text:
    STOWELL v. STANDARD OIL CO.
    1. Jurors — Voir Dire — Discretion of Court.
    On the trial of an action for damages resulting from an explosion caused by adulterated kerosene oil sold by defendant, it is within the discretion of the court to allow counsel for plaintiff to ask jurors on the voir dire whether they would consider it negligent to extinguish a lighted lamp by blowing across and down the chimney.
    2. Same — Challenge for Cause — Overruling — Harmless Error.
    The overruling of a challenge of a juror for cause, if error, is harmless, where the party challenging had exercised but one peremptory challenge when the panel was completed.
    3. Negligence — Sale of Adulterated Kerosene — Action for Damages — Expert Evidence.
    On the trial of an action for damages resulting from an explosion caused by adulterated kerosene oil sold by defendant, it was proper to allow an expert witness to describe the process of producing kerosene oil from petroleum, with the purpose of showing that gasoline is the lighter product, since it tended to show what the substance sold was.
    4. Same — Properties of Kerosene.
    For a like reason it was competent to snow that gasoline would throw off a vapor at a lower temperature than kerosene oil of the legal test standard, and that oil of the legal test would not ignite under the conditions shown to exist, and that, if mixed with gasoline or other similar substance, it might do so.
    5. Witnesses —Examination—Experts —Hypothetical Questions.
    A question to an expert witness calling for an opinion on a state of facts not known to him, or stated hypothetically in the question, is properly excluded.
    6. Harmless Error — Rejection of Evidence.
    The erroneous rejection of testimony is harmless where the fact is sufficiently shown by the same witness elsewhere.

      7. Negligence —Sale of Adulterated Kerosene — State Oil Inspector — Cross-Examination. .
    On the trial of an action for damages resulting from an explosion caused by adulterated kerosene oil sold by defendant, where a deputy oil inspector has testified as a witness for defendant, a rigid cross-examination is justified, and comment on his loose method of conducting inspections is within the proper bounds of argument.
    Same — Pleading.
    Under a declaration alleging that kerosene oil sold by defendant was “adulterated,” it may be shown that the adulteration was the result of improper manufacture as well as by admixture after manufacture.
    9. Same — Sufficiency of Evidence.
    In an action for damages arising from negligence, the fact that plaintiff’s case rests largely upon inferences to be drawn from facts proved is not fatal to'it, where it does not rest upon mere conjecture.
    10. Same — Liability of Wholesaler. ;
    The seller of an article of commerce, not in itself dangerous, is not responsible for consequences to a purchaser from his vendee resulting from defects unknown to the original seller.
    11. Same — Statutory Provisions.
    The manufacturer or wholesaler of kerosene oil, which is inferior to the test required by-Act No. 26, Pub. Acts 1899, is liable for resulting damages to a consumer.
    Error to Clinton; Stone, J.
    Submitted October 19, 1904.
    (Docket No. 53.)
    Decided January 30, 1905.
    Case by Elmer Stowell against the Standard Oil Company for personal injuries.. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      H. E. & E. L. Walbridge (Alfred D. Eddy and John D. Canely, of counsel), for appellant.

      Lyon & Moinet, for appellee.
   Montgomery, J.

The plaintiff’s declaration counts upon an alleged unlawful sale to Martin & Green, a firm of grocers, of a quantity of kerosene oil adulterated with benzine or other dangerous substance; that this mixture was sold and delivered to Martin & Green to be resold by them; that Martin & Green resold a quantity thereof to the plaintiff; that plaintiff’s daughter, Verna Stowell, made use of the same for illuminating purposes; that while attempting to blow out the flame of the lamp in which the oil was being used the same exploded without fault on her part; that in attempting to extinguish the flame caused by the explosion plaintiff suffered severe personal injuries; and that the property of plaintiff, fully described in the declaration, was also damaged. '

The plea was the general issue, with notice that defendant would prove that the oil sold to Martin & Green was tested and approved by the deputy State oil inspector, as required by Act No. 26 of the Public Acts of 1899.

To avoid repetition, the questions raised which merit discussion will be considered in the order in which they arose on the trial. On the examination of certain of the jurors on the voir dire, the plantiff’s counsel inquired of individual jurors as to whether the juror would consider it negligent to extinguish a lighted lamp by blowing across and down the chimney. These questions were objected to, but allowed by the court. We cannot say that the trial judge did not exercise a proper discretion in permitting these questions to be answered as an aid to the counsel for the plaintiff in exercising his peremptory challenges. Towl v. Bradley, 108 Mich. 409.

On the jurors’ answering these questions in the negative, the defendant’s counsel challenged one of the jurors for cause. The challenge was not sustained, and error is assigned on this ruling. It is doubtful if, in the case of any juror, the examination-, taken as a whole, showed any such settled conviction on this question as would disqualify the juror. A complete answer is that the defendant was not harmed by the ruling, as but one peremptory challenge was exercised, and we are satisfied that the defendant could have amply protected itself in all doubtful cases by the exercise of its remaining peremptory challenges. Peo ple v. Aplin, 86 Mich. 393; People v. Rush, 113 Mich. 539; Luehe v. Thorpe, 94 Mich. 271; Atlas Mining Co. v. Johnston, 23 Mich. 36; Brennan v. O'Brien, 121 Mich. 496; Commercial Bank of Bay City v. Chatfield, 121 Mich. 641.

The seventeenth, eighteenth, and nineteenth assignments of error depend for their, force upon the main question, to be discussed under another head.

Assignment 20 is based upon an objection to a question put t© an expert — Dr. Palmer — asking for a brief description of the process of producing kerosene oil from petroleum, offered with the purpose of showing that gasoline was the lighter product. The objection stated was that the testimony was immaterial; “that the question they ’[the plaintiff] allege is that it [the oil in question] didn’t -come up to the standard of the test; that is the issue involved.” It is argued in this court that there was no showing that gasoline was mixed with the kerosene sold to Martin & Green, and that for this reason the testimony was not competent or material.. The objection to this question made in the court below did not foreshadow this position, but, on the contrary, rested upon the claim that the testimony had no bearing upon the question whether the oil came up to the standard of the test. It is clear that the inquiry was preliminary, and that, standing alone, :it did not prove the plaintiff’s contention; but we are not prepared to say that it was wholly immaterial on that ■question. The testimony as to the .qualities of the products of petroleum may have furnished some aid to the jury in determining what the substance sold to plaintiff was. Schoepper v. Chemical Co., 113 Mich. 582. For a like reason we think it was competent to show that .gasoline would throw off a vapor at a lower temperature than kerosene oil of the legal test standard, and to show by expert testimony that oil of the legal test would not ignite under the conditions and circumstances shown to exist, and that, if mixed with gasoline or other similar substance, it might.

Error is assigned upon a ruling excluding certain hypothetical questions put to the plaintiff’s witness Dr. Palmer on cross-examination. The court correctly ruled that the questions called for an expression of opinion upon a state of facts not known to the witness, or stated to him hypothetically in the question.

Otto L. Sprague, a deputy oil inspector, was called by the defendant. His testimony tended to show that he had. assumed to inspect the oil shipped into St. Johns by the defendant, and that on making an inspection or test he> left with defendant’s agent, Cyrus L. Smith, a card reading as follows, all being duplicates except date:

‘' Michigan legal test, 120 degrees flash. Approved Oct, 2,1902.
“O. L. Sprague,
“ Deputy State Oil Inspector.”

The witness testified that this card was at different times delivered to Mr. Smith in advance of an actual test. That at times he went to St. Johns, obtained a sample of oil, and at the same time delivered the card, stating that, if he found the oil not up to standard, he would notify him.. It also appeared that at times he had authorized Smith to remove the oil from the tank cars, retaining a sample for use in making the test, and it was clearly open to inference' that the oil in question was inspected in this manner. The witness testified that this card did not take the place of the certificate intended under the law to be delivered to the owner of the oil. This statement of the witness the court, on motion of plaintiff’s counsel, struck out. »Error is assigned on the ruling. While the statement might well have been allowed to stand, we cannot see how its exclusion harmed the defendant in view of the fact that the witness was permitted to testify that he did furnish certificates of inspection to defendant.

Error is also assigned upon certain rulings permitting questions to be put to the witness Sprague relating to the accuracy of his report to the State oil inspector, as the report related to his charges for expenses. A rigid cross-examination was justifiable in this case. Theloose method of conducting'these inspections exhibited either ignorance of or indifference to the requirements of the law, and any false statements contained in the report might properly be made the subject of comment, and would bear upon the credibility of the witness. Not only was this inquiry proper, but.it follows also that the . comment of plaintiff’s counsel upon the conduct of the deputy inspector and defendant’s agent Smith were within proper bounds of argument.

The defendant contends that the court should have directed a verdict in its favor. The contentions under this head may be subdivided into three:

1. That there was no evidence of adulteration.

2. That the evidence shows that the oil in question answered the legal requirements of flashing at 121 degrees or above.

3. That, as there was no privity of contract between the plaintiff and defendant, no recovery could be had, in the absence of showing that defendant had actual knowledge of the inferior quality of the oil, or had reason to know of it.

As to the first contention, it is said there is no allegation in the declaration that the oil was improperly manufactured or refined, but that it proceeds upon the theory that the oil had been adulterated by admixture with gasoline after its manufacture. > We think this is too narrow and technical a view of the averments of the declaration. The gist of the charge in various counts in the declaration is selling a substance as kerosene oil of the standard test, and not adulterated with gasoline or other more inflammable material, whereas the oil was not of the standard test, but was adulterated, etc. The declaration uses the word “adulterated” as descriptive of the substance sold, and, if the plaintiff’s theory of the case be maintained, the term is not inapt to describe that substance. It is equivalent to saying that there was mixed with kerosene oil gasoline or benzine. This does not import that the kerosene was once pure, and of the standard test, and that gasoline had been added. The substance was accurately described if the admixture was a result of the process of manufacture.

