text:
    MILLER v. McLAUGHLIN. SAME v. WALKER. APPEAL OF HUBBARD.
    1. Mortgages — Foreclosure—Parties—Remaindermen.
    Funds bequeathed to testator’s children for life in equal undivided parts, remainder to his grandchildren or the issue of any deceased grandchild living at the termination of the life estate, were, by order of court, invested in a mortgage, of which the seller guaranteed payment, deeding other lands in security thereof. Held, that the guarantor could not defeat enforcement of the guaranty by objecting that children might yet be born who would have an'interest in the fund, since the court which authorized the purchase had authority to see that the fund reached the proper parties.
    2. Taxation — Inheritance Tax Law — Application.
    The inheritance tax law of 1899 (Act No. 188) has no application to the transfer effected by a will probated in.1865, devising an estate to testator’s four children, each to hold an undivided one-fourth for life, and on the death of each life tenant an undivided one-fourth to go to the grandchildren then living or to the issue then living of any deceased grandchild.
    3. Guaranty — Payment of Mortgage — Enforcement—Conditions Precedent.
    "Where the owner of a mortgage sells it, and, as a part of the transaction, guarantees its payment, he cannot insist that the mortgage security be first exhausted before enforcement of the guaranty.
    Appeal from Wayne; Donovan, J.
    Submitted April 25, 1905.
    (Docket No. 89.)
    Decided September 28, 1905.
    Bills by Sidney T. Miller, trustee, against Joseph R. McLaughlin, Robert J. McLaughlin, Collins B. Hubbard, Anna Georgina Hubbard, George Dingwall, and others, to foreclose certain mortgage securities and by the same complainant against Bryant Walker, trustee, Louise M. Jebb, and the Detroit Savings Bank to enforce a trust. The suits having been consolidated and a decree entered for complainant, defendants Hubbard and Dingwall appeal.
    Affirmed.
    ■ Miller, Smith, Alexander & Paddock, for complainant.

      Willis Or. Clarke, for appellants.
   Moore, C. J.

A reading of the opinions in Re Beecher's Estate, 113 Mich. 667, and Biddle v. Biddle, 117 Mich. 28, may aid in understanding the matters in controversy in this litigation. After the opinion was filed in Biddle v. Biddle, what was known as the “Biddle House Property ” was sold. Some of the funds realized therefrom were by direction of the court invested in the purchase of the securities which are sought to be foreclosed in this proceeding. A history of the securities, taken from brief of counsel, but borne out in the record, is as follows:

“ On March 13, 1893, Joseph R. McLaughlin and Robert J. McLaughlin, defendants in the first of the above-entitled causes, and Charles C. Yemans and Edmund J. Owen, both since deceased, made a bond and mortgage to Margaret Woodbridge to secure payment of the sum of $121,115. * * *
“The mortgage covered a part of private claim 671 in Ecorse, Wayne county, Mich. * * *
“ On July 24, 1895, Margaret Woodbridge assigned this bond and mortgage to Collins B. Hubbard and George Dingwall, who on the following day assigned them to George L. Beecher and Luther S. Trowbridge, administrators of the estate of Luther Beecher, deceased. On the same day, July 25, 1895, Hubbard and Dingwall guaranteed to said administrators, their successors, and assigns, the payment of the bond and mortgage, * * * and to secure this guaranty Hubbard and Dingwall and their wives by warranty deed conveyed to George L. Beecher certain premises in Detroit.
“Mr. Beecher at the same time executed to Hubbard and Dingwall his declaration of trust, stating in substance that Hubbard and Dingwall had guaranteed the payment as aforesaid, and that the lands were conveyed to Beecher as security for said guaranty.
‘ ‘ On December 1, 1896, an agreement was made between Beecher and Trowbridge, administrators, and other parties in interest, including Collins B. Hubbard and George Dingwall, reciting, among other things, the bond and mortgage and the aforesaid assignments and guaranty thereof; that the interests of Edmund J. Owen and defendants McLaughlin were then owned by defendant Louise M. [Owen] Jebb; that the interest of Yemans was then owned by defendant John Y. Moran; that the claim of said administrators upon said bond had been presented to the commissioners on claims against the estate of Edmund J. Owen, deceased, and it was agreed that- said claim against the estate of Owen was thereby withdrawn, and said defendant Louise M. Jebb therewith, delivered to said administrators $47,000 par value of the stock of the Cook Farm Company, Limited, to be held as additional security for the payment of said bond as thereby extended; that said defendants Jebb and John V. Moran thereby agree to pay to said administrators the unpaid amount of said bond, to wit,' $118,394.99, $30,000 on or before July 1, 1898, and the balance on or before July 1, 1900, and interest from September 13, 1895, at the rate of 6 per cent, per annum, payable semi-annually, and that the time of payment of said bond and mortgage was so extended; that the other parties to said agreement executed the same in token of their assent thereto; and that all of the then existing agreements and securities should remain in full force and effect, excepting as modified by said agreement.
“By agreement dated September 9, 1898, made by the parties in interest, including defendants Hubbard and Dingwall, the complainant, Sidney T. Miller, trustee, bought said bond and collateral securities. The said agreement recited the foregoing agreements and guaranty, and further agreed, among other things, that the amount of said bond was, as of September 18,1898, $118,000 of principal, payable July 1, 1900, with interest thereon at the rate of 6 per cent., payable December 13, 1898, and every three months thereafter, until the whole of said principal sum should be paid, all payments to be made at the Detroit Savings Bank; and the time of payment of said bond and mortgage was thereby so modified and extended, and the said defendants Jebb and John Y. Moran thereby agreed to pay the same to the said complainant herein. * ❖ *
“Said agreement also provided that all of the existing agreements and securities should remain in full force and effect, except as modified by said agreement. * * *
“ Later it was arranged to substitute for the stock in the Cook Farm Company, Limited, certain real estate, of said company on the Cook Farm, and accordingly, on December 28, 1900, with consent of parties, including Collins B. Hubbard and George Dingwall, said defendant Bryant Walker, trustee, executed a declaration of trust to the effect that the Cook Farm Company, Limited, had that day conveyed to him certain premises in Detroit, on the Cook Farm, which the said Walker, held in trust, to sell and convey upon the written request of the Detroit Savings. Bank, or of Sidney T. Miller, trustee, or both, the proceeds of such sale to be used: First, to pay all taxes and assessments which might be levied against said lands during the existence of the trust, and to pay all expenses connected with the formation and maintenance of the same. Second, to secure the Detroit Savings Bank for all advances which it might make from time to time to said Jebb for moneys* required for the proper performance of said trust, not exceeding $25,000. Third, to secure to said Sidney T. Miller, trustee, the performance by said Jebb of the agreement of September 9, 1898.
“Said Cook Farm Company, Limited, stock and land were obtained by Mrs. Jebb from the estate of her deceased husband, Edmund J. Owen, one of the makers of the original bond and mortgage in suit.
“On February 24,*1902, Sidney T. Miller, trustee, filed his bill of foreclosure against the lands originally mortgaged, and also the Hubbard and Dingwall lands.
“ To this bill the defendants Anna Georgina Hubbard, Collins B. Hubbard, and George Dingwall demurred on the ground of multifariousness. Their demurrers were-* overruled in circuit court and on appeal. Miller v. McLaughlin, 132 Mich. 234.
“Thereupon the same defendants, Collins B. Hubbard Anna Georgina Hubbard, and George Dingwall filed their plea, which was overruled. The defendants took an appeal to this court, which was dismissed. The defendants moved this court to reinstate the appeal, which motion was denied. Miller v. McLaughlin, 135 Mich. 646.
‘ ‘ George Dingwall then applied to the circuit court to enter a final order overruling said plea. This application was denied, and then said defendant reappealed from the order overruling his plea, which reappeal was dismissed on the motion of complainant. Miller v. Dingwall, Supreme Court File No. 20,397 [no opinion].
“On July 1, 1902, the said Sidney T. Miller, trustee, filed his bill to enforce said trust against said Bryant Walker, trustee, Louise M. Jebb, and the Detroit Savings Bank.
“Such proceedings were taken that both of said causes came on to be heard, and the same were consolidated, and thereupon, on proofs taken in open court, the decree herein was entered.
“From said decree, Anna Georgina Hubbard, Collins B. Hubbard, and George Dingwall now appeal. The said Collins B. Hubbard and George Dingwall also appeal from the order overruling their plea, and the said George Dingwall further appeals from the refusal of the circuit court to make final the order overruling the plea.”

