author: Montgomery, ’ J.

text:
    SNYDER v. CITY OF ALBION.
    1. Municipal Corporations — Claims for Tort — Presentation to Council.
    A charter provision that no suit shall be maintained against a city on any account or claim until the same shall have been presented to the common council does not apply to actions ea: delicto.

      2. Same — Personal Injuries — Nature of Claim — Sufficiency of Declaration.
    Plaintiff’s intention to rely upon structural as well as surface defects in a bridge, by the collapse of which she claims to have been injured, is sufficiently indicated by the averment in her declaration that the defendant allowed its sidewalk and bridge “to become and remain broken, torn up, and out of repair, and not reasonably safe and convenient for public travel,” and that, “while the plaintiff was walking over said walk and bridge, said sidewalk and bridge, by reason of its being in an unsafe, broken, torn up, and out of repair condition, broke and fell into the river. ” So held, at least, where, though no demurrer had been interposed, want of notice of the exact nature of the claim was urged to defeat the verdict.
    3. Same — Wooden Structures — Notice of Decay.
    The capacity of white pine for holding nails when sound, and its lasting qualities, as compared with other timber, may properly be shown in an action wherein defendant is claimed to have had constructive notice, by reason of the lapse of time, of the decay of a bridge built of such material.
    4. Same — Evidence of Other Defects.
    The decayed condition of the timbers in other parts of the bridge than that which collapsed may be shown for the same purpose.
    5. Personal Injuries — Pleadings and Proofs.
    A declaration for personal injuries need not set out all of the results of the injuries claimed to have been sustained in order to render evidence of them admissible upon the trial. Montgomery v. Railway Co., 103 Mich. 46, followed.

      6. Municipal Corporations — Defective Bridge — Constructive Notice.
    A city is chargeable with constructive notice of the defective condition of a bridge within its jurisdiction, where the defect is of such long standing and of such character as actually to arrest the attention of passers-by, or of persons inspecting the bridge.
    Error to Calhoun; Smith, J.
    Submitted February 10, 1897.
    Decided May 28, 1897.
    Case by Julia J. Snyder against the city of Albion for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      M. D. Weeks ( Wilson & Cobb, of counsel), for appellant.

      Pringle & Hewett (Thomas E. Barkworth, of counsel), for appellee.
   Montgomery, ’ J.

The plaintiff recovered a verdict and judgment for injuries sustained by reason of the falling of a sidewalk which constituted a portion of the bridge crossing the Kalamazoo river in the defendant city. The defendant brings error. The record contains a large number of assignments of error, but the principal contentions of counsel may be treated of under two or three heads.

It is first contended that the plaintiff’s case failed for the reason that she failed to show that the claim upon which she sued had been presented for adjustment and allowance to the common council of the city. The charter of the city (section 2, chap. 15, Act No. 296, Local Acts 1885) reads as follows:

“Said city council shall have authority to adjust and settle all accounts and claims against said city, and no suit or action shall be maintained against said city on any account or claim until the same shall have been presented to said council, and said council shall have had an opportunity to pass upon the same.”

We think this was not intended to apply to actions of this character. The word “claim,” when used in some relations, may be broad enough to include a claim for damages in an action ex delictoj but, in the connection in which it is used in this statute, we think it is not so intended. In New York it has been held that the word “claim,” as used in the Code, authorizing an attachment, does not apply to a tort. Saddlesvene v. Arms, 32 How. Prac. 280. See, also, Stringham v. Winnebago Co. Supervisors, 24 Wis. 594. The question has also arisen in various States under charter'provisions similar to that contained in the charter under consideration. In Howell v. City of Buffalo, 15 N. Y. 512, the charter of Buffalo, which provided that “it shall be a sufficient bar and answer to any action or proceeding in any court, for the collection of any demand or claim, that it has not. been presented to the common council for audit or allowance,” was construed, and it was held that the provision did not apply to actions ex delicto. In Harrigan v. City of Brooklyn, 119 N. Y. 156, the charter of Brooklyn, which provided that “no action or special proceeding shall be maintained against the city unless it shall appear by the complaint that at least 30 days have elapsed since the claim or claims upon which said action or special proceeding is founded were presented in detail, and duly verified by such claimant or claimants, to the comptroller of said city for adjustment,” was considered. It was said, “The words ‘claim or account,’ in connection with the purpose of presentation, and the designation of the officer to whom the presentation is to be made, naturally indicate claims on contract.” In Wisconsin the statute provided that “no action shall be maintained by any person against the city upon any claim or demand until such person first shall have presented his claim or demand to the common council for allowance, and the same shall have been disallowed in whole or in part.” It was held in Sommers v. City of Marshfield, 90 Wis. 59, that this statute did not require a previous presentation of a claim for personal injuries. It was said: ‘ ‘ This court has repeatedly held that the words ‘claim or demand,’ as used in the charter, do not include a cause of action for personal injury by'reason of a defective street or sidewalk. * * * ‘Claim or demand,’ as thus used, include only such as arise upon contract.” See, also, Sheridan v. City of Salem, 11 Or. 328; City of Warren v. Davis, 43 Ohio St. 447; and Lay v. City of Adrian, 75 Mich. 438.

Counsel for defendant rely upon the case of Springer v. City of Detroit, 102 Mich. 300. But in that case there was ample evidence in the act itself to indicate the sense in which the words “demand or claim ” were used. The second paragraph of the provision quoted on page 302 was as follows:

“It shall be a sufficient bar and answer to any action or proceeding in any court, for the collection of any demand or claim against said city, that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit and rejected for that reason, or that the action or proceeding was brought before the common council had a reasonable time to investigate and pass upon it.”

Mr. Justice Long, in distinguishing this case from Lay v. City of Adrian, says:

“ The Detroit charter expressly refers to unliquidated claims; and while it provides, in the first paragraph of the section referred to, that no unliquidated account or claim or contract shall be received for audit or allowance unless it be accompanied with an affidavit, and then proceeds to recite what the affidavit shall contain, the next' paragraph expressly provides that it shall be a sufficient bar and answer to any action for the collection of any demand or claim that it has never been presented to the common council for audit or allowance, or, if on contract, that it was presented without said affidavit, and rejected for that reason.”

We think the court did not err in overruling defendant’s objections on this ground.

Numerous assignments are based upon the alleged insufficiency of the declaration. The declaration averred that the defendant allowed the sidewalk and bridge “to become and remain broken, torn up, and out of repair, and not reasonably safe and convenient for public travel,” and that, “while the plaintiff was walking over said walk and bridge, said sidewalk and bridge, by reason of its being in an unsafe, broken, torn up, and out of repair condition, broke and fell into said Kalamazoo river,” etc. The criticism made is that the declaration did not apprise the defendant that anything more would be claimed than that the surface of the sidewalk was out of repair. But, as the declaration was not demurred to, we think it sufficient to support the verdict, and that the charge that it broke and fell into Kalamazoo river by reason of its being-out of repair could hardly be construed to apply to the surface, and must have apprised the defendant of the plaintiff’s claim that the structure itself was defective, and for this reason fell.

Objection was made to the testimony of a witness for plaintiff, furnishing a comparison of white pine with other timber, in regard to its capacity for holding nails when sound, and as to its lasting qualities. This appears to have been based upon the statement that there was no allegation in the declaration that the bridge or sidewalk was constructed of defective material. The material may have been proper enough to use, but it would hardly be contended that a bridge constructed of wood would not require more frequent inspection than one constructed of stone, if well built. This testimony was offered for the purpose of indicating when the defendant should, in the exercise of prudence, have looked for decay. And we think, in the same connection, it was competent for the witness to testify as to the decayed condition of timber in other parts of the bridge, which were really part of the same structure.

Error is assigned upon the admission of evidence of the plaintiff’s injuries, the claim being that certain particular injuries named were not set out in the declaration. The testimony was directed rather to the results of injuries, and the case falls within Montgomery v. Railway Co., 103 Mich. 46.

It is argued in the brief of defendant’s counsel that, upon the whole case, the verdict should have been directed for defendant; the principal claim being that there was no evidence that the defendant had actual notice, or that the defect was of such long standing and of such character that the defendant could be charged with constructive notice, of the defect. But, without going at length into the testimony, we think that sufficient appeared by the testimony of defendant’s witnesses to warrant the jury in drawing the inference that the committee of the council had sufficient notice of the decayed condition of the timbers supporting the bridge to have called for action on the part of the city. There was evidence showing conditions which indicated that an inspection would have disclosed the condition of these timbers, and whether such inspection was timely made was a question for the jury, under the testimony in this case. The court charged the jury that notice to the city might be either actual or constructive, and that, if the condition of the bridge was such that by reasonable diligence the city should have known of its defective condition, that would be constructive notice, but that such notice could not be presumed unless of such long standing and of such a character as to actually arrest the attention of passersby, or of persons inspecting the bridge, and that the burden of showing these facts was upon the plaintiff. We think this instruction sufficiently favorable to defendant, under the ruling in Township of Medina v. Perkins, 48 Mich. 71; Stebbins v. Township of Keene, 55 Mich. 557; and Moore v. Township of Kenockee, 75 Mich. 332.