The second contention depends upon the question whether the jury were bound to accept as conclusive the testimony of the deputy oil inspector as to the test made, and the testimony of defendant’s agent Smith as to the fact that the oil sold to Martin & Green was the inspected oil in its original purity. It is manifest that the so-called inspection fell far short of compliance with the statute, and there was enough in the record to justify the court in submitting the question of the credibility of the witness Sprague to the jury. It is true the plaintiff’s case rested largely upon inferences to be drawn from the facts proved; but it often occurs that a case meritorious in itself cannot be otherwise established. In such case the law does not permit a failure of justice unless the case rests upon mere conjecture, which we think is not the case here. Schoepper v. Chemical Co., 113 Mich. 582; La Fernier v. Soo River Lighter & Wrecking Co., 129 Mich. 596; Webster v. Symes, 109 Mich. 1.

The rule contended for by the defendant’s counsel that a seller of an article of commerce, not in itself dangerous, is not responsible for consequences to a purchaser from his vendee resulting from defects in the article sold, which defects were unknown to the original seller, is supported by abundant and convincing authority, and has been recently affirmed by this court. Losee v. Clute, 51 N. Y. 494; Necker v. Harvey, 49 Mich. 517; O’Neill v. James, 138 Mich. 567.

Does the present fall within the principle of these cases? The statute (Act No. 26, Pub. Acts 1899) provides for an inspection of kerosene oil, and makes it lawful to sell approved, inspected oil. It also renders it unlawful to sell rejected or condemned oil. The act also makes it an offense for any person to sell or attempt to sell any illuminating oils, whether manufactured in this State or not, before having th seame inspected as provided in this act.

This statute was evidently enacted not alone for the protection of the direct purchaser of illuminating oil, but for the benefit of the consumer as well.

In Pollock on Torts (Webb’s Am. Ed.), p. 24, the rule is stated as follows:

“ The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law, is generally equivalent to an act done with intent to cause wrongful injury.”

A well-recognized exception to the rule of nonliability to a remote purchaser exists in case of a sale of an article dangerous in itself. See Skinn v. Reutter, 135 Mich. 57 (63 L. R. A. 743), and cases cited. The legislature of\ this State has recognized and treated illuminating oil not ^ tested and shown to be nonigniting at a temperature of less than 121 degrees, as a dangerous substance, and one who sells it without inspection brings himself within the principle of this exception to the general rule. The case was a proper one for the jury. The charge of the circuit judge fairly submitted the questions of fact. We discover no error.

Judgment affirmed.

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


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    PEOPLE, for Use of C. H. LITTLE CO., v. GRANT.
    1. Payment — Application—Time por Making.
    Though a debtor may designate to which of several accounts a payment shall apply, in the absence of such designation the creditor may make the application at any time before suit.
    2. Same — Election.
    Where credit for a payment is entered .on a general account, and a statement thereof rendered to the debtor, this is an election to apply the payment to the extinguishment of items antecedently due in the order of time in which they stand in the account, and the creditor cannot thereafter make another application.
    Error to Wayne; Frazer, J.
    Submitted November 30, 1904.
    (Docket No. 260.)
    Decided January 30, 1905.
    Assumpsit by the people of the State of Michigan, for the use and benefit of the C. H. Little Company, against James Grant as principal, and Julius Porath and John A. Mercier as sureties, upon a statutory bond. There was judgment for plaintiff on a verdict directed by the court, and defendants bring error.
    Reversed.

      John E. Moloney, for appellants.

      Willard E. Warner, for appellee.
   Montgomery, J.

This is an action of assumpsit, brought in the name of the people of the State of Michigan, for the use and benefit of the C. H. Little Company, a corporation, against James Grant as principal, and Julius Porath and John A. Mercier as sureties, upon a statutory bond, under the provisions of Act No. 94 of the Public Acts of the State of Michigan for the year 1883, and the amendments thereto, given in connection with a contract made between the city of Detroit and James Grant on the 16th day of August, 1901, for the repaving of an alley in said city of Detroit, known as “ Alley No. 45,” between Beaubien, St. Antoine, Congress, and First streets. Upon this job the plaintiff company ■ furnished materials to the amount of $130.83.

During the paving season of 1901 defendant James Grant entered into eight contracts with the city of Detroit, seven for the paving of streets and alleys and one. for the building of two sewers. The first contract was entered into on the 19th day of June, 1901, and the last contract on the 15th day of October, 19011 Most of the materials used upon these several jobs were purchased from the plaintiff company. The company kept a regular set of books, and all materials furnished to defendant Grant, irrespective of where deliveries were made, or upon what jobs, were charged in this account, and all payments made by him were credited therein to the general account at the time of payment. Monthly balances were struck, and monthly statements of account were rendered to the defendant Grant, in which payments made during the current month were credited to the general account.

The last material was furnished on alley 45 on the 17th day of October, 1901, and all materials furnished on this job were charged upon the books of the plaintiff company in Grant’s general account. At that time Grant owed the O. H. Little Company upon general account, including all materials furnished on alley 45, the sum of $1,629.62, and after that time and up to the 1st day of February, 1902, paid to the C. H. Little Company upon general account the sum of $1,800. During the same period the plaintiff company continued to furnish materials to the defendant Grant upon his other contracts, which were charged to the general account.

It appears that when the accounts were rendered to Mr. Grant no objection to the accounts rendered were made by him. On the 24th of June, 1903, C. H. Little & Co. notified defendant Grant that they would apportion the payments made from time to time and credited to him on account of certain specific items, leaving the account here in question unpaid, and brought this suit to enforce payment. The circuit judge directed a verdict in favor of the plaintiff, and defendant brings érror.

The sole question for consideration is whether the creditor, C. H. Little & Co., had the right in June, 1903, to make the application of the payments previously made which was attempted. The rule of the common law as to application of payments is in most points clearly settled. It is, of course, clear that the debtor may, at the time of making payment, make his election as to the application. It is equally clear that the creditor may, in the absence of an application by the debtor, make such application as he chooses. Under the civil law this application must have been made at the time of the payment, but under the common law it is now settled that this is not necessary; some cases holding that the application must be made within a reasonable time, but the clear weight of authority is to the effect that it may be made at any time before suit. Mayor, etc., of Alexandria v. Patten, 4 Cranch (U. S.), 317 (1 Am. Lead. Cas. 268, and note).

There remains the question as to the effect of entering the credit for payments in a general account and rendering a statement to the debtor showing such application. It seems that the mere entry of a credit to a particular account is not a conclusive application of the payment in the •absence of notice to the debtor. Simson v. Ingham, 2 Barn. & C. 65. But when such credit is made, and an account rendered to the debtor showing such application, it is too late to make a new election. So it is held in numerous cases that, where a credit is entered to a general account, and an account thereof rendered to the debtor, this is an election to apply the payment to the extinguishment of items antecedently due in the order of time in which they stand in the account.

The leading case to this point is Clayton’s, decided by Sir William Grant as Master of the Rolls, and reported in 1 Merivale, 604. The case was followed and fully approved by Judge Story in Postmaster General v. Fur ber, 4 Mason (U. S.), 335, and again by the same learned jurist in United States v. Wardwell, 5 Mason (U. S.), 82. In the case last cited Judge Story states that the doctrine of Clayton’s Case “stands upon irresistible reasoning.” The doctrine of these case's was approved in Chapman v. Commonwealth, 25 Grat. (Va.) 742, in an opinion notable for the learning displayed. See, also, Grasser & Brand Brewing Co. v. Rogers, 112 Mich. 112.

The counsel for plaintiff contends that the holding of this court in People, for Use of Holmes, v. Sheehan, 118 Mich. 539, makes for a different rule. Counsel has certainly misapprehended the ruling in that case. An examination of the record discloses that the trial judge held that “the payments should be applied to the charges in their order of time.” This court said :*

“Counsel for defendants also alleges error upon the 'application of payments, but cites no authority which prevents the application of payments by the parties to the contract under the usual rule, or, if they fail to specify how all payments should be applied, justifies any other rule than that followed by the learned circuit judge.”

In so far as the holding of this case is in point, it supports the defendants’ position in the present case.

We think that, after crediting the payment-made in the manner stated, and notifying the debtor of such credit, it was too late to attempt another application.

The judgment is reversed, and a new trial ordered.

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


author: Moore, C. J.

text:
    POWER v. CITY OF DETROIT.

    1. Municipal Corporations — Improvements — Assessment District-Discretion of Council — Review by Court.
    On a bill to set aside an assessment of benefits made in proceedings to open a street, evidence examined and held, that the establishment of an assessment district 300 feet in width on each side of the street, the whole length thereof, as newly-opened, and assessing the whole expense to the property benefited, instead of a portion to the city at large, was not an abuse of discretion.
    2. Same — Buildings on Land Taken — Fund Arising from Sale.
    Where a building on land taken for a street is sold, but the assessment of benefits is made without deducting the money so received from the expense, as required by Act No. 236, Pub. Acts 1889, the assessment is not wholly void, but the court may direct the making of the proportionate reduction and allow the assessment as amended to stand.
    3. Same — Time of Payment — Detroit Charter.
    Assessments of benefits for opening streets in the city of Detroit are properly made payable all at one time, notwithstanding section 3406,1 Comp. Laws, directs that such assessments shall be levied and collected as near as may be in the same manner that is provided in the charter of the municipality for levying and collecting the expense of grading streets, and the charter of Detroit provides (Act No. 489, Local Acts 1887, § 44) that grading assessment rolls shall be made in four parts, the charter provision not being applicable.
    4. Same —Contest —Reducing Assessment — Interest and Penalties.
    Where a lot owner refuses to pay any portion of his assessment for a street improvement, and litigates the whole of it, he is liable for such penalties and interest as are fixed by law on such portion of the assessment as is held valid on final determination, though the original assessment was reduced.
    Cross-appeals from Wayne; Rohnert, J.
    Submitted January 3, 1905.
    (Docket No. 1.)
    Decided February 4, 1905.

