he deposited in the machine. The testimony submitted on the question was sufficient to justify the finding of the jury.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    MUSKEGON, GRAND RAPIDS & INDIANA RAILROAD CO. v. CITY OF MUSKEGON HEIGHTS.
    1. Railroads— Ordinances — Municipal Corporations — Injunction — Admissions.
    Where a railroad company, acting under the provisions of an ordinance passed by a city council, constructed, within, the time limited therein, oniy a part of a track on a certain street authorized thereby, it was entitled to maintain and operate the same, and in proceedings to restrain the city officials from interfering with its use of said street, it was entitled to a decree affirming its rights in the part already built and enjoining interference therewith, and for this purpose its bill should have been retained instead of being dismissed, it being admitted that it was entitled to relief in this respect.
    2. Same — Unreasonable Delay — Vis Major — Equity — Consent to Use op Street.
    Where the only excuse for a delay of nearly five years in completing the construction of its track was opposition of another railroad company to plaintiff’s crossing its track against its wishes and rights, vis major was not applicable, in the absence of a showing of reasonable diligence to discover whether an amicable arrangement could be made to secure said crossing, and there is no equitable, reason for setting aside the action of the city in withdrawing its consent to the further use of the street.
    3. Same — Consent to Use op Street — Franchise.
    Where consent is given by a city to one railroad company to occupy a street with its tracks, no consent can be implied therefrom that any other company may use the street by using the tracks of the licensed company.
    Appeal from Muskegon; Sullivan, J.
    Submitted October 16, 1916.
    (Docket No. 148.)
    Decided March 29, 1917.
    Bill by the Muskegon, Grand Rapids & Indiana Railroad Company against the city of Muskegon Heights and others for an injunction restraining defendants from interfering with the construction by plaintiff of a spur track on a certain street in said city, and other relief. From a decree for defendants, plaintiff appeals.
    Affirmed in part, and reversed in part.

      James H. Campbell (Elvert M. Davis, of counsel), for appellant.

      John A. McLaughlin, for appellees.
    The plaintiff, the Muskegon, Grand Rapids & Indiana Railroad Company, is a Michigan corporation, with a line of railroad extending from the city of Grand Rapids to the city of Muskegon, passing through the city of Muskegon Heights. It is operated by the Grand Rapids & Indiana Railway Company, which furnishes the equipment for operation. The common council of the city of Muskegon Heights is composed of a mayor and six aldermen. The Pere Marquette Railroad Company is a railroad corporation organized under the laws of this State, and a portion of its road, formerly the Chicago & West Michigan Railroad, runs into and through the city of Muskegon Heights. Manahan avenue is a street running east and west in the city of Muskegon Heights from Glade street on the west to Dyson street on the east, intersecting from west to east Waalkes street, Park avenue, Ninth, Eighth, Seventh, and Sixth streets, Sanford street, Peck boulevard, Raker, Leahy, Hoyt, Reynolds, How-den, Riordan, Lethen, Manz, and other streets further east. Running in a northwesterly direction, the Pere Marquette main line crosses Manahan avenue between Sixth street and Sanford street. In the year 1910 the plaintiff company determined to increase its facilities in the city of Muskegon Heights, and for this purpose to build a freighthouse on the south side of Manahan avenue in the block between Eighth and Seventh streets, and to build a spur track connecting with its main line, running southerly to Manahan avenue, entering that avenue at Park avenue and running east in Manahan avenue to Dyson street, and on June 27, 1910, the common council of the city of Muskegon Heights passed an ordinance which recites the proposition of the said railroad company and refers to a blueprint on file in the office of the city clerk, grants permission to construct the proposed spur upon, along, and across Manahan avenue between Park avenue and Dyson street, and all such side tracks as it or its successors or assigns might make to reach and serve the freighthouse which it was proposed to erect and other premises situated on both sides of Manahan avenue between Park avenue and Dyson street. The grant was upon the condition that the spur track be built from the point of connection with the main track to Manahan avenue, and thence east in Manahan avenue to Reynolds street within three years from the taking effect of the ordinance, with the provision that if it should not be built within the three years the right and franchise at the end of such three years should become void. In November of that year a map showing the route of the proposed spur track was approved by the railroad commission, and in that month the work of constructing the spur was begun, and completed to Sixth street in February, 1911. The freighthouse was finished in October, 1911, and, so far as completed, the spur track was used. It is from the point of its connection with the main line approximately two miles long. The common council of the city of Muskegon Heights by ordinance extended the time for the construction of the spur track east of Sixth street one year from July 17,1913. This was done July 7,1913. In May, 1914, construction of the spur track east of Sixth street was begun, ties and rails were laid upon the street from Sixth street east to Reynolds street, but the crossings of the Pere Marquette tracks were not constructed. In June, 1914, the receivers of the Pere Marquette Railroad Company filed their bill in the circuit court for the county of Muskegon, in chancery, to enjoin the further construction of the said spur track in Manahan avenue east of Sixth street, and upon the filing of the bill a preliminary injunction was allowed and served, and work was suspended. A motion to dissolve the injunction was heard on the 22d of August, 1914, and an order was made dissolving it, effective at the expiration of five days. That suit is still pending. June 29, 1914, the common council of the city of Muskegon Heights passed an ordinance reciting the passing of the ordinance of June 27, 1910, that the spur track had been built in part, but the work was obstructed and delayed by the injunction suit, and ordaining that the time for the construction of said spur track be extended six months from and after the 17th of July, 1914. The order dissolving the injunction having become effective, an attempt was made to cross the Pere Marquette track, but the work was interrupted and interfered with by employees of the Pere Marquette Railroad Company, who took away the materials. On the 29th of August, 1914, the receivers filed a bill in the district court of the United States at Grand Rapids, identical with the bill they had filed in the Muskegon court, praying for an injunction, and secured an order requiring the defendants to show cause why a preliminary injunction should not be issued restraining the plaintiff herein from proceeding with the construction of its track in Manahan avenue, with the further order restraining said plaintiff, in the meantime and until the further order of the court, from proceeding with the work. There was a hearing, and on November 5th an order was made that the injunction issue, and the writ issued November 7th and still remains in force. Thereafter, December 21, 1914, the common council of the city of Muskegon. Heights passed an ordinance which recited the passing of the ordinance of June 27, 1910, and the extension of time already given; that the extensions granted would expire January 16, 1915; the fact that construction was delayed and obstructed by the injunction issued on the application of the Pere Marquette Railroad Company; and that the plaintiff herein had been prevented from building the track in compliance with the original ordinance by reasons entirely beyond its control, and thereupon extending the time until the 1st day of June, 1915.
    The Pere Marquette Railroad Company has spurs in Manahan avenue east of Sixth street and side tracks which serve various manufacturing businesses, and on the 1st of December, 1914, that company and the plaintiff in this suit entered into an agreement by the terms of which the plaintiff herein rented the main spur track' in Manahan avenue east of Sixth street for its entire length, and agreed to purchase an undivided half interest in and to each of the tracks diverging from the main spur reaching various industries located along Manahan avenue, excepting the tracks leading to the plants of two of said industries. The plaintiff company thereafter took-up and removed from the street portions of the spur track already laid therein and discontinued, or at least did not proceed with, its efforts to secure crossings of the Pere Marquette tracks and complete its said spur. On June 21, 1915, there was presented to the common council of the city of Muskegon Heights an ordinance which recited, among other things, the extension of the three-year limitation in the original ordinance to June 1, 1915, that within the three years the plaintiff company had constructed that part of the spur track west of Sixth street, and had been prevented and delayed by injunction from constructing its spur track east of Sixth street to Reynolds street, and that whereas an agreement had been made and executed between the Pere Marquette Railroad Company and the plaintiff herein by which plaintiff had acquired the right to use and operate in common with the Pere Marquette Railroad Company and its receivers the existing main spur track of the Pere Marquette Railroad Company in Manahan avenue and the installed side tracks leading therefrom, etc., that therefore the common council ordains:
    “Section 1. That the said agreement and the rights thereby acquired by the Muskegon, Grand Rapids & Indiana Railroad Company is approved and accepted as the satisfaction of and the compliance by the Muskegon, Grand Rapids & Indiana Railroad Company with the said condition in said ordinance of June 27, 1910, and the extensions thereof by ordinance until June 1, 1915.”
    The proposed ordinance was referred to a committee of the council, and the committee, on June 21, 1915, reported, recommending that no further extension of time be granted to fulfill the conditions of the ordinance passed June 27, 1910, and that the rights and privileges thereunder granted be held null and void for the failure of the company to comply with its conditions, and that the ordinance of June 27, 1910, “granting to the Muskegon, Grand Rapids & Indiana Railroad Company, its successors and assigns, the right and franchise to construct and operate a spur track on Manahan avenue and across streets therein mentioned, and granting the use of the south '36 feet of Manahan avenue from westerly line of Park avenue eastwardly to the eastern limits of said Manahan avenue, and all other ordinances passed subsequently thereto extending the time in which to build said track,” be rescinded. The report of the committee was accepted and the resolutions as read adopted. Thereafter, on June 28,1915, the said common council adopted a resolution that the plaintiff company be notified by the city recorder to remove all of its tracks in Manahan avenue built by virtue of the ordinance of June 27, 1910, within five days, and that upon the failure to remove them the street commissioner do so. On the same date, the common council adopted another resolution to the effect that the city recorder notify the plaintiff railroad company to immediately desist from using the track of the Pere Marquette Railroad Company by virtue of its agreement with that company, and upon its failure to do so instructing the city attorney to take the necessary legal steps to accomplish that end. The city recorder gave the notice indicated by these resolutions on July 6th, with copies of the resolutions. On July 9th the plaintiff filed its bill in this cause. Later, and on July 26, 1915, it filed a bill in the circuit court for the county of Muskegon, in chancery, against the city, the city council and other officers, the Pere Marquette Railroad Company and its receivers, attacking the second resolution passed June 28, 1915, hereinbefore referred to. In this cause (the bill filed July 9, 1915) the plaintiff, setting up the various matters herein already stated, and others, prays for a decree adjudging the action of the council of the city of Muskegon Heights declaring its rights and privileges in Manahan avenue in the south 30 feet of said street to be void and ordering a removal of its tracks to be unlawful and of no legal force or effect, adjudging that the plaintiff has not incurred any forfeiture of its rights under said ordinance to construct, maintain, and operate a spur track in Manahan avenue with side tracks, and that its rights under said ordinance remain in full force and effect, notwithstanding the fact that that part of the spur track east of Sixth street has not been constructed within the time stated in the ordinance, praying also for an injunction restraining the defendants from taking any action to enforce or carry into effect the said declaration of the said common council that the rights and privileges of plaintiff under said ordinance are void, and from taking any action to forfeit and to declare forfeited any rights of plaintiff under said ordinance, and from taking up, removing, disturbing, or interfering with the said spur track now constructed west of Sixth street or any track or tracks connecting therewith, and from causing the same to be done in any manner or by any means. The members of the common council of the city and the city were made parties defendant in this bill, and they answered, the city claiming the benefit of a cross-bill, and it prays the court to declare void the ordinances which have been referred to, to declare that plaintiff has abandoned all rights and privileges granted under the ordinances, and has forfeited its rights by failure to build the spur track within the time prescribed in the ordinance, that the plaintiff refrain from using the spur track of the Pere Marquette Railroad Company in the north 30 feet of Manahan avenue under its said agreement and arrangement with the Pere Marquette Railroad Company until it shall first obtain the consent. of the council of the city of Muskegon Heights, and for general relief. The cross-bill was answered and the cause, being at issue, was heard in open court, and the result was a decree made March 27, 1916, which, after a recitation of facts, contains findings, one of which is here quoted:
    “That the action of the council in declaring all rights and privileges of the plaintiff by virtue of the ordinance of June 27, 1910, and the subsequent ordinances extending the time for the completion of the spur track void, was legal and within its power. The plaintiff failed to comply with the reasonable condition of the grant, and the city of Muskegon Heights legally declared a forfeiture of its rights. The defendant, the city of Muskegon Heights, however, only seeks a forforeiture of the rights of the plaintiff along the south 36 feet of Manahan avenue between Sixth street and Dyson street. That the city asks less relief than it might be entitled to is commendable in that the council does not wish to deprive the factories between Sixth street and Park avenue of the benefit of the plaintiff’s railroad or of the Pere Marquette Railroad.”
    It was adjudged that the preliminary injunction granted and issued in this cause be dissolved, “except in so far as it relates to the spur track and other tracks heretofore constructed by the plaintiff, and now existing in Manahan avenue west of Sixth street.”
    It was adjudged that the bill of complaint be dismissed, that the ordinance passed June 27, 1910, and those in amendment thereof and extending the time in which to build the track are null and void, “in so far as they grant any right, franchise, or privilege to the plaintiff to construct, operate, and maintain a spur track in, through, along, or upon Manahan avenue east of Sixth street in the city of Muskegon Heights,” and that the plaintiff remove all tracks built in Manahan avenue east of Sixth street.
    It is further adjudged that plaintiff has no right to construct, operate, or maintain any track upon Manahan avenue east of Sixth street, nor to use the tracks of the Pere Marquette Railroad Company or any other railroad company now constructed or which may hereafter be constructed on said avenue east of Sixth street. Agreeably with these findings and adjudications, the plaintiff is restrained perpetually, unless the consent of the city of Muskegon Heights is. first had and obtained. The plaintiff, appealing from this decree, presents in this court three propositions, which are stated as follows:

