text:
    GREENE v. WILLIAMS.

    1. Conditional Sale — Chattel Mortgage — Satisfaction — Rights of Creditors of Tendee.
    Where the purchaser of a stock of goods under a contract providing that the title to the original stock, and all additions thereto, shall be and remain iii the vendor until payment of the purchase price, turns the goods over to the vendor, in good faith, in satisfaction of the contract, and the value of the goods does not greatly exceed the amount of the debt, creditors of the vendee cannot complain, notwithstanding the contract was not recorded as a chattel mortgage.
    3. Same — Evidence—Question for Jury.
    The submission to the jury of the question whether a stock of goods was turned over to plaintiff in payment and satisfaction of a contract of conditional sale was warranted by the testimony of plaintiff that the vendee asked him to come to the store the next day, and “he would turn over the stock to me in satisfaction of the contract,” and that the goods were at the appointed time delivered to him in payment of the contract, although on cross-examination he testified to things that appeared to be inconsistent with the theory of a sale.
    3. Same — Trial—Special Questions.
    Where, in an action of trover, the court instructed the jury that plaintiff could not recover unless the goods in question had been turned over to him, in good faith, in satisfaction of his claim, defendant was not prejudiced by the refusal of the court to submit a special question as to whether plaintiff took possession by virtue of a contract of conditional sale.
    Error to Calhoun; Winsor, J.
    Submitted April 25, 1902.
    (Docket No. 69.)
    Decided June 3, 1902.
    Trover by George H. Greene, executor of the last will and testament of James F. Smiley, deceased, against Herbert E. Williams, sheriff of Calhoun county. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff’s decedent, James F. Smiley, being the owner of a stock of drugs, medicines, and other goods, on April 30, 1890, entered into a contract to sell the same to one W. F. Church. The contract was in writing. The consideration was to be $5,700; the terms of payment being $300 down, and $300 annually until paid. Church agreed to pay all the taxes 'on the goods then conveyed, or purchased to replenish the stock, and to keep said goods, and additions thereto, insured. It also provided that said Church—
    ‘ ■' Shall have and take immediate possession of the said stock of goods and property as above described, and, upon the condition that he shall at all times keep the stock replenished with like or equally salable goods to the amount and value substantially as at the date of this contract, he shall be allowed to go on with the business in his own name and on his own account, and make sales of said goods at retail in the usual and customary manner of retail trade, but not otherwise; and all goods and property acquired and put with the said goods, or with any part thereof, for sale in said business, either to replenish the said stock or as additions thereto, shall, to the amount and value of the said stock and property as it now is, be and remain the property of the said party of the first part, and be held under this contract the same in all respects as the goods and property hereby agreed to be sold, and shall so continue so long as any part of the principal or interest of any of the moneys to be paid as herein provided shall remain unpaid.”
    The contract further provided that if said Church should neglect or refuse to keep the stock of goods replenished, or should sell or attempt to sell in any other manner than in the usual and customary course of trade at retail, or should neglect or refuse to pay all just claims and demands of any and every person for goods used to replenish such stock, when such claims should become due and payable, or if he should at any time incumber or allow said goods, or additions thereto, to be incumbered or seized upon attachment or execution, or should neglect to pay as provided, then—
    “It shall and may be lawful, and the-said party of the first part shall be and is authorized, to take immediate possession of any or all of the said goods and property, wherever the same may be, and of any or all goods or property that may have been acquired to replenish or make additions thereto, and to sell and dispose of the same,' either at public or private sale, as he may deem best calculated to secure the best price, and with moneys or means realized therefrom to pay and satisfy any and all demands that may be owing him under the provisions of this contract; all of which demands shall in such case be and become immediately due and payable, though the period above limited may not then have expired; the surplus, if any, to be returned to the said party of the second part, after paying the expenses of taking the possession and selling the same in the manner aforesaid.”

      It further provided that, upon payment by Church, Smiley would “execute and deliver to him a good and sufficient bill of sale of the goods and property,aforesaid.” The above are the parts of the contract essential to understand the questions involved.
    Mr. Church carried on the business until December 28, 1892, when another contract was signed between Smiley, Church, and Solomon M. Raftery, by which the contract was assigned to Solomon M. Raftery, and he assumed all the obligations under it. At that time there was due upon the contract $1,227.15. Raftery failed to pay as provided in the contract, and plaintiff, as the executor of Mr. Smiley’s estate, made demand and obtained possession of the goods on October 11, 1899, retaining Raftery in his employ for a while to assist in selling the goods. After Raftery was discharged from plaintiff’s employ, several suits were brought in justices’ courts by his (Raftery’s) creditors. He confessed judgment, executions were issued, and the stock was levied upon by the defendant, the sheriff of the county, through his deputy.' Plaintiff thereupon brought suit in trover for the value of the goods so seized. The defenses set up were:
    1. That the agreement was in effect a chattel mortgage, and, never having been recorded, was absolutely void as against Raftery’s creditors.
    2. If not a mortgage, it was a conditional sale, and covered only the goods then in existence, and did not include goods purchased afterwards by Raftery.
    3. That Mr. Smiley was estopped from setting up a claim to the goods as against the creditors of Raftery.
    The court, after stating the claims of the respective parties, instructed the jury that if they found that this contract had never been recorded in the clerk’s office in the city of Albion, where the property was located, or in the city of Marshall, where Mr. Smiley lived, then the contract was void as to creditors of Raftery who sold him goods in good faith after the contract was made; that the contract was valid as to all the goods which were in existence at its date, and were then transferred to Raftery. The court further instructed the jury as follows:
    ‘ ‘ If you find from the evidence here in the case that at ■the time Dr..Greene, the executor of the estate of James F. Smiley, deceased, took possession of the stock and store, that there was an express understanding and agreement between himself and Solomon M. Raftery that Mr. Raftery should turn out to Dr. Greene,- as executor, the stock in question, expressly for the purpose of paying the indebtedness owing the estate of Dr. James F. Smiley, and that he did so pay it by turning out the stock, and it was so taken and so delivered, then I instruct you that the title of the Dr. Smiley estate, or the plaintiff here, in this property so turned out, would be good to all the property so turned out to him, if done in good faith, as against any of the creditors of Solomon M. Raftery.”
    The defendant requested the court to give to the jury five special questions, the first and second of which are as follows:
    “1. When Dr. Greene, as executor, took possession of the property, October 11, 1899, did he do so under and by virtue of the provisions of the agreement between Smiley and Raftery dated December 28, 1892, and not otherwise ?
    “2. Did the sheriff levy upon any of the original stock of James F. Smiley under the execution issued in favor of Williams, Davis, Brooks & Hinchman Sons ? ”
    The other three questions were the same as No. 2, except that they included other creditors of Raftery. The judge refused to submit these questions. Plaintiff recovered verdict and judgment.

      Loud & Stewart, for appellant.

      John E. Foley, for appellee.

       Rehearing denied June 24, 1902.

   Grant, J.

(after stating the facts). Under the instructions given and the finding of the jury, it is unneces- ■ sary to determine whether this agreement was a chattel mortgage, a conditional sale, or whether the provision of the contract covering future additions to the stock was ■valid. The jury, of course, determined that the contract was not recorded or filed, because that was conceded. Neither was there any question of the good faith of Mr. Raftery’s creditors in selling the goods to him. Therefore the verdict was based entirely upon the finding of the jury that these goods were turned over by Raftery to plaintiff in consideration and payment of the debt due to him under' the contract. If there was evidence to go to the jury npon this point, it is evident that the judgment must be sustained.

Plaintiff expressly testified that on October 10th he, with his attorney, demanded possession of the goods under the contract; that Raftery asked them to come the next day, ■and “he would then turn over the stock'to me [plaintiff] in satisfaction of the contract;” that on the 11th Raftery did deliver him the goods in payment of the contract. It is true that on cross-examination he testified to certain things that appeared to be inconsistent with the theory of a sale; but they were not, as a matter of law, convincing, and we are unable to say that it was not a proper question for the jury. Plaintiff had the legal right to receive the goods, and Raftery had the legal right to turn them over to him, in payment of the debt, provided it was done in .good faith, and the value of the goods did not exceed the amount of the debt to such extent as to be itself a badge •of fraud. This finding renders the other questions raised by the record immaterial. The verdict was a complete •answer to the first special question, because the jury, under the instructions, could not have found a verdict for plaintiff upon any other' basis than that Raftery surrendered the goods in payment of the debt.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    SCHLIESS v. CITY OF GRAND RAPIDS.
    1. Building Contracts — Liability op Contractor — Damage by Frost.
    A contractor who builds a stone wall in accordance with plans and specifications furnished by the owner, performing the work at the time* and protecting it in the manner directed by the latter, is not responsible for the condition of the wall caused by freezing; he not being an insurer of his work.
    2. Same — Right to Reject Work.
    A provision in a contract for the erection of a wall according to plans and specifications, giving the owner the right to determine all questions as to performance, does not entitle him arbitrarily to reject the work, but, if there has been a substantial performance, the contractor may recover the agreed price.
    3. Same — Municipal Corporations — Estoppel.
    Where a city’s architect and inspector, charged with the duty of seeing that a wall is properly built, are present during the entire progress of the work, and see the manner in which the contractor is performing it, without objecting thereto, and the board of public works acts weekly upon the reports made by such representatives, paying the amount of the estimates, the city is estopped to set up an improper performance of the contract.
    Error to superior court of Grand Rapids; Newnham, J.
    Submitted April 25, 1902.
    (Docket No. 89.)
    Decided June 3, 1902.