      Bill by William. H. Power and others against the city of Detroit and Albert Stoll, receiver of taxes, to set aside an assessment of benefits on opening a street. From the decree rendered, all parties appeal.
    Modified.

      Walker & Spalding, for complainants.

      A. B. Hall (Timothy E. Tarsney, of counsel), for defendants.

       Rehearing denied September 21, 1905.

   Moore, C. J.

This is a suit to set aside assessments made on complainants’ lands because of the opening of Warren avenue. The decree below sustained the assessments, providing, however, for their reduction by their respective proportions of the sum of $850 unlawfully included in the original assessment, and further provided that the assessments so reduced might be paid without interest or penalties within 60 days after the final determination of the cause.

Complainants claim the decree should set aside the assessments. The defendants claim that, while the pro rata reduction of the assessments was proper, the payment of interest as well as penalties should have been required.

The case was originally heard by Judge Frazer, who entered a decree setting aside the assessments on the ground that the council had grossly abused its discretionary power in so constituting the assessment district as to impose the entire expense of opening the street upon a part only of the property specially benefited. One of the main items of the evidence on which this decree was based was a plat put in evidence by the complainants purporting to show the boundary line of the assessment district.

After the appeal of the case to the Supreme Court it was discovered that most of the irregularities in the district boundary as shown by this map did not exist. It was then stipulated the case should be remanded and reheard. From a decree rendered by Judge Rohnert all parties appeal.

The complainants contend:

1. That the assessments should be canceled: (a) Because the evidence shows a clear abuse of discretion by the common council in imposing the entire expense of the street opening upon a local district so narrow as to include but a small part of the property specially benefited, and without making any deduction either on account of the general benefit to the public at large from the improvement or on account of the fact that $850 of the expense had already been reimbursed to the city by the sale of a building taken in the street opening proceedings. (6) Because, irrespective of abuse of discretion, the assessment of the entire award without deduction of the amount received from the building sale is illegal, (c) Because the assessment roll was made in one part, payable at once, instead of in four parts, so as to spread the payment of the assessments over four years.

3. That, even if the assessments at the reduced amount were properly sustained, the inclusion in the original assessment of the amount of $850 derived from the building sale was admittedly illegal, and the city, therefore, would have no right to either interest or penalties on the amount that could have been rightfully assessed until that amount was ascertained by competent authority, and opportunity afforded to pay it.

These contentions will be taken up in the order presented.

Judge Rohnert, who heard the case, was of the opinion that no abuse of discretion was shown on the part of the common council which would justify him in setting aside the assessment. The assessment district, as fixed by the council, was approximately 300 feet in width on each side of Warren avenue, the whole length thereof as newly established. , After the award for damages was made, a building was sold for $850, which was upon the property taken. For some reason there was a failure to deduct this amount from the amount of the assessment. None of the complainants made any tender of any portion of the assessment. It is the claim of the complainants that, because of the peculiar position of this street to that portion of the city, large areas of property outside of the assessment district were substantially benefited, and that it was a great abuse of discretion not to make the assessment district larger, or else to require the city at large to share in the expense.

A like claim to this has been made in a number of cases heretofore heard in this court. In Brown v. City of Grand Rapids, 83 Mich. 101, it was said:

“ The determination of these two bodies — the commissioners who made the assessment roll and the common council of the city of Grand Bapids — cannot now be inquired into, unless it appears that they acted in bad faith. It is not for this court to set its judgment up in opposition to that of the board of commissioners and the council, and to say that this parcel of land or that is assessed too much or too little. The assessments were to be made according to benefits to each parcel of property, and there is nothing in the record showing that the commissioners did not assess the complainant’s lands in accordance with their best judgments. Where provision is made by law for a review of assessment proceedings, and a body appointed with the power to set the assessment aside or correct the error complained of, and the party wholly fails to appear before such body, or take any steps to have such correction made, he is not in a position to appeal to the courts for redress in the absence of fraud or bad faith” — citing Williams v. City of Saginaw, 51 Mich. 120; Comstock v. City of Grand Rapids, 54 Mich. 641; Peninsula Iron & Lumber Co. v. Township of Crystal Falls, 60 Mich. 510.

In the case of Davies v. City of Saginaw, 87 Mich. 439, 449, this court said:

“In matters involving the discretion or judgment of the common council, where no bad faith or fraud is alleged, parties cannot go behind the recorded vote to show either want of knowledge or of good judgment. * * * The resolution of the council fixing the assessment district and declaring that the sum of $8,544.97 should be assessed upon the property of that district was a legal determination, under the charter, that the benefits conferred upon that district were equal to such amount; and the spreading of the aggregate amount upon the assessment roll, and the confirmation of that roll by the council, determined that the proportion of the aggregate benefit received by each parcel was equal to the burden imposed, and, in the absence of fraud, oppression, or manifest mistake, such determinations are conclusive.”

See, also, Beecher v. City of Detroit, 92 Mich. 268; City of Detroit v. Daly, 68 Mich. 509.

In Powers v. City of Grand Rapids, 98 Mich. 393, the following language was used :

“ It cannot be said that the improvement does not benefit complainant’s property, and the measure of that benefit is for the council and commissioners. These officers acted within the scope of their powers, and the record contains no evidence of fraud, corrupt motive, or intentional favoritism. The presumption is that in making the district and the assessment the officers of the municipality acted in good faith, and have correctly and faithfully exercised the discretion reposed in them. In such case, where mistake or abuse of discretion is not manifest or demonstrable, the determination of the municipal officers in whom such discretion is vested is conclusive, and it is not reviewable by the courts. 1 Dill. Mun. Corp. § 94.”

See, also, Voigt v. City of Detroit, 123 Mich. 547; Goodrich v. City of Detroit, 123 Mich. 559. We think the trial judge Was fight in refusing to set aside the assessment upon the ground of an abuse of discretion.

Are counsel right in saying that, irrespective of abuse of discretion, the assessment of the entire award without deduction of the amount received from the building sale is illegal ? It is argued:

“The power of the court is limited to setting aside the action complained of. It may not substitute its own discretion for that of the council, and determine the just amount to be assessed on the district. It may not, when the determination of the council is illegal because of the imposition of a greater sum than they might lawfully impose, decree that the imposition shall be reduced to the lawful limit, for this is to determine that the just amount is the full amount that the council might impose, and to usurp the power of the council to determine that just amount. * * * It is not certain that, because the council once decided to impose an amount illegally excessive, it would a second time decide to impose the same amount less the illegal excess.”

Section 23, Act No. 124, Pub. Acts 1883, as amended by Act No. 236, Pub. Acts 1889 (1 Comp. Laws, § 3414), in part is as follows:

“ In case there is on the private property taken a building or other structure, the same shall be sold by or under the direction of the common council, board of trustees, or board of supervisors; the amount produced by the sale shall belong and be paid to the fund for paying the compensation awarded for the property taken, and the common council *t * * shall cause such amount to be credited and applied in reduction pro rata of the assessment and apportionment made to pay for the property taken, provided that such assessments equal the amount awarded for the property taken.”

This amount should have been deducted from the assessment levied. It is clear any injustice done the complainants can be remedied by a simple mathematical calculation as provided for by the court below.

The next question is, Should the assessment be set aside because the assessment roll was made in one part, payable at once, instead of in four parts, so as to spread the payment of the assessments over four years ? The argument of counsel for complainants is that section 15 (§ 3406, 1 Comp. Laws) of the street opening law provides that “the assessment shall be made and the amount levied and collected in the same manner and by the same officers and proceedings, as near as may be, as is provided in the charter of the municipality for assessing, levying, and collecting the expense of a public improvement when a street is graded;” while section 44, Act No. 489, Local Acts of 1887, provides that, where a street is graded, the assessment roll shall be made in four parts; therefore this assessment should have run through four years. We do not think this conclusion necessarily follows. In the case of the grading of a street the charter provides for the issuing of bonds payable in one, two, three, and four years, corresponding to the times when the assessments will be due. In the case of street openings there is no such provision, and the law provides for the payment of the awards within'a year from the time when the award is confirmed. We think the provision quoted relates to the general method of levying and collecting the taxes. See Trowbridge v. City of Detroit, 99 Mich. 443; Goodrich v. City of Detroit, 123 Mich. 559.

The remaining question is, Are counsel right in saying “that, even if the assessments at the reduced amount were properly sustained, the inclusion in the original assessment of the amount of $850 derived from the building sale was admittedly illegal, and the city therefore would have no right to either interest or penalties on the amount that could have been rightfully assessed until that amount was ascertained by competent authority, and opportunity afforded to pay it ? ” Counsel say in the brief:

“ The provisions of the charter regarding general taxes and special assessments show clearly that the former are, while the latter are not, subject to the addition of interest and penalties. After providing explicitly for interest and penalties upon general taxes, and for the collection of these additions as well as the original tax by the sale of real estate against which the tax is assessed, the charter passes to the subject of special assessments, and as to them provides merely (section 181) that in default in payment ‘they are to be collected by such proceedings as are or shall be prescribed by law ’ or ordinances, and that sales for any unpaid assessment are to be made in like manner and with like effect as are sales for a general tax.”

Section 181, charter of Detroit, reads:

“ Assessment rolls to defray the expense of constructing lateral sewers, side and cross walks, paving, grading, macadamizing, graveling, or otherwise improving streets, lanes, or alleys, or for defraying the expense of any local improvements properly payable from the proceeds of special assessments, shall be placed in the hands of the receiver of taxes for payment, as may be provided by ordinance or resolution of the common council, for the space of thirty days, after which warrants for the collection of the same may be issued, and such proceedings for the collection thereof be had as are or shall be prescribed by law, or by any ordinance or resolution of the common council and sales of any real or personal estate for any unpaid assessment shall be made in like manner, and with like effect, as in case of sales for the nonpayment of the general tax.”

