author: Grant, J.

text:
    Thomas B. Rayl et al. v. The Estate of George H. Hammond, Deceased.
    [See 75 Mich. 1.]

      Settlement — Bes judicata — Laches
    Where parties have agreed to a settlement of an existing lawsuit, and 'put it in writing, and signed it, such arrangement must ’ stand until set aside for such fraud as should vitiate it, upon a rescission attempted as soon as practicable after the fraud is known, and with no lack of diligence in discovering it; citing Lewless v. Bailway Co., 65 Mich. 292.
    Error to Wayne. (Brevoort, J.) Argued March 8, 1894. Decided April 17, 1894.
    Appeal from the disallowance of a claim against the defendant estate. Claimants bring error.
    Affirmed.
    The facts are stated in the opinion.

      Corliss, Andrus & Leete (.Alfred Bussell, of counsel), for appellants.

      George B. Lothrop and Don M. Dickinson, for defendant.
   Grant, J.

The facts upon which the court below directed a verdict for the defendant are undisputed, so that the question now before us is one of iaw. These facts, and the history of the transactions previous to the filing of this claim in the probate court against the estate of George H. Hammond, are summarized in the brief of one of the learned counsel for the defendant, and are substantially as follows:

1. June 16, 1868, William Davis was granted a United States patent on an improved refrigerator car, for the presei-vation of meats and perishable articles while in transportation. Samuel H. and David W. Davis, his sons, were interested with him; and, after his death, Thomas B. Rayl became also interested. These are the claimants here, — Samuel H. Davis, David W. Davis, and Thomas B. Rayl.
2. July 1, 1869, these claimants made a contract with George H. Hammond and Caleb Ives. The latter, by such contract, were granted an undivided five-sixths interest in said patent, for certain purposes. Hammond and Ives agreed to furnish all the necessary capital, and to engage in the business of manufacturing, for the use and benefit of the parties thereto, and running upon railroads in the United States, refrigerator cars, to be made according to the description of said invention and improvement contained in the schedule attached to said letters patent, in purchasing and transporting in such cars, and in selling, in fit markets, fresh meats, and other articles that could be profitably conveyed therein, and should keep accurate books of account of all receipts and expenses of the business, which books were to Be open at all times to the inspection of all parties. Settlements were to be made every six months, upon which settlements profits were to be divided, and one-sixth paid to claimants, and five-sixths to belong to Hammond and Ives. The loss, if any, every six months, was to be borne wholly by Hammond and Ives. Neither party was to assign or transfer any interest in the contract, except by consent of the others.
8. Marsh 8, 1872, a supplemental contract was made, by which Hammond and Ives were authorized to make agreements with railroad companies to run refrigerator cars at a rate not less than 10 cents per 100 pounds for the freight conveyed in such cars, to be paid by the parties using the cars, of which receipts the said Hammond and Ives would keep a true account, the same to be divided as under the terms of the original contract.
4. Under these contracts, Hammond and Ives commenced business at Hammond, Ind., associating themselves with Plummer and Towle. They built a large packing establishment there, where they purchased cattle and other animals, killed them, and transported the meat east in the refrigerator cars.
5. March 5, 1877, claimants sold their one-sixth interest, for §30,000, to Hammond and Ives, and ^canceled the first contract, and gave receipts in full for all claims against the business.
6. While the business was being conducted, and before the sale, the claimants were paid $38,436.40 as their share of the profits.
7. In a proceeding by one Buttrick, as assignee of Caleb Ives, bankrupt, against Hammond and Towle, in the United States circuit court f©r the eastern district of Michigan, one Richard Tregaskis, an expert accountant, was employed to examine the books of the business of Hammond & Ives. He made this examination in November and December, 1878, and made known fully such examination to Buttrick, and gave him a memorandum of his discoveries. Theodore Romeyn was the attorney for Buttrick. Tregaskis was examined by Romeyn in his office in 1878 as to the information that he obtained from the books, and handed his memoranda to Buttrick in Romeyn’s office, and made a full statement to them. All the information he had on this trial, he had then.
8. Romeyn sent for David W. Davis, and told him that he had parties going through Hammond’s books, and that, he had found large discrepancies, and thought there was a chance for Davis to recover some money there. •
9. After this talk between Romeyn and David W. Davis, the claimants made a contract with Romeyn, in which' it was set forth that claimants considered that, in the settlement with Hammond & Co., there were “omissions and mistakes, if not positive fraud; that they did not receive their proper share of the profits,” and “that at the time of the sale of their interest in the patent there was a large amount due to them for profits from the 1st day of December, 1876, which had never been allowed;” and “that they are entitled to a share or interest in the accumulations of said firm, which has never been credited to them as profits. They further consider that the receipt given by them was without consideration, and founded on misapprehension, and that it was, in law, fraudulent.” By this contract they employed Romeyn as attorney to sue and prosecute their demands in the premises against Hammond and others, and agreed to pay him one-half that he might recover, he to bear costs and expenses. It contained the following clause:
“The tribunals, modes of prosecution, and terms of adjustment and settlement, if 'any, are left to his discretion, but no final settlement shall be made without the consent of the parties of the first part. Said first parties assume no responsibilities in the premises, excepting that they will give their testimony, and such information as may be in their power.”
Another agreement was made by David W. Davis, who had been adjudged bankrupt, in which Davis agreed to get the consent of Corliss, his assignee, to unite in the suit on behalf of Davis. What was received, and going to Davis, was to be disposed of as follows: Fifty dollars to Corliss; then the creditors to be paid the balance; if anything was left after creditors were paid, it was to be divided equally between Romeyn and Davis. The first contract was signed by Samuel H. Davis and Thomas B. Rayl.
10. Samuel H. Davis testified that he knew nothing of these discoveries upon the books until 1886, except the information communicated to him by his brother and Mr. Rayl. Rayl testified that he had no knowledge of the books, nor any knowledge of the claim as appearing on the books; knew nothing about the claim, excepting what Romeyn had told him. He does not testify what Romeyn told him.
11. In December, 1879, a bill in chancery was filed in the superior court of Detroit by Samuel H. Davis, Thomas B. Rayl, and ■John B. Corliss, assignee, against George H. Hammond, Marcus M. Towle, and Frank Buttrick, assignee of Ives, in which bill they charged Hammond with unlawfully crediting himself with a large salary, and 'with charges of interest against the business; that they did not receive their share of the profits; that the accounts kept upon the books were fraudulent; that they were entitled to the profits made in a certain hog and offal account, which had been divided among the other members of the firm; that there was ■an omission in the account of property on hand of sixty or seventy thousand dollars, to wit, an account against a Chicago firm, which was charged up as a loss against the business when the sale was made, in March, 1877, and. afterwards credited to Hammond, Ives, and Towle, thus depriving claimants of their share, — one-sixth of such amount; that they believed that large profits were due to them on the 5th day of March, 1877, at the time of the sale and settlement, which had never been accounted for, and that Hammond stated to David W. Davis at that time that no profits had been made; that they were not informed of such mistakes, omissions, and misstatements in accounts furnished to them until a few weeks before filing the bill; that, as they were informed and believed, the property at Hammond — cars, beef, cattle, and hogs —had been purchased out of the property of the firm, and that they were entitled to one-sixth of the same, March 5, 1877; that large amounts -of property were at Detroit, — slaughter-houses, and other buildings belonging to said firm, — of which they were entitled to their share; that the receipts given by them, releasing all claims against Hammond & Co., were procured by fraud and' misrepresentation, and without consideration; on information and belief, that drawbacks on regular rates were allowed by the Blue Line Transportation Company to a very large amount, reaching tens of thousands of dollars, which should have been entered upon the books, of which claimants should have had their one-sixtli share. This bill prayed for a full accounting as to all these matters, and the whole business carried on by Hammond & Co., and a decree for the amount found to be due to the complainants, and for general relief.
12. September 18, 1880, this suit was settled and discontinued, and an agreement of settlement entered, signed by David W. Davis and his assignee, Corliss, and Thomas B. Rayl; and the said Rayl, as attorney in fact, signed the name of S. H. Davis. This instrument acknowledged “full and complete satisfaction and settlement of all and every of the matters in controversy in said suit in said superior court, and of all rights, claims, or demands against the firms of Hammond & Ives, Hammond, Plummer & Co., and Geo. H. Hammond & Co., and of any and all property and effects of said firms, or either of them, or interests therein, and do hereby release the said second parties and said firms, and each of them, from any and all claims and demands involved in said suit, or arising out of matters therein.” David W. Davis, Thomas B. Rayl, and Theodore Romeyn also executed separate papers, guaranteeing to George H. Hammond the fulfillment of said contract.
13. On the same day, and as a part of this settlement, Hammond and the claimants entered into another contract, in which it was agreed as follows in reference to a suit then pending in the United States circuit court for the district of Massachusetts to-recover damages for the infringement of the patent of 1868:
“ Now, in case it shall be decreed by said circuit court that the-, said letters patent so granted on the 16th day of June, 1868, and re-issued on the 15th day of September, 1868, as above set forth, are valid, then, upon such final decree being rendered in said circuit court sustaining the validity of said patent upon the third and fourth claims thereunder, and without reference to exceptions or appeal to or from the decree or judgment of said court to the Supreme Court of the United States, or in case said first party shall make a settlement of the matters in said suit without proceeding to final decree, the said party of the first part shall pay to the parties of the second part, their executors, administrators, or assigns, the full sum of ten thousand dollars, for the use and benefit of themselves, or their representatives or assigns.”
14. In July, 1886, Tregaskis told S. H. Davis of different accounts he had taken off of the books of Hammond, as the result of his examination in 1878; told him of the Tillinghast account, “and of the various items that ought to belong to us that we did not get.”
15. In August, 1886, David W. Davis, for himself, and as assignee of S. H. Davis and Rayl, brought suit in the Wayne circuit court to recover this $10,000. In his declaration he averred that the consideration of the promise to pay this $10,000 was the settlement of all the matters in the superior court suit, and the release of all claims against Hammond & Co., and in further consideration of the promises of the plaintiff and his assignors that they would furnish such testimony as would be necessary to establish the claims and rights of Hammond in the patent. The cause was tried upon that theory, and judgment obtained in the circuit court, and affirmed in this Court. Davis v. Hammond, 75 Mich. 1, 4, 5. Davis received the proceeds of said judgment, and has not tendered the same, or any other moneys received on these settlements, to Hammond, or his estate. Rayl received his share, and has kept it.
16. Hammond died in December, 1886. Romeyn died before the commencement of the present suit, but the date of his death does not appear.
17. After Hammond’s death the Davises and Rayl filed their claims against the estate of Hammond for $250,000, by reason of fraudulent concealment of the profits'of the business of Hammond & Co., arising from the contract relations between the parties, which the claimants were induced to settle by the fraudulent representations and concealments of the profits of the business by said deceased.

