author: Moore, J.

text:
    BESSENGER v. WENZEL.
    1. Bills and Notes — Negotiable Instrument Law — Presentment — Notice oe Nonpayment — Waiver.
    Presentment, protest, and notice of nonpayment of a negotiable instrument may be waived by indorsers of a corporate note who are the directors of the maker, know that it has no money with which to pay the obligation and so notify the payee immediately prior to maturity of the paper, and negotiate for a renewal of the instrument.
    2. Same — Waiver.
    Indorsers who consent to remain liable on a promissory note after knowledge of failure to make presentment, waive that defense.
    Error to .Wayne; Donovan, J.
    Submitted February 15, 1910.
    (Docket No. 100.)
    Decided April 1, 1910.
    Assumpsit by Frank L. Bessenger against Paul Wenzel and others on a promissory note. A judgment for plaintiff is reviewed by defendants on writ of error.
    Affirmed.

      Wade Millis and May & Dingeman, for appellants.

      Moore & Moore, for appellee.
   Moore, J.

On September 11, 1907, suit was instituted in this cause by declaration in assumpsit on all the common counts and with a notice attached that the plaintiff would offer in evidence a certain promissory note, in words and figures as follows:

“$2,000.00. Detroit, Mich., April 10, 1907.
“Ninety days after date we promise to pay to Frank L. Bessenger, or order, two thousand dollars, at German American Bank.
“Value received, with 6 per cent, interest per annum.
[Signed] ■ “Marvel Motor Car Co.,
“By W. J. Looman,
“ Secy. & Treas.”
Written across the end of the note and on the face thereof: “Engelbert Venderbush.” Indorsed on the
back of said note: “Paul Wenzel. J. C. Forster. W. J. Looman. Engelbert Venderbush.”

The defendant Paul Wenzel pleaded the general issue, with the following notice:

“You will please take notice mat, upon the trial of the above cause, the defendant Paul Wenzel will give in evidence and insist upon in his defense that, if he signed the instrument set forth in the declaration in this cause, that the same was signed by him as accommodation indorser, without consideration; that neither at the maturity of the said instrument nor within a reasonable time thereafter was notice of the nonpayment of said instrument given to this defendant, nor any demand made upon him for the payment thereof; that since the maturity of said instrument the Marvel Motor Car Company, the maker of the said note, has become insolvent, and bankruptcy proceedings have been instituted against said company — all of which facts this defendant will claim has released and discharged him from liability as indorser as aforesaid.”

The defendants Venderbush and Looman pleaded the general issue, with the following notice:

“You will please take notice that on the trial of this cause the said defendants William J. Looman and Engelbert Venderbush will give in evidence under the general issue, above pleaded, and insist in their defense, that no notice of protest for nonpayment of said note has been given these defendants; and at no time have said defendants been served with a notice of protest for nonpayment of the instrument set forth in plaintiff’s declaration, and his bill of particulars, and no notice of nonpayment of the same by the makers thereof has been given to or served upon said defendants in the manner required by the statutes of the State of Michigan, and the law merchant thereof.”

The case was tried before a jury. Plaintiff obtained judgment for the amount of the note. The case is brought here by writ of error.

The plaintiff admitted that he did not present the note at the bank the day it became due. The parties to this suit were all stockholders in the Marvel Motor Car Company. It is the claim of plaintiff that several days before the note matured it was talked between the parties to this litigation that the maker of the note would be unable to pay it when it matured, and that it would have to be renewed ; that they all knew upon the day of its maturity that there was no money in the bank with which to pay the note, and that at no time upon the day of its maturity was there as much as $90 in the bank, and that the maker of the note had no way to get funds there to pay it. It is his further claim that it was agreed by the indorsers who were also directors in the Marvel Motor Car Company, on the day the note matured, that it should be renewed; that upon the following day $30 as interest was paid to him; and that he was then assured by the defendants that the note he had was just as good as though it was renewed. He gave testimony tending to establish his claim.

Mr. Munz testified, in part:

“Q. Let us see what transpired at the meeting. Did Mr. Bessenger come in and have his note with him, do you know, that evening ?
“A. I did not see him show it.”

Witness continues:

“He said he wanted $200, and that he was willing if they gave him $200 to extend the payment of the other $1,800. Whoever were present said they could not pay the $200, but they would give him a renewal note for the total sum. I think that was agreed to by Mr. Bessenger. I think he agreed to come down the next day and have the new note made out by Miss Burley, the bookkeeper, for the full sum and get his interest.”

On the part of the defendant, while it was admitted there was less than $90 in the bank when the note matured, it is denied that defendants agreed to renew the note either before or after its maturity, or that they did anything by which its presentment was waived, or that the indorsers assured plaintiff at the time the $30 of interest was paid that the note was as good as a renewal would be. We quote from the brief of appellants sufficient to show their contention:

“We have quoted from the testimony at length, because we believe that the plaintiff has failed to prove by clear and unequivocal evidence such facts as would be sufficient to constitute a waiver, and because it must be apparent from the plaintiff’s own testimony that the minds of the parties never met either with reference to a renewal or with reference to any agreement on the part of the indorsers relative to a continuation of their liability on the note in question. * * * Conceding that the facts as detailed by the plaintiff are true, one of the most important elements of an implied waiver is lacking. We have seen that the doctrine of implied waiver is closely associated with that of estoppel, and, unless the plaintiff was induced before or on the day of maturity by some act or language on the part of defendants from making presentment, his claim must fail. * * * Under his own testimony, the statements which plaintiff relies upon as constituting waiver were not made until the time for presentment had passed, and the important element of estoppel is lacking. * * *
“It affirmatively appears from plaintiff’s testimony that defendants expected that he would take the necessary steps to protect himself. He says they were ‘ surprised ’ and ‘ relieved ’ on the 10th, when he told them he had not protested it. This testimony also indicates that defendants did not act with full knowledge of the facts — an important essential of the plaintiff’s case. •* * *
“Conceding, for the purposes of the argument, that the claim of waiver made by the plaintiff was a question of fact for the jury, we submit that the case was not fairly presented by the trial judge. Defendants requested the court to charge the jury as follows:
‘“I charge you, gentlemen of the jury, that the promissory note sued upon in this action was upon its face made payable at the German American Bank of this city, and that it was incumbent upon the plaintiff to present said note for payment at such bank during banking hours, unless the maker thereof did not have funds at such bank, with which to meet the note during that day, in which cáse presentment at any hour before the bank closed on that day is-sufficient,' but that presentment of such note at such bank, unless waived by the defendants, was absolutely necessary at some time during the day on which it matured, and that if you find that the plaintiff failed to so present it, and that it was not waived, then your verdict should be for the defendants.’ ”

This request was refused. The court instructed the jury:

(1) If there was no money in the bank with which to pay the note, and the holder, maker, and indorsers knew that fact, presentment for payment was not necessary.

(2) If the holder, maker, and indorser agreed before or at maturity that the note should not be paid, but renewed, then there was no necessity for presenting it for payment.

(3) If the defendants, with full knowledge that there had been no presentment, assented to continue their liability, then they would be liable.

Was the judge right in giving these instructions ? If so, the ease should be affirmed. If not, it should be reversed.

Section 84 of the negotiable instruments law (Act No. 265, Pub. Acts 1905) provides that presentment for payment may be dispensed with by waiver of presentment, express or implied.

In Quaintance v. Goodrow, 16 Mont. 376 (41 Pac. 76), Pemberton, C. J., speaking for the court, said:

“The testimony of the witnesses is to the effect that the defendant Xing, at divers times after the maturity of the note, promised to pay it. He asked not to be pressed, and promised that, as soon as he could get the money, or arrange it, he would pay the note. He promised to pay it on the last day of grace, and asked not to be pressed. We think the evidence amply supports the findings of the court in respect to this contention. Daniel, in his work on Negotiable Instruments (4th Ed.), § 1090, says:
’ “ ‘ When presentment of the bill or note at maturity has been dispensed with by prior agreement between the parties, or, in other words, has been waived by the party entitled to require it, the holder is excused for his failure to make it. It would be a fraud upon the holder to permit him to suffer by acting upon the assurance of the party to whom he looks as security upon the paper; and, as a prompt presentment is a requirement solely for the benefit of the drawer and indorsers, they are themselves the sole judges to determine whether or not they will enforce it. The waiver may be either verbally or in writing. It may be expressed in totidem verbis, or inferred from the words or acts of the parties. And it matters not what particular language may be used, so that it conveys the idea that the presentment at maturity is dispensed with. The like observations apply to the protest and notice.’
“ It is not necessary that the waiver should be direct and positive. 2 Daniel on Negotiable Instruments (4th Ed.), § 1091. See sections 1090-1108, inclusive, for a general discussion of the doctrine of waiver. In Yeager v. Farwell, 13 Wall. (U. S.) 6, a case involving the question of waiver, the court say:
‘ • ‘ The indorser can, by his own conduct, place himself in such a position that he is estopped from alleging want of demand and notice of nonpayment. Although, accurately speaking, there can only be a waiver of demand and notice by the indorser before the note is due, yet, after it is due, he can waive proof of them, or, what is more to the purpose, he can so act towards the holder of the note as to render the fact that demand was not made or notice given wholly immaterial.’
“In Gove v. Vining, 7 Metc. (Mass.) 212 (39 Am. Dec. 770), a case almost identical in its facts with the case at bar, Mr. Chief Justice Shaw says:
“ ‘And the court are of opinion that when an indorser, at or shortly before the time when the note becomes due, says to the holder that an arrangement for its payment is about being made, and in direct terms, or by reasonable implication, requests the holder to wait, or give time, it amounts to an assurance that the note will be paid — that the promisor or indorser will pay it — and is a waiver of demand and notice. It tends to put the holder off his guard, and induces him to forego making a demand at the proper time and place; and it would be contrary to good faith to set up such demand and notice — caused perhaps by such forbearance — as a ground of defense. ’
“See, also, authorities cited. Markland v. McDaniel, 51 Kan. 350 (32 Pac. 1114, 20 L. R. A. 96); Sheldon v. Horton, 53 Barb. (N. Y.) 23. We are of the opinion that the defendant King, by his conduct and frequent promises to pay the note, waived demand and notice of nonpayment thereof.”