      “First. That the decree dismissing the bill as to the complainant’s tracks west of Sixth street is erroneous for the reasons: (a) The preliminary injunction issued on the filing of the bill is continued in so far as it relates to the spur track and other tracks constructed in Manahan avenue west of Sixth street. The preliminary injunction restrained the city and other defendants from taking up, removing or interfering with the tracks west of Sixth street. The preliminary injunction as to these tracks being continued and properly so, the bill should be retained and not dismissed as to the tracks west of Sixth street. (5) The complainant upon the pleadings and proofs is entitled to a decree granting the relief prayed in the bill, at the least, so far as the tracks in Manahan avenue west of Sixth street are concerned.

      “Second. That the decree that the rights of the complainant, under the ordinance, to build the spur track and side tracks in Manahan avenue east of Sixth street, are forfeited, and that the ordinances so far as they relate to the tracks east of Sixth street are void because of the failure of the complainant to build the tracks east of Sixth street within the time named in the ordinances, is erroneous for the reason that the complainant by failing to proceed with the work and complete the track east of Sixth street within the time named in the ordinances, because it was restrained from doing so by the injunctions, did not forfeit any rights under the ordinances to construct the track east of Sixth street in Manahan avenue.

      “Third. That the decree that the agreement between the complainant and the Pere Marquette for the use by the complainant of the Pere Marquette tracks in Manahan avenue is void, and that the complainant has no right to use the Pere Marquette tracks, and is perpetually enjoined therefrom, is erroneous for the reasons: (a) The rights of the Pere Marquette to maintain and operate its tracks in Manahan avenue and the validity of the agreement and the right of the complainant to use the Pere Marquette tracks under the agreement is not involved and in issue in this case, and could not be. This is a subject-matter wholly distinct from that of the bill in the present case, and could not be injected into the case by cross-bill or otherwise, (b) The decree in this respect is not supported by the proofs. The rights of the Pere Marquette in Manahan avenue, the validity of the agreement, and the right of the complainant to use the Pere Marquette tracks under the agreement can be determined only upon full proofs of all the facts, and can only be determined in the case upon the bill in the second suit in chancery pending and at issue, in which the city and its council and officers and the Pere Marquette and its receivers are defendants.”
    In reply the appellees say:

      “First. That the Muskegon, Grand Rapids & Indiana Railroad Company forfeited all rights to lay tracks in Manahan avenue east of Sixth street, (a) Because it failed to comply with the conditions of the franchise granted to it; and (5) because it abandoned its rights under such franchise.

      “Second. That appellant company cannot use the tracks of the Pere Marquette Railroad Company in Manahan avenue east of Sixth street without first obtaining the consent of the city of Muskegon Heights.
    “These are the only points covered by the decree of the court below, and they are therefore the only points which can be involved on this appeal. No other rights of the appellant are in any way affected by the decree. A large part of appellant’s brief is devoted to a discussion of its rights in Manahan avenue west of Sixth street, when as a matter of fact the decree does not touch such rights in any way.”
    Further on it is said in the brief:
    “The court will bear in mind also that under the decree made by the court below in this case, the rights of appellant to operate and maintain tracks which have already been constructed is in no way questioned. The decree covers only the right to build such tracks as were not constructed within the time limited by the franchise. As a matter of fact, no attempt was made by the appellant to construct the tracks east of Sixth street within the time limited by the franchise.”
    And in the reply brief it is repeated that:
    “The decree of the court below touches and infringes upon no rights of the complainant except its right to construct a track and run its trains through Manahan avenue east of Sixth street. If we are correct in our contention that complainant had no rights in Manahan avenue east of Sixth street, then the decree correctly determines the right of the parties, and it should be affirmed as settled and signed by the circuit judge.”
   Ostrander, J.

