text:
    RHODE v. METROPOLITAN LIFE-INSURANCE CO.

      1. Life InsuranoEt-Evidenoe — Health of Applicant.
    In an action on a life-insurance policy, the statement of the examining physician, a representative of the company, made at the time of the examination, that, in his opinion, the applicant was in good health, is admissible against the company to show that the decedent was in good health at the time the policy took effect.
    2. Same — Prior. Application — Knowledge op Insurer.
    Where the agent’s certificate on an application for life insurance refers to a former application, and there is indorsed on such certificate, at the home office, the number of the prior application, it will be presumed that the company had knowledge of what the first disclosed.
    3. Same — Warranty—Attendanoe by Physician.
    The fact that an applicant for life insurance had been attended by a physician for a mere temporary ailment will not render void a policy based upon an application stating that he had not been attended by a physician.
    4. Trial — Instructions—Unoontradicted Evidence — Harmless Error.
    A charge by the trial judge that he would leave the jury to determine whether they would believe uncontradicted testimony is not prejudicial error where there was no material point wholly unoontradicted.
    Error to Wayne.; Frazer, J.
    Submitted February 5, 1903.
    (Docket No. 71.)
    Decided March 23, 1903.

      Assumpsit by Minnie Rhode against the Metropolitan Life-Insurance Company on a policy of insurance. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Haug & Yerbes, for appellant.

      Bowen, Douglas & Whiting and J. O. Murfin, for appellee.

       Rehearing denied May 29, 1903.

   Montgomery, J.

This case has once been before the court, and is reported in 129 Mich. 112 (88 N. W. 400). On a second trial the plaintiff again recovered, and the defendant brings error.

It is again argued by counsel for the defendant that there was no evidence tending to show that the decedent was in good health at the time the policy took effect. It is strenuously argued that there was no sufficient evidence to raise a question of fact for the jury upon this point, as the testimony of Dr. Lawton was an expression of opinion as to the condition of the applicant. We think the question is foreclosed by the holding of the former case, and, were it not, we see no reason to depart from the conclusion there stated. Nor can we add to the force of the suggestions contained in the former opinion, and in the authorities quoted.

The application in this case stated that the insured never had bronchitis, and it is insisted that the evidence shows that he had bronchitis in May, 1899, and in June, 1899. The evidence that he had bronchitis in June, 1899, is that of Dr. Flintermann, who examined him on behalf of the company in June, 1899. The evidence shows that this application was reported to the company, and that the medical report contained a statement that he believed that the applicant had chronic bronchitis, and recommended a postponement, and that the applicant be re-examined in two months from that time. The application in the present case was reported by the agent, and, in answer to a question as to whether the applicant had ever made an application to this company on which a policy was not issued, it was stated, “Ordinary application postponed, July 21st;” and across this certificate — the usual certificate coming from the home office — appeared the number of the postponed application. The inference is therefore open that the attention of the home office was specifically directed to the former application. This' presents a very different question than was presented on the former hearing of this cause, in which we held (following Brown v. Insurance Co., 65 Mich. 306 [32 N. W. 610, 8 Am. St. Rep. 894]) that it was not incumbent on the defendant to take notice of any prior application and the contents thereof. Here it is shown that it actually did have notice of it, and the inference is irresistible that it was examined at the time this application was made, so that the company had before it whatever information existed upon the subject as to whether there was chronic bronchitis, to wit, the statement of the physician. We think it would be manifestly unjust now to predicate a defense upon, an assumed want of knowledge. Emlaw v. Insurance Co., 108 Mich. 554 (66 N. W. 469); O’Rourke v. Insurance Co., 23 R. I. 457 (50 Atl. 834, 57 L. R. A. 496).

It is also claimed that the statement of the applicant that he had not been attended by physicians is shown to be materially false. But we think the question was fairly submitted to the jury as to whether the ailment for which the applicant was treated was a serious ailment, or a mere temporary difficulty. Hann v. National Union, 97 Mich. 513 (56 N. W. 834, 37 Am. St. Rep. 365); Plumb v. Insurance Co., 108 Mich. 94 (65 N. W. 611).

The court charged the jury as follows:

“ I refuse, and have always refused, to take cases away from a jury where there is any evidence upon a subject upon one side, even if there is no flat contradiction upon the other, but I believe it is my duty to leave that question to the jury to determine whether they will or will not believe even an uncontradicted witness; and I put that matter now so plain before you that there can.be no mistake as to what the ground taken by the court is here, and that if I am wrong about it my position may be rectified by a court of superior authority. ”

It is fair to assume that the court considered that there was testimony in the case on some material point which was wholly uncontradicted. The point upon which it is said there was no contradiction was the testimony of Dr. Lyon to the effect that the applicant had bronchitis. We think that it cannot be said that this testimony was wholly uncontradicted, and therefore, while the statement of the court was somewhat heroic, it was error without prejudice.

The other questions raised are sufficiently covered by the foregoing discussion. We think no prejudicial error was committed, and the judgment will be affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    WHEELER v. BAKER.
    1. Account Stated — Confession of Amount — Acceptance. •
    A confession by an agent that his arrearages amount to a certain sum does not constitute an account stated, where the principal does not accept the confession as a true statement of the account.
    2. Demand — Satisfaction by Part Payment.
    An unliquidated demand can be satisfied by the payment of an amount smaller than its actual value.
    3. Same — Consideration.
    A creditor who, in settling the amount of a disputed' claim, agrees with the debtor upon a certain sum, and as a part of the agreement accepts a less sum in full payment, discharges the whole demand.
    Error to Wayne; Donovan, J.
    Submitted February 18, 1903.
    (Docket No. 94.)
    Decided March 23, 1903.

      Assumpsit by Hayden W. Wheeler, Hayden H. Butts, Oliver G. Fessenden, Walter N. Walker, and Willard H. Wheeler, copartners as Hayden W. Wheeler & Company, against Fred L. Baker, for money had and received. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Allan H. Frazer, for appellants.

      Harry II. Wait {Alex. J. Groesbeck, of counsel), for appellee.
   Carpenter, J.

During the year 1900 defendant was a traveling salesman in the employ of plaintiffs. He became short in his accounts, and on the 14th of October, 1900, plaintiff Fessenden obtained from him at Pittsburg, Pa., a written confession that his shortages amounted to the sum of $2,575.39, summarized as follows: Short on cash collected, $693.16; goods sold for cash, and unaccounted for, $1,327.16; goods given as discount, and charged to other parties, $236.44; goods given as discount, and not yet charged to anybody, $318.63. After this confession was obtained, defendant was permitted to do business for plaintiffs for a couple of days in Pittsburg. Mr. Fessenden then returned to his home in New York, and defendant to his in Detroit. Shortly afterwards, defendant, in response to a request from Mr. Fessenden, went to New York, and there, after several days spent in negotiation, the amount of defendant’s shortage was agreed to be $2,656.53. The testimony of defendant affirms, and that of plaintiffs denies, that at the time this amount was fixed it was agreed .that $1,328.27 would be accepted as full payment therefor. This $1,328.27 was paid by $1 in currency and by delivering to plaintiffs a check for the sum of $1,327.27, drawn by E. B. Baker, defendant’s uncle, on the Fidelity Trust Company of Newark, N. J., to the order of defendant, and by him indorsed; defendant testifying that this payment was made in pursuance of the agreement above stated, and plaintiffs testifying that it was a payment on account. This suit was brought to recover the balance of said arrearage, claimed to be unpaid. The issue made by this conflicting testimony was submitted to the jury, who found in defendant’s favor.

Plaintiffs insisted in the court below, and insist here, that the amount of defendant’s arrearages, having been converted into an account stated, could not be settled by the payment of a smaller amount than that agreed upon. If they are right in this, the judgment must be reversed. If they are wrong, it must be affirmed, because all the assignments of error relied upon relate to this question. The confession made by defendant in Pittsburg that his arrearages amounted to $2,575.39 was not an account stated. Plaintiffs did nothing to indicate their acceptance of that confession as a true statement of the account. On the contrary, they insisted, a few days afterwards, and defendant conceded, that it was not a true statement of the extent of defendant’s arrearages. They insisted when this case was tried, and insist now, that it was not a true statement. It follows that, according to the record in this case, there was no agreed statement of account until the arrangement was made, if any was made, for its settlement. ' Until the arrearage of defendant was liquidated— that is, its amount definitely agreed upon' — it could have been satisfied by the payment of an amount smaller than its actual value. Tanner v. Merrill, 108 Mich. 58 (65 N. W. 664, 31 L. R. A. 171, 62 Am. Sfc. Rep. 687); Kern Brewing Co. v. Royal Insurance Co., 127 Mich. 39 (86 N. W. 388). The legal question involved in this suit, then, is this: Is the settlement of an unliquidated demand rendered void because, when the agreement therefor was made, it was also agreed that the amount of said demand exceeded the amount to be paid to satisfy it ? There can be but one answer to this question. Under this hypothesis, the agreement liquidating the account gave defendant the right to satisfy it by the payment of a smaller sum. Plaintiffs cannot rely on this agreement, and escape from its obligations. Nor can defendant be bound by one part of this agreement, and denied the right of insisting upon another.

The judgment of the court below is therefore affirmed, with costs.

The other Justices concurred.


text:
    LORD v. DETROIT SAVINGS BANK.
    1. Real Estate — Fixtures—Purchaser at Foreclosure Sale.
    A cupola and crane, bricked up and built into a building by the owner, were real estate, and passed to the purchaser at a foreclosure sale of the real estate, as against one who obtained a bill of sale of them pending the foreclosure, where it appeared that their value would have been impaired by their removal, and without them the building would not have been in condition for immediate use.
    2. Same — Annexation—Intent—Evidence.
    The transfer of the crane and cupola pending the foreclosure, and long after their annexation to the realty, is inadmissible to show the intent with which they were annexed.
    3. Same.
    A verbal agreement between the agent of the purchaser at the foreclosure sale and the owner, just before the latter yielded possession, that such cupola and crane might be removed by the owner, does not prove that the mortgagees considered the property personalty at the time it was annexed.
    4. Fixtures — Permission to Remove — Statute oe Frauds.
    A verbal permission to remove fixtures, given by the purchaser at a foreclosure sale to the owner, cannot change realty into personalty.
    Error to Wayne; Donovan, J.
    Submitted February 18, 1903.
    (Docket No. 97.)
    Decided March 23, 1903.
    Trover by Franklin L. Lord against the Detroit Savings Bank and others. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Franklin L. Lord, in pro. per.