We think this charter provision is broad enough to authorize the ordinances which provided for penalties and interest in cases like this.

It is said, however, by counsel, that, if—

“ The power to impose interest or penalties on such an .assessment exists, there is no liability for interest or penalties on the amount of an assessment which includes an unlawful addition, and, inasmuch as the taxpayer could not, by the tender of anything less than the full original assess-' ment, secure a discharge of his liability, there is no duty to make tender, and there is no liability for any interest or penalties until the amount of the assessment is reduced ■by competent authority, and the taxpayer thereby enabled to discharge his liability. The ground of this proposition is clear. There can be no liability for interest until the taxpayer is in default in performance of his duty. The assessment in question is excessive through an admittedly illegal addition. It was not his duty to pay it, nor was it his duty to tender the amount of the original assessment, less his proportionate part of the illegal addition. The duty to pay and the right to a cancellation of the assessment upon payment are correlative. No officer could have accepted such a tender if made, nor have issued thereon a receipt for the payment of the assessment or canceled it on the assessment roll” — citing Matter of St. Joseph’s Asylum, 69 N. Y. 353, and other cases.

Some of the cases cited are where a tender of the legal portion of the tax had been made. It must be admitted, after an examination of the authorities, that they are not uniform. We have already stated no tender of payment of any portion of the assessment was made. It has also been said that the amount to be deducted because of the wrongful inclusion of the $850 could be easily determined by a mathematical calculation. . The question is a new one in this State.

In Western Union Telegraph Co. v. State, 64 N. H. 265, it was held upon appeal from an assessment that the tax was too large by two-fifths, and the same was reduced to three-fifths. The plaintiff had not offered to pay any part of either tax, and the question was whether it should be required to pay interest under the laws of New Hampshire. The court said:

“ It would be unjust to require the plaintiffs to pay interest on the two-fifths .that are abated and disallowed. But the plaintiffs claim that they should not be required to pay any interest, as the final determination of their assessment was not made till June, 1886, and none could accrue under the statute till the December after; but we think that when the State board of equalization made their assessment, and certified it to the State treasurer, they made the assessment required by the statute, and that it was not the intention of the legislature to give the plaintiffs the use of the money justly due the State on or before December 1, 1884 and 1885, one and two years’ interest as a compensation for taking the appeal. All other taxpayers either paid their taxes on or before the 1st of December of these years, or became liable to pay interest thereafter till they did pay them, and justice requires that the plaintiffs should pay interest on their just and equal portion of the public burden due the State. * * * Had the plaintiffs tendered or offered to pay, when due, the sum afterwards found to be their proportional share, and the State had declined or neglected to take the same, a different case would be presented [citing cases]. A taxpayer appealing from an excessive assessment may be unable to determine the exact amount which would be found by the appellate court to be his share of the public expense. He may be unable to protect himself against the interest that will accrue after the 1st of December by paying the exact amount of his tax debt before it is ascertained. But this is not a reason for giving him an exemption that is not enjoyed by his neighbors who do not appeal. * * * The appealing taxpayer can protect himself against interest by paying enough of the amount assessed and after-wards recovering any excess that may be abated.”

This case was afterwards approved in the case of Winnipiseogee Lake Cotton & Woolen Manfg. Co. v. Gilford, 64 N. H. 514. See, also, Mackay v. City and County of San Francisco, 113 Cal. 392.

In the case of Cedar Rapids, etc., R. Co. v. Carroll County, 41 Iowa, 153, the court said:

“ It is urged that the penalties are onerous, inequitable, and oppressive; that they have accrued while plaintiffs were in good faith contesting the rights of the defendant to enforce them; and that the questions of law involved were doubtful, and justified the plaintiffs in resisting the payment of the taxes. That plaintiffs will suffer a hardship in the payment of these heavy penalties is very apparent. That the questions involved in the cause were doubtful, and the litigation has been prosecuted in good faith, may be conceded, but these things give us no authority to annul a statute and remit a penalty explicitly provided for, and in which defendant has a vested right. The delay incident to the progress of this catise, especially in this court, has been great, and plaintiff has been subjected thereby to suffer from the enormous increase of the penalties. This is no ground for relief. It is an incident of litigation, the risk of which parties are required to assume.”

In the case of Western Union Telegraph Co. v. State, 146 Ind. 54, the court said:

“ In the event that one is called upon to pay a tax which he believes to be illegal, he has two courses open to him. He may resist payment at the hazard of all penalties in case the decision shall be against him; or he may pay the tax under protest, and then, in case the decision is in his favor, demand the return of his money. See Rumford Chemical Works v. Ray, 19 R. I. 456. No one need pay any penalty except through his own wrongful act.
“ The government is in need of its revenues, and these revenues will be paid promptly by all good citizens. In case of failure to comply with such duty such penalties will be imposed as will, in the judgment of the lawmaking power, best compel compliance with the law in each case, to the end that all the property owners of the State may bear their equal share of the public burden. Such penalties, as we have seen, are never imposed upon those that pay their taxes when due. The imposition of the penalty being an effort on the part of the lawmakers to compel good citizenship on the part of all taxpayers, that none may shirk the common duty.”

See Challiss v. Baker, 12 Kan. 253; also State Railroad Tax Cases, 92 U. S. 575, for an interesting discussion of some of the principles applicable to this case.

■ The reasoning of these cases appeals to us. We can see no valid reason why the taxpayer who neglects or refuses to pay any portion of his assessment and litigates all of it should not be required to pay such penalties and interest as are fixed by law upon such portions of the assessment as are held to be valid.

A decree will be entered in accordance with this opinion. The defendants will recover costs.

McAlvay, Grant, Blair, and Hooker, JJ., concurred.


author: Blair, J.

text:
    LOUISELL v. BENZIE CIRCUIT JUDGE.
    Mandamus — Questions Considered.
    An information for forgery was quashed, and defendant rqmanded to the sheriff for 24 hours in which to allow the prosecuting attorney to file new information, or take such other steps as he might deem proper. The prosecuting attorney then swore to a complaint charging defendant with obtaining money by false pretenses on the alleged forged check, and such proceedings were had that defendant was bound over for trial. Subsequently the prosecuting attorney made an informal ex parte motion to vacate the order quashing the information, and, on its denial, brought mandamus. Held, that the prosecuting attorney, by causing the accused to be bound over for trial for obtaining money by false pretenses, acquiesced in the quashal of the prior information, and the motion to vacate the order to quash being oral and without notice to the accused, the application for mandamus would be denied, without considering the legal sufficiency of the information for forgery.
    Mandamus by M. E. Louisell, prosecuting attorney of Benzie county, to compel Clyde C. Chittenden, circuit judge of Benzie county, to vacate an order quashing an information.
    Submitted January 3, 1905.
    (Calendar No. 20,873.)
    Writ denied February 4, 1905.

      M. E. Louisell, in pro. per.

      M. Gr. Paul, for respondent.
   Blair, J.

One William Peak was arraigned by petitioner, as prosecuting attorney, before respondent, upon an information charging that on thé 25th day of October, A. D. 1904, he “feloniously did then and there utter and publish as true a certain false, forged, and counterfeit order for the payment of money, commonly called a check, which said false, forged, and counterfeited order for the payment of money, commonly called a check, is as follows, to wit:

“ ‘Traverse City, Mich., Oct. 16, 1904. No.-.
‘ ‘ ‘ Traverse City State Bank. Pay to the order of Hannah & Lay Merc. Co., $66.00, Sixty-six dollars.
[Sig.] “ ‘ Northern Mich. Transp. Co.
[Indorsed] “ ‘ Hannah & Lav Merc. Co.
“ ‘ James McDonald.’ ”

Counsel for Peak moved to quash this information, substantially for the reason that inasmuch as October 16, 1904, the date of the check, was Sunday, the check was void, and not the subject of forgery, whereby the uttering and publishing thereof was not a crime.

The court adopted this view, and entered an order-quashing the information, and remanding the defendant to the custody of the sheriff “for a period of twenty-four hours, in which to allow the prosecuting attorney to file new information, or take such other steps as he may deem proper.”

Within the 24 hours allowed by the order, petitioner himself swore to a complaint charging defendant, Peak, with obtaining money by false pretenses upon this same check. A warrant was issued, and such proceedings had thereon that Peak was bound over to the next term of court, commencing January 16, 1905, for trial. After Peak had been bound over for trial on the charge of obtaining money by false pretenses, and on or about the last day of the November term of court, petitioner made an informal, ex parte motion to vacate the order quashing the information for uttering the forged check. This motion was denied, and respondent returns that his reasons for such denial were: (1) Because his decision was correct, as a matter of law; (2) because petitioner acquiesced in respondent’s/action, and procured defendant, Peak, to be bound over for trial on a charge of false pretenses growing out of the same transaction, before making his motion to vacate; (3) because said motion was oral, informal, and ex parte, without notice to defendant, Peak, or his counsel, and after the jury had been discharged.

In view of the fact that petitioner has caused Peak to be bound over for trial, and can try him at the present January term of the Benzie circuit court for the offense of obtaining money under false pretenses upon the same check he was charged with uttering as forged, as well as for the other reasons assigned by respondent for his action under the second and third headings, we do not feel inclined to consider the question of the legal sufficiency of the information for uttering the forged check, but will deny the application for the writ.