(after stating- the facts). A clear, unequivocal admission, at the hearing below or in this court, that the plaintiff has, by virtue of the consent given in the ordinance of June, 1910, and by what it has done pursuant thereto, rights and privileges in the streets of the city, as they are occupied by it, to the point on Manahan avenue west of Sixth street, would require that the plaintiff’s bill be retained, instead of being dismissed, and that plaintiff have a part of the relief for which it asked. As it is, the decree continues in force the injunction granted to plaintiff, in effect protecting its rights in the streets to the extent that it occupies them — that is, to a point west of'Sixth street. We must, I think, construe the decree and statements of counsel as admitting that plaintiff was entitled to relief against declarations and threatened action involving its rights in the streets to a point ton Manahan avenue west of Sixth street. In this view, the bill should be retained and a decree in its favor entered, not negatively, but positively, adjudging that the action of the common council was too broad in its scope and purpose, affirming its rights under the ordinance in so far as it has occupied the streets, and enjoining any action or proceeding to disturb those rights.

As to any relief further than I have just indicated, it was, I think, properly refused. It is apparent from the record that the plaintiff was not prevented by the injunctions from securing a crossing of the Pere Marquette tracks and so from proceeding to occupy Manahan avenue east of Sixth street. The injunctions interfered with the effort to make a crossing in opposition to the wishes and rights of the Pere Marquette Railroad Company. Plaintiff has made no effort to secure the right to cross the uncrossed tracks of the Pere Marquette Railroad Company. It is patent that, unless and until it does, the injunction now in force will be continued. If vis major is, as it is contended by appellant it is, a defense in such a case as this, an excuse for acts or omissions creating or causing a forfeiture, it is a defense to be so made out as to leave no reasonable doubt of innocence. Brig Struggle v. United States, 9 Cranch, 71. See, also, 19 Cyc. p. 1360. Nearly five years elapsed the granting of the original consent of the city to occupy the streets. Reasonable diligence would have discovered within a reasonable time whether an amicable arrangement could be made insuring the crossing of the Pere Marquette tracks. In default of such an arrangement, the course necessary to be pursued was not in doubt. The consent of the city to use the street has been withdrawn, and there are no equitable reasons for holding that the action of the city should be set aside.

The right of the Pere Marquette Railroad Company to occupy Manahan avenue is not involved in this suit. The right of the plaintiff to use the avenue east of Sixth street is involved, whether by laying tracks therein or by using the tracks of another company. The validity of the-agreement between the plaintiff and the Pere Marquette Railroad Company for the use of such tracks- is not involved, but whether the plaintiff shall use a street without the consent of the city is involved. A reference to the action of the common council, and to the pleadings, and a consideration of what is the real subject-matter of the suit, puts this beyond question. It seems to be plain that if consent is given by a city to one company to occupy a street, no consent can be implied therefrom that one or more other companies may use the street by using the tracks of the licensed company. If it were otherwise, then no consent would be necessary to permit the use of the streets by any company with which the licensed occupier .could make satisfactory arrangements. To this effect, in principle, are City of Aurora v. Traction Co., 227 Ill. 485 (81 N. E. 544, 118 Am. St. Rep. 284); Schuster v. Railway & Light Co., 142 Wis. 578 (126 N. W. 26); Colonial City Traction Co. v. Railroad Co., 153 N. Y. 540 (47 N. E. 810); Erie v. Traction Co., 222 Pa. 43 (70 Atl. 904).

The decree of the court below must be in part affirmed, and in part reversed. A decree may be entered in this court retaining the plaintiff’s bill and granting it relief as herein indicated, but as to the claimed right of plaintiff in Manaban avenue, east of Sixth street, to lay tracks therein, or to use the tracks of the Pere Marquette Railroad Company, affirming the decree below. No costs are awarded.

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


text:
    WILMS v. NEW HAMPSHIRE FIRE INSURANCE CO.
    1. Appeal and Error — Insurance—Title to Insured Property-Stipulations.
    Where, in an action upon fire insurance policies assigned to plaintiff covering lumber sold to him, the only defect in plaintiff’s title relied upon and identified by stipulation signed by defendant’s attorneys up to the time the cause was tried was the claimed presence in the lumber of some taken from State land in committing trespass thereon by plaintiff’s assignor, this court will refuse to consider any other claimed defect in plaintiff’s title.
    2. Insurance — Assignment oe Policy — Consent oe Insurer— New Contract — Title to Insured Property.
    Where fire insurance policies on lumber were assigned to the buyer with the consent of the insurer, the effect was new contracts of insurance issued to the buyer as owner of the lumber.
    3. Same — Adjustment—Waiver.
    An insurance company may investigate the circumstances attending a loss, by an adjuster or other agent, even if the insured is thereby put to some expense or is delayed, and may have an appraisal of values made, without waiving its rights under the policy.

      4. Same — Powers of Adjuster — Waiver.
    Having investigated the circumstances of a .loss, an adjuster, upon whose powers the insured knows of no limitation, may bind the insurer he represents by his action, and may deny liability and thereby waive the furnishing of proofs of loss and the provision of the policy that suit shall not be begun thereon until 60 days after furnishing proofs of loss.
    5. Same — Adjustment of Loss — Conclusiveness.
    Where the adjuster and the insured reached an oral agreement as to the quantity and value of the destroyed property, evidenced by a schedule of loss, agreed to, and signed by the adjuster, and adopted by the insured in presenting proofs of loss, in the absence of fraud or mistake, the agreement is conclusive upon both the insurer and the insured.
    6. Same — Powers of Adjuster — Notice.
    The recital in the blanks for proofs of loss that “It is expressly understood and agreed that the furnishing of this blank to the assured and the preparing of proofs by an adjuster or any agent of the company herein, is not a waiver of any rights of said company,” cannot reasonably be construed to be notice that the general power of an adjuster to agree to the amount of the loss is curtailed.
    Error to Saginaw; Gage, J.
    Submitted October 17, 1916.
    (Docket No. 102.)
    Decided March 29, 1917.
    Rehearing denied June 1,1917.
    Assumpsit by William Wilms against the New Hampshire Fire Insurance Company upon three policies of insurance. Judgment for plaintiff on a directed verdict. Defendánt brings error.
    Affirmed.

      Lucking, Helfman, Lucking & Hanlon, for appellant.

      Humphrey, Grant & Humphrey (William C. Gilbert, of counsel), for appellee.
   Ostrander, J.

The action is brought to recover upon three policies of insurance, issued by defendant to the Northern Timber Company, covering lumber claimed to have been destroyed by fire June 17, 1913. They, with other policies covering the same risk, and which have been'paid, were assigned, before loss, to the plaintiff. At the circuit, a verdict for plaintiff was directed by the court, .upon which a judgment for the sum of $4,991.70 was entered November 18, 1915. A new trial, asked for by defendant, was refused.

The policies describe the insured property:

“On lumber (lath and shingles, if any) owned by assured or held in trust or on commission, or sold, but not delivered, piled on the shore of Lake Superior at Perry’s Landing, Michigan.”

The assignment of each policy was consented to by defendant by indorsement on the policy of the words:

“The New Hampshire Fire Insurance Company hereby consents that the interest of the Northern Timber Company as owner of the property covered by this policy be assigned to William Wilms.”

Each policy contains, among other stipulations, the following:

“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value, with proper deduction for depreciation, however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers, as hereinafter provided; and the amount of loss or damage having been thus determined, the sum for which this company is liable, pursuant to this policy, shall be payable sixty days after due notice, ascertain-' ment, estimate and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.”

■ Some 2,500,000 feet of lumber, it is claimed, was cut by the Northern Timber Company. Twenty policies of insurance were issued to the Northern Timber Company by different companies, 16 of which were assigned prior to the fire. With respect to the policies here involved, proofs of loss were made under each of them on the forms of the defendant company, upon each of which, pasted thereto, was a schedule, reading:

Bills of Sale Northern Timber Co. to William Wilms.

Oet. 21, 1912 Piles 1-20 235000

Dec. 2, “ “ 21-43 276000

“ 23, “ “ 44-59 178100

Jan. 31, 1913 “ 1-11-41-43 166089

Feb. 17, “ ■ “ 12-21 128640

“ 28, “ “ 61-71 178120

1161969

Sale price of lumber at Chicago. .$16 25 per M

Less loading and cartage........ 3 25 13 00

Loss and Damage........................... $15105 59

[Signed] W. S. Weight, Adjuster,

Marquette, Mich.