In Re Swift, 106 Fed. 65, a case under a statute having the exact words found in our statute, the court said:

“ The second exception insisted upon is that found in section 82 [Stat. Mass. 1898, chap. 533] : ‘ (3) By waiver of presentment, express or implied.’ No express waiver is here shown, and the case turns upon the existence or absence of waiver implied from the facts agreed by the parties and stated by the referee. Stat. Mass. 1898 is intended to supersede all other statutes relating to promissory notes, and, as it does not purport merely to rearrange statutes previously existing, there is no strong presumption that any one of its provisions is merely a codification of the law previously existing. When it attaches certain results to an implied waiver of demand, however, a court called upon to define such waiver may appropriately look at definitions of the term previously established. When the legislature of Massachusetts used the words, ‘ waiver of presentment, express or irpplied,’ it may be supposed to have used these words in the meaning consistently attributed to them by the courts of Massachusetts. In Kent v. Warner, 12 Allen (Mass.), 561, 563, Mr. Justice Foster said, in delivering the opinion of the supreme court:
“ ‘ Strictly speaking, a waiver is an intentional relinquishment of a known right; but, where the indorser of a note by words or acts has in fact misled and put the holder off his guard and reasonably induced him to omit due presentment for payment and notice of nonpayment, he is deemed in law to have waived the performance of these ceremonies, because it would be inconsistent with good faith on his part to insist upon a condition, compliance with which had been prevented by his own conduct.’
“That which puts the holder off his guard is said to be waiver, in other cases, among them Gordon v. Parmelee, 15 Gray (Mass.), 413, 422; Armstrong v. Chadwick, 127 Mass. 156.
“Do the facts stated in the referee’s certificate establish that the holder of the note was reasonably put off his guard by the acts of Hodges ? I think they do. Hodges was liable on the note both as maker and indorser. About a week before maturity he consulted with the holder regarding a general assignment of the firm and its partners, which assignment was made as a result of the consultation. The note was discussed, and Hodges told the holder that neither the firm which made the note, nor he himself, the partner who had indorsed it, could pay it at maturity. It is not necessary to decide that, where the maker and indorser of a note are quite separate persons, the bare statement by the indorser that the maker will not pay operates to excuse demand. Here the maker and indoi’ser were, in an important sense, the same person. Hodges said, in effect, ‘ I cannot pay you this note either as maker or as indorser.’ Doubtless he might have added, ‘ In spite of the fact just stated, I require you to go through the useless ceremony of demanding payment.’ Had he said this, there would have been no waiver; but, in the absence of such a reservation, I think that the holder reasonably understood him to waive the useless ceremony. Upon this understanding the holder acted. It should be noticed that Hodges and his creditor were not dealing at arm’s length, or as opposing parties, but were conferring about the general condition of Hodges’ affairs.
“In construing a term found in a statute of Massachusetts and previously defined in Massachusetts decisions, it may be sufficient to refer to these decisions. As the statute in question is intended to introduce uniformity into the laws of the several States, it would be unfortunate, however, if the Massachusetts decisions concerning waiver of demand were opposed to a great weight of authority elsewhere, and to the law merchant as generally laid down. I do not find that opposition exists. The definitions in 2 Daniel on Negotiable Instruments (4th Ed.), § 1103, and in 2 Parsons on Notes & Bills (2d Ed.), p. 582, are similar to those declared by the supreme court of Massachusetts. In Cayuga County Bank v. Dill, 5 Hill (N. Y.), 403, no waiver of demand was understood by the creditor at the time the alleged waiver took place. It was set up as an afterthought to excuse a mistake concerning the date of the note. When the holder was asked by the indorser why the note had not been presented for payment, he answered that presentment would be made that same afternoon, and claimed a waiver only after he had found out, to his surprise, that this presentment would be too late. In Re Grant, Fed. Cas. No. 5,691, the court found that the waiver, so far as there was one, was not made with any regard to the indorsement, and that all parties were considering only the rights of the maker. In the case at bar the indorsement was expressly referred to. I hold, therefore, that there was no implied waiver of presentment, within the purview of the statute.
“ That waiver of presentment for payment, and knowledge of nonpayment arising from the identity of the maker and indorser, taken together, will excuse notice of nonpayment, is a conclusion so sensible that it must stand unless plainly opposed to the words of the statute. That this is the law merchant is not denied. To present for payment in order to charge an indorser, where the indorser has already told the holder that he cannot pay the note either as maker or indorser, seems a useless ceremony; but it is a matter of substantial importance, by comparison with giving notice to the indorser who has waived presentment, that he (the indorser) has not paid the note as maker. The notice, if given, would run substantially thus:
“ ‘ Please take notice that you have not paid the note which, in accordance with our agreement, I have not presented to you, for payment.’
“The facts which were held to constitute a waiver of demand were held also to constitute a waiver of notice in most or all the cases above cited. Waiver of notice seems to have been implied from waiver of presentment.
“ That notice would be excused by waiver even in the absence of an express provision of statute, I am inclined to think; but this case seems fairly covered by the statute itself. By section 115 notice of dishonor is not required ‘ where the indorser is the person to whom the instrument is presented for payment.’ The instrument here was not presented to Hodges for payment, because he had given the creditor to understand that presentment would be useless. The exception was inserted to avoid the necessity of giving notice of a fact which, by the terms of the exception, must be within the personal knowledge of the man notified.”

See Taunton Bank v. Richardson, 5 Pick. (Mass.) 436.

In 2 Daniel on Negotiable Instruments (5th Ed.), § 1103, it is said:

“Any act, course of conduct, or language of the drawer or indorser calculated to induce the holder not to make demand or protest or give notice, or to put him off his guard, or any agreement by the parties to that effect, will dispense with the necessity of taking these steps, as against any party so dealing with the holder. And even though a statute requires the waiver of demand and notice, to be valid, must be in writing, it has been held that the course of conduct of the indorser may be such as will estop him from denying that the note was duly protested. Where the party told the holder 18 months before maturity not to protest it, as it should be paid at maturity, it was held a waiver of demand and notice. So where the indorser informed the holder that the maker had absconded, and requested forbearance. So where, on the first day of grace, the indorser requests time, and says that an arrangement will be made, notice is waived; so where the drawer or the indorser informs the holder that the bill will not be paid, or that he cannot pay it when due, it is a waiver of demand, protest, and notice.”

See, also, Valley Nat. Bank of Lebanon v. Urich, 191 Pa. 556 (43 Atl. 354); First Nat. Bank of Iowa City v. Ryerson, 23 Iowa, 508.

In 4 Am. & Eng. Enc. Law (2d Ed.), p. 463, it is said;

“Effect of promise to pay made after maturity. — It is a well settled doctrine both in England and in the United States that if the drawer or indorser, with full knowledge of the neglect of the holder to exercise due diligence, promises to pay the bill or note, or in any way unequivocally assents to continue his liability as though due diligence had been used, he is held to have waived the consequence of the laches, and will stand in the same position as if he had been regularly charged by presentment, demand, and notice.”

See, under this head, Parsons v. Dickinson, 23 Mich. 56, and the many cases cited in the note. Compton v. Blair, 46 Mich. 1 (8 N. W. 533); Union Bank of Georgetown v. Magruder, 7 Pet. (U. S.) 287; Hunter & Keller v. Hook, 64 Barb. (N. Y.) 468.

In 1 Morse on Banks & Banking (4th Ed.), p. 502, occurs the following language:

“ (6) Any express or implied waiver of demand or notice is an excuse, as if the drawer or an indorser agrees to waive notice, or so acts as to induce the holder to believe that he waives it, and so estops himself, it is an excuse as to such drawer or indorser.
“ (7) A promise to pay or acknowledgment of liability by drawer or indorser after maturity, and with knowledge that proper demand and notice have not been given, is a waiver. And a part payment after maturity is such an acknowledgment. Part payment of a check before maturity is a waiver of demand and notice.
“ (8) If the drawer have no reasonable expectation that the bill will be honored, or that he will be able to secure funds to meet it, it is not necessary, as against him, to present or notify; but as against innocent indorsers the usual formalities are necessary. A declaration by the drawer that the paper will not be honored excuses presentment and notice. So, if the drawer of a check have no funds, or insufficient funds, or withdraws his deposit, or orders the bank not to pay the check, no presentment and notice is necessary as to him — he can suffer no loss by its absence — but as to an indorser such facts are no excuse, unless he knew of the drawer’s fraud, and so participated in it.”

It has been repeatedly held, as to the drawer of a check, that, if he had no funds in the bank to meet the check had it been presented in proper time, no harm is done him if the check was not presented. Carson, Pirie, Scott & Co. v. Fincher, 129 Mich. 687 (89 N. W. 570, 95 Am. St. Rep. 449). In the same case, reported in 138 Mich. 666 (101 N. W. 844), Justice Hookeb, speaking for the court, said:

“Authorities are numerous that delay in presentment and failure to give notice of dishonor cannot be successfully interposed as a defense in an action against the drawer, when it can be said that the drawer had no funds in bank, and had no expectation that the check could be paid.”

In First Nat. Bank of Detroit v. Currie, 147 Mich. 72 (110 N. W. 499, 9 L. R. A. [N. S.] 698, 118 Am. St. Rep. 537), McAlvat, C. J., speaking for the court, said:

“The fact that there are no funds in the account against which the check is drawn does not relieve the holder from presentment and notice of dishonor to the indorser, unless it appears that the indorser knew it. 2 Daniel on Negotiable Instruments (5th Ed.), § 1596; 1 Morse on Banks & Banking (4th Ed.), § 262, subd. 8.”

In the case at bar the note was made payable to Frank L. Bessenger or order. It was never indorsed by him; it was made payable at a bank. It was made by a corporation and was indorsed before its delivery to the payee by the defendants who were directors of the corporation and in its active management. Prior to Act No. 265, Pub. Acts 1905, these indorsers would have been held as joint makers by a long line of our decisions commencing with Wetherwax v. Paine, 2 Mich. 555. These cases are collected in Bunker on Negotiable Instruments, p. 120. Whether they would be so liable now we express no opinion. As we have already seen, that act recognizes that presentment and notice may be waived.

