text:
    IMPROVED-MATCH COMPANY v. MICHIGAN MUTUAL FIRE INSURANCE CO.
    1. Process — Defective Service — Waiver by Pleading to Merits.
    In a civil action, not involving deprivation of liberty, pleading, to the merits, after the denial of a motion to quash for defective service, operates as a waiver of the defect.
    2. Insurance — Soliciting Agent.
    One who, after being informed by the general manager of an insurance company that the company would issue policies-for him on acceptable risks, and would allow him commissions, placed several policies for the company, and collected and forwarded the premiums, will be held to have acted in a particular transaction, in which he solicited insurance for the company, as its agent, and not as the agent of the insured.
    3. Same — Conditions—Facts Known to Agent — Estoppel.
    The provisions of a fire-insurance policy declaring it void if the subject of insurance be a manufacturing establishment, and be operated later than 10 o’clock at night, and denying the authority of agents to waive any condition of the policy except by written agreement duly indorsed, will not avail the insurer as a defense, where the subject of insurance, a factory, is destroyed by fire while being operated after 10 o’clock, if the insurer’s agent who solicited the insurance and delivered the policy understood that the factory was in operation day and night; the insurer, under such circumstances, being deemed to have issued the policy with knowledge of all the facts, and to be therefore estopped from setting up the same as a defense.

      4. Same — Proofs of Loss — Waiver.
    Where an insurance company is informed by the insured of a loss, and immediately answers that the policy has been canceled on account of violations of conditions in the policy, no proofs of loss are necessary.
    5. Same — Evidence of Loss — Division Among Different Classes of Property.
    A judgment against an insurance company for the amount of a policy will not be reversed because the policy covered only the company’s proportionate share of concurrent insurance, in different amounts, upon the several classes of property connected with a manufacturing plant, and the plaintiff failed to show the loss on each of the several classes, if it appears from the undisputed evidence that the loss was total, and was only partially covered by insurance; especially if defendant’s attorney had ample opportunity below to elicit the information from plaintiff’s witnesses, and made no effort to do so.
    Error to Wayne; Carpenter, J.
    Submitted October 25, 1899.
    Decided December 12, 1899.

      Assumpsit by the Improved-Match Company against the Michigan Mutual Fire Insurance Company on a policy of insurance.' From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Bacon & Palmer, for appellant.

      George Gartner, for appellee.
   Long, J.

September 17, 1895, one W. A. Haines, acting as the agent of the defendant company, applied to the plaintiff to issue insurance to it for the amount of $1,500' on its mill property, machinery, etc., situate in the city of Detroit. The defendant company’s office was in the city of Lansing. The application was made out by Haines, but not signed by the plaintiff or any of its servants or agents. In the margin of the application appeared the following indorsement:

“Brokers or solicitors: Please answer the following questions:
“Have you personally inspected this risk?
“A. Yes.
“Is this property profitable to the assured?
“A. Yes.
“ Can you recommend this risk as free from any moral hazard, or anything which would make it undesirable ?
“A. Yes.”

This application, signed by Mr. Haines, was forwarded to the defendant company by Mr. Haines. The defendant company thereafter issued its policy of insurance, dated October 20, 1895, and sent the same forward to Mr. Haines, who delivered it to the plaintiff some time between November 10th and 15th following. The building, machinery, etc., were insured in other companies, and the policy in the present case had indorsed upon it, “ Other concurrent insurance permitted.” The premium was not paid at the time of the delivery of the policy to the plaintiff, but it appears that Mr. Haines gave the plaintiff 30 days in which to pay it. The property was totally destroyed by fire on November 16,1895. This suit is brought to recover the amount stipulated in the policy.

The defendant, with its plea of the general issue, gave notice:

1. That the properly insured by the policy was a manufacturing establishment, and was operated at night later than 10 o’clock, without the consent of the defendant, and that the fire mentioned in the declaration occurred later than 10 o’clock at night, while being so operated, and that, therefore, the policy is void.

2. That the premium on said policy was never paid by, or on behalf of, said assured.

3. That said policy was not delivered to, and accepted by, the assured until after the fire occurred.

4. That no statement or proof of loss under said policy had been made out and served upon said defendant prior to commencement of suit.

The case was tried before a jury, which returned a verdict for plaintiff for the amount of its claim on the policy.

The first question discussed by counsel for defendant in their brief relates to the manner in which the suit was commenced, and a claim that the court below had no jurisdiction. It appears that a summons was issued out of the Wayne circuit court on October 21, 1896, and returnable on November 3d. This summons was returned not served, and on November 10th an alias summons was issued, returnable December 1st. A showing was made by affidavit to the court that defendant had an agent in Detroit who received and delivered policies, and that affiant had good reason to believe he was the agent of defendant for the purpose of receiving or accepting service of process for defendant. On this showing the court made an order fhat the alias summons, with copy of affidavit, be served on such agent,'and a copy be mailed to the defendant at Lansing, and that the same should stand as a valid service ■of the alias summons. Motion was then made by the defendant to quash the summons and service. This motion was overruled, when defendant applied to this court for a mandamus to compel the court below to vacate that ■order. This petition for mandamus was denied, on the ground that the remedy was by writ of error. Michigan Mut. Fire Ins. Co. v. Wayne Circuit Judge, 112 Mich. 270. Defendant thereupon pleaded the general issue, and went to trial upon the merits.

1. It is now contended by counsel for plaintiff that by thus pleading to the merits, and going to trial thereunder, the defendant waived the question of due personal service of the writ by which the cause was commenced. That question is expressly ruled by Manhard v. Schott, 37 Mich. 234, and the cases there cited, in which it was held that pleading to the merits brings one into court, whether lawfully served with process or not, and- that he cannot afterwards object to the manner in which he was brought in. Counsel for defendant, however, cite, to sustain their claim, the case of Warren v. Crane, 50 Mich. 300. But that case was distinguished in Dailey v. Kennedy, 64 Mich. 208, from the case of Manhard v. Schott, supra; and in Burrell v. Richardson, 119 Mich. 592, the same distinction was made, and the claim that no waiver took place by pleading to the merits and going to trial was-limited to cases in which the party is deprived of his liberty. The position taken by the defendant cannot, therefore, be sustained. The parties were properly before the court when the plea of the general issue was filed, and the court had jurisdiction to hear and determine the case.

2. It is contended that Mr. Haines was not the agent of the defendant company, and had no power to waive any of the conditions in the policy, but that he was a mere broker, and acted for the plaintiff in procuring the insurance. This point does not appear to have been made in the court below; but, if it had been, the question is clearly placed at rest by the testimony of Mr. Haines, as follows:

“I received other policies from this company, and delivered them, and collected premiums, and forwarded the premiums, less my commission, to the company. Mr. Garner is the manager of the defendant company, with his headquarters at Lansing, and it was through him that I negotiated the policies. I had a conversation with him prior to the 20th of October, 1895, in reference to my acting for the company. He said to me that he would write policies for me, if acceptable, and allow me a commission, and I placed other policies besides the one in question for the company, probably 15 or 20. I received the policies, delivered them, -and collected the premiums, and forwarded them on. In the conversation I had with Mr. Garner, he said that 30 days would be allowed on payment' of the premium. In transacting my business, it was done by soliciting insurance. I went to the Improved-Match Company’s place of business to see about procuring insurance several times. I knew of their getting some policies through other agents besides myself. My business there was to see whether I could write some insurance for them; and that was the only business I had.”

Under these circumstances, it appears conclusively that Haines was the. agent of the defendant company, and not of the plaintiff. Russell v. Insurance Co., 80 Mich. 412; Kausal v. Insurance Ass’n, 31 Minn. 20 (47 Am. Rep. 776). The rule in such a case and the reason for it is fully stated in Russell v. Insurance Co., supra, by a quotation from the opinion of Mr. Justice Mitchell in Kausal v. Insurance Ass’n.

3. Counsel for the defendant asked the court to charge the jury as follows:

“ It appears from the undisputed facts in this case that the property insured was a manufacturing plant operated during the night-time, and burned while being so operated in the night; and, no written permit to operate the plant during the night being attached to or indorsed on the policy, the policy is void, and your verdict will be for the defendant.”

This request was refused, and the court charged the jury on that question as follows:

“As to the knowledge of the agent that the Improved-Match Company was operating its factory at night, you have heard the testimony concerning that. The policy itself contains this language: ‘ This entire policy, unless otherwise provided by agreement, shall be .void if the insured now has, or shall hereafter make or procure, any other contract of insurance, or if the subject of insurance be a manufacturing establishment, and it be operated, in whole or in part, at night later than 10 o’clock.’ Now, the testimony in this case shows that this establishment was operated at night, and the loss actually occurred at '3 or 4- o’clock in the morning. I charge you, however, •as I have already indicated, that if, at the time this policy was delivered by the agent of the insurance company, he knew that the manufactory was being operated at night, * * * the company is estopped from making this claim; that is to say, the company, under such cir-cu instances as that, must be assumed to have that knowledge, and to make the insurance with it. So that, in disposing of that question, the simple thing for you to determine is whether or not the agent had the knowledge at the time he delivered that policy. If he did, then the policy is valid; * * * if he did not, the policy is void.”

Error is assigned on this charge. It appears that the policy, while being dated October 20th, was not delivered .until some time later. Mr. Anderson, one of the directors •of the plaintiff company, testified that the policy was not delivered until some time from the 10th to the 15th of November; that, at the time he took the policy, he told Mr. Haines they were operating the plant night and day. He also testified that they started the plant the last week in October, but he could not state the exact date. He was then asked, on cross-examination: “It was after you had the talk with Mr. Haines about this policy ? A. Not with the clause in regard to running nights.” It is therefore apparent that the claim of the plaintiff was that the factory was running night and day when this talk was had with Mr. Haines, and that Haines knew it was so running when the policy was delivered. There is some testimony tending to support that claim.