      Charles T. Alexander, for appellees.
   Carpenter, J.

Plaintiff brought an action to recover of the defendants damages for the conversion of a cupola and crane which were bricked up and built into a building by the owner of said building’. Subsequently defendants acquired the ownership through a purchase at the foreclosure of a purchase-money mortgage executed by said owner. Some months after, possession was so acquired, plaintiff, who had, while the foreclosure suit was pending, obtained a bill of sale of the cupola and crane, demanded possession of the same, and, on defendants’ refusal to comply with this demand, instituted this suit. The trial court directed a verdict for the defendants, giving, as one of his reasons therefor, that the property in dispute was realty, and on the foreclosure of the mortgage became the property of the defendants.

We think this decision was correct. The testimony of the plaintiff not only showed an attachment in a permanent manner by the owner of the realty, but it also showed that the value of the cupola and crane would be impaired by their removal, and that without them the ..building in which they were would not be in condition for immediate use. Under these circumstances, the cupola and crane became a part of the realty. Coleman v. Manufacturing Co., 38 Mich. 30; Lyle v. Palmer, 42 Mich. 314 (3 N. W, 921); O’Brien v. Kusterer, 27 Mich. 289; Wickes Bros. v. Hill. 115 Mich. 333 (73 N. W. 375).

Plaintiff contends that whether or not these fixtures became part of the realty depends upon the intent of the parties, and that the fact that they were transferred as personal property to the plaintiff is evidence of that intent. We do not think this sale afforded any such evidence. If this property is part of the realty, it became so at the time it was annexed thereto. A declaration on the part of its owner, not made at the time, but long afterwards, would clearly be inadmissible to prove the intent with which said annexation was made. Made, as it was in this case, after the foreclosure suit was commenced, it was a mere self-serving statement.

Plaintiff contends that the following evidence warranted a finding that the property in question was personalty: Just before the owners yielded possession of the real estate and buildings, defendants gave them written permission to remove certain machinery and tools, but not the property in controversy. On the back of said permission, one of the defendants (an agent of the purchaser at the mortgage sale) made this indorsement:

“Full possession of factory to be given in five days; * * * it being understood that full possession of foundry [in which the cupola and crane were located] is to be given in fifteen days.”

The purpose of this indorsement was to give further time for the removal of the cupola and crane, which said agent verbally agreed might be removed. Subsequently said agent verbally agreed that said cupola and crane could remain and be sold to an incoming tenant. At the time possession of the property was demanded, there was talk on the part of the agents of the owners of purchasing* the same, and of making a charge for storage; and they refused to deliver the property in controversy, upon the ground that th¿ owner had forfeited his rights therein by leaving it there too long. This testimony, in our opinion, has no tendency to prove that the mortgagees and purchasers thereunder considered the property in question personalty at the time it was annexed. Neither has it any legal effect as an agreement to change property, which in its nature is realty, into personalty. 2 Reed, Stat. Frauds, § 714; Wetmore v. Neuberger, 44 Mich., at page 365 (6 N. W. 838); White v. King, 87 Mich. 111 (49 N. W. 518).

The judgment is affirmed.

The other Justices concurred.


text:
    SCHWARTZ v. WOODRUFF.
    1. ' Land Contracts — Assignment oe Interest — Cloud on Title,
    A person who has purchased land on a contract, and entered into a written agreement with three persons, assigning to each an undivided one-fourth interest, cannot, upon obtaining a deed from the vendor, convey a perfect title to another who has notice of the assignment.
    2. Foreclosure of Land Contract — Title—Notice—Estoppel.
    A vendee in a land contract, who, knowing of an imperfection in the title tendered him, refused to accept the conveyance, and pay the balance of the purchase price, solely on the ground that he did not have the money, cannot defeat a suit to foreclose the -contract on the ground that the title tendered him was imperfect; but the decree should require the vendor to remove the cloud from the title.
    3. Deeds — Acknowledgment—Notar y — Interest.
    A certificate of acknowledgment of a deed by a notary who is interested in the land does not render the deed void, as title would pass without an acknowledgment. Brown v. McCormick, 28 Mich. 219.
    4. Appeal — Evidence—Objection.
    A party who does not object to the admission o£ a deed in evidence beoause it was acknowledged before an interested notary cannot raise the question on appeal.
    Appeal from Wayne; Rohnert, J.
    Submitted. February 20, 1903.
    (Docket No. 111.)
    Decided March 23, 1903.
    Bill by Charles Schwartz against Fremont Woodruff to foreclose a land contract. From a decree for complainant, defendant appeals.
    Modified and affirmed.

      Walter F. Oxtoby (Keena & Lightner,- oí counsel), for complainant.

      De Forest Paine, for defendant.
   Carpenter, J.

This was a suit brought to foreclose a land contract and obtain a decree for a deficiency against defendant. The court below rendered a decree in complainant’s favor. Defendant appeals, asking a reversal, because complainant'only owned an undivided interest in the land in question, and because the deed of complainant’s grantor was acknowledged before an interested party.

The facts are undisputed, and may ,be briefly stated. The contract between complainant and defendant was made October 18, 1892, and obligated complainant to deliver to defendant, on the payment of the agreed purchase price, “a good and sufficient conveyance in fee simple, * * * free and clear of and from all liens and incumbrances, except such as may have accrued subsequent to the date hereof by or through the acts or negligence ” of defendant. At the time of the execution of said contract, said complainant’s title was that of a contract purchaser only, he having obtained, on May 1, 1891, his contract of sale from the owner of the land, Bishop Foley, of Detroit. Before making said purchase, complainant had a verbal understanding with Frank A. Schulte, William W. Hannan, and James T. Keena that he and each of them should have an undivided one-fourth in the property in question, and the next day after said purchase he and they entered into a written contract in accordance with said understanding. By this contract each of the four became an owner of a one-fourth interest in the property, and each obligated himself to carry out the provisions of the contract between complainant and Bishop Foley. In accordance with a verbal agreement between these four, Bishop Foley executed a deed October 24, 1892, transferring the title to complainant, the acknowledgment to which was taken before and certified by Mr. Keena as notary public. Defendant continued to make payments on his contract until October 10, 1901.

Before this suit was commenced, and after the agreed purchase price became due, complainant tendered defendant a deed of this land, and demanded payment of the balance due. Defendant refused to accept the conveyance and pay said balance on the sole ground that he did not have the money, though he had known for two or three years that Schulte, Hannan, and Keena had an interest in the venture, and was thereby charged with notice of their actual interest in the land. Converse v. Blumrich, 14 Mich., atpage 120 (90 Am. Dec. 230). If the title tendered defendant was defective on account of the assignment of an interest in the land by complainant to Schulte, Hannan, and Keena, it was in the power of the complainant to comply with any objection on that ground, and perfect the title. As no such objection was made at the time of the tender, it would be inequitable to permit that objection to prevail now for the purpose of defeating this suit. When complainant commenced this suit, he had a right to assume that the title tendered by him was sufficient.

An injustice would, however, result to defendant if he were compelled to pay, as required by the decree appealed from, the difference between what can be obtained by the sale of a questionable title and what he has agreed to pay for a title which is free Horn question. The assignment to Messrs. Schulte, Hannan, and Keena clearly does cast a doubt upon the title tendered to defendant. The decree should be so modified as to require complainant to obtain from Messrs. Schulte, Hannan, and Keena a transfer of all their legal title to said property, reserving to themselves, if they choose, their right to an accounting from him. If the defendant does not pay the balance ascertained to be due within 30 days after said deed is filed in the office of the register of deeds, proceedings may be taken in conformity with said decree.

Relying upon Groesbeck v. Seeley, 13 Mich., at page 345, and Laprad v. Sherwood, 79 Mich., at page 524 (44 N. W. 943), defendant’s counsel urges that the acknowledgment of Bishop Foley to his deed to complainant was void, because taken before Mr. Keena, who was an interested party. If this is true — which is by no means certain, as nothing passed to Mr. Keena by the deed, and as his rights in the property were, legally speaking, the same before the deed was made as afterwards — it would not impair the validity of the deed itself. Without any acknowledgment whatever, the title would pass. Brown v. McCormick, 28 Mich. 215, 219. At most this objection goes only to the admissibility of the deed in evidence. As defendant did not make this objection, or any objection which raised this question, when the deed was admitted in evidence by the court below, he ca,nnot avail himself of it on this appeal.

The decree of the court below will be modified as indicated in this opinion, and affirmed. Defendant will recover costs in this court, and the complainant the costs of the court below.

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


text:
    MATTESON v. MATTESON.
    1. Chancery Courts — Jurisdiction—Value or Land — Amount or Lien.
    In a suit in chancery by the owner of land to protect his land from a claim asserted against it, the value of the land, and not the amount of the claim, determines the jurisdiction of the court.
    2. Same — Bill in Aid oe Execution.
    Where a creditor files a bill in aid of execution, the amount of the execution, and not the value of the land, determines the jurisdiction of the court.
    Appeal from, Gratiot; Stone, J.
    Submitted February 20, 1903.
    (Docket No. 109.)
    Decided March 23, 1903.
    Bill by Isaac H. Matteson against Samuel Elias Matte-son and others in aid of execution. From an order overruling a demurrer' to the bill, defendants appeal.
    Reversed.

      Bearl & Kress, for complainant.

      Charles Snelling and Lyon & Moinet, for defendants.
   Carpenter, J.