Counsel say in the brief that under said decree a sale of all the lands described therein has been had, resulting in a deficiency of nearly $50,000. The defenses insisted on by the appellants, as stated by counsel, are five:

First. The possibility of unborn heirs to the property in question vitiates the scheme of this litigation in all its branches for lack of parties.
Second. The existence of an inheritance tax as a lien upon all the real property given as security in these cases renders the State of Michigan a necessary party, and it has not been made a party.
Third. The proceedings against these appellants are premature, and can only take place after exhaustion of the remedies which complainant has against the principal debtors.
“Fourth. Certain oral agreements made by the complainant with certain of the defendants, which resulted in extending the time of the principal indebtedness, have entirely released the appellants.
“Fifth. The consolidated cause is a four-fold litigation, with three branches of which the appellants are in no way concerned; but by reason of being improperly joined the entire burden of the defense has been cast upon them, and this improper joinder makes the bill multifarious.”

As to the fifth of these defenses we think the question was settled by the opinion in Miller v. McLaughlin, 132 Mich. 234. As to the fourth defense we shall content ourselves with saying we have examined it, as presented by counsel, and do not think it well taken. The other defenses will be considered in the order in which they are presented.

First. Does the possibility of unborn heirs to the estate of Mrs. Biddle postpone the foreclosure of these securities until some indefinite time in the future, because the possible unborn heirs cannot be made parties ? Counsel quotes from the provisions of the will, and then says in his brief:

“Yet it is apparent from the provisions of the will described above that grandchildren and great-grandchildren might be born subsequent to the partition suit, who, on account of the remainders being contingent, may, when the last child is dead and the effect of the will finally determined, have interests in the Biddle House property entirely unrepresented in the partition. On account of the advanced age of the two surviving children of Eliza E. Biddle, although in law it is always to be considered a legal possibility, it is as a matter of fact improbable that any more grandchildren will be born; but new great-grandchildren are fast appearing in the world, some five or six having already been born since the partition case, one being specified by the witness Miller [the complainant] in his testimony, with the further statement that others existed, he knew not how many.
“ Upon the death of a grandchild who may be parent of any of the lately born great-grandchildren before the death of the two remaining children, it will happen that, when the death of those children does occur, the at present unvested one-half of this property will vest in the great-grandchildren to the ^xtent that their parent, the grandchild, would have taken. In short, the position of the appellants is that both the partition case and the present suit are defective for want of parties, and that no suit can be properly brought of the nature of the present litigation until the entire estate is vested by the death of the remaining children.”

Mrs. Biddle died November 3, 1865, in which year her will was probated. The same question presented here was suggested in Biddle v. Biddle, supra. A reference to the opinion in that case will show that grandchildren and great-grandchildren were before the court. It will show how they were brought in. Parties having the same interest which an unborn heir would have in the estate, should it now come into the world, were before the court then. Their interests were fully represented. The complainant in this case, as trustee, represents grandchildren .and great-grandchildren of Mrs. Biddle. We think the following proposition is applicable here:

“Parties by representation are interested persons not named as parties in the suit, but deemed to be sufficiently represented for certain purposes of the suit by parties thereto holding special relations to them. The doctrine grows out of convenience or necessity in the administration of justice. Especially is it applicable where the parties not before the court are only possible parties, not in esse, and where the interests of all parties in being require a decree which will completely and finally dispose of the subject-matter of the litigation. Such possible parties cannot, as a matter of course, be brought before the court in person, and it would be highly inconvenient and unjust that the rights of all parties in being should be required to await the possible birth of new claimants until the possibility of such birth has become extinct. If persons in being are before the court, who have the same interest and are equally certain to bring forward the entire merits of the question, and thus give such interests effective protection, the dictates both of convenience and justice require that there should be a complete decree.” Fletcher on Equity Pleading & Practice, § 33.

We have a case here where the defendants have had complainant’s money, to secure the payment of which a mortgage was transferred by them and its payment guaranteed. The defendants have not lived up to their agreement, and, when complainant seeks to enforce his remedy, it is said by way of defense that children may yet be born who have an interest in the fund secured by the mortgage, and that it cannot be enforced for that reason until some indefinite period in the future. We think this defense has no merit. The court which authorized the purchase of this mortgage has ample authority to see that the fund secured thereby reaches the proper parties. See Sill v. Ketchum, Har. Ch. (Mich.) 423; Cook v. Wheeler, Har. Ch. (Mich.) 443; Adams v. Bradley, 12 Mich. 346; Snook v. Pearsall, 95 Mich. 534.

Is the second defense good ? Counsel claim there is an inheritance tax due the State of about $500 under the provisions of Act No. 188, Pub. Acts 1899, and that the mortgage cannot be foreclosed until that tax is paid. It has not occurred to the officers representing the State that it has any claim for an inheritance tax, and the State is not asserting any such claim. Whatever claim any heir may have is conferred upon it by the will of Mrs. Biddle, which was probated in 1865. Stellwagen v. Wayne Probate Judge, 130 Mich. 166, is authority for the statement that our inheritance law is a substantial copy of the New York statute, and that the construction put upon it by the New York courts as a rule should control. The following cases are authority for the proposition that in a case like the one at bar the inheritance tax law does not apply: In re Seaman, 147 N. Y. 69; Matter of Pell, 171 N. Y. 48 (57 L. R. A. 540).

Is the third defense well taken ? This is based upon the claim that it was the duty to sell the land described in the original mortgage before a claim could be urged against the land of the appellants or against the appellants. This claim could, perhaps, be successfully urged, were appellants not guarantors of payment; but they were such guarantors. See Johnson v. Shepard, 35 Mich. 115; Michigan State Bank v. Trowbridge, 92 Mich. 217. The report of sale shows that all the land has been sold, and that there is still a deficiency of nearly $50,000. We do not think the third defense is well taken.

The decree of the court below'is affirmed, with costs.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    MILLER v. WALKER. SAME v. McLAUGHLIN. APPEAL OF WALKER.
    1. Mortgages — Stipulations—Trusts—Request to Trustee to Foreclose.
    Where it was agreed that property, conveyed to a trustee to secure an obligation, should be sold at the written request of parties named, and a request to sell was duly made, the duty to foreclose the trust became operative.
    2. Actions — Consolidation—Objections.
    Where a defendant’s rights could be fully protected in a consolidated suit, he could not object to the order of consolidation on the ground that he should have been made a party by amendment to the original bill, though he might have gained additional time by that procedure.
    3. Same.
    That a defendant, by an order of consolidation, was deprived of his right tó file a cross-bill against a codefendant to compel a contribution to the indebtedness sued for does not entitle him to a reversal of the decree, where he may maintain an action at law against the codefendant for the amount due from him. ,
    4. Same.
    Where a defendant might have appeared in either of the two suits, and filed a cross-bill against a codefendant to compel a contribution, but failed to do so, and failed to do so after the consolidation of the suits, the order of consolidation did not deprive him of rights sufficient to justify a reversal of the decree in the consolidated suit.
    5. Appeal — Objection not Made Below.
    Objections to a decree foreclosing a mortgage, not made in the court below, will not be considered on appeal.
    6. Mortgages —Foreclosure—Commissioner’s Deed —Recording.
    Under Act No. 200, Pub. Acts 1899, a commissioner’s deed on mortgage foreclosure sale may be recorded on the same day he makes his report of the sale, though the order confirming the report is not made until a subsequent day.
    Appeal from Wayne; Donovan, J.
    Submitted April 26, 1905.
    (Docket No. 90.)
    Decided September 28, 1905.
    Bills by Sidney T. Miller, trustee, against Bryant Walker, trustee, Louise M. Jebb, and the Detroit Savings Bank to enforce a trust, and by the same complainant against Joseph R. McLaughlin, Robert J. McLaughlin, Collins B. Hubbard, Anna Georgina Hubbard, George Dingwall, and others to foreclose certain mortgage securities. The suits having been consolidated and a decree entered for complainant, defendants Walker and Jebb appeal.
    Affirmed.

      Miller, Smith, Alexander & Paddock, for complainant.

      Walker & Spalding, for appellants.
   Grant, J.

Separate appeals were taken in this case by defendants Walker and Mrs. Jebb, and other reasons urged against consolidation than those urged by the other appellants. They also urge objections to the decree which affect them alone. A separate opinion in their case is therefore necessary.