The policy contained the clause referred to by the trial court in its charge, and also provides:

“No officer, agent, or other representative of this company shall have power to waive any provision or condition, of this policy, except such as, by the terms of-this policy, may be the subject of agreement indorsed hereon or added hereto, and, as to such provisions and conditions, no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

It is contended by counsel for defendant that the fact that the plaintiff company, at the time it was negotiating-for this insurance, and while it was building a plant, stated to the agent that it intended to run nights after it got in operation, would not be such notice or knowledge on the part of the agent as would operate as a waiver of this clause by the defendant company. Counsel cite, in support of this contention, Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609, and other cases. In the Davenport Case it appeared that the policy contained a clause of forfeiture for vacancy of the premises, and that the insured, before taking the policy, told the agent of the insurance company that he expected to leave his house vacant for a year or more, and was informed by the agent that it would make no difference. During the vacancy the house was burned. The court said:

“In this case, the vacancy concerning which the parties conversed, if there was any such conversation, was one contemplated in the future, and the stipulation or understanding, if it amounted to anything, was an ex-ecutory contract, intended to form a part of the contract of insurance. This .being so, the doctrine cannot be admitted that any part of the completed contract can rest in parol. The policy was the conclusion of the bargain, and its acceptance would exclude any parol promises inconsistent with it. There is no resemblance between a parol variance of a written contract and a waiver of a condition after it has become binding on the parties.” .

That is not the claim made here by the plaintiff. It is not contended that, had the factory not been running nights at the time the policy was delivered, the agent could permit this to be done, or that he could, under such circumstances, have waived this condition in the policy; but it is contended that when the policy was delivered, and in fact before it was delivered, the agent knew that the factory was running nights, and assented to it, and thereby waived the condition. It was not a promise which contemplated future action in that regard, but the delivery of a policy under conditions then existing. It was a fact then known by the agent of the company, and consequently then known by the company itself. Therefore the right to run beyond 10 o’clock at night was a part of the contract itself, those conditions in the policy to the contrary having been waived by Mr. Haines, as agent of the company. The knowledge of the agent is regarded as the knowledge of the company. Gristock v. Insurance Co., 84 Mich. 166; O'Brien v. Insurance Co., 52 Mich. 131; Copeland v. Insurance Co., 77 Mich. 560 (18 Am. St. Rep. 414); Russell v. Insurance Co., 80 Mich. 412; Steele v. Insurance Co., 93 Mich. 84 (18 L. R. A. 85); Peoria Marine & Fire Ins. Co. v. Hall, 12 Mich. 202. The court was not in error in refusing this request nor in the charge as given.

4. Counsel for defendant contend that the court should have directed the verdict in favor of the defendant because of the failure of the plaintiff to make and serve proofs of loss. It appears that, after the fire, the plaintiff wrote the defendant about it, and that it was a total loss. The defendant company immediately answered that it had canceled the policy, and called attention to stipulations in the policy in reference to running after 10 o’clock at night, and added: “I am informed that your establishment burned at about 3 o’clock in the morning, and while it was being operated.” This was virtually a denial of liability, and no proofs of loss were necessary to be made; but, if any contention could arise over the meaning of this letter, it has been settled by the verdict. The question was submitted to the jury whether there had been a denial of liability by the defendant company.

5. Counsel for defendant asked the court to direct the jury that there was no evidence'by which they could find the amount of the loss sustained by the plaintiff upon each item of property insured. This was refused, and, we think, very properly. The policy states:

■ “ $1,500 — Being 15-140 of the following specific and concurrent insurance, divided to apply as follows:
“ $7,000 — On their three-story brick, gravel-roof building, including foundations, elevator, steam and water pipes, heating pipes, and all permanent fixtures attached thereto, situated on the west side of Bellevue avenue, between Kirby avenue and Frederick street, Detroit, Mich.
“$6,000 — On their fixed and movable machinery of all kinds, with their spare parts and attachments, shafting, gearing, belting, hangers, pulleys, tools, trucks, cases, tables, boxes, electric-light wiring and fixtures, pails, hose, and other apparatus used in their business that is not included with building or otherwise specified.
“$1,000 — On their boiler and engine, and their connections, valves, steam and water pipes, hose, pump, and Huyétt & Smith’s heater and fan, while contained in their brick boiler and engine rooms attached to the above-described building.”

Under the strict rule of law, it was the duty of the •plaintiff to show the amount of loss upon each class of property insured. This might easily have been shown, and was undoubtedly an oversight on the part of the attorney for the plaintiff. In view, however, of the small amount of the insurance, and the undisputed evidence of ■the amount of the loss, which was total, and the estimate placed upon their values by the defendant’s agent in the •application, we do not think it can be said that there was no evidence of the amount of the loss upon each class of property. We the more readily reach this conclusion be'-cause the attorneys for the defendant might easily upon “the trial have cross-examined the witness as to the value ■of the various articles of property destroyed and the loss “thereon. They, however, chose to rest content with the proof, and raised the question afterv/ards only by request to charge. Under these circumstances, we do not think the judgment should be reversed.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    SCOFIELD v. HAIRE.
    1. Partition Fenoe — Inclostjre.
    On a bill to set aside the findings of fence viewers requiring complainant to contribute towards a partition fence on the north and east lines of her property, it appeared that a fence of some kind had been maintained on those lines for some time prior to the action of the fence viewers, but that the fences along the highways on her west and south lines had been taken down eight years before. Held, that complainant’s land was an “inclosure,” within the meaning of 1 Comp. Laws 1897, chap. 83, relating to the maintenance of partition fences between adjoining inclosures.
    3. Same — Apportionment op Cost — Notice op Hearing.
    One who is given no notice of a meeting of fence viewers to determine the amount he should pay towards the cost of a-partition fence is not entitled for that reason to have the entire proceedings, if otherwise regular, set aside, but is sufficiently protected if a new meeting is appointed to determine the amount to be paid by him, and he is given an opportunity to be present at that meeting.
    Appeal from Lenawee; Chester, J.
    Submitted October 25, 1899.
    Decided December 12, 1899.
    Bill by Laura L. Scofield against Albert Haire, H. Blinn Tallman, and Freeman H. Gove to set aside certain proceedings of defendants' as fence viewers of the-township of Tecumseh. From the decree rendered,- complainant appeals.
    Affirmed.

      W. J. Ingersoll, for complainant.

      Wightman & Gillespie, for defendants.
   Long, J.

This bill was filed to set aside and cancel the proceedings of the defendants, as fence viewers of Tecumseh township, in Lenawee county, for the following reasons:

1. That the defendants, as fence viewers, had no jurisdiction to apportion the partition fence, and require the-building thereof by complainant, as, at the time the action was taken by them, the lands of neither the complainant nor of Mr. Henry (who made the petition to the fence viewers) were inclosed with exterior fences, and consequently the proceeding did not come within the provisions of 1 Comp. Laws 1897, chap. 83.

2. That said partition fence, when built, would not complete the inclosing of complainant’s or Mr. Henry’s land.

3. That the finding of the defendants, as fence viewers, does not show that they found the said lands to be inclosed lands.

4. That complainant had no notice of the meeting of' the defendants as fence viewers, and did not attend the same, and hence was deprived of her day in court.

An answer was filed, and the case heard in open court, and the court filed a written opinion, as follows:

‘ ‘ I think the evidence and pleadings in this case fairly show that the complainant, Laura L. Scofield, has a life interest in the twenty and one-half acres in the southwest part of the west half of the southwest quarter of section twenty-nine, at least in the southwest part of the quarter section where the farm of Samuel L. Henry lies; that these pieces of land were used as farms, and had been for years; that there was a fence starting at the point ‘ E ’ on the map that has been introduced in evidence, and marked ‘Exhibit 1,’ running thence east, and thence south, to ‘D,’ in the east and west highway, or the highway that runs in an easterly and westerly direction; that the line fence remained there until in December prior to the calling of the fence viewers; that that fence, in whatever condition it was, remained there until December; that about eight years ago the road fence around this twenty and one-half acres was taken down; that the farm of Mr. Henry is inclosed with line fences on the east to the north road fence, on the south, and the road fence on the west, excepting about twenty rods, just north of the land owned by this complainant. I think that any fair construction of the proof in this case shows that these were farms, occupied as such, and were so inclosed, and continued so, within the law, until this application was made to the fence viewers. I think this twenty and a. half acres was such an inclosure as comes within the statute that permits the calling of the fence viewers to divide a line fence. * * * I think the fence viewers in this case had jurisdiction to act and to partition this line fence.
‘ ‘ That brings us to the other question, where the courts have held that you cannot take a person’s property from him unless you give him an opportunity to have his day in court. As I understand the statute, Mrs. Scofield should have been notified of the meeting of the fence viewers to determine what expense she is liable for, and has a right to be heard upon what amount shall be determined against her, and she should be notified, so that she can appear there at that time, — -at the time the fence viewers meet. It is conceded here, or, at least, the evidence so shows, that there was no notice served upon her, and she had no knowledge of the meeting, and she has never had an opportunity to be heard in court, or before any court that has authority to determine the amount, if any, she should pay. That being true, I think the finding of the fence viewers of the amount she should pay {$46.12) is void. I do not think the proceedings up to that time were void.
“With these views, gentlemen, the court holds that the fence viewers had authority to act, but they had no authority to make that apportionment until they had notified the complainant, and until she had an opportunity to appear before them and be heard. An injunction may issue restraining them from certifying this amount to the supervisor. But they should be permitted to notify her, and set another day for hearing, and allow her to appear before them, if she desires to be heard upon the amount that shall be determined to assess against her premises.”

