text:
    BARRAS v. BARRAS.
    1. Evidence — Correspondence—Delivery oe Deed — Betters.
    *n an action of ejectment, in which the delivery of a ¡leed from a father, since deceased, to his daughter came into controversy, letters written by decedent regarding the land after he had executed and delivered the deed, containing references to the land as his and giving directions about the management of the real property in question, were properly admitted in evidence in conjunction with proofs that the daughter*had general knowledge about her father’s correspondence; also, mere delay on the part of the court in receiving the evidence was not prejudicial to the appellant heir.-at-law of the grantor.

      2. Same — Declarations—Husband and Wife — Confidential Communications.
    It was not erroneous to receive the widow’s testimony as to statements made hy her husband when he delivered the deed to her for the benefit of the daughter, since the statute excluding confidential communications between husband and wife during the marriage relates to communications not intended to be disclosed (3 Comp. Laws 1915, § 12555). And the fact that decedent directed her not to mention the transfer to certain interested parties did not bring the testimony within the statute, when he desired that the wife mention the subject to the daughter.
    3. Same — Evidence—Trial—Instructions.
    An instruction to the jury by the court, that the burden was on plaintiff to show by the preponderance of the evidence that the deed from the father to the defendant had not been delivered, was erroneous, in an action against the grantee in the deed of plaintiff’s ancestor, recorded after the ancestor’s death, for, though the possession of the deed by a grantee unexplained does in many cases give rise to the presumption that it was duly delivered, the presumption may be rebutted by evidence and is not conclusive. The burden of proving its delivery by a preponderance of evidence, like proving any other act necessary to the effectiveness of the deed, is ordinarily upon the party who relies on it.
    4. Same — Nonprejudicial Error — Judicature Act — Miscarriage of Justice.

      Held, however, that the error was not sufficiently serious to authorize a reversal, and as the plaintiff should on the record presented have been subjected to a new trial if he had obtained a favorable judgment, he could not complain of the alleged misdirection, which, therefore, did not appear to have resulted in a miscarriage of justice as defined by the new practice act (Act No. 314, Pub. Acts 1915, 3 Comp. Laws 1915, § 13763).
    Error to Iron; Flannigan, J.
    Submitted April 18, 1916.
    (Docket No. 84.)
    Decided September 26, 1916.
    Ejectment by Alpha C. Barras against Sarah J. Barras and another. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      .A. H. Byall, for appellant.

      N. C. Spencer (F. A. Bell, of counsel), for appellees.
    Plaintiff brought this action of ejectment, as heir at law of his father, Edwin P. Barras, to recover an undivided one-twelfth interest in certain lands in Iron county described as the south half of the southwest quarter of section 34 in township 43 north, of range 35 west. Upon the trial he proved title in his father to a one-fourth interest in the land, by deed bearing date July 18, 1889; that his father died intestate on the 20th of August, 1901, leaving a wife, Frances E. Barras, and three children, namely, the plaintiff, the defendant Sarah and a brother John; that the defendant Sarah claimed title to, and was in possession through her lessee the defendant mining company of, the interest owned by the father, and rested his case. The defendants thereupon offered in evidence a deed from Edwin P. Barras and Frances E., his wife, to the defendant Sarah of the father’s entire interest in the land. This deed bore date October 12, 1895, but was not recorded until after the father’s death; that is, on August 30, 1901. They also offered in evidence the record of the deed in the office of the register of deeds. The deed and the record were received in evidence subject to plaintiff’s objection that there was no presumption that the deed had ever been delivered, inasmuch as it was not recorded until after the grant- or’s death. The plaintiff then called the defendant Sarah, as an adverse witness, under the provision of Act No. 307, Pub. Acts 1909 (5 How. Stat. [2d Ed.] § 12865 [3 Comp. Laws 1915, § 12554]), who testi-tied, in substance, that she was attending the university at Ann Arbor when the deed was executed by her father and mother; that her mother wrote her about it, but that the letter could not be found; that the deed was in her father’s handwriting; that when she came home just before Christmas in 1895, her father called her into the kitchen and handed it to her saying, “Here is the deed I had your mother write you about”; that she had had control of the deed ever since, and that it was kept in a trunk where her father kept his valuable papers, where she herself kept her high, school diploma, examination papers and letters, and where her mother kept her own deeds; that the trunk was never locked, and that she, her mother, and her father all had access to it as they pleased. She said that she had never mentioned the deed to her brothers because her father asked her not to, as he wished to avoid trouble in the family. She also testified that after the deed was delivered her father paid the taxes on the land, looked after it for her, negotiated the leasing of it as her agent, and that all the while she lived at home and was a member of his family. She admitted that after the deed was given he executed a mining option of the land in his own name, but said that he consulted with her about it, and acted for her in the matter. She gave as the reason for not signing the option herself that her father did not wish her brothers to know about the transfer to her. She also said it was agreed that the royalties from any lease that might be executed should be used for the family until other properties could be leased or disposed of. She also testified' that about three days after her father’s death she, with her mother and brothers, looked over her father’s papers in the trunk, and during the examination her deed was found there. She denied showing or feeling surprised when the deed was. found, but says that her brother, the plaintiff, was very angry. She also denied saying, “Poor little papa has remembered me.”
    During his examination of defendant Sarah, counsel for plaintiff produced certain letters written by the father subsequent to the date of his deed to her, and offered them in evidence as a foundation, among other things, of further cross-examination. These letters related to the management and leasing of various mining properties, including the land in question. Several of them were written to plaintiff. In one or more of the letters he spoke of this land as “my land,” and in none of them was mention, made that defendant had any interest in it. The court received these letters, or some of them, in evidence, but declined to allow them to be read to the jury, until it should have been shown that the defendant knew of their contents when they were written. All were finally read in evidence, but before this was done considerable discussion had taken place, relative to the matter, between the court and counsel. All of this discussion was before the witness and the jury, and plaintiff claims that his rights were prejudiced by the doubts thus thrown upon the materiality of the letters.
    The plaintiff, Mrs. Barras, and the brother John, were also sworn in the case. Plaintiff testified that the deed was in his father’s handwriting; that it was signed by his father and his mother, and duly acknowledged. But he said that he had never heard of the deed until it was found in the trunk, after his father’s death, and that his father had always said that the children should share alike; that when the deed was found in the trunk, his sister, the defendant, exhibited surprise, exclaimed, “Poor little papa has remembered me,” and began to cry; and that the trunk had always been locked, the key carried by his father, and kept secret. He also said that after the father’s death there was talk between the children and the mother about turning over to the latter the income from the property in litigation.
    Mrs. Barras, the mother, testified, on the contrary, that there was not any talk of turning over to her the income from this property, or from any lands, but that the children did give to her the use of $150 in money that the father had on hand when he died. She said that defendant did not show surprise when the deed was taken from the trunk, and did not say, “Poor little papa has remembered me,” but did say, “Here is the deed that father gave me.” The mother further testified that the father himself drew the deed; that she went with him before a notary, where they both signed and acknowledged it, and that:
    “When we came back he handed me the deed, and told me to keep it for Sadie, and told me to write her, but not to tell the boys about it, because he did not want any trouble in the family”
    She testified also that when defendant came home from the university the father himself took the deed and handed it to her, saying “Here is the deed your mother wrote you about.” The mother said that she herself took the deed, after the father had delivered it to defendant, and placed it in the trunk, where all of them had access to it, and that the father never asked for it again, but always spoke of the land, in the family, as belonging to defendant. Plaintiff objected to the disclosure, by Mrs. Barras, of the statements made to her by her husband when he delivered the deed to her for defendant, and assigns error upon the admission of that testimony.
    The brother John H. Barras testified that when he came to the deed, after opening the trunk, he handed it to his sister, the defendant, who said, “That is the deed father gave me”; that the children did turn over the $150 in money that was in the bank to their mother, but that there was no talk about turning over the income of the property deeded to defendant, and that, when he was at home, his father had often sent him for things in the trunk, and that he always found it unlocked.

      Among other things the court instructed the jury as follows:
    “The only question in the case for the determination of the jury is whether or not the deed was delivered. The deed having been executed, acknowledged, and recorded, it results, as a matter of law that its delivery is presumed. The -law assumes, from the facts which I have related, that the deed was delivered. It results, further, from this that the defendant Sarah J. Barras is not bound to prove that the deed was delivered. That is to say, gentlemen, the burden is not on Sarah J. Barras to prove that the deed was delivered, but the burden is upon Alpha C. Barras to prove that the deed was not delivered; and, in order to entitle him to a verdict, it must appear by a preponderance of evidence that the deed was not delivered.”
    The plaintiff duly excepted to that portion of the charge above quoted, so far as it related to the presumption of delivery and to the burden of proof, and assigns the same as error. The explanation by the court in the balance of the charge as to what would, and what would not, constitute a sufficient delivery seems to have been satisfactory to counsel.
    The jury rendered a verdict for defendants, and plaintiff brings the case to this court by writ of error.
   Person, J.

(after stating the facts). It seems that Edwin P. Barras, the father, wrote various letters regarding the land in question, after he had signed and acknowledged the deed to his daughter, the defendant, and after its alleged delivery. In these letters he spoke of the land as his own, and gave directions as to its management. • It is unnecessary to determine in this case whether these letters would, or would not, have been competent evidence if they had been written without defendant’s knowledge. It was fairly shown that she did have a general knowledge of her father’s correspondence about the land, and the letters were, in fact, finally received and read to the jury. And we cannot say, from the record, that the court’s delay in admitting them was prejudicial to plaintiff’s case.