1. They urge that the consolidation was prejudicial to the defendant Jebb and deprived her, of material rights, because:

(a) They insist that under the trust agreement of Walker, to foreclose which the second suit was brought, the duty to sell the trust property would not arise until there was an ascertained deficiency under the foreclosure of the original mortgage, so that the second suit was premature. This appears to be based upon the theory that there was an extension of time to this trust agreement. The parties evidently desired to gain time. Complainant refused. Mr. Walker, in his testimony, says:

“There was no definite extension of this large mortgage for a period of five years, because it could not be obtained; but the understanding was that this was to provide means until we could sell.”

So this trust agreement was assented to by Mr. Miller, to be sold by him upon the “written request of the Detroit Savings Bank, or of Sidney T. Miller, trustee, or both.” After some time the request was made, and the duty to foreclose the trust then became operative.

(b) It is also insisted that Walker and Mrs. Jebb should be made parties by an amendment to the original bill, and not by consolidation. Mrs. Jebb’s rights can be thoroughly protected in the consolidated suit. She might have gained some additional time, ifbroughtinby amendment, instead of by consolidation. She is not otherwise prejudiced.

(c) It is next urged that by the consolidation Mrs. Jebb is deprived of the right to file a cross-bill against her co-defendant Moran, to compel him to contribute towards the payment of such portion of the indebtedness as was satisfied by the sale of her individual property, put up as collateral for the joint obligation of Mrs. Jebb and Mr. Moran through the trust agreement. If she is now deprived of that right in these chancery suits, she still may maintain a suit at law to recover the amount due from Mr. Moran. Mrs. Jebb might have appeared in either of the two suits and filed a cross-bill. She did not choose to do so, and we think now she is not entitled to have the decree reversed. Even upon the order of consolidation she might have asked leave to interpose a cross-bill for the protection of her rights as against Moran, and the court would undoubtedly have granted it. A court of chancery determines and settles the rights of all the parties to a transaction of this character, in order to avoid a multiplicity of suits. We think it is Mrs. Jebb’s own fault that she has not put herself in the position which entitles her now to this remedy.

2. It is urged that the decree is erroneous (a) because interest was computed at an excessive rate; (6) because the proceeds of the sale of Mrs. Jebb’s property are applied to her indebtedness t'o the Detroit Savings Bank, not yet due; (c) that the decree requires the sale of Mrs. Jebb’s property to be made by a circuit court commissioner, instead of the trustee. No such claims were made in the court below, or upon filing objections to the report of the commissioner, or on entering the decree. The objections are made too late. Belding v. Meloche, 113 Mich. 223; Beck v. Finn, 122 Mich. 21.

3. It was next contended that the commissioner’s deed was improperly executed and recorded before the consummation of the sale. The report of the commissioner was made November 3, 1904, and his deeds on the sale were recorded on the same day. The defendants moved to set aside the sale and vacate the deeds, and on the 21st of November an order was made by the court, modifying and confirming the commissioner’s report of sale and denying the motion to set aside the deeds. By Act No. 200, Pub. Acts 1899, it is provided that the.circuit court commissioner shall upon such sale execute deeds, indorsing thereon the time when sale shall become operative, and shall within.30 days after such sale deposit the same with the register of deeds of the county. The recording was in conformity with this statute.

Decree is affirmed, with costs.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.


author: Ostrander, J.

text:
    ATTORNEY GENERAL, ex rel. BURBANK, v. STRYKER.
    1. Statutes — Amendatory Acts — Validity.
    A statute purporting to amend a repealed statute is valid, where the provisions of the new statute are independent and complete in themselves.
    2. Same — Title of Bill — Inaccuracy—Effect. .
    An inaccuracy in the title of a bill as first introduced, arising from its failure to allude to an amendment of a prior statute intended to be amended by the bill, is not fatal, where the intention to amend the section then in force is apparent.
    3. Same — Substituted Bill — Time for Introduction.
    A bill, disclosing in its title a purpose to amend the general drain law, was read twice by title and referred to committee, who reported back a substitute with a title disclosing a purpose to provide for the election of a drain commissioner in Berrien county. . Held, that it must be presumed that the purpose of the original bill was the same as that disclosed by the title to the substitute, and .that therefore the substitute was germane to the purpose of the original and a valid enactment, though, not presented by the committee until after expiration of the 50-day limit for the introduction of bills.
    4. Drains — Election oe Commissioner — Statute — Implied Amendment.
    Act No. 448, Local Acts 1903, providing for the election of county drain commissioner in the county of Berrien, is an amendment by implication of Act No. 254, Pub. Acts 1897, as amended by Act No. 272, Pub. Acts 1899, authorizing the board of supervisors of each county to appoint a drain commissioner, and a person elected pursuant to the act of 1903 is entitled to the office as against an incumbent holding under an appointment under the prior general law.
    Quo -warranto proceedings by Henry E. Chase, deputy attorney general, on the relation of John E. Burbank, against Frank A. Stryker to try the title to the office of drain commissioner of Berrien county.
    Submitted May 2, 1905.
    (Docket No. 225.)
    Judgment of ouster entered September 28, 1905.

      Henry E. Chase.(Core & Harvey, of counsel), in pro. per.

      A. A. Worthington and M. L. Howell, for respondent.
   Ostrander, J.

The respondent was duly appointed drain commissioner of Berrien county October 14, 1903, pursuant to the provisions of section 1 of chapter 2 of Act No. 272, Pub. Acts 1899. This act is amendatory of certain sections of, and adds certain sections to, Act No. 254, Pub. Acts 1897, entitled “An act to provide for the construction and maintenance of drains, and the assessment and collection of taxes therefor, and to repeal all other laws relative thereto.” For convenience, the section is quoted:

“ The board of supervisors of each organized county in this State shall, at their annual meeting in the year eighteen hundred and ninety-seven and every second year thereafter, appoint one county drain commissioner, whose term of office shall be two years, and shall begin on the first day of January following his appointment. All county drain commissioners holding office at the time that this act takes effect shall continue in office until the first day of January, eighteen hundred and ninety-eight. In case of vacancy in the office of the county drain commissioner occurring thirty days or more previous to a regular Or special meeting of the board of supervisors, the same may be filed within ten days, or as soon thereafter as practicable, by appointment by a majority vote of the county clerk, prosecuting attorney and judge of probate of the county and of which election they shall file the certificate with the county clerk, and the person so appointed shall hold his office until the next regular or special meeting of the board of supervisors, when the said board shall fill such vacancy. Every county drain commissioner shall, within ten days after his appointment, take, subscribe and file with the county clerk the oath of office required by the Constitution of this State and shall also within the same time execute and file .with such clerk a bond to the county in the penal sum of ten thousand dollars with two or more sufficient sureties to be approved by such clerk, conditioned upon the faithful discharge of the duties of his office. It shall be the duty of the county clerk, upon the. appointment of any county drain commissioner, to make report thereof to the secretary of State, giving also the date he qualified and entered upon the discharge of his duties.”

It changes the corresponding section in the law of 1897 only by increasing the penalty of the required bond from $5,000 to $10,000.

Respondent qualified, and on January 1, 1904, entered upon the duties of the office. Relator was duly elected in November, 1904, pursuant to an act of the legislature approved April 30, 1903, being Act No. 448,' Local Acts 1903, which reads as follows:

“ An act to provide for the election of county drain commissioner in the county of Berrien.

The People of the State of Michigan enact:
Section 1. At the regular biennial election to be held on the Tuesday succeeding the first Monday in November, nineteen hundred four, and each two years thereafter, there shall be chosen in Berrien county, in this State, by the qualified electors thereof, on the same ticket as the other county officers, a county drain commissioner, whose term of office shall begin on the first day of January following his election, and continue for two years. Before entering on the duties of his office said duly elected drain commissioner shall take and file with the county clerk the constitutional oath of office, and shall also file a bond in the penal sum of five thousand dollars, conditioned on the faithful discharge of the duties of his office, which bond, before filing, shall have been approved by the board of supervisors. It shall be the duty of the county clerk to make report to the secretary of State of the election and qualification of the county drain commissioner, as a part of his report of the election and qualification of the county officers.

“ This act is ordered to take immediate effect.”

Having taken the oath of office and filed an official bond in the sum of $5,000, approved by the board of supervisors, he demanded of respondent the office and the books and papers thereto belonging. His demand was refused, and this proceeding was instituted.