And also a schedule of insurance and apportionment of the claim, reading:

1575 10- 2-13 .¿Etna.................. $1,500 00

2279059 ' 2-12-13 Caledonian ............. 2,000 00

3-12 California .............. 1,500 00

19424 . 12- 13

19432 2-12-13 “ 1,500 00

14

2402815 10- 9-12 Franklin ............... 1,500 00

13

213702 6-11-13 New Hampshire ........ 1,000 00

14

205772 12- 3-12 “ “ ........ 1,500 00

13

205780 2-12-13

• 14 “ “ ........ 2,000 00

$14,000 00

Mr. Wright, the adjuster for defendant, testified, over objection and exception:

“In adjusting this loss of tnis lumber by fire at Perry’s Landing, I acted for the New Hampshire Fire Insurance Company. Mr. Joseph Braden of Chicago acted for Mr. Wilms.
“Q. Now, did you, acting for the New Hampshire Fire Insurance Company, with Mr. Braden acting for Mr. Wilms, have any negotiations that culminated in an agreement as to the amount of the loss, and the value of the property destroyed? * * *
“A. Yes, sir.
“Q. I show you Exhibits N, M, and L, and call your attention to what is known as schedule attached to each one of those schedules, on each of those proofs of loss, purporting to be signed by W. S. Wright, adjuster, and ask you if those were signed by you? :fc * *
“A. Yes, they were.
“Q. Are those settlements signed by you, on each of those three proofs of loss, the adjustment made as agreed upon between you and Mr. Braden and the New Hampshire Fire Insurance Company, on their loss? * * *
“A. They are. My agreement with Mr. Braden as to the adjustment was verbal. Those written schedules signed by me are in accordance with that verbal agreement. * * *
“Q. And are these statements signed by you a memorandum in writing of the amount of property destroyed, and its value, as agreed upon between you and Mr. Braden? * * *
“A. They are. * * * I filled out the proofs of loss and mailed them to Mr. Braden at Chicago, to be signed by Mr. William Wilms, or his attorney in fact. They were returned to me executed as you now see them. After I received them, I sent them to Mr. Geo. March.”

Defendant paid Mr. Wright for his services. These papers were forwarded, and with respect to each of them, under date September 15, 1913, upon the stationery of the defendant, signed, “George K. March, Special Agent,” a letter was writtén, addressed to plaintiff, acknowledging receipt of “an executed statement relative to policy, etc.,” and stating that for several reasons “we are forced to make objections to said statement, purporting to be proof of loss, and same is held subject to your order.” The objections stated were, in substance and effect, that “we have been,” or “we are,” advised by the commissioner of the land office of Michigan that the State claimed title to a considerable portion of the lumber described in the policy and the purported proof of loss; that on or after January 24,1918, the Northern Timber Company assigned and set over a portion, if not all, of its assets, real and personal, including the property described in the policy, or the timber from which it is claimed some portion of the lumber in question was cut, to the Chippewa Land & Lumber Company, and possibly to others, without giving notice thereof to the defendant; that from information received “we are forced to the belief that the value and quantity of lumber alleged to have been destroyed by the fire in question are very considerably overstated in said purported proof of loss”; that the Northern Timber Company did not possess full title to the property for which claim was made, and therefore could not convey it. The objection relating to the claimed interference of the Chippewa Land & Lumber Company with the title, to the property was abandoned, and need not be again referred to.

Before any suit was instituted, this state of facts existed: Policies had been from time to time issued to the Northern Timber Company as lumber was cut and piled, sales of lumber had been made to the plaintiff, the piles of lumber so sold being marked and identified and paid for in part by plaintiff, written bills of sale describing the same had been made by the Northern Timber Company to plaintiff, to whom, with the consent of the insurer, policies so as above issued were assigned by the Northern Timber Company, a fire had occurred, destroying whatever lumber there was. including that sold to plaintiff, an adjuster representing defendant and an agent of the plaintiff had visited the scene of the fire, had conferred and had agreed upon the quantity and value of the plaintiff’s lumber destroyed by the fire, formal proofs of loss containing the evidence of the agreement of these agents ha¡d been sent to defendant, and defendant had, as above stated, made its objections to the payment of the loss. A suit or suits upon the defendant’s policies, had been instituted by the plaintiff in Chicago, and, it would seem, a suit (the one at bar) had also been brought in Michigan. Thereafter it was proposed by the attorney for defendant that the Chicago suit be discontinued and the Michigan case tried, and in negotiations relative to such proposed action and for the purpose of ascertaining what questions defendant desired to raise and have determined, if the Michigan case was tried and the Chicago suit abated, the attorney for defendant indicated in writing the issues as follows:

“It is the contention on our part that Mr. Wilms was not guilty of intentional or wilful fraud either in obtaining the policies of insurance or in making the purported proofs of loss.
“Our claim is constructual fraud, based on the fact that the Northern Timber Company’s policies were void because of the theft on their part of a portion of this timber, and the fact that they could not pass title to Mr. Wilms. This being true, Mr. Wilms did not have the sole and unconditional title to the property, and hence the false statements, although we admit the innocence of Mr. Wilms, in making same.
“We charge this to roach the title of the property and try out the divisibility of the contract as it is our claim that each policy was á blanket policy on the entire amount of timber.
“We will not stand on technicalities, but eliminate everything possible in order to reach the main points of the case. We will agree that the purported proofs of loss were made out by Mr. Paepcke under proper authority, and we see no necessity of either Mr. Wilms or Mr. Paepcke appearing in these suits, as such matters we will agree to read into the record. This also applies to all, papers made out by Mr. Wright, the adjuster.
“We will further agree that this fire was the occasion of a total loss, and that notice was given to each company.
[Signed] “M. H. Baxter.”

The Chicago suit was discontinued, the Michigan suit tried, with the result hereinbefore stated. The special defenses, notice of which was given with defendant’s plea, correspond, in substance, with the objections indicated in the letters denying liability.

Defendant, appellant, presents certain propositions which it states as follows: First, the title to the insured lumber when destroyed was in the Northern Timber Company; no title ever passed to plaintiff. Second, the fact that Mr. Wright helped the plaintiff prepare the proofs of loss did not bind the company as to quantity or value of lumber destroyed; this did not constitute an agreement by defendant to pay the amount stated in the proofs. Third, an adjustment may be rescinded for fraud. Fourth, the instruction that there was no evidence showing that “trespass lumber” was mixed with the lumber sold to plaintiff was erroneous. Fifth, there was misrepresentation in the procurement of the policies which rendered them void when issued. Sixth, the case should have been submitted to the jury.

Appellant’s first proposition is based upon the contract between plaintiff and the Northern Timber Company for the purchase and sale of the lumber, it being contended that according thereto title could not pass until the lumber was inspected and measured, the purchase price determined, the quantity of each grade (two) of lumber ascertained, until acceptance by plaintiff, until the lumber had been loaded and delivered in Chicago. There is a sufficient reason for declining to discuss this proposition in this opinion. Although in the notice of special defenses given with defendant’s plea it is averred that plaintiff was not owner of the property covered by the policies when they were assigned to him, or when the loss occurred, no such unqualified fact was asserted in denying liability, and it is evident that the only fact regarded as affecting plaintiff’s title to the time the cause was tried was” the one that the Northern Timber Company did not have a title to convey to plaintiff. Its title was questioned because of the claimed presence in the lumber of some taken from State land in committing a trespass thereon. This conclusion is supported by the language employed in denying liability and as well by the statement of Mr. Baxter, attorney for defendant, made in writing, for the purpose of identifying and of making certain, for the benefit of the attorneys for plaintiff, the issue desired to be tried.

Further than this, the policies sued upon were assigned to the plaintiff, and the defendant consented to the making of such assignments “transferring the interest of the Northern Timber Company as owner of the property” covered by the policies. The effect was new contracts of insurance issued to plaintiff, as owner. And the assignments and the stipulation above set out are consistent only with the idea that plaintiff’s title to the lumber claimed by him was regarded as infirm only because the title of his vendor was infirm.

It was, and is, the contention of plaintiff, that, upon the subject of the extent of loss and value of property destroyed, the adjustment bound both parties, in the absence of fraud or mistake, and no fraud or mistake being alleged in the denial of liability, or in the notice given with the plea, the manner in which the conclusions of the adjuster were reached and upon what evidence was immaterial. This contention the court sustained. It is appellant’s contention that Mr. Wright had no authority to so bind the defendant upon the subject of the quantity and value of the property destroyed.

It is undoubtedly true that an insurance company may investigate the circumstances attending a loss, by an adjuster or other agent, even if the insured is thereby put to some expense or is delayed and may have an appraisal of values made, without waiving its rights under the policy. Briggs v. Insurance Co., 65 Mich. 52 (31 N. W. 616); Richards v. Insurance Co., 83 Mich. 508 (47 N. W. 350, 21 Am. St. Rep. 611). But it is also true that, having investigated the circumstances of a loss, an adjuster upon whose powers the insured knows of no limitation may go further and bind the company he represents by his action. He may, for the company, deny liability and thereby waive the furnishing of proofs of loss and the provision of the policy that suit shall not be begun thereon until 60 days after furnishing of proofs of loss. Popa v. Insurance Co., 192 Mich. 237 (158 N. W. 945); Fisk v. Fire Association, 192 Mich. 243 (158 N. W. 947).