Nor was there anything improper in permitting Mrs. Barras to give in evidence the statements made by her husband, the grantor, when he delivered the deed to her for the daughtei. 3 Comp. Laws, § 10213 (3 Comp. Laws 1915, § 12555, 5 How. Stat. [2d Ed.] § 12857), applies only to confidential communications between husband and wife during the marriage. Hagerman v. Wigent, 108 Mich. 192 (65 N. W. 756); Jenkinson v. Brooks, 119 Mich. 108 (77 N. W. 640); Ward v. Oliver, 129 Mich. 300 (88 N. W. 631); Thayer v. Thayer, 188 Mich. 261 (154 N. W. 32). This was not a confidential communication within the meaning of the statute. Mrs. Barras was not only expected to deliver the deed to the defendant, but she was particularly directed by her husband to write the defendant about it. The fact that she was not to mention the transfer to certain particular individuals, the sons, did not make the communication confidential.

But the instruction of the court was incorrect when he told the jury that the burden was upon plaintiff to show by a preponderance of evidence, that the deed from the father to defendant had not been delivered. It is true that the possession and production of a deed by the grantee, unexplained, does give rise to a presumption that it was duly delivered. Dawson v. Hall, 2 Mich. 390; Blanchard v. Tyler, 12 Mich. 339 (86 Am. Dec. 57); Wilbur v. Grover, 140 Mich. 187 (103 N. W. 503). And the record of a deed properly executed and acknowledged, may be read in evidence without further proof of delivery. 3 Comp. Laws, § 8990 (3 Comp. Laws 1915, § 12508, 4 How. Stat. [2d Ed.] § 10852); Webb v. Holt, 113 Mich. 338 (71 N. W. 637). And this is true whether the deed was recorded before or after the grantor’s death. But the presumption of delivery arising from the possession of a deed, or from the fact that it has been recorded, is not conclusive, and merely stands in the place of evidence. And, while the weight of evidence may be with the presumption until adverse proof of equal or greater weight has been received, yet weight of evidence and burden of proof must not be confounded. The burden of proving delivery by a preponderance of evidence, like proving any other act necessary to the effectiveness of a deed, is ordinarily upon the party relying upon the deed, and was upon the defendant in this case throughout the trial. Manistee Nat. Bank v. Seymour, 64 Mich. 59 (31 N. W. 140); Brown v. King, 5 Metc. (Mass.) 181; Boyd v. Slayback, 63 Cal. 494.

But, while it is usually important that the jury should be correctly informed as to the burden of proof, yet the mistake in that respect in this case will not authorize a reversal of the judgment. It is provided by Act No. 89, Pub. Acts 1915 (3 Comp. Laws 1915, § 14565), and also by section 28 of chapter 50 of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 13763]), that no judgment or verdict shall be set aside or reversed, on the ground of misdirection of the jury, unless, in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage' of justice. It is conceded in this case that the deed through which defendant claims is in the father’s handwriting, and that it was duly signed and acknowledged by himself and his wife. This shows that he had in mind a conveyance of the land to defendant. If the deed was delivered at the time and in the manner testified to by defendant and by Mrs. Barras, it was an absolute, irrevocable delivery. In that case all of the testimony about the father’s subsequent dealings with the land and his expressions of ownership were immaterial. When, the grantor makes a manual delivery of a deed to the grantee without qualification, the law assumes that a present conveyance is intended, and will not permit proof of a concealed intent to the contrary. Dawson v. Hall, supra; Dyer v. Skadan, 128 Mich. 348 (87 N. W. 277, 92 Am. St. Rep. 461); Tabor v. Tabor, 136 Mich. 255 (99 N. W. 4); Wilbur v. Grover, supra; Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941); Luscombe v. Peterson, 173 Mich. 165 (138 N. W. 1057). The ultimate question is as to the credibility of the testimony referred to, and it was not directly disputed by any witness. There is no conflict of witnesses on that point to be adjusted. And the subsequent conduct and language of the father, as explained, hardly raises an issue as to the delivery testified to. The defendant was a young woman, living with her father and mother, and unacquainted with business. It was not at all strange that he should have continued to look after the land as he had done theretofore. The fact that he executed an option of the land in his own name is reasonably accounted for. It is true that in négotiating about the land he spoke of it as “my land,” but at the same time he spoke of lands belonging to his wife in the same way. There is hardly ground for a fair inference in opposition to the testimony of delivery given by defendant and Mrs. Barras, and a verdict in favor of plaintiff must have been set aside as against the great weight of the testimony. Such being the case, this court cannot affirmatively say that there was a miscarriage of justice.

The judgment is affirmed.

Stone, C. J., and Kuhn, Osteandee, Bied, Mooee, Steeee, and Beooke, JJ., concurred.


source: Caselaw Access Project

author: Person, J.

license: Public Domain

text:
    DE MANN v. HYDRAULIC ENGINEERING CO
    1. Master and Servant — Industrial Accident Board — Evidence —Burden of Proof — Personal Injuries.
    While claimant, in a proceeding before the Industrial Accident Board, is required to establish by a preponderance of the evidence that decedent met his death by personal injuries arising out of and in the course of his employment, and the burden is not sustained if an inference favorable to the applicant can only be arrived at by speculation, held, in reviewing an award based upon the finding that a deceased employee met his death by falling from a stairway, that the evidence justified the determination of the accident board.

    2. Same — Evidence—Cause of Death.
    Where, decedent’s body was found at the foot of a stairway when the other laborers in a building where they were at work were leaving at the end of the day, and he was in his shirt sleeves, the coat, vest, and dinner pail being afterwards found on the stage of the theater, where the men had placed their coats and dinner pails, and the electric lights had been turned on, where the stairs were not protected by a railing or partition, though no one saw , the accident, the finding of the board in claimant’s favor was warranted by the testimony.
    3. Same — Scope of Employment — Termination of Work.
    If decedent’s purpose in going from the basement to the stage was to look after his tools, he was within the line of his employment; if on the other hand he was going for his coat and other clothing, that also was within the scope of his employment, 'as the employee is allowed a reasonable time, space and opportunity, both before he begins and after he leaves off work.

      4. Same — Awakd—Excessive Amount.
    Where the testimony showed that the deceased did not work at his employment during the entire year and not to exceed ten months, at $2 a day, his family were not entitled to more than $5 a week for the term of 300 weeks.
    Certiorari to Industrial Accident Board.
    Submitted April 11, 1916.
    (Docket No. 82.)
    Decided September 26, 1916.
    Wilhelmina De Mann presented her claim against the Hydraulic Engineering Company for compensation for the death of her husband in defendant’s employ. From an order awarding compensation, respondent brings certiorari.
    Reversed as to amount awarded, and judgment entered.

      Stevens T. Mason, for appellant.

      Cornelius Hoffius, for appellee.
    This is certiorari to the Industrial Accident Board for the purpose of reviewing the proceedings of that board in allowing compensation for the death of James De Mann. De Mann at the time of his death, which occurred on the 4th of August, 1914, was employed by the Hydraulic Engineering Company as a common' laborer. He had been in the service of the company about two years. On the day of the accident which caused his death he had been at work in the basement of the Powers Theater Building, in Grand Rapids, connecting the water mains with the intake pipes. Other employees were working there at the same time. The building was undergoing extensive repairs, and the basement was badly torn up, and with material and debris scattered about. The tools which the workmen used were stored when not in use on the stage of the theater. It was one of the duties of De Mann to look after the tools and see that they were properly put away when the day’s work was ended. De Mann and the other workmen also left their coats and vests and their dinner pails on the stage while they were working, and ate their dinners there. A short flight of stairs led up from the basement floor to a platform where a stage door opened on the alley or arcade, and from this platform a flight of steps ascended to the stage floor. The steps leading from the basement were open and not protected by any railing or partition, and during the day, or shortly before, a large wooden beam had been temporarily placed at the head of the first flight of stairs and about four feet above the platform floor, so that it was necessary for one going from the basement to the stage to stoop underneath the beam. At about five minutes past 5 o’clock on the afternoon of August 4th the body of De Mann was found lying on the cement floor at the foot of the steps leading from the basement. The electric lights had been turned on; and there was testimony tending to show that five minutes before, when some of the workmen were going up the stairs to get their street clothing, the body was not there. No one saw the accident. De Mann was in his shirt sleeves; and his coat, vest, and dinner pail were afterwards found on the stage.
    A committee of arbitration allowed compensation at the rate of $5.77 per week for a period of 300 weeks; and the employer brings the case to this court, urging:

      First. That the claimant has not met the burden of proving that De Mann died as a result of a personal injury arising out -of and in the course of his employ- • ment; and,

      Second. That if he did die as a result of a personal injury arising out of and in the course of his employment, the amount of compensation allowed was excessive.

      Upon the question of recovery of compensation for injuries arising out of and in the course of the employment, see note on the subject of workmen’s compensation acts, in L. R. A. 1916A, at page 232.

   Person, J.