That there may be no doubt as to what was involved in the suit against Hammond (75 Mich. 1), we quote the following language from pages 3 and 4 of the opinion:

“The suit is brought against the defendants as administrators of George H. Hammond, now deceased, and was tried in the circuit court for the county of Wayne, upon the theory that the consideration of Hammond’s promise, in said agreement was the discontinuance of the suit in the superior court, and the settlement of all claims and demands against Hammond and the firms with which he was connected, and also the further consideration that Rayl and the Davises would render all service in their power to secure and furnish such testimony as might be necessary to establish the rights and claims of Hammond to the letters patent, and the damages for infringement thereof in said fBoston suit;’ that the Davises and Rayl performed their part of the agreement in every respect, and thereby Hammond received the full benefit of the consideration upon which his promise was based; that Hammond settled the 'Boston suit/ and then permitted it to be dismissed for want of prosecution, whereby, under his said promise and agreement, he became liable to the plaintiff and his assignors for the full sum of $10,000, which he refused to pay.”

The same attorneys who brought this suit, and now appear for the claimants, were also the attorneys for the plaintiff in that suit. Mr. Samuel H. Davis admits that in July, before that suit was brought, Mr. Tregaskis informed him of the different accounts which he had taken from the books of Hammond & Co. in 1878, including the Tillinghast account. It is impossible to reach any other conclusion than that the claimants were then fully aware of all the claims which they now make, and that that suit was based and contested upon the theory that there had been a complete settlement of all their differences. Plaintiff recovered judgment for the full amount, with interest, which was paid; and claimants compromised with Romeyn for one-fourth of the amount recovered, instead of one-half, according to the original contract. They thereby ratified the settlement, and it became res judicata.