We think, upon the whole record, that the case was fairly presented to the jury, and that the judgment should be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    KAY v. TOWSLEY.
    1. Mechanics’ Liens — Mortgage—Priorities.
    Under section 9, subd. 3, of the mechanic’s lien law (Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893), providing that such liens shall be preferred to all other titles, liens, or incumbrances which may attach to or upon the building or land subsequent to the commencement of such-building, a mechanic’s lien takes irrecedence of a mortgage executed after the actual commencement of the building, although no part of the labor or materials for which the lien is claimed was performed or furnished until after the execution and recording of the mortgage.
    3. Same — Notice op Lien — Service.
    Section 6 of the act, providing for thé service of' a copy of the statement of lien upon the “owner” of the premises, does not apply to a mortgagee whose security is in the form of an absolute conveyance.
    Appeal from Shiawassee; Smith, J.
    Submitted April 8, 1897.
    Decided May 28, 1897.
    Bill by Richard F. Kay against Matthew P. Towsley, Charles A. Jason, Ephraim C. Wagar, Benjamin B. Crapo, and others, to foreclose a deed as a mortgage; and by Ephraim C. Wagar and Benjamin B. Crapo against Richard F. Kay and others, to enforce a mechanic’s lien. The causes were consolidated and heard together; and, from a decree adjudging the mortgage lien paramount to the mechanic’s lien, said Wagar and Crapo appeal.
    Reversed.

      F. S. Porter, for appellants.

      John T. McCurdy, for appellee Kay.
   Long, C. J.

On or about May 15, 1895, the defendants Matthew P. Towsley and Charles A. Jason, being the owners in fee simple of certain lands in the village of Shaftsburg, Shiawassee county, commenced the erection of an hotel building thereon. On May 29th, when the-foundation wall of said building was completed, they arranged with complainant, Kay, for a loan of $300, and on the same day, for the purpose of securing payment thereof, executed to him a deed of said lands, absolute in form, and thereupon took back a land contract from him,, providing for his redeeding said lands to them upon the payment of said. sum. This sum was advanced to them by complainant as follows: $75 on that date, $125 on June 6th, and $100 on June 15th. On June 25th, Kay loaned them $50 more. The deed was recorded June 3, 1895. The land contract was not recorded. Towsley and Jason continued in possession of the premises, and completed the erection of the building.

On June-25, 1895, Wagar and Crapo commenced furnishing materials to Towsley and Jason for the erection of the building, and from that date to August 17th of the same year, inclusive, furnished them with materials to the sum of $234.31, which materials, it is conceded, were, used by Towsley and Jason in the construction of the building. On October 15, 1895, Wagar and Crapo filed a notice of their intention to claim a lien on said premises, in the office of the register of deeds for Shiawassee county.

On November 9, 1895, Kay filed his bill in the circuit court for the county of Shiawassee, in chancery, to foreclose said deed as a mortgage. Afterwards, and in due time, Wagar and Crapo filed their bill in said court to enforce a mechanic’s lien upon said premises. The two suits were consolidated by stipulation, and heard as one suit. On the hearing the court decreed Kay a first lien under his mortgage on said premises, and defendants Wagar and Crapo a lien thereon to the amount of their claim, subject to said mortgage. Wagar and Crapo appeal. They claim they are entitled to a lien on said premises paramount to that of complainant’s (Kay’s) mortgage, for the reason that said mortgage was executed subsequent to the commencement of the erection of said hotel building.

Subdivision 3, § 9, Act No. 179, Pub. Acts 1891, as amended by Act No. 199, Pub. Acts 1893, provides that mechanics’ liens “shall be preferred to all other titles, liens, or incumbrances which may attach to or upon such building, machinery, structure, or improvement, or to or upon the land upon which they are situated, subsequent to the commencement of said building, erection, structure, or improvement.” This provision has been passed upon frequently by the courts, and it has been uniformly held that the lien has priority over a mortgage executed upon the lands or premises after the actual commencement of the building, though no part of the labor performed or materials furnished for which the lien is claimed was done or performed until after the execution and recording of the mortgage. Haxtun Steam Heater Co. v. Gordon, 2 N. Dak. 246 (33 Am. St. Rep. 776); Murray v. Swanson, 18 Mont. 533; Phil. Mech. Liens (3d Ed.), § 216; 2 Jones, Liens (2d Ed.), § 1470; Davis v. Bilsland, 18 Wall. 659; Dubois’ Adm’r v. Wilson’s Trustee, 21 Mo. 213; American Fire Ins. Co. v. Pringle, 2 Serg. & R. 138; Lampson v. Bowen, 41 Wis. 484; Vilas v. Manufacturing Co., 91 Wis. 607; Hewson-Herzog Supply Co. v. Cook, 52 Minn. 534. Jt is held that, under such a provision, liens attach as of the date of the commencement of the building, erection, or other improvement, regardless of the time when, or the person by whom, the particular work was done or the materials furnished for which a lien is claimed. 2 Jones, Liens (2d Ed.), § 1470.

But it is claimed that a copy of the notice of lien was not served upon the complainant. This was not necessary, under section 6 of the lien law. It was sufficient to serve it upon the owner of the premises. The complainant’s rights were those only of mortgagee.

The court below was in error in holding the moi’tgage paramount to the lien. The decree must be reversed, and one entered here giving defendants Wagar and Crapo a lien prior to the complainant’s mortgage. The defendants will recover their costs of both courts.

The other Justices concurred


author: Montgomery, J. Hooker, J.

text:
    OAKLAND COUNTY SAVINGS BANK v. STATE BANK OF CARSON CITY.
    1. Banks and Banking — Transfer of Stock — Bona Fide Purchaser-Lien of Bank.
    A bona fide purchaser of bank stock is not protected against a lien of the bank for an indebtedness due from the transferrer.
    2. Same — Estoppel—Authority of Cashier.
    A bank cashier, by his declarations that the bank has no lien upon the stock of a shareholder, estops the bank, as against one who relies thereon to his detriment, from asserting a lien on the stock for an indebtedness then due it, notwithstanding that, under 3 How.' Stat. § 3208a8, a transfer upon the books of the bank can be made only by the consent of the directors, when the holder is indebted to it on matured paper. Hooker and Grant, JJ., dissenting.
    Appeal from Ionia; Davis, J.
    Submitted February 9, 1897.
    Decided May 28, 1897.
    Bill by the Oakland County Savings Bank against the State Bank of Carson City to compel a transfer of stock upon the books of the defendant. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Fecletoa & Walbridge, for complainant.

      Fitz Gerald & Barry (George H. Cagwin and Francis A. Stace, of counsel), for defendant.
   Montgomery, J.

Complainant, on the 23d of March, 1893, extended a credit to Samuel S. Walker, a stockholder in the defendant corporation, upon his promissory-note of $3,000, and took as collateral three certificates, each representing $1,000 worth of stock in the defendant bank. Subsequently $1,000 of the principal was paid, and one of the certificates bf stock surrendered. This bill is filed, after a refusal by the defendant bank to recognize the complainant’s ownership in the stock, and to transfer the same upon the books of the bank, to compel such transfer.

After receiving the certificates, and on the next day, the complainant’s cashier wrote to the cashier of the defendant, saying:

“We have taken 30 shares of stock of your bank, represented by certificates 83, 84, and 85, issued to Samuel S. Walker, as collateral security to a loan. Please advise us if you have any lien on said stock.”

To which the defendant’s cashier replied:

“Your favor of the 24th to hand, in relation to bank stock. In reply, would say I do not hold any lien on said stock.
“Yours truly,
“E. C. Cummings, Cashier.”

At the time of the transfer of the stock by Walker to the complainant, Mr. Walker stated to the cashier of complainant that he was not indebted to the defendant bank. It now appears that at the time this letter of Cummings was written to the cashier, and at the time of the loan, Walker was indebted to the defendant bank, and under the statute a lien existed in favor of the defendant bank upon the stock. At the time the loan was procured, Mr. Walker was financially responsible, and it is resfeonably clear that, if the defendant’s cashier had informed the complainant of the true situation, the complainant would have been able to secure its claim. Walker has since become insolvent.

Two contentions are made on behalf of complainant: First, that complainant, in the first instance, as transferee of the stock, is entitled to priority over the defendant bank, as a bona fide purchaser of such stock; second, that, if this be not true, still the defendant has, by the letter of its cashier, estopped itself from asserting a lien upon the stock entitled to priority over complainant.