June 10,1902, complainant commenced this suit in the court below, averring that on the 12th of February, 1902, he recovered a judgment in justice’s •court, in regular form, against defendant Samuel Elias Matteson, for $88.96 damages and $7.80 costs; that a transcript of said judgment was duly filed in the circuit court, and an execution issued and levy made on certain described land, which, on January 29, 1902, said Samuel Elias Matteson had fraudulently conveyed to defendant Cyrus Matteson, for the pretended consideration of $450; that the value of said land was upwards of $100; and prayed that the conveyance from said defendant Samuel Elias to defendant Cyrus be set aside, and complainant be permitted to sell said land to satisfy his judgment and costs. Defendants demurred, on the ground that the matter in dispute was not sufficient to confer jurisdiction. From an order overruling said demurrer, defendants .appeal to this court.

The law by which this controversy is to be determined is contained in 1 Comp. Laws, § 435, and is as follows :

“Such courts shall dismiss every suit concerning prop'■erty, excepting suits between copartners and suits for the ■enforcement of mechanics’ liens, suits for the foreclosure o'f mechanics’ liens, and suits for the foreclosure of mortgages, where the matter in dispute shall not exceed $100, with costs to the defendant.”

It is insisted by complainant that the jurisdiction depends upon the value of the land. Defendants insist that it depends upon the value of the claim asserted by the complainant.

This court has decided that, where the complainant institutes a suit for the purpose of protecting his land from a lien asserted against it, the value of the land, and not the amount of the asserted claim, determines the jurisdiction of the court. White v. Forbes, Walk. Ch. 112; Fuller v. City of Grand Rapids, 40 Mich. 395; Wight v. Roethlisberger, 116 Mich. 241 (74 N. W. 474); Mastenbrook v. Alger, 110 Mich. 414 (68 N. W. 213); Huyck v. Bailey, 100 Mich. 223 (58 N. W. 1002); Dodge v. Van Buren Circuit Judge, 118 Mich. 189 (76 N. W. 315). On the other hand, it is equally well settled that, where the complainant is seeking to enforce a lien not within any exception to this statute, the amount of the claim asserted, and not the value of the land, determines the jurisdiction. Dewey v. Duyer, 39 Mich. 509; Peake v. Bradley, 121 Mich. 182 (79 N. W. 1108). In other words, the matter in dispute is determined by the claim asserted in the suit'. If the complainant asserts that valuable property is in danger of being lost, the value of that property determines the jurisdiction. If the claim asserted is a lien against that property, and a suit is brought to collect that claim, its value determines the jurisdiction.

It results, therefore, that the order overruling the demurrer must be reversed, and complainant’s bill dismissed, with costs of both courts.

The other Justices concurred.


author: Hooker, C. J.

text:
    DETROIT FIRE & MARINE INSURANCE CO. v. HARTZ.
    1. Taxation — Insurance Companies.
    1 Comp. Laws, § 3834, providing that, in computing the taxable property of an insurance company, the value of its real property shall be taken from its net assets above liabilities, and the remainder shall be the amount of personalty for which it shall be assessed, indicates an intention to tax the property of the company, and not a design to impose a fran ohise tax.
    2. Same — Reinsurance Reserve — Exemptions.
    The reinsurance reserve fund of an insurance company is not a debt in the ordinary acceptation of the term, nor is it such a bona fide indebtedness as would entitle a taxpayer to an exemption of an equal amount of credits under subdivision 5 of section 3833, 1 Oomp. Laws.
    3. Same — Personalty—United States Bonds — Mandamus.
    Where, in assessing the personal property of an insurance company, the assessors have determined its assets from the report of the insurance commissioner, as directed by statute, and there is included in the assets §120,389 of United States government bonds, and the liabilities include an item of §211,727.72 reinsurance reserve fund, mandamus will not lie to compel the assessors to deduct the amount of the bonds • from the taxable personal property.

      Certiorari to Wayne; Rohnert, Frazer, Carpenter, and Hosmer, JJ. (Brooke and Donovan, JJ., dissenting).
    Submitted October 7,1902.
    (Calendar No. 19,444.)
    Decided March 30, 1903.

      Mandamus by the Detroit Fire & Marine Insurance Company against John C. Hartz and others, composing the board of assessors of the city of Detroit, and the common council of said city, to compel the reduction of an assessment against relator. From an order denying the writ, relator brings certiorari.

    Affirmed.

      Moore & Goff, for relator.
    P. J. M. Hally (Timothy E. Tarsney, of counsel), for respondents'.
   Hooker, C. J.

The relator is an insurance company. The law under which it is taxed reads as follows :

“In computing the taxable property of insurance companies organized under the laws of this State, the value of the real property on which a company pays taxes shall be deducted from its net assets above liabilities, as determined and shown by the last report of the commissioner of insurance, and the remainder shall be the amount of personal property for which the company shall be assessed.” 1 Comp. Laws, § 3834.

The report of the commissioner, upon which the assessment complained of was based, shows an excess of assets over liabilities of $1,076,643.09. Of the assets, $368,-878.84 consisted of real estate, and $120,389 of United States bonds, while in the liabilities was an item of $241,-727.72 for “amount required to reinsure outstanding risks.”

Section 3834 clearly indicates an intention to tax the property of insurance companies, not a design to impose a franchise tax. It provides a way in which the value of their personal property may be ascertained by the assessor, and the validity of the rule was sustained in Michigan Mut. Life-Ins. Co. v. Hartz, 129 Mich. 104 (88 N. W. 405). In this case the assessors have followed the direction of the law.

It may be contended that the law has adopted this as the method most likely to resqlt in getting at a fair valuation of the personal property of such a company, and that no inquiry can be made into the character of the personal estate whereby any portion of it can be deducted from the assessment. But if this is not so, and the assessors should have taken out the $120,389 representing the United States bonds, they were equally at fault in deducting as an indebtedness the item of $241,727.72. The grounds on which it is asserted that this'is an indebtedness, to be deducted in accordance with the provisions of 1 Comp. Laws, § 3831, subd. 6, and 1 Comp. Laws, §§ 3832, 3842, are: First, that it is treated as a liability by the company and insurance commissioner, for the purposes of bookkeeping and a financial report, which is per-haps proper enough; and, second, for the reason that the policies of the company are subject to cancellation, and unearned premiums may in that event be demandable by the insured.

Neither one of these justifies such an assertion. The fund called the “reserve fund ” is the property of the company. For the purpose of protection to patrons of the company, the law requires it to be kept in a fund called a “reinsurance reserve fund,” so that the company may have the means to reinsure its risks if necessary, which it is given power to do; but its character is not changed on that account. See 2 Comp. Laws, § 5169. It is not a debt in any ordinary acceptation of the term, nor is it under the terms of section 3832. It cannot be called a “ bona fide indebtedness owing by the taxpayer,” such as is mentioned in subdivision 5 of said section. Again, it is true that upon cancellation of a policy the company must refund a part of the premium unearned. It has contracted so to do upon that contingency! The premium paid has become the property of the company, however, and we may take judicial notice that only a part of it will ever be paid back to the insured upon cancellation. It is a remotely contingent liability, but cannot be dignified by the name “bona fide indebtedness due or to become due,” which is the term used in the statute to describe such exemptions. So that, in any view of this case, relator is not entitled to relief. The writ of mandamus is a discretionary writ. The court should not use it to compel the reduction of the assessment to' the amount of the United State bonds, if it is true that more than that amount has already been deducted as credits.

The order of the circuit court is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


author: Montgomery, J.

text:
    LYON v. CLARK.
    1. Conspiracy to Defraud — Evidence.
    A conspiracy to defraud creditors will not be inferred from slight evidence.
    2. Sale — Vendor’s Lien.
    A vendor of land has a right to assert a lien upon the premises for the unpaid purchase price.

      S. Same — Bankruptcy—Priority.
    A vendor’s lien has priority over assignees in bankruptcy or a. general assignee for the benefit of creditors.
    4. Same — Waiver—Note eor Purchase Prioe.
    The receipt of a note for the purchase price of land does not-constitute a waiver of a vendor’s lien.
    Appeal from Clinton; Stone, J.
    Submitted October 8,. 1902.
    (Docket No. 16.)
    Decided March 30, 1903.
    Bill by Willard C. Lyon, trustee in bankruptcy of the estate of Fred E. Hazle and Frank B. Clark, against Nathaniel J. Clark and Mary E. Clark, to set aside a deed. From a decree for complainant, defendants appeal.
    Reversed.

      Almond O. Shepard and Edwin II. Lyon, for complainant.

      High óbEverett (Norton & Looting, of counsel), for defendants.
   Montgomery, J.

Some of the facts in this case were before the court in the case of Lyon v. Clark, 129 Mich. 381 (88 N. W. 1046). The present case is, however, a bill filed to set aside a transfer of other property, viz., a store building, made by Frank B. Clark, one of the bankrupts, to the defendant Nathaniel J. Clark, on September 5, 1898. Two grounds are alleged : First, that the transfer was fraudulent; and, second, that it constituted an unlawful preference in violation of the bankrupt act.

We are not able to discover any testimony in the record justifying the finding that there was any fraud in fact in the transfer of this property from the bankrupt to the-defendant. That the transfer would, apart from the question of a vendor’s lien, which is asserted by the defendant, have amounted to an unlawful preference, we think there is much testimony to show, and the finding of the circuit judge upon this point would be entirely justified. The question of importance, therefore, is whether the defendant had, as he asserts, a vendor’s lien to the amount of the full value of the property transferred ; for, if he had, nothing was withdrawn from the assets of the bankrupts, and the transfer could not have amounted to an unlawful preference.

Before considering the actual relations of the parties as between themselves, it may be well to refer to the claim, made by the complainant, that this property was deeded to the son with the express purpose of giving him a credit in order that he might buy goods on credit. This is asserted, and the statements of the defendant himself are relied upon by complainant to show this fact. We think no fair construction of his testimony justifies any such claim. On the contrary, on the page of the record referred to by complainant’s counsel he distinctly denies any such purpose. The charge, in fact, is a charge of conspiracy entered into in advance for the purpose of defrauding creditors, and we think that the inference of such a conspiracy ought not to be drawn lightly, nor without a fair support of testimony, which we fail to discover in the record.