The jurisdiction of a court of equity to hear and determine this case is not questioned by counsel, and therefore we shall dispose of the case upon its merits.

We think the court was right in finding that the lands were “inclosed,” within the meaning of the statute.

It appears that the complainant was notified of the first meeting of the fence viewers. She appeared, and protested against the proceedings, on the ground that the premises were not inclosed with exterior fences. This was on February 12, 1898. On the 21st day of June following, the fence viewers met again, and made the following finding:

“We, the undersigned, two of the fence viewers of the township of Tecumseh, in the county of Lenawee, having heretofore, on complaint of Samuel L. Henry, examined that portion of the partition fence between the land occupied by said Samuel L. Henry and Laura Scofield, respectively, in said township, and having determined the same to be out of repair and to require building, and having •certified the same to the said Laura Scofield on the 12th ■day of February, 1898, and directing her to rebuild the same within ninety days from that date, and she, the said Laura Scofield, having neglected so to do, and the said Samuel L. Henry having, since the expiration of said last-mentioned time, rebuilt the same, we do, upon inspection thereof, adjudge the said fence so rebuilt as aforesaid to be_ sufficient, and we do hereby certify that we have ascertained the value of such rebuilding by said Samuel L. Henry to be the sum of forty-six and 12-100 dollars, and that our fees for services in the premises amount to two dollars.
“Given under our hands this 21st day of June, A. D. 1898.
“Albert Haire,
“Freeman H. Gove,
“H. B. Tallman,
“Fence Viewers.”

The court below finds that no notice was given to complainant of this meeting of the fence viewers, and hence found, that that finding was void. The record sustains this finding, and there was no error in the conclusion-reached. The complainant was entitled to be heard on the question of the amount which Henry was entitled to receive.

The decree below must be affirmed.

The other Justices concurred.


text:
    LAWRENCE v. MORSE.
    1. Homestead — Tenant in Common.
    A tenant in common may have the benefit of a homestead in the lands held in common.
    2. .Same — Occupancy.
    Occupancy sufficient to support a claim of homestead as against an execution creditor is established by the claimant’s moving household goods to the premises as soon as he becomes vested with the title, and by his sleeping there nights, and taking his breakfasts and his suppers there, although his wife and family were living on other premises owned by her at the time of the levy.
    Appeal from Oakland; Smith, J.
    Submitted October 25, 1899.
    Decided December 12, 1899.

      Bill by Francis P. Lawrence and Phoebe D. Lawrence against George C. Morse and John K. Judd to quiet title. From a decree for complainants, defendants appeal.
    Affirmed.

      A. & 8. H. Perry, for complainants.

      George W. Paclford, for defendants.
   Long, J.

This bill was filed in the Oakland circuit court, in chancery, to set aside a levy and execution sale and to quiet the complainants’ title to one village lot in the village of Oxford, which complainant Francis P. Lawrence claims as a homestead, and which it is conceded is of less value than $1,500. The cause was heard in open court, and a decree rendered below in favor of complainants. Defendants appeal.

It appears that one Minerva Green, an aunt of complainant Francis P. Lawrence, died on May 7, 1898, leaving a will, by which she devised to him and to his sister each an undivided half of the house and lot in question. His wife, Phoebe D. Lawrence, at that time owned a farm, upon which the complainants lived. She seems to have had the management of her own farm. Immediately after the death of Mrs. Green, Francis P. Lawrence moved a quantity of household goods into the house on the lot in Oxford, and stayed in the house nights, his wife continuing to occupy the home farm up to February following, when she, having rented the farm, went to live and make it her home with her husband, in the house in the village. It is the claim of the complainants that when they learned, the year before Mrs. Green’s death, that she intended to give Francis P. the one-half interest in the house, they intended to move into it, and occupy it as a homestead. The testimony on the part of the complainants tended to show that there was an arrangement between the complainants, both before and after Mrs. Green’s death, that the premises in controversy should be their homestead, and it is also claimed that Mr. Lawrence had made an arrangement with his sister to purchase her interest in the property. This levy was made on May 17th, 10 days after Mrs. Green’s death, and while the wife remained on the farm. The court below, in deciding the case, said:

“The only question involved-is whether complainant Lawrence may have a homestead in the land sold upon execution, in which he was a tenant in common with his sister. Counsel for defendants relies upon the case of Amphlett v. Hibbard, 29 Mich. 298. But this case is fairly in conflict with and overruled by the later cases of King v. Welborn, 83 Mich. 195 (9 L. R. A. 803), Sherrid v. Southwick, 43 Mich. 515, and Lozo v. Sutherland, 38 Mich. 168. The only question about which I am in doubt is the one growing out of the facts. Mrs. Lawrence owns a farm, upon which her husband and family have resided with her. 'She testified, in substance, that her home was on this farm when the bill was filed; that, after Mrs. Green’s death, her husband occupied this farm same as before Mrs. Green’s death, except that he went to the village, and stayed overnight; that, the same day Mrs. Green died, Mr. Lawrence said, ‘We will move to the village on this land, and make it a home.’ Mr. Lawrence states, in substance, ‘I took breakfast and supper in the house on this land, staying there overnight, but was not separated from my wife.’ My belief from the evidence is that the necessity of providing a home for this family does not call for the exemption of this village property; that, were there no debts against him, he would not think of leaving the wife’s farm; and that his prompt occupancy of the village property was upon advice, for the express purpose of avoiding its application towards payment of the debt by being in a position to claim it as a homestead. But, notwithstanding this, I think the homestead decisions are liberal and broad enough to give him the exemption.”

It is undoubtedly well settled in this State- that a tenant in common may have the benefit of a homestead in lands held in common. King v. Welborn, 83 Mich. 195 (9 L. R. A. 803), and cases there cited. This proposition is conceded by counsel for defendants; but he contends that no one can claim a homestead in property which is not occupied by him and his family, and that the mere fact that Mr. Lawrence slept in the house nights, while his-wife and family remained on the farm, was not sufficient occupancy to constitute this property a homestead.

We think the findings of fact by the court below are fully sustained by the evidence, and the court very properly reached the conclusion that the parties were entitled to the homestead right claimed. The case is unlike Bowles v. Hoard, 71 Mich. 155. In that case there was no actual occupancy when the levy was made. The conclusion there reached was that the subsequent occupancy was-with the purpose of defeating the levy, the lien having accrued on the premises before there was an actual or potential occupancy. In the present case the complainant occupied the premises from the very day the title vested in him. There was no fraud in his doing this unless it be-a fraud in any case to claim a homestead right as against an execution creditor. This is certainly not the policy of the law. If a debtor is justified in claiming a homestead as against his creditors, it must follow that he is justified, in establishing such right by occupancy.

The decree must be affirmed, with costs.

The other Justices concurred.


author: Moore, J.

text:
    THRONE v. MEAD.
    Sheep-Killing Dog — Right to Shoot.
    Where the owner of sheep is informed that a sheep-hilling dog, which has previously worried sheep belonging to him, is within his inclosure, unaccompanied by its owner or other person, he is justified in having his informer shoot the dog, without waiting to see if it is again going to chase his sheep.
    Error to Hillsdale; Chester, J.
    Submitted October 26, 1899.
    Decided December 12, 1899.
    Case by Lewis Throne against Dennis Mead for killing plaintiff’s dog. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Sampson & Barre, for appellant.

      TV. D. Fast and A. L. Guernsey, for appellee.
   Moore, J.

August 11, 1897, John Barger, at the request of the defendant, shot two dogs, one of which belonged to the plaintiff. Suit was brought by plaintiff against the defendant. From a judgment obtained by him, the defendant has appealed.

The record discloses that plaintiff was the owner of a spayed bitch dog, about 4 years old, which, he testified, he kept chiefly for hunting minks and coons. He says he kept her tied up nights, and a good deal of the time in the daytime. He testified he never knew she worried or killed any sheep. It was shown by some of the witnesses for the plaintiff that the dog was frequently away from home, and among flocks of sheep. One of them testified that, previous to the shooting of the dogs, he had seen them chasing sheep belonging to the defendant. He saw the dog which was shot grab a buck belonging to Mr. Jackson, and soon thereafter the sheep was found dead. It was shown on the part of the defense that, shortly before the two dogs were killed, they killed a buck and several lambs belonging to Mr. Jackson, whose farm adjoined the farm of Mr. Mead, and in July they chased the sheep of Mr. Parker, another neighbor, who drove them away. The defendant had a flock of lambs he had weaned, which he kept west of his house. He saw the dog belonging to the plaintiff chasing these lambs the first week in August, and got his gun to shoot her, but she got away before he could do so. Before the dogs were killed, the defendant had been told about their killing the buck and lambs belonging to Mr. Jackson. On the morning the dogs were killed, their owners were not with them. The defendant did not see the dogs until after they were killed, but his attention was called to the fact that they were on his premises, by Mr. Barger; and when he got the gun he knew it was for the purpose of shooting the,dog that had chased his sheep, .and killed the sheep belonging to Jackson.