In Lancashire Ins. Co. v. Barnard, 111 Fed. 702 (49 C. C. A. 559), an adjuster elected not to rebuild a building injured by fire and to pay the damages, and his power to do so was denied by the insurer. It was said:

“But an adjuster is empowered to settle the alleged logs. A settlement of the loss necessarily involves the exercise of the option to pay the damages sustained, or to rebuild or repair the building injured. The whole is always greater than and includes all its parts, and the authority to settle a loss includes the power to do any lawful act and to make any legal contract to fix the amount of and to discharge the liability. An adjuster of an insurance company authorized to settle an alleged loss has the power to determine its amount, and how, when, and where it shall be paid; and hence he necessarily lias the authority to determine whether it shall be paid in money, or by the reconstruction of the injured building, and the power to exercise the option of the company in that behalf.”

The reasoning of the court in the cases last cited applies in the case at bar and in any case where, no limitations upon the powers of the adjuster being disclosed, he agrees with the insured as to the amount of the loss and the liability of the insurer. The contracts of insurance here involved contemplate a settlement and an adjustment of the loss, and provide for an appraisement of the loss sustained by the insured if an agreement cannot be reached by the parties. There is uncontradicted evidence of an agreement of the defendant’s adjuster and the representative of the plaintiff as to the quantity and value of the destroyed property. In Moloney v. Insurance Co., 168 Mich. 269 275, 276 (134 N. W. 6), cited by defendant, it was expressly determined that the testimony did not evidence an admission and settlement of liability. The agreement in the case at bar was not formally reduced to. writing and signed by both parties, but it was arrived at, and the plaintiff in presenting the proofs- of loss, with the schedule thereof, actually agreed to, signed by the adjuster, adopted and approved the schedule and the facts recited therein. In the absence of fraud or mistake, this ought to conclude both parties.

It is said by defendant that in the proofs of loss themselves is found a limitation upon the powers of the adjuster, they containing the recital:

“It is expressly understood and agreed, that the furnishing of this blank to the assured and the preparing of proofs by an adjuster or any agent of the company herein, is not a waiver of any rights of said company.”

But the adjuster did more than the things here recited. Nor can the provision be reasonably construed to be notice that the general power of an adjuster to agree to the amount of the loss is curtailed.

It should be stated further that, although the court ruled, as is hereinbefore set out, that the agreement as to quantity and value was conclusive, the plaintiff did, by undisputed evidence, make out a loss of lumber, the value of which exceeded the amount of the insurance. It was undisputed evidence, although defendant introduced testimony in an effort to prove that so much lumber of the quality could not have been secured from certain lands from which logs from which the lumber was made were taken. In my opinion, this testimony, which need not be set out here, was of such a nature that the court was warranted in disregarding it upon the question of the quantity of 'lumber destroyed by the fire.

It is said that the adjustment — settlement—made by the adjuster may be rescinded for fraud. This contention is not disputed. But it is not claimed that Mr. Wright acted fraudulently, or that plainiff had any fraudulent purpose. It is said, however, that Mr. Wright acted upon information which was in fact untrue, and that defendant was prepared to prove that there was not to exceed one-fifth the claimed amount of lumber destroyed. For this latter statement I find no support in the record. It has been already stated that testimony was introduced upon the subject of the quantity of lumber which was cut and piled by the Northern Timber Company and set apart, in piles, for plaintiff. The opening statement of counsel for defendant was that evidence would be introduced to show (in substance and effect) that there was not half the lumber, claimed to have been destroyed, there; that Mr. Wright acted upon misinformation given by the assured, or by persons in privity with him; that a considerable quantity of lumber of certain grades was made from logs taken, without authority, from State lands and mixed with other lumber; that the fire occurred a few days before State trespass agents were expected to present themselves; that the agent who issued the policies did so upon statements of the representative of the Northern Timber Company that the lumber covered was all cut from its lands; that it was impossible for plaintiff to have lost so much lumber, for the reason that it never grew upon descriptions of land which plaintiff claimed it came from.

Defendant established the facts :

First, that agents of the State estimated that the Northern Timber Company had cut from State land without authority 145,000 feet of logs; and, second, that the sum of $1,450 was paid to the State, after the fire, in settlement of the alleged trespass.

The testimony did not tend to prove that plaintiff had any knowledge of the first fact, or thqi; any of this lumber was mixed with the lumber piled and set apart as plaintiff’s lumber. Indeed, it is doubtful if anything but conjecture supports the idea that any considerable quantity of lumber was in fact cut from timber belonging to the State, or that the Northern Timber Company did not cut, where it had the right to cut, more lumber than was claimed to have been insured and destroyed by the fire. I do not regard further discussion of the subject as material, although there is satisfaction in knowing that the application of proper rules of law does not in fact result in any injustice to defendant.

What has been said disposes, practically, of all remaining contentions. The case for the plaintiff, supported by undisputable evidence, is that the policies of insurance were originally properly issued, and, as lumber was set apart for plaintiff in piles marked with his- name, the policies in suit, and others, were assigned to him, with the written consent of the insurers, thus making a new contract between plaintiff and the insurers. Plaintiff was innocent of any fraud or misconduct in the matter, and lumber for which he had paid, and had agreed to pay, in value exceeding the insurance thereon, was totally destroyed by fire. The insurer and the insured set about ascertaining the facts and the quantity and value of insured property which had been destroyed, and reached an agreement. Of this agreement, made by its agent, defendant had notice as early as July 11, 1913. It was September 15, 1913, that it notified plaintiff of its reasons for not paying his demand and for denying liability.

It is obvious that if no agreement as to the quantity and value of the insured property had been reached, pursuant to the contract, a resort to appraisers would have followed. It is equally obvious, and has been already commented upon, that the sole question regarded by the attorney for defendant as debatable was the alleged infirmity of title to the property arising out of the claim that the policies when issued were blanket policies, remained so, and the lumber originally covered by them had been, a part of it, secured by a trespass upon State lands. In view of the consent of the insurer to the assignment of the policies in suit to plaintiff, the segregation of his lumber, the agreement which was reached as to the quantity and value of lumber destroyed, the issue actually presented is a simple one.and rightly decided by the trial court.

The judgment is affirmed.

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


text:
    COLVIN v. JONES.
    X. Descent and Distribution — Real Property — Personal Property — Estates oe Decedents — Law Governing.
    Where the owner of property dies intestate, his real estate devolves according to the. law of the State in which it is situated, and his personal property is distributed according to the law of his domicile.

      %. Same — Payment of Debts and Taxes — Estates of Decedents —Control of State.
    The State, by. virtue of its sovereign authority, temporarily takes charge of the property of a deceased person for the purpose of ascertaining and paying the debts and the taxes exacted by the State, and, also, if the State of the domicile of the deceased person, for the purpose of assigning the residue of the personal estate to the persons found to be entitled thereto.
    3. Same — Jurisdiction—Estates of Decedents — State Comity.
    The sovereignty of a State and 'the jurisdiction of its courts over the property of a deceased person do not extend beyond its territorial limits except so far as is allowed by State comity.
    4. Same — Res Judicata — Foreign Judgments — Domicile of Decedent.
    The determination of an Ohio court of the domicile of decedent for the purpose of administering his property within that State was not binding on the courts of this State in administering his estate located in Michigan.
    5. Executors and Administrators — Jurisdiction—Personal Property in Foreign State.
    While personal property, in contemplation of law, accompanies the person of the owner, and on his death its disposition is to be determined by the laws of his domicile, yet where the property is in one jurisdiction and the domicile in another, distinct proceedings are necessary, and an executor or administrator appointed in one State has no authority, as such, in another.

      6. Same — Foreign Executor or Administrator — Statutes.
    The rights of a foreign domiciliary executor or administrator are recognized in our statutes. 3 Comp. Laws, §§ 9110-9113, 9124, 9323, 9443 (3 Comp. Laws 1915, §§ 13819, 13915, 14020, 14022, 14465).
    7. Descent and Distribution — Equity—Probate Courts — Ancillary Proceedings.
    Where there has been no application to the probate court for administration ancillary to administration proceedings in a foreign court, and the local probate court was proceeding regularly to administer an estate found within its jurisdiction, the court of equity will not interfere with such probate proceedings nor order the funds in the hands of the local administrator turned over to the foreign administrator.
    Appeal from Lenawee; Chester, J., presiding.
    Submitted October 20, 1916.
    (Docket No. 15.)
    Decided March 29, 1917.
    Bill by Charles H. Colvin, and George H. Crane and Charles Fox, administrators of the estate of Arthur P. Crane, deceased, in the State of Ohio, against George N. Jones, administrator of said estate in the State of Michigan, and others, for a decree ordering said defendant to turn over certain funds in his hands belonging to said estate to said plaintiff administrators for distribution,, and other relief. From an order sustaining the demurrer of defendants with leave to amend, plaintiffs appeal.
    Affirmed.

      Herbert R. Clarh, Elmer E. Davis, and Henry I. Bowens, for appellants.