The case, then, must turn upon the question of whether, at the time of the conveyance to the son, the defendant Nathaniel J. Clark was entitled to, and continued to be entitled to, assert a vendor’s lien. This conveyance was made on the 11th day of July, 1895, at which date the son, Frank B. Clark, executed a promissory note covering this land and an additional $1,500 which he owed his father for advances. As to the circumstances under which this conveyance was made, the testimony of the defendant is as follows :

Q- What arrangement did you make with him [Frank], if any, about paying you for it [the store building in question]'?
“A. Nothing, only took his note.
Q. When was he to pay you for the building ?
A. He was to pay me the note whenever I called on him to pay it. It was on demand. Whenever I saw fit or wanted that note, he was to pay it to me. That is the way it was.
Q. What was there said between you about your having any lien on the property for your pay ? Was there anything said about that ?
“i. Nothing, only he was not to incumber the property any. I trusted that to him, that he must not incumber the property any; so that, if he did not pay the note, the understanding was I wanted him to deed back the property.
Q. Why didn’t you take back a mortgage for the amount of $3,000 on that property ?
A. Well, I trusted him to it as a son.”

A vendor’s lien has been frequently recognized in this State, and the rule which authorizes a vendor to assert a lien for the unpaid purchase price is clearly asserted in numerous cases (Carroll v. Van Rensselaer, Har. Ch. 225), the last case considered by this court being Curtis v. Clarke, 113 Mich. 458 (71 N. W. 845). The rule is also established by authority that a vendor’s lien has priority over assignees in bankruptcy or insolvency, or a general assignee for the benefit of creditors. 1 Perry, Trusts, § 239. The only limitation on this rule is that, if the circumstances would indicate a purpose on the part of the vendor to waive his lien, it will not thereafter be enforced. We discover in this case no such evidence. The mere receipt of a note would not constitute a waiver of the lien. CurtisClarke, supra. The testimony of the defendant does not show that there was any such purpose at the time the deed was made. It would appear from his testimony that it was distinctly agreed that the grantee was not to incumber the property, and it would appear that it was the grantor’s understanding that, if the property was not paid for, he should deed it back. We think it should be held that the defendant had a vendor’s lien upon this property, and as the lien was for the full purchase price, and which was as great as the value of the property at the time he reconveyed, the creditors of Frank B. Clark were in no way damnified by this transfer, and are in no posi- • tion to complain.

The decree of the court below will be reversed, and the bill dismissed, with costs of both courts.

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


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    BLACKBURN v. BLACKBURN.
    1. Joint Contracts — Action—Nonjoinder op Parties.
    •Where plaintiff and her husband, each owning individual interests in property, conveyed it to defendant upon an agreement that he should dispose of it and pay one-half of the proceeds to them, the contract was joint on the part of plaintiff and her husband, and, upon the latter’s death, she could not bring suit for a part of the proceeds without joining with the representative of her husband’s estate.
    3. Same — Plea in Abatement — Notice.
    Nonjoinder of plaintiffs in an action on a joint contract need not be pleaded in abatement, or notice given under Cir. Ct. Rule 7.
    Error to Alpena; Sharpe, J., presiding.
    Submitted October 16, 1902.
    (Docket No. 69.)
    Decided March 30, 1903.

      Assumpsit by Cynthia A. Blackburn against William A. Blackburn for money had and received. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Reversed.

      Joseph H. Cobb (C. L. Collins, of counsel), for appellant.

      Charles 11. Henry and Robert J. Kelley, for appellee.
   Hooker, C. J.

The trial court directed a verdict for the plaintiff in an action of assumpsit, and the defendant has appealed.

Defendant, William A. Blacjrburn, was the son of George N. Blackburn, deceased, and the stepson of the plaintiff. The plaintiff and her husband, George N. Blackbuim, lived in Alpena, Mich., up to May, 1888, when they moved to Bryson City, N. 0., taking considerable money with them, of which $700 belonged to the plaintiff. They built a hotel and drug store, which were opened in February, 1889, the title then being in George N. Blackburn. On May 20, 1889, he conveyed this property to his wife, the plaintiff, by warranty deed. In June, 1892, they wrote defendant, making him a proposition for him to go to North Carolina and take the property and contents, and sell and convert the same into money, and turn over one-half of the selling price to plaintiff and her husband. The personal property turned over belonged to plaintiff’s husband, the realty to her, as we have said. The transfer was made, together with four policies of insurance, aggregating $5,000, which were assigned by the • plaintiff, and one of $1,200, which was assigned by her husband. Defendant held possession of the property until November, 1892, when the hotel and much of its contents were destroyed by fire. After litigation, this defendant, William A. Blackburn, collected the insurance, which netted $5,542.95 after payment of $1,900 attorney’s fees. All of this was received by him on January 16, 1896, and was derived from insurance on the hotel and furniture. Before this was received by defendant, and on October 9, 1895, George N. Blackburn died, and plaintiff was appointed administratrix at Alpena, where the deceased and she resided at the time of his death. The defendant refused to pay over any part of the money received as proceeds of the property, and plaintiff instituted two actions — this one in her own right, and another as administratrix — to recover the amount due them, claiming one-fourth in each action. Upon the trial it was conceded that the defendant had in his hands a total of $5,880.62, and the court directed a verdict for the plaintiff for one-fourth of that amount (which included the insurance money and a sum received by him on the sale of certain personal property), with interest, as her share.

It is apparent from the testimony that plaintiff and her husband conveyed this property and assigned the policies •of insurance upon an agreement by defendant to dispose of the same, and pay them one-half of the proceeds. This appears from the written instruments themselves, especially in the light of the circumstances surrounding the transaction, and it is not a forced construction to hold that the policies were for mutual protection. The contract was joint on the part of the plaintiff and her husband, and not several, and the demand was single, and should not have been split.

It is said that the nonjoinder of the husband’s representative should have been pleaded in abatement; and, again, that under Cir. Ct. Rule 7 it should have been specially pleaded that this was a joint contract. This is not an affirmative defense. It was incumbent on the plaintiff to prove a several contract, and, failing to do so, her action fails, because she does not prove a contract to pay to her one-fourth of the sum realized, but a promise to pay to herself and another one-half. Monaghan v. Insurance Co., 53 Mich. 253 (18 N. W. 797); Howe v. Hyde, 88 Mich. 93 (50 N. W. 102); Fowles v. Hayden, 130 Mich. 47 (89 N. W. 571); 1 Chitty, Pl. 7.

We are constrained to reverse the judgment) and direct a new trial.

Moore, Grant, and Montgomery, JJ., concurred.


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    REID v. DETROIT IDEAL PAINT CO.
    Í. Corporations — Subscriptions to Increased Capital Stock— Validity.
    One who agrees to take a certain amount of the increased capital stock of a corporation on condition that a third person take a certain amount, after it has been issued to and accepted by him, is bound to pay for the same, especially where the amended articles are filed before suit is begun for the purchase price.
    2. Same — Filing of Articles.
    There should be valid and binding subscriptions to stock before articles of incorporation are filed.
    3. Same — Liability on Subscription — Ratification.
    Where a person subscribes to the increased capital stock of a corporation, his liability to pay does not depend upon his ratification of the agreement after the amended articles are filed.
    4. Same — Evidence—Financial Condition of Corporation.
    On the trial of an issue whether a party subscribed to the increased capital stock of a corporation, testimony as to the subsequent embarrassed financial condition of the corpora tion is immaterial.
    5. Same.
    Testimony by the party, that he would not have kept the stock if he had understood that it was issued to him as testified by a certain witness, is incompetent.
    6. Same — Value of Stock — Secret Intentions.
    The liability of one who has subscribed to the. increased capital stock of a corporation cannot depend on the value he placed on the stock, or his secret intentions in taking it.
    Error to Wayne; Erazer, J.
    Submitted October 10, 1902.
    (Docket No. 74.)
    Decided March 30, 1903.
    Assumpsit'by William Reid against the Detroit Ideal Paint Company for goods sold and delivered, in which defendant sets off a claim based upon a subscription to its capital stock. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Moore & Moore (Henry B. Shaw, of counsel), for appellant.

      A. Gf. Pitts and O. M. Leonard, for appellee.
   Hooker, C. J.

On January 1, 1896, a concern going under the name of the Detroit Ideal Paint Company was doing business in Detroit. It was conducted by one Fuller. It was held out to be a corporation with $12,000 capital, of which Fuller, his wife, and brother-in-law held all of the shares of stock. It was in the habit of filing annual reports, as required by law of corporations. We discover nothing in the record to indicate that it was not a corporation legally organized. Fuller appears to have had full charge and control of its affairs, the other stockholders having nominal interests. Reid, the plaintiff, was a creditor of this company for goods sold it, and he was an indorser of its paper given to him as payee for a large amount. The bookkeeper testified that the total claim exceeded $6,017 on January 1, 1,896, as shown by the defendant’s books. Of this $227.79 was an open account, and the remainder on notes outstanding. The defendant met with a loss by fife on March 8, 1900. The plaintiff thereupon sued the defendant, and garnished the insurance money. He recovered a judgement for $2,567.85; and the defendant has appealed.

Upon the trial the defendant claimed some $2,000 and upwards by way of set-off, basing it upon the following allegations of fact, viz.: That about January 1, 1896, the company was largely indebted to Reid, and that he was urging payment; that an arrangement was made to increase its capital stock $7,000, Reid agreeing to take $2,000 of the new stock, provided that one Dr. Olin would take the other $5,000; that this was carried out, a resolution adopted by the stockholders, and entered in the minutes kept of the proceedings of the company, increasing the stock to $19,000, and certificates of stock issued to plaintiff and Dr. Olin; and that plaintiff has never paid for the stock. The plaintiff denies that he ever participated in any arrangement whereby he agreed to purchase or pay for stock in the concern, although he does not deny the receipt of a certificate for stock to the amount of $2,000. The court left the question to the jury. The errors assigned relate to the introduction of proof and the charge.