The first question is ruled against the complainant’s contention by Michigan Trust Co. v. State Bank of Michigan, 111 Mich. 306, and Citizens’ State Bank of Monroeville v. Kalamazoo Co. Bank, Id. 313. We think, however, that the defendant should be held estopped from asserting the priority of its lien upon this stock. The defendant’s contention is that under section 3208a8, 3 How. Stat., a transfer of the stock upon the books of the bank can be made only by the consent of the directors, in a case where the owner of the stock is indebted to the bank on matured paper at the time of the attempted transfer, and that the assignee takes the stock subject to this right. From this it is contended that, as the transfer of the stock subject to such a lien can only be made with the consent of the board of directors, it necessarily follows that the bank can only estop itself through the action of the board of directors. We think this contention cannot be maintained. Undoubtedly, as to one having knowledge of the fact of an indebtedness owing by the owner of the stock to the bank, the cashier would be without authority to waive the bank’s lien. But that is not this case._ It is the common practice for cashiers to have control of the books of the bank, and to conduct its correspondence. It cannot be doubted that the purchaser of stock not incumbered by a lien in favor of the bank might have it transferred upon the bank’s books without the consent of the board of directors; and the estoppel in this case arises out of the failure of the proper officer, who is custodian of the books of the bank and of its bills receivable, to truthfully answer a question relating to facts peculiarly within his knowledge.

The case of Cochecho Nat. Bank v. Haskell, 51 N. H. 116 (12 Am. Rep. 67), is instructive upon this question. Two questions were presented in that case: One ,was whether the cashier of the bank had power to discharge a debtor of the bank without payment, or to bind the bank by an agreement that a surety should not be called -upon to pay a note he had signed, or that he should have no further trouble from it; and, second, whether the bank could be estopped by his declaration that the note was paid. It was held, as to the first question, that it could not be inferred that the power to discharge an obligation due to the bank without payment, or to make such an agreement with a surety as that suggested, was within the scope of the cashier’s authority; but the court say:

“It would be otherwise, we think, as to his declaration that the note was paid. It is his duty to receive payment, and to keep the account of it, and he is the proper person to apply to, to ascertain whether a note has been paid or not. It would, indeed, be peculiarly within the scope of the business confided to him, to give such information.”

So here the complainant addressed the custodian of the books and of the bills receivable of the bank for information, and, when the cashier spoke in response to this request for information, the bank spoke, and should be held estopped from now asserting the facts to be otherwise than as stated to complainant in response to its inquiry. See, also, Merchants’ Bank v. State Bank, 10 Wall. 604. To assert that the law says that the cashier may not permit the transfer of stock of the bank while the lien exists upon it, that it follows from this that he cannot deprive the bank of a lien, and that, therefore, every one is bound to know that, if the bank is to be estopped by any one, it is the directors, is to describe in sections the circumference of the same circle. The question is not what steps should be taken by the purchaser of stock with knowledge that it is subject to a lien in favor of the bank, but the question is what are proper steps to be taken to ascertain tohether such a lien exists. If one may not do this by correspondence with the bank, or with the officer of the bank universally recognized as representing the bank in its correspondence, there would seem to be an end to legitimate transactions in stock of corporations. The fault in this assertion lies in a failure to recognize that, preliminary to the question of whether there shall be a transfer, preliminary to the purchase of the stock, common prudence suggests that the purchaser may inquire in the usual channels for the purpose of ascertaining whether the stock is subject to a lien. If such an inquiry be directed to the party who conducts the correspondence of the bank, it is bare assertion to say that, because he has not the power under the law to compel the board to consent to the transfer of the stock, he cannot, through a simple lie, estop the bank. The point is that in the correspondence upon the subject the bank speaks, through the cashier. It is the bank that speaks, itself, by an assertion which it makes by a perfectly proper and competent agency in that behalf.

The decree should be reversed, and a decree entered in this court for complainant.

Long, C. J., and Moore, J., concurred with Montgomery, J.

Hooker, J.

(dissenting). S. S. Walker, a stockholder in the defendant, which is a corporation organized under the State banking law, assigned 30 shares of his stock to secure a note that he gave to the complainant. Subsequently the complainant asked that said stock be transferred to itself upon the books of the defendant, and, being refused, filed the bill in this case to compel it. It appears that, at the time the stock was assigned, Walker was indebted to the defendant upon paper then due, and has so continued since, and defendant asserts a lien upon the stock under the statute.

The recent cases of Michigan Trust Co. v. State Bank of Michigan, 111 Mich. 306, and Citizens’ State Bank of Monroeville v. Kalamazoo Co. Bank, Id. 313, support defendant’s contention. It is said, however, that the defendant should be estopped by the conduct of its cashier from setting up a claim against the complainant. This is based upon correspondence between the cashiers of the two banks, whereby it is said to have become the duty of defendant’s cashier to inform the complainant of Walker’s indebtedness, which he did not do. Section 3208a8 of 3 Howell’s Annotated Statutes justifies a bank in refusing to transfer stock during the time that the owner is indebted to the bank upon matured paper, and assignees of the stock take it subject to this right. Furthermore, the act expressly prohibits the transfer of such stock upon the books at such a time toithout the consent of the hoard of directors. It is said that the cashier is the officer of whom a person proposing to buy stock would naturally inquire to ascertain whether or not the bank had a lien upon it, and that the purchaser would have a right to rely upon his statements, and that the bank could not afterwards question them by reason of an estoppel. The statute apparently attempts to secure the bank and its depositors against loss through its'shareholders by providing a lien upon the stock for sums due to the hank from its stockholders. It makes a transfer by a registered stockholder, at a time when he owes an overdue claim, invalid as against the bank, and prohibits a change in the registered ownership except by the consent of the board of directors. If any one can estop the bank, it is the board, not the cashier, whom the law deprives of all power to transfer the stock without consent of the directors, where the effect of the transfer is to cut off a lien. No one would pretend that a statement by a janitor could estop the bank. Could the messenger, collector, bookkeeper, teller, assistant cashier, vice president, or one of the directors, in such a case ? It may be said that they are on a different footing, because they are not the officers who represent the bank in its ordinary business transactions, while a cashier is. It is doubtless a common practice to treat cashiers as the business managers of banks, but the law imposes no such duties upon them, nor does it confide any specific power of this character to them. On the contrary,.it expressly prohibits it. The statute (section 3208a3)’ provides that the board of directors shall define his duties, as is the case in the national banking law. And it is not uncommon to find presidents or vice presidents in charge of banks. But, if it be admitted that the cashier has general charge, there is one thing that the law says he cannot do, and that is to deprive the bank of a lien. Every one is bound to know that, and that, if the bank is to be estopped by any one, it is by the directors. To say that the bank may be estopped in such a case as this is to say that, although a bank cashier is expressly deprived of authority to do an act, he has the power to bind the bank if he does the act. Where the act constituting the estoppel is one which the bank has the power to confer upon the officer, but has not expressly done so, a practice by the officer of performing similar acts in the course of the business, to the knowledge of the bank, may create an estoppel. The case of Cochecho Nat. Bank v. Haskell, 51 N. H. 116 (12 Am. Rep. 67), was such a case; the opinion expressly stating that—

“He [the cashier] may, however, have been specially empowered to do the act, or he may have been allowed by the directors to take the general charge and management of the business of the bank, so as to bring such agreement or statement within the scope of his agency. ”

This case has gone to the extreme limit in sustaining an estoppel, but not nearly so far as it is necessary to go in this case to sustain the complainant’s claim. See the case of Merchants’ Bank v. State Bank, 10 Wall. 604. In that case it would seem that the bank might have given the cashier the power, and, if it had not, the court seem to have inferred it from the extensive authority which the bank permitted the cashier to exercise. But it does not go so far as to suggest that an act prohibited by law might become the basis of an estoppel. A strong dissenting opinion was filed in this case.

In the case before us it is admitted that the cashier had not the power to transfer the stock, or to compel the board to consent to it, but it is claimed that through a simple lie he may accomplish this. The law seems to exclude the claim that the cashier had legal power to give such consent, if words are adequate to do so; and, if he could not bind the bank by an express agreement to waive its claim, he was certainly not able to do this by silence. Counsel for the defendant cite numerous authorities to the proposition that the power to release the security of banks is not vested in cashiers, on general principles; but, as the statute clearly prohibits it, we need not consider, the question.

The decree should be affirmed.

Grant, J., concurred with Hooker, J.


author: Moore, J.

text:
    RUHL v. A. RUOFF BREWING CO.
    1. Justices of the Peace — Garnishment—Disclosure—Liability of Garnishee.
    Judgment cannot be rendered against a garnishee in justice’s court unless his disclosure clearly shows a liability to the principal defendant.
    2. Same.
    A garnishee’s disclosure which does not expressly admit an indebtedness to the principal defendant, but, on the contrary, avers that the latter is indebted to the garnishee, and further states that, prior to the service of the summons, the garnishee had contracted in writing to pay the liquor tax of the defendant, who thereupon paid a part of the amount of such tax to the garnishee, agreeing to pay the balance in monthly installments, and that the garnishee had not paid the tax at the time the summons was served, fails to make a prima fade case for the plaintiff.

      Error to Wayne; Donovan, J.
    Submitted April 6, 1897.
    Decided May 28, 1897.
    Garnishment proceedings in justice’s court by John E. Ruhl against the A. Ruoff Brewing Company, as garnishee of John Pennell. Plaintiff had judgment, and the garnishee appealed to the circuit, where verdict was directed for the plaintiff. Pending the entry of judgment upon the verdict, plaintiff died, and the cause was revived in the name of his executrix, Louise Ruhl. The garnishee defendant brings error.
    Reversed.

      George Cox, for appellant.