      Hedley V. Richardson and Pelton & McGee, for appellees Mary F. Power, Fred C. Power, John Power, Mary Osmus, Charles Power, Blanche P. German, Lemuel Power, Josephine Power, and Edwin W. Parker.

      Baldwin, Alexander & Russell and Carroll, Kirwin & Hollway, for appellees George N. Jones, Lucy R. Jones, Amy Foster, Charity C. Harkness, Elizabeth Lamb and Abram Powers.

      Fellows & Chandler, for appellees Mary P. Knapp, Duana Duryea, and William R. Thompson.
    It is charged in the bill of complaint that Arthur P. Crane died in the city of Toledo, Ohio, April 28, 1911, being at that time a resident of that city and State, owning both real and personal property in the State of Ohio and in Lenawee county, Mich. He left no children, widow, father or mother, brothers or sisters, nephews or nieces; his nearest relatives being first cousins on his father’s side of the whole blood and first cousins on his mother’s side of the half blood, and second cousins on his father’s side, who were of the whole blood. April 29, 1911, an application was made in the probate court, of Lucas county, Ohio, for the appointment of a special administrator of the estate of the said Arthur P. Crane, which set out that he was a resident of said Lucas county, Ohio, at the time of his decease. On the same day an order was made appointing a special administrator to collect and preserve the effects of the said deceased, the said probate court adjudging and determining that said Crane was a resident of said Lucas county when he died. Later May 5, 1911, an application was made in the same court for the appointment of a general administrator, and this application alleged that said Crane was a resident of Lucas county, Ohio, at the time of his decease. Hearing on this application was fixed by the court for the 16th of May, 1911, and a citation was duly issued to the next of kin of said Arthur P. Crane, deceased, to show cause why said application should not be granted. On May 16, 1911, two other applications were filed in said court for the appointment of an administrator of the estate, and on the same day, May 16, 1911, administration of the estate was duly granted to George H. Crane and Charles Fox, the court adjudging and determining that the said Crane was a resident of Lucas county when he died. One George N. Jones was present at the said hearing May 16,1911, and took part therein, and Lucy R. Jones, one of the first cousins of the whole blood, was represented there by her attorneys. Meantime, on May 3, 1911, George N. Jones, of Adrian, Mich., was appointed by the probate court of Lenawee county, Mich., special administrator of the property and effects of the deceased in Michigan, the probate court of Lenawee county making no determination as to the residence of the deceased. Later, upon the application of Lucy R. Jones, heretofore mentioned, the said George N. Jones, June 5, 1911, was appointed general administrator of the estate of the said deceased in Michigan by the probate court of Lenawee county; the application for said appointment alleging that said Arthur P. Crane was a resident of Lenawee county, Mich., at the time of his decease, and said court determining, in making such appointment, that Arthur P. Crane was a resident of said Lenawee county at the time of his decease. Said George N. Jones has filed in the probate court for the county of Lenawee a paper purporting to be his final account as administrator of said estate, setting up therein that all debts of said deceased and expenses of administration in Michigan have been paid, that he has in his hands for distribution $9,475.91, and praying that it be distributed to the first cousins of said deceased of the half and of the whole blood. It is further charged in the bill that at the time of his appointment as administrator by the probate court of Lenawee county, Mich., George N. Jones knew, and Lucy R. Jones knew, that the said Arthur P. Crane had his domicile in and was a resident of the State of Ohio when he died, and that the probate court of Lucas county, in that State, had so determined, and that the insertion of the statement in the application of the said Lucy R. Jones that Arthur P. Crane was a resident of Lenawee county, Mich., when' he died, was due to “accident, mistake, or fraud,” and that the determination of the probate court of Lenawee county, Mich., that said Crane was a resident of said Lenawee county when he died was due to such “accident, mistake, or fraud”; that said George N. Jones, shortly after his appointment as such administrator, told two of the plaintiffs that after the debts and expenses of said deceased in Michigan were paid he would turn over to them the balance of the personal property of the said deceased at any time they desired, but that said moneys might as well remain in the banks at Adrian, Mich., and draw interest there, as to be placed in the banks in Toledo, Ohio; that plaintiffs rested on the assurance so given them by said George N. Jones, and had no knowledge that any claim was being made that said Crane was a resident of Michigan at the time of his death, until the Michigan administrator was requested in 1913 to turn over said moneys to the Ohio administrator, a request which the said George N. Jones refused, and still refuses. Charles H. Colvin, one of the plaintiffs, and the other second cousins of said Arthur P. Crane, do not inherit any of the property of said Crane, either real or personal, distributable under the laws of the State of Michigan, and do inherit under the laws of Ohio, and the first cousins of the half blood inherit equally with the first cousins of the whole blood of the nonancestral property of the said deceased under the laws of Michigan, but do not inherit any of the property of said deceased, ancestral or nonancestral, under the laws of .Ohio. It is further charged that the Michigan administration is an ancillary administration in fact; that it was not necessary for the Lena-wee county probate court to determine that said Arthur P. Crane was a resident of Michigan when he died in order to obtain jurisdiction to grant letters of administration of his estate in Michigan; that no appeal now lies from the order of said probate court of Lenawee county making such determination, and that no relief can be obtained except in a court of equity; that the probate court of Lenawee county, Mich., cannot change its former order determining that the said Arthur P. Crane was a resident of Michigan at the time of his decease. It is prayed that the court determine and decree that the order made by the probate court of Lenawee county, Mich., in so far as it determined that Arthur P. Crane was a resident of Michigan when he died, be set aside; that the said George 1ST. Jones, the Michigan administrator, be directed to turn over to the Ohio administrator the moneys in his hands to be disposed of by the Ohio court; that in any event an order be made that the said fund be distributed by the Michigan administrator in accordance with the laws of Ohio to the persons and in the proportions in which they would severally be entitled under the laws of that State.
    The plaintiffs are the administrators appointed by the Ohio court and one of the second cousins of the deceased, and the bill makes all other of the first cousins of deceased and the second cousins of the whole blood on the father’s side parties defendant. To the bill certain of the defendants demurred; the grounds of demurrer being that it appears on the face of the bill that a court of equity has no jurisdiction, that all the matters and things alleged in the bill could be tried and determined in a proceeding at law, and because a proceeding at' law is now pending wherein a. court of law has assumed and now holds jurisdiction of the subject-matter of the suit. These grounds of demurrer are somewhat amplified in demurrers filed by other defendants. Upon hearing upon the bill and 'demurrers, the demurrers were sustained, with leave to amend the bill of complaint, and from this decree the plaintiffs appeal.
    Plaintiffs (appellants) claim:
    “(1) That Arthur P. Crane had his domicile in and Was a resident of Ohio at the time of his death.
    “(2) That the Ohio court first passed upon the question as to the domicile of deceased, and determined that it was in the State of Ohio at the time of his death.
    “(3) That the determination of the Ohio court is controlling throughout all subsequent proceedings, no appeal having been taken from' that determination.
    “ (4) That the later determination of the Michigan court, that deceased had his domicile in and was a resident of Michigan at the time of his death, is null and void under the full faith and credit clause of the Pederal Constitution.
    “(5) That the Ohio administration is in fact the principal administration, and that the Michigan administration is, in fact, an ancillary administration..
    “(6) That it was not necessary for the Michigan court, in order to acquire jurisdiction to appoint an administrator in this State, to determine that deceased was a resident of this' State at the time of his death. It had jurisdiction, without so finding, to appoint a Michigan administrator to take charge of the property and effects of deceased in this State.
    “(7) That a court of equity has jurisdiction to relieve from the consequence of fraud or mistake in a case of this kind.
    “(8) That one cannot be held guilty of laches in failing to anticipate fraud, and that plaintiffs are not guilty of laches in failing to take an appeal from the order of the Michigan court.
    "(9) That that portion of the order of the Michigan court determining that deceased had his domicile in and was a resident of Michigan at the time of his death should be set aside, and the money in the hands of the Michigan administrator, after paying the debts of deceased and expenses of administration in this State, should be ordered turned over to the Ohio administrators for distribution under the laws of Ohio, or, at least, that it should be ordered distributed under the laws of that State.”
    They do not claim — they disclaim — that the question of domicile can be examined into and determined in this proceeding, and do claim that the question was, as to all parties in interest, conclusively determined in the Ohio court. For demurrants it is claimed that the meritorious question presented is whether the. judgment of the probate court of Lenawee county, regular on its face, shall be set aside by a court of equity.
   Ostrander, J.

(after stating the facts). It is the rule that where the owner of property dies, intestate, his real estate devolves according to the law of the State in which it is situated, his personal property is distributed according to the law of his domicile. It is necessary, and is convenient, that, before the estate of a deceased persons falls into pieces, debts payable therefrom shall be ascertained and paid, taxes exacted by the State shall be computed and paid. The State, by virtue of its sovereign authority, temporarily takes into charge the res constituting the estate, for the purposes just mentioned, and, if the State of the domicile of the deceased person, for the further purpose of assigning the residue of the personal estate to the persons found to be entitled thereto.