(after stating the facts). It is true that the burden is upon the claimant to show that the deceased met his death through a personal injury arising out of and in the course of his employment. And it is equally true that this burden is not sustained if an inference favorable to the applicant can be arrived at only by a guess. But, as was said by this court in Parker v. Union Station Ass’n, 155 Mich. 72 (118 N. W. 733):

“While it is true that proof must establish a probability, and where the testimony can be said to be as consistent with a theory that relieves a defendant from liability for the accident, as it is with one involving his liability, there can be no recovery, we have often held that circumstances shown may justify inferences which bring liability within the realm of probability, rather than leaving it a matter of conjecture merely.”

De Mann’s body was found at the foot of the stairway at the time the workmen were leaving the basement to get their clothing and dinner pails from the stage floor. To reach the stage floor those in the basement ordinarily ascended the stairway. Under these circumstances the most reasonable inference is that he fell from the stairway while on his way to the stage. He was in his shirt sleeves; and his coat, vest, and dinner pail were yet on the stage. It was also his duty to look after the tools, and those were kept on the stage. The coroner, a physician, testified:

“There were a few little minor abrasions, slight linear wounds on the top of the head, and a contusion on the back of the head on the left side over the occiput. After removing the skull I found a contusion over the temple. The wound on the top of the head was just a slight abrasion, inch or inch and a half long. * * * I should judge that the one on the top would be sufficient to stun him. * * * , He died from the result of the fracture.”

It was certainly a reasonable inference that the fracture was caused by a fall from the stairway onto the cement floor, and that the fall came from hitting his head against the crossbeam. No other cause for his death is even suggested, and in the report of the accident by the employer to the Industrial Accident Board it was said: “It is supposed that the injured fell from stairway.”

It is undoubtedly true that the deceased was on his way from the basement to the stage for the purpose of getting his clothing, or to look after the tools, or both. There is no other apparent reason for his having been on the stairway. If his purpose was to look after the tools, that was clearly within the line of his employment. If he was after his clothing, that, also, was within the line of his employment. As was said in Hills v. Blair, 182 Mich. 20 (148 N. W. 243):

“It is held that the employment is not limited.by the exact time when the workman reaches the scene of his labor and begins it, nor when he ceases, but includes a reasonable time, space, and opportunity before and after, while he is at or near his place of employment.”

We also agree with the supreme court of New Jersey when it said:

“The preparation reasonably necessary for beginning work after the employer’s premises are reached, and for leaving when the work is over, is a part of the employment. A workman is none the less in the course of employment because he is engaged in changing his street clothes for his working clothes, or in changing his working clothes for his street clothes. * * * The employment was not indeed the proximate cause of the accident, but it was a cause in the sense that but for the employment the accident would not have happened. The employment was one of the necessary antecedents to the accident.” Terlecki v. Strauss, 85 N. J. Law, 454 (89 Atl. 1023), 86 N. J. Law, 708 (92 Atl. 1087).

And see Sundine’s Case, 218 Mass. 1 (105 N.. E. 433, L. R. A. 1916A, 318).

We think that the Industrial Accident Board was warranted in finding that the injury arose out of and in the course of his employment.

But the amount of compensation allowed by the Industrial Accident Board seems greater than the evidence justifies. The average annual earnings of the deceased must have been fixed by the board at $600 a year, in order to produce a compensation of $5.77 per week. The evidence in the case does not seem to show such an annual earning. The only testimony was that of a son of the deceased, who said:

“My father earned $2 a day at the Hydraulic Engineering Company; had worked for them for two years. He was steadily employed when they had work. I should judge he worked about nine months out of the year. When he wasn’t working for the Hydraulic Company during the real hard months or weeks of the winter, he did not work at any other places. I don’t know how much he laid off last winter. It might have been two months. He worked six days in the week.”

From this it appears that the Hydraulic Engineering Company did not afford employment during the entire year, but only for ten months out of the year, at the best. Estimated according to the provisions of the statute as construed in Andrejwski v. Wolverine Coal Co., 182 Mich. 298 (148 N. W. 684), the ánnual earnings of the deceased were not to exceed $520 a year. On this basis the allowance should have been at the rate of $5 per week for the term of 300 weeks.

The order of the Industrial Accident Board will therefore be reversed and set aside, and an order entered by the board in accordance with this opinion, but without costs.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred. ,


text:
    KENNEDY v. STEMMING.
    1. Intoxicating Liquors — Licenses—Transfer.
    A license to sell intoxicating liquors is personal and cannot be transferred to another.
    2. Same — Illegal Contract — Void Contract.
    A contract for the sale of a saloon business, which included as part of the transaction the transfer of a liquor license and holding part of the purchase price to indemnify the purchaser against criminal proceedings for illegal sales, and, if not so used, to be credited by the holder on the debt of the seller, is illegal and void, and the money so held was not subject to garnishment proceedings at the instance of a judgment creditor of the buyer after he had been dispossessed of the business and had made demand for the return of the money.
    S. Same — Action—Void Contract — Stakeholder.
    The illegal contract having been executed in most respects, the position of the garnishee defendant is not analagous to that of a stakeholder, as it received the money not simply to indemnify the purchaser for breaking the law, but to apply, so far as not used for that purpose, upon its own claim against the seller; nor is this a case where the money can be recovered without showing the illegality of the contract; therefore, the law leaves the parties where they have placed themselves.
    4. Appeal and Error — Questions Raised — Review.
    A question tacitly agreed upon by the parties, and not raised in the argument, will not be considered by this court.
    Error to Kalamazoo; Weimer, J.
    Submitted April 12, 1916.
    (Docket No. 107.)
    Decided September 26, 1916.
    Garnishment proceedings by Michael N. Kennedy, trustee in bankruptcy for the Hickory Grove Distilling Company, a corporation, against William A. Stimming, and the Tivoli Brewing Company, garnishee defendant. Judgment for garnishee defendant. Plaintiff brings error.
    Affirmed.

      Jackson & Fitzgerald, for appellant.

      Clark, Lockwood, Bryant & Klein, for appellee.
    In this action plaintiff seeks to recover judgment against the Tivoli Brewing Company, as garnishee, in an action brought against William A. Stimming, as principal defendant. The case was tried by the court without a jury, and the following facts were found by the circuit judge:
    “The plaintiff, Michael N. Kennedy, as trustee in bankruptcy of the Hickory Grove Distilling Company, recovered a judgment in this court against the principal defendant, William A. Stimming, for $3,014.75, and began this action against the Tivoli Brewing Company, as garnishee defendant, to recover $1,500 alleged to be money in its hands belonging to said Stimming and to constitute a certain indebtedness from said brewing company to said Stimming. * * *
    “On the 28th day of August, 1914, one Fred C. Ehrmann was a duly licensed retail liquor dealer and the owner of a retail saloon in the city of Kalamazoo. He was indebted to the garnishee defendant in the sum of $2,474 for liquors theretofore furnished him, to secure which he had previously executed and delivered to said garnishee defendant a chattel mortgage covering his stock and fixtures. On that day Ehrmann, Stimming, and the Tivoli Brewing Company entered into the following agreement (Exhibit A), attached to oral examination:
    “ ‘Whereas, Fred C. Ehrmann is engaged in the conduct of a saloon business at 301 North Burdick street, Kalamazoo, Mich., and is desirous of selling said business to William A. Stimming, of Kalamazoo, Mich.; and whereas, said Fred C. Ehrmann is indebted to the Tivoli Brewing Company of Detroit, Mich., in the sum of $2,474.70, which indebtedness is secured by chattel mortgage upon the stock and saloon business; and whereas, the said Fred C. Ehrmann is indebted to other creditors in connection with said business in the sum of not more than $1,000, which sum constitutes his total indebtedness of every shape, kind, and nature:
    “‘Now, therefore, Fred C. Ehrmann (hereinafter referred to as first party), William A. Stimming (hereinafter referred to as second party), and Tivoli Brewing Co., a Michigan corporation (hereinafter referred to as third party), agreed between themselves as follows:
    “ ‘Said first party agrees to sell and said second party agrees to buy all of-the stock of wines, liquors, cigars, good will, leasehold rights, license, and everything else pertaining to the business of said first party at 301 North Burdick street, Kalamazoo, Mich., for the sum of twenty-eight hundred dollars ($2,800.00), which sum said second party agrees to pay and first party accept in the following manner:
    “ ‘(1) Fifteen hundred dollars in cash at the date hereof, which sum shall be paid over to third party to be held until April 30, 1915, for the purpose of indemnifying said second party to the extent of that amount against any loss in the conduct of said business by reason of a legal objection raised by the authorities of Kalamazoo county to the conduct of said business by second party under a license now issued to first party, which-license is in effect to April 30, 1915, and if on April 30, 1915, no such loss has occurred, then said party is to apply said $1,500.00 on account of the indebtedness of said first party to-said third party secured by chattel mortgage aforesaid. Second party is to give third party immediate written notice .at the time any objection is raised to the conduct of said business by second party.
    “‘(2) One promissory note for $700, payable in 90 days from date hereof, which note shall be payable to Tivoli Brewing Company, and, when fully paid by second party, shall be applied on account of indebtedness of first party to second party secured by chattel mortgage aforesaid.
    “‘(3) The balance of $600 is to be retained by second party without interest until such time as first party shall deliver to second party satisfaction in the form of receipts in full for all debts now existing against first party, whether said debts be business debts or individual debts.
    “‘First party agrees to pay within eight months all of his individual and business debts and agrees to pay to second party any losses he may suffer by reason of having to pay any of said debts under tbe Bulk Sales Law of tbe State of Michigan.
    “ ‘Third party agrees to discharge its chattel mortgage against said business when it has received the sum of $2,200 hereunder.
    “ ‘First party agrees to assign forthwith his lease of the premises at said 301 North Burdick street, and first party also agrees to secure from the owner of said premises his written consent to said assignment.
    “ ‘In witness whereof said parties have hereunto set their hands and seals this 28th day of August, 1914.
    “ ‘Feed C. Ehrmann. [Seal.]
    ‘“Wm. A. Stimming. [Seal.]
    “ ‘Tivoli Brewing Co. [Seal.]
    ‘“By E. M. Bayne,
    “ ‘Secretary and Treasurer.
    ‘“In presence of:
    ‘“Harvey S. Durand.
    ‘“Alfred T. Gibson.’
    “At the’ same time the payment of the sum of $1,500 mentioned in Exhibit A was made to the Tivoli Brewing Company by Mr. Stimming, the brewing company credited it to the account of Ehrmann, placed it with its other funds, and deposited it with its other deposits in the regular course of business in the bank with which it was doing business. This money was not at any time kept ás a separate fund.
    “Mr. Stimming assumed charge and control of Ehrmann’s liquor business and Conducted it as his own, retaining Ehrmann as a clerk, for which services Ehrmann was paid $18 per week until on or about the 18th of March following, at which time Ehrmann became involved in bankruptcy proceedings, and possession of the liquor business was either surrendered to him by Stimming or forcibly taken by Ehrmann or his attorney. At any rate, Stimming lost control, and Ehrmann resumed control of said business, either through difficulties or by an arrangement between them, and not through any legal objections raised or interference by the authorities of Kalamazoo county.
    “Under date of March 19th, and on or about that day, Stimming forwarded the following communication to the garnishee defendant (Exhibit B), attached to oral examination:

      “ ‘Kalamazoo, March 19, 1915.
    “ ‘Tivoli Brewing Company,
    “ ‘Detroit, ^ Michigan.
    “ ‘Gentlemen:

      “ ‘You are hereby notified that objections have been raised to and I have been dispossessed of all my rights to the saloon and property therein at three hundred and one (301) North Burdick street, Kalamazoo, that I went into and took possession of under a bill of sale from Fred C. Ehrmann, dated August 28, 1914, and a tripartite agreement between yourself — the Tivoli Brewing Co. —said Fred C. Ehrmann, and myself, I was turned out and dispossessed only yesterday afternoon, and I at once hereby give you notice of the same as provided by said agreement I should, and I now demand the return to me by you of the sum of one thousand five hundred dollars ($1,500.00) I paid you as per agreement and that you pay it to me forthwith. Please attend to it at once and oblige
    “ ‘Yours truly,
    “‘Wm. A. Summing.’
    “Stimming had nothing to do with the management or control of the Ehrmann place of business thereafter, but it appears that no legal objection was ever at any time raised by the authorities of Kalamazoo county to the carrying on of said business by Stimming under the license issued to Ehrmann during any part of the license year, and that Stimming never sustained any loss by reason thereof for which there was any occasion for the Tivoli Brewing Company to indemnify him as provided in said contract.”
    The circuit judge also signed a finding of facts presented by plaintiff’s counsel, but it does not differ in effect from the foregoing.
    Upon the facts found the circuit judge held, as a matter of law, that the contract was illegal and void; that each party to it expected a personal benefit from its illegal provisions, and, it having been performed in whole or in part, Stimming himself could not have recovered from the brewing company the money paid over to it; And thereupon a judgment was entered in favor of the garnishee defendant; both parties to the action agreeing that plaintiff could not recover if the principal defendant could not have maintained an action for the money. From this judgment the plaintiff appeals to this court.
   Person, J.

(after stating the facts). The contract was illegal and void. A license to sell intoxicating liquors is personal and cannot be transferred to another. Koppitz-Melchers Brewing Co. v. Behm, 130 Mich. 649 (90 N. W. 676); Walhier v. Weber, 142 Mich. 322 (105 N. W. 772); Dierkes v. Wideman, 143 Mich. 181 (106 N. W. 735). It is shown on the face of the contract that all of the parties had a criminal prosecution in mind, and were aiming to protect Stimming if he should be arrested for making sales without a proper license.

Counsel for plaintiff are mistaken in their claim that the garnishee defendant occupied a position analogous to that of a stakeholder. It received the $1,500 paid by Stimming, not simply to indemnify him for breaking the law, but to apply, so far as not used for that purpose, upon its own claim against Ehrmann. It was a payment by Stimming of so much of the purchase price of the property sold to him by Ehrmann, and was, in effect, a payment to Ehrmann. It went into the garnishee’s hands, not as the money of Stimming, but as the money of Ehrmann.

The postponement of the application of the money upon Ehrmann’s indebtedness was a matter between Ehrmann and the garnishee, in which Stimming had no interest. And the purpose of the postponement was to ascertain how much might remain to be applied after Stimming should have been indemnified.

Whatever may be the rule as to the right of a party to reclaim his property while the illegal contract remains executory, that rule can have no application to this case. This contract had been executed in most, if not all, respects, before any claim was made for a return of the money in the hands of the garnishee defendant. A part of the purchase price of the property had been paid in cash and notes given for the balance, the property had been delivered to Stimming, and the control of the business had been in his hands for several months. Nor is this a case where the money can be recovered without showing the illegality of the contract. Under these circumstances the law leaves the parties where they have placed themselves. In addition to the cases above cited, see Bryant v. Wilcox, 137 Mich. 669 (100 N. W. 913); Benson v. Bawden, 149 Mich. 584 (113 N. W. 20, 13 L. R. A. [N. S.] 721); Cashin v. Pliter, 168 Mich. 386 (134 N. W. 482, Am. & Eng. Ann. Cas. 1913C, 697); McNair v. Parr, 177 Mich. 327 (143 N. W. 42).

Inasmuch as it' has been tacitly or expressly conceded by the parties that plaintiff cannot maintain this action against the brewing company if Stimming could not have maintained one for the money which he paid over to it, and as there has been no argument on the point, it will not be considered in this opinion.

The refusal of the court to find the facts in accordance with plaintiff's seventh request was not error; and if the facts had been found as requested the disposition of the case could not have been different.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


text:
    BOARD OF WATER COMMISSIONERS OF THE CITY OF DETROIT v. VILLAGE OF HIGHLAND PARK.
    1. Municipal Corporations — Water Supply — Contracts—Cities —Waters and Watercourses — Statutes.
    Where It was stipulated in a written contract between the city of Detroit and the village of Highland Park that the city should supply water to the village and the mains were laid and paid for by the former, in the absence of any apparent purpose to be governed by the local act permitting the municipality to construct and own a water system outside its own limits, Act No. 284, Local Acts 1883, § 23 (not referred to in the contract), the said statute did not apply, especially where the parties proceeded to act during a long period of time on the opposite ’ construction, the village selling the water to its residents and the city being paid by the village; the mains belonged to the village of Highland Park, in which they were located, upon the installation of a water system of its own, and the court would not restrain the village from interfering with them.
    2. Same — Equity—Decree.
    Where the party defendant in its pleading offered to submit to any equitable arrangement for the benefit of those persons that were supplied through the village mains, beyond the boundaries of either municipality, and their rights could be preserved by a clause in the decree granting to the city the right to lay mains in the village streets, held, that the complainant city was properly authorized to lay a supply main through the village streets to provide for the service of the water consumers beyond 'the village limits.
    Appeal from Wayne; Hally and Mandell, JJ.
    Submitted April 10, 1916.
    (Docket No. 40.)
    Decided September 26, 1916.
    Bill by the Board of Water Commissioners of the city of Detroit against the village of Highland Park for an injunction restraining defendant from interfering with the water supply system of complainant. From a decree for defendant, complainant appeals.
    Affirmed.

      William E. Tarsney and Walter Barlow (Harry J. Dingeman and Richard I. Lawson, of counsel), for complainant.

      Edwin S. Bartlett (Alfred Lucking, of counsel), for defendant.
   Person, J.

This is a shit by the board of water commissioners of the city of Detroit to enjoin the village of Highland Park from interfering with or molesting the water supply system in that village. The fundamental question is one of ownership. The system for distributing water in the village was originally installed, and has been from time to time enlarged, by complainant, but the cost of the installation, and of all enlargements, including labor and expense of every kind, has been paid by the village. Following the construction of this water system complainant has for many years supplied the village with water. During this time both the city and the village have grown rapidly, and in 1913 it became evident to the village authorities that the supply of water furnished by complainant was inadequate to the wants of the village. When the village asked for a larger supply and greater pressure for fire protection, it was told by complainant that neither was possible at present, and that when better facilities weie acquired the board felt bound to take care of the city first. Thereupon the village proceeded, at great expense, to construct for itself a supply system by which water could be brought within its limits from Lake St. Clair. Upon being informed that this new supply system was nearing completion, and that it would soon be connected with the distributing mains in the village, and the water from the city shut off, complainant filed this bill, claiming ownership of the distributing mains and pipes, and asking that the village be restrained from interfering with them.