      Durfee & Allor, for appellee.
   Moore, J.

Plaintiff had a judgment against John Pennell for $109, and instituted garnishee proceedings against the appellant, whose disclosure was made by its vice president, Edward Ruoff, who testified in justice’s court as follows:

“I had some money before service of summons, but the company had entered into a contract with the principal defendant. I had not paid the money for license. The company had it in its possession. Defendant is indebted to me. The secretary of our company signed an agreement to pay defendant’s license. Defendant has paid $135. This transaction was before the service of the summons.”

Afterwards defendant was allowed to file an amended disclosure, and Ruoff testified, further:

“ Our company made a contract with the principal defendant to pay his license, that was to be $300, which contract was in writing; and upon that agreement the company received from the principal defendant $135. This agreement was made prior to the service of the summons. Principal defendant was to pay balance at $25 a month. The license had not been paid by our company at the time of the service of the summons. The bond has been filed for license. August Ruoff and myself are the sureties as a part performance of this contract to pay the license.” .

Plaintiff offered no other testimony. The circuit judge held this made a prima facie case of defendant’s liability to the plaintiff. The appellant then asked Mr. Ruoff: “Now, at the time the summons was served upon you in this case, was the A. Ruoff Brewing Company indebted to John Pennell?” This was objected to. The objection stated by counsel was that Mr. Ruoff could not be cross-examined, because he was a witness for the plaintiff in the court below, and because he could not contradict his disclosure. The objection was sustained. The record does not disclose that an exception was taken. The following paper was then received in evidence:

“Detroit, Mich., June 10, 1891.
“We agree to pay John Pennell’s license for 69 Atwater street, for the year 1891 and the year 1892.
“A. Ruoff Brewing Co.”

Mr. Ruoff testified that Mr. Pennell paid $135 on that agreement, and was to pay the balance at $25 a month. He was then asked: “Now, state whether you did or did not pay this license of $300.” This was objected to, and the objection sustained. No exception appears in the record. The witness was then asked: “Were you, or were you not, indebted to J. Pennell when the summons was served upon you?” This was objected to, and the objection sustained, and an exception taken.

This is all the evidence in the case, and against the objection of the appellant the trial judge directed a verdict in favor of the plaintiff. The appellant brings the case here, assigning it to be error for the trial judge to hold that the disclosure of Mr. Ruoff made a prima facie case, and also assigning it to be error to exclude answers to the questions put to Mr. Ruoff, and in directing a verdict for plaintiff.

The plaintiff insists that, as the money had not been paid for the license, the appellant company was a trustee, and the fund could be garnished, — citing Seaman v. Whitney, 24 Wend. 260 (35 Am. Dec. 618); Kelly v. Roberts, 40 N. Y. 439; and other cases. The plaintiff also asserts that, as the appellant did not except to the rulings of the trial judge, it is not entitled to the benefit of its objection, — citing Ellis v. Whitehead, 95 Mich. 107. It will not be necessary to consider all these propositions. It has been repeatedly held by this court that the disclosure made by the garnishee defendant must show an indebtedness, or there must be a clear admission of goods, effects, or credits, not disputed or controverted by the garnishee defendant, in his possession, before he can be held. Hewitt v. Wagar Lumber Co., 38 Mich. 705; Sexton v. Amos, 39 Mich. 699; Spears v. Chapman, 43 Mich. 541; Weirich v. Scribner, 44 Mich. 73; Walker v. Railroad Co., 49 Mich. 446; Isabelle v. Iron Cliffs Co., 57 Mich. 123; Smith v. Holland, 81 Mich. 476. In the case at issue, not only was there a failure to admit an indebtedness, but the garnishee defendant denied an indebtedness, and the evidence showed that an agreement had been entered into between the principal defendant and the garnishee defendant, and that the money had been paid as part performance of that agreement before the disclosure was made. The trial judge, instead of directing a verdict in favor of the plaintiff, should have directed one in favor of the garnishee defendant.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Long, C. J. Montgomery, J.

text:
    WHITE v. TOWNSHIP OF RILEY.
    Negligence — Defective Bridge — Absence of Barriers — Proximate Cause.
    The fact that the immediate cause of a horse’s hacking over the unguarded approach to a bridge was that he took fright at a crack in the flooring of the bridge, which, by reason of the action of wind and snow, had apparently largely increased in width, does not render the absence of barriers on the approach so remote a cause of the accident, as to prevent a recovery therefor against the township having control of the bridge, based upon its negligence in this respect, if the situation was such as to be calculated to frighten horses of ordinary gentleness. Long, C. J., and Grant, J., dissenting.
    Error to St. Clair; Yance, J.
    Submitted April 7, 1897.
    Decided May 28, 1897.
    Case by Elizabeth. White against the township of Riley for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frank Whipple (J. B. Mcllwain, of counsel), for appellant.

      Avery Bros. & Walsh, for appellee.
   Long, C. J.

This action is for personal injuries, claimed to have arisen by the neglect of the defendant township. On the evening of January 23,1894, plaintiff, with her husband, was riding in a two-wheeled cart, drawn by one horse, and attempted to cross what is called “Belle River Bridge.” This bridge was 62 feet long, 16 feet wide, and about 10 feet above the water. The approach at the west end, where the accident occurred, is 16 feet wide, with wings or retaining walls extending westerly 12 feet and 6 inches, and widening westward to about 20 feet. The wing on the north side is from 6 to 7 feet above the water of the river, which comes close to the wall. The traveled part of the road at the west end of the bridge was 11 feet wide, and somewhat higher than the wall, with a slope to the wall. These retaining walls have no railings, or barriers. The bridge had a substantial railing reaching to each approach. Across the whole bridge there were cracks between the planks, through which the river could be seen; and about 17 feet east of the .west end of the bridge there was one crack H to 2 inches wide in the center, and other smaller cracks near by. The bridge had been in this condition some 15 years. On the evening in question, when the plaintiff and her husband reached the bridge, it was snowing and blowing. Some two or more inches of snow had fallen, and the action of the wind had the effect of blowing the fallen snow back each way from the cracks at the west end of the bridge,, causing them to appear much wider than they really were, — some of - the witnesses say, as wide as the hand, — and leaving a dark-colored plank bare for an inch or more on each side. When the plaintiff had driven onto the west end of the bridge about the length of the horse and cart, the horse became frightened, backed off the bridge, swung around, and backed off the approach; the horse, cart, plaintiff, and her husband all going over. This action is brought to recover for the injuries so received. On the trial the court below directed verdict in favor of defendant.

The plaintiff claims:

1. That the defendant was negligent in allowing cracks in the floor of the bridge.
2. That the defendant was negligent in not constructing barriers on the retaining walls forming a part of the approach.

It is claimed that the horse became frightened at the crack in the bridge, and, by reason of no barriers being erected on the approach, the horse backed off, and caused the injury.

It appears from the testimony of the plaintiff’s husband, who was the only eyewitness to the accident aside from the plaintiff, that the horse was gentle, and the family were accustomed to driving her over the bridge; that the snow on that night had blown up through the crack, and parted, so that it had the appearance of nearly a plank gone; that he had no trouble whatever in driving the horse onto the bridge; that, when he had driven on some 12 or 14 feet, the horse snorted, and began to back up. The witness then stated:

‘ ‘ It had snowed about an inch and a half. It was snowing quite snug. The storm was blowing in her face. It was a regular flurry of a snowstorm, but not what you would call a blizzard. I examined the plank after the accident, and saw the crack, and the black space along the crack where the snow had blown back. Looked about six inches wide, — looked like a hole. The wind blowing up from the river parted the snow each way from the crack. * * * I know it was the wind blowing up through the crack that frightened her, because she snorted. * * *
1 ‘ Q. Then I take it, from what you say, that on account of the storm, the blowing of the snow through the crack, and it looking so much larger than what it was, that the horse got frightened at it ?
“A. Yes, sir.
“Q. Then, if there had been no storm at all, you could have driven over there just as well .that night as any other time that you went over it, could you ?
“A. Likely. ‘
“Q. You never had any trouble?
“A. No; of course.
“Q. But if it hadn’t been snowing at all, and blowing that way, you think you could have gone along just as safe as you ever did ? .
“A. Likely. * * *
“Q. You say the snow blowing and the bluster, and leaving a dark streak each side of the crack, scared your horse ?
“A. Yes, sir.”

Other witnesses were called, who testified that the snow had blown away from the crack on each side, leaving a dark streak on each edge of the plank. This testimony is wholly uncontradicted.

It is argued by counsel for defendant from this testimony that the changed appearance of the bridge, caused by the wind and snow, was the proximate cause of the injury; and that the township cannot be held liable for the action of the wind and snow. The court below stated,, in directing the verdict for defendant:

“The fright of the horse was, therefore, without the fault of the township, and her backing off the bridge was also without its fault. The horse, having passed safely over the approach and onto the bridge, could not get off the bridge without some intervening cause. This intervening cause was the fright and backing of the horse, for which the township was not responsible. Without this intervening cause the accident could not have happened. It follows that the want of a railing was not the proximate cause of the plaintiff’s injury, and she cannot recover.”