The sovereignty of a State and the jurisdiction of its courts do not extend to and embrace property not within the territorial jurisdiction of the State, and, while each State possesses sovereign power over persons and property within its territory, it is an elementary principle that the laws of one State have no operation outside of its territory, except so far as is allowed by comity, and no tribunal established in a State can extend its powers beyond the territory of the State, so as to subject either persons or property to its decisions. It is therefore undeniable that the tribunal of the State of Ohio could exercise no control over the property of the deceased person which was situated in Michigan, except in so far as it was admitted by State comity to do so.

Admitting that the Ohio court possessed the power to determine the question of domicile of the decedent for the purpose of conclusively adjudicating the validity, within that State, of the grant of letters of administration, it did not possess the power to conclusively bind all the world as to the fact of domicile by a mere finding of such a fact in a proceeding in rem. Overby v. Gordon, 177 U. S. 214 (20 Sup. Ct. 603); Tilt v. Kelsey, 207 U. S. 43 (28 Sup. Ct. 1); Brigham v. Fayerweather, 140 Mass. 411 (5 N. E. 265). . The Michigan court had an equal right to determine the question of domicile for the same purpose. We must therefore deny the contention of plaintiffs that the decision of the Ohio court conclusively establishes that the domicile of the decedent was in the State of Ohio.

In Reynolds v. McMullen, 55 Mich. 568, 573 (22 N. W. 41, 44 [54 Am. Rep. 386]), this court, speaking by Mr. Justice Cooley, said:

“We concede to the fullest extent the general principle, relied upon by defendants, that personal property, in contemplation of law, accompanies the person of the owner, and that its disposition on his death is to be determined by the laws of his domicile. But, while the rule of distribution is thus determined, the steps to reach it may be otherwise prescribed; and when the. property is in one jurisdiction, and the domicile in another, the necessity for distinct proceedings in administration may be imperative. The proceedings, when taken in this class of cases, are governed and regulated by certain'rules of interstate comity, which are thus stated by the court of appeals of New York:
“ Tt is an established doctrine, not only of international law, but of .the municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of the owner, as well in respect to the disposition of it by act inter vivos as to its transmission by last will and testament, and by succession upon the owner dying intestate. The principle, no doubt, has its foundation in international comity; but it is equally obligatory, as a rule of decision in the courts, as a legal rule of purely domestic origin. It does not belong to the judges to recognize or to deny the rights which individuals may claim under it, at their pleasure or caprice; but, it having obtained the force of law by user and acquiescence, it belongs only to the political government of the State to change it whenever a change becomes desirable. But the right which an individual may claim to personal property .in one country, under title from a person domiciled in another, can only be asserted by the legal instrumentalities which the institutions of the country where the claim is made have provided. The foreign law furnishes the rule of decision as to the validity of the title to the thing claimed; but in respect to the legal assertion of that title it has no extra-territorial force. As a result of this doctrine it is now generally held everywhere, and it is well settled in this State, that an executor or administrator appointed in another State has not, as such, any authority beyond the sovereignty by virtue of whose laws he was appointed.’ Denio, J., in Parsons v. Lyman, 20 N. Y. 103, 112, citing Morrell v. Dickey, 1 Johns. Ch. [N. Y.] 153; Vroom v. Van Horne, 10 Paige [N. Y.] 549 [42 Am. Dec. 94].”

See, also, Dickinson v. Seaver, 44 Mich. 624, 629 (7 N. W. 182).

In various ways our statutes recognize the rights of a foreign domiciliary executor or administrator. 3 Comp. Laws, §§ 9110-9113, 9124, 9323, 9443 (3 Comp. Laws 1915, .§§ 13819, 13915, 14020-14022, 14485). There has been no application in the matter of this estate, and as respects the property of the decedent situated in this State, for administration ancillary to the administration proceeding in the Ohio court. There has been no application to the probate court by the foreign administrator for an order directing the local administrator to turn over the fund in his hands. It must be admitted that in either jurisdiction the personal estate should be distributed to the persons who are by law entitled to it, and that title to the personal estate is determined by the law of the domicile of the intestate. In my opinion these considerations do not warrant a court of equity in interposing in the probate proceedings here, especially when it is denied by the plaintiffs that the equity court may determine, for itself, where the intestate was domiciled, and inasmuch as the estate in Ohio cannot be, by its order, brought into Michigan for final distribution, if the facts require it. So far as the record discloses facts, the Michigan court has proceeded regularly to administer an estate found within the jurisdiction of the court to the point of distribution thereof. The bill asks that a court of equity act upon that court, its orders, and its officer, in respect to matters over which the probate court appears to have jurisdiction.

The order appealed from is affirmed (without prejudice to the rights of any one interested, advised thereto, to take other or further proceedings), with costs to appellees; one. solicitor’s fee only to be taxed as costs.

Kuhn, C. J., and Stone, Bird, Moóre, Steere, and Brooke, JJ., concurred. Person, J., did not sit.


text:
    APPLEBY v. SPERLING.
    1. Evidence — Parol Evidence — Agency Contract — Brokers.
    In a suit for broker’s commissions for tbe sale of lands under an agency contract in writing whereby defendant agreed “to furnish abstract and tax history showing clear title,” where the prospective purchaser refused to accept the deed offered and the sale was not consummated, parol evidence that plaintiff’s agent was informed of the reservation of the mineral rights by defendant’s grantor, and that he assured defendant that his title was all right and not inconsistent with his agreement, was not inadmissible as tending to vary the terms of a written contract, said contract at that time not being required to be in writing.

    2. Brokers — Commissions—Performance.
    Where a real estate broker knew of the reservation of the mineral rights in defendant’s deed, and his customer refused to buy defendant’s farm because of such reservation, he did not produce a customer ready to accept the title which he knew defendant had, and was not entitled to recover, in a suit for the commission.
    3. Appeal and Error — Argument of Counsel — Exceptions — Ruling.
    Error will not lie to exceptions to the argument of counsel, where no ruling was asked for or made.
    Error to Saginaw; Kendrick, J.
    Submitted October 26, 1916.
    (Docket No. 156.)
    Decided March 29, 1917.
    Assumpsit by Benjamin G. Appleby, doing business as B. G. Appleby Company, against Ferdinand Sperling and another for broker’s commissions. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Snow & Snow, for appellant.

      Otto & Davis, for appellees.

       On broker’s right to commission on failure of employer’s title, particularly effect of broker’s knowledge of defect, see note in L. R. A. 1915E, 720.
      On the question of where sale fails because of defects in employer’s title, see notes in 3 L. R. A. (N. S.) 576; 24 L. R. A. (N. S.) 1182.

   Ostrander, J.

Plaintiff does business as B. G. Appleby Co. Defendants own certain premises described in the writing herewith set out. Plaintiff claims to have found a purchaser for the land agreeably with the terms of the writing, and one acceptable to defendants, who were, however, unable to show a perfect title to the land. Plaintiff sues to recover his commission.

“Exhibit A.
“Agency Contract — Made in Duplicate.
“I hereby place in the hands of B. G. Appleby Co. the following described property, 160 acres southeast quarter (ty,) of section twenty-five (25) town twelve (12) north range three (3) East, Saginaw county, Michigan, for the purpose of effecting a sale at the following price and terms: $22,000. $7,000 down, balance on time at 6 per cent, per annum, or any other price or terms acceptable to the owner. In the event of sale by agent or owner, I agree to pay a commission of 5 per cent, on the selling price.
“This agency shall be exclusive to the B. G. Appleby Co. and I hereby authorize B. G. Appleby Co. to close a sale on the price and terms above mentioned. I agree to furnish abstract and tax history showing clear title.
“This agency may be terminated by giving 180 days’ notice in writing by registered mail.
“Signed this 8th day of April, 1913.
[Signed] “Ferdinand Sperling, Owner.
“Barbara Sperling.
“B. G. Appleby Co., By H. S. Smith.”

The alleged defect in title is a reservation in the deed conveying the land to defendants. This conveyance is not listed in the index to the record, and is not found in the record, nor does the index refer to the alleged reservation. However, it is apparently conceded that in the deed from defendants’ grantor there was reserved to the grantor one-third of all coal and mineral under the land, with the right to enter and remove the same. No one has claimed there is coal or other mineral in the land.