It is the claim of the plaintiff that not only did the corporation know that it had no funds in the bank with which to pay the note, but that the indorsers knew of this fact and had assured him that the note could not be paid at maturity. To have presented this note would have been an idle ceremony. If plaintiff’s version is to be believed — and the jury evidently did believe it — neither the corporation nor the indorsers expected the note to be presented.

We think, under the circumstances of this case, that the charge of the court is not error.

Judgment is affirmed.

Hooker, McAlvay, Brooke, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    GILBERT v. ANN ARBOR RAILROAD CO.
    1. Evidence — Hearsay — Res Gestae — Declarations oe Deceased.
    As a part of the res gestee, declarations made by plaintiff’s intestate, knowing that he was dying, immediately after being carried 400 feet from the place of his injury, that he stepped into a hole in defendant’s scales oh the track, are competent in an action for his death while acting as defendant’s brakeman.

    2. Negligence — Master and Servant — Railroads—Defects in Roadway.
    The existence of a hole in the platform of scales on defendant’s track in a place not readily to be observed, being undisputed, the question of defendant’s negligence in failing to provide a reasonably safe place for its brakemen to perform their duties was for the jury.
    3. Master and Servant — Contributory Negligence — Presumption of Due Care — Death.
    An employé killed by reason of alleged neglect of his employer is, in the absence of any evidence to the oontrary, presumed to have exercised due care.
    4. Same — Assumed Risk — Obvious Dangers.
    The obvious character of the risk and decedent’s knowledge of danger arising from the defect were questions of fact.
    5. Same — Defenses—Negligence.
    The alleged defense that deceased caught his foot between the rails of the main and scales track, if supported by evidence, was for the jury.
    Error to Benzie; Chittenden, J.
    Submitted February 15, 1910.
    (Docket No. 178.)
    Decided April 1, 1910.
    Case by Genevra Gilbert, administratrix of the estate of Arthur Gilbert, deceased, against the Ann Arbor Railroad Company for the negligent killing of plaintiff’s intestate. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      D. G. F. Warner, Smurthwaite & Alway, for appellant.

      Benjamin S. Warren and Codd & Drake, for appellee.

       As to admissibility of declarations of injured party as part of the res gestee, see note to Ohio & Mississippi R. Co. v. Stein (Ind.), 19 L. R. A. 748.

   Brooke, J.

This action is brought to recover damages on account of the death of Arthur Gilbert, plaintiff’s decedent, caused, it is alleged, by the negligence of the defendant. It appears that Gilbert was a switchman, 31 years of age. He had been employed by the defendant for about three years prior to his death. He worked in defendant’s yard at South Frankfort, where defendant’s line connects with car ferries, owned and operated by it, across Lake Michigan. Upon the main track, about a car length from the switch to the car ferry slip, is a scale for weighing cars. The north side of the main track rests on a solid timber, which forms the northerly wall of the space dug out of the ground to make room for the proper operation of the scales. The south rail of the main track also rests upon timber, extending lengthwise over the scales, but so supported that the weight of cars, passing over it, does not affect them. Upon the platform of the scales, a track is laid, which is connected with the main track by a switch, some distance from the scales, upon which track cars are run to be weighed. The distance between the north rail of the main track and the north rail of the scales track is lOf inches, and the rails upon both tracks are inches high.

The negligence charged against defendant is that it did not furnish to plaintiff’s decedent a safe place in which to perform his duties as its employé, in that it permitted the platform of the scales, at the northwest corner thereof, to become broken to such an extent that there was a hole therein, about three inches wide by six inches long, in a narrow and obscure place, between the rail of the main track and the rail of the scales track. About 6:30 o’clock on the morning of December 11, 1907, while it was yet dark, the switch crew, of which Gilbert was switchman, were engaged in loading cars from the yard upon car ferry No. 4. The locomotive pulled 11 cars out upon the main track beyond the scales, so far easterly, that the most westerly car was over the platform of the scales. It was intended to push those cars upon the track, running to the ferry slip, upon which was another freight car, which it was necessary to couple with the last car connected with the locomotive. Gilbert turned the switch to the side track, signaled the engineer to back, and stepped forward to turn the knuckle upon the last car in the train. After performing this duty, he stepped between the rails at the place described, and it is claimed his foot slipped into the hole in the platform of the scales, above described, that he was unable to release it, and was caught by the moving cars and dragged along the track about 100 feet, when the car ran over him, and so injured him that he died about three hours later. Testimony was introduced by the plaintiff, tending to show that Gilbert, at the time of his injury, was in the regular course of employment, and was performing his duties in the usual, regular, and ordinary manner. It was claimed by the defendant that the injury might have been caused by the catching of the foot between the rails, instead of in the hole in the platform; also, that Gilbert should not have signaled the engineer to back the train until after he had opened the knuckle of the car; also, that the hole in the platform had been there for some time, and the deceased must have known thereof, and therefore he assumed the risk.

A verdict was directed for the defendant, in the court below, in the following language:

“The defendant asks the court to instruct the jury to render a verdict of no cause of action on three grounds: First, that the plaintiff assumed the risk; that is, if there was any danger there, that he must have known of it, having passed over the place in question a great many times and knew its condition; therefore, if there was any danger there, he assumed the risk. The second ground is that he himself was guilty of contributory negligence; that is, if there was danger there, that there was another way in which he could have done the work which would have been a perfectly safe way to do it, and by doing it the way he did do it he was guilty of contributory negligence. While I feel that in both of these contentions the scale of justice and the measure of law falls on the defendant’s side and weighs the more heavily on his side, nevertheless the main point with the court and the question that brings the court to his decision is the third ground raised: That the plaintiff has failed to show that this deceased was injured by reason of the hole that they claim existed in these scales. There is absolutely no testimony that this man ever stepped into or through this hole. There is testimony on the part of the defense that this hole was surrounded by new snow, that it was only 2f by 5 inches, and that the snow was fresh and new around it, and there were no marks of any one ever getting through it. Now, if some witness had testified that this man did step through or into this hole, and this other testified that the snow was there around it, and nobody could have stepped through it, that would be a question for the jury, and it would be my duty to submit this question to you. But there is no testimony that this man ever stepped through this hole. The only possible testimony that could possibly lean that way is the statement of this man, the deceased, that he stepped into a hole in the scales. He. doesn’t say what hole, or anything about it, and if I were to submit this case to you it would be asking the jury to guess whether or not he stepped into a hole, and, if so, which one.”

The plaintiff has removed the case to this court for review, upon writ of error. The first question to be considered is whether or not there was any competent evidence tending to show that Gilbert received the injury, which resulted in his death, in consequence of having caught his foot in the hole in the scales. Upon this point, John Gothais, a witness sworn for the plaintiff, who was employed as fireman upon the switch engine, testified as follows:

“I saw him first that morning lying on the rails close to the switch, about 100 feet west of the scales. I was the first man to him. He spoke to me. He said: ‘Telephone my wife. I am dying.’ The next person to come up was Henry Wagner. He was yardmaster. We took him to the depot, about 400 feet from there. When we got him to the depot, he said that he got his foot caught in the hole in the scales, and he could not get his foot out in time, and he was run over by the cars and caught by them. I looked to see whether there was any appearance that he had been shoved or dragged on the ground, and saw marks on the ground where something had been dragged. These marks stopped where he laid, and started up near the scales.”

Henry Wagner, defendant’s yardmaster at South Frankfort, testified as follows:

“Mr. Gothals was there about the time I got there. The first statement I heard him make, he said the hole in the scales got his foot. He did not say how he came to be there where he was. It showed where he had been dragged there. His body had been dragged on the snow. It snowed a little on that night, about an inch, and it was apparent, from the indications there on the snow, that his body had been dragged from the scales, north. I saw the hole in the scales right at the end of the scales between the scales rail and the main track. The tracks were 102-inches apart.”

William Shafer testified for plaintiff as follows:

“I saw Gilbert lying on the table in-the depot, about half past 7 in the morning. I said to him, ‘ How did it happen ? ’ He said: 1 got my foot in the hole in the scales, and I could not get it out. I grabbed the side of the car, but it did not do me any good.’ I examined the holes in the scales between 9 and 10 that morning. They had already plugged the holes up. The hole in the northwest corner, I should judge, was about 3 inches wide and about 8 or 10 inches long.”

All the foregoing testimony, relating to the declaration of Gilbert, was received over defendant’s objection that it was inadmissible as not being part of the res gestae, and it seems that, though admitted, it was not considered by the learned circuit judge, as he directed a verdict mainly upon the ground that there was no testimony tending to show that Gilbert was injured by reason of the hole in the scales.

Was the testimony of Gilbert’s declaration admissible as part of the res gestae, and should it have been considered ? It.will be remembered that the declaration was made by Gilbert to Gothals and Wagner, after they had carried him about 400 feet to the depot; they having reached him immediately after his injury was received. Under the circumstances disclosed by the record in this case, we are of opinion that their testimony was admissible and should have received proper consideration. In the late case, White v. City of Marquette, 140 Mich. 310 (103 N. W. 698), this court said:

“ If such statement is made at or near the place of the accident, is spontaneous, and so closely connected with the occurrence as to be evoked or prompted by it, it becomes part of the transaction itself, and is admissible as res gestee. On the other hand, narrations not the natural and spontaneous outgrowth of the occurrence, and so far separated from the act they are alleged to characterize that they are not a part of it, and so connected with it, as to receive credit from it, are purely narratives of a transaction, already passed and completed, and hearsay ” — citing cases.

See, also, Knapp v. Railway Co., 114 Mich. 199 (72 N. W. 200); Jones v. Village of Portland, 88 Mich. 598 (50 N. W. 731, 16 L. R. A. 437); Lendberg v. Mining Co., 75 Mich. 84 (42 N. W. 675); Keyser v. Railway Co., 66 Mich. 390 (33 N. W. 867); 16 Cyc. p. 1152 et seq., and cases cited.