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


author: Hooker, J.

text:
    WISCONSIN & MICHIGAN RAILWAY CO. v. McKENNA.
    1. Deeds — Delivery—What Constitutes.
    Where a deed was executed by certain of the grantors named therein and delivered to the common agent of the grantors and grantee on the understanding that it was not to be delivered to the grantee without the signature of the remaining grantor, and that the consideration was not to be paid until such signature was obtained, there was no delivery of the deed to the grantee.
    3. Statute of Frauds — Sale of Land — Part Performance.
    The execution of a deed by a part of the vendors in an oral ex-ecutory contract for the sale of an interest in land, and its delivery to a common agent of the vendors and purchaser, on. the agreement that he is to procure its execution by the remaining vendor, and deliver it when complete to the purchaser, and the deposit at the same time by the purchaser of the purchase price in the hands of the agent, does not, the remaining vendor having refused to execute, constitute such a part performance as to take the executory contract out of the statute of frauds, though the purchaser, by consent of the vendors, took possession in expectation of performance, and expended a small sum of money on the land.
    3. Specific Performance — Sale of Land — Part Performance.
    A deed was executed by some of the vendors in an oral executory contract to convey the land, and delivered to the common agent of the parties, on the understanding that he should procure the signature of the remaining vendor, who was to receive no consideration, and the consideration then on deposit in the agent’s hands was to be paid to the others. The remaining vendor refused to execute the deed, whereupon the purchaser tendered the consideration to the others, waiving the signature of the vendor who refused to execute. • Held, that the tender did not take the executory contract out of the statute of frauds, so as- to support a bill for specific performance by the purchaser.
    4. Same — Part Performance — Possession—Equities.
    Where a contract between a railroad company and a landowner for a conveyance of a right of way over land was executory and within the statute of frauds, the mere entry on the land by the company with the consent of the owner, and the excavation of a small quantity of earth, was not a sufficient part performance to warrant specific performance at the suit of the company, condemnation being available.
    Appeal from Dickinson; Stone, J.
    Submitted January 4, 1905.
    (Docket No. 2.)
    Decided February 4, 1905.
    Bill by the Wisconsin & Michigan Railway Company against Mary T. McKenna, Thomas McKenna, and John K. Stack for the specific performance of a contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      L. D. Eastman (E. Clark Eastman, of counsel), for complainant.

      E. D. Mead, for defendants.
   Hooker, J.

Thomas McKenna was the owner in fee of the premises in question, subject to the rights of Mary McKenna (his wife), and John K. Stack, who were owners, respectively, of 21/24 and 3/24 of the ores and minerals upon said premises, with the right to enter, mine, and carry away the same.

The complainant, a railroad company, sought to acquire a right of way over said lands for its track, and to that end began proceedings for condemnation under the statute. At the time the cause came on for hearing before the circuit court, negotiations for a settlement were pending, and it was announced by counsel that an amicable adjustment of the matter was probable. The negotiations were continued until July 14, 1903, when, all the parties except Stack being present, and he being represented by counsel, an agreement was made and reduced to writing by the terms of which a deed of the right of way to complainant was made in consideration of $2,500, which was to be paid for the same. Mrs. McKenna was to receive the entire sum and Stack nothing. The writing was executed by the McKennas, and was placed in the hands of Mr. Flannigan, their counsel, whose clerk was to take it to Mr. Stack, to be signed by him, and on its return Mr. Flannigan was to deliver it to the complainant, and to deliver to Mrs. McKenna the complainant’s check for $2,500, which, in pursuance of the agreement, it deposited with him for the payment of the consideration. The clerk was to be paid for his service by complainant. There was no doubt in the minds of any of the parties that Stack would sign. the paper, and, the check being deposited, it was orally agreed that the complainant might enter on the premises and begin work a.t once. It accordingly entered, and did a small amount of work, before learning of the refusal of Stack to sign and the repudiation of the contract by Mrs. McKenna, who drove the men from their work with a pistol. Stack refused to sign for some reason not given, and, the money not being paid to Mrs. McKenna, who demanded it, she repudiated the agreement, and concluded to double her price for the right of way, and so informed the complainant. After this refusal and Mrs. McKenna’s repudiation of the agreement, the complainant offered to waive the signature of Stack, and to take the deed, and pay over the price to the McKennas without it, claiming the right to do so, but this was refused.

Complainant has filed the bill in this cause for specific performance, and an injunction which was issued has been continued to the hearing of the cause upon the filing of a bond conditioned to prosecute the condemnation proceedings to conclusion, and pay the compensation that' should be therein awarded if its bills should be dismissed. The circuit court determined that the complainant had not acquired title to the right of way, and denied specific performance, but continued the injunction for a time, to give opportunity for condemnation, in case the Supreme Court should affirm the decree. The complainant has appealed.

The parties made an oral contract for the sale of this right of way, and the defendant went into possession under it, and deposited the consideration with Mr. Flannigan, the attorney of the McKennas, who was selected for the purpose. The deed which was to convey the right of way was never fully executed by the grantors named in it as contemplated by all, for the reason that Stack refused to sign it. We are of the opinion that there was no delivery of the deed to the complainant by the McKennas, who signed it, as Flannigan had no authority to deliver it without the signature of Stack, or to deliver the check to the McKennas without such signature to the deed, until it was given by letter after this suit was commenced.

The situation, then, is that the parties made an oral ex-ecutory contract for the sale of an interest in land. It was, when made, within the statute of frauds, and cannot be enforced specifically unless it has been taken out of the statute by part performance. The only thing that has been done by the complainant was to take possession in expectation of performance, and expend a small sum upon the land, and to make a deposit with a common agent of the consideration. The defendants have done nothing toward executing the contract except to yield possession in the expectation that a deed would be made, which, owing to Stack’s refusal, was not completed. In other words, the contract was not executed because the consideration has not been paid or the deed delivered. It remains an executory contract within the statute of frauds, because not in writing.

The only question left is whether equity may treat the possession given as such part performance as to justify specific performance. It is said the offer to deliver the check was a waiver, of complainant’s claim to Stack’s signature as a condition precedent to the delivery of the deed, but that does not make the executory contract valid. The contract being executory and oral, neither party could compel the other to perform. The tender of a deed would not make it valid, nor would the tender of the consideration; and neither, unless accepted, would be available in support of a claim of part performance. Hence we must say that the direction to Flannigan, the common agent, to deliver the check to Mrs. McKenna, even if she were informed of it, did not affect her right to refuse performance, and, if the complainant is to prevail, it must be upon the ground that the change of possession entitles it to specific performance.

The mere putting a vendee in possession is not sufficient to give a right to specific performance. It is not equities arising out of the contract, but equities based upon what has been done by way of executing it, and in reliance upon it by the acquiescence of the other party, that courts of equity act upon in such cases; and, as indicated by the learned circuit judge, there is little beyond the mere fact of the entry by the complainant shown. The possible excavation of a little dirt, involving at most the expenditure of a few dollars, is the extent of the injury to the complainant, and even that will not be lost if it shall succeed in obtaining the right of way in the proceedings for condemnation, which we understand to be yet pending.

The decree will be affirmed, with costs.

Moore, C. J., and MoAlvay, Grant, and Blair, JJ., concurred.


author: Gbant, J.

text:
    LOVE v. RAMSEY.
    1. Assumpsit — Goods Sold — Pleading—Issues.
    In assumpsit on the common counts for goods sold, where plaintiff's proofs show that the goods were sold to defendant individually, and defendant claims that he ordered the goods for a corporation, as its manager, the question for determination is whether the contract was with defendant individually or as representative of the corporation, and the question whether defendant is liable as a stockholder, because of informal organization of the corporation, is not involved.
    .2. Corporations — Defective Organization — Liability of Stockholders.
    One who deals with a corporation, charged with knowledge that it is not in fact a de jure corporation, is estopped to deny its legality, and cannot hold its manager liable individually or its stockholders liable as partners.
    3. Sale —Action for Price —Parties to Contract — Evidence of Account.
    In an action for the price of goods sold, where defendant claimed they were sold to a corporation of which he was manager, plaintiff’s books of account, showing that the goods were charged to the defendant individually, with evidence that defendant knew they were so charged and made no objection, are admissible.
    4. Account Stated — What Constitutes.
    Where the debtor objected, when the account was rendered, that the account should be charged to a corporation of which he was manager, instead of to him individually, the creditor cannot claim an account stated on the ground that the debtor did not object to the amount.
    Error to Ionia; Davis, J.
    Submitted January 4, 1905.
    (Docket No. 5.)
    Decided February 4, 1905.
    Assumpsit by William Love against William J. Ramsey for goods sold and 'delivered. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.
    Plaintiff sued defendant in justice’s court to recover for a small bill of lumber claimed to have been sold by him to defendant. The declaration is on the common counts. A bill of particulars was furnished, setting forth the' amount and price of the lumber. The theory of the declaration and bill of particulars and the evidence adduced on behalf of the plaintiff is that the sale was made to the defendant personally, and that the contract was made with him. The defendant claims that he was the agent of the Sunfield Manufacturing Company, and that as the secretary and manager of that company he ordered the goods. Upon the trial the articles of the Sunfield Manufacturing Company were produced. Its capital stock was $10,000, with 1,000 shares of the par value of $10 each. When organized only 350 shares were subscribed. Some time afterward 150 additional shares were subscribed. The court directed a verdict for the plaintiff upon the ground that the corporation was not legally organized, and that, therefore,, the defendant, as a stockholder and manager, made himself liable for the goods.

      A. A. Ellis, for appellant.

      B. A. & W. E. Hawley, for appellee.
   Gbant, J.

(after stating the facts). 1. .The declaration is not based upon the theory that the credit was given to the corporation, and that in consequence of its illegal character the defendant is liable. Neither is any such' theory suggested in the testimony of the plaintiff or his clerk, the sole witnesses to establish the sale. Both testified that the goods were ordered by Ramsey in his own name, and that they knew nothing about the Sunfield Manufacturing Company, or the defendant’s connection with it, until some time after the sale. In the cases cited by the plaintiff (21 Am. & Eng. Enc. Law [2d Ed.], pp. 879, 880; Bigelow v. Gregory, 73 Ill. 197; Hurt v. Salisbury, 55 Mo. 310; Kaiser v. Savings Bank, 56 Iowa, 108; Loverin v. McLaughlin, 161 Ill. 417; Trust Co. v. Floyd, 47 Ohio St. 525 [12 L. R. A. 346]; Kruse v. Humpert, 21 Ky. Law Rep. 985; Cincinnati Cooperage Co. v. Bate, 96 Ky. 356; Walton v. Oliver, 49 Kan. 107) the declarations set forth the special ground of liability against the directors or stockholders. No averment of liability because the corporation was not legally organized is even suggested in the declaration now before us.