As has been said, complainant bases its right to maintain this suit upon the claim that it owns the water mains and pipes, and the distributing system generally in the village, and that therefore the village may not legally connect its supply system with the mains and pipes and use them as its own property. The village authorities, on the contrary, deny the ownership asserted by complainant, and insist that the entire water system belongs to the village. As bearing upon this issue, the contract between the village and complainant, under the provisions of which the system was installed, has been read in evidence; the charter rights and powers of the respective parties have been called to the attention of the court; and the method of handling the system and supplying water to the village, since the system was first installed, has been shown.

As the foundation of its claim of ownership, complainant refers to section 23 of the act creating the board of water commissioners of the city of Detroit, which at the time the system was put in read as follows (section 23, Act No. 284, Local Acts 1883):

“The commissioners shall have power to extend their distributing pipes, aqueduct, and mains, and erect hydrants without the limits of said city, and to regulate, protect, and control such portions of their works and the water supply therefrom in the same manner that they may regulate, protect, and control their works and the water supply within the city: Provided, that before any water shall be supplied to any person or persons residing outside the limits of the city the entire cost of the distributing pipes necessary to supply such person or persons shall be paid to the said board, and all such, distributing pipes through which any water shall be supplied by said water board shall be the property of said board and form part of its system of distributing pipes: And provided further, that the rates at which water shall be sold to persons residing outside the city limits shall be discretionary with said board of water commissioners, but such rates shall not exceed double the rates charged within the city limits.”

It is urged in behalf of complainant that this section constituted its only authority for laying water mains and pipes outside the city, and that therefore its installation of the water system in the village must be presumed to have been under its provisions, and that the/village must be held to have known, as a necessary consequence, that the distributing pipes became the property of the board and part of its distributing system. This section of the act, say counsel for complainant, should be read into the contract for installing the water system and as a part of it. And the importance of this contention becomes apparent when it is observed that neither the contract itself nor any record’ of either party relating to it, so far as shown to the court, makes any provision for ownership of the pipes by complainant. The contract, or so much of it as need be quoted, is as follows:

“Memorandum of agreement made this twelfth day of December, 1896, between the board of water commissioners of the city of Detroit, party of the first part, and the village of Highland Park, by James F. Hickey, its president, and E. Ketcham, its clerk, party of the second part, witnesseth as follows:
“(1) The said party of the first part hereby acknowledges the receipt of the sum of twenty thousand three hundred and seventy-seven dollars ($20,377), and in consideration thereof it hereby agrees to furnish to said village a water supply system in the village of Highland Park to be operated from the water system of said board of water commissioners; said water supply system to consist as follows: [Here follow specifications.]
“ (2) The said village of Highland' Park by and through its said president and clerk, who are thereto authorized by a resolution of the village council, a copy whereof is hereto attached, hereby recite that the aforesaid resolution is adopted by said village council under authority of a vote of the electors of said village at a special election held therein for that purpose on the twenty-fifth day of May, 1896, and hereby agree that the plans and specifications hereinabove recited are the ones referred to in the resolution, a copy of which is hereto annexed, and that when the same are executed and completed in a good and workmanlike manner the same will be accepted as performance of this contract. It is understood that the above-mentioned prices do not include the cost of supplying any water through said pipe.
“In witness whereof the board of water commissioners of the city of Detroit has caused these presents to be signed by its secretary and to be attested by the seal of said corporation, and the said village of Highland Park has caused the same to be signed by its president and clerk, and to be attested by its village seal by the clerk thereof.”

Taking this contract as it reads and without reference to the statute, together with the conceded facts that the water system to be thereunder constructed was to be located in the village and for the benefit of the village, and that the entire expense of its installation was to be paid by the village, the only possible construction that can be given it is that the system and the pipes and parts going to make it up were to belong to the village. And it must be so held unless the natural interpretation of the contract is to be affected by the statute referred to.

Turning, then, to a consideration of the statute, we think counsel for complainant are mistaken when they assume that the board was necessarily acting under the provisions of section 23 when it contracted to install and did install the water system .in the village. That section of the act creating the water board does not provide for such a contract as this with another municipality. It contemplates simply an extension of the distribution pipes of the city and the furnishing of water to individuals in the ordinary way. Rehill v. City of East Newark and City of Jersey City, 73 N. J. Law, 220, 223 (63 Atl. 81). By the terms of the statute the actual cost of distributing pipes was to be paid before the board could supply any person or persons residing outside the city with water. The contract makes no reference to actual cost, and does not contemplate furnishing water to any individual or individuals. It is an agreement to furnish to another municipality a system for distributing water; and it is an agreement to furnish the system for a certain fixed price, leaving to the board the chance of profit or loss as the case may be. With the statute the extension of the city pipes and the payment of the cost of such extension are but incidental to the main object, which is the furnishing of water. With the contract the main object is to furnish a system for distributing water, without any definite agreement to supply water at all. In fact, the water board now notifies the village, in substance, that it is under no obligation to furnish it sufficient water, and will not do so unless it has a surplus above the needs of the city. There is nothing, therefore, in the statute that can be read into the contract, or used to modify or change its terms. There is nothing in it applicable to such a contract. All reference to the statute in the contract was properly omitted, whether the omission was intentional or accidental. Nor has the subsequent conduct of the parties been in keeping with any purpose on either side to act under the statute. The board has supplied water at the village limits to the village itself, and the village has distributed the water to individual users, fixing its own rates and collecting the compensation. And as to the village it is doubtful whether it had any authority to issue bonds, or tax its inhabitants, for the purpose of constructing a water supply system to be owned by another municipality, or by the agency of another municipality. We find, therefore, no foundation for the claim that the board of water commissioners of the city of Detroit owns the water supply system in the village of Highland Park, or any portion of it.

In disposing of this branch of the case upon the grounds stated we are not to be understood as rejecting the theory of the circuit judges in their decision. Our construction of the contract, and of the statute upon which complainant relies, removes the ground upon which that theory was based and makes its consideration unnecessary. Nor is it necessary that we should determine whether or not the contract was ultra vires as to complainant. It was fully executed long ago, and it has not been claimed that complainant, or the city of Detroit, suffered any loss or injury through its performance.

But, although complainant has no proprietary rights in the water system of the village, the situation is complicated by the fact that complainant has for a considerable period of time been furnishing residents and city property north of the village with city water through the village mains. This method of supplying water beyond the village came from an arrangement between the village and complainant. The course pursued has been to charge the village for the water passing into its pipes, and to credit it with the water passing out of them into the territory on the other side. Having thus permitted the people beyond the village to rely upon such water supply, it cannot be summarily cut off. Nor does the village desire to cut it off. It simply aims to use its own distributing pipes in furnishing its citizens from its own water supply. This is made necessary by complainant’s position, justillable, probably, that it will not attempt to provide the village with sufficient water so long as the water is required by the city itself. It appears from the record that before suit was begun the village sought to make some suitable arrangement with eomplaihant to take care of the people supplied through its pipes, and that complainant did not respond to the suggestion. The village again in its pleadings reiterates its offer to submit to any equitable arrangement for the benefit of the territory beyond its boundaries. Under these circumstances the circuit judges incorporated in their decree provisions requiring, in substance, that upon request of complainant the village shall grant a right of way through its streets along which complainant may lay a supply main for the purpose of furnishing water to consumers and property north of the village, and that the village shall supply water to such consumers and to Palmer Park until complainant is in readiness to furnish such supply. To these provisions complainant objects, not upon the ground that they are inequitable or inexpedient, but because, as it insists, the court has no power to insert them in its decree, and is attempting to make a contract for the parties.

The answer to these objections is that the provisions in the decree do not constitute a contract. They are required for the protection of paramount rights, and are also 'for complainant’s benefit. The construction of the supply main is optional with complainant, and is in the nature of a burden upon the village, which has practically consented thereto in its answer, and does not appeal. Such conditions are incident to the nature of the controversy submitted by the parties, and are within the powers of a court of equity.

The decree is affirmed, with costs to defendant.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


text:
    DICKEY v. JOY.
    Trusts — Reimbursement of Trustee — Expenses—Advancement.
    The intestate left a small estate and $7,000 in life insurance which was payable to his widow who became and acted as administratrix of the estate. Pursuant to the oral request of decedent, his widow put aside $1,000 for a home for the son-in-law, which sum she was obliged to make up out of the insurance, in order to carry out the said desire expressed by the intestate, taking title in her name under her agreement in writing to manage the property for the benefit of the grandchildren, to whom she was to deliver one-fourth of the property each, on their attaining their majorities; $200 was advanced by the son-in-law. Held, that the entire amount so invested was impressed with the trust and she was not entitled to be reimbursed for the amount of her advancement, but only for her proper expenses of administration, though the estate never produced any money and said investment ultimately was derived from her interest in the life insurance.
    Appeal from Berrien; Bridgman, J.
    Submitted April 19, 1916.
    (Docket No. 32.)
    Decided September 26, 1916.
    Bill by Jennie W. Dickey and others against Jennie M. Joy to impress a trust. From a decree for complainants, defendant appeals.
    Affirmed.

      Coolidge & White, for complainants.