      Assumpsit by Henry Schliess against the city of Grand Rapids to recover a balance due on a building contract. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    In November, 1898, plaintiff made a contract with the defendant city to build the foundation walls for a municipal electric-lighting plant. By the charter of the city (title 9, §§ 13,14, 30) the board of public works is intrusted with the control of the erection and construction of such buildings. The board is also authorized to determine and designate the kind and quality of material to be used. When it has so determined, it is required to make an estimate of the probable cost, and report the same to the common council. If approved, a contract is then made, signed by the mayor and the president of the board of public works. The contract was made November 12th, and the work was to be done within 60 days. Those portions of the contract which counsel deemed material are as follows :
    “ Build the foundation walls (colored blue on plans and sections) up to grade line of thickness shown, of native field boulders, to be selected, large size, first quality stone, not less than 12 inches in thickness by 15 inches in length, laid to line on both sides, well bonded and fitted together.”
    “ No part of this contract will be accepted unless it complies fully with these specifications in the fullest sense of its terms.”
    “The contractor shall (if so directed by the architect) furnish horse manure, and cover all newly built stonework during cold weather, to prevent its being injured by freezing.”
    “The contractor agrees that the materials to be used and the work to be performed shall at all times be subject to the inspection and approval of the board of public works, ■or authorized agent of said city, and, in case any material is rejected, it shall be immediately removed from the premises, and not again brought thereon.”
    “ The contractor agrees that he will at all times give his personal attention to the work, and that he will employ none but competent workmen on the work covered by this ■contract.
    “ The contractor agrees that the board of public works •of said city shall determine finally all questions as to the proper performance of this contract, and that the said board may declare this contract forfeited at any time for the nonperformance of any part thereof, and may proceed fo complete the same without delay. * * * It is further understood that the liability of the contractor under this contract shall in no way be lessened by reason of the board availing itself of the provision herein contained.

      “ The contractor agrees to commence said work within ten days after signing this contract, and to prosecute the same with all due diligence, and finish the same in sixty working days, for the sum of six thousand eight hundred and sixty-five dollars, the amount named in his proposal for the work, now on file in the office of said board; and that, for each and every day that elapses beyond the number of working days mentioned in said proposal for the completion of this contract, the said board may deduct from any money due the contractor the sum of ten dollars, in addition to the per diem of the inspectors employed on the work.”
    “ It is mutually agreed between the parties that no deviation from the contract can be authorized by any inspector of the work, and that the city is in no way bound to-accept work not in accordance with the specifications, although such work may not have been objected to by the. inspector.
    “ The city hereby agrees to pay the sum aforesaid in-article 6 under the restrictions and limitations herein contained, and .to make payments from time to time in the-manner indicated in article 7, on account of the performance of this contract, upon estimates of the amount of work actually performed and materials actually used thereon. The amount so paid shall be such as the board of public works find to be just. Fifteen per cent, of such estimates may be retained until the acceptance of the work; and it is agreed that no part of the retained percentage shall be paid to the contractor before the final acceptance of the work, except upon the written consent, of the bondsmen.
    “It is mutually understood that the'intent of the contract is to secure first-class construction, workmanship, and materials, and the contractor hereby agrees to furnish the same, and be governed in all things by the regulations herein contained, whether specifically expressed or implied, and by instructions given by the board of public works, not inconsistent with this contract.
    “ The contractor agrees that his responsibility shall in-no way be lessened by reason of either party hereto availing itself of any provisions herein contained.”
    The work was begun November 16th, and was continued until January 18th, when the architect ordered the-work stopped on account of the severe cold weather. About five-sixths of the work at this time was completed. The wall appears to have been built in sections, and the larger part of it was completed to the top. Work was resumed by order of the architect February 22d. The weather became too cold, and, under orders of the architect, work was again suspended until March 17th. On that day the board served a notice upon the plaintiff and his sureties to complete the job within 10 days thereafter. He at once resumed work, and the job was nearly completed by the 5th of April. Soon after this it was discovered that the mortar was killed by freezing, and it became necessary to take down and rebuild a portion of the wall. A dispute arose between the parties as to the responsibility for the condition of the walls. Plaintiff claimed that he had complied with the conditions of his contract; that the work was done under the direction of the architect and inspector, as well as members' of the board of public works; that weekly estimates had been made by the architect and inspector, and approved by the board, and payments made in accordance with the terms of the contract. Defendant claimed that the plaintiff had not complied with the terms of his contract; that the mortar was.not as provided; that some smaller,?stones were used than the contract provided; and that manure was not used, as required, for the protection of the walls. Plaintiff made a proposition to rebuild the unsafe parts of the walls at a given price. This was accepted by a unanimous vote of the board. At a subsequent meeting this resolution of acceptance was rescinded, and the board declared the contract forfeited, and proceeded to rebuild. Plaintiff brought this suit to recover the amount due him under the contract, claiming performance on his part.
    Counsel for the plaintiff are not satisfied with the statement of facts made in appellant’s brief, and say that it “is so insufficient and inaccurate as to justify a restatement.” This involves the examination by this court of a long record to determine and make a statement of facts. This requires labor which ought not to be imposed upon us. The material facts, so far as the questions before us are involved, are not in dispute, and appear in the following instructions of the court:
    “It is undisputed that the plaintiff began the performance of his contract within the time required thereby; that on or about December 16th the board of public works ordered the plaintiff to proceed more rapidly with the work, and notified him that it must be completed within the time provided by the contract. It is undisputed that from the time of said notice plaintiff proceeded with the contract, and continued in its performance until about January 18th, when he was stopped by orders from the architect, on the ground that the weather was too cold to lay stone. It is likewise undisputed that, at the time the plaintiff was stopped by the architect, about five-sixths of the wall had been laid up. It is likewise undisputed that, from about the 18th day of January until at least the 23d of February, the weather was so unusually and exceedingly cold that the freezing of the earth, water-pipes, and so forth was greater than for many previous years. It is also undisputed that the weather from January 18th to February 23d, and some of the weather after the latter date, was so cold as to kill cement mortar laid up in walls above the ground which had not yet dried out. It is also undisputed that, from the time the plaintiff began work in November until he was stopped in January, the weather was too cold to permit the drying out of the mortar. It is undisputed that in April it was found that all mortar laid above the level of the ground before January 18th, and some laid after March 17th, was frozen and killed. It is-likewise undisputed that about March 15th the board of public works ordered the plaintiff to complete the construction of the work within 10 days; that said plaintiff did proceed under such order, and completed said work, aside from pointing and plastering the walls, and a small part of the coffer dam and the intake pipe. It is likewise undisputed that, for a portion of the time during which work was done after March 16th, the weather was too cold to allow the mortar to dry, and part of the time cold enough to kill mortar above ground. It is likewise undisputed that the contractor provided horse manure for the covering of the top of the wall. There is no evidence tending to show that this horse manure was not used in the customary manner.

      “The plaintiff claims that he laid stone, after the cold weather came on, only as directed by the architect through the inspector. The contract does not require the contractor to protect the wall in any way, except that it provides that he shall use manure to cover newly built wall when ■directed by the architect. If you find that the plaintiff used manure for the protection of the wall in the manner and to the extent ordered by the architect, the plaintiff performed his full duty in that regard. If you find that the inspector and the architect knew the extent to which manure was being used by the plaintiff, and made no objection to such use, and no demand for other or different use, the responsibility for failure to use greater protection must fall on the city, and not on the plaintiff. In no event can the plaintiff be held liable for the killing of the mortar, except such killing as occurred through his own fault in violation of the contract and specifications. If you find that the plaintiff laid stone in cold weather only as directed, and the wall was destroyed by the freezing of the mortar, the loss must fall upon the city, and the plaintiff cannot be held responsible.
    “It does not follow, however, that if plaintiff laid stone without the direction of the architect or the inspector that fie must bear the loss thereof. The specifications forbade the laying of the walls only in extremely cold weather unless by permission of the architect. It will be seen that this extremely cold weather is indefinite. It must be left to the judgment of some one to determine what weather is extremely cold. By the contract and specifications in ■question, the architect, acting either personally or through the inspector under directions from the architect, was to determine what weather was extremely cold. It is undisputed that the architect personally visited the work from one to four times a week during the work, and, during the week ending December lGth, visited the work four times; that the president of the board of public works visited the work frequently. It is undisputed that neither the architect nor the president of the board of public works objected to laying stone until about January 18th, when the architect directed temporary suspension of the work. The contract does not forbid the contractor to lay stone in extremely cold weather. It provides only that he must not do so without permission of the architect. In order to constitute permission by the architect to lay stone in extremely cold weather, it is not necessary that the architect should have expressly in words directed or consented to it. If, with notice or knowledge that the stone was being laid, the architect did not object to it, he thereby permitted it, in the meaning of the specifications, and the responsibility must fall on the city, and not on the contractor. The board of public works had the same right as. the architect to permit the laying of stone in extremely cold weather, and if you find that the board was urging plaintiff to proceed'with his work in spite of cold weather, and insisting that he must finish within the 60-day limit, and that the board, through the inspection of its president or otherwise, knew that the stone was being laid in oxtremely cold weather, and did not forbid it, such acts, taken together, amounted to a permission to the laying of' such stone by the plaintiff, and the responsibility therefor must fall on the city, and not upon the contractor.
    “It was the duty of the inspector to carefully observe all ■ details of the work, and to examine carefully all materials that were proposed to be used in the work, and to immediately object to such as did not conform to the contract and specifications, and to promptly notify the contractor of any deviations made by him from the requirements ,of the contract and the specifications. Under the power given the board by the contract to order the stopping of the work, and the power given the board by the contract, to complete the same itself if the contractor was dilatory, when the board permitted the contractor to proceed without objection, having knowledge of the manner of doing the work, and the means taken to protect the work, they and the city in so doing approved from day to day everything that was done, with the knowledge of the inspector and their architect, and approved of everything of which their architect and inspector had notice. The mere fact-' that smaller stones were used than the specifications called for did not amount to a violation of the contract, if the use of stone that were used amounted to a substantial pérformance of the contract. It is undisputed that the inspector from week to week reported to the board of public works the amount of work done during the preceding-week. It is also undisputed that the architect reported from time to time to the board of public works the progress made with the contract. It is also undisputed that both the inspector and the architect were satisfied with the-performance of the work by the plaintiff as a substantial and satisfactory performance of the contract and specifications, and that such approval and satisfaction of the inspector and architect continued up to the time of the destruction of the wall by the subsequent action of the board of public works. It is further undisputed that the board of public works never questioned the propriety of the method of construction of said wall until after examination and with reference to the killing of the mortar. While the city is not barred from complaining of the existing substantial defects in the wall by the opinion of the inspector, it does not follow that such defects give right to the city to forfeit the contract and condemn the entire work.
    ‘ ‘ Substantial performance of the contract is all that was required to enable the plaintiff to recover. The contract must be construed altogether. If the walls could not be properly built without using smaller stone in order to properly bond the same, then there would be a substantial compliance of the contract if smaller stone were used, provided that the plaintiff did the same in good faith, and without fraud upon his part. If, however, gentlemen of the jury, you should find that the plaintiff, in putting smaller stone into the-wall, acted in bad, faith, and, as a consequence thereof, the wall was not substantially built as required by the contract, and had to be taken down in order that one should be rebuilt that would substantially comply with the terms of the contract, then I charge you that the plaintiff would be responsible, and the city would be entitled to ■recover back from him the amount which they so paid out for reconstructing the said wall.”
    The plaintiff had a verdict and judgment.