But there is a further complete answer to the present suit. When it was discovered, in 1878, that claimants had not received all to which they were entitled, and this information was conveyed to them by Mr. Romeyn, they stipulated in their contract with him that he should associate with him, in the litigation, Hon. C. I. Walker, a distinguished attorney of Detroit, which was done. Mr. Tregaskis placed before Mr. Romeyn all the information, and a statement of the accounts, which he had obtained from the books of Hammond & Co. Mr. D. W. Davis then knew of the examination made by Tregaskis, and that the chancery suit which followed was ■ based upon that examination. While he is now quite forgetful, it is apparent that Mr. Romeyn fully informed him of the claims. He testified:

“The conversation with Mr. Romeyn was about several matters. There are one or two things that I remember. That is what is called the Hog and Offal Account' at Hammond, Ind., and one or two other little things that I do not remember of now; but he said it amounted to several hundred thousand dollars due us.”

With the information thus obtained' before them, a bill in chancery, for an accounting, was filed, signed by Samuel H. Davis, Thomas B. Rayl, and John B. Corliss, assignee in bankruptcy of David W. Davis, with C. I. Walker as solicitor. The bill is lengthy, and sets forth in detail all the claims which are now filed against the estate of Hammond. The complainants in that suit were not tricked into signing the bill, and are chargeable with «knowledge of the statements therein made. Under this situation, with notice of the alleged fraud; with a bill filed, charging the specific items of mistake and fraud; with the books of Hammond & Co , at their disposal, for examination; with the opportunity to investigate and ascertain fully the extent of the mistake and fraud; with an expert accountant and a willing witness at their disposal, who had examined the books, from which he had obtained all the information he now. has, — they deliberately, and after several weeks of consideration, enter into the contract of settlement set forth in paragraph 12 of the statement of facts. Mr. Rayl, Mr. D. W. Davis, Mr. Romeyn, and Mr. Hammond were present when the settlement was made. There was no testimony received' or offered tending to show any fraud, misrepresentation, or concealment on the part of Hammond & Co. in making this settlement. It is therefore conclusive, and binding upon all the parties to it.

The language of this Court in Lewless v. Railway Co., 65 Mich. 292, is very applicable to the present case:

Where parties have agreed to a settlement of an existing lawsuit, and put it in writing, and signed it, such arrangement must stand until set aside for such fraud as should vitiate it, upon a rescission attempted as soon as practicable after the fraud is known, and with no lack of diligence in discovering it."

After the lapse of 10 years, and after death has closed the mouths of Hammond and Romeyn, after a deliberate settlement, and .after a solemn ratification of that settle.ment in another suit, these, claimants present the same claim against the Hammond estate, based upon the alleged original fraud. We think there is no authority or reason for reopening the claim.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    Henry A. Smith and John Q. Adams v. The Michigan Central Railroad Company.

      Carriers — Live stock — Death from want of care — Liability of bailee — Contract—Pleading.
    1. Where a railroad company accepts horses for shipment over its road under a contract which provides that they are to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner, and at his expense and risk, the company, as a bailee for hire, having control of the cars in which the horses are placed, is bound at least to furnish the shipper an opportunity to give the animals the care which they may require.
    2. The provision that “ the stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while m the cars, by the shipper or owner,” does not mean that the duty is to be performed by-the shipper while the train is in motion, and without being afforded an opportunity by the company to perform it, but, if said provision should be given any force, it creates a very fair inference that the company will afford the shipper the opportunity to perform the duty which it has seen fit to impose upon him.
    3. The fact that the declaration in a suit by the shipper to recover the value of one of the horses, which he claims died by reason of want of care, feeding, and watering, charges both delay in transporting the horses, and failure to furnish the shipper an opportunity for feeding and watering them, will not warrant the contention that, as neither of said causes would alone have occasioned the death of the horse, it is necessary for the plaintiff, not only to prove both, but to show that the defendant omitted to perform its duty to the plaintiff in both particulars, and therefore, if there is no liability on its part for delay of trains, that one of the essential elements of the proximate cause of the death of the horse cannot be charged against the defendant, and the case must fail.
    Error to Saginaw. (Gage, J.) Submitted on briefs March 8, 1894. Decided April 17, 1894.
    Case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      HancheM, Starh é Hanchett, for appellant,
    contended:
    1. The plaintiffs sought to charge the defendant with the performance of the duties of a common carrier, and in making their proofs they ignored the contract which was actually made, and which defined the rights and duties of the parties, and proved merely the delivery of the stock to the defendant, claiming that an implied contract thereby arose by which the defendant assumed the duties and liabilities mentioned in the declaration, — in other words, the duties and liabilities of a common carrier of live stock. ■ No proof was offered by the plaintiffs that the defendant was a common carrier of live stock. Until this had been proved, the mere delivery of the horses by the plaintiffs to the defendant did not create the relationship of shipper and common carrier; citing Railroad Co. v. PerJcins, 25 Mich. 329, 333; and the fact that defendant carried live stock for all persons applying for such service, under certain terms and qualifications of .liability, does not make it a common carrier of live stock; citing Railroad Co. v. McDonough, 21 Mich. 165, 197.

      2. Under the declaration, the burden was on the plaintiffs to prove that the defendant received these horses for shipment under such circumstances and conditions that the law would imply the assumption by the defendant of the duties declared upon, viz., that it would carry the horses safely, without unreasonable delay, would give them such attention as was necessary during transit, and would deliver them in good condition to the plaintiffs at their destination; citing Railroad Co. v. McDonough, 21 Mich. 165, 188, 204; Railroad Co. v. Perkins, 25 Id. 333-835.
    3. If a defendant is alleged and proved to be a common carrier, the law itself supplies proof of the contract, so far as regards the extent or degree of his liability, but, if he is not a common carrier, the terms of his undertaking must be proved by the plaintiff; aud in either case, where there is an express contract, that alone must be relied on, and no other can be implied; citing 2 Greenl. Ev. § 210.