      James H. Campbell, for defendant.
    The Rev. Henry M. Joy, grandfather of complainants, died intestate on September '30, 1886. He left surviving him his widow, Jennie M. Joy, their son, Harry M. Joy, born August 16, 1869, and a daughter, Etta L., by a former marriage. The latter was then the wife of Edwin E. Woodford, and lived at Niles, Mich. Mr. Joy’s property consisted of personal effects, household furniture, a library, and some land near Traverse City. This land, as it turned out, was worthless, and nothing was ever realized from it. Mrs. Joy was appointed and acted as administratrix of his estate. Besides the foregoing property, he left life insurance amounting to nearly $7,000, payable to his widow, as beneficiary. On May 11,1890, the daughter, Etta L. Woodford, died, leaving four children, all girls, the oldest being then about eleven and the youngest about five years of age. These children, all now married, are the complainants in this case. Just before his death Mr. Joy spoke to his wife, the defendant, about some provision to be made for his daughter, Mrs. Woodford. Mrs. Joy testifies in regard to his request as follows: .
    “And so my husband asked me if I was willing — he knew what money there was, that the life insurance belonged to me — if I was willing to put aside $1,000 to do anything that was necessary for Etta in case she needed it. That was all that was said, not another word. It was his last breath, the request. * * * He made this request that I would not put it into the hands of Mr. Woodford or of his wife on any account.”
    Down to the time of Mrs. Woodford’s death Mrs. Joy had made no attempt to comply with this request of her husband. But she found, when attending Mrs. Woodford’s funeral at Niles, that the children were not well located to attend church and school, and offered to put $1,000 into a suitable home for them. A satisfactory house and lot was found, and Mr. Wood-ford agreed to furnish the additional $200 required to make up the purchase price. The lot was conveyed by the owner to Mr. Woodford on or about June 13, 1890, and by Woodford to the defendant, Mrs. Joy, by a warranty deed bearing date June 21, 1890. With the delivery of this deed to Mrs. Joy, and as part of the same transaction, an agreement executed by her, and by her son, Henry, and by Woodford, declaring the purposes for which she took and held the lot, was delivered to Woodford as the natural guardian of the children. The description of the lot so purchased, and the facts connected with the purchase, appear in the agreement, which reads as follows:
    “Whereas, Henry M. Joy departed this life intestate and left him surviving Jennie M. Joy, his widow, Etta L. Woodford, his daughter by a former wife, and Harry M. Joy, his son by the said Jennie M. Joy, his only heirs at law; and
    “Whereas, letters of administration have been duly issued upon said estate to the said Jennie M. Joy; and
    “Whereas, the total assets belonging to said estate were of less value than the sum of fifteen hundred dollars and the liabilities against said estate were about five hundred dollars; and
    “Whereas, it was the expressed wish of the said Henry M. Joy before his decease that the said Etta L. Woodford should have one thousand dollars from his said estate to be paid to her at such time and manner then designated by him; and
    “Whereas, the said Etta L. Woodford since the death of her father, and on or about the eleventh (11th) day of May, 1890, departed this life intestate, leaving her surviving her husband, Edwin E. Woodford, and the following named children fruit of her marriage with the said Woodford, the same being her only heirs at law, viz.: Jennie Maria Woodford, born February 10, 1879; Mabel Dennison Woodford, born May 26, 1881; Anna Louise Woodford, born April 21, 1883; Hermenia Joy Woodford, born November 30, 1884; and
    “Whereas, the said Edwin E. Woodford is desirous that the money that was expected to be given to his wife as aforesaid should be invested for the sole benefit of his said children above named, and in the manner herein provided; and
    “Whereas, the said Harry M. Joy is also willing that the said investment shall be made for the purpose and in the manner herein expressed; and

      “Whereas, there is in the city of Niles, Mich., a house and lot known as lot one hundred and thirty-four (134) in H. B. Hoffman’s addition to the village (now city) of Niles, which the said Edwin E. Wood-ford is desirous that the said Jennie M. Joy should invest said sum 'of one thousand dollars in the purchase thereof for the uses and purposes herein expressed, the purchase price thereof being the sum of twelve hundred dollars, and the said Woodford, in order that such investment may be made, is willing to give and pay towards said- purchase the sum of two hundred dollars, with the distinct understanding and agreement that no one shall be liable to repay said sum to him or in any manner account therefor:
    “Now, therefore, it is hereby expressly agreed by and between the said Jennie M. Joy, of the first part, Harry M. Joy of the second part, and Edwin E. Wood-ford for himself and as the natural guardian of his said children — they not having other guardian — as follows :

      “First. The said Jennie M. Joy agrees that she will purchase the premises above described and pay therefor the sum of one thousand dollars and take the title thereto in her own name; that she will manage said property in all respects as she shall deem for the best interest of the children above named, being the children of the said Etta E. Woodford, deceased; that if, in her judgment, it is for their best interests, she will not sell the same, but in case she is of the opinion that it would be best for their interest to sell the same, then she will sell the same and invest and reinvest the proceeds thereof as she shall consider for their best interest; and that she will from time to time as in her judgment is necessary or advisable use of the income from said investment, if any there be, in such sum or sums as she shall consider necessary or advisable to be used for the benefit of said children or any or either of them, and if, in her opinion, it shall be necessary for the support or education of said children or any or either of them for her to use all or any part of the principal for that purpose, she is to be at liberty to use the same therefor; and that she will from time to time as they respectively arrive at the age of .twenty-one years, if in her opinion it is for the best interest of such child as well as for the best interest of all the others of said children, account for and deliver to such child so arriving at such age the undivided one-fourth part of the property and money belonging to such estate so held by her and then in her hands, less her reasonable costs, expenses, and charges, and less any sum that may have been advanced to or for the benefit of such child more than her one-fourth part thereof, and that in case she does not sooner account for and pay over the same she will upon the arrival at the age of twenty-one years of the youngest of said children account for and pay over to said children whatever sum shall then be in her hands, less her reasonable costs, expenses and charges in the proportion and manner last above stated. But it is understood and agreed that in case any of said children shall die intestate and without issue then the share which would go to such child if living shall be paid to the survivors.

      “Second. The said Harry M. Joy consents to the foregoing investment and agrees that the sum so invested shall be considered as accounted for and properly disposed of by the said Jennie M. Joy as administratrix of the estate of his father, Henry M. Joy, deceased, and that he will not call upon her to account for the same to said estate of his father in any other manner.

      “Third. The said Edwin E. Woodford requests such investment to be made as aforesaid, and for himself and as the natural guardian of his children aforesaid he agrees that he will not, and that his said children shall not, demand or ask from the estate of the said Henry M. Joy, deceased, nor from the said Jennie M. Joy, as administratrix or otherwise, any sum or sums whatever, and that the sum so invested as aforesaid shall be considered as a full and complete satisfaction of all claims that his late wife, Etta L. Woodford, may have had upon said estate of Henry M. Joy, deceased, and that he and his children aforesaid and the estate of the said Woodford, deceased, may have had or have thereto or thereon.

      “Fourth. It is also agreed that the said Jennie M. Joy shall be required only to act honestly in her management of said property, and shall not be responsible for any errors of judgment, and shall only be liable to account for such sums as actually come to her hands, and then only to act in good faith in relation thereto, and that in case of the death of the said Jennie M. Joy, or her ceasing to act under this agreement, the circuit court for the county of Kent, in chancery, shall have power to appoint a suitable person to carry out this agreement on her part.
    “It is also agreed and fully understood that in case the estate of Henry M. Joy, deceased, or the administratrix thereof is called upon at any time to pay any sum whatever to the estate of the said Etta L. Wood-ford, deceased, or to any person claiming from, through, or under her, then that the amount which the said estate of Henry M. Joy, deceased, or the administratrix is found liable to pay shall be deducted from the sum hereby declared to be in the hands of the said Jennie M. Joy for the benefit of said children aforesaid.
    “It is also agreed and fully understood that the second and third parties to this agreement have no interest in said fund, and that the aforesaid children do not take or have any interest whatever in said real estate, and that the same may be sold and the proceeds thereof invested and used as above expressed.
    “In witness whereof the parties have hereunto set their hands and seals this-day of June, 1890.
    “Jennie M. Joy
    “Harry M. Joy
    :Edwin E. Woodford [L. S.]
    This agreement had been prepared under Mrs. Joy’s direction, and by her own attorney, Mr. Fitzgerald, a prominent lawyer of Grand Rapids.. The $1,000 which she paid in the purchase of the lot was borrowed by her of Mr. Fitzgerald, and repaid to him out of her insurance money, at the expiration of a year, with interest at 7 per cent. Immediately after the purchase Woodford, with the children, moved into the house, and has ever since continued to reside there. He has never paid rent to any one, nor been asked to pay rent, so far as the record shows. But he has from time to time made additions and improvements to the house, to the amount of $1,800, and has paid the taxes. The property is said to be now worth $3,000, the amount of the original purchase price and cost of improvements. The children continued to live there with him until they were married and went elsewhere. In the fall of the year 1914, the defendant Mrs. Joy, being in need of money, wrote to Woodford, and proposed to sell him the place for $2,000. In the letter she stated that she intended to keep $1,000 of the purchase price as reimbursement for the money she had put into the place, and to divide the other $1,000 among the children. Some correspondence followed between the two, in which Woodford conceded her right to receive back the $1,000, but he was unable to raise the money, and the transfer was not made. Upon being informed of defendant’s efforts to sell the property the children filed this bill to enforce the trust, praying that defendant be required to convey the land to them, and offering to reimburse her for any expenses incurred, or services rendered in the performance of the trust.. Defendant answered denying the existence of any trust relation, and claiming to own the lot in her own right. And she also claimed for her answer the benefit of a cross-bill, and asked that complainants be decreed not to have any interest in the property or its proceeds, or, in the alternative, if a trust should be found, that she be repaid her $1,000, and interest thereon, out of the proceeds of the property. Upon hearing the proofs in open court the circuit judge was of the opinion that the agreement constituted a trust in favor of complainants whereby they became the equitable owners of the property; and he thereupon made a decree that the defendant execute to them a quitclaim deed thereof, and that they pay to her the expenses of the trust, fixed by the court at $82. The defendant appeals from this decree.
   Person, J.