      Lant K. Salsbury and Moses Taggart (Taggart & Taggart, of counsel), for appellant.

      Knappen, Kleinhans & Knappen, for appellee.
   Grant, J.

(after stating the facts). The jury, by their verdict, have settled the questions of fact submitted to them in favor of the plaintiff. These were:

1. Did the plaintiff proceed in the erection of the wall without the permission of the architect, defendant’s authorized agent ?

2. Did he protect the wall in the usual manner by the use of manure, and as directed by the architect ?

3. Was the wall properly bonded, and was the use of some stones smaller than those mentioned in the contract a violation of it ?

4. Was the trouble with the wall caused by extreme cold weather, which froze and billed the mortar ?

5. Was the mortar made as required by the contract?

6. Had plaintiff substantially performed the contract ?

Upon these questions there was a conflict of evidence.

Plaintiff was not an insurer of the success of the work. He agreed to perform it in accordance with certain plans and specifications. If he made the mortar as provided by the contract, and protected it as he agreed, and performed the work as he was directed or permitted to do by defendant’s proper authorities, he is not responsible for the condition of the wall caused by freezing. He did not guarantee that the-wall should stand the weather. That risk was assumed by the defendant. A similar question arose in Filbert v. City of Philadelphia, 181 Pa. St. 530 (37 Atl. 545); Harlow v. Borough of Homestead, 194 Pa. St. 57 (45 Atl. 87). These cases fully support the instructions of the court.

Counsel for defendant insist that the work was not done to the satisfaction of the board of public works; that that body was the final arbiter upon the question, and its judgment should be conclusive. Counsel, however, upon the argument, conceded that the defendant could not arbitrarily determine that the wall was not satisfactory, that plaintiff had not complied with the contract, and refuse payment. This concession leaves open the question for a court or a jury whether such determination is arbitrary, and this, as a matter of course, involves the question whether the plaintiff had substantially fulfilled his contract. Under this concession it would seem almost idle to examine the authorities. The defendant’s counsel, notwithstanding this concession, seek to bring the case within the following decisions of this court: Gibson v. Cranage, 39 Mich. 49 (33 Am. Rep. 351); Walter A. Wood Machine Co. v. Smith, 50 Mich. 565 (15 N. W. 906, 45 Am. Rep. 57); Plano Manfg. Co. v. Ellis, 68 Mich. 101 (35 N. W. 841); Platt v. Broderick, 70 Mich. 577 (38 N. W. 579); United States Electric Fire-Alarm Co. v. City of Big Rapids, 78 Mich. 67 (43 N. W. 1030); Pierce v. Cooley, 56 Mich. 552 (23 N. W. 310); Koehler v. Buhl, 94 Mich. 496 (54 N. W. 157); Housding v. Solomon, 127 Mich. 654 (87 N. W. 57).

Those cases do not control contracts of this character. In Gibson v. Cranage the agreementVas for the painting of a portrait, which should be perfectly satisfactory to the person for whom it was painted. In Walter A. Wood Machine Co. v. Smith a harvesting machine was delivered under a contract of sale, which provided that the purchaser need not keep it unless it worked to his satisfaction. The others are similar cases. In those cases it made no difference what the character of the picture or machine was, or whether the one was properly painted ©r the other properly constructed. Those cases involve no work to be performed according to plans and specifications. In every case but one the vendor retained possession of his property, or it was returned to him when the purchaser had decided that it was not satisfactory. In Koehler v. Buhl the contract was one of employment, the services rendered to be to the satisfaction of the employer. Plaintiff was paid for The full time he worked. Upon being discharged, he sought to recover for the balance of the term of employment. It was held that the employer was not bound to give any reasons for discharging him; it was sufficient that the employer was not satisfied. Contracts of this character are well described in Walter A. Wood Machine Co. v. Smith:

“The cases of this class are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capable of being seen and appreciated by others.”

A good illustration of this class of contracts is found in Richison v. Mead, 11 S. Dak. 639 (80 N. W. 131), where R. agreed to sink a well for M. which would produce a Row of water satisfactory to M. The court, held (citing many authorities) that the contract was fulfilled by the production of a supply of water reasonable and sufficient for M.’s wants and needs upon his farm.

“It will not do for the defendant to say that he is not satisfied with the flow of water, without showing that the supply of water furnished by this well was insufficient for the uses of his farm. ”

Furthermore, the conduct of the defendant, through its inspector and architect and board of public works, estops it from now claiming that the contract was not fulfilled. Its authorized agents were there during the entire progress of the work, charged with the duty to see that it was properly done. The city, through its board of public works, acted weekly upon the reports made, and paid the amounts due for the estimates. The law would not permit defendant to see this work go. on, to ratify it day after day and week after week, to see plaintiff putting in stone not in exact accord with the contract, and then say, when the work is done, “You have not complied with the contract.” Its time to accept or reject was when the work was being done. It could not lull the plaintiff into the belief that this work was satisfactory, and, when completed, reject it. Laycock v. Moon, 97 Wis. 59 (72 N. W. 372); Lauman v. Clark, 73 Ill. App. 659; Ashland Cement Co. v. Shores, 105 Wis. 122 (81 N. W. 136).

We think the court’s instructions are sustained, both by reason and authority. It is unnecessary to discuss the errors assigned upon the refusal to give certain of the defendant’s requests. They are antagonistic to the instructions given, and, under our holding, were properly rejected.

We find no error upon the record, and the judgment is affirmed.

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


author: Montgomery, J.

text:
    HAYES v. STORTZ.
    1. Sale — Breach of Contract — Remedies—Election—Damages.
    The vendee in a contract foi the sale of an interest in a boat, on refusal by the vendor to convey after full payment of the purchase price, has a choice of two remedies; he may either treat the contract as in force, and sue for the value of the property converted, or he may rescind the contract, and recover his payments with interest, whether made directly to the vendor, or to a third person at the vendor’s direction; but, having chosen the latter remedy, he cannot also recover for profits earned by the boat since the date of the contract, which have been received by the vendor.
    3. Same — Evidence.
    In such suit, however, it is competent to show the amount of such profits, in order to establish that, together with the payments made, they equaled the full sum plaintiff agreed to pay.
    Error to St. Clair; Whipple, J.
    Submitted April 25, 1902.
    (Docket No. 63.)
    Decided June 3, 1902.

      Assumpsit by John Hayes against George Stortz for money had and received. From a judgment for plaintiff, ■defendant brings error.
    Reversed.

      James A. Muir, for appellant.

      H. A. Babcock (George G. Moore, of counsel), for appellee.
   Montgomery, J.

In January, 1894,' Lonsby & Wolf were owners of a one-eighth' interest in the steam barge Thomas D. Stimson, the entire vessel being at the time subjectto a mortgage of $8,666.66. An arrangement was made between the plaintiff and defendant by which the latter was to lend his credit to the plaintiff to enable him to purchase from Lonsby & Wolf this interest in the vessel.' In pursuance of this arrangement, a contract of sale was made by Lonsby & Wolf to defendant of the one-eighth interest, entitling him to one-eighth of the receipts, and making him responsible for one-eighth of the current expenses; and defendant gave to Lonsby & Wolf two notes, — one for $1,000, due in one year, and one for $1,250, due in two years,' — each signed by plaintiff and indorsed by defendant; and defendant thereupon made a like contract to the plaintiff. In the years 1894 and 1895 plaintiff made payments upon the $1,000 note, and also upon the $1,250 note, and gave testimony tending to show that it was agreed between defendant and himself that defendant should retain the profits of the boat, and apply them to a reduction of the mortgage, and pay them to the holder of the mortgage. On the 17th of January, 1896, the plaintiff and defendant had a settlement of the amount paid the defendant to that date, except that the question of profits was not considered, it is claimed; and, as a result, plaintiff gave defendant a note for $132.65. The $1,250 note had not been paid, and was then renewed. About this time the holders of the mortgage upon the vessel were pressing for payment. Foreclosure proceedings were taken, the mortgage was foreclosed, and defendant became one of the purchasers. Four thousand dollars in cash was paid at the time, besides the expenses of sale, $540, and a new mortgage-given for the balance.