Here was a perfectly gentle and steady horse. Plaintiff’s nusband says he had never seen her frightened before, and that his wife and children had driven her. He had broken her on an engine,' and she would eat oats when the whistle was blown. His wife and children had driven her over this very bridge only the Saturday night before, and she had many times before been driven over it. There had been no change in the bridge. It had been built some 15 years, and had been used in perfect safety for that time by the public, who passed over it daily. It was one of the most frequently-traveled thoroughfares leading to the village of Memphis, in that county.

The first question in the case is whether the neglect to place a barrier along the approach was the proximate cause of the accident. Others, for many years, had passed there safely. The roadbed was wide enough for safe passage, and the testimony shows that this spot had been safely passed by the plaintiff on that night. The township is liable only where the neglect complained of was the proximate cause of the injury. If such neglect was the secondary or remote cause, the township is not liable. Beall v. Township of Athens, 81 Mich. 540.

It must, we think, be conceded, under the circumstances here stated, that the want of a barrier was not the proximate cause. But plaintiff contends that it was one of the causes, and that, where two causes unite in producing an injury, one being the negligent act or omission of the municipality and the other something for which neither the municipality nor the party injured is responsible, and where the injury caused could not have resulted-but for the negligent act or omission of the municipality, such act or omission is the proximate cause of the injury. This contention, we think, is well supported by authority. Selleck v. Railway Co., 93 Mich. 380, and cases there cited. It is further contended by counsel for plaintiff that the crack in the planking on the bridge was the cause of the fright of the horse, and, but for that and the want of barriers, the accident would not have happened. It is contended, further, that the testimony of many witnesses in the case shows that other horses had been frightened at that crack in the bridge many times.

But it appears conclusively that the plaintiff’s horse never became frightened at the crack in its ordinary condition, and the testimony establishes the fact that, but for the changed condition of the crack on that night, the plaintiff’s horse would have gone forward. The testimony of plaintiff’s husband fully explains the cause of the fright. It was, he says, that the crack looked larger, and that was what the horse got frightened at; and that, if there had been no storm, he could likely have driven over at that time the same as at any other, and just as safely as he ever did. It was, as explained by him, the snow blowing and the bluster, and the leaving of a dark streak each side, that scared the horse. Most certainly the township authorities were not in fault for this. It was not one of the consequences which the township authorities should have foreseen and guarded against. It was the changed condition of the bridge, caused by the wind and snow, that was the proximate cause. The case is not like Ross v. Township of Ionia, 104 Mich. 320, where the water ran through the waste-weir, which frightened the horse. The roadway was constructed on the top of the dam, and no barriers were erected to the approaches. The horse backed off; and it was held that courts and juries should take into consideration the conditions which surround the highway at the particular point in determining whether a barrier should be erected. In the present case no such conditions existed that it can be said that barriers should have been erected. For 15 years it had been used with perfect safety. This horse had gone over it many times in safety, and it was only when other causes intervened, for which the township was not responsible, that the place became dangerous on that night. ’ We think the court very properly directed a verdict for the defendant.

The judgment should be affirmed.

Grant, J., concurred with Long, O. J. .

Montgomery, J.

I cannot accept the view that the defects in the highway and bridge shown by the evidence are not the proximate cause of the casualty resulting to plaintiff. I understand that the contention of defendant’s counsel upon this point necessarily involves a concession that, for an injury resulting to the plaintiff by reason of a want of barriers, the plaintiff might be held entitled to recover, and, further, that the cracks in the bridge, in the condition in which they were, were calculated to frighten horses of ordinary gentleness. The evidence in the case tends to show not only that this is true, but that in many instances horses were actually frightened in attempting to cross this bridge. The contention gets down to this: That the cause of the horse’s shying and backing up was the appearance of this bridge, which appearance was occasioned by the wide cracks in the floor of the bridge, and by the action of the wind in blowing the snow away from the cracks, giving an appearance of a wider opening than in fact existed. It would hardly be suggested that a highway is intended to be traversed only in fair weather. The authorities are so uniform that a highway is for every-day use, and that a traveler has the right to make use of the highway in the night-time, that such a contention would be without support if made. This court has frequently held that it is not incumbent upon municipal authorities to remove snow and ice, and this holding is based upon the ground that, as snow and ice are so common in this latitude, the intention of imposing the onerous duty upon a municipality of removing such accumulations will not be presumed in the absence of a clear expression of such legislative intention. It seems to me to be wholly illogical to hold the municipality exempt from this duty upon such grounds, and at the same time to hold that the natural action of snow, and the appearance which its fall would necessarily give to such a structure as the bridge in question, is so extraordinary as to amount to an intervening cause. The authorities were bound to know that snow falls in this climate, and that it will not rest upon air; that, if light, it will, to a greater or less extent, be blown back from a crack or opening such as that described in this bridge. This is no intervening cause. It is a condition necessarily arising out of other conditions sure to exist, namely, the cracks in the bridge and the storms which at certain seasons visit this latitude. Nor was the condition of this bridge such as might not have been foreseen by the authorities, if cognizance were taken of the action of the elements. If we adopt the rule that the authorities should be held responsible for such consequences as common experience would show to be usual, I think it is clear that the result cannot be held to be too remote to permit a recovery in this case.

The only distinction which can be made between this case and Ross v. Township of Ionia, 104 Mich. 320, is that in the Boss Case the conditions which caused the fright, and caused the horse to back off the approach to the bridge, existed the year round. In the present case, while this was not so, they were conditions certain to exist by the action of the elements, so common that this court, in taking judicial notice of the frequency of the fall of snow, has held the doctrine above alluded to. The fact that the injury occurred by the horse’s backing away from the bridge because of its fright does not render a want of barriers too remote a cause to permit recovery. See Langworthy v. Township of Green, 95 Mich. 93; Ross v. Township of Ionia, supra; Shaw v. Township of Saline, post; Gage v. Railroad Co., 105 Mich. 335.

I think the case should have been submitted to the jury under proper instructions.

Judgment reversed and new trial ordered.

Hookee and Mooee, JJ., concurred with Montgomeet, J.


text:
    KOCK v. BOSTWICK.
    Fraudulent Conveyances — Chattel Mortgages — Corporations.
    The fact that two chattel mortgages executed by an insolvent corporation to different persons were authorized by the board of directors at the same meeting, and given on the same day, does not constitute them parts of the same transaction, so that the fraudulency of one as to creditors vitiates the other.
    Error to Wayne; Frazer, J.
    -Submitted April 8, 1897.
    Decided May 28, 1897.
    Replevin by Jacob Kock against Noble Bostwick. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Bowen, Douglas & Whiting (Henry B. Graves, of counsel), for appellant.

      Thomas Hislop (Barbour & Bexford and Hoyt Post, of counsel), for appellee.
   Long, C. J.

This is an action of replevin, brought by the plaintiff, claiming as chattel mortgagee, against the defendant, a constable of the city of Detroit, who seized the goods and chattels covered by the mortgage in hostility thereto by virtue of a writ of attachment issued out of justice’s court at the suit of a creditor of the mortgagor.

The American Brass & Metal Works was a mercantile and manufacturing corporation organized under the laws of the State, with an authorized capital of $50,000, of which $34,230 was paid in. The plaintiff in this case, Jacob Kock, was its president, and owned a large amount of fully-paid-up capital stock. The corporation, on April 6, 1896, had assets, consisting of machinery, stock, and book accounts, which some time previously had been inventoried in the neighborhood of $60,000. On this date the corporation was indebted to the amount of about $42,000, made up as follows: About $20,225, borrowed of the Citizens’ Savings Bank of Detroit, upon notes of the corporation, indorsed by the plaintiff as an accommodation; about $7,000 of customers’ paper discounted by the corporation, and indorsed by the plaintiff as an accommodation; about $4,000 borrowed directly by the corporation from the plaintiff; about $11,000 of merchandise indebtedness. On April 6, 1896, also, the plaintiff owed his brother, Henry Kock, $2,000 for borrowed money.

On April 6, 1896, at the instance of the plaintiff and others, an emergency meeting of the board of directors of the corporation was called, which meeting the president attended, and almost the only business transacted was the authorization and direction by the board that the plaintiff, as president, should be secured by chattel mortgage for the amount of book account and all indorsed notes held by the Citizens’ Savings Bank and otherwise, and that the corporation should purchase from Henry Kock 1,578 shares of its own stock for the sum of $15,500, and pay for the same by giving him the note of the corporation secured by a chattel mortgage upon its property. At the same time, Jacob Kock, the president, transferred 1,578 shares of his own stock to Henry Kock, who took it in payment for the $2,000 debt owed by the former to the latter, and thereupon, at the same time, the old certificates of stock were surrendered, and a new certificate issued on the books of the company for 1,578 shares to Henry Kock.

On April 18, 1896, in pursuance of the order of the board of directors made on April 6th, two chattel mortgages were executed by the president and secretary in the name of the corporation, — the first, for the sum of $31,100, to the president himself, to secure the indebtedness and liability recited above; and the other, subject to the first, to Henry Kock, for $15,500, to pay for the stock bought of him by the corporation. These mortgages were placed on record April 20, 1896, and the president and plaintiff in this case took possession under the first mortgage, running to him.