(after stating the facts). In Ms brief counsel for defendant does not deny the trust, but says:

“The controlling question in the case is whether the defendant is entitled to be reimbursed for the $1,000 advanced by her for the purchase of the property which is the subject-matter of the trust, and without which advancement by the defendant it could not have been purchased.”

And he urges as grounds for the reimbursement that the $1,000 paid for the trust property was to come from Mr. Joy’s estate, and not from her own personal funds; that she simply advanced the amount temporarily, expecting that the property of the estate would be sufficient to reimburse her; but that the reimbursement was never made, because the assets of the estate proved worthies’s, whereby, he claims, she is now equitably entitled to repayment from the trust fund, with interest from the date of the loan.

This theory, however, is warranted neither by the terms of the agreement nor by the testimony at the hearing. It was, indeed, recited in the agreement that Mr. Joy wished his daughter to have $1,000 out of his estate. And the agreement was so drawn that the $1,000 furnished by defendant was to account, to that extent, for such property of his estate as she had in her hands. Yet by its terms, and in fact, the defendant furnished the money as an individual, and not as administratrix. The money which she paid for the land does not purport to be a temporary advancement, but a permanent investment, for the benefit of the children. That, together with the $200 furnished by Woodford, constituted the trust fund itself — the very fund which she agreed to hold for the benefit of the children, and to eventually pay over to them. There is nothing in the agreement indicating that the trust' was to rest on any contingency, or that she expected any particular reimbursement from the estate. She could not have expected complete reimbursement, because the agreement itself says that "the total assets belonging to said estate were of less value than the sum of fifteen hundred dollars and the liabilities against said estate were about five hundred dollars.” She furnished the $1,000 absolutely, and retained whatever assets there were belonging to the estate not exceeding that amount. Neither did she claim in her testimony that she ever expected any reimbursement; nor that she furnished the money in reliance upon the assets of the estate. She does say that the bulk of the estate consisted of the Traverse City lands, and that these were worthless. But she does not say that she supposed them to be of value when she furnished the money, or that she discovered them to be worthless after the money was furnished. And the trust was created nearly four years after Mr. Joy’s death. It was a kindly act on her part to use $1,000 from her husband’s life insurance because of his request in favor of his child by a former marriage. The money was her own, and she was under no legal obligation to make that use of it. And it is unfortunate now, after having helped the children of that daughter, and after having used a large portion of what remained in educating her own son in the schools of this country and of Europe, that she should be left financially embarrassed in her old age. But it was an executed trust in the sense that its terms were clearly defined, and the courts have no alternative but to enforce it.

The decree will be affirmed, with costs of this court to complainants.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.


author: PERSON, J.

text:
    BRINKMAN v. ZUCKERMAN.
    1. Master and Servant — Negligence — Liability of Master — Scope of Employment.
    In an action for injury to plaintiff’s property by an. automobile driven by defendant’s chauffeur, defendant’s liability depends upon whether the chauffeur, when the accident occurred, was acting as defendant’s servant and within the scope of his employment.
    2. Samis — Automobiles—“Dangerous Instrumentality.”
    An automobile is not a “dangerous instrumentality” in a legal sense; and the relation between the owner of a car and his chauffeur is determined, in the absence of statute, by the general rules of law applicable to master and servant.
    3. Same — “Course or Scope of Employment” — Master’s Business.
    The phrase “in the course or scope of his employment or authority,” when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.
    4. Same — Scope of Employment — Common Law.
    Where the accident occurred while the chauffeur was on a trip solely for his own pleasure, there is no rule of the common law that holds the master liable therefor; he was no more responsible than he would have been if the chauffeur had borrowed some other car.

    5. Same — Borrowed Car — Liability of Owner.
    The owner of an automobile is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner’s business when his responsibility is not affected by some statute.
    6. Same.
    The permission of defendant to the chauffeur to use the automobile for purposes personal to the chauffeur, and in •which the defendant had no interest, did not make him liable.
    7. Same — Scope of Employment.
    Although the accident occurred while the chauffeur was returning from his pleasure trip, and while on his way to keep an appointment with his employer, it was not connected' with the latter’s business so as to render him liable.
    Error to Wayne; Mandell, J.
    Submitted April 12, 1916.
    (Docket No. 124.)
    Decided September 26, 1916.
    Case in justice’s court by Frank E. Brinkman against Leo Zuckerman for damages to plaintiff’s property. From a judgment for defendant, plaintiff appealed to the circuit court. Judgment for defendant on a verdict directed by the court. Plaintiff brings error.
    Affirmed.

      Clarence P. Milligan, for appellant.

      Frank J. Riggs, for appellee.

      Tor authorities on the question of liability of owner for injuries by automobiles while being used by servant or third person for his own business or pleasure, see notes in 1 L. R. A. (N. S.) 235; 9 L. R. A. (N. S.) 1033; 14 L. R. A. (N. S.) 216; 21 L. R. A. (N. S.) 93; 26 L. R. A. (N. S.) 382; 33 L. R. A. (N. S.) 71; 37 L. R. A. (N. S.) 384; 47 L. R. A. (N. S.) 662; L. R. A. 1916A, 957.

   PERSON, J.

This action was brought to recover damages for an injury to plaintiff’s property, caused by the running of an automobile against the front of his store. The automobile was owned by defendant, and was being driven at the time by one Mclvoy, who was employed by defendant generally as a chauffeur. In the absence of any statute enlarging the responsibility of the owner, defendant’s liability depends upon whether the chauffeur, when the accident occurred, was acting as his servant and within the scope of his employment. The trial judge held that he was not, and directed a verdict against plaintiff.

Defendant lived on Edison avenue in the city of Detroit, and on April 17, 1915, had been driven by the chauffeur at about 8 o’clock that evening, to a place on Brush .street, near Hancock. For this purpose the chauffeur had taken the car from the garage on Edison avenue, near defendant’s residence. When defendant alighted on Brush street he directed the chauffeur to return for him at 12 o’clock. It does not appear that any further orders were given to the chauffeur at the time. After leaving defendant the latter drove the car to his own residence on Merrick avenue, about three-quarters of a mile from Brush street, and, learning that his wife had gone to her father’s on Dix avenue, south of Michigan avenue, he drove on to the latter place. This was 214 or 3 miles from Brush street. He testifies that he went over to Dix avenue solely for his own pleasure. He remained at the home of his wife’s father until 15 or 20 minutes before 12 o’clock, and then started back to keep the appointment with defendant. He had gone but a few blocks when he took in three colored men as passengers, intending, he says, to carry them to their destination at the intersection of Woodward and Warren avenues. This point was not on the direct route back to Brush street, but was not much out of the way. The chauffeur had not gone far after taking the passengers in when his car ran across the sidewalk at the intersection of Scotten avenue and Michigan avenue, crashing into the front of plaintiff’s store and doing considerable damage.

The action of the trial judge in directing a verdict for defendant was warranted by the facts of the case. An automobile is not a “dangerous instrumentality,” in the sense in which that term is used in the law; and the relation between the owner of a car and his chauffeur is determined, in the absence of a statute, by the general rules of law relative to master and servant. Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81). Counsel for appellant cites us to many cases where the owner of the car has^ been held liable when his business was being attended to, either directly or indirectly, although the driver at the same time was also pursuing some object of his own. Quinn v. Power, 87 N. Y. 535 (41 Am. Rep. 392); Ritchie v. Walter, 63 Conn. 155 (28 Atl. 29, 27 L. R. A. 161, 38 Am. St. Rep. 361); Geraty v. Ice Co., 16 App. Div. 174 (44 N. Y. Supp 659); Loomis v. Hollister, 75 Conn. 718 (55 Atl. 561); Williams v. Koehler & Co., 41 App. Div. 426 (58 N. Y. Supp. 863); McKeever v. Ratcliffe, 218 Mass. 17 (105 N. E. 552); and. others. And if the chauffeur is acting at the time within the general scope of his employment, it undoubtedly does not lessen the owner’s liability that the chauffeur is at that time and place also disobeying some order given him by the owner. But the principles involved in these cases are not applicable to the facts of the case before us.