It was urged by the defendant that there was no evidence of negligence on its part. We are unable to agree with this view. The existence of the hole in the. scales platform for a considerable period is not disputed. That it was in an obscure place, not readily to be observed, seems obvious. Plaintiff’s decedent was entitled to a reasonably safe place in which, to perform his duties. Whether or not the defect complained of was such as to render the place unduly dangerous was a question of fact to be determined by the jury under proper instructions.

Was plaintiff’s decedent guilty of contributory negligence, as a matter of law ? We have frequently held that, in a negligence suit, where there is no eyewitness to the accident, it will be presumed, in the absence of any evidence to the contrary, that the deceased used ordinary care and caution, which presumption is sufficient to permit recovery, if negligence is shown on the part of the defendant. Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441), and cases there cited; Underhill v. Railway Co., 81 Mich. 45 (45 N. W. 508); Grostick v. Railroad Co., 90 Mich. 608 (51 N. W. 667). See, also, Chesapeake, etc., R. Co. v. Steele, 84 Fed. 93, 29 C. C. A. 81, and note. But aside from the presumption, the evidence of the yardmaster was to the effect that plaintiff’s decedent was performing his duties in the usual and ordinary manner. The question of his negligence, like that of the defendant, was for the jury.

Defendant claimed that, whatever defect there was in the track, the plaintiff’s deceased had an opportunity, equal with others, to know of it and guard against it, because it was plainly open to observation, and therefore he should be held to have assumed the risk. Defendant had the right to show the obvious character of the danger and the opportunity for knowledge thereof possessed by decedent. It then became a question of fact for the determination of the jury, under proper instructions, whether decedent knew of the defect, or by the exercise of ordinary care and prudence should have known of it.

It was defendant’s theory that decedent came to his death by reason of catching his foot between the rails of the main and scales tracks. It had the right to have that theory presented to the jury, if supported by any evidence.

Some other errors are assigned upon the admission of testimony, which we do not consider. They are not likely to arise upon another trial.

Judgment reversed, and a new trial ordered.

Hooker, Moore, MoAlvay, and Stone, JJ., concurred.


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    LAMB v. LAMB.
    1. Compromise and Settlement — Contracts — Intent — Landlord and Tenant.
    In trover by a mortgagor for one-half interest in a crop grown on defendant’s farm by a tenant on shares, plaintiff may recover the value of the mortgagee’s interest in the growing crop converted by defendant, notwithstanding a prior compromise agreement between the lessor and lessee in which the other joint property interests were settled and divided, but the crop was not mentioned; a clause in the agreement releasing all demands existing between the parties not being intended to affect the tenant’s rights in such growing crop.
    2. Appeal and Error — Saving Questions for Review — Chattel Mortgages.
    The point that before plaintiff could proceed against defendant for the value of the crop converted he must have recourse to the other mortgaged property, will not be considered on error in the absence of any assignment thereon and of any requests to charge the jury thereupon in the trial court.
    Error to Livingston; Miner, J.
    Submitted February 15, 1910.
    (Docket No. 165.)
    Decided April 1, 1910.
    Trover by Nelson Lamb against Charles Lamb. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Clarence Tinker, for appellant.

      J. A. Greene, for appellee.
    This is an action of trover, brought by plaintiff, to recover for a quantity of rye which he claims was unlawfully converted by defendant in the fall of 1908. Defendant had leased his farm to one Springs, who took possession thereof in March, 1906. Many controversies arose between defendant and Springs under the lease. On October 26, 1907, Springs gave to plaintiff a chattel mortgage covering certain live stock and his one-half interest in other live stock upon the farm. The mortgage also covered one-half interest in 28 acres of rye. It was given to secure the payment—
    “ Of any promissory note or notes, given by me to Nelson Lamb, for either past, present or future advances, or renewals of the same.”
    This mortgage was duly filed with the township clerk November 21, 1907, and renewed October 24, 1908. The renewal affidavit shows that at that time #150 and interest was owing. On March 12, 1908, defendant and Springs made a settlement of their differences, which was reduced to writing. Plaintiff was present when said settlement was made and was one of the witnesses to its execution. The agreement follows:
    “ This agreement made the 12th day of March, A. D. 1908, by and between Charles Lamb of the village of Fen-ton, Genesee county, Michigan, party of the first part, and Fred Springs of the township of Deerfield, Livingston county, Michigan, party of the second part, witnesseth: That whereas the said party of the second part is about to give up and leave the premises of the first party and whereas a last and final settlement of all differences existing between the parties hereto is to be made, it is hereby understood and agreed by and between the said parties as follows: That in the dividing of the hay each party is to have one-half with the understanding that said second party will sell his share of said hay to said first party at #9.00 per ton, providing said first party shall desire to purchase same, and if the same is not purchased by said first party, said second party shall have the right and privilege of removing his share from the said premises any time within thirty days from this date. That in the dividing of the young cattle, the same are to be first paired, namely, two largest put together and the two next in size, etc., and out of this as they are paired off, each party shall alternately have first choice, and said first party is to have first choice of either the first or second pair as he may prefer, and the last one of said young cattle is to be purchased by the party who either gave or accepted larger amount. That in the dividing of the eight large hogs each party is to alternately have his choice of those remaining and the same process of dividing shall apply on smaller pigs, and on last remaining pig party willing to give or take the larger amount shall purchase same, and in dividing the two brood sows said second party will accept smaller one and $3.00 cash, or will take the larger and give that amount. That in dividing the chickens, each party is to alternately have his choice. All straw is to remain on the farm. That in the dividing of the sheep the said first party is to have his choice of ten of the old sheep. The wethers are to be selected by each party alternately and the young ewes are to be divided by each alternately making his choice. Said second party is to then, give the said first party fourteen of said young ewes and to have the privilege of selecting the same out of those he has as above chosen. Said first party is to have his choice of bucks. Said second party is to remove all of his said property excepting hay, within two days after settlement, which settlement is to be made on Friday, March 13th, 1908, or as soon thereafter as roads, help, and weather will permit. It is also understood and agreed by the parties hereto, that when this above property has been so above divided and the said second party has paid unto the said first party the sum of sixty-five dollars and two cents ($65.02) which he is at this time owing said first party, it shall be a full satisfaction of all claims, demands, suit or any other demand whatsoever, manner or nature which either party may have or believe he has against the other arising out of farm lease or otherwise. And further, that said first party shall not further prosecute the suit he has now pending against said second party, in the circuit court in chancery in the county of Livingston, State of Michigan, other than it is agreed by said parties hereto that said court may make this as its final decree.
    “In witness whereof we have hereunto set our hands and seals the day and year first above written.
    [Signed] “ Charles Lamb.
    “ Clyde Lamb.
    “Fred Springs.
    “Signed and sealed in the presence of Nelson Lamb and P. L. Sawyer.”
    No mention of the 28 acres of the rye which had been sown the previous fall and was then growing on defendant’s land was made in this agreement. When the rye was ready to cut the following July, Springs went to defendant’s farm with a binder and attempted to cut it. Defendant prevented his doing so until next day, when Springs returned with six men and two more machines, and cut and shocked the grain. Defendant thereupon drew it into his barn and later threshed and marketed it. It is conceded that he sold one-half of it for $115.50. Numerous demands were made upon defendant by both plaintiff and Springs for one-half of the grain, which were refused. Plaintiff had judgment for $117.66 and defendant has removed the case to this court by writ of error.
   Brooke, J.

(after stating the facts). It is claimed by defendant that a verdict should have been directed in his favor, upon the ground that plaintiff, by his conduct at and before the time the contract (March 12, 1908) was entered into, has estopped himself from setting up any title to the rye in question. This point requires consideration only, if it is determined that Springs by his contract of March 12, 1908, attempted to convey his title to his one-half interest in the grain to defendant.

It is not disputed by defendant that, either under the terms of the lease or of an oral agreement between himself and Springs, Springs owned a one-half interest therein at the time it was sown. Under familiar principles, this right of ownership would carry with it the right to harvest the grain, unless Springs parted with that right. Now, in March, with this 28 acres of rye growing upon defendant’s land, he and Springs enter into an agreement, under which Springs leaves his farm. Springs’ interest in the rye was of much greater value than any other single item on the place, yet no mention is made of it in the contract, while cattle, sheep, hogs, hay, and even chickens are carefully divided and accounted for. Nor does defendant claim that in the adjustment between himself and Springs any credit was allowed to Springs on account of his interest in the grain. He does claim, however, that the general language of the contract, “it shall be a full satisfaction of all claims, demands, suit, or any other demand whatsoever, manner or nature, which either party may have or believe he has against the other arising out of farm lease or otherwise,” clearly indicates that Springs intended (and he, defendant, so understood) to convey his title to the rye to defendant. We have been unable, after a careful reading of the entire record, to reach this conclusion. Defendant himself was not present when the division was made, and the contract executed by Springs. He was represented in the negotiations by his son and an attorney. It seems to us unlikely that the thing of most value which Springs possessed would have been omitted from the contract, if sale thereof had been contemplated by the parties. All those present at the time the contract was made agree that no mention whatever was made of the rye, either by defendant’s agents or by Springs or plaintiff. We conclude therefrom that in the settlement of March 12, 1908, no change in Springs’ title to the rye was intended to be effected. This conclusion renders it unnecessary to consider whether or not error was committed in the charge upon the question of estoppel.

In this court defendant urges that plaintiff should have had recourse to the other property covered by his mortgage before proceeding against defendant for the value of the rye. *

No requests to charge upon this point were preferred, and no error assigned. The question cannot now be raised in this court. Stevenson v. Woltman, 81 Mich. 200 (45 N. W. 825); Roush v. Darmstaetter, 113 Mich. 535 (71 N. W. 867); Cir. Ct. Rule 47 e. We find no prejudicial error.

Judgment affirmed.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.