On May 21, 1896, Maurice Weil commenced suit by attachment in justice’s court for a $500 merchandise claim against the American Brass & Metal Works; and the defendant, a constable, seized about $1,100 worth of metal belonging to the corporation, in hostility to the two mortgages. On' May 23d the corporation executed a third chattel mortgage for $20,225 to the Citizens’ Savings Bank of Detroit, securing the same notes for the indorsement of which the plaintiff was secured in the first chattel mortgage. Jacob Kock foreclosed his first mortgage under the power of sale, bid in the property himself for the sum of $23,750, and thereupon proceeded to replevin from the defendant1 the property held by him as attaching officer. All these three chattel mortgages covered all the property of every kind and nature owned by the American Brass & Metal Works.

It is the contention of the defendant that he represents a creditor of the American Brass & Metal Works, who has secured a lien on the mortgaged property of the latter; and, thus being in a position to attack the first two mortgages, he has shown that they were made with the intent of hindering, delaying, and defrauding the creditors of the American Brass & Metal Works, under the provisions of 2 How. Stat. § 6203, and are therefore void as to him. In order to avoid both of these mortgages, the defendant insists that the second mortgage, made to Henry ICock, was grossly fraudulent, and its inception was so participated in by all parties to the first mortgage as to vitiate the latter; that both mortgages were parts of one transaction, and the fraud in the one tainted the whole. The circuit judge charged the jury that the second mortgage, given to Henry ICock, was fraudulent and void. The defendant contended, further, that the two mortgages constituted parts of one and the same transaction; that all the honest indebtedness owing to or for which the plaintiff was liable on account of the corporation was put in the first mortgage, and the second one was created and used to'cover up the equity-of redemption in the property so as to prevent redemption or bidding at the sale by unsecured creditors, and thus to permit the plaintiff to buy in the property himself with no surplus to account for. The trial court refused so to instruct the jury, and held that there was no such evidence, and stated to the jury:

“I will say to you that I consider these two mortgages as separate and distinct transactions under the evidence; but, even if they were the same transaction, or part of the same transaction, or so mingled together as to be part of the same transaction, or the same transaction, still I do not believe that one mortgage being fraudulent under the law of this State would vitiate or destroy the other.”

It was conceded that the first mortgage was valid unless made invalid by the making of the second mortga'ge. It appears that the mortgages were given on the same day, and authorized by the board at the same meeting. This is the only evidence in the .record upon which the claim is made that they were parts of one and the same transaction. The first mortgage was given to Jacob Kock, and the second to Henry Kock. It has been many times held in this State that a debtor may lawfully secure one creditor rather than another. Sweetzer v. Mead, 5 Mich. 110; Olmstead v. Mattison, 45 Mich. 617. And a security made to secure an honest debt will be good although the debtor may know that the effect will be to hinder and delay other creditors. Jordan v. White, 38 Mich. 253; Warner v. Littlefield, 89 Mich. 329.

In the case of Hoey v. Pierron, 67 Wis. 262, 270, the same question was raised as presented here; that is, that all the mortgages were executed at the same time, and, one of them being fraudulent and void, the others were tainted with the fraud. It was said:

“It is claimed, in effect, that, as the four mortgages were executed at the same time, they should be regarded as a part of the same transaction, and, as the $600 mortgage was void, they should all be regarded as fraudulent and void as to the mortgagor’s creditors. But the invalidity of the note and mortgage of $600 was by reason of their being given for an insufficient consideration, to wit, the wife’s services for her husband. That fact, of itself, did not establish any intent on the part of the mortgagor to hinder, delay, or defraud his creditors in giving either of the other mortgages.”

The same rule was stated in Crawford v. Neal, 144 U. S. 585.

We think the court was not in error in saying that the giving of the two mortgages was not one and the same transaction, and in holding that the fact of the invalidity of the mortgage given to Henry Kock in no manner affected the rights of the plaintiff under his mortgage. We find no such facts and circumstances in the record as would raise a question of fact to be passed upon by the jury. The other questions in the case have been examined, and we find no reason to reverse the judgment.

The judgment must be affirmed.

The other Justices concurred.


text:
    BURROWS v. BROOKS.
    Constitutional Law — Exemptions—Labor Debts — Class Legislation.
    Section 1 of Act No. 14, Pub. Acts 1885 (8 How. Stat. § 1717a), limiting the right' of exemption to the articles therein enumerated, not exceeding $500 in value, in cases where the execution is issued upon a judgment for personal labor, is invalid as class legislation, and as contravening section 1, art. 16, of the Constitution, which provides that the personal property of every resident of the State, to consist of such property as shall be designated by law, shall be exempted, to the amount of not less than $500, from sale on execution or other final process of any court, issued for the collection of any debt.

    Error to Berrien; Coolidge, J.
    Submitted April 7, 1897.
    Decided May 28, 1897.
    Replevin by Jasper Burrows against James Brooks. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      James O’Hara, for appellant.

      Gore & Harvey, for appellee.
   Moore, J.

Plaintiff is a drayman. Mr. McMullen obtained judgment against him for personal work and labor in justice’s court. The defendant, who is a deputy sheriff, by virtue of an execution issued upon said judgment, levied upon a wagon belonging to and used by plaintiff in his business. The wagon levied upon, together with his team, harness, etc., used by him to carry on his business, did not exceed in value the sum of $250. Plaintiff, claiming that the wagon was exempt, demanded its return of the officer, and upon his refusal to return it brought replevin. On the trial the court refused to direct a verdict for plaintiff, but directed a verdict for defendant, on the ground that the wagon was not exempt, .under section 1, Act No. 14, Pub. Acts 1885 (3 How. Stat. § 1717a). Plaintiff comes here on error.

The sole question in this case is whether the portion of Act No. 14, Pub. Acts 1885, relative to the exemption of personal property from' levy and sale under executions issued upon judgments for labor debts, is valid or not. If it is, the judgment should be affirmed. If it is not, the judgment should be reversed, and a judgment entered here for plaintiff for nominal damages.

There can be no doubt that under subdivision 8, § 7686, 2 How. Stat., the wagon in question was exempt from levy and sale, unless it is made subject to levy by section 1, Act No. 14, Pub. Acts 1885, which reads as follows:

“That the following personal property only, not exceeding in value five hundred dollars, shall be exempt from levy and sale under any execution issued upon a judgment obtained in or before any competent court of this State for work, labor, or services, other than professional services, done or performed by any person: Spinning wheels, weaving looms with the apparatus, and stoves put up and kept for use in any dwelling house; cemeteries, tombs, and rights of burial, while in use as repositories of the dead; the library and school books of every individual and family, and all family pictures; one cow, and provisions and fuel for the comfortable subsistence of every person and family for one month; and household goods, furniture, and utensils. ”

By its terms, this section of the statute would unquestionably subject the property to levy and sale.

Article 16, § 1, of the Constitution, reads as follows:

“The personal property of every resident of this State, to consist of such property only as shall be designated by law, shall be exempted, to the amount of not less than five hundred dollars, from sale on execution or other final process of any court, issued for the collection of any debt contracted after the adoption of this Constitution.”

When this constitutional provision was adopted, there was a general law upon the statute book, which has been and is substantially the same as the one now in existence. It provides as follows:

‘ ‘ The following property shall be exempt from levy and sale under any execution, or upon any other final process of a court: * * * The tools, implements, materials, stock, apparatus, tearii, vehicle, horses, harness, or other things to enable any person to carry on the profession, trade, occupation, or business in which he is wholly or principally engaged, not exceeding in value two hundred and fifty dollars.” 2 How. Stat. § 7686, subd. 8.

It will be noticed that the constitutional provision refers to the personal property of every resident of the State, which property, when designated by law, shall be exempt from sale on execution for the collection of any debt. It will also be noticed that the general exemption law complies with the constitutional requirements in all particulars. The act of 1885 does not exempt the property mentioned therein from levy and sale upon process issued^for the collection of any debt, thus not meeting the constitutional requirement. The property mentioned in the act is exempt from levy and sale upon executions issued only upon judgments obtained “for work, labor, or services * • * * done or performed by any person.” When the provisions of the two statutes in relation to exemption are attempted to be enforced, it will be found that property is exempt from .levy and sale under one act which is liable to levy and sale under the other. It would not be difficult to suppose a case where, by the application of both exemption laws, so little property would be left to the debtor as to wholly deprive him of the right of exemption guaranteed to him by the Constitution. Section 1, Act No. 14, Pub. Acts 1885, is class legislation (Tuttle v. Strout, 7 Minn. 465 [82 Am. Dec. 108]; Coleman v. Ballandi, 22 Minn. 144), and is contrary to the provisions of section 1, art. 16, of the Constitution.