Whether, under the proper form of action and a proper declaration, the defendant is liable, it is not necessary to determine. It is sufficient - to say that under the declaration and proofs the sole question was whether the contract was between the plaintiff and defendant. Under the decisions of this court the members of a corporation are not liable where it is a corporation de facto, though not de jure, and .the plaintiff has dealt with it as a corporation. Before the goods in this case were sold, articles of incorporation had been duly filed in the proper offices, and the company held itself out as a legally organized corporation, and did business as such. It was in the power of the creditors dealing with it to examine these articles and ascertain the character of its organization. All are presumed to know the law, and when one deals with a corporation knowing that it is not in fact a de jure corporation, he as well as the corporation is estopped to deny its legality, and cannot hold its manager liable individually or its stockholders liable as partners. Merchants’, etc., Bank v. Stone, 38 Mich. 779; Calkins v. Bump, 120 Mich. 335; Eaton v. Walker, 76 Mich. 579 (6 L. R. A. 102); Durgin v. Smith, 133 Mich. 331; Gartside Coal Co. v. Maxwell, 22 Fed. 197; Gow v. Lumber Co., 109 Mich. 45. The stockholders, of course, can be compelled to pay the full amount of stock subscribed. Under the declaration and proofs the only question for the jury to decide was, Did the plaintiff contract with the defendant in his individual capacity ?

2. In view of a new trial two other questions may properly be decided, although they were not directly passed upon by the court below. Upon the trial defendant conceded that the amount and price of the goods were correct, and that they were delivered; the sole question being, To whom was the credit given ? Plaintiff was permitted to produce his books of account showing that the goods were originally charged to the defendant. They were competent, as there was testimony to show that the defendant saw these entries, and made no objection to their being charged to him.

3. Plaintiff claimed the right to a verdict and judgment upon an account stated. The bill was rendered to Mr. Ramsey, and to it he made no objection. He asserted that he did make objection when he first found that it was charged to him, and instructed plaintiff’s clerk that it should be charged to the Sunfield Manufacturing Company, and that the clerk replied that it made no particular difference to whom it was charged. If the jury should believe this testimony of the defendant, a rendition of the account and its acceptance without objection would not become an account stated and binding upon him. The theory of an account stated is that the minds of the parties have met when it has been rendered bv one and received and accepted without objection by the other. 1 Am. & Eng. Enc. Law (2d Ed.), p. 442; 1 Cyc. 364.

Judgment reversed, and new trial ordered.

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


text:
    FLETCHER v. JOHNSON.
    Contracts — Public Policy —Chilling Bidding —Enforcement in Equity.
    Where two persons, each desiring to purchase the same property, which is to be offered at. public sale, agree that one shall purchase for the benefit of both, thereby preventing competitive bidding between themselves, the contract is contrary to public policy, and cannot be enforced in equity.
    Appeal from Alpena; Emerick, J.
    Submitted January 4, 1905.
    (Docket No. 8.)
    Decided February 4, 1905.
    Bill by Frank W. Fletcher against William H. Johnson' for the specific performance of a contract. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Charles B. Henry, for complainant.

      Joseph H. Cobb, for defendaht.
   Hooker, J.

Complainant seeks by the bill in this cause the specific enforcement of a contract for the' purchase, for complainant’s benefit, of certain shares of stock in a corporation. The corporation referred to is the Alpena Water Company, and both parties were at the time of the transaction stockholders therein, and each was apparently desirous of obtaining a majority of the stock of the corporation.

James D. Turnbull was at one time a stockholder, and owned at the time of his death 210 shares of this stock, of the par value of $10,500. This, with other stocks, had been assigned by him to the Alpena National Bank as security for a large indebtedness. Turnbull was also indebted to defendant, Johnson, who was a director and vice-president of the bank. In addition to the indebtedness mentioned, Turnbull was liable to Johnson as accommodation indorser upon paper of his held by the bank. To secure Johnson, as well as for the purpose of affording additional security to the bank, Turnbull had executed to Johnson a bill of sale covering a large amount of forest products, in trust for such purposes, which trust Johnson accepted. The complainant asked the bank to give him notice when it should determine to dispose of the water stock. About December 1, 1901, the board of directors of the bank considered the steps necessary to be taken in order to foreclose and cut off the equity of the Turnbull estate in these stocks to enable it to realize thereon in payment of its claims, and it was decided that the stocks should be offered at public sale, the proceeds to be accounted for to the estate after satisfying the obligations. Upon learning this the complainant telephoned Johnson to call upon him, and an interview was had, at which complainant told him that he knew that the complainant wanted to obtain this stock, and asked what they better do, and whether he should “go in there and bid against him” (Johnson). This resulted in an agreement that, if complainant would not bid against Johnson, the latter would buy the stock from the bank, one-half-on complainant’s account. The stock was not sold at public sale, but Johnson obtained the bank’s interest, and afterwards adjusted the matter with the estate in a way to perfect his title to this stock. Complainant gave him his check for half of the cost of his purchase, and defendant accepted it, though he afterwards returned it, and refused to give complainant any of the stock. Upon hearing the cause, the court dismissed the bill, holding that the contract between the parties was opposed to public policy, and void. The complainant has appealed.

The evidence fairly shows that each of these persons desired the stock, or at least that the other should not have it all. Apparently it was a question of control of the company. To avoid competition between them, they agreed that one should bid for both, and that there should be no bidding against each other, and that the stock should be divided and the expense shared equally.

The question is resolved into this: May two persons, who desire to purchase the same property, which is to be offered for sale, agree between themselves that one shall purchase for the benefit of both, thereby preventing competitive bidding between themselves. The authorities are, perhaps, not in entire harmony upon this subject, but there is a near approach to uniformity upon the proposition that when the object of the contracting parties is to prevent competition at the sale, to the end that the property may be bought for less than its value, the contract is void. The cases cited by the complainant’s counsel do not question that rule. The only reason that can be given for its non-application to the present case is that the parties' did not design to buy the property for less than its value; in other words, it was their design to avoid paying an exorbitant price, liable to be bid by reason of their respective interests and necessities.

We think that the cases cited by counsel do not establish such a distinction, for none of them turn upon that point alone. The validity of the contract cannot depend on the price paid at the sale, but must rest on the terms of the agreement. Here no price was agreed upon to be bid, nor is there anything to indicate that each party did not desire to buy as cheaply as possible. The only inducement to the contract was a prevention of competition, which was expressly agreed upon. *

In the case of Fisher v. Transportation Co., 136 Mich. 218, a similar promise was held void on the ground that it was contrary to public policy. That case recognizes the rule that, where the circumstances show that the consideration for the promise is, in whole or in part, an attempt, to prevent competition at a public sale, the contract is void. That was the express consideration here.

Upon the hearing the testimony showed certain conduct and conversations by and between these parties relating to the delivery and reception of the check, and counsel for the complainant claimed that a new contract was inferable therefrom, and amended his bill to conform to such claim. Upon an examination of the proof we are unable to find any intention on the part of Johnson to make a new contract. If at that time he accepted the check with an intention to deliver the stock, it was, in our opinion, a mere carrying out of the original contract. Even if we could assert the fiction of a legal inference against what we believe the proof shows to have been the fact, it would be an. extraordinary spectacle for a court of equity to endeavor-thus to avoid the consequences of an illegal contract, so far carried out as to have effected the object of preventing competition. The proof would have to be pretty clear to divorce the subsequent transactions from the earlier, and justify the conclusion that an entirely new and distinct contract was in contemplation by the parties, in no part resting upon the illegal consideration.

We are of the opinion that the learned circuit judge was right in his conclusion that the complainant could not be> granted the relief sought.

The decree is affirmed, with costs.

Moore, C. J., and McAlvay, Grant, and Blair, JJ., concurred.


text:
    GREAT WESTERN SMELTING & REFINING CO. v. EVENING NEWS ASS’N.
    1. Trover —Conversion—What Constitutes — Repudiation op Contract — Necessity op Demand.
    Where defendant ordered some stereotype metal from another, With whom it had an understanding that the price thereof should be applied on the latter’s account with defendant, and the latter transferred the order to plaintiff, which had no knowledge of the understanding referred to, and shipped the metal to defendant, accompanied with a cash invoice, whereupon defendant immediately melted the metal, supposing, in good faith, that it was its own, under the special arrangement with the person from whom it had ordered it, but afterwards, on learning the terms upon which the metal had been shipped by plaintiff, repudiated the entire transaction, and insisted that it had no contract relations with plaintiff, its conduct constituted an unlawful conversion, for which trover would lie without any prior demand or refusal.
    2. Same — Estoppel.
    Where defendant insisted that it had never bought property of plaintiff, and declined to recognize any claim on plaintiff’s part against it, it was estopped, when sued for conversion of the property, to assert that plaintiff had sold the property to it, and could sue only in assumpsit for its value.
    Error to Wayne; Erazer, J.
    Submitted January 4, 1905.
    (Docket No. 11.)
    Decided February 4, 1905.
    Trover by the Great Western Smelting & Refining Company against the Evening News Association. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Affirmed.

      Jonathan Palmer, Jr., and John M. Parker, for appellant.

      Holland J. Gleland, for appellee.
   Blair, J.

On the 36th day of September, 1900, defendant sent to one I. M. Jacobson, of Toledo, Ohio, who previous to that time had been engaged in the brokerage business, the following order: * .

Dear Sir: We are pleased to inform you that we are in a position to place an order with you for one ton No. One Stereotype Metal, which kindly ship immediately. We trust that we may be favored with the lowest market price, although we want a first-class article. Kindly acknowledge order and state when shipment will be made.
“ Yours very truly,
“ The Evening News Ass’n, ’
“ H. S. Scott, Business Manager.”