      Frank E. Emerick, for plaintiffs.'
   Montgomery, J.

This is an action on the case. The declaration alleges that the defendant accepted from plaintiffs 15 horses to be transported for hire and reward from G-aylord to Saginaw; that it became the duty of the defendant to take due and prop'er care of the same, and carry and convey the same with reasonable safety and dispatch, and to safely and securely and without unnecessary delay deliver the horses at the city of Saginaw; that defendant neglected its duty; that it left the car conveying the horses on the side track of defendant’s railway at West Bay City, from 1 o’clock in the morning until 10 o’clock in the forenoon; that the said plaintiffs, on discovering that the defendant intended leaving the car standing on the said side track for said length of time, requested the defendant to move the car to a place in defendant’s grounds where the horses could be fed, watered, and cared for, and, if necessary, temporarily removed from said car; and that defendant refused and neglected to do so, or to permit said horses to be fed, watered, and cared for, or to feed, water, and care for said horses, or to allow said horses to be taken out of said car, and, without cause or reason therefor, caused said car, with said horses therein, exposed and uncared for, to stand and remain said unreasonable period at said West Bay City.

The evidence adduced on the trial showed that the horses were shipped from Gaylord, after having been properly fed and cared for, on the 29th of April; that they were placed in the car in good condition; that the car was loaded at 9 o’clock in the morning, and, if the trains had been running on their regular time, would have reached Saginaw at 9 o’clock in the evening of the 29th. But the train to which the car was attached missed its connection at Gray-ling, so that it did not reach West Bay City until 1 o’clock A. m. of April 30. It was there sidetracked and remained at West Bay City until 12:35 p. m. of the 30th, when it was attached to a freight train, and taken to its destination, arriving at Saginaw at 1:55 p. m. The plaintiffs offered testimony tending to show that, upon the arrival of the car at West Bay City, John Welsh, an employé of the plaintiffs, in charge of the stock, went to the office of the yard-master, and was told that the horses would be sent forward to Saginaw in about an hour; that, at the expiration of the hour, Mr. Welsh again inquired of the yard-master, and was then informed that the car could not go out until the regular train, which left about 11 o’clock in the forenoon; that Welsh then told him that the horses had been in the car about 24 hours without food or water, and asked the yard-master if there was any place he could feed and water them; that the yard-master replied, “ There is water down the track there,” and Welsh replied that he could not carry the water and water them in the car, and' requested the yard-master to move them down to where the water was. The plaintiffs also offered testimony tending to show that there would not be room in the car for the man to get in to water the horses, and that there was no way of watering and feeding them without taking them from the car; that there was no platform or shute at the place where the car was left upon which the horses could be removed from the car, although there was a platform with inclined plank at the freight depot near by in the yard, for the purpose of unloading and loading horses:

The evidence showed that, at the time the cars were •shipped, the contract was signed by the plaintiffs’ agent, which provided that—

The said Michigan Central Kailroad Company shall not be liable for any loss or damage which the shipper or •owner of said live stock may suffer by reason of delay of trains, or by escape or loss of any stock from cars, or by reason of injuries to animals arising from the bruising or wounding themselves or each other, or from crowding in the cars, or from improper loading, or by reason of any loss or damage arising in the loading or unloading of said .stock, or by reason of any other injuries or damage happening to said stock while in the cars of said company, •except such as may arise from a collision of the train or the throwing of the cars from the track during transportation, and shall in no case be responsible for an amount •exceeding $100 for each or any animal transported. Said .stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner, :and at his expense and risk. No liability of said company •shall extend beyond its own line of road.”

Plaintiffs also offered testimony tending to show that, ■because of the neglect and want of care, one of the horses •died shortly after being received at Saginaw, and that $16 was paid to a physician for caring for the horses because •of their condition, induced by the alleged negligence of the defendant. Under the instructions hereinafter referred to, the plaintiffs recovered a verdict for $100, the value ■of the horse that died, and for $16, paid to a physician .in caring for the injured animals.

The defendant brings error, and alleges, first, that the •declaration is defective, in that it does not correctly state the relationship of the parties and the duties devolving upon the defendant fjom such relationship. We think the declaration sufficient. The contract relations between the parties were bnt material for the purpose of showing that the defendant became a bailee for the animals for hire. This is shown sufficiently by the declaration. The duty of the defendant resulting from the relation is stated somewhat broadly, but, in alleging negligence, the plaintiffs have proceeded with great particularity, and set forth the precise state of facts which they rely upon, and which are that, after the car had reached West Bay City, the defendant neglected to furnish an opportunity for the plaintiffs to water and care for the horses, and neglected itself to provide this care. If the plaintiffs proved these facts, and proved that they were not themselves in fault, we think that, in any view of the relationship of the parties, the defendant is liable. It is not contended by the plaintiffs that the defendant is a common carrier, but it is insisted, and we think rightly, that the defendant, as a bailee for hire, having control of the car in which the horses were placed, was bound at least to furnish the plaintiffs an opportunity to give the animals the care which they required. See American Merchants’ Union Express Co. v. Phillips, 29 Mich. 515.

It is also suggested that as the declaration charges both delay and failure to furnish opportunity for feeding and watering the horses, and as neither alone would have caused the death of the horse, it becomes necessary for the plaintiffs, not only to prove both elements, but to show that defendant omitted to perform its duty to the plaintiffs in both particulars, and therefore, if there is no liability on the part of defendant far delay of trains, that one of the essential elements of the proximate cause cannot be charged against the defendant, and the case rmust fail. We cannot accept this reasoning. If any negligent act of defendant is charged which, in the conditions existing, was likely to and did result in loss to the plaintiffs, they are entitled to recover, and this though the declaration may have charged other acts as negligent which are either not proven or which may not in law be negligent. The gravamen of the charge is that, with the necessary retention of the horses in the car until their arrival at Saginaw, the defendant negligently refused to furnish any opportunity for the horses to be fed and watered, and this, under the charge of the court, the jury must have found was established by the testimony. The court charged the jury as follows:

■ “Mr. Welsh told us that, when the car arrived at West Bay City, he was of the opinion that the horses needed food and water. The plaintiffs claim that he made a request of the railroad company to place that car in such a position that he could water the horses. In view of the condition of affairs at West Bay City, it must be deemed to be a request to take that car to a point where there was water and where the horses could be unloaded in order to water them. If that request was refused, or if the railroad company, instead of responding to the request, assured him that the cars would start out in a short period of time, so as to make watering and feeding unnecessary, and led him to believe by what they said to him that the train would start on, that he would not have to wait there any great length of time, and you find as a matter of fact, from the evidence in the case, that he'made such a request of the company, and that they either refused or neglected or paid no attention to the request, and, in consequence of their refusal or neglect to accede to this request to place the car in a position where the horses might be taken out and cared for, fed, watered, and looked over by the agent in charge of them, and you also find that, in consequence, this particular horse — the gray horse — died in consequence of that horse not having food and water while the car was standing upon the track at West Bay City, and also in consequence of the car being detained or remaining on the track at West Bay City until 12:35 the same day, that those two events resulted in the horse becoming diseased, and, as a result of the disease, he died, the railway company would be responsible for the damage resulting to the plaintiffs in consequence of the horse's death. Therefore it is a question of fact for the jury, and I confine it entirely to what occurred at Bay City. * * * *
ccIf you find, as a matter of fact in this case, that a request was made by Mr. ’Welsh of the yard-master, the proper party to look after a matter of this kind, or some one who was in his office, placed there by him to attend to matters during his absence, and that this request was not considered or acceded to, but he neglected to put that car in a position where the horses could be fed and watered that night, and you also find as a matter of fast that failing to do that, and also failing to transport the horses immediately or soon afterwards to their destination, so that they might be fed and watered at their destination, but leaving the car without transporting it until 12:35 the following day, that the two, combined together, standing in the car upon the track, and the horses not being fed and watered, produced the disease that caused his death, then I think the railroad company would be liable, unless you find that the plaintiffs, by their own negligence, contributed to the injury, — the disease of the horses.''

Under these instructions, it is clear that the jury must have found that the failure to water and feed the horses was the occasion of the disease, resulting in death, in the sense that but for. the failure to water the horses the injury would not have occurred. The fact that the circuit judge associated with this the attendant circumstances, and treated the attendant circumstances as a part of the cause, wrought no injury to the defendant, and was not only not error, but, we think, proper. It is clear that failure to water the horses at starting would not be negligence on the part of the railroad company, nor, if the entire time consumed in their transportation were only two hours, would any one contend that failure to furnish an opportunity for watering would constitute negligence on the part of the railroad company. But the negligence in failure to permit an opportunity to water the horses is shown in view of the fact that the horses had been 17 hours on the road when the request was preferred, and were subsequently detained for several hours thereafter.

The defendant requested the court to charge the jury that the defendant was not legally bound in any way to care for the horses while in transit, and the request for assistance claimed to have been made by Mr. Welsh to the yard-master at West Bay City could not shift the duty to care for the stock on the defendant. We think the request was properly refused. The evidence tended to show that, without having afforded an opportunity for unloading the horses, they could not be fed, watered, and cared for. The provision in the contract that “the stock is to be loaded, unloaded, fed, watered, and otherwise cared for, while in the cars, by the shipper or owner/* does not mean that the duty is to be performed by the shipper-while the train is in motion, and without being afforded an opportunity by the company to perform the duty. If the provision should be given any force, it creates a very fair inference that the company will afford the shipper the opportunity to perform the duty which it has seen fit to provide shall rest upon him.

It is also contended that the plaintiffs* testimony failed to show due care on the part of Welsh to care for the horses, and that the horses might have been unloaded without moving the car. But we think these questions were fairly questions for the jury, and properly submitted.

An examination of the record convinces us that there was no error to the prejudice of the defendant, and the judgment will be affirmed, with costs.

The other Justices concurred.


author: McGrath, C. J.'

text:
    Willard E. Warner v. The National Life Association of Hartford, Connecticut.

      Mutual insurance — Notice of assessment — Forfeiture of policyi
    1. Where the statute governing contracts of insurance between co-opera.tive insurance associations and their members prohibits a forfeiture without notice, and prescribes what a notice of assessment shall contain, the statutory provisions cannot be avoided by a condition attached to the policy, that, in case no notice is given, the member shall be required to forward to the association an amount equal to the previous assessment, and a failure to give the prescribed notice will prevent the association declaring a forfeiture of the policy for non-payment of the assessment.
    2. Where the policy contemplates a pro rata distribution of the funds received in a particular department only in case the sum realized is insufficient to pay the accrued policy contracts, thus providing against such a contingency, if it should ever happen, a claimant'is not required, in a suit upon the policy, to prove that the contingency has not happened.
    Error to Wayne. (Hosmer, J.) Argued March 9, 1894. Decided April 17, 1894.

      Assumpsit. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      John H. Bissell (William A. Sutherland, of counsel), for appellant.

      G. 2?.' Warner, for plaintiff.
   McGrath, C. J.'

The'‘defendant is what is termed an “ assessment company.” John C. Warner held a certificate or policy upon his own life, which recited that it was issued in consideration of an advance payment, “and of the further payment at the home office at Hartford, Conn., on the first week day of the months of February, April, June, August, October, and December of each year during the continuance of this contract, of a premium for such an amount as the association may deem requisite for the prompt payment of all losses in the department in which this policy is issued, and for the proper maintenance of the contracts in said department, including an amount for expenses as hereinafter provided." The policy further provided:

“It is understood and agreed that a failure to make any payment specified in said policy on or before the day due (except as hereinafter specified) shall work a forfeiture of this policy, and all moneys paid on the same shall be forfeited to the association, for the benefit of the persisting members."

And further:

“Notice that a premium is payable to the' association at Hartford, Conn., on the first week day of each of said months of each and every year, is given in the policy, and accepted, and any further or other notice is expressly waived. And, in the event that the holder of this policy does not receive a notice of the amount of premium which will be due on the days specified herein, an amount equal to the last premium paid shall be paid to the association on or before the day due, as a condition precedent to the continuance of the policy in force."

John O. Warner died February 13, 1893. At the time of his death he had carried the policy for 12 years. On November 10, 1892, a notice was sent to, and received by, the insured, containing the following:

“Bimonthly premium on your policy No. 2,721, of $7.76, will be due and payable at this office on or before the first day of December, 1892."