We have no doubt that, if Reid agreed with the defendant company to take $2,000 of additional stock, to be applied on his claim, upon condition that the stock should be increased $7,000, of which increase Dr. Olin should take $5,000, it was a valid engagement, and if subsequently the resolution increasing the capital was duly passed by the stockholders, and the stock issued to Dr. Olin and the plaintiff, and accepted by him as a stockholder, and the concern went on doing business, he cannot now avoid his obligation, especially as the amended articles were filed before this action was begun. The law which requires the filing of articles contemplates that there will be valid and binding subscriptions of stock before filing. See Anderson v. Railroad Co., 12 Ind. 376 (74 Am. Dec. 218); St. Louis Colonization Ass'n v. Hennessy, 11 Mo. App. 555; Appleton Mut. Fire-Ins. Co. v. Jesser, 5 Allen, 446; Methodist Episcopal Union Church v. Pickett, 19 N. Y. 482; Tarbell v. Page, 24 Ill. 46; Chubb v. Upton, 95 U. S. 665; Pullman v. Upton, 96 U. S. 328; International Fair Ass’n v. Walker, 83 Mich. 386, 88 Mich. 62, 97 Mich. 159 (47 N. W. 338, 49 N. W. 1086, 56 N. W. 344); Detroit Driving Club v. Fitzgerald, 109 Mich. 670 (67 N. W. 899). It was necessary to submit to the jury the question whether Reid agreed to take $2,000 of the additional stock, for while, upon the one hand, there was testimony that tended to prove it, there was-also testimony that there was no such agreement.

It is claimed by defendant’s counsel that the court instructed the jury that the subscription, sale, and delivery of the stock was void until the certificate of increase was filed with the Secretary of State, and that Reid would not be liable for the stock unless he knew that the certificate had heen filed, and, knowing that, had thereafter agreed to take the stock. Such instructions, if given, were not accurate, as will be seen from the authorities cited', for it cannot be said that his liability depended on his knowledge of the filing and subsequent ratification of the' agreement. The charge was not given exactly as claimed, but we think a necessary inference from it is that, unless the jury should find a filing of the articles and a subsequent ratification, the plaintiff cannot be held liable for the stock.

We think that the proof of an embarrassed financial condition of the corporation at a time subsequent to the alleged agreement was immaterial. It was incompetent for Mr. Reid to testify that he would not have kept the stock if he had understood that it was issued as Mr. Fuller had testified. This did not tend to strengthen his denial. It is probable that the defendant was not prejudiced by this evidence, but it is mentioned in view of a retrial.

Complaint is made of the following instructions :

“ But Mr. Reid claims that he did not buy this stock at all, and, if he did not, and it has not been transferred to him,— as I stated to you, it must be in writing to make it a lawful transaction,— then this $2,000 would not be allowed, because they owe him,, and he has got nothing in pay for it. If he took this stock simply as security, or never valued it as anything, or never intended to take it as stock, then he would not be chargeable with the amount as to the value of the stock.”

It was correct to say that, if he took the stock simply as security, the defendant could not set off the value in this action; but his liability ought not to be allowed to turn on the value he placed on it, or upon his secret intentions as to taking it.

The judgment is reversed, and a new trial ordered.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    HINCHMAN v. KNIGHT.
    1. Slander — Evidence—Exceptions—Appeal.
    The defendant in an action for' slander cannot complain because the judge limited certain evidence to mitigation of damages, where no exception was taken, and his counsel stated it was not offered in justification.
    2. Same — Words Actionable Per Se.
    Testimony in an action for slander, showing that plaintiff was in possession of certain goods, does not warrant an instruction that the words, “You broke in there and stole some goods, the other day, out of the house,” are not actionable per se, where it does not appear that defendant and all the hearers knew the circumstances which rendered it impossible for plaintiff to steal them.
    3. Same — Instructions.
    Where the court, at the request of plaintiff, instructed the jury that, if they found that defendant used the language charged in the declaration, their verdict must be for plaintiff, and, at the request of defendant, instructed them that the words were not actionable unless intended to impute a crime, and that the action could not be maintained if they were accompanied by an explanation showing a crime was not committed, the jury must have understood that the instruction given at the request of plaintiff was qualified by those given at the request of defendant, and the question whether the language was actionable per se was left to the jury.
    4. Same — Damages.
    Where, under the testimony in an action for slander, the words used were actionable per se, and the judgment was for $00, defendant was not injured by an instruction that, if the words were intended and understood to charge only a tres, pass, the jury should not award any damages that would be excessive.
    Error to Berrien; Coolidge, J.
    Submitted October 19, 1902.
    (Docket No. 236.)
    Decided March 30, 1903.
    Case by Burwell Hinchman against David Knight for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Laiurence C. Fyfe and George W. Bridgman, for appellant.

      O ’Hara & O’Hara, for appellee.
   Hooker, C. J.

The defendant has appealed from a judgment of §60 in a slander case.

Defendant owned and had rented a building to Jones. In January, 1900, Jones was in Chicago; and on January 12, 1900, acting’ under her husband’s direction, his wife locked the house, and delivered the key to the plaintiff, to whom Jones was indebted in the sum of $12, or thereabouts. About the same time plaintiff received the following letter :

“Mr. B. Hinchman.
“Dear Sir: I came over to Chicago to close deal with Standard Oil Company to work then in Michigan, and expected to go back the same day, but was disappointed, and am obliged to wait until Monday.
“I can get no money until deal is closed, or would remit in this letter.
“As you know, my wife has been sick for some two weeks past, and is deemed best by all that she come to mother’s and place herself under our old physician’s care. I am sending for her, and have instructed her to lock house and leave key with you personally. I do this as evidence of good faith, to be held on your part as security for the debt I owe you until I arrive at home and pay you. Bent is paid to February 1st, and I don’t owe D. Knight one cent. I trust this arrangement will prove satisfactory to you, and I will be greatly obliged to you, and will certainly be back in Sawyer not later than Monday of next week, prepared to pay you.
“Yours truly,
“Charles H. Jones.”

Jones’ furniture was worth about $60. His wife having gone to Chicago, where her husband was, plaintiff became uneasy about his claim; and about February 10th he went to the house with McDonald, a constable, and Tatro, a teamster, with the intention of taking the furniture away, but concluded not to do so. A few days later, having given an assignment of his claim to one Snyder, the latter obtained -an attachment; and on February 12th he, with the plaintiff and McDonald and McCarton, who had also assigned a claim to Snyder, went to the house for the purpose of attaching the property. The defendant was there, fixing the fence, and expostulated against their taking the goods; and he and the plaintiff got into a quarrel, in the course of which defendant is alleged to have said to the plaintiff, in the presence of the others: ‘ God damn you! You broke in there and stole some goods, the other day, out of that house.”

Counsel for the defendant claim to have offered testimony tending to show Hinchman’s possession of the property, and that, while the court admitted it, he limited it to mitigation of damages, while it was competent by way of justification. No exception appears to have been taken to this when the court so limited it, and, furthermore, counsel for defendant expressly stated when the testimony was offered that they were not showing the previous transaction in justification.

It is clearly proved that Jones left his goods in his own home, which he placed in charge of Hinchman, to secure him for the amount that Jones owed him, by giving him the key to the house. It is claimed on behalf of the defendant that this gave Hinchman the possession of the goods, and that, being in possession of the goods, he would not have stolen them had he broken open the house and taken them away, and therefore the words of the defendant, if spoken as alleged, did not charge larceny. It is plain that the plaintiff did not steal the goods, for he did not take them; but, upon plaintiff’s theory, it must be conceded that the defendant charged him not only with taking them, but stealin g them. If it could be said that the proof showed that the circumstances alluded to were fully understood by the defendant and by all of the hearers of the charge, it is possible that the charge, as intended and understood, would not be a charge of crime, slanderous per se. But this cannot be said, because, so far as the record shows, neither the defendant himself, nor all of the hearers of the slanderous words, knew anything about the circumstances referred to. It is possible that McDonald did, and certainly the plaintiff did, but there is nothing tangible to indicate that Snyder or McCarton did; and the language alleged was a plain, unambiguous charge of larceny, which, under the rule of Ellis v. Whitehead, 95 Mich. 105 (54 N. W. 752), would justify, if not require, a charge that it was slanderous per se, in the absence of circumstances tending to show that it was used in a qualified sense. The testimony in the case did not warrant an instruction that these words were not actionable per se, and the court committed no error in refusing to so charge. If he left the question to the jury, this was as favorable treatment to the defendant as ho had a right to expect.

It is claimed, however, that he did not leave the question to the jury. He opened the charge by reading to the jury several requests by the respective parties, as follows:

For the plaintiff:

“1. If the evidence in the case satisfies you that the defendant, at the time and place charged in the declaration, used the language charged in the declaration, your verdict must be for plaintiff.”

For the defendant:

“1. The words claimed by the plaintiff to have been uttered are not actionable unless the defendant intended to impute the crime of larceny.
“2. The circumstances surrounding the speaking of the words may be given in evidence to rebut the presumption of malice, and to show the circumstances under which the words were uttered. The defendant has always been and is permitted, in a case like this, to show the matter affecting the meaning of the alleged defamatory language. An action cannot be maintained where the words, although imputing a crime, were accompanied by such an explanation as showed that the crime was not committed. Explanatory circumstances, known to. all the parties,— speakers and hearers, — are to be taken into account, then, as part of the words. The test in such cases is the knowledge possessed by those to whom the language is published.
“3. If the language of the defendant, under the circumstances, did not charge the plaintiff with larceny, and if none of the hearers understood it as charging him with larceny, then the defendant is not guilty.”
“5. If defendant’s language used on the occasion complained of, taken as a whole, or all of it, did not, according to its fair meaning, under the circumstances, charge plaintiff with larceny, and if the hearers did not understand that it charged him with larceny, but that it simply charged him with doing some unfair or improper or dis•honest thing, not amounting to larceny, as the hearers understood it, then defendant is not guilty.”