This order was on the 37th day of September, 1900, forwarded to the plaintiff, with the following indorsement thereon:

“I herewith transfer the above formal order to the Great Western Smelting and Refining Company, of Chicago.
[Signed] “I. M. Jacobson.”

Defendant and appellant induced the judge, upon its motion, to strike out this indorsement, for the reason that the signature of Jacobson was not properly proved.

On the 1st day of October, 1900, plaintiff shipped the . stereotype metal, and on the same day mailed the following invoice:

“Chicago, October 1st, 1900.
“Detroit Evening News Ass’n, „
“Detroit, Mich. .
“Bought of Great Western Smelting & Refining Company, Manufacturers of Metals, 173-199 West Kinzie Street. Terms Cash. Shipped via-.
3,055 lbs. No. 1 Stereotype, 7£, $154.13.”

—Which was received by defendant either on the 3d or 3d day of October, but, whether before or after the receipt of the metal, the record does not disclose with certainty.

On the 3d of October, 1900, defendant mailed to plaintiff the following letter:

“Detroit, Mich., Oct. 3, 1900.
“ Great Western. Smelting & Repining Co.,
“173 W. Kinzie St.,
“ Chicago, 111.
Gentlemen: We return herewith your bill for metal received today in response to our order upon I. B. Jacobson, of Toledo. We ordered this metal from Mr. Jacobson on the special understanding that it should apply on his advertising account with us, in fact, it was due to this advertising that we tendered him this order — in a reciprocal way. You will, therefore, kindly look to him for payment of the account. As we are writing him by this mail, he will probably take care of the matter promptly. Hoping that you have not been misled in regard to it, we are,
“Yours very truly,
“The Evening News Ass’n,
“H. S. Scott, Business Manager.”

On October 4, 1900, plaintiff replied to defendant’s letter of the 3d, as follows:

“Chicago, Oct. 4th, 1900.
“The Evening News Ass’n,
“Detroit, Mich.
^ Gentlemen: Replying to yours of the 3rd inst. your order to Mr. Jacobson reads plainly that you are in position to place an order with him for 1 ton No. 1 stereotype metal to be shipped immediately, and makes no mention of payment to be taken out in advertising, which order was duly transferred to us. We shall, therefore* look to you for payment of this shipment, and if this is not satisfactory, please return same to us at once, and oblige. Inasmuch as you have returned our invoice, we take it that you have not taken the stock from the depot, in which event, please do not take it out, but return to us the shipping bill, and oblige,
“ Yours respectfully,
“Great Western Smelting & Refining Co. R.”

Defendant did not reply to this letter of October 4th and no communications passed between the parties, so far as the record discloses, until the 24th of October, when plaintiff returned the invoice inclosed in the following letter:

“ Chicago, Oct. 24, 1900.
“ Detroit Evening News Ass’n,
“Detroit, Mich.
Gentlemen: Inasmuch as we have received no notice of return of metal sent you under order to, Mr. Jacobson, we return herewith invoice covering same.
“Respectfully yours,
“ Great Western Smelting & Refining Co. R.”
On the 25th of October defendant replied as follows:
“Detroit, Mich., Oct. 25, 1900.
“Manager’s Office.
“Great Western Smelting & Refining Co.,
“ 173 West Kenzie Str.,
“ Chicago, 111. .
Gentlemen: Replying to your favor of October 24th, inclosing invoice of metal which you claim to have shipped, us, we beg to say that we have never to our knowledge ordered goods from your concern, nor shall we recognize that you have any claim against us.
“We know, of course, that you refer to the shipment of metal which we ordered from I. B. Jacobson, of Toledo, who was at the time indebted to us, and from whom we ordered this metal to equalize our account. If you furnish this metal on Mr. Jacobson’s order, you must look to him for payment, for if you look to us, we can only refer you to our attorney in any future reference to the matter. The metal was placed in use immediately on arrival, as we were short at the time, and before we had any knowledge of the peculiar action (to say the least) of Mr. Jacobson in the matter.
“Yours very truly,
“The Evening News Ass’n.
“ H. S. Scott, Business Manager.”

Upon receipt of defendant’s letter of October 25th, plaintiff placed the matter in the hands of its attorneys, who, having demanded of defendant payment for the metal or the return of the metal, and having been refused, brought an action of trover in justice’s court for the alleged conversion of the metal. Plaintiff, having been defeated in justice’s court, appealed to the circuit court, where verdict and judgment were rendered in its favor by direction. of the court, and defendant brings the case to this court on writ of error.

Upon the conclusion of the proofs in the circuit court, it was agreed between the parties that they would submit the question whether the action of trover was an appropriate action, under the circumstances of this case, upon briefs, to the court, and that the court might direct a verdict in accordance with his determination of this question of law. The plaintiff claims that, under the rule adopted by this court in McCormick Harvesting-Machine Co. v. Waldo, 128 Mich. 135, the action of trover was the only action which would lie. On the other hand, defendant maintains that trover would not lie under the circumstances of the case, and that, if plaintiff had any cause of action at all, it should have been brought in assumpsit.

- The relations of these parties must be determined from the writings which passed between them, and it is apparent that, instead of there being a mutual understanding between the parties as to the terms of their dealing, there was a mutual misunderstanding. When the defendant received the stereotype metal, it understood it was receiving metal which had been shipped to it by Jacobson, either as his own, or which he had purchased and agreed to pay for under a special arrangement that defendant should pay Jacobson by giving him credit on his advertising account. As a matter of fact, it did not receive property of Jacobson, but it received the property of another, the plaintiff, who had no knowledge whatever of the special agreement with Jacobson, and who shipped the metal to the defendant on the express understanding that it was to be paid for in cash. The defendant at once upon receiving this metal melted it up, along with other metal which it had on hand, and put it into use, perhaps before receiving the invoice from plaintiff, and in ignorance of plaintiff’s rights; but the defendant’s good faith or innocent mistake could not confer title to the plaintiff’s property, and, if it melted up the plaintiff’s metal, supposing that it was its own under the special arrangement with Jacobson, and afterwards, upon learning the terms upon which this metal was shipped by plaintiff, repudiated the entire transaction, and insisted that it had no contract relations with plaintiff at all, this conduct on its part constituted an unlawful conversion, for which, in our opinion, trover would lie without showing demand or refusal. The plaintiff never intended to give the defendant possession of the metal, or to convey the title to the metal to the defendant upon the basis of the special arrangement with Jacobson; and,4 when the defendant received the metal, not in accordance with the plaintiff’s terms, although then unknown, but in hostility thereto, and in derogation of the plaintiff’s rights, it converted the plaintiff’s property to its own use as much as though it had taken the property which plaintiff had shipped to another, supposing in good faith that it had a right to take it, and had melted it up and applied it to its own use's. There seems to us to be no middle ground here. The defendant must have received this property in accordance with the plaintiff’s right to payment for the property under the terms of sale, or it must have received it in derogation of those rights.

The defendant contends that the conduct of the plaintiff in charging the metal on its books to the defendant, and in demanding payment for the metal, and sending back the invoice, and some other circumstances’disclosed by the record, show that the plaintiff treated the property as sold to the defendant, and are inconsistent with its right to bring action in trover for the conversion thereof. We think the defendant does not occupy a position to raise this question. ’ After insisting throughout that it never bought any metal of the plaintiff, and declining to recognize any claim on the part of plaintiff against it, it cannot, when the plaintiff takes it at its word and' brings suit for conversion of the property, reply that the plaintiff sold the property to it, and could only sue in assumpsit for the value of the property. It is estopped from setting up such a defense.

We think, under the stipulation of counsel, the court properly directed a verdict for the plaintiff, and the judgment will be affirmed, with costs.

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


author: Blaib, J.

text:
    MANZER v. PHILLIPS.
    1. Intoxicating Liquors — Civil-Dama-ge Act —Actions—Evidenoe — Cure oe Error.
    In an action under the civil-damage act, error in the admission of testimony as to the amount spent by plaintiff’s husband in defendant’s saloon is cured by subsequently charging the jury that no recovery can be had for such money.
    3. Same — Action by Wife — Children.
    Cross-examination of plaintiff as to her husband’s earnings and business does not entitle plaintiff to show that she has children who contribute to the earnings of the family.
    8. Same — Aggravation of Damages.
    It is not competent to show an aggravation of injuries to plaintiff’s feelings by showing the presence of her children when she was informed of her husband’s debauch.
    4. Same — Evidence—Plaintiff’s Children.
    The admission, though indirectly, of testimony that plaintiff had children, was reversible error.
    5. Same — Evidence—Financial Circumstances.
    Evidence of the property and financial condition of plaintiff’s husband is admissible as showing plaintiff’s means of support.
    6. Same — Damages—Instructions.
    Where plaintiff’s testimony showed that her husband provided for her as well after the debauch complained of as formerly, and that the only real difference that the loss of the money spent on the debauch made was that plaintiff would have that much less money if her husband should die before her, the court should have charged that plaintiff had failed to •show any injury to her person, property, or means of support, and could not recover for those items.

      7.- Same — Wanton Sale — Exemplary Damages.
    Where liquor was sold to a person known to be intoxicated, the jury may find’that such sale was wanton, and may award exemplary damages, although the saloon keeper did not know the person had a wife and could not anticipate the particular injury suffered by reason of the sale complained of.
    Error to Shiawassee; Smith, J.
    Submitted January 5, 1905.
    (Docket No. 16.)
    Decided February 4, 1905.
    Case by Mary Manzer against Anna Phillips and others ■under the civil-damage act. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      John T. McCurdy, for appellants.

      Albert L. Chandler, for appellee.
   Blaib, J.