Plaintiff claims that prior to the foreclosure proceeding, as well as subsequent thereto, it was understood and agreed between himself and defendant that defendant should become a purchaser of an interest in the boat on behalf of plaintiff, and that the arrangement previously existing between them as to the purchase by the plaintiff from defendant should continue; and that, after the foreclosure was made, the plaintiff in fact did make various payments to the defendant, until the entire amount covered by the contract had been paid for the one-eighth interest. Defendant disputes this, and claims that the plaintiff agreed, it is true, to continue the payments upon these notes, and did pay them, but that plaintiff at the time abandoned all claim to the one-eighth interest; that the parties then understood and agreed that the debts of the steamer, including the mortgage, were in excess of its real value, and it was arranged that defendant should purchase the steamer, and place plaintiff in command of her at a salary of $1,000 per year, retaining $600 per year out of the salary, until the remaining note of $1,250, made by plaintiff, was paid; and that the arrangement was made for the sole purpose of enabling plaintiff to pay obligations he was legally bound to pay. . Upon the plaintiff’s claim that the entire purchase price of this .interest in the boat had been fully paid, he demanded of the defendant a bill of sale of the one-eighth interest. The defendant repudiated the alleged agreement, and refused to convey; and in this action the plaintiff, having treated the contract as rescinded, sues to recover for the money paid and interest, and the profits of the vessel.

There are numerous assignments of error, but the only ones meriting discussion are those which relate to the instructions of the circuit judge as to the measure of damages. The circuit judge charged the jury as follows:

“ If you shall find that the sum of the profits received by the defendant, and the payments made directly to him by plaintiff, or by his sons for him, were sufficient to pay the purchase price, and interest thereon to the date of such payment, together with one-eighth of the mortgage existing at the time of making the contract, with the interest thereon to the date of payment, with all the necessary costs and expenses of that mortgage foreclosure and sale; and if you find that defendant, after this payment, refused to convey said one-eighth, — the plaintiff is entitled to recover the sum so paid to defendant directly, and one-eighth of the profits of the vessel, if you shall find there were any, less such sums as defendant has proven,by way of set-off.”

Error is assigned upon this instruction. If, as plaintiff claims, he had fully performed his contract, and defendant repudiated all- obligations under it, this gave to plaintiff a choice of remedies. He might treat the contract as in force and fixing the rights of the parties, and recover the actual value of the property when converted by the defendant; or he might treat the contract as at'an end, and no longer defining the rights of the parties. If he elected to take the latter course, he was not entitled to what the contract gave him, but was entitled to be made whole; that is to say, he was entitled to recover the sums paid by him as having been paid without consideration. Nor would it be material whether the payments were made to defendant or to another, if they were induced by defendant’s promises. See Hosmer v. Wilson, 7 Mich. 294 (74 Am. Dec. 716).

Plainly, the plaintiff would be made whole, in the present case, by the recovery of the amount paid by him, with interest. ‘ Were profits or earnings of the property also to be awarded to him, it would be permitting him to treat the contract as still measuring the rights of the parties for such purpose, while repudiating it for another purpose, and refusing to accept the compensation for the breach of the contract which the law fixes. This, we think, the plaintiff could not do. The case is unlike the case of Hamilton v. Park & McKay Co., 112 Mich. 138 (70 N. W. 436), which was likened to the case of a landlord and tenant. It was a case where the licensee stipulated to pay a certain sum by way of royalties for every machine manufactured and sold. The plaintiff, the licensor,, had fully performed, but the licensee was in default, giving the plaintiff the right to rescind. There was no other way, apparently, to measure the compensation which the plaintiff was entitled to for performance as far as he had gone, except to award him the royalties which had been earned under the contract. It was a divisible contract.

It must not be understood that the testimony as to the profits earned was inadmissible for any purpose. On the contrary, it was quite competent to show that plaintiff had performed his contract at the time defendant repudiated it, and that the payments made, plus the profits, equaled the full'sum which the plaintiff undertook to pay.

The other objections urged are without merit. For the error in instruction, the judgment will be reversed, and a new trial ordered.

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


author: Per Curiam.

text:
    O’BRIEN v. WAYNE CIRCUIT JUDGE.
    Mandamus — Equity Practice — Costs.

      Mandamus, being a discretionary writ, will not be granted to vacate an order of the circuit judge disallowing costs on the dismissal of a bill in chancery, where the return of the circuit judge is ample justification for the denial of costs, although ’ the technical practice prescribed by rule has not been followed.

      Mandamus by M. Hubert O’Brien to compel Joseph "W. Donovan, circuit judge of Wayne county, to vacate an order disallowing costs on the dismissal of a bill in chancery, in which relator was solicitor for the defendants.
    Submitted May 7, 1902.
    (Calendar No. 19,205.)
    Writ denied June 3, 1902.

      May & O’Brien, for relator.

      Charles C. Stewart, for respondent.
   Per Curiam.

The complainant’s injunction having been dissolved on motion, his default for not serving a copy of the bill upon defendants’ counsel was duly entered; and subsequently defendants’ solicitor caused an order to be entered that the bill be dismissed, with costs, to be taxed. They were afterwards taxed at $20. A motion to vacate this order was denied, but upon a later application the circuit judge amended the order by disallowing costs. An application was then made in this court for a mandamus to compel the vacation of the later order.

The return of the learned circuit judge is an ample justification for the denial of costs, and there is nothing left of the relator’s case, except the technical claim that the practice prescribed by rule has not been followed. We feel warranted in declining to consider this question, under the well-settled rule that mandamus is a discretionary-writ, and will not be granted where'abstract justice does not require it.

The writ is denied.


author: Hooker, C. J.

text:
    PEOPLE v. MORSE.
    Adulterated Food — Criminal Intent — Liability op Salesman. An agent who, in good faith, takes an order for pure goods, is not guilty of a violation of the pure-food law (2 Comp. Laws, §§ 5010, 5026) if his principal fills the order with adulterated goods. People v. Skillmcm, 129 Mich. 618, followed.
    Exceptions before judgment from Muskegon; Russell, J.
    Submitted May 8, 1902.
    (Docket No. 144.)
    Decided June 3, 1902.
    John W. Morse was convicted of violating the pure-food law.
    Reversed.

      Underwood & Umlor, for appellant.

      Charles B. Cross, Prosecuting Attorney, and George S. Lovelace, Assistant Prosecuting Attorney, for the people.
   Hooker, C. J.

The brief filed on behalf of the people states that the case is similar to that of People v. Skillman, 129 Mich. 618 (89 N. W. 330), and, in effect, concedes that the case must be reversed if we adhere to our former decision. The defendant took an order for some pepper, as and for pure pepper, to he shipped to a dealer in Muskegon by defendant’s principal, a wholesaler in Chicago. The pepper, when sent, was not pure. It is insisted that the Skillman Case is at variance with the weight of authority elsewhere, and contrary to our own cases, in which it is said that we have held that a guilty intent on the part of a vendor is not essential to an offense under the pure-food law (Act No. 193, Pub. Acts 1895). It is further said that, in the decision in the Skillman Case, section 17 of the act must have been overlooked, or considered unconstitutional.

The transaction in which the order was taken did not involve an immediate delivery of pepper then and there present. It is not shown that the sample, if there was one, was the same as the pepper subsequently sent, or that it was in the least impure. If it be conceded that the agent acted in good faith, — and we understand that it is not questioned, — he took an order for pure goods, and in doing that certainly committed no offense. It is now urged that the exigencies of the enforcement of this law are such that we should hold that this innocent and lawful action may be made a crime by the subsequent act of the principal, either intentional or inadvertent, in departing from, instead of performing, the contract which his agent had innocently made. We think this is not so, and we are also of the opinion that this does not necessarily do violence to section 17. This transaction, as an entirety, may have been a sale of impure pepper, under the statute, as to the principal, and not as to the agent. If the order had been taken with knowledge on the part of the agent of a practice to send impure pepper on such orders, a different question would be presented.

The conviction is reversed, and a new trial ordered.

Mooee, Geant, and Montgomery, JJ., concurred. Long, J., did not sit.


text:
    PEOPLE v. SMITH.
    1. Criminal Law — Resisting Ofeioer — Collection of Taxes.
    Where a village treasurer, by virtue of his tax roll and warrant, levied on personal property in the possession of the one against whom the tax was assessed, the levy was valid, and interference with such treasurer by a third person, claiming to own the property, was unlawful, and rendered such person guilty of the offense of resisting an officer.
    2. Municipal Corporations — Organization—Collateral Attack.
    In a prosecution for resisting a village treasurer in the execution of a tax warrant, the validity of the organization of the village cannot be attacked.
    Exceptions before judgment from Benzie; Chittenden, J.
    Submitted May 8, 1902.
    (Docket No. 148.)
    Decided June 3, 1902.
    Mason Smith was convicted of resisting an officer.
    Affirmed.

      D. G. F. Warner, for appellant.

      M. M. Larmonth, Prosecuting Attorney, for the people.
   Grant, J.

Respondent was convicted of resisting an officer. The treasurer of the village of Benzonia, in July, 1901, by virtue of his tax roll and warrant, levied upon certain personal property as the property of Otis Smith for a tax levied against him. While in the act of removing it, the respondent interfered, and resisted the officer. Two defenses were interposed:

1. That the property seized belonged to respondent, although in the possession of Otis Smith, and he offered to show ownership in himself.