The case for plaintiff was rested upon plaintiff’s testimony, which tended to prove that he was a real estate broker residing in Saginaw, that H. S. Smith, who signed the said writing, was his agent and employee, who secured the writing from defendants and turned it over to plaintiff; that the farm was advertised for sale; and that another of his agents, residing in the State of Illinois, brought from Illinois a Mr. Hamm, a prospective purchaser of a Michigan farm. The particular premises were shown to Mr. Hamm, who later visited the premises again in company with his sons, saw and talked with defendant Ferdinand Sperling, and agreed with plaintiff to purchase the same, paying $500 to plaintiff on the purchase price, who did not pay it to defendants. Having arranged the sale, plaintiff wrote to defendants a letter, dated September 3, 1913, advising them that he had sold the farm “to a Mr. Hamm, of Illinois, this being the gentleman who was out to the farm with Messrs. Smith, Judy, and friend,” and asking for an abstract and tax history, they to be extended to date. The terms of the sale were stated in the letter, and, further, that Mr. Hamm wished to make with defendants an arrangement “for putting in some fall wheat” and other things. The letter concluded with the postscript that possession was to be given on or before March 1,1914. Plaintiff’s testimony tends to prove, also, that an arrangement to put in wheat was made with defendants, and defendants were paid for certain things done pursuant thereto, and that defendants agreed to purchase through the plaintiff another farm, paying. $100 to apply on the purchase money. The abstract was received by plaintiff in October, and was thereafter posted, or brought down, to November 11th, and was mailed to Mr. Hamm. Discovering from examination of the abstract the reservation of mineral rights, plaintiff “called up” Mr. Sperling, told him about it, and that probably objection would be made by the intending pur'chaser, but to wait until he heard from him, and meantime to bring to plaintiff his deed of the land. Defendant Ferdinand did bring his deed to plaintiff. Correspondence ensued with certain persons describing themselves as attorneys for Mr. G. A. Hamm, who pointed out various defects in title as shown by the abstract, the serious one the reservation of mineral rights, and with G. A. Hamm, and with the defendants. The subject and contents of each letter were discussed by plaintiff and defendant Ferdinand, and attempts were made by plaintiff and by defendants to procure from defendants’ grantor a release of the reserved mineral rights. Under date January 7, 1914, plaintiff wrote to defendant Ferdinand a letter, in which was recited the fact of selling the farm and other alleged facts, and in which a demand was made for a good title to the land, in default of which he is informed that the necessary proceedings to insure plaintiff against loss will be begun. This letter received no reply. The letters from Illinois were received in evidence, over objection that they were not proven, to show what subjects were before, and were discussed by, plaintiff and defendants regarding the sale of the farm; I do not find that when plaintiff rested he had offered any testimony tending to prove that Mr. G. A. Hamm, or any other proposed purchaser of the land, was able to pay for it, unless the inference may be drawn from other facts and circumstances testified to by the plaintiff.

With the plea defendants gave notice that they would show in their defense:

First. That on May 21, 1913, defendants notified plaintiff of the termination of his agency, thereby terminating the same on November 17, 1913, and any agreement which plaintiff may have made with G. A. Hamm, of Rantaul, 111., to be performed after November 17, 1913, was made without authority.

Second. That plaintiff did not have a purchaser ready to buy at any time up to November 17, 1913, but thereafter told defendants he had a buyer who was given time to March 1, 1914.

Third. That plaintiff and his agents, on April 8, 1913, knéw the exact terms of the said reservation of mineral rights in defendants’ deed, and that plaintiff’s agent with such knowledge stated that the phrase “clear title” in said agency agreement did not cover said reservation, and said reservation did not affect the phrase “clear title.”

Fourth. That the reservation in the deed is of no account in fact, and does not constitute “a lien on said title.”

Fifth. That plaintiff never procured a purchaser who was ready, willing, and able to buy defendants’ farm, and defendants did not, by their acts, defeat any consummation of sale of the premises.

Sixth. “Defendants will further show that the plaintiff did not act in good faith with the defendants, and concealed from them any arrangements that they made with one G. A. Hamm, and did not inform the defendants that said plaintiff had received the sum of $500' down in September, 1913, or that said G. A. Hamm, or-any one else, would pay $7,000 down in September,, 1913, and make arrangements for the payment of the balance, which arrangements would be satisfactory to the defendants, or when possession would be demanded; that all the plaintiff did was to ask for abstract and tax history from the defendants, which was furnished said plaintiff in the first part of October, 1913; that defendant at that time did not know of the arrangements the plaintiff had made with G. A. Hamm for the sale of the property, or what the terms of said sale were to be in regard to the paying of the balance of the money due, or when possession should be given; that the first intimation that the defendants had as to what arrangements the plaintiff had made with G. A. Hamm was after November 17, 1913, the same being first communicated to defendants in December, 1913; and that at that time said defendants were not informed, and have not been informed to this day, in what, manner or what amounts the balance on the farm was to be paid by said G. A. Hamm or when.”

The testimony for defendants tended to prove each of the matters so specially alleged except, perhaps, the second one. It tended’ to prove, also, that defendant Ferdinand told the intending purchaser that his grant- or claimed the coal in the land, who replied that he did not care. In rebuttal, plaintiff’s agent, Smith, and plaintiff gave testimony.

The court submitted to the jury the questions whether it appeared by a preponderance of the evidence that plaintiff had produced a purchaser, willing, ready, and financially able to buy the farm, and whether Smith, the agent of plaintiff, who prepared the agency agreement at defendants’ home, was informed about the mineral reservation in defendants’ deed, upon this last point advising the jury that Smith’s knowledge was plaintiff’s knowledge in this regard, and, in substance and effect, that if plaintiff had knowledge of the reservation, or if knowledge of it was imputed to him, he could not recover, because his duty as defendants’ agent was not performed by offering the land for sale and finding a purchaser therefor as if there was no reservation. A verdict was returned for defendants, and judgment was entered thereon.

Many exceptions appear, and there are many assignments of error, but aside from certain matters occurring upon the trial .which it is claimed may havé improperly influenced the jury, the controlling question is raised by exceptions to rulings admitting testimony of what defendants told plaintiff’s agent about the title to the land and the objections to the charge of the court upon the effect of knowledge thus acquired. The objection to the testimony was that it tended to vary and contradict the terms of the agency contract, which contains the words, “I agree to furnish abstract and tax history showing clear title.” The case of Wolf v. Megantz, 184 Mich. 452 (151 N. W. 622, Am. & Eng. Ann. Cas. 1916D, 1146), is relied upon by appellant;

There can be no doubt about the general rule of evidence referred to by appellant. But this rule has no application to the facts in this case, assuming that the jury found them to be as defendants’ testimony tended to prove them to be. It is undisputed that plaintiff’s agent called upon defendants at their home, ate dinner with the family, and prepared and secured the agency agreement which he solicited and which is herein set out. The testimony for defendants is that the matter of this reservation in the deed was discussed before the agreement was made, and that whether it affected the title was a question raised by defendants and answered by plaintiff’s agent in the negative, after he had examined the deed which evidenced the defendants’, title to the land.

“Your title is all right; lots of farms with such claims on, and never any trouble. It ain’t necessary to put it in the contract”

—is what the plaintiff’s agent is said to have said. The clause was put into the written memorandum, if this is true, with the mutual understanding of the parties thereto that such a reservation was not inconsistent with a clear title — was consistent with a clear title, as both of them understood the phrase. It is inferable from the testimony that many lands in Saginaw county have been conveyed with similar reservations, the land being intended for use and used for farms. The memorandum is not a deed, a lease, or an option for the purchase of real estate. It is an agreement between a principal and his agent, creating the relation, defining the agency, and stating the commission to be paid in the event of a sale of the premises. It was not a contract which was then required to be in writing. The phrase “clear title” may, and may not, be ambiguous, depending upon the connection in which it is used. If, for example, there is, in fact, no coal or other mineral in the land, the reservation in defendants’ deed amounts to nothing as affecting his title. It is a reservation which upon the record appears to affect the title, but may have been generally regarded as not, in fact, affecting it, or may have so been regarded by plaintiff’s agent.

The controlling consideration is this: That if, as is claimed by plaintiff, his customer refused to buy the farm because of the reservation of mineral, and solely for this reason, he has not produced a customer ready to accept the title which plaintiff knew defendant had, whether the title is, in fact, perfect or imperfect. No one excepting the plaintiff has relied upon the agency contract, no rights other than those of the parties thereto are affected. Whatever effort he put forth to make a sale of the land, plaintiff knew that the alleged infirmity in the title to the land would be eventually confronted, and that it might result in defeating a sale. He says it did defeat a sale. The injustice of permitting him to now claim that the commission has been earned is manifest. I conclude that it was not error to receive the testimony, and that correct instructions upon the effect of it were given to the jury. This view disposes of other objections to the charge which are urged by appellant. It disposes, also, of other exceptions to rulings upon the admission and rejection of testimony, affecting the point which has beer discussed.

Error is assigned upon exceptions taken to the argument to the jury of counsel for defendants. Counsel for appellant contented himself with an exception in each instance, and no ruling was asked for or made. Repeatedly this court has refused to consider similar exceptions.

All assignments of error have been examined, and the conclusion is that no reversible error is made to appear.

The judgment is therefore affirmed.

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