It is claimed by counsel for plaintiff that as the dogs had not done, or threatened to do, any damage to defendant’s sheep on the day when they were shot, he had no right to kill them; citing Bowers v. Horen, 93 Mich. 420 (17 L. R. A. 773, 32 Am. St. Rep. 513). An inspection of the case will show it is not in point. If the defendant had shot the dog when he saw her chasing his lambs the week before, he would have acted strictly within the provisions of the statute (2 Comp. Laws 1897, § 5592). Had Mr. Mead notified the plaintiff in writing of what his dog had done to the lambs in August, it would have been his duty to have had the dog killed within 48 hours, and he would have subjected himself to a penalty for a failure to do so. This would have been equally true if Mr. Jackson or Mr. Parker had given him a like notice of what the dog had done to their sheep. The statute does not regard with much favor a sheep-killing dog. When the owner of sheep sees a pair of sheep-killing dogs in his inclosure, unaccompanied by any person, and has caught one of them, a few days before, chasing his lambs, he is not obliged to wait until they have again begun their cruel work, before he can take effective measures to protect his property. ■ Under the undisputed facts in the case, a verdict should have been directed for defendant. See Hubbard v. Preston, 90 Mich. 221 (15 L. R. A. 249, 30 Am. St. Rep. 426).

Judgment is reversed, and no new trial given.

The other Justices concurred.


author: Hooker, J.

text:
    HOLMES v. DEPPERT.
    1. Lost Deed — Proof of Contents — 'Witnesses—Circumstances Affecting Credibility.
    The fact that a defendant, in attempting to give the substance of a deed claimed to have been drawn by him and subsequently lost, indicated at first an insufficient description, but corrected his testimony, upon being recalled, so as to denote that the property was properly described, is no ground for disturbing a judgment based upon the existence of the deed; the circumstance, if suspicious, being for the jury to consider.
    .2. Same.
    In proving the contents of a lost instrument, it is sufficient to prove its substance.
    '8. Same — Conclusions of Witness.
    In proving the contents of a lost deed, witnesses must give the words or the substance of the words; they cannot be asked the “sense ” of the deed.
    4. Real Property — Possession—Constructive Notice.
    Actual possession of land is constructive notice to purchasers of a claim thereto.
    Error to Wayne; Erazer, J.
    Submitted October 26, 1899.
    Decided December 12, 1899.

      Ejectment by Henry G. Holmes against Eva Deppert and others. From a judgment for defendants, plaintiff brings error.
    Reversed.

      George H. Prentis, for appellant.

      O. J. O’Flynn, for appellees.
   Hooker, J.

The plaintiff brought ejectment, and appeals from an adverse verdict. The court left two questions to the jury, viz., whether the widow had a life estate-in the premises, and whether the land described in the declaration was susceptible of location. The plaintiff claims that a verdict should have been directed in his favor. The declaration describes the land claimed as the-undivided one-fifth of that part of the “Lambert-Beaubien Farm,” so called,—

“Described as follows, and being all the land and premises between Illinois street on the south and Leland street on the north, and between Beaubien street on the east and the alley about one hundred feet west from the westerly line of Beaubien street, and being designated on the map of the city of Detroit as lots one hundred and three, one hundred and four, one hundred and five, one hundred and six, one hundred and seven, one hundred and eight, and one hundred and nine, and being known and described as lots one hundred and three, one hundred and four, one hundred and five, one hundred and six, one hundred and seven, one hundred and eight, and one hundred and nine of Miller and Wilcox’s subdivision of out-lots one hundred and eighty, one hundred and eighty-two, and one hundred and eighty-four of the ‘ Lambert-Beaubien Farm,’ so called, or as lots one hundred and three, one hundred and four, one hundred and five, one hundred! and six, one hundred and seven, one hundred and eight, and one hundred and nine of Miller and Wilcox’s subdivision of outlots one hundred and eighty-two and one hundred and eighty-four of the Lambert-Beaubien farm.”

Plaintiff introduced a deed from Eben Wilcox and wife and Alexander Adams to John Deppert, dated July 21, 1868, conveying lots 103, 104, 105, 106, 107, 108, and 109 of the Miller and Wilcox subdivision of outlots 180 and 182 •of the Lambert-Beaubien farm, according to the recorded plat, being on the westerly side of Beaubien, between Illinois and Seward streets; also a deed from Daniel Hand to John Deppert, dated September 18, 1875, conveying lots 103, 104, 105, 106, 107, 108, and 109 of Miller and Wilcox’s subdivision of outlot numbered 184 of the Lambert-Beaubien farm. It was admitted that John Deppert was the owner of the premises described in the foregoing deeds at the time of his death, and that he was the husband of Eva Deppert, and the father of the other defendants. A plat was introduced, showing the division of the farm into outlots, including 180,182, and 184. A deed was introduced from the sheriff of Wayne county to the plaintiff, dated November 7, 1894, conveying John J. Deppert’s interest in lots 103, 104, 105, 106, 107, 108, and 109 of Miller und Wilcox’s subdivision of outlots 180, 182, and 184 of the Lambert-Beaubien farm, according to the recorded plat thereof. The plaintiff also showed that the defendants were in possession of the premises described in the declaration, and this was not disputed. The defendants called several witnesses to prove that the children united in a deed to their mother of all of this property left by John Deppert, consisting of seven lots, and that she had been in possession of them thereafter. Counsel for the defendants also introduced two plats showing Beaubien, Illinois, and Seward streets, 'among .others. According to one of them, the lots between Illinois and Seward streets were numbered from 108 to 114, inclusive; according to the ■other, from 103 to 109, inclusive. These plats contain nothing to show what plats they are, but, assuming them to relate to the same locality, another plat, offered by the plaintiff, indicates that the land between Seward and Illinois streets is upon what was platted as outlot 184. Further light was thrown upon the subject of the location ■of the premises by the testimony of Campau, a surveyor, which showed that the numbering of some of the lots had been changed by the later plat. He also testified that Leland and Seward streets were identical. As all of the testimony was returned, and the foregoing is all there was of it, we have no difficulty in finding that the declaration sufficiently describes the land which the evidence-shews that John Deppert owned, and which these defendants occupy, and the court might safely have told the jury so; and, inasmuch as counsel requested that the jury be instructed that the plaintiff should recover unless a conveyance was made to the widow, we think the jury should, not have been allowed to consider the question of description.

Another important question relates to the alleged deed to the widow. If it is true that the heirs united in a valid deed to the widow, it is manifest that the plaintiff should not have recovered, because not entitled to the possession. The alleged deed was not produced, and there was testimony that it was lost. This authorized the reception of proof of its contents; and, after stating the circumstances-under which it was said to have been made, several witnesses attempted to give the substance of its contents. It is claimed on the part of the plaintiff that some of this-evidence was inadmissible, and that in the aggregate it fell short of proving a valid conveyance. John J. Deppert testified that the deed was agreed upon, and he was to prepare it, which he did, and that all signed it, and it was delivered to the widow. On cross-examination he said it was not witnessed, nor was it acknowledged. On being recalled, he said that he could not give the contents word for word, but that he “kind of copied an old deed, — followed that up a little bit.” The testimony proceeds as follows:

“Q. What was the language ?
“A. ‘This indenture,’ made such and such a date.
‘ We hereby sell, assign, and dispose to Mrs. Eva Deppert, our mother, this property in dispute on Beaubien street, for one dollar and other considerations, for as long as she lives.’ There is about the substance of the words; pretty close to it; I can’t say exactly.”

And the witness, being again recalled, February 8th, was asked on cross-examination to write, as near as he could, a copy of the paper, and he thereupon wrote the following in open court, which is marked “Exhibit A,”' having left the stand for such purpose :

“This is to certify that we, the undersigned, hereby sell and assign to our mother, Mrs. Eva Deppert, all our right, title, interest in and to all of our father’s estate, John Deppert, deceased; said property being situated on the west side of Beaubien street, between Leland and Illinois streets. [Seal.]” (Signed.)

On cross-examination Catherine Deppert said:

‘ ‘ It said that the property was— As long as my mother lived, she had the right of that property. She had the use of it as long as she lived. We all left it to her; all the children.”

And, on re-examination of the witness, counsel for defendants asked the following questions:

“Q. You don’t pretend to say that those were the exact words ?
“A. No, sir.
“Q. That was simply the sense of it?
“A. That is the sense of it.”

And counsel for plaintiff asked that the question and answer be stricken out, as he objected to the witness giving the sense of it, instead of the language; which motion was overruled by the court, and plaintiff duly excepted.

Christopher Deppert said:

“My brother John had a deed made out there, settling the right to my mother as long as she lived; and they all signed their names, and I signed my name, and my brother gave the paper to my mother, and my mother gave it to my sister Kate, and she put it in a box, and that was. the last I heard of it.”

On cross-examination he said that:

‘ ‘ My brother read the paper to us, and it read so as to give my mother the right of everything. I cannot state exactly the words. It read to the effect that everything was owned by my mother; that we were giving her the legal right of everything as long as she lived, or something like that. I cannot give the exact language; I cannot say any more than I have said.”

Elizabeth Blesser said:

“We thought it was no more than right that mother should have it as long as she lived, and my brother wrote out a paper, and we all signed it, to give mother the right of all the property — everything—as long as she lived; and, after we had all signed it, John gave it to mother, and mother gave it to my sister Kitty, and she put it away. I have never seen the paper since that.”

On cross-examination she said she could not give the words, it was so long ago.

Mrs. Eva Deppert said:

“The paper said that everything belongs to mother as long as she is alive. After the paper was signed, John handed it to me, and I gave it to my daughter Kitty, who locked it up in a box, and I have not seen it since.”