It is said by counsel that the object and intent of this law is, like many upon our statute books, for the protection of laborers, as, for example, the law giving a lien to a. mechanic for his work upon a chattel, a lien to a livery-stable keeper for the care of animals, etc., which have been held to be within the admitted powers of the legislature. All of these laws proceed upon the theory that the lienor has added to the value or contributed to the necessity of the thing upon which he has a lien, and to that extent has an interest in it, which he ought not to be made to surrender until his interest is satisfied; and none of these laws are in conflict with constitutional requirements. So, too, in relation to property not being, exempt from levy and sale for the purchase price. The provision is found in the general law of exemptions, and applies to all • persons, and proceeds upon the theory that the purchaser of propei'ty should not be allowed to get and retain the property of another and not pay for it. Wap. Homest. & Exemp. 335. In morals, if not in law, property does not belong to the purchaser until the interest of the seller in it is extinguished by paying him the purchase price. These principles do not apply to the provisions of the law of 1885. Under this constitutional provision, the power is given to the legislature to prescribe the kind of property which shall be exempt; but the Constitution itself speaks upon the question of what debts the exemption shall be good as against, and provides that such property as shall be prescribed by the legislature shall be exempt as against all debts, not debts of a, particular class, or all debts except a particular class. See Thomp. Homest. & Exemp. § 16.

Judgment is reversed, and judgment entered here in favor of the plaintiff for six cents damages, and costs of both courts.

The other Justices concurred.


author: Grant, J. Moore, J. Grant, C. J.

text:
    SULLIVAN v. ROSS’ ESTATE.
    1. Judgment — Res Judicata — Claims Against Estates.
    The Supreme Court reversed a judgment in favor of one who had appealed to the circuit court from the disallowance by commissioners of his claim against a decedent’s estate, for error in permitting a recovery upon an alleged oral contract, when, as was found, claimant’s own evidence showed a contract in writing. Thereafter, permission to amend the pleadings so as to set up a breach of trust under the written contract was refused by the circuit judge, and mandamus to compel the allowance of the amendment was denied in the Supreme Court, without discussion of the merits. The claim sought to be so interposed was subsequently disallowed in the probate court, and an appeal was taken to the circuit. Held, that the effect of the previous decision was not to render the controversy res judicata, but merely to determine what should be the basis of the judgment, and that the denial of mandamus did not affect the issue.
    3. Election of Remedies — Mistake.
    While it is true that a person is bound by an election between two inconsistent remedies, one having a meritorious claim, who mistakes his remedy, and attempts to enforce it in an inappropriate action, wherein no recovery can be had, is not precluded thereby from resorting to his proper remedy.
    3. Same — Deception oe Court — Public Policy — Estoppel.
    The prosecution of a claim against a decedent’s estate for the purchase price of logs alleged to have been sold and delivered to decedent under an oral agreement, though carried on with knowledge that the claim as presented is unfounded, and with an intent to deceive the court by keeping it in ignorance of a written contract by which the relations of the parties are defined, will not, on grounds of public policy, estop the claimant from thereafter asserting his rights under the written contract, and from seeking a recovery based upon the breach of a trust thereby created. Grant,
    C. J., dissenting.
    4. Estates of Decedents — Presentation of Claims — Accounting —Equity.
    A claim for an accounting against an estate on a contract creating a trust relation between claimant and decedent, where the transactions were all completed during decedent’s lifetime, and were of such a character that, had he lived, the entire controversy could have been settled in a court of law, maybe presented in probate court, without a resort to equity.
    Error to Marquette; Stone, J.
    Submitted January 13, 1897; original opinion, for affirmance, June 7, 1897. Rehearing granted April 5, 1898; reargued June 7, 1898;
    final opinion, overruling the earlier one, September 20, 1898.
    Thomas G. Sullivan presented a claim against the estate of James G. Ross, deceased. The claim was disallowed by the probate judge, and claimant appealed to the circuit court. From a judgment for defendant on verdict directed by the court, claimant brings error.
    Reversed.
    The facts, merits, and contention involved in this suit are fully stated and discussed in an exhaustive opinion by Chief Justice McGrath in 98 Mich. 570, which was concurred in by the entire court. After that opinion was rendered, the claimant made a motion in the circuit court for leave to amend his claim, based upon the theory that Ross & Co. had violated the agreement-of June 24th, and that “in the execution of the trust [ci’eated thereby] they did not exercise reasonable care, but, on the contrary, carelessly, negligently, and recklessly lost a portion of said logs, of the value of $40,000, and carelessly, negligently, and recklessly sawed the balance of said logs into lumber, whereby the lumber was worth $40,000 less than it would have been if said logs had been cut into lumber with reasonable care.” Other matters are set up in the motion, but the above quotation states the principal claim. This motion was denied by the circuit court for the following reasons:
    ‘ ‘ (1) In the exercise of the discretion which the court has to grant amendments for the furtherance of justice, I do not think that the ends of justice would be promoted, nor the cause of justice encouraged, to continue this litigation. Further, it seems to me that the Supreme Court has disposed of the case upon the merits, and that claimant is not in a position to better his standing in this court by an amendment of his claim.

      “ (2) The claimant has elected his cause and remedy. He alleged and swore to a sale and delivery of these logs after the contract of June 24, 1884, was produced. He having pursued this remedy and course, the other is gone. Not only does the averment of a sale and delivery amount to a solemn admission of a fact, but the claimant’s testimony, often repeated, estops him from taking the position which he now, by amendment, seeks to assume. This cannot be permitted where the party has a choice of remedies or courses to take. Parties are bound by their written admissions made in the progress of a case, and cannot be permitted to repudiate them at pleasure. The same rule applies with equal force to the horses and other property.
    “ (3) To grant this motion would be to allow the claimant to enlarge and change the case presented to the commissioners. The claim now proposed was never passed upon by the commissioners. They passed upon the question of a sale; not on the conduct of a trustee. This court has no original jurisdiction over claims against estates of deceased persons. Such cases must come on appeal from the probate court, and nothing can be tried in the circuit court that was not presented to the commissioners. I think that the Supreme Court of this State has gone far enough upon this branch of the case to warrant me in denying the motion on this ground. ”
    Claimant then petitioned this court for the writ of mandamus to compel the circuit court to allow the amendment. An order to show cause was granted, and upon the hearing the relief prayed for was denied. No written opinion was filed. Claimant then filed the present claim in the probate court, setting up substantially the same claim that was made upon the motion for leave to amend in the circuit court. It was again disallowed by the probate court, and appeal taken to the circuit court, which directed a verdict and judgment for the defendant upon the ground that claimant was seeking a remedy utterly inconsistent with the remedy pursued in his former suit.

      Moore & Moore (Ball & Ball and T. JS. Tarsney, of counsel), for appellant.

      Clark & Péarl (John D. Conely, of counsel), for appellee.
   Grant, J.

(after stating the facts). The circuit court was right in directing a verdict for the defendant.

The question was res judicata. The questions presented to the circuit court upon a motion to amend are precisely the same as those now presented. The court denied the amendment, whereupon the claimant filed his petition for a mandamus in this court. The questions were fully argued in briefs and orally, and the writ was denied, and the same reasons are now presented against the order of the court that were then presented.

Claimant in the former suit chose his remedy, and the law does not now permit him to assert another. Counsel cite several cases in support of the rule, about which there is no dispute, that “a judgment given against a plaintiff on the single ground that he has mistaken his remedy or form of action is no bar to his subsequent suit brought in the proper form.” But these authorities do not cover the present case. Claimant presented his claim in the probate court upon the basis that he had sold his interest in these logs to Ross & Co. as 9,000,000 feet and at $,9 per 1,000. He was defeated, appealed to the circuit, where two trials were had. Whatever may be said about his knowledge of the contract of June 24th upon the hearing in the probate court and upon the first trial in the circuit, he had such knowledge upon the second trial, and still insisted upon a sale, — a claim for which we held there was not the slightest foundation. If upon that trial verdict had been against him, would he have been permitted to bring another suit, based upon the trust relation ? If he had set forth his claim in two counts in the declaration, one based upon the contract of sale, and the other based upon a breach of trust under the contract of June 24th, the court would, upon motion, have compelled him to elect upon which count he would proceed. If he had elected, and been beaten upon the count so elected, would the court then permit him to bring suit upon the other, count? Claimant stands in no better position than he would if he had put two such counts in his declaration. With full knowledge of all the facts, he deliberately chose his remedy, and put the estate to a very large expense .in his attempt to sustain his claim. It is not a case of a mistake in the remedy, but a deliberate choice of remedies. The law does not permit litigants to thus play fast and loose, especially with the estates of dead men, but leaves them to lie upon the beds of their own making.

Judgment affirmed.

The other Justices concurred.

ON rehearing.

Moore, J.

The questions involved in this case up to February, 1894, are fully stated in Sullivan v. Ross’ Estate, 98 Mich. 570. A reference to that case will make it unnecessary to repeat what is there stated. The case was here again, and is reported at page 311, ante. A reference thereto as to the history of the case subsequent to the events stated in 98 Mich. 570, will avoid the necessity of repeating many of the details of the case here. It was claimed on the part of the appellant that the case was wrongly decided, and a rehearing was ordered.