The legislative history of the act last mentioned is here given: There was introduced in the house of representatives February 10, 1903, House Bill No. 210, entitled:

“A bill to amend section 1 of chapter 2 of Act No. 254 of the Public Acts of 1897, entitled ‘ An act to provide for the construction and maintenance of drains, and the assessment and collection of taxes therefor, and to repeal all other laws relative thereto,’ approved June 2, 1897, and to repeal section 2 of said act.”

There is a section 2 in each of the nine chapters of the act. The bill was read a first and second time by its title and referred to the committee on drainage. This committee, on March 17, 1903, reported back the bill, with an accompanying substitute therefor, entitled “ A bill to provide for the election of county drain commissioner in the county of Berrien,” and recommended that the substitute be concurred in and that the bill as substituted pass. The report was accepted and the committee discharged; and, the question being on the adoption of the proposed substitute, it was adopted. The rules were suspended, the bill placed on its immediate passage, read a third time, passed, and given immediate effect. This action of the house was, in the regular course of business, communicated to the senate, where it was also passed, and also given immediate effect. The bill was signed by the governor.

The record presents the single question of the validity of this act. The specifications of the attack made upon it are:

1. House Bill No. 210 proposed to amend a particular section of a particular act, which section had been repealed when the bill was introduced.
2. The substitute for House Bill No. 210 is an independent legislative enactment, and was introduced more than 50 days after the beginning of the session.
3. Local Act No. 448 does not in terms repeal the provisions of the general law relating to drains, nor can it be held to repeal by implication any particular section of the general law.
4. That if Local Act No. 448 has been legally enacted and has any force, it will operate to suspend a general law of the State in a particular locality. v

On the part of the relator it is contended that the case is ruled by Attorney General, ex rel. Reece, v. Shekell, 138 Mich. 287. In that case relator had been appointed to the office of city attorney under a city charter which fixed the term of his office at two years. The legislature,. during his term, gave to the city a new charter in which the term was fixed at one year. Respondent was appointed city attorney under the provisions of the new charter, and was performing the duties of the office when the information was filed. It was conceded that the legislature has the power to abolish, cut down, abridge, limit, or extend the term of office of an officer created by the legislature, if not prohibited by the Constitution. The only question was whether the legislature had in the new charter clearly and sufficiently expressed the intention to make the term of the particular office a one-year term in place of a two-year term, as it had been under the former charter, and in so doing to deprive respondent of one year of the term for which he had been appointed. Relator’s contention was based upon certain language in section 5, tit. 4, of the act (Act No. 523, Local Acts 1903), which language this court held did not support the contention. An altogether different question is presented upon this record. The act which we are considering does not abolish, cut down, abridge, limit, or extend a term of office. Its effect, it is true, will be, if the law is valid, to shorten the term for which respondent was appointed. The further effect of the act, if valid, is to repeal by implication section 1 of chapter 2 of the general law in Berrien county; to create a term of office beginning January 1, 1905, instead of beginning, as it does in all other counties, on January 1, 1904; to take from the supervisors of that county the power to appoint the drain commissioner; and to fix the penal sum of the bond at one-half that required in other counties.

As to the first contention of respondent, which is that, because the particular section of the law of 1897 had been repealed by the law of 1899, an act to amend the repeal section could have no force, there is conflict of authority. It was held in City of Beatrice v. Masslich, 47 C. C. A. 657, that, where the provisions of the new statute were independent and complete in themselves, the objection was not good. See, also, the cases collected and reviewed in note to Columbia Wire Co. v. Boyce, 44 C. C. A. 588.

The inaccuracy in the title of,the bill as first introduced, failing as it does to allude to the amendment of section 1, chap. 2, made in 1899, is not fatal. There could be no doubt of the intention to amend the section then in force; the identification not being difficult, if the text of the bill did not correct it, which it may have done. Attorney General v. Rice, 64 Mich. 385; Brooks v. Hydorn, 76 Mich. 273.

The substitute was not reported within the first 50 days of the session. Whether the legislation is void for that reason must depend upon the question whether the act, as passed, is germane to the general purpose of the bill as first introduced; i. e., 210. The purpose of the substitute is plain. It was to make Berrien county exceptional in the method of the selection of a drain commissioner. That must be supposed to have been the purpose of bill 210, and, if so, that bill would have made a valid law, although the particular nature of the proposed amendment was not shown by the title, if such exceptional provisions could have been made a part of the drain laws originally enacted. We are of the opinion that such a provision would have been valid. See Common Council of Detroit v. Schmid, 128 Mich. 379, where the authorities are cited, and People, ex rel. Board of Sup’rs of Kent Co., v. Loomis, 135 Mich. 556.

It is urged that this substitute is not germane, because it cannot be said to be an amendment to section 1, chap. 2, or some other section, of the drain law, and because it is not a general provision, but a local measure. Had its provisions appeared in the original section, the particular provision would have been no more general, and no less local, than it is now. Hence, if right in saying that it would then have been valid, it would seem that it must be valid now. Again, while this does not in express terms amend section 1 as it stood, it is an unmistakable amendment by implication of that section.

The relator should have judgment of ouster, with costs.

Moore, C. J., and Carpenter, MoAlvay, and Hooker, JJ., concurred.


author: Moore, C. J.

text:
    MORTON v. EATON.
    Assumpsit — Building Contract — Lienors — Amounts Dub for Labor and Materials — Necessity of Sworn Statement.
    In assumpsit for labor and materials furnished for the erection of a building, where the time within which liens for such labor and materials could have been obtained by the laborers and materialmen has long since passed, no sworn statement as to the amount due such laborers and material-men is necessary.
    Error to Washtenaw; Kinne, J.
    Submitted April 28, 1905.
    (Docket No. 114.)
    Decided September 28, 1905.
    Assumpsit by Robert Morton against Caleb Eaton for work and labor done and materials furnished. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      D. G. Griffin and Frank F., Jones, for appellant.

      Lee N. Brown, for appellee.
   Moore, C. J.

This cause was commenced in justice’s court. The plaintiff declared orally on the common counts in assumpsit and for work, labor, and materials, and claimed damage $300, and filed a bill of particulars in writing claiming a total of $488.70. Defendant’s plea was in writing, and was the general issue, with notice:

1. That whatever work was done and materials furnished upon and in the construction of the dwelling house, as claimed by the said plaintiff in this cause, was done under the terms and conditions of a certain contract in writing between said plaintiff and defendant, by the terms of which all moneys due and payments made thereunder were due and payable to James E. McGregor and John P. Kirk, and not to plaintiff.
2. That under the terms and conditions of said contract all claims for extras and additional work was to be left to E. P. Rorison, architect, as arbitrator thereof, and the decision of said Rorison was to be final as between said parties, and payments therefor were to be made to the said James E. McGregor and John P. Kirk.
3. That said dwelling house was not and has not been completed by the said plaintiff as provided for in said contract, and no moneys are now due thereunder; and, fur-. ther, that about $900 due subcontractors, laborers, andJ materialmen was unpaid.

Plaintiff recovered a judgment in the justice’s court; The case was appealed to the circuit court, where he recovered a judgment of $116. The defendant has brought the case here by writ of error.

It is the claim of plaintiff that he commenced to build a house for defendant under an oral contract; that after he had worked thereon about a week a written contract was drawn and signed; that the provisions of the written contract and specifications were disregarded because of oral agreements made later between the parties thereto; and that plaintiff put in an extra cross-wall, extra work on the rear porch, a partition in the hall, extra work because of the sash weights, furnished some bricks and siding, tore up a pine floor and substituted a hardwood floor, changed the spindles in the stairway, put rear steps to the front porch, lowered the floor joists after they were once in, made changes in the attic windows, and put in four extra windows, and a change in plate glass, for all of which he says Mr. Eaton agreed to pay, and that changes were made in the floors which cost him $125 to make, which the architect thought was twice too much. He also claims that in the fall, probably in November, he made an oral contract to make changes in the barn of defendant, for which he was to have $125, that he did much of this work, and did not do the rest because Mr. Eaton failed to do what he agreed, and that for his work on the barn he never received a dollar.