On cross-examination the witness said she could read English; that John l’ead the paper to her, and that then she read it over before it was put away; that the paper said, “All what my husband and me was working — what we had — belonged to me as long as I am alive.”

The testimony of John J. Deppert was sufficient to raise a question for the jury, so far as the proof of contents of the writing is concerned. It contained words of conveyance, and it sufficiently described the land, the parties, and the estate. Much of the testimony in relation to this subject fell short of proving the contents of a valid deed. The testimony first given by Deppert was not sufficient in the matter of description, but he subsequently made it so. This is claimed to be a suspicious circumstance, but, if so, the question was for the jury. In proving the contents of lost instruments, it is sufficient to prove the substance of the contents. It is not competent for the witness to give a conclusion as to the effect of the deed. He cannot be asked the sense of the deed. He should give the words or the substance of the words. -The sense of the words would be the substance, and this was what the witness attempted to give. The question is near the line, .and we think that a trial court may properly be strict in •confining testimony to the substance of contents, and preventing the introduction of conclusions.

There is no force in the claim that the plaintiff was a bona fide purchaser without notice, as the possession of Mrs. Deppert was constructive notice.

Some other questions are raised, but we think it unnecessary to discuss them.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. BENNETT.
    1. Forgery —Information—Translation from Foreign Language.
    An information for uttering a forged note which gives a signature thereto in English, while the note was signed in German, should set out that the name was written in German, and give its English equivalent.
    2. Same — Amendment.
    Under the statute of amendments (3 Comp. Laws 1897, § 11922), an information for uttering a forged note which sets out the signature in English, when in fact the note was signed in German, of which the translation given is incorrect, may be amended to cure the defect.
    ¡3. Same — Promissory Note — Provision for-Attorney’s Fees.
    An instrument promising to pay a stated sum, with interest, at a specified date, together with “10 per cent, attorney’s fees for collecting same, to be included in any judgment on tins note, without relief from valuation or appraisement laws, ” while not a promissory note, is subject to forgery at the common law; and an information for uttering such a forged instrument is not invalid because it is misnamed therein as a “ promissory note.”

      4. Same — Evidence.
    On a prosecution for uttering a forged agreement to pay money, admitted to have been signed by the purported makers, but claimed by them to have been altered by respondent before being uttered, it was error ,to permit the prosecution to go into the question of the consideration for the-agreement, and to show respondent’s default with respect thereto.
    Exceptions before judgment from Allegan; Padgham,, J.
    Submitted October 26, 1899.
    Decided December 12, 1899.
    Erasmus Bennett was convicted of forgery.
    Reversed.

      Rodgers, McDonald & Minor, for appellant.

      Charles N. Them, Prosecuting Attorney (Fidus E.. Fish, of counsel), for the people.
   Montgomery, J.

The respondent was convicted of uttering a forged note signed by 11 residents of Allegan county. The note set out in the information reads as follows :

“$400.00. Dorr, Mich., Sept. 16th, 189?.
“Three years after date, we, or either of us, promise to pay to E. Bennett and Son, or bearer, four hundred dollars ($400.00), for value received, with 8 per cent, interest per annum from date until paid, and 10 per cent, attorney’s-fees for collecting same, to be included in any judgment on this note, without relief from valuation or appraisement laws. Julius Rewa. John Snyder. Fred-Snyder. E. D. Bartz. Joseph Getzen. F. O. Gilbert. Gust Genther. Michael Burchardt. John Bieber. Klemp Rodenhesler. Henry Stein.”

But three points are made which require discussion, as-the remaining questions are subordinate ones, which will be sufficiently treated in dealing with the three following: (1) Was there a fatal variance between the instrument-offered and the one set out? (2) Is the instrument set-out a promissory note, within the meaning of the statute defining the instruments which are subject to forgery? (3) Were the respondent’s rights prejudiced by permitting proof of matter irrelevant to the issue, and tending to show that he may have been guilty of another offense, or at least of overreaching, in obtaining the note in question ?

1. As appears by the instrument above set out, one Klemp Rodenhesler appears to be one of the signers. The information so charged. The name corresponding to his on the instrument introduced appears to have been written in German. One Clemens Rotenhesler was called as a witness, and shown to have been one of the signers of the note. No proof appears to have been offered that the German name attached to the note would, when properly translated, read as it was set out in the information. The practice was very loose. The information should have set out that the name was written in German, and have given its English equivalent. 9 Enc-. PI. & Prac. 574. Doubtless, under our statute of amendments (3 Comp. Laws 1897, § 11922), the information is in this respect subject to amendment. See People v. Henssler, 48 Mich. 49. But we refer to it, as the case must go back for retrial.

2. Is the instrument above set out a promissory note ? Respondent’s counsel contend that it is not, and cite Cayuga Co. Nat. Bank v. Purdy, 56 Mich. 6; Second Nat. Bank v. Wheeler, 75 Mich. 546; Conrad Seipp Brewing Co. v. McKittrick, 86 Mich. 191; Altman v. Rittershofer, 68 Mich. 287 (13 Am. St. Rep. 341). These cases must be deemed decisive of the question.

It is further contended, as this instrument is not a promissory note, and as the information counts on it as such, the case should be reversed and the respondent discharged. We do not think this result should follow. The instrument set out at length is such a one as is the subject of forgery at common law, and while the punishment is limited by section 11795, 3 Comp. Laws 1897, the information is not invalid by misnaming the instrument. Harding v. State, 54 Ind. 363; People v. Kemp, 76 Mich. 410.

3. The theory of the prosecution was that the instrument in question had in fact been signed by the purported makers, but afterwards altered before being uttered. The prosecution was permitted to go into the question of the consideration of the agreement, and to show that other concurrent and similar agreements were given for a stallion, a pedigree, and accounts against farmers amounting to about $400, and offered testimony to show that the respondent had promised to leave the pedigree with one Mr. Bartz, and had failed to do so. It is doubtful whether this question was saved by proper exceptions, but, as the case must go back for a new trial, we think it proper to state that, in our opinion, the dealings between the parties leading up to the giving of the note in question, and any default of respondent in respect of .such agreement, should have been excluded, as it was, in effect, putting respondent on trial for another and distinct offense. People v. Pinkerton, 79 Mich. 110.

The conviction will be set aside, and a new trial .ordered.

The other Justices concurred.


author: Grant, C. J. Long, J.

text:
    PEOPLE v. SMITH.
    1. Rape — Age op Consent — Failure to Make Outcry.
    The crime of rape being established, under 3 Comp. Laws 1897, § 11489, by proof of intercourse with a girl under 16 years of age, it is immaterial that the girl made no outcry or resistance.
    2. Criminal Law — Trial—Limiting Argument.
    Under Cir. Ct. Rule No. 24, subd. b, providing that counsel on either side shall be allowed at least a half hour in which to sum up the case to the jury, and that no more than two hours shall be allowed unless the court otherwise orders, the court has discretion to limit counsel in a criminal case to 35 minutes, and to stop them at the expiration of that time.

      S. Same — Character of Respondent — Reputation for Truth and Veracity.
    A respondent is not entitled to present evidence sustaining his reputation for truth and veracity until the same has been attachedly the prosecution.
    4. Rape — Instructions—Denial oJp Guilt.
    The fact that the trial judge, in a prosecution for rape, failed to call the attention of the juipto the testimony of respondent, denying the charges of the complaining witness and of other witnesses, who testified that he had admitted the crime, while instructing them that the testimony of the latter witnesses, if believed, would tend strongly to establish respondent’s . guilt, does not warrant the reversal of a conviction, where no request for such instructions was preferred by his counsel. Long and Moore, JJ., dissenting.
    Error to Montmorency; Kelley, J.
    Submitted October 26, 1899.
    Decided December 12, 1899.
    Silas Smith was convicted of statutory rape, and sentenced to imprisonment for 10 years in the state prison at Marquette.
    Affirmed.
    Respondent was convicted of the crime of rape, under section 11489, 3 Comp. Laws 1897. Absence of consent to sexual intercourse was not necessary; the girl, Carrie Frank, upon whom it was alleged the crime was committed, being under 16 years of age. She was 14 years and 11 months old at the time. Three errors are assigned:
    1. The court erred in instructing the jury, “The law does not require that she should make any outcry or resistance, in order to constitute this crime.”
    2. The court stopped the counsel for the respondent in his argument at the end of 35 minutes.
    3. The court did not charge the jury upon the respondent’s theory, and consequently the respondent did not have a fair trial.

      L. Gr. Dafoe, for appellant.

      Horace M. Oren, Attorney General, and Lewis W. Ostrander, Prosecuting Attorney, for the people.
   Grant, C. J.

(after stating the facts). 1. The first objection is untenable. The crime is complete, under the statute, whether the intercourse is had with force or by-consent. In this case the proof is conclusive that the girl consented, unless it should have been found that she did not possess sufficient mind or intelligence to consent.

2. Cir. Ct. Rule No. 24, subd. 6, provides that counsel upon either side of a case shall be allowed at least a half hour, if it is desired, and that no more than two hours shall be allowed, unless the court otherwise orders. Under this rule the time for argument rested in the discretion of the circuit judge, and we find nothing to indicate that this discretion was abused.

3. In deciding this question, a brief statement of the testimony may be necessary. Carrie Frank was the first witness. Her direct and cross-examination are given in narrative form. After she had been cross-examined at considerable length, the following colloquy took place:

“The Court: Mr. Francis, is this man Marshall here, the justice of the peace?
“Mr. Francis: Yes, your honor.
“The Court: You may have this witness stand aside. Let’s see what he knows about it. I don’t propose to be trifled with by this witness any more. I have extended indulgence here without any reason. This girl is not non compos, in my judgment. You may stand aside. Take a seat down there. Call your other witnesses, and especially that justice. I want to know how he came over there to see about this trouble.”