This is an action under the civil-damage act, brought by Mary Manzer against Anna Phillips, a saloon keeper, and Austin Phillips and George Setzer, her bondsmen. It is the contention of plaintiff', and there was evidence tending to prove, that on the 4th day of August, 1903, her husband, then being a person in the habit of getting intoxicated, visited the saloon of defendant Anna Phillips, and while there became so intoxicated as to be unconscious for several hours upon liquors sold him by said defendant or her servants, during which period of time he either lost or had taken from him the sum of $110. Plaintiff seeks to recover in this action damages under the statute on account of injuries sustained by reason of the unlawful sales to her husband. Plaintiff recovered judgment, and defendants appeal.

The first, assignment of error relates to the admission of testimony as to the amount of money spent by Manzer at Phillips’ saloon between the 4th day of May and the 4th day of August, 1903. Any error that may have been committed in admitting this, testimony was cured by the action of the court in subsequently charging the jury that no recovery oould be had for such money.

Error is also assigned upon the ruling of the court in admitting evidence that Mrs. Manzer had two children. As to this action of the court, the record is as follows:

“ Q. Were your children present when the neighbors came in and were relating what had taken place — they were relating what had taken place ?
“A. Yes, sir.
“Mr. McCurdy: I object to that as incompetent, inadmissible, and an improper method of getting in inadmissible testimony. I move to strike out the answer. The question itself is improper.
“ The Court: I will strike out the answer if you want to strike out the answer. That is as far as I will go, if you want it stricken out.
Q. They were not ?
“A. Yes, they were. I said, ‘ Yes, sir.’
“Mr. McCurdy: I now renew my motion to have that answer stricken from the record, and the jury instructed that they should pay no attention to it.
The Court: I think I will deny the motion. (Defendant excepted.)
Q. How did you feel at having that knowledge come home to you, under the circumstances there as you have related at your home ?
“ Mr. McCurdy: I object to it as incompetent and inadmissible.
The Court: She may answer it. (Exception for defendant.)
“A. Well, I felt pretty bad over it.”

Plaintiff contends that this testimony was properly received and retained, because:

“The record discloses that plaintiff had two grown-up sons, who were present in court as witnesses at the trial. These two sons were present when the neighbors came in with newspaper clippings that had been written about Manzer’s debauch at the saloon, and when their father and neighbors discussed the loss of the money in the presence of their mother. Counsel for the plaintiff and defendant both referred to these young men in their argument and examination upon the trial. Before calling these young men upon the witness stand, and also to prove further the transaction at their home as related by the witness, plaintiff was asked if these two boys were present when she heard of the transaction in Phillips’ saloon. No other use was made of this testimony, and such evidence was held competent in the case of Lucker v. Liske, 111 Mich., at page 686, citing Filer v. Smith, 102 Mich. 99.”

We understand plaintiff’s counsel to mean by this either that the occurrence of the neighbors coming in with clippings to report concerning Manzer’s debauch was competent evidence under the authorities cited, and that the boys’ presence at the occurrence was drawn out for the purpose of identifying the transaction and calling them as witnesses later on, or that the fact that the notification was in presence of her children added to her grief, humiliation, and mortification, and so was competent as bearing upon injuries to feelings. There is nothing in the record to indicate that the boys were present as witnesses, nor were they called as witnesses, so far as the record discloses. Page 39 of the record, referred to by plaintiff’s counsel, so far as it relates to this subject, is as follows:

Q. You were speaking about his earning more money now than he did formerly. You may state whether or not you haven’t boys that are grown up, and assist in earning this money at the present time.
“Mr. McCurdy: I object to it as incompetent, and an improper way of getting inadmissible evidence before the jury.
The Court: I think, in view of the cross-examination, she may answer it. (Exception for defendant.)
“A. Yes, sir.
“ Q. Are these the two boys that you speak of ?
“A. Yes, sir.”

Recross-éxamination by Mr. McCurdy:

“ Q. These two young men are 18 or 19 years old, are they ?
“A. No, sir.
“ Q. How old are they?'
“A. One 15; the other 17.”

We do not find anything in the cross-examination of Mrs. Manzer to warrant the court’s action, unless it was the answers drawn out that Mr. Manzer made a little more money ditching than when first married, and had more jobs owing to the clearing up of the country. No reference was made in the cross-examination of Mrs. Manzer to the children, but the questions by defendant’s counsel were confined entirely to her husband’s earnings and business. We do not think such questions authorized the bringing in of the children, otherwise it would be competent in any case where defendant’s counsel sought to inquire into the husband’s earnings to show that there were children who contributed to those earnings, however slightly.

Neither do we think that it was competent to show an aggravation of the injuries to plaintiff’s feelings by showing the presence of her children, when she was informed of her husband’s misfortune. The difference between the children being present or absent, so far as concerns the mother’s feelings, would he one of degree, and not of principle, and the rule which would admit testimony that she had children who were present would admit proof that she had children, although not present.

It has been held repeatedly by this court that testimony that plaintiff had children was inadmissible in cases of this nature. Larzelere v. Kirchgessner, 73 Mich. 276; Johnson v. Schultz, 74 Mich. 75; Thomas v. Dansby, 74 Mich. 398; Boydan v. Haberstumpf, 129 Mich. 137. In the case last cited the trial court struck out the testimony, and endeavored to cure the error in its admission in his charge; but this court, not being satisfied that the error was without prejudice, reversed the case. The fact that the testimony was introduced indirectly,-instead of directly, in this case, does not alter the rule. The mischief is the same in the one case as in the other. We do not intend to intimate that the children could not have been called as witnesses to material facts in the case, or that there might not be cases in which the presence of the children would be part of the res gestse, and so admissible, but we find nothing in this case to authorize the taking of this testimony. We should not be inclined to reverse the case for this error in view of the amount of the judgment — $300—if we were satisfied that the verdict was not affected by the error. But we are satisfied from the testimony of the plaintiff herself that this verdict could only be awarded properly on the basis of damages for injuries to her feelings and exemplary damages, and we therefore hold the admission of this evidence to have been reversible error.

We find no error in the rulings of the court admitting evidence of Manzer’s property and financial condition as showing the plaintiff’s means of support. See Weiser v. Welch, 112 Mich. 134.

Defendants’ counsel requested the court to charge the jury as follows:

“ I charge you that plaintiff has not, under the evidence in this case, proven such a state of facts as shows that she has sustained any injury to her person, property, or means of support in consequence of the sale of any liquor to her husband by the defendants. Therefore she cannot recover for any of those elements in this action.”

The court refused this request, and submitted the question to the jury. We think this was error. Radley v. Seider, 99 Mich. 431. In that case the wife testified “ that her husband provided the necessary food and clothing; that he was always a good provider in those particulars ; and added: ‘ The complaint that I made is this: That, if my husband was more saving, I would have more money left, in case he was taken off, for my support. * * * The only manner in which I considered myself damaged is by reason of his spending his money, and of his abuse to me.’ ”

Mr. Justice Hooker, speaking for the court, said:

“We find no evidence, however, that she was injured in her means of support. She expressly disavows such injury, except that resulting from prospective want in case she should survive her husband. This is purely speculative. She may not survive him, and, if she were sure of doing so, she could have no assurance that he would die possessed of property. The court should have instructed the jury that there could be no recovery for injury to her means of support.”
In the present case the.plaintiff testified:
Q. After the loss of the money, if it was lost down here, your husband continued to run the home up there and look after the property just the same as he had before that time ?
“A.. Why, yes.
Q. There wasn’t any difference that you could see, was there ?
“A. We had to get along.
Q. As a matter of fact, there was no difference up there after the 4th of August than there had been previous to that time, was there ?
“A. No.
“ Your husband continued to manage the place, look after his family, and support them, just the same after that date as he had before that time, didn’t he ?
“A. Yes. * * •*
Q. So that the only loss that you can see whereby you were injured is, in case your husband should die before you die, there wouldn’t be this $110 left for your support and maintenance, isn’t that true ? Your answer is ‘Yes,’ isn’t it ?
“A. Yes.”

And again she testified — and this was her last word upon the subject:

Q. Mrs. Manzer, during all of the summer, from May right up to and including the present time, your husband, Michael Manzer, has been a good provider for you, and has furnished you with necessary food and clothing, hasn’t he?
“A. Yes, sir.
‘ ‘ Q. He has always been a good provider for you, hasn’t he?
“A. Yery good.
Q. And he has been just as good from May up to the present time as he has been before, hasn’t he ?
“A. Yes, sir.
“Q. And he has provided you with necessary food and clothing, hasn’t he, suitable to your station and condition in life ?
“ A. Yes, sir.
Q. You haven’t any cause of complaint to make on those grounds, have you ?
“A. No.
“ Q. And in these particulars — that is, as regards your clothing and your food and the necessaries of life — he has provided you with those just as well during the past summer, and from May up to the present time, as he has before ; is that correct ?
“A. Yes, sir.”

Defendant also alleges that the court erred in submitting the question of exemplary damages to the jury, for the reason that there was no proof that defendants knew that Manzer had a wife, or that they had any notice not to sell to him.

The rule contended for by defendants obtained at a time when this court held that exemplary damages in this class of cases were punitory in their character, and designed to punish the defendant for some positive wrong he had willfully inflicted upon or caused the plaintiff, or for some very gross neglect of her rights in furnishing liquor to her husband.” Larzelere v. Kirchgessner, 73 Mich. 276; Rosecrants v. Shoemaker, 60 Mich. 4; Steele v. Thompson, 42 Mich. 594. This doctrine has since been repudiated by this court, and exemplary damages under the civil-damage act now fall under the general rule. Bowden v. Voorheis, 135 Mich. 648.

In Lafler v. Fisher, 121 Mich. 60, it was held that, where liquor is sold to a person known to be intoxicated, the jury would have a right to find that such sale was wanton, and therefore an occasion for exemplary damages, it not being necessary that the wrong-doer should be able to anticipate the particular injury to make him liable. Under that decision the present case was a proper case for exemplary damages, and the court committed no error in submitting the question to the jury.

For the errors indicated, the case will be reversed, and a new trial granted, with costs.

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