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    WARD v. CAMPAU.
    1. Trial — Special Questions — Jury—Negligence—Statutes.
    In an action of case for negligently starting an. elevator while decedent was entering, a special question is not a sufficient compliance with 3 Comp. Laws, § 10237, where it involves three separate inquiries either of which may be answered negatively without inconsistency from the general verdict for plaintiff.
    2. Same.
    Complicated questions or those presenting mere questions of evidence, answers to which would not control the verdict, should not be presented to the jury.
    Error to Wayne; Cooper, J., presiding.
    Submitted February 14, 1910.
    ( Docket No. 148.)
    Decided April 1, 1910.
    Case by Herbert E. Ward, administrator of the estate of Eber Ward, deceased, against Daniel J. Campau for personal injuries to plaintiff’s intestate. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Luman W. Goodenough (Thomas A. E. Weadock, of counsel), for appellant.

      Henry G. Nicol (A. B. Hall, of counsel), for appellee.
   Brooke, J.

On February 8, 1908, plaintiff’s decedent was injured in the hallway of the Campau building, owned by defendant, when he was about to take passage upon the elevator. He testified that he was 84 years old, and that as he was entering, and before he was entirely in the car, having one foot and his cane, upon which he was leaning, on the floor of the car, the elevator conductor started the car, while he (the elevator conductor) was facing plaintiff’s decedent, thus throwing him backwards upon the stone floor of the entry way. Plaintiff’s decedent died upon April 28, 1908. The declaration alleges negligent operation of the elevator by an incompetent servant of defendant. The testimony of plaintiff’s decedent was the only evidence upon the question of negligence, offered on behalf of plaintiff. Upon cross-examination, he testified, in part, as follows:

“ Q, Is it not a fact you slipped and fell ?
“A. I did not slip until he caught me, you know, until he raised me before I got in, I fell.
Q. Tell us just how he did that.
“A. I stepped in one foot, and he started the elevator before I got the other in.
Q. And he was looking right at you ?
A. Yes, sir; I think so.
Q. Well, he was facing you ?
“A. Yes, sir.”

The following special question was submitted by counsel for defendant :

“ Did Robert Jacobs, the elevator conductor, start the elevator at the time of the injury and when Captain Ward had one foot and his cane, on which he was leaning, on the elevator floor; Jacobs at that moment, looking directly at Captain Ward ?”

This question was answered in the negative by the jury, but a general verdict was rendered in favor of plaintiff for $2,000. Defendant moved the court to enter judgment in his favor upon the special verdict, notwithstanding the general verdict for plaintiff. This motion was denied, and defendant brings the record here for review upon writ of error.

The sole assignment of error is that the general verdict of the jury is inconsistent with, and not supported by, the special finding of facts, and therefore, that the trial court erred in denying the motion. Section 10287, 3 Comp. Laws, provides:

“Such special questions shall not exceed five in number, and shall be each in single, short sentences, readily answered by yes, or no.”

We are of opinion that the special question, here under consideration, does not comply with the legislative requirement. It is not a single short sentence, readily answered by “Yes” or “No.” It contains at least three propositions.

Did the elevator conductor start the elevator: (1) When Captain Ward had one foot on the elevator floor ? (2) When Captain Ward had his cane, on which he was leaning, on the elevator floor P (3) When the conductor was looking directly at Captain Ward ? If the first of these questions is answered in the affirmative, and the second and third in the negative, the general verdict would still be amply supported. If plaintiff’s deceased, at the moment the elevator was started, was in the aci of entering the elevator — had one foot upon its floor — and was injured by reason of such negligent starting, it makes but little difference, in our opinion, whether or not he, at the same moment, had his cane on the floor of the elevator, or whether or not the conductor was at that moment looking at him. In other words, answers to the last two questions are not controlling of the verdict.

While it is true that the plaintiff’s deceased testified that, at the moment the elevator was started, he had his cane as well as one foot upon its floor, he did not testify positively that the elevator conductor was, at that time, looking at him. This lack of certainty in the evidence upon this point may account for the answer of the jury to the special question. They may have declined to find that the conductor would start the elevator while looking directly at Captain Ward, at the same time believing that he did so start it at a time when Captain Ward had only one foot on its floor, and this is indicated by their general verdict. Complicated questions, such as the one under consideration, should never be presented to the jury. Nor should those presenting mere questions of evidence, answers to which would not be controlling of the verdict, be submitted. In two of its three elements, the question here considered was of such a character. Cousins v. Railway Co., 96 Mich. 386 (56 N. W. 14). See, also, Peer v. Ryan, 54 Mich. 224 (19 N. W. 961); Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78); Burke v. Electric Co., 147 Mich. 172 (110 N. W. 524).

The judgment is affirmed.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.


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    PEOPLE v. SCHOENBERG.
    1. Criminal Law — Intoxicating Liquors — Repeal of Statute-Saving Clause — Effect of Omitting.
    Act No. 291, Pub. Acts 1909, amending specified sections of 2 Comp. Laws, § 5378 et seq., and repealing inconsistent acts, without a clause saving offenses under the previous act, does not have the effect, as to offenses committed under the old law, of repealing the prohibition and penalty for keeping saloons open on Sunday; because the legislative intent was to continue in force the sections applicable, in so far as they were re-enacted and the amendments are not repugnant to the original law.
    2. Statutes — Construction-—Repeal by Implication.
    An interpretation of a statute that must lead to consequences which are mischievous and absurd is inadmissible if the statute is susceptible of another interpretation by which such consequences can be avoided.
    3. Criminal Law — Statutes—Prospective Operation — Intoxicating Liquors.
    The provisions of Act No. 291, Pub. Acts 1909, § 36, providing that two convictions render the liquor dealer ineligible for a license, and amending chapter 138, 2 Comp. Laws, which based such ineligibility on one offense only, are of a prospective character and could have no bearing upon prosecutions pending at the time the amended act took effect; so that a conviction thereafter for an offense under the original act should not be counted as one of the two convictions.
    Error to Muskegon; Sessions, J.
    Submitted February-14, 1910.
    (Docket No. 163.)
    Decided April 1, 1910.
    Charles Schoenberg was convicted of keeping his saloon open on Sunday, and sentenced to imprisonment in the county j ail for 30 days and to pay a fine of $150.
    Affirmed.

      Stephen H. Clink, for appellant.

      Alex. Sutherland, Prosecuting Attorney, and Wallace Foote, Assistant Prosecuting Attorney, for the people.
    On August 23, 1909, an information was filed against respondent, wherein he was charged with keeping his saloon open on Sunday. Being arraigned on that day, he pleaded guilty, but, after a private consultation with the court, was permitted to withdraw that plea, and, standing mute, the court directed a plea of “not guilty” to be entered. On September 20, 1909, respondent was permitted to again plead guilty, and such plea was accepted and ordered entered by the court. On October 18, 1909, respondent was sentenced to 30 days in jail and to pay a fine of $150 and costs, taxed at $30.15. Respondent has removed the case to this court by writ of error.
   Brooke, J.

(after stating the facts). But two assignments of error are urged by respondent:

“(1) The court erred in passing sentence and judgment on respondent, because the present liquor law, so called, of the State of Michigan, which took effect September 1, 1909, being Act No. 391, Pub. Acts 1909, repealed the law that was in force at the time that said offense was committed (Act No. 313, Pub: Acts 1887), as charged in said information, and that said Act No. 391 has no saving clause with reference to offenses committed before said act took effect.
“(3) That the court erred in pronouncing sentence and judgment, because the law, which makes acts charged against your petitioner in said information an offense at the time they were committed, has been repealed, and is not now in force or effect.”

Act No. 391, Pub. Acts 1909, is entitled:

“An act to amend the title and sections one, two, four, five, six, seven, eight and seventeen of Act No. three hundred and thirteen of the Public Acts of eighteen hundred eighty-seven, entitled ‘An act to provide for the taxation and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors, and malt, brewed or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act,’ as amended, said sections being compilers’ sections five thousand three hundred seventy-nine, five thousand three hundred eighty, five thousand three hundred eighty-two, five thousand three hundred eighty-three, five thousand three hundred eighty-four, five thousand three hundred eighty-five, five thousand three hundred eighty-six, and five thousand three hundred ninety-five of the Compiled Laws of eighteen hundred ninety-seven, and to further amend said act by adding five new sections thereto to stand as sections thirty-five, thirty-six, thirty-seven, thirty-eight and thirty-nine.”

The title as amended is as follows:

“ An act to provide for the taxation, licensing and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving or delivering spirituous and intoxicating liquors and malt, brewed or fermented liquors and vinous liquors in this State, and to repeal all acts or parts of acts inconsistent with the provisions of this act.”

This title is identical with the title of the old law governing the liquor traffic, except that the word “licensing” has been inserted in this title. 2 Comp. Laws, chap. 138. Section 7 of the old act (§ 5385) is in part as follows:

“ If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section one of this act, without having paid in full the tax required by this act, and without having the receipt and notice for such tax posted up as required by this act, or without having made, executed and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall be deemed guilty of a misdemeanor, and, upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than two hundred dollars and costs of prosecution, or by imprisonment in the county jail not less than ten days nor more than ninety days, or both such fine and imprisonment in the discretion of the court. And in case such fine and costs shall not have been paid at the time such imprisonment expires, the person serving out such sentence shall be further detained in jail until such fine and costs shall have been fully paid: Provided, That in no case shall the whole term of imprisonment exceed six months. And any person or persons engaged in any business requiring the payment of a tax under section one of this act, who, after paying the tax so required, shall be convicted of a violation of any of the provisions of this act, shall thereby, in. addition to all other penalties prescribed by this act, forfeit the tax so paid by him or them, and be precluded from continuing such business for the remainder of the year or time for which said tax was paid, and be debarred from again engaging in any business requiring the payment of a tax under section one of this act, or from becoming a surety or sureties upon any bond required under section seven of this act, for the period of one year from the time of such conviction.”