Mr. Marshall was then sworn, and testified that he was a justice of the peace, that he was requested by the girl’s sister to take her to her father’s home, that he had previously heard the report of respondent’s intercourse with the girl, and that he took the complaint. On cross-examination he testified that he had stated that the girl at first denied the intercourse, because “her folks told me she denied it in the first place, when they first talked to her about it.” One Wellington, with whom respondent was boarding, testified that respondent told him he was going over to his brother’s to board, where this girl was, and for the express purpose of having intercourse with her, and that witness replied, “Mr. Smith, a man of your age ought to be thinking of something else besides trying to ■commit rape on a school-girl.” Two other witnesses testified that respondent voluntarily stated that he had accomplished his object, and had had sexual intercourse with the girl. Opposed to this testimony was the denial of the respondent of his intercourse with the girl, and of the conversations with the other three witnesses.

The only objection that can be urged against the charge of the court is that it failed to call attention to the testimony of the respondent. It is not urged that the charge was erroneous. On the contrary, it was entirely proper that the court should call the attention of the jury to the position of the young girl, and to instruct them that, in weighing her testimony, they should take into consideration her condition, her circumstances of life, and her embarrassing position upon the witness stand, and all cir•cumstances, in determining what credit they should give-to her evidence. He also called the attention of the jury to the impeaching testimony introduced by the respondent, ■and instructed them to weigh it in the light of all the circumstances. It was his duty to instruct the jury in regard to the admissions, and to say to them that—

“If they were made voluntarily and intelligently, they are considered competent evidence, and oftentimes evidence which tends strongly to the establishment of the crime charged, if they are admitted and confessed deliberately, intelligently, and under such circumstances that the party was not laboring under any undue influence.”

The circuit judge closed that part of his instructions by saying that it was the duty of the jury to weigh all the evidence, and determine from that whether the respondent was guilty. He then fully instructed them upon the presumption of innocence, and told them that they should not allow any prejudice or influence of sympathy or favor to weigh in determining the.important question before them. He then said, in closing his instructions:

.“You must take this evidence, and arrive at such a. conclusion as meets the approval of your honest consciences, and determine this question, of the greatest importance to the respondent, and of the utmost importance-to the people; and, when you have weighed this evidence, if your minds are in that condition that you can say that you believe him guilty to a moral certainty, beyond a reasonable doubt, it is your duty to convict, otherwise you must acquit.”

No fault can be found with this charge, unless it be the failure to call the attention of the jury to the denial of the respondent. He had able counsel to defend him, and no request or suggestion was made to the court by him upon-this point. The respondent stood contradicted by four-witnesses. Either he or they were guilty of perjury. There is nothing upon this record, except the statement of the circuit judge, to show that the girl was not of sound mind, and did not fully comprehend the nature of her oath. The statement mhde by the court would operate in-the respondent’s favor, rather than against him. -

The prosecution had not attacked the reputation of the-respondent for truth and veracity, and the evidence-introduced in his behalf upon this point was incompetent* and, upon objection, might have been rejected. It was. not error on the part of the court not to call the attention of the jury to this testimony. While the court might with propriety have said something to the jury about the defense, yet I do not think it was error for which the case should be reversed. Respondent had an able attorney to defend him; and I do not think it can be said that, under-the charge, the jury were misled, or did not understand and fully consider the defense.

I think the conviction should be affirmed.

Montgomery and Hooker, JJ., concurred with Grant, C. J.

Long, J.

(dissenting). Respondent was convicted under an information charging that on the 23d day of October, 1897, he—

“With force and arms, in and upon one Carrie Frank, a female child under the age of sixteen years, to wit, of the age of fourteen years, eleven months, and twenty days, feloniously did make an assault, and her, the said Carrie Frank, then and there feloniously did unlawfully and carnally know and abuse.”

He was sentenced to 10 years’ imprisonment in the state house of correction and branch of the state prison at Marquette.

Carrie Frank was called as a witness, and testified that at that time she lived with Winslow Smith, a brother of respondent; that on the night in question the respondent came to her room and had intercourse with her, while Winslow Smith and his wife were in a bed in the same room, and only a blanket between their bed and her own, and that that was the only time respondent came to her bed; that she said nothing about it to any one until a few days after, when a justice of the peace came to see her about it; that she at first denied it to him and to her mother and sister, but that finally she made the complaint upon which the warrant for the arrest of the respondent was issued. The justice was called, and testified that at first the girl denied the story, but afterwards admitted it, and that he thereupon issued the warrant. The prosecution also called one James Wellington as a witness, who testified that the respondent told him he was going to try to make connection with Carrie Frank, but witness could not state whether he meant married connection or not. Another witness for the prosecution testified that respondent told him that he had had connection with Carrie Frank on Saturday night, and again on Monday morning, in her room. Respondent was called as a witness in his own behalf, and denied that he had ever had intercourse with Carrie Frank. He also denied that he had ever stated that he was.going to have connection with the girl, or that he had stated that he had'had connection with her. The defense also called several witnesses who testified that the respondent’s reputation for truth and veracity was good. The county treasurer of the county testified that the general reputation of the witness James Wellington was bad. Mrs. Smith, the wife of respondent’s brother, testified to the location and condition of the rooms upstairs where the girl slept, and stated that there was only a curtain between her bed and where the girl slept, and that respondent never went to the girl’s room, to her knowledge.

It being made to appear to the court that respondent was unable to employ counsel, the court appointed counsel to defend him. At the close of the testimony the court limited the arguments of counsel to 35 minutes on a side, and, after counsel for respondent had spoken for that length of time, the court stopped him and would allow no further argument. Counsel took exception to this ruling. The first assignment of error is based upon this ruling. We think this was within the discretion of the trial court, under subdivision b, Cir. Ct. Rule No. 24.

We are satisfied, however, that the court was in error in the charge as given, and that under it the respondent did not have that fair and impartial trial which the Constitution provides, — not, however, in what the court said, but in what he omitted to say. After stating to the jury what would constitute the offense which respondent was charged with, he proceeded to detail the circumstances of the case, and what the people claimed, and then referred to the testimony of the girl, the testimony of the two witnésses as to admissions made by the respondent to them, and then said:

“ Did he make such admissions ? * * * Under what circumstances were they made ? If they were made voluntarily and intelligently, they are considered competent evidence, and oftentimes evidence which tends strongly to the establishment of the crime charged. * * * These admissions you have a right to weigh.”

After going over the evidence introduced on the part of the people, the learned judge said further: “You must take this evidence, and arrive at such a conclusion as meets the approval of your honest consciences.” Nowhere in the charge did the court call the attention of the jury to the claims made by the respondent, or to any testimony introduced in his behalf. He was called in his own behalf, and denied emphatically the story told by the girl, and also denied that he had made the claimed confessions. While calling the attention of the jury to the story told by the girl, the court did not refer to the situation of the bed the girl occupied on that occasion, — that it was within ■a few feet of the bed occupied by Mrs. Smith, with only a blanket between the two beds; nor to the testimony of Mrs. Smith, who testified that the respondent did not •come in there, to her knowledge. The charge is one which is easy to be made,, and hard to be defended against. The circumstances under which the complaint was made were somewhat peculiar. The justice who took the complaint drove many miles, and into another county, for the purpose of interviewing the girl and having her make it. At first she denied the whole matter to him and to her mother, but finally, before the justice left, he had taken the complaint, and at once on his return issued the warrant. These were circumstances which might have a strong tendency to strengthen the testimony of the respondent and to weaken the testimony of the girl; and if the court was to dwell at length upon the people’s evidence, which he did, then, in fairness to the respondent, such circumstances as were favorable to him and his theory of defense should have been given, and the attention of the jury called to the testimony given on behalf of respondent. It has many times been held by this court that even in civil cases a party to the case has the right to have his theory of the case submitted to the jury. Wildey v. Crane, 69 Mich. 17. We have not overlooked the fact that no requests to charge were tendered by counsel for the respondent; but counsel had the right to complain,of the charge as given, notwithstanding that fact, for he presumably could not have known beforehand just how the court would submit the case to the jury, or that the court would entirely ignore the respondent’s claims.

The conviction should be reversed, and a new trial awarded.

Moore, J., concurred with Long, J.


author: Montgomery, J. Grant, C. J.

text:
    PEOPLE v. YOUNGS.
    1. Criminal Law — Attempts.
    To constitute an attempt, at common law, something more* than an intention or purpose to commit crime is necessary;, and this is not changed by the statute (3 Comp. Laws 1897, § 11784) prescribing a punishment for one who shall attempt to commit a crime, and in such attempt shall do any act towards the commission of the offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution, of the same.
    2. Same — Attempt to Commit Burglary — Evidence.
    One should not be convicted of an attempt to break and enter a. dwelling upon evidence merely that he left his home, and met, by prearrangement, a supposed confederate at a saloon on the way to the dwelling, and after loading his revolver there, and procuring extra cartridges for it, went to a drug-store and bought chloroform, which, with carpet slippers and the weapon, was found on his person by the officers who arrested him as he came out of the store. Grant, C. J., dissenting.
    Error to Hillsdale; Chester, J.
    Submitted October 26, 1899.
    Decided December 12, 1899.
    Clarence Youngs was convicted of an attempt to break and enter a dwelling, and sentenced to imprisonment for’ two years and six months in the state prison at Jackson..
    Reversed.