It is urged that plaintiff’s first request is diametrically opposed to the requests given for the defendant; and it is clearly inconsistent with them. But we think that thé jury could not fail to understand that it was qualified by the requests given for the defendant, and we are of the opinion that the case should not be reversed upon that ground, even if defendant’s counsel are right in their contention that the court could not properly charge that the words were actionable per se. Furthermore, the testimony in the case did not admit of an inference that the language, which was unequivocal, was intended and understood in a different sense than that naturally imported by the words.

Error is assigned upon the following portion of the charge, viz.:

“The defendant claims that he had good reason to believe, and did believe, that the plaintiff had entered the house of one Jones, and had unlawfully taken goods therefrom ; that this was committing a trespass. His attorneys also claim that, whether he used the word ‘stolen ’ or not, he intended only to charge the plaintiff with a trespass, and that the hearers so understood it at the time. Now, if this be so, — if the hearers understood that defendant was only charging an unlawful act, and not a theft, and he did not intend to charge theft, — then the offense in such case would only be trivial. In such case you could not award any damages that would be— That is, you must avoid rendering any verdict that would be excessive. It is for you to determine whether it is the fact. If the defendant had no good reason to believe, and did not believe, that plaintiff had entered the house of Jones and taken goods therefrom, the accusation would be reckless and malicious.”

It is said that, if the words charged only a trespass, they were not actionable, in the absence of an allegation and showing of special damage, and that the judge erred in saying that in such a case the jury “ should not award any damages that would be excessive.” This point would be well taken but for the fact that, under the testimony, the court might have justly said that the words were actionable per se. Youngs v. Adams, 113 Mich. 200 (71 N. W. 585); Ellis v. Whitehead, 95 Mich. 105 (54 N. W. 752).

The judgment is affirmed.

Moore, Grant, and Montgomery, JJ., concurred.


text:
    BAUER v. AMERICAN CAR & FOUNDRY CO.
    1. Master and Servant — Personal Injuries — Assumption op Risk.
    An employe was injured by the fall of an air hoist suspended from a horizontal track, kept in place by flanges on the wheel and the force of gravitation. By reason of the neglect of a fellow-workman properly to regulate the air pressure after using the hoist, the piston descended, and, striking something, lifted the hoist from the track, so that it fell upon plaintiff. Held, that, as the danger from the defective attachment — i. e., that any force raising the hoist would tend to detach it, and permit it to fall — was apparent to any careful observation, it was assumed by plaintiff.
    2. Same — Knowledge op Danger.
    By the terms of his employment, a'servant agrees that dangers obviously incident to the discharge of his duty shall be at his risk, and it is unimportant whether he is informed or knows of the particular danger to be apprehended.
    3. Same — Knowledge op Foreman — Warning op Danger.
    The fact that defendant’s assistant foreman knew that a hoist fell, through the negligence of an employé, some days before plaintiff’s injury, did not charge defendant with knowledge thereof, so as to require a warning to servants of the danger.
    Error to Wayne; Hosmer, J.
    Submitted November 19, 1902.
    (Docket No. 10.)
    Decided March 30, 1903.
    Case by John Bauer against the American Car & Foundry Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Keena & Lightner (Wells, Angelí, Boynton & McMillan, of counsel), for appellant.

      Washington I. Robinson, for appellee.
   Carpenter, J.

In the court below, plaintiff recovered a verdict and judgment for injuries resulting from the fall of an air hoist while he was in defendant’s employ. This air hoist was an appliance used for lifting and moving heavy iron beams. It weighed about 500 pounds. The power by which it was operated was compressed air. It was suspended from a horizontal track, about 12 feet above the floor. It consisted of a cylinder and a piston moving therein. The length of this cylinder was five or six feet. By regulating the pressure of compressed air in said cylinder by means of a lever, the workman operating the same raised or lowered said piston. Suspended from said piston was a hook, which, by being attached to chains on said beams, raised or lowered them at the will of the workman operating the hoist. It follows from the above description that said piston, when at the bottom of said cylinder, almost touched the floor. To enable the beams handled by the air hoist to be carried from one part of the shop to another, sáid hoist, by being suspended from the overhead track in the manner hereinafter described, could be moved along and under said track. A single strap of iron connected the upper end of said hoist with a wheel. This wheel had a flange on each side, and ran along said overhead track. All that kept said hoist in place were the flanges on said wheel and the force of gravitation. Any'force lifting the hoist up would tend to detach it from the overhead track. By attaching the hoist to the track in this manner, plaintiff contends that the defendant was negligent. Several of these air hoists, substantially alike, were in operation in defendant’s shop, where plaintiff was employed.

The immediate circumstances connected with plaintiff’s injury are these: A co-employé of plaintiff had used one of these air hoists to move an iron beam called a “channel.” After he had said channel in the desired location, by regulating the air pressure with the lever at his hand he lowered the piston, and unfastened the channel. He neglected then either to move the hoist or, by using the lever, to change the pressure of the air, and, as a result, the descending piston struck the channel or some other object, and, because of its insecure fastening, the hoist was detached from the track above, and fell upon and seriously injured plaintiff, who was passing by.

Defendant insisted in the court below, and insists here, that the testimony of plaintiff shows that his injury resulted from a risk assumed by him, and that the negligence of a fellow-servant was the proximate cause of his injury. The view we take of the former contention makes it unnecessary to consider the second. Did plaintiff’s injury result from an assumed risk ? At the time of his injury plaintiff had worked for defendant five weeks. During this time he had been employed as a puncher; that is, with two assistants, he • had been engaged in punching holes through beams which were moved by one of these air hoists. He had to use the hoist 15 or 16 times a day, and operated it himself. After he had worked there two weeks, he noticed that the wheel ran on a track, and that it only hung on one side of the track. He thought, however, that the air hoist was safe, and, if he had known that it was not, he would not have been working around it at all.

It is urged as a material circumstance that the evidence shows that, a short time before plaintiff’s injury, one of the air hoists fell in the shop where he was working. This fall also was caused by the piston striking a pile of beams. No injury seems to have resulted, and the testimony does not indicate that any serious damage was done to property. The fact that this air hoist fell was generally known among the employés in that room. The assistant foreman in charge of the room knew it, though the plaintiff did not.

Said this court, in Lamotte v. Boyce, 105 Mich., at page 548 (63 N. W. 518):

“The duty of the employer to provide reasonably safe machinery is qualified by his right to contract for the use of machinery which falls, short of the best and most approved; and when the defect is obvious, and cannot escape ordinarily careful observation, which is always due from the employé, the risks attendant upon such use are assumed by the latter.”

In line with this case are the following decisions: Fisher v. Railway Co., 77 Mich. 546 (43 N. W. 926); Ragon v. Railway Co., 97 Mich., at page 274 (56 N. W. 612, 37 Am. St. Rep. 336); Manning v. Railway Co., 105 Mich., at page 266 (63 N. W. 312); Secord v. Railroad Co., 107 Mich. 540 (65 N. W. 550); Phelps v. Railway Co., 122 Mich. 171 (81 N. W. 101, 84 N. W. 66); Pahlan v. Railway Co., 122 Mich., at page 236 (81 N. W. 103).

But it is said that the doctrine does not apply where, as in this case, the injured employé was not informed and did not know of the danger to which he was exposed from the alleged defective appliance. This is not the test. In Ragon v. Railway Co., 97 Mich. 265 (56 N. W. 612, 37 Am. St. Rep. 336), the principle was applied to a case where the employé did not even know of the defect. The doctrine of assumed risk rests upon the theory of a contract. Says Judge Taft in Narramore v. Railway Co., 96 Fed., at page 301, 37 C. C. A., at page 501:

“ ‘Assumption of risk’ is a term of the contract of employment, .express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself, but the correct statement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed, expressly or impliedly, to assume.”

We must hold, therefore, that plaintiff has agreed to assume all dangers obviously incident to the defective method of attaching the hoist to the overhead track from which it was suspended. The question, then, is, not what dangers plaintiff actually apprehended, but what dangers were obviously incident to this defective method of attachment. The obvious danger was this: That any force raising the hoist would tend to detach it, and permit it to fall. It is impossible to conceive that plaintiff did not know this. Whether he actually did know it or not is of 'no consequence, because, being an obvious danger, he assumed it, under the law already stated. About the only force likely to raise these hoists and detach them from the overhead track — as shown on the two occasions when a hoist fell — was that resulting from the piston striking some object on the floor through the negligence of the workmen operating them. The danger, then, which plaintiff did not know, was that his co-employés might be negligent. Surely, no one will contend that he did not assume this danger, whether he apprehended it or not. His employment bound him to assume it. Quincy Mining Co. v. Kitts, 42 Mich., at page 39 (3 N. W. 240); Hewitt v. Railroad Co., 67 Mich., at page 66 (34 N. W. 659).

Nor can it be contended that the fact that a hoist fell, through the negligence of his co-employés, before plaintiff was injured, charged defendant with the duty of informing plaintiff of this occurrence. It is true that this occurrence was not known to the plaintiff, and that it was known to defendant’s assistant foreman, in charge of the shop where he worked. The knowledge of this official would not, however, be imputed to defendant (see Findlay v. Foundry Co., 108 Mich. 286 [66 N. W. 50]), and there was nothing in the circumstance of the fall itself to give the defendant knowledge.

We are bound to hold, therefore, under the law as declared by this court, that plaintiff’s injuries resulted from a risk assumed by him, and therefore the judgment of the court below must be reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    PEOPLE v. GOODRODE.
    1. Polygamy — Marriage—Evidence—Nonprejudicial Error.
    Where, on a trial for piolygamy, respondent’s testimony and that of his alleged first wife showed the performance of a marriage ceremony between them, followed by their living together as husband and wife, a valid marriage was shown, and hearsay testimony, introduced-for the purpose of proving the marriage, was not prejudicial error.
    2. Criminal Law — Witnesses—Documents—Constitution.
    The provision of the Constitution, securing to the defendant in a criminal prosecution the right to be confronted with the witnesses against him, does not permit the admission of a certificate of a county clerk that, after diligent se'arch, he is unable to find any record of a marriage between certain persons, for the purpose of showing that the marriage did not take place.
    8. Polygamy — Instructions—Evidence.
    In a prosecution for polygamy, where there was no evidence that the alleged former marriage of respondent’s first wife was a sham marriage, it was error for the court to charge that, if the parties ‘ merely went through a sham ceremony, then it was no marriage and no defense.”