Section 7, Act No. 291, Pub. Acts 1909, is in part as follows:

“If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section one of this act, without having his or their application for a license approved and bond approved as provided in this act, and without having paid in full the license fee required by this act, and without having the receipt and license for such tax posted up as required by this act, or without having made, executed and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine of not more than two hundred dollars and costs of prosecution, or by imprisonment in the county jail not less than ten days nor more than ninety days, or both such fine and imprisonment in the discretion of the court. In case such fine and costs shall not have been paid at the time such imprisonment expires, the person serving out such sentence shall be further detained in jail until such fine and costs shall have been fully paid: Provided, That in no case shall the whole term of imprisonment exceed six months. Any person or persons engaged in any business requiring the payment of a license fee under section one of this act, who after paying the license fee so required, shall be a second time convicted of a violation of any of the provisions of this act, shall thereby forfeit entirely the privilege and rights conferred upon such person or persons by the license issued to such person or persons upon payment of the license fee herein required, and during the remainder of the period covered by such license such person or persons shall not carry on the business specified in said license at the place specified in said license.”

Section 17 of each act provides for the closing of saloons at certain hours and upon Sundays. Section 36, Act No. 291, provides:

“ No license shall be issued to any one to engage in the retail liquor business in this State, who has been convicted two times in a court of record of a violation of the liquor laws of the State of Michigan, or any other State after this act takes effect.” etc.

We are asked by respondent to say that, by the passage of Act No. 291, Pub. Acts 1909, sections 7 and 17 of the old law were repealed, and that as the new law contains no saving clause as to prosecutions pending under the old law, all offenses committed under the old law are wiped out. It will be noticed that the old law consisted of 34 sections. Twenty-seven of these were left untouched, 7 sections and the title were amended, and 5 new sections were added. Both the old law and the new have the same object — the regulation of the liquor traffic. The new law, in its title, in terms declares itself to be amendatory only of the title and certain enumerated sections of the old. The sections amended are, in large part, re-enacted. An examination of section 17 of both acts shows that the offense with which respondent stands charged, viz., keeping saloon open on Sunday, is defined in both sections in identical terms. The direct punishment for this offense, as defined in section 7, Act No. 291, is identical with the direct punishment provided in section 7 of the old act. Section 7 of the old act provides for certain results, as to forfeiture, upon a single conviction. Section 7 of the new act makes no provision for forfeiture upon a single conviction, but makes a second conviction ground therefor.

We are clearly of the opinion that it was the legislative purpose to continue in effect the provisions of sections 7 and 17 so far as they were re-enacted, and therefore that there was no necessity for a clause saving prosecutions under the old law. That Act No. 291 repeals such of the old law as is repugnant to its terms is not questioned, but we are unable to discover any repugnancy in those portions of sections 7 and 17, under which respondent is charged and has been sentenced. The contrary view would lead to the astounding result that all those who had been guilty of breaches of provisions of the old law, if not sentenced until after the new law went into effect (September 1, 1909) would entirely escape punishment, although the new law defined the offense in the same terms and provided the same penalty as the old. Common sense prohibits such construction.

“An interpretation of a statute which must lead to consequences which are mischievous and absurd is inadmissible, if the statute is susceptible of another interpretation by which such consequences can be avoided.” 2 Lewis’ Sutherland on Statutory Construction (2d Ed.), § 367.

See, also, Alvord v. Lent, 23 Mich. 369.

A repealing statute, without a saving clause, which substantially re-enacts the law repealed, will not affect pending suits. Merkle v. Township of Bennington, 68 Mich. 133 (35 N. W. 846). See, also, Alexander v. City of Big Rapids, 70 Mich. 224 (38 N. W. 227); Moore v. Township of Kenockee, 75 Mich. 332 (42 N. W. 944, 4 L. R. A. 555); Dennison v. Allen, 106 Mich. 295 (64 N. W. 38); Brady v. Hayward, 114 Mich. 326 (72 N. W. 233).

In Davenport v. Auditor General, 70 Mich. 192 (38 N. W. 211), the court said:

“These provisions of the law of 1882, as to the assessment of property and the board of review, were substantially re-enacted in the tax law of 1885. Therefore this portion of the law of 1882 has never been repealed.”

Crane v. Saginaw Circuit Judge, 111 Mich. 496 (69 N. W. 721). See, also, People v. Kinney, 110 Mich. 97 (67 N. W. 1089).

In Attorney General v. Commissioner of Railroads, 117 Mich. 477 (76 N. W. 69), it was held that, where a subsequent statute covers the whole ground occupied by an earlier statute, it repeals by implication the former statute, though there be no repugnance, citing Shannon v. People, 5 Mich. 85, Roche v. Mayor, etc., of Jersey City, 40 N. J. Law, 257, and other cases. We think, however, that the statute under consideration is, for the reasons pointed out, not of this character.

In Sage v. State, 127 Ind. 15 (26 N. E. 667), it is said:

“ Principle forbids the conclusion that an amendatory statute, defining an offense in substantially the same language as that employed in the statute it amends, takes away the right of the State to prosecute the offender, and requires his unconditional discharge. It cannot be logically affirmed, where the same offense is defined in the same way by both the earlier and the later statute, that there is an interregnum in which there was no law defining the offense. The two acts interfuse and blend so fully and compactly that it is impossible that there can be an interval when there was no law. Between the two acts there is no period of intervening time in which no offense existed. The duration of the statutes was unbroken and continuous, and the crime one and the same. The amendatory act creates no new offense, nor does it absolve an offender from one previously committed” — citing cases.

We have seen that section 36, Act No. 291, provides that two convictions for violation of the liquor laws of the State render a person ineligible for a license, if the convictions are had after the new act takes effect. This provision is, by its terms, prospective in its operation, and could have no' bearing upon prosecutions pending at the time the new statute became law, nor would a conviction, had after the new law took effect, for an offense committed before that time, be a conviction within the meaning of section 36, and thus count as one of the two convictions which would render the offender ineligible for a license. See In re Lambrecht, 137 Mich. 450 (100 N. W. 606).

The conviction is affirmed, and respondent is remanded to serve the sentence imposed.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.


author: Stone, J.

text:
    GALE v. MAYHEW.
    1. Bills and Notes — Assignment—Negotiability.
    A negotiable note which is transferred by writing on the back, ‘ ‘ I hereby assign my interest in this note to---, ” is merely assigned and does not authorize the holder to sue in his own name under the terms of 3 Comp. Laws, § 10054, which affects only assignments of nonnegotiable choses in action.
    2. Same — Negotiable Instruments Law — Qualified Indorsement.
    Nor is the writing equivalent to a qualified indorsement by adding “without recourse” or words of similar import.
    3. Same — Parties—Qualified Indorsee — Statutes.
    An action under a qualified indorsement of a negotiable instrument must, under the statute, be brought in the name of the assignor or indorser. Act No. 265, Pub. Acts 1905; 3 Comp. Laws, § 10054.
    Error to Kent; Perkins, J.
    Submitted February 14, 1910.
    (Docket No. 139.)
    Decided April 1, 1910.
    Assumpsit by William H. Gale against Percy. G. May-hew on a promissory note. A judgment for plaintiff is •reviewed by defendant on writ of error.
    Reversed, and no new trial ordered.

      Kleinhans & Knappen, for appellant.

      Bmedley, Hall & Freeland, for appellee.
   Stone, J.

From appellant’s brief we compile the following statement of the facts in this case: The defendant had for some time prior to November or December, 1907, heen employed by the Grand Rapids Felt Boot Company, ■and while so employed became acquainted with one William R. Pelton. Pelton had been working there for about 20 years as millwright, and part of the time he had charge of the carding and picking rooms. The felt boot company-had failed in May, and it was only a question of time before they would have to suspend operations. Mr. Pelton looked into the cotton felt business with a view to getting capital interested and starting up such business, and also bought some second-hand machines at Seneca Falls, N. Y. Pie and Mr. Mayhew had several conversations beginning with November, 1907, which finally culminated in a somewhat indefinite verbal agreement about January 1, 1908. There is some conflict as to the terms of this agreement; Pelton contending that a partnership was contemplated, in which he was to give his machines at a valuation of $1,500, and that Mayhew was to put in $1,500. Mayhew contends that he would not consider a partnership, and offered to buy the machines, but that Pelton refused to sell them. There was also talk of later forming a corporation, in which case Pelton was to receive $1,500 worth of stock for his machines. Mayhew rented a building, and Pelton’s machines, along with several others of different character, were there installed. Pelton began installing his machines about January 25, 1908, and they were ready to operate somewhere between the latter part of February and the middle of March. While the machines were being set up, Pelton drew wages amounting to $15 a week, and, after the machines began turning out-stock, at the rate of $3 a day. During the time the machines were being installed, Pelton and Mayhew were still negotiating about a partnership and about incorporation. Finally, upon February 22, 1908, the note and agreement herein involved were given. They are as follows, being dated back to February 1, 1908.

“Grand Rapids, Mich., February 1, 1908.
“Twelve months after date, for value received, we promise to pay to the order of William R. Pelton fifteen hundred and no /100 dollars, with interest at six per cent, semi-annually, covering machinery as per agreement of February 1.
“P. G. Mathew Compant, P. G. Mathew.”
“Grand Rapids, Mich.
“Agreement for the sum of $1,500 in the form of a note fer twelve months with sis per cent, interest, payable semi-annually. I, William R. Pelton, have placed in the hands of Percy G. Mayhew three carding machines as delivered for use in the Michigan Felting Company, which shall entitle me, if desired, upon incorporation of this Michigan Felting Company, to fifteen hundred dollars’ worth of shares in said corporation. And I further agree to give my services for the time of sis months from the date of this agreement with the Michigan Felting Company at $3 per day, guaranteed to me upon the commencement of the making of stock.
[Signed] “William R. Pelton.
“Percy G. Mayhew.
“ Dated February 1, 1908.”

There is a conflict of testimony as to just what these papers meant. Pelton claims that they covered an outright purchase of the machines. Mayhew contends that he was simply leasing the machines for a period of one year, and that the note was simply evidence of title, in order to protect Pelton’s machines from fire loss.