      William C. Chadwick, for appellant.

      William H. Frankhauser, Prosecuting Attorney, for the people.
   Montgomery, J.

Two questions present themselves: (1) Does the statute in question change the common-law rule as to what constitutes an attempt to commit an offense ? (2) If not, whether the facts stated show an attempt, as defined at the common law. In my opinion, both these questions should be answered in the negative. The statute, in terms, relat.es to attempts to commit a crime, and, to make the intent still more certain, provides that, before the offense shall be complete, the accused shall do some act towards the commission of such offense. This does not eliminate any of the elements of the common-law offense of attempt to commit crime. On the contrary, it enumerates them. To constitute an attempt, at the common law, something more than an intention or purpose to commit crime is necessary. As was said by Field, C. J., in People v. Murray, 14 Cal. 159:

“Between preparation for the attempt and the.attempt itself there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense. The attempt is the direct movement towards the commission after the preparations are made.”

In Reg. v. Taylor, 1 Fost. & F. 512, the chief baron said:

‘ ‘ The act, to constitute a criminal attempt, must be one immediately and directly tending to the execution of the principal crime,'and committed by the prisoner under such! circumstances that he has the power of carrying his intention into execution. If two persons were to agree to com-' mit a felony, and one of them were, in execution of his share in' the transaction, to purchase an instrument to be used in the course of the felonious act, that would be a sufficient overt act in an indictment for conspiracy, but not in an indictment of this nature.”

See, also, McDade v. People, 29 Mich. 50; Hicks v. Com., 86 Va. 223 (19 Am. St. Rep. 891); Reg. v. McCann, 28 U. C. Q. B. 514; Stabler v. Com., 95 Pa. St. 318 (40 Am. Rep. 653); Com. v. McDonald, 5 Cush. 367;. Griffin v. State, 26 Ga. 493; People v. Machen, 73 Mich. 27; 3 Am. &Eng. Enc. Law (2d Ed.), 266.

The sentence is set aside, and the prisoner discharged.

Hooker, Moore, and Long, JJ., concurred with Montgomery, J.

Grant, C. J.

(dissenting). The respondent was convicted under the following statute:

“Every person who shall attempt to commit an offense-prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution, of the same, when no express provision is-made by law for the punishment of such attempt, shall be punished as follows,” etc. 3 Comp. Laws 1897, § 11784.

The information charges an attempt to break and enter the dwelling house of one Ralph Walker on May 27, 1899. The acts charged are that—

“He, the said Clarence Youngs, came to Hillsdale, Michigan, said Hillsdale, Michigan, being towards the dwelling house of the said Ralph Walker from the home of the said Clarence Youngs, at which place, Hillsdale, he loaded a revolver, and secured other cartridges therefor, and purchased a drug known as ‘chloroform,’ to be used in the commission of said offense, but he, the said Clarence Youngs, failed in the perpetration of said offense,, and was intercepted and prevented in the execution of the same by being arrested.”

The facts shown by the prosecution are these: Respondent lived about nine miles southeast of Hillsdale. Had worked husking corn in the fall of 1898 for Mr. Walker, who lived about 10 miles northeast of Hillsdale. On May 22d one Munson Eoughty met respondent in a saloon in Hillsdale. He proposed to Eoughty to go over to Walker’s and get his money. He stated to Eoughty that Walker was possessed of a considerable sum of money; that he knew where Walker kept it, — in the bureau drawer; and that he would get a pair of carpet slippers and a little chloroform. He fixed the following Saturday night as the time for the commission of the crime, telling Foughty that he would be in Hillsdale on Saturday for that purpose, and requested Foughty to meet him at the saloon. Foughty met him on that day at the appointed place. Respondent had a revolver, went out and purchased some cartridges, and returned to the saloon, and the two went down in the basement of the saloon. Respondent then loaded his revolver, saying, “ That came pretty near killing one man the other night, and I am going to have that money tonight, or it will kill another man.” He asked Foughty if he had a revolver, and Foughty replied that he had. Respondent then went into a drug-store and purchased some chloroform, to be used in the commission of the crime. He had the slippers upon his person, to be used in entering the house. On emerging from the drugstore he was arrested, and the slippers, chloroform, revolver, and cartridges were found upon his person. He further stated to Foughty that he knew where Walker lived; that he would get in through the window and chloroform him. When arrested, he denied having any chloroform, and, when it was found, said that his mother had sent him for it. These facts were not controverted, as respondent introduced no testimony.

It is contended that these acts do not constitute an attempt to commit the crime, but only a preparation, which the statute does not cover. Two things are essential to constitute an attempt, under the statute: (1) The intent to commit the crime; (2) some act or acts which are necessary towards its perpetration. Hochheimer, in “his recent work on the Law of Crimes and Criminal Procedure (section 516), thus defines a common-law attempt:

“Any act in the nature of a direct movement towards the commission of an offense is an attempt to commit the offense. It is sufficient that one step be taken towards the actual commission of the crime; but mere preparation or planning is insufficient.”

Wharton says:

“An attempt is such an intentional preliminary guilty act as will apparently result, in the usual course of natural events, if not hindered by extraneous causes, in the commission of a deliberate crime.” 1 ~WhartPCr. Law (10th Ed.), § 179.

See, also, 3 Am. & Eng. Enc. Law (2d Ed.), 250.

The authorities generally recognize the difficulty in determining what constitutes an attempt under this and similar statutes. How remote the act, coupled with the felonious intent, must be from the consummation of the crime, depends upon the various circumstances of each case. There is no simple and infallible test. 3 Am. & Eng. Enc. Law (2d Ed.), 265. The act need not be the last proximate one prior to the consummation. The felonious intent in this case is clearly established. The acts done were clearly in furtherance of that intent. Whether they were too remote is the sole question. In the early case of Rex v. Sutton, 2 Strange, 1074, the prisoner was held properly convicted for having in his custody and possession two iron stamps, with the intent to impress the scepters on sixpences and to pass them off for half guineas. The prisoner was held properly convicted of an attempt to commit burglary where he was intercepted while going up the steps of a house in the night-time, where he had no legitimate business, and had burglarious tools in his possession. Com. v. Clark, 10 Pa. Co. Ct. R. 444. The statute in that case authorized conviction for an attempt to commit the crime. It contained no language like that in the statute before us. The court commented upon the fact that the prisoner had left the public street, to go upon private property. If he had been arrested in the highway, why would not the attempt have been as complete ? In an attempt to commit arson, it was held that those who were absent, knowing with what intent the others went, and assenting to it, were principals. Uhl v. Com., 6 Grat. 706. Where one procured dies for stamping and imitating coin, but was apprehended before he obtained the metal and the chemical preparations necessary for making them, he was held properly convicted of an attempt. Reg. v. Roberts, 33 Eng. Law & Eq. 553. The chief justice in that case stated that he would not attempt to lay down any rule as to what act done in furtherance of criminal intent will warrant an indictment, saying that he did not see the line precisely himself, but said, “No one can doubt that the procuring the dies and machinery was necessarily connected with the offense, and was for the express purpose of the offense.” Procuring indecent prints, with the intent to publish them, was held an indictable offense, while preserving and keeping them with a like intent would not be. Dugdale v. Reg., 1 El. & Bl. 435. The principle of that case is that procuring is an overt act, while possession alone is not. Where one procured camphene and other combustibles, placed them in his room, solicited another to use them in burning a barn, and promised to give him a deed to land if he would do so, he was held properly convicted of an attempt to commit arson. McDermott v. People, 5 Parker, Cr. R. 102. It is there stated:

“The two important and essential facts to be established to convict a person of an offense, are: First, an intent to commit the offense; and, second, some overt act, consequent upon that intent, towards its commission. So long as the act .rests in bare intention, it is not punishable. ‘Gogitationis pcenam nemo patitur.’ It is only when the thought manifests itself by an outward act in or towards the commission of an offense, that the law intervenes to punish. As we cannot look into the mind to see the intent, it must, of necessity, be inferred from the nature of the act done; and, if that be unlawful, a wicked intent will be presumed. These are fundamental legal principles. - Now, applied to the facts of this case, what do we find? We find that the defendant intended to commit the crime of arson. Indeed, he had committed the offense ‘already in his heart.’ What were the overt acts towards the commission ? He had prepared camphene and other combustibles, and had them in his room, and then he went a step further, and solicited McDonnell to use those combustibles to burn the building, promising him, if he would do so, to ‘ give him the deeds of the place, and assign to him his right in the same.’ We have, then, the fixed design of the defendant to burn this barn, and overt acts towards the commission of the offense, and a failure in the perpetration of it. The offense, then, is fully made out; for the intent to do the wrongful act, coupled with the overt acts towards its commission, constitutes the attempt spoken of by the statute.”

Where the prisoner entered into conspiracy with others, to place a dangerous explosive upon the track of a railroad company, so that it would be exploded by a passing train, had met the other conspirators at the house of one of them, where the bomb was prepared and committed to the prisoner, and the conspirators agreed to meet at half-past 4 o’clock in the morning, at the junction of two streets, for the purpose of immediately proceeding to put their project into execution, and the prisoner had left his dwelling to join his confederates pursuant to the appointment made on the preceding day, approached the place of rendezvous with the bomb in his possession, and was intercepted by the police, he was held properly convicted. The statute in that case provided that “any person who attempts to maliciously place an obstruction upon the track of a railroad,” etc. People v. Stites, 75 Cal. 570. See, also, People v. Mann, 113 Cal. 76. Where one had taken an impression of a key to a warehouse, and prepared a, false key, which he had in his possession, with the intent to break and enter, he was held properly convicted under a statute identical with this. Griffin v. State, 29 Ga. 493.