2. The illegality of the organization of the village of Benzonia.

Both defenses were ruled out, and respondent was convicted.

Upon the first point counsel for respondent relies upon People v. Clements, 68 Mich. 655 (36 N. W. 792, 13 Am. St. Rep. 373). In that case a sheriff levied u'pon exempt property, and it was held that the debtor was not compelled to submit to a trespass without reasonable resistance. That case does not apply to property not exempt, and which is seized by virtue of a tax' warrant, and the officer has already seized and is in possession of the property. The treasurer in this case loaded the property, and was in the public highway in the act of removing it, when the repondent forcibly interfered. Under Sears v. Cottrell, 5 Mich. 251, the levy was lawful.

The village of Benzonia was organized by an act of the legislature in 1899. Its organization cannot now be collaterally attacked. Carleton v. People, 10 Mich. 250, 255; Coe v. Gregory, 53 Mich. 19 (18 N. W. 541).

Conviction affirmed.

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


text:
    HAMILTON v. WICKSON.

    1. Title to Lands — Resulting Trusts —Consideration Furnished by Third Person.
    No trust results in favor of a person furnishing the consideration for land the title to which, with his consent, is taken in the name of another. 3 Comp. Laws, §§ 8835, 8837.
    2. Same — Evidence of Ownership.
    The expenditure of money in making improvements on land by the holder of the legal title is some evidence tending to show that he is the beneficial owner.

      3. Same — Acceptance op Lease.
    The acceptance of a life lease of land, containing a provision for re-entry for breach of condition, is a recognition by the lessee that the lessor is the true owner.
    4. Same.
    And declarations by the lessor that the land is to belong to the children of the lessee after the latter’s death do not tend to i break the force of such recognition.
    5. Same — Adverse Possession — Lire Tenant.
    The possession of a life tenant cannot be adverse to the remainder-man.
    Appeal from Montcalm; Davis, J.
    Submitted October 10, 1901.
    (Docket No. 35.)
    Decided June 17, 1902.
    Bill by Adah Hamilton and others against Paul Gr. Wickson and others to quiet title. From a decree for complainants, defendants appeal.
    Beversed.

      N. O. Grisioold, for complainants.

      Lemuel & William K. Clute, for defendants.

       Rehearing denied October 18, 1902.

   Montgomery, J.

The complainants are respectively the widow and children of John Hamilton, deceased. The defendants are executors of the will of Norman Hamilton. John and Norman Hamilton were brothers. In 1847 a patent was issued to Norman Hamilton for 80 acres of land in Montcalm county, and in 1856 the title to an adjoining 40 was vested in Norman by deed of conveyance from Daniel Swift. The 80 was, of course, wholly unimproved when title was acquired from the government, and the 40 purchased from Swift was but partially improved when purchased. John Hamilton, with his wife and family, went upon the land soon after its purchase, and continued to occupy it up to the time of his death, in 1891. The terms under which he occupied are the subject of this controversy. In May, 1870, Norman visited the home of John at the premises in question, and at that time a life lease was executed to John and his wife, Adah, which continued the estate to the survivor for life. The rent reserved was nominal ($1 per year). The lease contained a forfeiture clause as follows:

“And it is expressly understood, declared, and agreed by and between the parties hereto, and these presents are made upon the express condition, that the term hereby created shall not in any case be assignable by the said parties of the second part, or either of them, or by the survivor of them, nor shall the same be taken in execution, or be mortgaged, pledged, or in any way aliened; and that in the event of the said term hereby granted and created, or the said demised premises, being assigned, mortgaged, pledged, or in any way aliened, sold, or taken in execution, or the said parties of the second part, or either of them, or the survivor of them, becoming bankrupt or insolvent, or in case of the nonperformance of the covenants aforesaid, that then, in either or any of such case or cases, the said term or estate hereby created or intended so to be shall immediately cease and determine, and these presents become void, and the said demised premises at once revert to the said party of the first part, his heirs, executors, administrators, or assigns, and he or they be thereupon at liberty to enter upon said demised premises, either with or without formal demand for possession thereof, and the same to have again as of his or their forever estate, notwithstanding the said parties of the second part, or the survivor of them, may still be alive, anything herein contained to the contrary notwithstanding.”

Norman Hamilton died in 1874, leaving a will, which contained the following provisions:

“The farm and lands of which my brother John and his wife, Adah, hold a life lease from me, after the decease of the survivor of them, I give and devise to the then living sons of my said brother John equally, share and share alike. * * * But I hereby declare and direct that the said above-mentioned devises of my said lands in the said State of Michigan shall not take effect until after the decease of my said daughter without lawful issue; nor shall such devises prevent or be a bar to my said executors and trustees, or the survivor or survivors, successor or successors, of them, from selling, disposing of, and conveying all of my said lands in the State of Michigan of which my said brothers, John, Ezra, and William, and their respective wives, do not hold life leases from me.”

The daughter referred to is still living, and has issue. In 1888, John Hamilton and wife gave a deed of a 50-foot strip of the land to the Toledo, Saginaw & Muskegon Railway Company for a railroad. The executors, claiming that the covenant to keep in repair and the condition against alienation had been broken, .gave notice of the termination of the tenancy, and instituted an action in ejectment. Complainants thereupon filed this bill to stay proceedings in ejectment. The bill recites the facts above set up, and avers that the consideration for the purchase of the land originally was furnished by John, and that Norman held the land solely in trust for John and his family, and never had any equitable interest therein. As to the life lease, the bill avers:

“Your oratrix and orators further show unto the court that on the 25th day of May, in the year 1870, the said Norman Hamilton visited the said John Hamilton at his said home in Fairplains, as he had frequently done before, and then proposed, during the course of their visit, that he would secure to your oratrix, Adah Hamilton, a life estate in said lands if she should survive the said John Hamilton, but would hold the title of such lands in such shape that the said John Hamilton could not, under any circumstances, incumber or convey the same, so as to make your oratrix absolutely certain that she would have a home on said lands, and a right to the use of the same, during the years that she might survive the said John Hamilton; that your oratrix was anxious to be made as safe in such event as possible, for the reason that she had then, and has had ever since, the personal charge and burden of maintaining the said John Milton Hamilton, her son, as aforesaid; and having full faith and confidence in the said Norman Hamilton, and believing that whatever measure he suggested would be wise and prudent, and would be carried out by him in perfect good faith, she accepted the proposition then made by the said Norman Hamilton, to the effect that the said Norman Hamilton should execute to the said John Hamilton and your oratrix, Adah Hamilton, jointly, a. life lease of said lands, reserving to the said Norman Hamilton one dollar per year as the rent therefor; and that such life lease was then and there executed, at the request of the said Norman Hamilton, and by him signed, and signed also by tbe said John Hamilton and your oratrix, but was never acknowledged as a conveyance, and has ever since then been in the possession of your oratrix.
“Tour oratrix and orators further show that neither said John Hamilton nor your oratrix understood or supposed or believed that the papers so executed could or would be used at any time in the future as evidence of the ownership of said Norman Hamilton in the lands first above described, or that it would have that effect, or hinder or embarrass them in any way; and were assured over and over again by the said Norman Hamilton, at the time it was made, that said life lease would not change their relationship or affect the rights of any one in any way whatever, except to secure to your oratrix the entire right to use and keep said lands for the years that she might survive the said John Hamilton, and that, if she was thus secured, then the said John Hamilton could not, in any way, by will or otherwise, deprive your oratrix of such exclusive use of said lands during such period; and were repeatedly assured by said Norman Hamilton that said lands were theirs and their sons’ after them, but he wanted only to protect your oratrix and her sons from any profligacy or mischance on the part of said John Hamilton.”

The bill also sets up adverse possession. The defendants answered, denying adverse possession, alleging title in the executors, asserting the breach of the conditions of the lease, and praying a decree quieting title. The circuit judge gave a decree for complainants, and defendants appeal.

It is clear that the claim that a trust was created by the original conveyance to Norman cannot be maintained. The statute (3 Comp. Laws, § 8835) expressly declares that when a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, but the title shall vest in the alienee in such conveyance, subject only to the provisions of the next section, which relates to creditors. No case could be imagined in which the rule of this section could have more direct application. And the case also illustrates the wisdom of the enactment. After the lapse of all these years, a feeble attempt is made to impress a trust upon these lands by testimony tending to show that the consideration was furnished by John Hamilton. It is possible that on this record, and in the absence of the evidence afforded by the life lease, the force of which will be hereinafter referred to, there may be a slight preponderance in favor of this claim. But the lips of Norman Hamilton are sealed in death. The statute was enacted to meet such a case. It should be added that Norman Hamilton is shown to have expended some money to assist in making improvements on the land, which is some testimony, in addition to the fact that the title stood in him, to show him the beneficial owner. The most important fact in the case, however, is the execution of the life lease in 1870. This is, in terms, a plain, unequivocal recognition of Norman Hamilton as the true owner. Nor are we impressed with the effort to render this valueless by parol testimony. Its terms are unambiguous, it appears to have been made upon full consideration, and the declarations of Norman that the farm was to belong to John’s children after his death, if made, import no more than that he intended to convey the remainder to them, by will or otherwise. Certainly all parties must have understood that he had not done so by the lease. There is no evidence to sustain a charge of fraud in securing the execution of the lease.

There was no adverse possession. The relations of the parties preclude this claim. 1 Am. & Eng. Enc. Law (2d Ed.), p. 807.