About two or three months after Pelton began work, and about May 1st, acting in accordance with his claimed understanding of the agreement, Mayhew asked for the return of the note in question, offering at the same time to turn over to Pelton a number of insurance policies to secure Pelton for the loss of the machines in case of fire. This Pelton refused to do. Pelton continued working under the agreement until his period of sis months, lacking one week, was up. He was, however, paid for the full sis months. At the time they severed their business relations, July 25, 1908, they displayed considerable ill feeling toward each other. The latter part of the following January, Pelton sold the note to the plaintiff. The language by which this note was transferred is:

“I hereby assign my interest in this note to William H. Gale.
[Signed] “W. R. Pelton.”

The consideration for this transfer was $500 cash and an agreement to give Pelton #1,000 worth of stock of the Gale Chair Company. The testimony shows that Pelton did not inform the plaintiff that there was a misunderstanding between himself and Mayhew concerning the note.

The note was not paid and this suit was brought thereon in the Kent circuit court. At the close of the case, defendant made a motion that the court direct a verdict for the defendant, on the ground that the testimony showed that the note was simply assigned to the plaintiff, and that, being a negotiable note, the plaintiff, therefore, could not sue in his own name under the statute. Section 10054, 3 Comp. Laws. The motion was overruled, defendant excepted, the case was submitted to the jury, and a verdict for the plaintiff was returned in the sum of $1,573.75, and judgment was entered thereon.

Counsel for the respective parties agree that the assignment of error raises the single question whether the writing found upon the back of the note was such an indorsement as would enable the plaintiff to bring suit thereon in his own name, or whether it was merely an assignment.

The circuit judge, and in fact counsel for both parties, treated the note as a negotiable note under the negotiable instrument act. In this we think they were correct.

Appellant places reliance largely on the case of Aniba v. Yeomans, 39 Mich. 171, as authority that the plaintiff cannot sue in his own name. It is true that at common law an assignee of a chose in action could not sue in his own name. The statute above referred to gives this right in certain cases, but it expressly excepts negotiable instruments. In the case of such instruments something more than a mere assignment is necessary. There must be a legal indorsement. Was there such in this case ?

Counsel for appellee well say that in Aniba v. Yeomans this court did not hold that a person who receives a negotiable note by virtue of an assignment written on the back of it cannot bring the suit in his own name. That question does not seem to have been raised in the case. What this court did hold was that Yeomans, having received the note by assignment from Ahiba, was not an indorsee of the note, and therefore that he held the note subject to any defense which the makers might have to it in the hands of Aniba. But had the question been raised there, as it is raised here, what would this court have said ? It will be unfortunate if we are compelled to reverse this case upon this question, for the merits of the whole controversy seem to have been tried and submitted to the jury, the same as though Mr. Pelton had been the plaintiff instead of Mr. Gale. This statute, however, has been the law of this State since 1863.

As early as 1872, in the case of Redmond v. Stansbury, 24 Mich. 445, it was held that this statute, permitting an assignee of a chose in action “not negotiable under existing laws ” to sue and recover in his own name, did not apply to a case where the plaintiff simply had possession of a negotiable note payable to another. In that case Mr. Justice Graves said:

“The reasoning is this: That the act of 1863 allows choses in action to be transferred in the same way as chattels ; that this note is a chose in action; and that its possession, like the possession of a horse, was evidence of ownership. The language of the act itself furnishes an explicit answer to this argument. The statute expressly excepted from its operation all papers allowed to be negotiable under the laws as they were before the statute; and the note in suit was of this kind.
“ The plaintiff below could, therefore, derive no aid from the law of 1863, and, as he failed to show himself invested with the legal title through any mode recognized by law, the judgment below should be reversed.”

This statute is again referred to in Waldron v. Harring, 28 Mich. 493.

In Robinson v. Wilkinson, 38 Mich. 299, Susannah Wilkinson brought suit upon a note made by Robinson, and payable to the order of James N. R. Wilkinson. The note was not indorsed, and the plaintiff claimed a right to recover upon it by showing a verbal assignment of it by the payee to herself for value. Mr. Justice Cooley said:

“It is not pretended that such a suit could have been maintained at the common law, but reliance is placed upon the statute which provides that ‘ the assignee of any bond, note or other chose in action, not negotiable under existing laws, which has been or may be hereafter assigned, may sue and recover the same in his own name,’ etc. The view of this statute taken by the plaintiff is that it is intended to confer upon assignees of choses in action the right to maintain suits in their own name in all cases; that while a note in the form of the one before the court is in a certain sense negotiable, yet that it is not fully and for all purposes such until after indorsement by the payee, and is therefore within the intent of this statute, and must be considered not negotiable until it is put in position to pass from hand to hand by mere delivery. And it is said with some force there could be no reason for leaving this particular class of paper subject to the common-law rule which required suit to be brought in the name of the payee, when on all other contracts the assignee is permitted to sue in his own name.
“ The question, however, is one of statutory construction, and not of the sufficiency of the reasons for making the statute what it is. There is no doubt that such paper is ‘ negotiable ’ according to the sense of that word as it is employed in mercantile law. Bills of exchange and notes payable to order or to bearer are equally considered negotiable, though the ceremony of indorsement is required in the one case and not in the other. It is true that paper payable to order and not yet indorsed is sometimes said not to be negotiable until the indorsement is made, but by this is meant only that the indorsement is a necessary ceremony of the process of negotiating it. The term ‘ negotiable ’ is one of classification, and does not of necessity imply anything more than that the paper possesses the negotiable quality.
“ The statute referred to is an enabling statute, and we cannot enlarge it. Probably in enacting it the legislature went as far as it was supposed there was any necessity for going, namely, to provide for cases in which under common-law rules the assignee could not, by the act of the parties, be empowered to sue in his own name. It was not supposable that any similar enactment was needed for the case of negotiable paper, as the mere act of indorsement, which it is customary to perform in assigning such paper, was all that would be needed. Redmond v. Stansbury, 24 Mich. 447.
“We think the court erred in giving judgment for the plaintiff, and that the judgment must be reversed, with costs, and a new trial ordered.”

See, also, the language of Chief Justice Campbell in Matteson v. Morris, 40 Mich. 55.

Spinning v. Sullivan, 48 Mich. 5 (11 N. W. 758), was a suit in equity to correct a note. The note was drawn in proper commercial form, and was made payable to the order of James Sullivan. But no indorsement had been made to the defendant. Whatever title he had obtained was through a separate instrument purporting “to assign, sell, transfer and set over to said Timothy Sullivan, a certain note of Charles Spinning now held by me.” Chief Justice Graves said:

“In case of the assignment of a chose in action not having the attribute of negotiability, the assignee takes it subject to antecedent equities, and the late provision to permit assignees to sue in their own names has not affected the principle. Myers v. Davis, 22 N. Y. 489. But commercial paper having the quality of negotiability is privileged, and such of it as belongs to the class of bills . of exchange and promissory notes may be transferred in such manner as to give the transferee a better right than was possessed by tho party making the transfer. In case the new title is innocent and regular,-the law will protect it against prior equities and leave the latter to independent adjustment. But to have this effect the title must accord with the rules which give the immunity. Because if it doos not, and pursues simply the style and method allowed by the common law in the case of chattels, the right which follows is no greater than would ensue if the paper was devoid of the character of negotiability, and such ownership as there is will be subject to pre-existing equities.
“The title the defendant Timothy sets up is of this kind. The note was transferable by indorsement, and was not transferred in that way, but by assignment. He obtained no title to enable him to sue except in the name of the payee ” — citing the cases above referred to, and, also, Gibson v. Miller, 29 Mich. 355 (18 Am. Rep. 98).

See, also, Brennan v. National Bank, 62 Mich. 347 (28 N. W. 881) ; Minor v. Bewick, 55 Mich. 491 (22 N. W. 12).

This question was before this court in Stevens v. Hannan, 86 Mich. 305 (48 N. W. 951, 24 Am. St. Rep. 125). There the payee of the note transferred it by these words:

“ For value received I hereby assign all interest in and to this note to Ralph E. Watson.”

Watson transferred it in turn to the plaintiff, for value, before maturity, by writing his name on the back and delivering it to him. The defendant there insisted that the plaintiff could not sue in his own name, but should have brought suit in the name of the payee. Upon that branch of the case, Mr. Justice McGrath said:

“ I do not think that the point is well taken. If the effect of Batchelder’s indorsement was to make the note thereafter nonnegotiable, then the assignment from Watson to plaintiff entitled plaintiff to sue in his own name, under the statute, and, if Batchelder’s indorsement did not affect its negotiability, then Watson’s indorsement entitled plaintiff, as holder of the note, to sue in his own name.”

This case is easily distinguished from the case we are considering. Had Mr. Gale before maturity, and for value, transferred the note in question by writing his name on the back, and delivering it- to an indorsee, we should have another question before us.

It is said that the circuit judge relied for his course upon the case of Markey v. Corey, 108 Mich. 184 (66 N. W. 493, 36 L. R. A. 117, 62 Am. St. Rep. 698). In that case the note sued upon was indorsed:

“ I hereby assign the within note to Matthew M. Markey and Catherine Sundars.”

The point was urged there by the defendant that, if the plaintiffs took title to the note, it was under the assignment, and that therefore they could not sue in their own names; but, if they had a right of action, it must be brought in the name of the original party to the contract. It is well that we bear in mind the difference in the language of the assignment in the case we are considering, and that in the above case. In this case it was:

“ I hereby assign my interest in this note to Wm. H. Gale.”

In the above case it was:

“I hereby assign the within note.”

Mr. Justice Long, in the above case, after discussing the matter at some length, said:

“The language used in the assignment to the note in suit does not negative the implication of the legal liability of the assignor as indorser, and as the words are to be construed, as strongly as their sense will allow, against the assignor, he must be held as indorser.”

Then, after quoting the language of the assignment in Aniba v. Yeomans and the language of Mr. Justice Marston in that case, he continues:

“In other words, the learned justice seemed to think that the words used limited the transfer to the right and title he then held. While this holding appears to be at variance with the cases elsewhere, we think it readily distinguishable from the present, as here the words are, I hereby assign the within note,’etc., and do not purport to limit the liability of Corey as an indorser.”

We think that the learned circuit judge was in error in relying upon the case of Markey v. Corey.