The cases upon this subject are very numerous, and undoubtedly many might be cited from which it might fairly be inferred that the courts which decided them might hold that the acts in this case were too remote, and constituted merely a preparation, which the law does not recognize and punish as criminal. One of the strongest cases cited is People v. Murray, 14 Cal. 159, where it was held that an attempt to commit an incestuous marriage was not established by an elopement for the avowed purpose, and the request to another to go for a magistrate to perform the ceremony. It was also said that the attempt could only be consummated by engaging the officer to perform the ceremony, with the parties standing before him to take the vows preparatory to the contract of marriage. The statute in that case is not stated in the opinion. Bishop, in speaking of this case, says, “We cannot safely assume that it will be followed by all courts.” 1 Bish. New Cr. Law, § 764. I cannot yield it my assent.

In Reg. v. McCann, 28 U. C. Q. B. 514, three entered into conspiracy to commit burglary. One was kept away by his father, who had discovered their design. The other two (the prisoners) went to within about 14 feet-of the house, stood outside of the fence awhile, and then went away. It might well be held in that case that there was no attempt, on the ground that they had abandoned their intent to commit the crime. The court said:

“The bare fact that the prisoners were seen looking at the house at the distance of 13 or 14 feet is not of itself a crime, and, although it may be said they were near the premises upon the understanding previously entered into, yet there is no evidence of the fact. For all that appears, they may have changed their minds, and, in the absence of their comrade, went there with some other object, or for some other purpose, and not with the intent charged.”

We are also cited to Hicks v. Com., 86 Va. 223 (19 Am. St. Rep. 891). In that case the prisoner was charged with an attempt to administer poison, by soliciting one Laura Long, for a promised reward, to administer the same, and that the poison was delivered to her. The court said, “It was not charged that she agreed to administer the poison, or that she did any act towards the commission of the crime.” On the contrary, she testified that she never did agree to administer it, and never intended to; that she wanted to fool Hicks, because she wanted to catch him, and to let other people know it. One justice dissented.

Under a statute identical with ours, on a charge of an attempt to commit incest, mere solicitation was held insufficient; and the court say:

“The statute must be construed, in cases like the present, to mean a physical act, as contradistinguished from a verbal declaration; that is, it must be a step towards the actual commission of the offense, and not a mere effort, by persuasion, to produce the condition of mind essential to the commission of the offense.” Cox v. People, 82 Ill. 191.

Counsel says that though one may intend to commit a crime, and do many things 'towards its commission, yet he may repent, and the law gives to him a locus poenitentice. But where is this locus ? Is it at the window which he proposes to enter ? or at the gate to the inclosure of the dwelling ? or at the dividing line between the public highway and private property ? How much distance and time does the law give him to repent ? Conversions like that of Paul are rare, especially among criminals. The law will not “o’erleap itself” to find a time and place for repentance, when the criminal has started forth, armed and equipped to carry out his felonious intent. It may refuse conviction when repentance and abandonment are shown, but not till then. The only reasonable and just rule, in my judgment, is that when one has prepared himself with weapons and tools for the purpose of -accomplishing a crime, and has started out to accomplish it, the offense is complete, unless it is shown, as was the case in Reg. v. McCann, 28 U. C. Q. B. 514, that he had abandoned his purpose. It would be difficult, if not impossible, to harmonize all the cases. No two are alike in their facts. In tho case before us, the plan was perfected. All the preparations were made for carrying it out. The respondent left his home, with the revolver and slippers; had traveled nine miles towards the place; had then provided himself with chloroform, and loaded his revolver; had met his supposed co-conspirator at the place of rendezvous. All these acts were done for the express purpose of committing the crime, and he was prevented from the commission by his arrest. I think that the steps taken constitute something more than a bare preparation, and were acts towards the commission of the crime, within the meaning of the statute.

The conviction should be affirmed.


author: Grant, C. J.

text:
    HEILMAN v. PRUYN.
    1. Sale oe Fruit Trees — Breach op Warranty — Damages.
    Where fruit trees are bought to be set out on an agreement that they shall be of certain varieties, or others equally desirable, and, on commencing to bear, they are found to be of an inferior variety, the measure of damages is the value that would have been added to the premises if they had been of the varieties contracted for.
    2. Same.
    In an action to recover damages for selling plaintiff fruit trees of a variety inferior to those ordered by him, it cannot be shown in defense that the breach of contract was harmless for the reason that the trees were winter-killed after the commencement of suit.
    Error to Kent; Grove, J.
    Submitted October 27, 1899.
    Decided December 12, 1899.

      Assumpsit by Albert Heilman against John Pruyn for breach of warranty on a sale of fruit trees. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff purchased of defendant, in 1895, 200 peach trees, and, in 1896, 100 peach trees, under an agreement that they were to be Late Crawfords and Smocks, unless the variety ordered could not be supplied, in which event defendant agreed to furnish- other varieties equally desirable. The trees were furnished, set out, and taken care of. Plaintiff gave evidence tending to show that most of the trees came into bearing in the fall of 1898; that none of them were of the varieties ordered; that there were no Late Crawfords or Smocks, and that they were of an inferior variety, producing small, white peaches, many of them clingstones, and some seedlings; that the fruit was unsalable, and the trees were practically worthless. Plaintiff recovered a verdict and judgment for $300.

      Peter Doran, for. appellant.

      Wolcott & Ward, for appellee.
   Grant, C. J.

(after stating the facts). 1. What is the measure of damages ? This is the principal question. Defendant contends that the rule of damages is the money paid out for the trees, the cost of setting out and caring for them up to the time of the suit, and the use of the land which they were occupying. The court instructed the jury that the measure of damages was the value that would have been added to the premises if the trees had been of the varieties ordered. We think the court announced the correct rule. “The primary purpose of awarding damages is actual compensation to the party injured, whether by a tort or by breach of a contract.” 8 Am. & Eng. Enc. Law (2d Ed.), 546, and note 2. In U. S. v. Taylor, 35 Fed. 484, it was held that:

“In an action for damages in cutting growing timber or trees, the recovery is not limited to their actual value for firewood, turpentine purposes, or for timber or lumber purposes, but the actual injury to the estate by the cutting of the trees; and in determining the question it is proper to show the purpose for which the trees were designed and could have been used.” '

In Stoner v. Railway Co., 45 La. Ann. 115, it was held that the measure of damages for the destruction of fruit trees by fire is not the cost of replacing them, and the value of the care and labor bestowed on them, but the value of the destroyed trees at the date of the fire. The like rule was held in Norfolk, etc., R. Co. v. Bohannon, 85 Va. 293, and in Montgomery v. Locke, 72 Cal. 75. The case of Dwight v. Railroad Co., 132 N. Y. 199 (15 L. R. A. 612, 28 Am. St. Rep. 563), .is an instructive case, and points out the distinction between the measure of damages where forest trees, fully grown, are unlawfully severed from the soil, and where nursery trees .are so severed. In the former case there may be no injury to the freehold, when the value of the trees must furnish the sole measure of damages. In the latter case, when fruit trees are severed, they are of practically no value. In such cases there are two elements of damages: (1) The value of the trees cut, if they have any; and (2) the damage to the realty.

Counsel for defendant cites White v. Miller, 71 N. Y. 118 (27 Am. Rep. 13). In this case cabbage seed was sold, warranted to be genuine Bristol cabbage seed. The seed was not as warranted. It was held that the proper measure of damages was the difference in value between the crop raised from the defective seed and a crop of Bristol cabbage such as would ordinarily have been produced that year. Other cases of this character are cited. Where crops are raised from seeds, and mature in a few months, and the value of the land is not affected thereby, no other rule of damages can obtain. It is different, however, where fruit trees are planted, which will not mature for years, which become a part of the realty, and materially add to its value. The destruction of a crop of cabbage, corn, wheat, or other annuals does not injure the land, and consequently there can be but one rule of* damages. The most of the cases cited by the defendant are cases of this character. The other cases cited involve the question of speculative damages, which is not involved in this case. It is a matter of common knowledge that lands are enhanced in value by orchards of fruit trees. They have a value capable of estimation, for the reason that they usually yield fruit. The case is not one of speculative damages, but of enhanced value by additions to the realty. The rule of damages ought to be, and is, the same where worthless fruit trees are furnished, contrary to the warranty, as where good fruit trees are destroyed by the negligent acts of others. The purchaser has suffered the same damages in each case. Both parties must be held to have contracted with reference to the land in future years, as it would be enhanced by the existence of trees of the kind warranted. The difference between the value of the land with and without the trees is the just measure of damages. 26 Am. & Eng. Enc. Law, 565, note 1.

2. Error is assigned upon the rejection of testimony as to the condition of the trees immediately before the trial, and after the severe winter of 1898-99. The object was to show that the trees, or many of them, had been injured or killed by the severe cold weather after this suit was. brought, and to claim that plaintiff had, therefore, suffered no damage by the failure of the defendant to keep his contract. The ruling of the court was correct. The law does not permit the defendant to avoid his contract because the trees were injured or destroyed by circumstances beyond the control of the parties. The rights of the parties were to be determined by the situation of affairs at the commencement of the suit. If, by the act of God afterwards,' the trees were destroyed, this fact furnished no defense. If they had been valuable trees, and had been injured, through the neglect of the plaintiff, the rule would be different.

Judgment affirmed.

The other Justices concurred.