      4. Marriage — Witnesses—Correcting Charge.
    In a criminal prosecution the court instructed the jury that two witnesses were necessary to a valid marriage, and then that “it appears from the testimony that but one witness was present.” Held, that a subsequent attempt to correct the charge by eliminating, “it appears from the testimony that but one witness was present,” did not cure the error, as it still left the jury to believe that two witnesses were necess.ary to constitute a valid marriage.
    5. .Evidence — Admissibility and Weight.
    It is the province of the court to determine what testimony is admissible, and of the jury to determine the weight to be given it.
    Exceptions before judgment from Van Burén; Carr, J.
    Submitted November 21, 1902.
    (Docket No. 222.)
    Decided March 30, 1903.
    Nelson R. Goodrode was convicted of polygamy.
    Reversed.

      Hammond, Hammond & Donovan, for appellant.

      Horace M. Oren, Attorney General, and David Anderson, Prosecuting Attorney, for the people.
   Moore, J.

The information in this case charges the respondent with polygamy; that on the 24th day of March, 1892, and in the county of Fulton, State of Ohio, he married one Anna Carpenter; and on the 20th day of July, 1896, he married one Agnes Cleary, not having at that time obtained a divorce from Anna Carpenter. A trial was had, and the respondent was found guilty.

Error is assigned upon the admission of testimony introduced for the purpose of proving the marriage of March 24, 1892. The testimony of Mr. Bloomer, based upon what the judge of probate told him, was improperly admitted. It was hearsay. But, inasmuch as the testimony of the respondent and of Anna Carpenter showed the performance of a marriage ceremony between them on or about March 24, 1892, followed by their living together as husband and wife, we think a valid marriage was shown (see People v. Lambert, 5 Mich. 367 [72 Am. Dec. 49]; People v. Calder, 30 Mich. 85; Hutchins v. Kimmell, 31 Mich. 126 [18 Am. Rep. 164]; Peoples. Girdler, 65 Mich. 70 [31 N. W. 624]; People v. Perriman, 72 Mich. 184 [40 N. W. 425]; People v. Imes, 110 Mich. 250 [68 N. W. 157]), and the error was not prejudicial.

It was the claim of the respondent that when he married Agnes Clearj’-, in 1896, he supposed the woman he married in March, 1892, was dead, and that there was no legal impediment to his marriage, and did not learn there was until 1900, when he at once filed a bill for divorce from Anna Carpenter, and obtained a decree of divorce. It is also his claim that, when he married Anna Carpenter, she then had a lawful husband living.

The record discloses this woman had been married three or four times before the marriage ceremony in Ohio in 1892. Prior to 1886 she was reputed to have married one Van Lair. Upon the trial the people introduced as a witness Mr. Williams. He testified upon cross-examination that he married Angeline Carpenter in 1886 or 1887; that before then she had been married to one Fuller; that, supposing Fuller was dead, Mr. Williams married her; that he afterwards learned Fuller was alive; that he advanced the money, and Mrs. Fuller obtained a divorce from Fuller; that at this time she was keeping house for Mr. Williams as his housekeeper, but not as his wife, and continued to do so for two or three months after the divorce; that, as he did not deem his marriage with her was legal, he never got a divorce from her. He also testified that afterwards he understood she married one William Miller at Saginaw, and still later married respondent. Anna Carpenter was sworn as a witness on the part of the respondent, who testified that, before marrying Goodrode, she married Miller in Saginaw, in the presence of witnesses, by a man who was represented as a minister, and she and Miller ]ived together, and were not divorced when she married Goodrode.

For the purpose of rebutting this testimony, the people were allowed, against the objection of the respondent, to introduce in evidence the following paper:

“State of Michigan, County of Saginaw.
“I, R. Crowfoot, county clerk and clerk of the circuit court, having a seal, do hereby certify that after diligent search of the records of marriages of said county, under my control, I am unable to find any record of á marriage between William Miller and Anna or Angeline Carpenter, Fuller, or Williams.
“Witness my hand and seal of the court of Saginaw, this 9th day of April, 1902.
[Signed] “R. Crowfoot,
“ County Clerk.
“[Seal of the circuit court of Saginaw county, Michigan.] ”

As to this part of respondent’s defense the court charged the jury, among other things:

“ It is claimed by the respondent that this marriage to Anna Carpenter was void and illegal for the reason that she was at the time of said marriage the wife of one William Miller. I charge you that this claim is no defense to respondent, unless the evidence in the case shows this claimed marriage to William Miller to have been a legal one. If Anna Carpenter and William Miller merely went through a sham ceremony, then it was no marriage, and would be no defense. Under the laws of this State, in the solemnization of marriage no particular form is necessary, except that the parties shall solemnly declare, in the presence of the magistrate or minister and in the presence of the attending witnesses, that they take 'each other as husband and wife; and in every case there must be at least two witnesses besides the magistrate or minister present at the ceremony. If' any ceremony was performed at all between William Miller and Anna Carpenter, it appears from the testimony that but one witness was present, and it further appears that this marriage was performed, if at all, in Saginaw, and it appears from the certificate of the count} clerk of Saginaw county that no record of such a marriage is found in that county. You are at liberty to consider this as testimony to show that the marriage claimed to have been had between-William Miller and Anna Carpenter was not a valid marriage, and, if it was not a valid marriage, then it is no defense to respondent.
“ Mr. Anderson: Now, if your honor please, there is one place in there that should be changed, where it says, ‘ It appears from the testimony that but one witness was present. ’ I think it would be an error to leave that little statement in, and would like to have that changed.
The Court: Well, that statement, on the prosecutor’s statement, is eliminated from this request.”

Again:

“I think I am safe in saying to you, if this Mrs. Carpenter and this man William Miller honestly contracted a marriage, and agreed to take each other as husband and wife, and lived together as such, and were known as such in the community, then that would be in the law a marriage. But that is for you to say, and in considering that point you will consider the evidence of the kind of ceremony. In passing upon that you will consider the fact that /the name of the minister — that is, in weighing her testimony — is not repeated here, and the fact that there is no record of the marriage. All these things you may consider as bearing upon the question of good faith of that marriage.”

The respondent insists that the certificate of the clerk of Saginaw county was not admissible, as the accused was entitled to be confronted with the witnesses against him. The people say the testimony was admissible; citing People v. Jones, 24 Mich. 215. A reference to that case will show it is easily distinguishable from this one. In that case the facts proven were essentially documentary, and of an affirmative character. In the opinion the court used the following language:

“We do not think the provision of the Constitution securing to the defendant in a criminal prosecution the right ‘to be confronted with the witnesses against him’ can apply to the proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a copy officially authenticated in some way, especially when the fact to be proved comes up collaterally, as in the present case.”

In the case at bar the question to be decided was whether •or not Anna Carpenter and William Miller had in fact been married, as she testified. The fact to be proven did not depend upon the existence of documents, but depended, in this case, upon whether or not a marriage ceremony was performed, as testified to by Anna Carpenter. This could best be shown by the persons who are said to have been present, as the contracting parties, the minister, or any one else who might have been present.

In People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49), it was held that a certificate of marriage signed only by the minister or officiating officer, or the record thereof, cannot avail as evidence of the marriage in criminal proceedings, where the defendant is entitled to be confronted by the witnesses against him. Section 28, art. 6, of the •Constitution, provides that the accused is entitled to be confronted with the witnesses against him. This is supplemented by the statute (3 Comp. Laws, § 11796), which provides that he shall have the right to meet the witnesses face to face who are produced against him. The people were allowed in this case to show that no return of the marriage of Anna Carpenter to William Miller had been made to the office of the county clerk, not by producing the clerk or some person having knowledge of the fact, who might be cross-examined as to how diligent a search lie had made, but by the introduction of a certificate from 1dm of the fact. This was contrary to the constitutional provision, as well as the statute. See People v. Dow, 64 Mich. 717 (31 N. W. 597, 8 Am. St. Rep. 873).

I do not think the certificate was admissible for another reason. There was positive testimony of the marriage ceremony, and that the parties were reputed to be husband •and wife. It was sought to discredit this testimony in the manner indicated. We do not think it tends to do so, but the logical inference would be that the person whose duty it was to make the return had failed to make it. A conviction of so serious a crime as bigamy ought not to be predicated upon an inference of so doubtful a character.

There was no occasion for the trial judge to say to the jury, “If Anna Carpenter and "William Miller merely went through a sham ceremony, then it was no marriage, and it would be no defense. ” It was the claim of the people that no marriage in fact was performed between these persons, while Anna Carpenter testified that the marriage ceremony was performed by a minister in the presence of witnesses. Her claim was either true or it was false. There is no testimony in the case that, if a marriage ceremony was performed, it was a sham ceremony, and the charge was calculated to prejudice the jury.

Again, when the judge undertook, at the suggestion of the prosecuting attorney, to correct his charge by saying, “Well, that statement, on the prosecutor’s statement, is eliminated from this request,” he did not correct the error in the charge. He had told the jury that, to constitute a valid marriage, there must be at least two witnesses besides the magistrate or minister present at the ceremony. He then instructed them, “ It appears from the testimony that but one witness was present,” — in effect telling them no valid marriage was performed in Saginaw. While the j ury may have understood that the court recalled what he had told them about the testimony showing there was but one witness present, it did not correct what he had charged them was necessary to constitute a valid marriage.

The charge of the court was calculated to impress the jury with the idea that Anna Carpenter’s testimony was not entitled to much credence. It was for the judge to say what testimony was admissible, but it should have been left with the jury to say what weight should be given it.