But it is urged by counsel for appellee that the old rule has been abrogated by section 40 of the negotiable instrument law (Act No. 265, Pub. Acts 1905), which was adopted in this State before the note in question was made. That provision reads as follows:

“A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser’s signature the words * without recourse,’ or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument.”

We have two answers to the above claim:

First, that it was held by this court as early as Borden v. Clark, 26 Mich. 410, that the fact that the vendor of a promissory note indorsed it “without recourse” has no tendency to show that his vendee is not a bona fide purchaser. Nor would the addition of words of “similar import ” make any difference. So it is clear that this statute has not changed the rule in this State in that respect. It cannot be said that the words used in the case we are considering were equivalent to an indorsement without recourse.

Second. The statute above quoted expressly provides that “a qualified indorsement constitutes the indorser a mere assignor of the title to the instrument.” Here again we are confronted with section 10054, 3 Comp. Laws, which holds that the assignee of a negotiable note cannot sue in his own name. So, whether the negotiable character of this instrument is impaired or not by the assignment, we cannot abrogate this statute, which has been the law of this State nearly 50 years, and has been repeatedly interpreted and cited by this court. That the legislature might wisely repeal it is another matter.

We feel compelled, therefore, to reverse the judgment below, without a new trial.

Hooker, Moore, McAlvat, and Brooke, JJ., concurred.


text:
    KROLIK v. SAULT SAVINGS BANK. PECK v. SAME. THOMAS BRIGGS SHOE CO. v. SAME.
    Fraudulent Conveyances — Preferences — Garnishment — Debtor and Creditor.
    It is no fraud upon creditors if the wife of one partner of a firm which is largely indebted prefers one of the creditors by giving a mortgage upon her property to secure the debt, and the proceeds of property do not, after sale, thereby become assets of the firm, or subject to garnishment by its creditors, even although settlement is made by the firm with other creditors at fifty cents on the dollar, upon false representations that the other creditors have accepted an equal proportion.
    Error to Chippewa; Shepherd, J., presiding.
    Submitted February 17, 1910.
    (Docket Nos. 57-60.)
    Decided April 1, 1910.
    Rehearing denied May 7, 1910.
    Garnishment proceedings by Herman Krolik and others, copartners as A. Krolik & Co., by Wilbur S. Peck and others, copartners as W. S. Peck & Co., and by the Thomas Briggs Shoe Company, against the Sault Savings Bank, garnishee of Cyrus W. Baldwin and Paul J. Besner, copartners as Baldwin & Besner. A judgment for plaintiffs is reviewed by garnishee defendant on writ of error.
    Reversed.

      Warner & Sullivan (John H. Goff, of counsel), for appellant.

      Bernard B. Selling and Francis T. McDonald, for appellees Herman Krolik and others, and the Thomas Briggs Shoe Co.

      Davidson & Hudson, for appellees Wilbur S. Peck and others.
   Brooke, J.

The four cases were heard as one before the trial judge, who made findings of fact and of law. He decided there was $4,000 liable to garnishment in these proceedings. The case is brought here by writ of error.

The statements of facts are presented in great detail by counsel in their briefs, and many interesting questions of law are presented. We shall state only sufficient to indicate what we think must be done with the eases. Prior to October 29, 1906, the firm of Baldwin & Besner was indebted to the defendant bank in the sum of $8,000. At about this time the firm was in greatly embarrassed circumstances owing its other creditors large sums of money. It sought to settle with its creditors for 50 cents on the dollar.

We quote from the brief of counsel for appellees:

“On October 29, 1906, Mr. Weaver sent for Cyrus W. Baldwin, and persuaded him to have Mrs. Baldwin execute to Mr. Weaver a mortgage for $4,000 on Mrs. Baldwin’s homestead. The mortgage bears date October 29, 1906, was acknowledged November 1, 1906, and was recorded upon the same day. On November 1, 1906, Mr. Weaver assigned this mortgage to the Sault Savings Bank; the assignment being recorded in the office of the register of deeds November 2, 1906. Mr. Weaver claims that upon the execution of this mortgage the $4,000 in notes of Baldwin & Besner bearing his indorsement were transferred by the bank to Mrs. Baldwin without recourse against the bank or indorsers, and that she immediately, or shortly thereafter, indorsed the notes over to Mr. Weaver, who still holds them; Mr. Weaver claiming that he is holding them simply for collection for Mrs. Baldwin.
“In the meantime Mr. Besner who had no knowledge of this transaction between Mr. Baldwin, Mrs. Baldwin, Mr. Weaver, and the Sault Savings Bank, but expecting, nevertheless, to pay the bank up in full, went to see his creditors. He first called upon Mr. Peck of W. S. Peck & Co., his largest merchandise creditor, showing the statement of liabilities referred to, in which the Sault Savings Bank appeared as a creditor to the amount of $8,000. He asked Mr. Peck to settle on the basis of 50 cents on the dollar, telling him that the Sault Savings Bank would do likewise. He told him that, if they would give him a chance to wiggle out, he would pay them in full later. This same statement was made to his creditors generally. Mr. Peck consented to settle and signed a memorandum reading as follows:
“ ‘ November 1, 1906.
‘“Messrs. Baldwin & Besner,
“ ‘Sault Ste. Marie, Michigan.
‘Dear Sirs: After examining your liabilities and your assets and the information obtained through you and through others we have decided to accept your settlement of fifty cents on the dollar cash, provided other creditors accept the same.
“ ‘Respectfully yours,
“ ‘ W. S. Peok & Co.’
“Mr. Besner went from Syracuse direct to Chicago to see the Chicago creditors, and arrived in Chicago November 2, 1906. He went to see one of the larger creditors, Keith Bros. The general manager of Keith Bros said to Besner:
“ ‘ If I were you, I would telegraph to your bank before I saw another creditor. They don’t all know you as well as I do.’
“Mr. Besner thereupon telegraphed to the Sault Savings Bank, asking Mr. Weaver to verify his statement that he would take 50 cents on the dollar with the balance of the creditors. The reply of the bank to this telegram was received at Chicago at 11:52 a. m., November 2, 1906, and was as follows:
“ ‘ Sault Ste. Marie, Mioh., Nov. 2, ’06.
“ ‘ Paul J. Besner,
“ ‘ Care of Keith Brothers,
“ ‘ Chicago, Illinois.
“ ‘ Believe you have been square. Local conditions are against you. Think fifty cents on the dollar more than can ,be realized any other way so will accept with regret.
“ ‘Sault Savings Bank.’
“It will be noted that this telegram was received in Chicago less than an hour after the Sault Savings Bank had put on record the assignment of the $4,000 mortgage from Mrs. Baldwin. Mr. Besner showed this telegram to Keith Bros, and attached it to his agreement of acceptance, which was being signed by the creditors. It was shown to all of the creditors who accepted except Peck & Co., who had signed ahead of Keith Bros.”

It is claimed by the creditors represented in these proceedings that the bank concealed the fact that Mrs. Baldwin had secured the payment of $4,000 of debts, and that the creditors were defrauded by this concealment. The bank claims that some of the creditors had secret agreements for full payment. The result of what was done was that Baldwin & Besner resumed business. New debts were made. We now quote from the brief of counsel for appellant:

“December 14, 1906, after receipt from most of the creditors of acceptances of the proposed settlement, Baldwin & Besner borrowed from the Sault Savings Bank $7,000, with which the accepting creditors were paid 50 per cent., and gave said bank a chattel mortgage for $11,000 to cover that loan and 50 per cent, of the original $8,000 indebtedness. This chattel mortgage was duly filed and properly renewed.
“After the chattel mortgage was given, and while it was on file, Krolik & Co. and W. S. Peck & Co. sold new merchandise to Baldwin & Besner on credit, and the Thomas Briggs Shoe Company, which was not a creditor when the chattel mortgage was given, also sold them merchandise, and it is upon these accounts and the note to Krolik & Co. that judgments have been rendered against the principal defendant in these cases.
“ In December, 1907, Baldwin & Besner hired a Chicago party to conduct a special sale for them. They had paid nothing upon the chattel mortgage and had accumulated a new indebtedness of over $6,000. The bank, not wishing to see its security depleted, arranged with Mr. Besner to have the proceeds of that sale, amounting to $4,243, after the payment of running expenses and some small items for new merchandise, applied upon its mortgage, leaving a balance due upon the mortgage of $7,394.70.
“On December 26, 1907, the bank took possession of the remaining assets of Baldwin & Besner under its chattel mortgage, and on the 28th of December advertised the same to be sold January 3d, 1908, at which time all the assets covered by the mortgage were sold at public auction for $8,050. The bank paid the expenses of the sale and the amount of its mortgage with the proceeds of the sale, and admits a balance in its hands of $689.86, subject to the claim of Baldwin & Besner to exemptions.
“In June, 1908, Elizabeth Baldwin, wife of Cyrus Baldwin, deeded to Milvern J. Weaver the property upon which she had given him the $4,000 mortgage on October 29, 1906; Weaver assuming and agreeing to pay that mortgage and another mortgage given to the bank a long time previous thereto and paying the difference in cash to Mrs. Baldwin.
'“ Krolik & Co. immediately after the chattel mortgage sale commenced two suits, the first upon the note and the second upon the open account, followed by the Thomas Briggs Shoe Co. and W. S. Peck & Co., in the order named, and the eases were tried together under stipulation before the court without a jury, who found the chattel mortgage void as to the $4,000, and rendered judgment against the garnishee defendant in all the cases.”

As already intimated, it will not be necessary to discuss the many questions presented by the record. Neither Baldwin & Besner nor the creditors of that firm had any claim upon the property of Mrs. Baldwin. If she saw fit to devote a portion of it to pay the debts of a firm of which her husband was a member, she had a right to do so, and she also had a right to select the creditor to whom she should turn over the property, and the other creditors had no right to complain of her action when she did so. It was no fraud upon them for her to do so. When the payment was made, it did not become assets of the firm, which could be made available by process of garnishment, or otherwise, for the payment of the creditors of the firm. It was a transaction between Mrs. Baldwin, the firm, and the bank into which the other creditors had no right to go. The fund thus paid over was not subject to garnishment.

The judgment is reversed.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.