On December 1, 1892, the insured maiíed a check to the company for the amount named in the notice, but it did not reach the company until the morning of December 2, 1892. On that date the company wrote to the insured, informing him that his remittance had not been received in time, inclosing him a blank health certificate, and stating that he would be obliged to sign and return the good-health certificate before he could be reinstated. On December 3, 1892, the insured wrote to the company, stating that he was unable to say that he was then in sound health, and alleging that, in sending the check, he supposed that he was sending it November 30. The company replied insisting upon the health certificate, and returned the check.

The contract of insurance was made in the state of New York, and is governed by the laws of that state. The statutes of New York provided that—

“Bach notice of assessment, premium, or periodical call made by any such corporation, association, or society upon its members, or any of them, shall truly state the cause and purpose of the same, and, if the amount paid on the last death claim paid has not been paid in full at its maximum face value, the name of the deceased member, and the maximum face value of the certificate or policy, and the reason why not paid in full.” Laws of 1892, chap. 690, § 210.

The notice sent to the insured, in the present case, did not comply with this statutory provision. The design of the statute is apparent. A policy in a regular life company fixes both the time of payment of premium, and the amount thereof; yet the same statute provides that no life insurance company can declare forfeited or lapsed any policy by reason of the non-payment of any premium without notice, and prescribes what such notice must contain. It further provides that, in case payment is made within the life of the notice, it shall be taken to be in full compliance with the requirements of the policy, anything therein contained to the contrary notwithstanding. These statutory provisions form a part of the contract of insurance, and cannot be waived by the parties. In their absence the parties are bound by the stipulations in the contract. Fixed premiums, payable bimonthly or otherwise, are incidents of regular life policies. Assessments are essential incidents of co-operative associations organized under this statute, and notice through some medium is requisite. The statute relating to assessment companies does not undertake to fix the time of the notice, but it does fix and determine what the notice must contain. The statute contemplates that through these notices the policyholders shall be advised of the cause and purpose of the assessments; and the statute cannot be avoided by a condition attached to the policy, that, in case no notice is given, the insured shall be required to forward to the association an amount equal to the previous assessment. In the present case the association did give notice of the assessment, which was a sum greater in amount than the previous'assessment; and, not having given such notice in the manner prescribed by the statute, it cannot be allowed to declare a forfeiture of the policy by reason of its non-pay-

ment. In Miner v. Benefit Association, 63 Mich. 338, where the by-laws required the notice to include a list of all deaths subsequent to the last assessment, and to specify the amount due from the member to the benefit fund, it was held that a notice omitting such information was-insufficient, and its service raised no liability on the part, of the member served to pay the assessment demanded. The statute in question here entitled the policy-holder to be informed of the cause and purpose of the assessment before any liability to pay the sum named arose.

It is urged that plaintiff failed, in his declaration, to allege, and, upon the trial, to prove, facts from which the jury could determine the amount, if any, due upon the policy. The policy provides that, within a specified time after proof of loss, there shall be due and payable, solely from the funds accumulated from the pajonents of its insured in this department, “ the sum of two thousand dollars.” It further provides that—

“Twenty-five per cent, of the net receipts from all premiums paid under this policy during 15 years from its date, together with all amounts deducted where losses occur within five years from the date of the policy, shall be set aside as a reserve fund, the same to be invested and accumulated for the exclusive benefit of the policy-holders. Any portion of said fund may, however, be applied at any time to the payment of death claims that 'may accrue in excess of the actuary’s table of mortality, or whenever the net premiums .received- from any bimonthly payment, which shall have been made according to the contract, shall be insufficient to pay any and all death claims then due. * * *
“It is also agreed that, if the whole of said funds received from the policy-holders of this department should ever be insufficient to pay all such accrued policy contracts, then the same shall be divided pro rata among the holders of such matured policy contracts, and paid to the proper claimants therefor; and such payments shall be in full satisfaction of each of said claims, and fully discharge this association from every liability on account of the same, and the contract upon which they are based.”

-The statute provides that upon the death of the policyholder “ the corporation shall be obligated to the beneficiary for such payment at the time, to the maximum amount specified in the policy or certificate.” Laws N. Y. 1892, chap. 690, § 210. The agreement is not to pay the proceeds of a single assessment, or to pay a specific sum, provided a single assessment shall produce such sum. It is true that the amount is payable from the mortuary fund in that department, but the policy holds out that there is a reserve fund which may be drawn upon whenever the net premiums received from an assessment shall be insufficient. The policy contemplates a pro rata distribution, not in the ordinary course, but only upon the happening of a contingency, and provides against such contingency, if it should ever happen. Plaintiff is not required to prove that a contingency has not happened, which the policy itself regards as remote.

The judgment is affirmed.

The other Justices concurred.


author: Long, J.

text:
    Daniel J. Davis and Thomas Rankin v. E. S. Davis et al.
    [See 84 Mich. 824; 97 Id. 419.],

      False representations — Materiality—Instructions to jury.

    Where in a suit brought to recover the purchase price of milk cans sold to the defendants for creamery purposes, with the right to use them in certain designated territory, the defendants claim that they purchased the cans in reliance upon the representations of the plaintiffs that they had a perfect title, and in the belief that defendants would have the exclusive right to the territory, and seek to recoup damages on account of the alleged failure of the title of plaintiffs to the territory, it would not be error for the court to instruct the jury that the representations as to title, if made, were material, and hence the instruction that the jury shall determine whether the representations were deemed by the defendants to be material cannot prejudice the plaintiffs’ rights.
    Eebearing, upon application of defendants, of case reported in 97 Mich. 419. Argued April 3, 1894. Decided April 17, 1894.
    Former decision reversed.
    The facts are .stated in 84 Mich. 324, and 97 Id. 419.

      William A. Mills and F. F. Bacon, for plaintiffs (appellants).

      Avery Bros. & Walsh, for defendants.
   Long, J.

This case was heard at the October term, 1893, of this Court, and is reported in 97 Mich. 419. It seems that some misunderstanding has arisen as to what was conceded on the part of counsel for the defendants. It was said in the former opinion that the portion of the charge set out was conceded by counsel to be erroneous, but claimed to have been cured by other portions of the charge. Motion for rehearing was made and granted, and the cause has been again argued upon that point by both sides.