To make the owner liable, under the law of master and servant, the chauffeur must be acting within the scope of his employment. Hartley v. Miller, supra; Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834); Reilly v. Connable, 214 N. Y. 586 (108 N. E. 853, L. R. A. 1916A, 954, Am. & Eng. Ann. Cas. 1916A, 656); Steffen v. McNaughton, 142 Wis. 49 (124 N. W. 1016, 26 L. R. A. [N. S.] 382, 19 Am. & Eng. Ann. Cas. 1227); Hartnett v. Gryzmish, 218 Mass. 258 (105 N. E. 988); Provo v. Conrad, 130 Minn. 412 (153 N. W. 753); Danforth v. Fisher, 75 N. H. 111 (71 Atl. 535, 21 L. R. A. [N. S.] 93, 139 Am. St. Rep. 670). And “the prase ‘in the course or scope of his employment or authority,’ when used relative to the acts of a servant, means while engaged in the service of his master, or while about his master’s business.” Riley v. Roach, 168 Mich. 294 (134 N. W. 14, 37 L. R. A. [N. S.] 834). If a chauffeur, or any other servant, commits an injury while doing something relating to his own affairs exclusively, and in no wise connected with his master’s service, there is no rule of the common law that holds the master liable therefor. And it makes no difference, ordinarily, that the injury is inflicted by the use of some instrumentality belonging to the master.

In the instant case the trip of 2% or 3 miles, made by the chauffeur to the home of his father-in-law, had' no relation whatever to defendant’s business. It was, as the chauffeur himself testifies, solely for his own pleasure. And the defendant is no more responsible for what happened than he would have been if the chauffeur had borrowed some other car for the trip.

The chauffeur testified that he had used the car several times to visit his relatives, and, when asked where he kept the car when not in use, he replied, “On the street, out there at either one of my relatives’ places, or in the Cole garage.” What his answer plainly meant was that he left the car standing in the street whenever he used it to call upon his relatives, and not that the street was used as a place for the storage for the car. And the number of times he had so used it is not shown. There certainly was no proof of any express consent by defendant that the chauffeur might use the car to visit his father-in-law, nor do the proofs tend fairly to show any implied consent. But if the testimony had shown an express consent by defendant, it would have amounted but to a loan of the car, and would not have made the trip any part of defendant’s business. This court has held that, when his responsibility is not affected by some statute:

“The owner of a motor vehicle is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner’s business.” Hartley v. Miller, 165 Mich. 115 (130 N. W. 336, 33 L. R. A. [N. S.] 81).

And see, also, Doran v. Thomsen, 74 N. J. Law, 445 (66 Atl. 897).

And there is no reason why the owner may not lend his car to his chauffeur as well as to any one else. This was expressly held in Reilly v. Connable, supra, where the court said:

“The permission of defendant to the chauffeur to use the automobile for purposes personal to the chauffeur, and in which the defendant had no interest, did not make him liable to the plaintiff.”

It is suggested by counsel that the chauffeur, in returning from his father-in-law’s place, must have been acting within the scope of his employment, even if he was not so acting when going out there. And the reason given for the suggestion is that he was returning for the very purpose of keeping his engagement with defendant. But, in fact, no part of the trip, either going or returning, was connected with defendant’s business. It was as much the chauffeur’s affair to get back from Dix avenue as it was to go out there. In both Hartnett v. Gryzmish, supra, and Danforth v. Fisher, supra, the chauffeur had been using the car for his own purposes, and was returning, when the accident occurred, for the express purpose of performing some duty assigned to him by the owner, yet this was not supposed to affect the owner’s liability.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Mooee, Steere, and Brooke, JJ., concurred.


text:
    TOWNSHIP BOARD OF GRANT TOWNSHIP v. LARSEN.
    Highways — Fences—Eminent Domain — Damages—Nuisance..
    Act No. 125, Pub. Acts 1913 (1 Comp. Laws 1915, § 4412 et s,eq.), amends the general highway law by providing that upon the petition of twenty freeholders stating that when any fence other than a stone or hedge fence by reason of its construction or otherwise is dangerous, either of itself or by reason of causing obstruction to the highway, it shall be the duty of the highway commissioner to notify the owner and if he does not remedy the objectionable condition, to remove or cause it to be removed. On petition of the required number of freeholders to secure the removal of stump fences standing along a highway and upon testimony that they caused the snow in winter to drift into and fill the highway, held, that an allowance of damages to the owners for requiring removal of their stump fences was justified by the theory of the statute; also, that the trial court was right in excluding testimony tending to show the fences were a harborage for noxious weeds and interfered with the enjoyment of their property by others.
    Error to Newaygo; Barton, J.
    Submitted April 10, 1916.
    (Docket No. 61.)
    Decided September 26, 1916.
    A. C. Watters and others presented to the highway commissioner of the township of Grant, in Newaygo county, a petition to remove certain stump fences along a highway, under authority of Act No. 125,. Pub. Acts 1913, 1 Comp. Laws 1915, § 4412. Peter Larsen and two other respondents appealed to the township board and from its judgment to the circuit court. Judgment for appellants. The township of Grant brings error.
    Affirmed.

      George W. Clark, for appellant.

      William J. Branstrom, for appellees.
   Person, J.

The court is asked by this appeal to consider certain proceedings taken under the provisions of Act No. 125, Pub. Acts 1913 (1 Comp. Laws 1915, | 4412). That act amends the general highway law of 1909 by adding a new section which reads as follows:

“Sec. . 12. Upon the petition of twenty freeholders, residents of the same township, addressed to the highway commissioner of their township, stating that any particular fence other than a stone or hedge fence, along any highway within their township, by reason of its construction or otherwise, is dangerous either of itself or by reason of causing obstruction to the highway, it shall be the duty of said township highway commissioner to notify the owner, or the occupant of the premises whereon said fence is located, to remove the said fence. Upon the neglect or refusal of the said owner or occupant -to remove said fence within thirty days after such notice, it shall be the duty of the highway commissioner to remove or cause to be removed, the said fence, and the expense incurred thereby shall be paid, from the general fund of the township, and all costs thereby incurred shall be assessed against the property whereon such fence was located, and shall constitute a tax against said property, to be levied and collected as other township taxes are assessed, levied or collected: Provided, That any owner or occupant of any land who, having received notice to remove any fence, deeming himself aggrieved, shall have the right to appeal to the township' board, such appeal to be in writing and served upon the township clerk within ten days of the receipt of said notice. Upon said appeal it shall be the duty of the township board to carefully determine the facts concerning the removal of said fence, and shall either dismiss or confirm the order of the highway commissioner as to the removal of such fence. The township board shall award any damage to such owner or occupant for the removal of such fence, as in its judgment seems just, and such award shall be paid from the general fund of the township. Any person conceiving himself aggrieved by the order, determination or award'of the township board, may appeal therefrom to the circuit court of the county in which such township is situated; such appeal to be taken and perfected in the same manner as is provided by law with respect to appeals from justices’ courts. The issue shall be as to whether such fence should be removed, and if removed, the damages to which the owner is entitled.”

Acting under this section, freeholders to the number of 20 or more petitioned the highway commissioner of the township of Grant, in the county of Newaygo, to cause the removal of certain fences, made of pine stumps, and standing along a highway in that township. The commissioner gave the required notice, and the owners of the fences appealed to the township board. The township board heard the appeal and made an order for the removal of the fences, but refused to allow damages therefor. The owners thereupon took an appeal to the circuit court, where it was determined by the verdict of a jury that the fences did cause a dangerous obstruction to the highway and should be removed. The jury, however, taking a view of the matter somewhat different from that taken by the township board, accompanied the condemnation of the fences by an allowance of damages in favor of the owners to the amount of $97.65... It is because of this allowance of damages that the matter is brought before this court.

Counsel for plaintiff bases his objection to the allowance of damages upon the proposition that every fence coming within the terms of the statute must necessarily be a nuisance, and that the township cannot be required to pay damages for the abatement of a nuisance. Several constitutional provisions are also referred to which, counsel thinks are violated by the allowance of damages under such circumstances.

The correctness of plaintiff’s proposition that only such fences come within the statute as are nuisances is, at the least, very questionable. The stump fences which were ordered removed in this instance were held to be dangerous because they caused the snow in winter to drift into and fill up the highway so that it could not be safely traveled, if it could be traveled at all. But the fences themselves were not an obstruction to the highway, and instead of being within the highway stood wholly upon the owner’s land. It can easily be remembered that most of the earlier fences in this county caused more or less snow to drift into and block up. the highways. The State is now using care to perfect and protect its roads, but in doing so it is doubtful whether fences tolerated by long custom can suddenly be condemned as nuisances. We are not, however, called u'pon to determine this question in this case for the very good reason that the statute does not attempt to treat such fences as nuisances. It proceeds rather along the theory of eminent domain, and aims to get rid of the obstructions by the payment of compensation. This statute does not do away with nor abridge any of the ordinary methods of proceeding against nuisances, and if it is desired that these fences be treated as nuisances those methods should be followed. When the benefits of this statute are in-, voked it should be understood that compensation is one of its material provisions which cannot be rejected without destroying the entire statute.

In disposing of this matter we decide only such points as have been raised by appellant. As to other features of the statute, or as to its validity as a whole, we are not called upon to express any opinion.

The trial court was also right in excluding testimony tending to show that the fences were a harborage for noxious weeds, or that they interfered with the enjoyment by others of their property. The law was not framed to remedy such matters.

The judgment is affirmed.

Stone, C. J., and Kuhn, Ostrander, Bird, Moore, Steere, and Brooke, JJ., concurred.