It seems not to be contested that, if the lease is a subsisting, binding agreement, its covenants have been brokén in such manner as to entitle the remainder-men to reenter.

It follows that the decree must be reversed, and a decree entered here for defendants, with costs of both courts.

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


text:
    LEGGETT v. DAVISON.
    1. Wills — Construction—Advancements.
    A will provided that all sums due to the testatrix from any of her children at her death should be deducted from their share of her estate, and in another clause stated that the share of a' certain son was to be lessened to the extent of a specified sum which had been advanced to him; both clauses expressing an intention to forgive all ‘ ‘ interest unpaid ” at her death. Held, that the amount received by the son was treated by testatrix as a subsisting indebtedness; that it was her intention that so much of the sum should be deducted from his share as should remain unpaid at her death; and that it was competent for the son to show that the obligation had been discharged by gift from the testatrix.
    2. Gifts — Forgiving Indebtedness — Evidence.
    The forgiving of a debt is sufficiently shown by the act of the creditor in canceling the evidence thereof, and returning it to the debtor, or, in case of its loss, by the delivery of a writing reciting that fact, and declaring the indebtedness discharged.
    Error to Oakland; Smith, J.
    Submitted April 8, 1902.
    (Docket No. 3.)
    Decided June 17, 1902.
    Appeal of William H. Leggett from an order of the probate court allowing the final account of Darius J. Davison, as executor of the last will and testament of Eliza S. Leggett, deceased. From a judgment for contestant, the executor brings error.
    Affirmed.

      Walker & Spalding, for appellant.

      Bowen, Douglas & Whiting, for appellee.
   Montgomery, J.

The will here involved contains the following:

“It is my will that all sums of money that may be due me from any of my children at the time of my death be deducted from their share of my said estate, but that the interest due and unpaid at such time be considered as canceled and be not deducted.
“The share of my said estate here given to my son William is subject to advances heretofore made to him, and amounting in all to eleven hundred and fifty-five dollars ($1,155.00). I wish that all interest on this sum that is unpaid at the time of my death be not charged against him, but that the principal sum only be deducted. This sum he having already had, his portion of my estate will be lessened to that extent.”

The indebtedness mentioned was evidenced by two notes, one for $955, originally secured by a mortgage, which had been discharged before the making of the will, the discharge stating that “said mortgage, given to secure$955, is fully paid, satisfied, and discharged.” The amount of the other note was $200. The undisputed testimony showed that, after the making of the will, the testatrix forgave both debts, returning to William H. Leggett his note for $200, with the signature torn off, and the statement on the back, ‘ ‘ This note has been paid, ” signed by testatrix, and writing him a letter clearly indicating that she forgave the indebtedness evidenced by the $955 note, though she could not find the note. The circuit judge ordered this indebtedness from William H. Leggett to be stricken from the list of assets of the estate, and that William H. Leggett share equally with the other beneficiaries in the distribution of the estate. The executor appeals.

It is appellant’s contention that, by the terms of the will, a specific sum is to be deducted from the share of William to cover an advancement, and that the terms of the will cannot be changed except by a compliance with the statute of wills. This conclusion would be unavoidable if a proper construction of this instrument should be held to exclude the idea of a current indebtedness from William to the testatrix. But we do not so construe the instrument. The two clauses should be read together. From the two clauses it is apparent that the testatrix treats the $1,155 advanced or loaned to William as a subsisting indebtedness, and intended that so much of the' principal sum as remained unpaid at her death should be deducted. The word “unpaid,” as applied to this indebtedness and used in this clause, means “remaining due.” It would in no way conflict with the terms of this will to «how that the indebtedness had in fact been paid. We think it was also competent to show that the obligation Lad been discharged in any other manner, as by a gift. In re Bowman, 38 Pittsb. Leg. J. (N. S.) 413; Webster v. Gray, 7 N. Y. Supp. 266. That it was competent to show that testatrix had made a gift by an acknowledgment and cancellation of the instruments evidencing indebtedness, see Carpenter v. Soule, 88 N. Y. 251 (42 Am. Rep. 248); Gray v. Barton, 55 N. Y. 68 (14 Am. Rep. 181); Green v. Langdon, 28 Mich. 221; Holmes v. Holmes, 129 Mich. 412 (89 N. W. 47). When this indebtedness was thus canceled it remained no longer unpaid, and was not unpaid indebtedness at the date of testatrix’s decease.

The order appealed from is affirmed, with costs to be paid from the estate.

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


author: Moore, J.

text:
    HAMMOND v. EDISON ILLUMINATING COMPANY OF DETROIT.
    ‘Corporations — Increase op Capital Stock — Subscriptions — Rights op Subsisting Stockholders.
    Where a manufacturing corporation increases its capital stock under 3 Comp. Laws, § 7038, subd. 4, an existing stockholder is entitled to subscribe for his pro rata share of the increase at par, notwithstanding any attempt on the part of the other stockholders to set a premium on the new stock.

      Certiorari to Wayne; Donovan, J.
    Submitted April 8, 1902.
    (Calendar No. 19,278.)
    Decided June 17, 1902.

      Mandamus by Charles F. Hammond to compel the Edison Illuminating Company of Detroit to issue to relator certain shares of its corporate stock. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      Thomas A. JE. Weadock, for relator’.

      John H. Bissell, for respondent.
   Moore, J.

This statement of facts and the claims of the parties is taken from the brief of counsel for respondent:

The petition asked for a writ of mandamus requiring the Edison Illuminating Company of Detroit to issue to the relator 27 shares of the common capital stock at par, for which he has subscribed and tendered to the company the par value, $25 for each share. The shares so claimed are a part of an increase of the common capital stock of said company voted at a recent stockholders’ meeting, and the amount to which the relator would be entitled as his proportionate share; he being a stockholder of the company. The meeting at which the increase of stock was voted was the regular annual stockholders’ meeting of the Edison Illuminating Company of Detroit, held on the 27th day of January, 1902, in the city of Detroit. The notice of said meeting was in accordance with the by-laws of the corporation, and contained an express statement that a proposal to increase the capital stock of said company from $900,000' par value to $1,000,000 would be submitted to said stockholders for action. Of the 36,000 shares of said company’s stock outstanding, 28,349 shares were represented at the meeting, and the affirmative vote on the resolution to make the increase of stock was 27,849 shares, which is more than two-thirds. The relator’s 140 shares were voted in the negative, and 360 shares did not vote, as the proxy was limited to election of directors.

The action taken at the stockholders’ meeting to which the relator objects was:

“That said new stock be offered to the present stockholders for subscription at the price of $31.35 per share (which is a premium of 35 per cent.), to be paid for on or before March 1, 1903, and that such of said stock as is not subscribed by the present stockholders on or before the 15th day of February, 1903, be sold by the officers to new stockholders, for the best interests of the company. ”

It is conceded relator was entitled to 37 shares of the increase, that he made a lawful tender of the par value of the shares to the company within the time prescribed by the action of the stockholders, and that the tender was refused because it did not comply with the requirements of the stockholders’ action.

The other facts set up by the answer are that on the 37th of January, 1903, the Edison Illuminating Company of Detroit owed the sum of $138,537.78 upon bills payable. This indebtedness represented money borrowed from time to time to pay for new machinery purchased and installed in its plants, in improvements of various kinds upon said plants, and in the extension of the company’s lines, both underground and overhead, in the city of Detroit. Such indebtedness was necessarily incurred to increase the company’s manufacturing facilities, and the extension of its lines, to provide for the natural increase of its business. Such increase of plants and facilities is a part of the capital investment of said company, and required the proposed increase in the company’s capital stock to provide, substantially, for the indebtedness so incurred. The company has no issue of bonds or other outstanding obligations except such temporary loans, but has always provided for extensions of its plant and lines by increasing its capital stock as the growth of its business required.

The sole question in the case is whether a stockholder, under such circumstances, has a right to subscribe for his proportionate part of the increase of the company’s capital stock at par; or, in other words, whether two-thirds, the ■statutory majority, of the capital stock, legally represented •at a meeting duly called for that purpose, can, under the fourth subdivision of section 2 (§ 7038) of chapter 188, 2 Comp. Laws, provide and require that the shares of stock representing the increased capital may only be subscribed for by the present stockholders at a premium above par, not exceeding the market value of the stock. The relator •claims the right to subscribe for his proportionate part at par, and that the action of the stockholders fixing the price of purchase at a premium is an invasion of his rights, and that he is entitled to a writ of mandamus requiring the company to accept his tender, and issue to him 27 shares on his paying par therefor. The repondent’s position is that, under the Michigan statute cited above, the body of stockholders have abundant authority, in voting the increase of the capital stock, to fix a reasonable time and manner in which the stockholders shall exercise their right of subscribing for their proportionate shares, and that so long as all stockholders are treated alike, so that no one secures an advantage over another, they can fix (within reasonable limits, — say, under market value) the price at which the stockholders’ right of subscription shall be exercised. Respondent also claims that a corporation has rights distinct from the rights of the individual stockholders, which should be protected in taking action for increase of capital. When the proper action has been taken under the statute, and the increase of capital is ready for subscription and allotment, it is the property of the corporation, which is to be sold for the purpose of raising money to discharge the indebtedness of the corporation, or to purchase property to be used by the corporation in the conduct of its business and the exercise of its legal functions. The payment of such debt or the purchase of such property is for the common good of the company and all the shareholders, and it is to the advantage of all interested that the stock shall be sold for as near its market value as it may be.