In the former opinion, ante, it was held — First, that the question involved in the case was res judicataj second, that claimant in his former suit chose his remedy, and the law does not now permit him to assert another. Upon the rehearing, careful and able oral arguments were made, and additional briefs were filed. In deciding the case, it may be well to go more into detail as to the history of the litigation prior to the advent of the case in this court, and to consider what was decided in 98 Mich.- 570. It is well to remember at the outset that the case originated in the probate court, where claimant presented several items which he sought to have allowed in his favor against the defendant estate. The principal item, and the one about which the principal controversy has arisen, was a claim for 9,000,000 feet of lumber, which he alleged was sold by an oral bargain to Mr. Ross, through one Connolly, his agent, for the sum of $81,000. He claimed there was due him from the estate, stated in round numbers, the sum of $70,000. The defendant admitted that Ross & Co. had received upwards of 7,000,000 feet of lumber belonging to plaintiff, but claimed that they made payments and advances to plaintiff to such an extent that not only they did not owe plaintiff anything, but plaintiff owed them upwards of $23,000. The éstate denied that the lumber was sold by oral contract, and claimed that Ross & Co. received the lumber and disposed of it according to the terms of two written contracts made in the fall of 1883, supplemented by a written contract made in June, 1884. The claims of the parties were submitted by the trial judge to a jury, who returned a verdict in favor of the claimant, and in doing so must have found the oral contract to exist.

The opinion in 98 Mich, indicates clearly that the court were of the opinion that the written evidence made by the plaintiff himself was inconsistent with the existence of the oral contract, and was consistent only with the existence of the written contract. The judgment was reversed, and a new trial ordered. Up to this point it is clearly evident that the jury passed upon the relation of the parties upon the theory that the oral contract existed, and did not undertake to decide in whose favor the balance should be, or for what amount, upon the theory that the written contract was to control. It is also evident, as to this principal item, that it was presented to the probate court for a definite quantity of lumber, at a stated price, according to the terms of the alleged oral contract, and was not such an item as must be presented if it is to represent a claim for the lumber upon the theory that the transaction is to be controlled by the written contract. After this court decided that the "written contract must control, and a new trial was ordered, claimant attempted to amend his claim so as to bring it within the contract this court said must control. The circuit judge declined to permit the amendment, for the reasons stated in the opinion, ante, and, upon an application for a mandamus, this court declined to interfere. No written opinion was filed, so the reasons for this action of the court cannot be determined here. It might well be said that the claim presented before the probate court and the issue there made was not the same as the one which would be presented if the amendment was allowed, and for that reason the application for a writ of mandamus was refused. I do not think it can be' said that, because of the mandamus proceeding, the question is res judicata. Can it be said, because of the proceedings prior to the decision in 98 Mich., that the question is res judicata ?

The plaintiff claimed a balance due growing out of the oral contract. The defendant claimed that the written contract should control, and that a balance was due it. The jury found in favor of the plaintiff. This court said they did wrong, because the written contract must control, and ordered a new trial. The plaintiff then sought to so frame the proceedings as to permit the case .to be heard upon the theory that the written contract should control. He has not so far been able to do it. It is very clear that a dispute exists between the parties as to how much is due, and from whom, if the written contract is to control. It is equally clear that that question has never been passed upon by the court. The attitude of the plaintiff is:

“Large dealings existed between us. I claimed the oral contract should control. The court says I am wrong in the claim, and the written contract must control. Conceding it must control, defendant has had a large quantity of my lumber, for which it owes me a large sum of money; and as the defendant disputes my contention, and claims I owe it, the question should be submitted to the jury to decide.”

The decision in 98 Mich, decides which contract shall control, but I do not think either it or the case as tried in the circuit court has decided what the judgment should be upon the basis of the written contract. The pleadings were not in such a condition that the issue thus stated could be tried. There has been no trial upon the merits of the controversy between these parties. The plaintiff sought to recover upon an oral contract. He had no right of action upon that contract, because the court has said that no such contract existed. Can it be said that defendant shall not be required to account for the proceeds of seven or eight millions of feet of lumber, which it admits it had, because plaintiff claims that the transaction was evidenced by an oral contract, when the court finds that no such contract existed, but that a written one did ? I think the" situation is stated in McLaughlin v. Austin, 104 Mich. 489:

“No rule is better settled than the proposition that one having the choice of two inconsistent remedies is bound by an election, and that suit brought upon one precludes a subsequent resort to the other claim. Thus, one may waive a tort by bringing an action in assumpsit, or may lose his right to bring assumpsit by commencing an action for the wrong committed. One may sometimes rescind a contract, and assert title to property that he has parted with, or he may affirm the contract, but he cannot do both. Having elected by bringing an action upon one theory, he has no right afterwards to sue upon the other. Thompson v. Howard, 31 Mich. 312, and cases cited; Brown v. Littlefield, 11 Wend. 467, 1 Wend. 398; Morris v. Rexford, 18 N. Y. 557; M'Elroy v. Mancius, 13 Johns. 121; Sanger v. Wood, 3 Johns. Ch. 416. This rule is not inconsistent with the practice of bringing -a second and different action where it appears that the plaintiff never had a right of action as first brought, and therefore could not have elected. There is a difference between an election of remedies and a mistake of remedy, and the law has not gone so far as to deprive parties of meritorious claims merely because of attempts to collect them by inappropriate actions, upon which recovery could not be had. Morris v. Robinson, 3 Barn. & C. 196; Peters v. Ballistier, 3 Pick. 495; Butler v. Hildreth, 5 Metc. (Mass.) 49.”

See Fifield v. Edwards, 39 Mich. 264; McKinney v. Curtiss, 60 Mich. 611; Farwell v. Myers, 64 Mich. 234; 2 Black, Judgm. § 715; Chaddock v. Tabor, (Mich.) 72 N. W. 1093.

It is said in the earlier opinion, ante, that claimant in the former suit chose his remedy, and the law does not now permit him to assert another. It will appear from the authorities already cited that if, in choosing his remedy, he has made a mistake, and for that reason failed, he is not cut off from pursuing the right remedy. And I think that is just what appears here. It is said that Mr. Sullivan has deceived the court, that he attempted to assert a claim which did not exist, and for that reason, upon grounds of public policy, he ought not to be heard in court again.. The testimony was conflicting in relation to the circumstances surrounding the execution of the written contract, but the court has already said that written admissions made by Mr. Sullivan indicate clearly that the written contract was to control the parties. The record shows that this contract could not for a time be found. Considerable time elapsed while these transactions were going on. We all know how fallible men are, and how prone they are to believe what it is to their interest to believe. But suppose it be conceded that Mr. Sullivan was untruthful, and knew he was, in giving his testimony; while that fact is to be condemned, and would affect his testimony in any subsequent trial, can it be said that he has no right to have this controversy settled by the courts? He says that there are a good many thousand dollars due him. If that is true, is it a sufficient reply to say, “Even if there is, you have attempted to deceive the court, and for that reason it will not listen to you, and the defendant may keep what it has ? ” It is more in accordance with my sense of justice to hold that a jury should be allowed to say upon the merits, with an issue framed according to the rulings of the court, which of these parties owes the other.

It is urged that the claim should not have been presented in probate court, but that the aid of a court of equity should be invoked. Many cases are cited in support of this proposition, among others the case of Sullivan v. Ross’ Estate, 98 Mich. 570. I think, however, this case is easily distinguishable from the cases cited. The transactions in this case were all completed during the lifetime of Mr. Ross. The lumber has all been sold, and a money judgment will satisfy all proper claims. Wheeler v. Arnold, 30 Mich. 304. If Mr. Ross had lived, there would have been no difficulty in settling the entire controversy on the law side of the court. There is nothing in the law questions involved that cannot be taken care of upon the law side of the court. The plaintiff should have been allowed to go to the jury with his case.

The judgment is reversed, and a new trial ordered.

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

Grant, C. J.

(dissenting). A re-examination of the authorities and of the record has confirmed me in the correctness of our former opinion. Expressed in plain English language, the decision in 98 Mich. 570, rendered by Chief Justice McGrath, means that Mr. Sullivan presented a false claim to the court, knowing it to be false, and subjected the estate to great expense for the different trials of that suit. In order to recover now, he must take a position utterly inconsistent with the claim there made. As I read the authorities, when one has deliberately and intentionally planted his suit upon one theory, and that theory a false one, and known to be false, the law does not permit him in a subsequent suit to recover upon another theory. Besides, the present record shows that his present claim is utterly inconsistent with his conduct and acts, and is devoid of any justice or equity. On the undisputed evidence, he is heavily in debt to the Ross estate unless he can make out a claim for tort arising from the alleged loss of logs and careless sawing at the mill at Sault Ste. Marie. His own scale of the logs was 7,511,077 feet. He wrote Mr. Ross, stating this to be the correct amount, that it was not as large as was anticipated, and asked for a reduction in price. He tried to make a sale based upon this scale. He now claims there were 9,000,000 feet. The record shows that about 7,000,000 feet were sawed and sold, thus showing that there was but a small loss in any event. It seems to me that the law puts the seal of condemnation upon such a course of conduct, and that courts should put an end to it.

I think the former opinion should be affirmed.