¥e are now satisfied that there was no error in that portion of the charge. The representation referred to by the learned circuit judge was in reference to the title to the territory. The defendants claimed to have relied upon the representation that the plaintiffs had a perfect title, and purchased the cans in the belief that they would have the exclusive right to the territory. The representations as to title were material, and, if the court had so instructed the jury, it would' not have been error. Therefore the fact that the jury were instructed that they should determine whether the defendants deemed them to be material did not in any manner prejudice the plaintiffs* rights.

The judgment must be affirmed.'

The other Justices concurred.


author: McGrath, C. J.

text:
    Alexander Ralph et al. v. Charles H. Wisner, Circuit Judge of Shiawassee County.

      Corporations — Appointment of receiver — Sufficiency of showing.

    There is no doubt of the power of a court of chancery to appoint a receiver for a street-railway company at the suit of its bondholders, where it appears that the corporation is without a president, vice-president, or treasurer; that the trustees named in the mortgage given to secure the bonds have refused to enforce the mortgage, and have signified their intention to resign their trust; that the interest on the bonds remains unpaid; that there are tax and judgment levies and liens upon the corporate property; and that the municipality which granted its franchises has taken proceedings to repeal the same.

      Mandamus. Argued March 6, 1894. Granted May 4, 1894.
    Relators applied for mandamus to compel respondent to restore an order appointing a receiver for the Owosso & Corunna Street-Railway Company. The facts are stated in the opinion.

      Frank T. Lodge, for relators.

      John T. McCurdy and G. R. Lyon, for respondent..
   McGrath, C. J.

On October 15, 1891, the Owosso & Corunna ^Street-Railway Company issued its bonds in the sum of 140,000, payable in 20 years, with interest at 6 per cent., payable semi-annually. To secure the payment of the bonds it executed a mortgage upon its property, franchises, and effects to Matthias L. Stewart and Charles D. Stewart, trustees, which provided that, if the company should be in default in the payment of interest, and should remain in default for six months, the trustees should take possession, and, at the request of the majority ;n interest 'of the bondholders, sell the road at auction, upon 60 days’ notice, and authorized the trustees to convey upon such sale. It also provided that a less number of bondholders might at any time protect their interests in the courts, and, in the event of the resignation of the trustees, that the company should- appoint others in their stead, with the consent of the bondholders.

On July 10, 1893, Alexander Ralph and others presented to the circuit court for the county of Shiawassee, in chancery, a petition setting forth the execution of the mortgage aforesaid; that the petitioners were the owners of bonds issued as aforesaid of the par value of $16,000; that said company had not observed the covenants in said mortgage expressed; that a portion of the earnings of said company had been diverted, and had not been properly applied to the legitimate running and equipment expenses of said road; that said road was not being kept in. good order; that said company was allowing debts to accumulate against it; that it claimed to have borrowed $1,600 from defendant Williams, and to have given a note therefor; that, in default of payment of such note, Williams had brought suit against it, and recovered judgment for $1,800; that in June, 1893, execution was issued upon such judgment, which was levied upon the property of the company, and said Williams threatened a sale under said levy; that in December, 1892, the city of Owosso levied a tax upon the property of said company of $74.12; that, failing to pay said tax, the said city had seized upon two of the cars of said company, and had advertised the same for sale; that the township of Caledonia had levied a tax of $48.84 upon the property of said companjq but the same had not been paid; that said city of Owosso had assessed the property of said company in the sum of $38 for taxes of 1893, which was unpaid; that, claiming to be unable to pay the interest maturing October 15, 1893, said company had borrowed the sum of $1,000, given its note therefor, and the owner thereof threatened suit; that said company had failed to pay the interest on said bonds which became due April 15, 1893, and was still in arrears therefor; that, because of the failure of said company to manage and operate its road properly, the common council of the city of Owosso had introduced and passed to its first and second reading an ordinance providing for the repeal of the franchises of said company; that the bondholders had requested the trustees to proceed under said trust mortgage, but that said trustees refused so to do; that on or about the 7th of June, 1893, the said trustees had filed in the office of the register of deeds for the county a paper purporting to be their resignation; that said company had no officers or board of directors; that defendant Hough' held bonds issued as aforesaid of the par value of $1,000, defendant Gourlay of $1,000, defendant Williams of $4,000, and defendant Snow of $10,000. The company, Matthias L. Stewart, Charles D. Stewart, Nathan G. Williams, Joseph •C. Hough, James Gourlay, and Frank E. Snow were made parties defendant. The petition prays that the Stewarts may be directed to proceed in the performance of the trust, or that they may be removed, or their places declared vacant, and competent trustees be appointed in their stead; that a receiver be appointed; that such receiver be authorized to borrow such sums, and issue receiver’s certificates therefor, as may be necessary to pay judgments, liens, and taxes, to pay past-due obligations, put road-bed, track, and rolling-stock in suitable condition, and to keep the railway in operation, in order to preserve the security of the bondholders; and for such other relief as to the court may seem meet.

A subpoena was issued and served upon Gourlay, Snow, Hough, Williams, and the Stewarts, and also upon Edwin A. Gould, who had been vice-president oí said company, and Asa D. Whipple, who had been secretary and treasurer of said'-'company, but each of whom, as appears by affidavits afterwards filed, had in February, 1893, tendered his resignation, and turned over and surrendered to said company the stock held by him.

Upon the same day upon which the petition was filed! a motion was entered for the appointment of a receiver. On July 18, John E. Nolan, representing that he was the owner of 260 shares of the stock of said company, and bonds of the par value of $7,000, asked to be admitted as a party defendant. An order was accordingly made, and the hearing on the motion for the appointment of a receiver was postponed until August 7, 1893. Nolan appeared by his solicitor, and on August 7 filed an answer. Nolan’s answer sets up that he became the owner of the stock and bonds held by him May 25, 1893, and that he is the owner of the majority of the stock in said company; but the answer does not deny any of the allegations respecting the execution of the bonds and mortgage aforesaid, the. failure to pay the accrued -interest thereon, the existence-of the floating debts, judgments, levies, and liens, or the-fact that the company is without officers, without a board of directors, or that the .said trustees have filed their resignations and refused to perform said trust, or that the-common council of the city of Owosso was about to repeal' the ordinances granting the franchise. The hearing on the motion for the appointment of a receiver was adjourned from time to time until October 14, 1893, when a receiver was appointed, authorized to effect a loan for the purposes stated in said petition, and he did actually procure certain motors for use of said road.