The question involved has not been passed upon by the courts in this State. In Tayl. Priv. Corp. § 569, it is said:

“If the capital stock is increased by the proper authorities, the right to take the additional shares vests in the shareholders pro rata. This right may be waived; but the directors cannot deprive a shareholder of it, nor burden it with conditions unauthorized by the charter or enabling act, — as, for instance, the payment of so much per share for the privilege of subscribing. Accordingly, when a corporation is issuing new stock generally, and refuses to issue to a shareholder his due proportion, he can compel it to do so by a suit in equity; at least so long as there remains stock undisposed of.”

In 2 Thomp. Corp. § 2094, it is said:

“Where the corporation increases its capital stock, or ■declares and issues what is sometimes called a stock dividend, the new stock must be distributed ratably among the subscribers to the old stock, or else sold to create a fund which inures to the common benefit. Each stockholder, it has been held, has a right to the opportunity to •subscribe for and take the new or increased stock in proportion to the old stock held by him; so that a vote at a stockholders’ meeting directing the new stock to be sold, without giving to each stockholder such an opportunity, is void as to any dissenting stockholder. Some observations of the court in support of this conclusion deserve to be quoted. Gilfillan, C. J., said:
“ ‘When the proposition, that a corporation is trustee of the corporate property for the benefit of the stockholders, in proportion to the stock held by them, is admitted (and we find no well-considered case which denies it), it covers as well the power to issue new stock as any other franchise or property which may be of value, held by the corporation. The value of that power, where it has an actual value, is given to it by the property acquired and the business built up with the money paid in by the subsisting stockholders. It happens not infrequently that corporations, instead of distributing their profits in the way of dividends to stockholders, accumulate them till a large surplus is on hand. No one would deny that in such case each stockholder has an interest in the surplus, which the courts will protect. No one would claim that the officers, directors, or majority of the stockholders, without the consent of all, could give away the surplus, or devote it to any other than the general purposes of the corporation. But when new stock is issued, each share of it has an interest in the surplus equal to that pertaining to each share of the original stock; and if the corporation, either through the officers, directors, or a majority of stockholders, may dispose of the new stock to whomsoever it will at whatever price it may fix, then it has the power to diminish the value of each share of old stock by letting in other parties to an equal interest in the surplus, and in the good will or value of the established business.’ Jones v. Morrison, 31 Minn. 140, 152 (16 N. W. 854).”

Section 2097 reads:.

“An early case in Massachusetts [Gray v. Bank, 3 Mass. 364 (3 Am. Dec. 156) ] holds that a stockholder in a bank that is authorized to commence business with one amount of stock, and to increase the amount afterwards, is entitled to subscribe for and hold the additional stock in proportion to his original shares; and the bank is liable to him if its officers, or the corporation, refuse to allow him thus to subscribe therefor; and the measure of damages will be the excess of the market value above the par value of the number of shares to which he was entitled, with interest on such excess.”

Section 2098 is as follows:

“ From this principle it also follows that, where there is a statute permitting corporations to increase their capital stock by increasing the number of their shares, which shares are to be allotted pro rata to the stockholders according to their respective interests, it is not competent for the corporation to charge a bonus to the shareholders who receive the new shares in distribution, and that equity should enjoin the company from refusing to allow a stockholder to receive his allotment at par without paying a bonus.”

See, also, 2 Beach, Priv. Corp. § 473; 2 Clark & M. Priv. Corp. § 408; 1 Cook, Corp. § 286; 1 Mor. Priv. Corp. § 454; Jones v. Morrison, 31 Minn. 140 (16 N. W. 854); Gray v. Bank, 3 Mass. 364 (3 Am. Dec. 156); Cunningham’s Appeal, 108 Pa. St. 546; Dousman v. Smelting Co., 40 Wis. 418; Jones v. Railroad, 67 N. H. 234 (30 Atl. 614, 68 Am. St. Rep. 650); Eidman v. Bowman, 58 Ill. 444 (11 Am. Rep. 90); Dawson v. Insurance Co., 5 Ry. &Corp. Law J. 154; State v. Smith, 48 Vt. 266. It is also said, “Any stockholder may sell his right to subscribe for his proportion of the new stock.” 1 Cook, Corp. (4th Ed.) p. 558; Jones v. Railroad, 67 N. H. 234 (30 Atl. 614, 68 Am. St. Rep. 650); Electric Co. of America v. Edison Electric Illuminating Co., 200 Pa. St. 516 (50 Atl. 164).

It would seem from these authorities that the right to subscribe for any increase of stock at par if he desires to do so, or to sell that right if he- does not desire to exercise it himself, is one of the rights acquired by the stockholder when he becomes a subscriber to the stock. If the business is profitable, the stock may be worth much more than par. If it is, it becomes so because of the investment and use of the money put into the business by the original stockholders, and we can see no hardship done to any one when this fact is recognized. Of course, if the original stockholder does not avail himself of his right, either by exercising it within a reasonable time or giving to some one else the right to do so, the corporation may reap the advantage of his failure to do so. Notwithstanding the zeal of the very able counsel engaged in the case, our attention is not called to an authority which holds that an original stockholder is not entitled to his pro rata share of stock upon tendering its par value. We have been unable to find such an authority.

The judgment of the court below in issuing the writ of mandamus is affirmed.

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


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    HURON LAND CO. v. DAVISON.

    1. Vendor and Purchaser — Reservation of Timber — Construction.
    Where one sells land, reserving the timber thereon, the reservation is of trees then suitable for use as timber.
    8. Same — Time of Removal.
    Where, in such case, nothing is said as to time of removal, the timber must be removed within a reasonable time.
    3. Same — Forfeiture—Notice.
    But a failure to remove the timber will not defeat the reservation and give title to the grantee, unless the grantor has had notice to remove, and a reasonable time to comply.
    Error to Alpena; Emerick, J.
    Submitted April 8, 1902.
    (Docket No. 15.)
    Decided June 17, 1902.
    Trover by the Huron Land Company, Limited, against Samuel A. Davison. From a judgment for part of its claim, plaintiff brings error.
    Affirmed.
    Plaintiff became the owner of certain lands by deed from George N. Fletcher, executed November 7, 1885. The deed, after the granting clause, contains the following words: “Reserving all pine and hemlock timber.” The deed was silent as to time for removal. On March 1, 1900, the executors of Mr. Fletcher’s estate sold to defendant “all the hemlock timber, down, standing, and cut into logs,” on said land. Defendant cut and removed some hemlock timber, cedar, and basswood, whereupon plaintiff brought this action of trover to recover the value. The court directed a verdict for the plaintiff for the value of the cedar and basswood, and for the defendant as to the hemlock timber.

      H. K. Qustin (B. M. Thompson, of counsel), for appellant.

      Joseph H. Cobb and Charles B. Henry, for appellee.

      Rehearing denied January 5, 1903.

   Grant, J.

(after stating the facts). Defendant insists that this clause of the deed was an exception, not a reservation, and that the title to the timber remained in Mr. Fletcher and his grantees. It is immaterial whether this be called an exception or a reservation. Mr. Fletcher sold the fee of the land, reserving certain timber standing thereon. This clause did not give him the right to deprive his grantee of the use of the land so long as he saw fit to let the reserved timber stand. The timber reserved was the timber then having a market value and suitable for use; i. e., large enough for use as timber. It did not reserve trees then growing and not large enough for timber, but which would be large enough in the course of 15 or 20 years. To hold otherwise would give the grantor the exclusive control of the land, except as to the timber not reserved. It seems unreasonable that such language should be construed into a permanent right to enter at any time in the future and cut and remove the timber. Where the timber alone was sold, and nothing said as to time of removal, we held that it must be removed within a reasonable time. Ferguson v. Arthur, 128 Mich. 297 (87 N. W. 259). See, also, Andrews v. Wade, (Pa.) 6 Atl. 48; Boults v. Mitchell, 15 Pa. St. 371. Where one sells land, reserving the timber for no other purpose than for removal, we see no good reason why the same rule should not apply. Where is the difference between selling timber to be removed, and selling the land, reserving the timber to be removed, so far as the question of time for removal is concerned ? The reason for the same rule in each case is apparent. The language of the reservation gave the grantor the title to the timber, and the implied right to remove the same within a reasonable time. Such a reservation is vastly different from the reservation or exception of minerals lying beneath the surface, which do not interfere with the complete enjoyment of the property conveyed. A different rule might prevail as to mineral reservations. If defendant’s theory be sustained, one who reserves the title to the timber could forever deprive his grantee of the use of the premises conveyed. Such an exception or reservation would be entirely repugnant to the grant, and would be held void. , An exception or reservation of a portion of the realty for the purpose of removal, and which is situated upon the surface, is very different from an exception or reservation of something designed to remain permanently upon or under the land, and which is not repugnant to the grant.

Counsel for defendant cite and rely largely upon Wait v. Baldwin, 60 Mich. 622 (27 N. W. 697, 1 Am. St. Rep. 551), where, after the granting clause, are the words “excepting timber therein.” If the language used on page 626 of the opinion received the approval of a majority of the court, it would seem to be decisive of this case fa favor of the defendant, for it was there said :

“ Such a right, where 'there are no words in the contract showing a limitation of the time of enjoyment, or within which it shall be exercised, is not revocable; nor can it be terminated at the will of the owner or grantee of the land, nor by notice to remove the timber in a i'easonable time.”

Two justices concurred in the result only, but whether they questioned this point or some other is not shown. Such opinions are not conclusive, unless the opinions show in what points the justices concur, and on what they dissent. * It is evident that upon some points of the opinion the justices were evenly dividéd. We do not, therefore, feel bound by this language of the opinion.