It was the claim of defendant that all the work done on the house was done under a written contract, dated May 14, 1901, by the terms of which all payments were to be made to Kirk & McGregor, who guaranteed the performance of the contract, which contract had provisions relating to changing the plans, and stated:

"Without annulling or invalidating this agreement, and in case of such alterations the increase or diminution of expense occasioned thereby shall be estimated according to the price fixed by these presents for the whole work-and materials, and the cost of such alterations shall be added to or taken from the said price, as the case may be. If said parties cannot agree on the price to be added to or deducted from this contract for said alterations, the price to be fixed by said Rorison, and his decision shall be binding on both parties and shall be final.”

It also had the following:

“If said building is not completed by said 1st day of September, 1901, said Morton shall pay first party one dollar per day for each and every day said dwelling remains unfinished after said 1st day of September, which amount said Eaton may deduct from any payments due or to become due.”

The house was not completed September 1, 1901. The plaintiff testified it was agreed after the contract was signed that the house need not be completed September 1st. Defendant also claimed he had paid Kirk & Mc-Gregor more than the contract price, with the extras added; that the house was not completed and lien debts were still unsatisfied.

Defendant asked the court to direct a verdict in his favor, because as to the house the work was done under a written contract the terms of which had not been complied with, while as to the barn the plaintiff had not furnished a sworn statement as to the amount due laborers and materialmen, and for other reasons which it is not necessary to set out in detail. The judge declined to direct a verdict. He charged the jury, among other things, as follows:

“ The plaintiff claims that over and above all payment of liens and obligations there is still due and unpaid upon the contract for the building of this house in question a considerable balance. The defendant, however, disputes this claim, and insists he has overpaid the contract price •and has paid for all extras.
“ It is not, perhaps, important in this case whether the plaintiff or defendant is right in this respect; for under the pleadings in this cause and the bill of particulars in this case there can be no recovery for any alleged balance on the original contract of $2,100. The particular question arises in regard to building the barn and the extras. The plaintiff claims for certain additions and alterations made in the original contract for construction of the house.
“The contract provides, among other things, that if the parties cannot agree upon the price for these so-called extras then they shall be left to the architect, Mr. Rorison, and his decision as to the price shall be binding and finally conclusive in the matter. I say to you this agreement in that contract is binding upon the parties, and there can be no recovery for any extras unless and so far as they have been approved and fixed upon by the architect. Of course, if the defendant has made payments sufficient to cover the original contract price of $2,100 and also sufficient to cover all extras so far as they have been approved by the architect, then in this case there can be no recovery for any extras. But if these extras have not been paid for, and if, over and above the contract price and all liens and obligations, there is still a balance due, then the plaintiff may recover for such extras as the architect has recognized and approved.
The plaintiff claims a balance due for work upon the barn. If the plaintiff finished his work upon the barn, and there is still a balance due him unpaid, he is entitled to recover for that; but if he failed to complete his contract upon the barn, and if it cost Mr. Eaton more to finish the job than the difference between what Mr. Eaton paid the plaintiff and the contract price, then the plaintiff would not be entitled to recover in this action. I say to you, further, that under the terms of the contract between these parties no balance can be recovered in this action even for any extras, unless the contract had been completed by the plaintiff and all claims for labor and material had been paid; that is, or those claims had been included in the amount which the defendant retained.
“ One or two requests I will give you on the part of the •defendant. In this cause in justice’s court the plaintiff furnished and filed a bill of particulars in which no claim is made for any balance due upon the contract price for the dwelling, and under the law the plaintiff is now confined to such items as were in his bill of particulars, and cannot now recover for any balance upon the contract price of the dwelling.
“ If you shall find from the evidence that the plaintiff contracted to do certain work upon the barn, and that he left the work before it was completed, and you shall find, further, that the amount paid by the defendant, either to the plaintiff or upon his order to workmen or materialmen, together with the amount which it cost him to complete the work, amounted to the contract price or more, then the plaintiff cannot recover anything in this action for such work as he did or for materials furnished.”

The important question in the case is whether the judge should have directed a verdict in favor of defendant as requested. In addition to the testimony of the plaintiff which we have quoted, we think it ought to be said that the architect was called as a witness by defendant. Among other things, he testified that extras had been done and that he allowed all of them, except the extra for the floor and the plate glass; that the four windows were not extras, and that he had at one time a list, which he had mislaid. He also testified:

“ The plate glass was an extra, of course. If the plate glass was put in the entire house, instead of the front windows, where it was specified, it was an extra; but Mr. Eaton and Mr. Morton had an agreement whereby Mr. Morton agreed to allow him $100 and he could furnish whatever glass he saw fit. That was conclusive. That was the reason for cutting out the $65. Did not have anything to do with the barn at all. Nor nothing to do with the cistern, brick, nor sand.”

Enough will appear from this testimony to show that there was considerable work that was not done under the written contract. It also shows a claim on the part of plaintiff that before extras were put in they were agreed to between the parties without the intervention of the architect.

With, reference to the contention that plaintiff could not recover as to the barn, because he had not furnished a sworn statement as to the amount due laborers and materialmen, it may be said this is not a proceeding brought to enforce a mechanic’s lien. It is a suit in assumpsit for labor and materials. This work was done and materials furnished prior to January 1, 1902. The suit was commenced in justice’s court in May, 1902. It was tried in the circuit court in December, 1902. It is the claim of plaintiff that defendant dealt with the laborers and materialmen himself. Defendant testified:

cc Mr. Morton and I had a contract for doing some work on the barn. He was to raise it up and put under a wall, put in a new door, and move it into the center of the barn from the corner, and finish it all up, in good shape to occupy, complete; put in stalls and floor, to make and hang a roller door, and put under new sills. He was to furnish the material and do the work for $120. There was never any other figure talked about. He raised up the barn, and put the wall under, and straightened the roof. That is all he did. I came there one morning from my place and found him loading up his tools and taking them away. I asked him what he meant. I was surprised. He said he was going to quit the job. Had paid him about $85. Paid to James Eaton $21.50. Paid to James Eaton on Morton’s order. All the payments I ever made were either to Mr. Morton or on his order on the barn.
Q. What are the payments ?
“A. George Barry, $3.50; W. Morton, $4.40; R. Morton $4; Wm. Kersey, $17.90; R. Morton, $2; George Berry, $5; Wm. Crosby, $2.70; R. Morton, $24.90. It all amounts to $85.90. Have completed the job Mr. Morton threw up.
‘ ‘ Q. What did it cost you to complete it ?
“A. Total amount, $61.50. Paid more than the contract price. I wanted to get rid of it and avoid having any trouble with him. ”

There is no claim that any liens upon the barn were pending and unsettled when this testimony was given. The time in which they could be obtained had long passed.

It will be seen, by referring to that portion of the charge which we have quoted, the jury were instructed that if they should find:

“ That the amount paid by the defendant either to the plaintiff or upon his order to workmen or materialmen, together with the amount which it cost him to complete the work, amounted to the contract price or more, then the plaintiff cannot recover anything in this action for such work as he did or for materials furnished.”

The questions presented were in the main questions of fact about which the parties were not agreed. The judge could not, in view of the testimony, decide the case as a matter of law. We think he properly submitted it to the jury.

Judgment is affirmed.

Grant, Blair, Montgomery, and Ostrander, JJ., concurred.


author: Blair, J.

text:
    VER DUYN v. DETROIT & SALINE PLANK-ROAD CO.
    1. Evidence — Acceptance of Receipt — Parol Evidence.
    Where, pending review of a judgment ousting a plank-road company of its franchise, a traveler paid the toll demanded and accepted a receipt reciting that on the affirmance of the judgment the toll would be repaid, evidence of what the tollgate keeper told him was admissible, in an action to recover the toll paid, as showing the extent to which he accepted the receipt.
    2. Contracts — Construction.
    Pending review of a judgment ousting a plank-road company from its franchise, the company issued receipts to travelers paying the toll which recited that, in the event ‘ ‘ of such judgment being affirmed in the Supreme Court,” the receipts would be redeemable on presentation after such affirmation. Held, tbat the words ‘ ‘ such judgment being affirmed ” referred to the final judgment of ouster which should terminate the litigation, and not to a reversal of the existing judgment because of errors occurring at the trial.
    Error to Wayne; Brooke, J.
    Submitted May 4, 1905.
    (Docket No. 139.)
    Decided September 28, 1905.
    Assumpsit by Eugene J. Ver Duyn against the Detroit & Saline Plank-Road Company for money had and received. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Corliss, Leete & Joslyn (Bay B. Morgan, of counsel), for appellant.