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

Hooker, C. J., and Carpenter, J., concurred with Moore, J. Montgomery, J., concurred in the result. Grant, J., took no part in the decision.


text:
    PEOPLE v. GORSLINE.
    1. Bribery — Information—Sparrow Bounties.
    An information charging respondent with bribing a village clerk to issue false sparrow certificates under 2 Oomp. Laws, §§ 5586-5589, was not defective in not containing the word “English” before the word “sparrow,” where the information showed on its face that the sparrow certificates contemplated were such as could only be issued in compliance with the statute, and there was no chance for misapprehension.
    2. Same — Evidence— Prior Offenses — Intent.
    In a prosecution for bribing a village clerk to issue false sparrow certificates, testimony of prior similar transactions, coupled with evidence tending to show a conspiracy with another to continue them, was admissible for the purpose of characterizing and making clear the purpose of respondent in the payment of the money upon which the prosecution was based.
    8. Trial — Instructions—Failure to Give Requests.
    Failure to give a request of respondent is not error where the subject is fully and fairly covered by the general charge.
    4. Same — Argumentative Charge — Prior Offenses.
    The charge in this case, which, on the whole, was eminently fair, was not erroneous for being argumentative, and in condemning the admitted misconduct of respondent, as the language complained of was used in an attempt to prevent the danger incident to testimony regarding prior offenses.
    5. Same — Misstatement of Evidence.
    A statement by the court in his charge that an important fact was admitted, when it appears from the evidence that respondent had denied it, is error.
    Exceptions before judgment from Isabella; Dodds, J.
    'Submitted November 21, 1902.
    (Docket No. 221.)
    Decided March 30, 1903.
    Louis Gorsline was convicted of bribery.
    Reversed

      T. W. Whitney, I. A. Fancher, and H. A. Sanford, for appellant.

      Cyrus F. Bussell, Prosecuting Attorney (William-A. Bahlke, of counsel), for the people.
   Hooker, C. J.

The defendant, Gorsline, was convicted of bribery, under an information which charged that he and one Gruber paid to one Struble, a village clerk, $25, “to influence and induce and’cause him, said Jay Struble, village clerk as aforesaid, to issue to said person, viz., Louis Gorsline, fraudulent and false sparrow certificates provided by-law to be issued by village clerks under and by virtue of Act No. 29 of the Session Laws of Michigan for the year A. D. 1887, and the amendments thereto, upon the lawful compliance with its provisions." It is contended that this information is fatally defective, because it did not contain the word “ English ” before the word “sparrow,” inasmuch as the statute provided for the payment of bounties on English sparrows only. See 2 Comp. Laws, §§ 5586-5589.

The statute under which defendant Was prosecuted is section 11311, 3 Comp. Laws, and is as follows:

“Every person who shall corruptly give, offer, or promise to any executive, legislative, or judicial officer, after his election or appointment, and either before or after he shall have been qualified or shall have taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision, or judgment on any matter, question, cause, or proceeding which may be then pending, or may by law come or be brought, before him in his official capacity, shall be punished by imprisonment in the State prison not more than five years, or by fine not exceeding three thousand dollars and imprisonment in the county jail not more than one year.”

The information shows upon its face that the sparrow certificates contemplated by the parties were such as could be issued by lawful compliance with the statute heretofore mentioned, and it could refer to nothing but English sparrows. There was no possibility of a misapprehension of its meaning, and we think the learned judge did not err in holding it a good information.

In opening the case to the jury, the prosecutor stated that he would show that, previous to the spring of 1899, Gruber was deputy clerk, and that he and Gorsline were engaged in similar transactions to the one charged; that, knowing that his superior was not to be re-elected, Gruber induced Struble to run for clerk, and introduced Gorsline to him as a sparrow hunter, with whom he would subsequently do business if elected; that, after Struble’s election, Gorsline and Gruber at once began to pay him money and receive fraudulent certificates for sparrow bounties, which they collected. These statements were objected to. The theory of the prosecution was that this testimony tended to show a conspiracy, which characterized and made clear the motive and purpose of defendant in the payment of the $25 in December, upon which this prosecution rests. "We are of the opinion that it was within the rule of the case of People v. Seaman, 107 Mich. 362 (65 N. W. 203, 61 Am. St. Rep. 326). The testimony shows that the money in question was furnished by the county clerk, who had become suspicious of Struble, with a view to the-detection of his unlawful practices, and the defendant claimed it was for this purpose only that the defendant paid the money. On the other hand, the prosecutor claimed that the payment was made by the defendant for the purpose of securing evidence which he could use to prevent Struble from divulging his (defendant’s) nefarious conduct on former occasions.

Counsel for the defendant submitted the following request :

“ That if they find that the respondent, at the request of Rowlader, and for the purpose of ascertaining that Jay Struble was issuing false sparrow orders, and for the purpose of confronting him with it and thus stopping the crime, went to Struble and procured the four December orders, and paid him $20 for the same, and did not intend to use them to obtain money upon, they must acquit.”

This was not given, but it is claimed to have been fairly and fully covered by the charge, and we think this is true. The court said :

“Now, it makes no difference whether Struble issued any orders or not after the payment of it. The crime was completed, if it was a crime at all, at the time the money was offered by the respondent. Now, the respondent admits that he did pay money at that time to Struble, as I said before, and claims that he paid it at Shepherd. It makes no difference whether he paid it at Shepherd or sent it through a letter, as far as the substance of the offense is concerned, and it is for you to consider whether or not the people’s claim as to how it was paid is correct, and whether that date is correct.
“As a general proposition to direct you in this, I will-say that the respondent cannot be convicted unless you find beyond a reasonable doubt that, at the time claimed by the people, the money was given to Struble, by or through the agency of the respondent, with the corrupt intention and for the purpose of corrupting him and influencing his official action in issuing fraudulent certificates mentioned in the information. As I said to you before, that must have been the purpose, and whether or not Struble ever issued them would make no difference, if he received the money. If he had then said, ‘ I won’t issue any certificates,’ the crime would be just as complete as it would be if he had issued them, if it was paid to him with the corrupt intention of influencing him in his official action.
“ It may have occurred to you that this respondent was committing a wrong from the beginning in paying money to Struble. That is true. He had no right in the world to pay the first $20 to him to pay him for counting sparrows, because the law itself obliged Struble to count all sparrows that were brought to him that were caught in the village of Shepherd, under the statute. It was entirely wrong from the beginning for him to pay any money. It is demoralizing to the officer, and to the respondent him-, self, and all the people, that the people shall be placed in position of having its officers receive money from individuals with whom they are doing business for the purpose of paying them for doing things that the statute obliges them to do without pay; but, however wrong that may be, it is introduced here simply for the purpose of showing the relation existing between the respondent, Struble, and Gruber, and as having a bearing upon the intention with which the act of December was done.
“Now, don’t forget that it will be a great wrong to the respondent, and a great wrong to the people, if you should say that this man should be convicted by reason of having paid money in May or June to this officer. ' However wrong that may have been, this case is not planted upon that occurrence, but you should consider it as bearing upon the occurrence in December.
“ It is for you to say whether or not the respondent paid the money in December for a corrupt purpose; and if for a corrupt purpose, then he is guilty. If it was not for a corrupt purpose, then he is not guilty, .if it was paid to him with no intention of influencing his official action as an officer. The respondent claims that, while he paid the money to Struble to get him to issue orders, that the intention was to detect crime that it was claimed that Struble was committing with other persons. The claim of the people is that he did it for the sole purpose of protecting himself and getting Struble in his power. Now, if you find that he did it for a corrupt purpose of protecting himself, or for the corrupt purpose of getting the orders for any other purpose except to detect crime of other people, and without reference to himself, then he should be convicted under his own testimony, because he admits that he paid the money; but, if you find that it was not paid with the corrupt intention of doing wrong, then he must be acquitted.
“As bearing upon that, whether he paid that rightfully or with the intention of doing right, and without intention of doing a wrong, you must take into consideration all the testimony in this case. It is for you to determine whether or not the statement he makes of what happened between him and Rowlader is true, or whether the statement of Kowlader is true; that is for you to determine.
“You are to consider the way these sparrows were brought to Struble, the memoranda that were left with Struble, if you find that there were memoranda left, and the respondent himself admits some of them. It is stated here, and admitted by the defendant, that he used to leave memoranda with certain figures of the amounts that he placed in there, and asked orders to be drawn > for more than the amount of birds delivered; that he intended afterwards to furnish the birds to make up the amount of the orders. Now, that was absolutely wrong and demoralizing. No man ought to have thought it was right at any time.
‘ ‘ The law is plain, and 'it seems to me that no one could make a mistake concerning the fact that the sparrows must be counted, must be there, and must be destroyed before the orders are drawn. But that is not what they complain of in this case. I call your attention to that, so that you won’t get mixed when you go to your jury room. You may consider that as bearing upon whether or not the transaction of December was corrupt or not.”

Several points are made against this charge. It is said to be argumentative, that it did not recognize defendant’s theory, and that it unnecessarily condemned the admitted conduct of the parties, thereby causing a prejudice against the defendant. The learned circuit judge recognized the possible danger that the testimony regarding other transactions than that of December, 1899, might be misapplied by the jury, and he seems to have attempted to prevent it. It is in that connection that he used much of the language-complained of. As a whole, the charge was an eminently fair one. He carefully limited the offense to the December transaction, and left controverted questions of fact to-the jury. In this, as in most cases, there were some admitted facts, and the judge was justified in treating them as such in his charge, and referring to them in elucidation of the points involved in the case.

It is alleged that defendant was prejudiced by the last-two paragraphs of the charge as quoted above, wherein it is implied that the defendant admitted that he left memoranda for certificates which he expected would be issued, although not accompanied by the requisite number of birds to justify it. This was important evidence on the-subject of the conspiracy, if true, and the judge said that it was. Defendant’s counsel say that this fact was nob admitted, and that the question was an open one for the jury. The defendant stated in his testimony that he never received orders in excess of the birds delivered until the December transaction, and, although there was much evidence to the contrary, that made it a controverted question. The judge appears to have inadvertently overlooked this, and to have been mistaken in the statement. It was important as bearing upon the question of intent, and, as counsel claim, it was for the jury. We therefore have no alternative but to reverse the conviction. A.new trial is ordered.

Moore, Carpenter, and Montgomery, JJ., concurred. Grant, J., took no part in the decision.