It does not appear that any notice to remove the timber was given by the grantee to the grantor. The record contains no evidence that the grantee either said or did anything to indicate to the grantor thaí he desired possession of the land, and desired him to remove the timber. We think it was the duty of the grantee to so notify the grantor, and that the grantor was entitled to reasonable time after such, notice in which to remove it. Andrews v. Wade and Boults v. Mitchell, supra. The law will not permit the grantee in such a case to obtain the title to the reserved timber without notice to the grantor to remove it. The situation and circumstances may be such that the grantee is not prejudiced or injured by the standing timber. He cannot rest in silence under such circumstances, and thus defeat the reservation. The burden of proof was upon the plaintiff, and, having failed to show any notice, or the equivalent thereof, the judgment must be affirmed.

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


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    NEWMAN v. BAKER.
    Principal and Agent — Payments—Evidence.
    Evidence reviewed, and held to show, without contradiction, that the bank to which defendants made payment for land purchased from plaintiff was acting as the latter’s agent.
    Error to Charlevoix; Chittenden, J., presiding.
    Submitted April 11, 1902.
    (Docket No. 77.)
    Decided June 17, 1902.

      Assumpsit by Austin C. Newman against John S. Baker and Martha R. Baker to recover the purchase price of land. From a judgment for defendants on verdict directed by the court, plaintiff .brings error.
    Affirmed.

      Ira Gr. Mosher, for appellant.

      Fitch & Fitch, for appellees.
   Montgomery, J.

This case involves no question of law. The facts, briefly stated, are that on November 3, 1898, the plaintiff sold to the defendants five acres of land in Charlevoix county. One Saltonstall held a mortgage on that land and other lands for $900. According to plaintiff’s contention, the Bakers were to pay one-half of the interest on the mortgage until such time as they should pay the cash for the land. The defendants’ testimony is to the effect that they were to pay one-half of one month’s-interest, and that this they have paid. At the time of the original negotiations, the defendants paid plaintiff $10’ down. On the 13th of December, a deed was prepared and signed by the plaintiff. In the meantime the defendants had negotiated a loan, and prepared a mortgage running to Osborn, Mills & Master, of Kalamazoo, for $1,000. The parties met in the office of Judge Mayne, where the deed was prepared, and Mr. Baker, Judge Mayne, and the plaintiff then went to the bank of Mr. Buttars, where plaintiff says that he supposed the bank was the one to do the business, to pay the mortgage, distribute the money, and pay the balance to him; but he doesn’t recall whó mentioned going to the bank; that he does not know who paid the money that he was to receive into the bank” but had always understood that Judge Mayne passed in a $1,000 check. He then testifies that the Saltonstall mortgage and note were passed over to him; that he demanded $18, forgetting that he had received $10, and received $17 and 80 odd cents. Mr. Buttars testified that he paid him in all about $80, which would be substantially the amount coming to him. Judge Mayne testifies in corroboration of the testimony of Mr. Buttars. Plaintiff testifies that he afterwards went to the bank and inquired about the balance due, it having been left there by mistake; that the mistake occurred by his not recalling that he had paid the interest on the $900 note, and, as he testifies:

“The interest was already paid, and I left it there and didn’t demand it, as I have already said.
Q. Then your mistake was in paying the bank one year’s interest that had already been paid ?
A. Leaving it there and not demanding it at all, from the thousand dollars.”

He further testifies that he demanded the $18 of the bank, ‘ ‘calculating to leave the interest on the whole note for a year there to pay Saltonstall.” The testimony was undisputed that the Bakers did not receive the money from the bank.

The circuit judge was of the opinion that, under this showing, the plaintiff was not entitled to recover from the Bakers; that plaintiff had acquiesced in the payment of this money to the bank; had himself determined how much he was to receive, and how much was to be applied on his indebtedness to Saltonstall; and that, if any one was liable to him, it was the bank, whom he had, to a certain extent, made his agent to ^receive the money and apply it on the Saltonstall mortgage. We think this the correct inference from the testimony, and, as this is the only question presented by the record, the judgment will be affirmed, with costs.

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


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    DE BOER v. HARMSEN.
    1. Estates op Decedents — Contracts as to Expectancy — Jurisdiction.
    A contract between prospective heirs in relation to their expectancy is void at law, and can only be enforced, if at all, in a court of equity.
    2. Same — Wills—-Agreement to Induce Ancestor Not to Change — Validity—Public Policy.
    A contract between prospective heirs, whereby one agrees to induce the ancestor not to change his will, is valid if the ancestor is fully informed of and assents to the agreement, but otherwise is void as against public policy.
    3. Same — Sufficiency of Declaration.
    The declaration in an action by a testator’s daughter against his son. alleged that, after the making of the will, in which both plaintiff and defendant were beneficiaries, testator called his children together, including plaintiff, and requested that his will be brought to him, stating that he had decided to make a new will, in which he wished to leave plaintiff more money; that defendant then and there promised plaintiff that, if testator did not change his will, he (defendant) would pay plaintiff a certain sum instead of the sum given her by the will; and that plaintiff, relying on such promise, persuaded testator not to change the will. Held:

    (1) Sufficiently to allege that the agreement between plaintiff and defendant was made in testator’s presence, and that he assented to it.
    (2) Not to set up a contract relating exclusively to an expectancy and a division of testator’s property.
    Error to Allegan; Padgham, J.
    Submitted April 22, 1902.
    (Docket No. 112.)
    Decided June 17, 1902.

      Assumpsit by Dena De Boer against Evert Harmsen for services rendered. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.
    This suit is based upon the special count of the declaration, which reads as follows:
    “And for that whereas, also, the father of the said plaintiff and said defendant, Jan Harmsen, in his lifetime, made a last will and testament, wherein it was provided that, among other things, that on his decease, after the payment of certain legacies, the balance and residue of his estate should go to the said Evert Harmsen, defendant herein; and that among said legacies one hundred and fifty dollars was given to the said Dena De Boer, complainant herein.
    “And whereas, just before the decease of the said Jan Harmsen, and during his last illness, he called his children together, and among others the said plaintiff, Dena De Boer, was present; and that the said Jan Harmsen requested that his will be brought to him, and that he desired to make a new will; that he desired to leave inore money to the said plaintiff, Dena De Boer, than one hundred fifty dollars; and the said defendant then and there promised the said p aintiff that if the said will was not destroyed, and if the said Jan Harmsen did not make a new will, that he, the said defendant, would pay the said plaintiff five hundred dollars, instead of one hundred fifty dollars; and the said plaintiff, relying on the promise of the said defendant, and believing that he would keep his said promise, reconciled the said Jan Harmsen to the fact that the said defendant would do the right thing by her, the said plaintiff; and thereupon the said will was not changed, and no new will was made, and soon thereafter the said Jan Harmsen died, leaving the said last will and testament undisturbed; and that the same has been probated according to law; and that the said defendant has been requested by the said plaintiff to keep his promise, and to pay her the sum of five hundred dollars, as he promised her he would; but the said defendant has neglected (although often requested so to do) to pay the said plaintiff any sum whatever; and that all the said plaintiff has received out of her father’s estate has been one hundi’ed fifty dollars, which she has received from the administrator, and the said defendant has paid the said plaintiff no sum whatever; whereas in truth and in fact he is indebted to the said plaintiff in the sum of three hundred fifty dollars, the difference between the one hundred fifty dollars mentioned in said will and the five hundred dollars promised as aforesaid by the said defendant; and thereupon the said plaintiff has been damaged by the conduct of the said defendant in the sum of five hundred dollars, and thereupon she brings this suit.”
    The plea was the general issue. Upon the trial objection was made to the introduction of any testimony, for the reason that the declaration did not state a cause of action. The court sustained the objection, holding: (1) That no consideration for the promise was alleged, as it did not appear that defendant would receive anything from his father’s estate; and (2) that plaintiff’s remedy, if she has any, is in a court of equity.

      Smedley & Comuin, for appellant.

      Diekema & Kollen, for appellee.
   Grant, J.

(after stating the facts). In the statement of the case the attorneys for both parties have traveled outside the record, and made a statement of facts evidently as they expected to prove them. We have nothing to do with the facts except as they are set forth in the declaration. The sole question is, Does the declaration state a cause of action ? Counsel for plaintiff assert that this was a contract made by the defendant to pay the plaintiff $500, including the legacy left her by the will, if she would induce her father not to change his will. Counsel for defendant contend that the alleged contract is one relating exclusively to an expectancy and a division of the property of the ancestor. If it is the former, an action at law would lie; if it is the latter, such a contract is void at law, and can only be enforced, under certain circumstances, in a court of equity, in which case it is essential to show that the ancestor was informed of and assented to the arrangement. Needles v. Needles, 7 Ohio St. 432 (70 Am. Dec. 85); Clendening v. Wyatt, 54 Kan. 523 (38 Pac. 792, 33 L. R. A. 278); In re Kuhn’s Estate, 163 Pa. St. 438 (30 Atl. 215); In re Lennig’s Estate, 182 Pa. St. 485 (38 Atl. 466, 38 L. R. A. 378, 61 Am. St. Rep. 725).

We think the court erred in sustaining the demurrer. While not expressly alleged, we think it a fair inference from the declaration that the arrangement was made in the presence of the testator, and that he assented to it. If this be so, and the proof sustains these allegations, the law interposes no objection to a recovery. If, however, it shall appear by the proof that the father was not fully informed of the agreement, and did not assent to it, the plaintiff will not be entitled to recover. A secret contract made by one heir with, another to induce his ancestor to make a will, or to change or not to change a will already made, is against public policy, and void.

The judgment is reversed, and the case remanded for further proceedings.

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