      O. E. Angstman, for appellee.
   Blair, J.

Defendant was the owner and engaged in the operation of a toll road, under the provisions of Act No. 62 of the Laws of 1848, along a highway extending from the city of Detroit to a point in Canton township. The prosecuting attorney of Wayne county instituted proceedings in the Wayne circuit court to forfeit defendant’s charter and oust it of its franchises. These proceedings resulted in a verdict and judgment that:

“ The respondent, the Detroit & Saline Plank-Road Company, be, and it is hereby, ousted and altogether excluded from its corporate rights, liberties, privileges, and franchises,, and from all right to have and maintain and operate a toll road in the townships of Springwells, Dear-born, Nankin, and Canton, and the villages and hamlets of Dearborn, Inkster, Wayne, and Sheldon’s Corners, from the westerly city limits of the city of Detroit westerly through said townships to Sheldon’s Corners, so called, on said road known as ‘ Michigan Avenue,’ or the ‘ Chicago Road;’ also that said respondent be, and it hereby is, prohibited from collecting tolls over said road, or to maintain and operate a toll road, or to collect toll upon said Detroit & Saline Plank Road, in the townships of Springwells, Dearborn, Nankin, and Canton, in Wayne county, Michigan.”

This judgment was subsequently reversed by this court, and a new trial ordered. People, ex rel. Esper, v. Plank-Road Co., 125 Mich. 366. As soon as said judgment of ouster was rendered, the farmers residing along the road over which the defendant held its franchise refused to pay toll. Thereupon the gatekeepers along the line locked the tollgates against the farmers, and thereupon the farmers hitched their teams onto the gates and pulled them out. The contest between the users of the road and the officers of the defendant company assumed a very disorderly character.

At this point in the controversy the defendant company issued and placed in the hands of its tollgate keepers a receipt in the following terms:

“This receipt for toll paid is issued by reason of a judgment of the circuit court for the county of Wayne, and in the event of such judgment being affirmed in the Supreme Court against this company it will be redeemable at the office of this company in Detroit, if presented within 60 days of the date of such affirmation.”

The plaintiff in this case is the holder of receipts of the above character in the total amount of $131.51, which receipts were given to him or his assignors during the period which elapsed after the entry of the first judgment of ouster in this case and its reversal by the Supreme Court. Plaintiff received his first ticket under the following circumstances:

“Finally one night I came through, and this tollkeeper, Mr. Emerson, I think it was, up at Wayne, he says to me: ‘ You better pay your toll, Ver Duyn. I will give you a ticket.’ He showed me the ticket, and says to me that if I would be good to him as a gatekeeper and friend, pay my toll, and he says, ‘ When this suit is ended, if it is ended against the company, you will get your money back.’ ‘Well,’says I, ‘I will pay you the toll provided that is the case.’ ‘Well,’he says, ‘read on the back of the ticket, and you will see to that effect.’ I read the back of the ticket. ‘ Well,’ I says, ‘that is a pretty good proposition.’ I says, ‘ Rather than have any trouble with you, I will pay my toll; but,’ I says, ‘the road is in no condition to pay toll.’”

The new trial ordered by this court resulted in a verdict for the people, and a second judgment of ouster was duly entered, which was affirmed by this court. 131 Mich. 30. Within 60 days of the affirmance of the second judgment, plaintiff, Ver Duyn, demanded repayment of the tolls evidenced by the receipts, which being refused, he brought this suit. Plaintiff recovered, and the defendant has removed the record to this court for review.

The principal contention of defendant’s counsel is that the judgment referred to in the receipts, being the first judgment of ouster, was not affirmed by the Supreme Court, but was reversed, and that the fact that the said judgment was not affirmed relieved the defendant from repaying to the plaintiff the amount represented by the receipts held by him; the affirmance of the judgment being the only condition under which the defendant company would be liable. We agree with the learned trial judge that this contention is unsound. In the making of this alleged contract the parties were not upon an equality. The plaintiff and his assignors had no voice or influence in the drafting of the receipts. They were prepared by tbe company’s attorneys, and presented to travelers of the highway with the alternative that they must either accept them or turn back, unless they were willing to risk their personal safety by endeavoring to force a passage. Under such circumstances, as said by the trial judge, “every intendment should be taken against the party which, by its agents, prepared the same.” And we think that under the circumstances of this case the evidence of what the toll collector said to plaintiff was admissible, as showing the extent to which he accepted the receipt. This alleged contract was not signed by plaintiff, and it could only bind him by his accepting it, and he therefore had a right to show the circumstances attending his acceptance of the paper.

In construing the contract, the situation of the parties and their surroundings must be considered. By the judgment of the circuit court the defendant’s charter was forfeited, and it was prohibited from collecting tolls. The farmers who had to use the road were resorting to violence to obtain what they regarded as their right of unimpeded passage. The defendant was claiming that the judgment of the circuit court that it had no right to collect tolls was wrong; that it had complied with the law and was lawfully entitled to collect the statutory tolls. The right to collect tolls was the substance and gist of the contention, and the agreement must be construed with reference to this fact. The parties were not contending for the correctness or incorrectness of the rulings of the trial judge on questions of the admissibility of evidence, or whether the plea puis darrein continuance waived all other defenses, or whether counsel for plaintiff improperly alluded to defendant and its witnesses and counsel, but were contending over their substantial legal rights as defined by the pleadings. We think, therefore, that the trial judge correctly construed the words “such judgment” in the receipt as referring to such judgment as should be finally affirmed and terminate ,the litigation upon the merits.

The judgment is affirmed.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.


text:
    PEOPLE v. WOLVERINE MANUFACTURING CO.
    1. Courts — Jurisdiction — Title to Land — Obstruction of Streets.
    Title to lands cannot be tried in a prosecution in the recorder’s court of the city of Detroit for obstructing a street.
    2. Same — Ousting Jurisdiction — Bona Fide Contention.
    In order to oust a court of jurisdiction of a prosecution for obstructing a street on the ground that it involves title to land, it is essential that there should be a bona fide contention either as to the existence of the street or the title of the land where the alleged obstructions are located.
    3. Dedication — Street—Acceptance.
    Where a plat dedicating a street is duly made and recorded and approved by the board of public works of the city, an acceptance is sufficiently shown by evidence that men em. ployed by the city plowed furrows on each side of the street, and then took the road scraper and scraped the dirt up to the center of the road, making it suitable for public travel.
    4. Courts — Jurisdiction—Title to Land — Good Faith in Contention.
    Where a street has been duly dedicated and accepted by the city by opening and working the same, and defendants have recognized the public character of the street by presenting a petition to the council asking for its vacation, defendants, when prosecuted for obstructing the street, cannot in good faith contend that the prosecution involves the title to lands, and thus oust the recorder’s court of jurisdiction.
    5. Municipal Corporations — Obstruction of Streets.
    The owners of lots on both sides of a street, which is a cul de sac and not used by the public, but only for such owners’ private purposes, may obstruct such street without liability to prosecution under a city ordinance prohibiting the obstruction of streets.
    Certiorari to the recorder’s court of Detroit; Phelan, J.
    Submitted June 15, 1905.
    (Docket No. 22.)
    Decided September 28, 1905.
    The Wolverine Manufacturing Company and the Cadiliac Cabinet Company were convicted of obstructing a street and sentenced to pay a fine of $25.
    Reversed.

      Keena, Lightner & Oxtoby (Samuel S. Harris, of counsel), for appellants.

      Timothy E. Tarsney and J. Walter Dohany, for the people.
   Blair, J.

The defendants were convicted on June 24, 1904, in the recorder’s court of the city of Detroit, of obstructing Thirteenth street, south of Stanley avenue, an alleged public street in said city, under the provisions of a city ordinance. Sentence having been entered upon such conviction, defendants have brought the judgment and record to this court for review upon writ of certiorari.

Defendants in their brief limit the “discussion” to three items, as follows: (1) Respondents in good faith claim title to the property in question. (2) No actual highway existed at the place in question. (3) The city never accepted as a street the parcel or property in question.

It is well settled that the title to lands cannot be tried in proceedings like the present. People v. Stott, 90 Mich. 343, and cases cited. In order to oust the court of jurisdiction, it is, however, essential that there should be a bona fide contention either as to the existence of the highway or the title of the lands where the alleged obstructions are located. The rule is well stated by Chief Justice Christiancy, in Roberts v. Highway Com’rs of Cottrellville, 25 Mich. 23, as follows:

“And whenever the contest shall appear before the jury to be, really and in good faith, a question of the existence of the highway claimed, or a question involving the title to real estate, rather than a question of encroachment upon a highway admitted to exist, or the existence of which is not in good faith seriously contested, or so clearly shown as to admit of no real and bona fide contest, the whole proceeding should be dismissed by the jury as beyond their jurisdiction in such a proceeding.”

We think that the existence of the highway is so clearly shown in the case at bar as to admit of no real and bona fide contest. It appears conclusively from the evidence that on the 14th day of July, 1895, Senator McMillan, having theretofore purchased the property, executed a plat in due form, whereby he dedicated, amongst other things, the streets and alleys shown on said plat to the public. On the 18th day of July, 1895, the plat designated “ McMillan-Edensor Subdivision of Part of Lots 1 and 2, Lafferty Farm, Private Claim 228,” was approved by the board of public works of the city of Detroit. On the 19th day of July, 1895, this plat was recorded in Liber 19 of Plats, on page 96, in the office of the register of deeds for Wayne county. Thirteenth street, the highway in question here, was one of the streets dedicated by said plat. It further appears, by the undisputed testimony, that soon after the recording of the plat a gang of men in the employ of the board of public works, under the direction of a ward boss, plowed three furrows on each side of Thirteenth street its entire length, and then took a road scraper and scraped it up to the center of the road, rounded up the street, and scraped it up for public travel, and the work was paid for by a pay boss for the city. This opening and working the street by the city constituted a clear and unequivocal acceptance of the street, which thereupon became a public street of the city, subject to its jurisdiction and control, till vacated or lost by nonuser or adverse possession, which is not claimed in this case. City of Mt. Clemens v. Sanitarium Co., 127 Mich. 115.

Furthermore, the defendants recognized the public character of the street by their own solemn act. In January, 1903, the defendants presented a petition to the common council asking for the vacation of Thirteenth street south of Stanley avenue, which was referred to the committee on street openings, who reported on March 10th in favor of granting the prayer of the petition upon certain condir tions, and a resolution was introduced to that effect. On March 24th the resolution was put on its passage, and failed of securing the necessary three-fourths of the votes of the aldermen-elect, there being eighteen yeas and 15 nays. In March, 1903, and, we suppose, after the failure of the vacation proceedings, defendants constructed a fence across the street, which is the obstruction complained of. Under such circumstances, we think the recorder’s court had jurisdiction of the case.

It remains to consider whether Thirteenth street, south of Stanley avenue, was an actual highway in the sense that its obstruction interrupted travel which otherwise would have taken place. Chief Justice Campbell, delivering the opinion of the court in Beecher v. People, 38 Mich. 289, said:

“ The object of the power granted to the city to prevent obstructions to various easements of a public character is not to settle the title, which cannot be tried by a municipal court under city ordinances. Horn v. People, 26 Mich. 221; Roberts v. Highway Com’rs of Cottrellville, 25 Mich. 23.
“Neither can any such interference in a summary proceeding be had, except where some way actually used has been interrupted in its user or enjoyment. A theoretical easement not actually used is not within the law. Tillman v. People, 12 Mich. 401; Jackson v. People, 9 Mich. 111.”

The testimony on the part of the people as to the actual use of this portion of the street was not very strong. At the time defendants constructed the fence across the street, they were the owners of the lots on both sides south of Stanley avenue to the railroad tracks, where a fence barred further progress; there being no crossing over the railroad right of way. The fence constructed by defendants had been in place for a year before complaint was made, and defendants gave evidence tending to show that the street was used south of Stanley avenue for their private purposes only. The court instructed the jury upon this subject as follows:

“ The Wolverine Company would have a right to build a fence across there, if there was no public highway there. But it is immaterial whether or not it is used. If I give the city of Detroit a piece of land out here, and they run a street down here, and plow it up and grade it, and it is accepted, it is immaterial whether John Smith or Jones walked over it or not, unless there are some conditions nominated, and if they accept it they are bound to carry out those conditions, if, in law, they are good. If I give it to them, it becomes a part of that plat. If^ it is dedicated, it becomes a part of that plat that was introduced here, and that was accepted. It is for you to say whether or not it is a street.”

As applied to prosecutions for obstruction of highways under city ordinances, like the present, we think the charge was erroneous.

The judgment is reversed, and a new trial granted.

Carpenter, Grant, Montgomery, and Ostrander, JJ., concurred.


text:
    PERKINS WINDMILL CO. v. KELLY.
    1. Sales — Action—Fraud—Question for Jury.
    In an action for the price of goods sold, evidence examined, and held, that the question of fraud of plaintiff in making the sale should have been submitted to the jury.
    2. Same — Delivery—Refusal to Accept — Offer to Return.
    If -windmills, delivered pursuant to a contract of sale, were not those ordered by the purchaser, and the seller was notified thereof, and was in substance also notified that the purchaser refused to accept, and the seller had the opportunity to repossess himself of them, there can be no recovery of the price, although the purchaser did not offer to return them.
    Error to Wexford; Chittenden, J.
    Submitted June 16, 1905.
    (Docket No. 30.)
    Decided September 28, 1905.

      Assumpsit by the Perkins Windmill Company against Thomas Kelly and James Mather, copartners as Kelly & Mather, for goods sold and delivered. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Reversed.
    Plaintiff brought suit in the recorder’s court of the city of Cadillac, a court which has the jurisdiction of a justice’s court. The parties appeared, filed pleadings, and the case was adjourned. Upon the adjourned day the defendants did not appear, and judgment was rendered against them. They then appealed to the circuit court.
    The declaration is upon the common counts for goods sold and delivered, based upon two written orders given by defendants to the plaintiff, each of which is for a windmill. Defendants gave notice with their plea that the orders declared upon were obtained from them by fraud, deceit, and false representations; that said orders were based upon two other orders for the identical windmills which plaintiff claims to have sold to two farmers living in the vicinity; that as an inducement to make the orders sued upon the plaintiff exhibited to the defendants the other orders; that plaintiff offered to sell to said defendants these windmills at a greatly reduced price; that defendants agreed to take and pay for the same as soon as.they were accepted by the purchasers; that said orders upon which suit was brought were signed as evidence of said transaction, and for no other purpose; that said purchasers refused to pay, setting up that their orders were also obtained by fraud and deceit; that each had contracted for a Perkins windmill, while the contract called for what is known as an Emperor windmill. The plea further set up that the machinery was of an inferior quality, and not as represented.
    Upon the trial plaintiff introduced its agent, who testified to the sale of the windmills to the defendants, produced the two orders, and proved shipment and delivery to defendants, and rested. The defendants then gave testimony tending to show that plaintiff’s agent asked them if they were in the market for windmills, to which they replied they were not; that “he [said agent] then said that he represented the Perkins Windmill Company, and that he would like to get the mills started around here, and asked if I knew of any prospects; that, if I did, he would get out and get them fop me, and maybe in this' way he could get a start here.” Defendant Mather then _ took him to one Forbes, whose order was obtained. Defendant Mather testified that “there was a price fixed between us at which I was to purchase this mill before we went out in the morning; ” that after these orders were obtained from the farmers, which were taken in the name of the plaintiff, the orders sued on were given. On the same day, but whether before or after taking the orders does not appear, and it is immaterial, plaintiff and defendants entered into a contract by which the defendants agreed to do all business pertaining to the sale of goods shipped under the agreement, to pay freight, etc., to properly erect and put in operation the mills when sold, and to settle for the same immediately after being put in operation. It also provided that all goods sold previous to the date of the contract must be settled for under it. The two farmers testified that in their conversation they contracted fora Perkins windmill, and not an Emperor; that they supposed the written orders were for a Perkins mill; that when they were delivered by the plaintiff, and they saw they were what is known as the Emperor, they refused to receive them. One windmill was put up, but failed to work satisfactorily. The other was never put up. The defendants did not offer to return the mills. There was some evidence that the agent acknowledged that he sent the wrong mill, but he thought the Emperor was just as good.
    The court directed a verdict for the plaintiff, holding that there was no fraud in the inception and making of the contract upon which the suit is based, eliminated the question of fraud between the plaintiff through his agent and the farmers to whom the two mills were sold, and left to the jury the question of damages for the one defective mill, for which an allowance was evidently made, as the jury rendered a verdict for $70.

      Sawyer & Bishop, for appellants.

      Fred S. Lamb, for appellee.
   Grant, J.

(after stating the facts). We think the court erred. The contracts with the farmers were made by the plaintiff. The farmers were under no obligation to take the mills, unless they were such as they had ordered and contracted for. The contracts with the farmers were at least a part of the consideration for the contract between plaintiff and defendants. The defendants were to deliver the windmills to the farmers and to put them up. They performed that part of the contract by der livering them. Under the evidence of the defendants the farmers promptly refused to accept them, because they were not what they had contracted for. If this were the fact, the farmers were under no obligation to accept them; neither were the defendants. The question of fraud should have been submitted to the jury under the proper instructions.

If it be the fact that the mills were not those ordered by the farmers, and the plaintiff was notified thereof, and was in substance also notified that the farmers refused to accept them, and the plaintiff had the opportunity to repossess itself of them, the plaintiff could not recover.

Judgment reversed, and new trial ordered.

Moore, C. J., and Carpenter, Montgomery, and Ostrander, JJ., -concurred.


author: Montgomery, J.

text:
    BEISTLE v. McCONELL.
    1. Fire Insurance — Action on Policy — Interest oe Mortgagee —Agreement.
    Suit having been brought by the assured on a fire-insurance policy, a parol agreement for a division of the judgment was made before trial between plaintiff and a mortgagee to whom the policy was payable as his interest might appear. Held, that the agreement did not create simply the relation of debtor and creditor between the owner and the mortgagee, but impressed the judgment with an equitable trust in favor of the mortgagee.
    2. Same — Consideration.
    The employment of assistant counsel, payment of the jury fee, and giving bond for security for costs by the mortgagee was a sufficient consideration for the agreement.
    3. Same — Eight oe Mortgagee to Proceeds — Liability of Attorney-Accounting.
    The amount of the judgment having been paid to plaintiff’s attorney, who had 'full notice of the mortgagee’s rights, it was his duty to retain so much of the money as would satisfy the mortgagee’s demand, and he not having done so, a bill was properly filed by the mortgagee against plaintiff and his attorney for an accounting.
    Appeal from Berrien; Carr, J.
    Submitted June 22, 1905.
    (Docket No. 52.)
    Decided September 28, 1905.
    Bill by John W. Beistle against James McConnell and Alvah P. Cady, William H. Andrews and George H. Murdoch, Jr., copartners as Cady, Andrews & Murdoch, for an accounting. Prom a decree for complainant, defendants appeal.
    Affirmed.

      Lawrence C. Fyfe, for complainant.

      Cady & Andrews (George W. Bridgman, of counsel), for defendants.
   Montgomery, J.

Ella Simmons, being the owner of a lot in Buchanan, Mich., on which stood a house and barn, on the 21st of September, 1894, mortgaged the same to the complainant for $334. On March 29, 1898, Ella Simmons conveyed her interest by warranty deed to defendant McConnell, he paying on the purchase price $50. The full purchase price was $650. The complainant’s mortgage, being of record, continued a lien on the land in the hands of McConnell. This fact he recognized, and on the 8 th day of April, 1898, he procured a policy of insurance in the Northwestern National.in the sum of $800, $500 of which was placed on the dwelling house, $100 on the barn, and $200 on household furniture. The policy was “payable to John W. Beistle, mortgagee, as his interest may appear.”

In June, 1898, complainant commenced foreclosure of his mortgage by advertisement. - A sale took place on September 3,1898, which became effective to cut off the equity of redemption on September 3, 1899. In the meantime, and in July, 1899, a fire occurred, consuming the dwelling house and its contents. The barn was not burned. The insurance company refused to pay the loss. A suit was instituted in the name of defendant McConnell as plaintiff; the defendants Cady, Andrews & Murdoch being attorneys of record. A recovery was had in the sum of $763.39, which with interest and costs was afterwards paid into the hands of the clerk of the court and by him turned over to Cady, Andrews & Murdoch.

While the funds were in their hands, complainant demanded that the proportion thereof due him be paid him, or that the funds be held by Cady, Andrews & Murdoch until he could confer with counsel as to his rights. Ignoring this request, the money was paid to defendant McConnell upon the latter’s demand. This bill is filed for an accounting and to compel the payment of the money to complainant. From a decree in favor of complainant, defendants appeal.

The complainant’s testimony tends to show that after the loss by fire he and the defendant McConnell consulted one or two attorneys relative to an action on the policy, but that defendant McConnell afterwards, acting independently, employed the defendant attorneys in the first instance. Complainant’s testimony, however, shows that later on he consulted with defendant Andrews, and that it was agreed that complainant should employ Mr. James O’Hara to assist at the trial, and that he did assist; that Andrews advised that the policy protected the complainant; that he (complainant) became security for costs and paid the jury fee; and, also, that it was fully .agreed before the trial was entered upon that, if a judgment was recovered, complainant was to receive the amount his due, his interest in the mortgage, and that Andrews was to see it paid out of the recovery.

The testimony of the defendants differs from this in some particulars. Andrews denies having been employed by complainant at anytime; but this does appear by his testimony: First, Mr. O’Hara was employed by the complainant and assisted on the trial; second, before the trial commenced Mr. O’Hara insisted that before the trial commence there be an understanding; third, that there was an agreement, and his version of it is as follows:

“ So they agreed there. I give you this as I understand the agreement. Mr. O’Hara said the house and lot were worth $150 — that is what Mr. Beistle had told him — or the barn and lot, after the fire, and he said, ‘ Well, if we get a judgment, we will add that into the judgment and divide the amount.’ And I don’t know whether I said anything or not, unless I said it seemed to me that it was an equitable arrangement.
Q. What was the substance of it? What did McConnell say, if anything ?
“A. Well, that was McConnell’s proposition; that they divide the proceeds in case the suit was won.
The Court: Divide the judgment ?
“A. To add this $150, the value of the lot, to the amount recovered, and then divide it.
Q. You mean the amount of insurance on the house, or altogether ?
“A. Altogether. I might say here there was some talk there about the $150, the lot and the barn being worth $150, and Mr. McConnell’s $200 on the personal property, and that they would divide the whole thing — -just offset one of those against the other.
Q. But there was no absolute arrangement made as to how the thing should be divided ?
A. There was a general understanding that was to be the division. That is my remembrance of it.”

The defendants seem to have construed this agreement as one creating simply the relation of creditor and debtor between complainant and defendant McConnell. "We do not so find the facts. We are fully satisfied that the parties intended to provide for a division of the fund recovered, and that it is manifest, and must have been manifest from the first, to Mr. Andrews, that the purpose was to prevent this fund going into the hands of defendant McConnell. If there was doubt about this in his mind at the time, he had ample notice of complainant’s claim in that regard before the money was paid over to McConnell. Under these circumstances he could not relieve himself or his firm by turning the money over to McConnell. Sims v. Brown, 6 Thomp. & C. (N. Y.) 5; Peyser v. Wilcox, 64 How. Prac. (N. Y.) 525. As shown by these cases, Andrews, as attorney, was not bound to yield to the demand of McConnell without indemnity. It was open to him to file a bill of interpleader, if deemed necessary for his protection. The record shows that, instead of doing this, he stated to the complainant in McConnell’s presence that he would have to pay the money over to McConnell on demand. It is needless to say the demand “ followed hard upon.”

It is argued by the defendants that the complainant never acquired any interest in this insurance. But the law is not so. If it be conceded that the owner of the equity, who is the insured named in the policy, is the proper party to maintain an action on the policy, it does not follow that the mortgagee has no equitable interest in the fund. Ostrander on Fire Insurance, pp. 354, 355. This question is unimportant in this case, however, as we find there was an express agreement to divide this fund, and that there was a consideration for this agreement in the services of Mr. O’Hara, furnished and paid for by complainant.

We think this judgment was impressed with an equitable trust in favor of complainant, which was not diverted by the money finding its way into the hands of defendants Cady, Andrews & Murdoch, that on notice of complainant it was their duty to retain so much of the money as would-satisfy their demand, and that this bill was properly filed to have a trust declared and for an accounting. The decree was sufficiently favorable to defendants. The case is one of some hardship to defendants. No fraud is charged, but we are constrained to hold that defendant Andrews did not regard the rights of complainant and failed to protect him.

The decree is affirmed, with costs.

MoAlvay, Blair, Ostrander, and' Hooker, JJ., concurred.