After the hearing of the motion for the appointment of a receiver, the court, on September 13, filed a written-opinion respecting the situation, which contained the following:

“The undisputed facts stated in the bill and admitted by counsel for the respective parties who appear tend to show an extremely chaotic condition of the affairs of the corporation; that it is without a president, vice-president, or treasurer, and the trastees have signified their intention to resign their trust, but there are no officers to accept their resignation; that the interest on the bonds remains unpaid, and there is a floating debt of some two or three thousand dollars; and that the motor power is inadequate. Under these circumstances, a receiver should be appointed.”

On December 13, 1893, John E. Nolan moved the court to set aside the order appointing the receiver, for the reason—

“That said court had no power or authority to assume the management of the business of said company, nor to vest such power and authority in its receiver; and that said court had no power to appoint such receiver, with the power given him by such order, on an interlocutory application ex parte; and said order was improvidently made, and the court had no jurisdiction to make the same.”

Said motion was founded on the pleadings, files, and records, and was noticed for December 21, 1893. This motion, for some reason, went down, and thereupon the receiver negotiated a loan, and issued receiver’s certificates for the amount thereof. On January 4, 1894, after the term of office of the circuit judge who made the appointment had expired, and before his successor in office, Nolan renewed his motion, and the same was granted. This is an application for a mandamus directing the circuit judge to restore the order vacated.

The parties in court when the receiver was appointed represented all the bonds except $1,000, and the holder of that $1,000 was made a party defendant December 7, 1893, and, so far as appears, was content with the order which was set aside. Nolan was a party defendant. He held a majority of the stock in the company, and was, present and took part in the argument of the motion for the appointment of the receiver, and resisted said appointment. No complaint is made that he had not actual notice of all proceedings subsequent to his appearance in the cause. His motion to set aside the appointment is not supported by a single affidavit, or any showing that? the stockholders had met and taken any action looking to the election of a board of directors or any officers of the company. The material allegations of the petition respecting the chaotic condition of the affairs of this company, the existence of tax levies and judgment levies and liens upon the property of the company, the danger of the repeal of the franchises of the company, and the inactivity of the trustees, — facts which were conceded upon the hearing of the motion for ■ the appointment, — remained undisputed. Under such conditions, we think that there is no doubt of the power of a court of chancery to appoint a receiver, and protect the bondholders in their security. Nolan has had his day in court. It was in his power, as holder of a majority of the stock, to rehabilitate this company, and thus reassure the creditors. His failure so to do gives color to the charge made in the petition that the attempt is being made to wreck the company, and deprive the bondholders of their security by permitting a forfeiture of the franchise. We think that the court erred in, vacating the appointment of the receiver, and the writ is therefore granted.

The other Justices concurred.


author: Grant, J. Montgomery, J.

text:
    The Attorney General, ex rel. Otis Fuller, v. Eugene Parsell.
    [See 98 Mich. 96; 99 Id. 381.]

      Constitutional law — Enactment of statute — Title—Repeal.
    1. A law cannot be defeated by the fact that a member of the Legislature, in calling up the bill, and referring to it by its right number, failed to state the title correctly, it appearing that the bill upon which the Legislature acted, and which was signed by the Governor, was properly entitled.
    2. Act No. 118, Laws of 1893, entitled “An act to revise and consolidate the laws relative to the State Prison, to the State House of Correction and Branch of the State Prison in the Upper Peninsula, and to the House of Correction and Reformatory at Ionia, and the government and discipline thereof, and to repeal all acts inconsistent therewith,” covers the entire management and control of and discipline in said penal institutions, and supersedes said laws, notwithstanding some of their provisions do not contravene those of the new act.
    3. The failure to re-enact and publish at length said laws does not invalidate said act under section 25, art. 4, of the Constitution, which provides that “no law shall be revised, altered, or amended by reference to its title only, but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length.”
    4. With the reason entertained by the Legislature for the enactment of a law, courts have no concern, unless such reason appears upon the face of the law itself, or upon the legislative journals; and not then, unless the purpose be one prohibited by the Constitution.
    Information in tlie nature of quo warranto to test the title to the office of warden of the State House of Correction and Reformatory at Ionia. Argued April 3, 1894. Judgment of ouster entered. May 4, 1894. The facts are stated in the opinion, and in 98 Mich. 96, and 99 Id. 381.

      A. A. Ellis, Attorney General (Geer é Williams and William O. Webster, of counsel), for relator.

      George E. and M, A. Nichols (F. A. BaTcer, of counsel), for respondent.
   Grant, J.

Two opinions have already been rendered in this case. Fuller v. Attorney General, 98 Mich. 96; Attorney General v. Parsell, 99 Id. 381. In the first of these cases, various questions were raised, and the constitutionality of the law (Act No. 118, Laws of 1893) was attacked. The cases required much labor, and covered all the issues of fact and of law then supposed to be involved. Under these decisions, nothing really remained but to enter a judgment of ouster. After the last opinion was filed, the respondent, without leave of the Court, filed an additional demurrer, and now challenges the validity of the act upon other grounds. If the position now taken by ^him be correct, it would, if raised upon the first hearing, have dispensed with all the other questions. We might with propriety hold the respondent estopped from raising these additional objections, and we should feel disposed to do so, were not the validity of an important statute involved.

The first objection now raised is that the act, as passed by the Legislature, is not the act as signed by the Governor. It is conceded that the body of the act, as passed and as signed, is identical in every respect, and that but one bill upon the subject was introduced, which was known as “Senate Bill No. 26,” and “File No. 209.” The question is raised upon the title to the act. The title, as introduced into the Senate, reads as follows:

“An act to revise and consolidate the laws relative to the State Prison, to the State House of Correction and Branch of the State Prison in the Upper Peninsula, and to the House of Correction and Keformatory at Ionia, and the government and discipline thereof, and to repeal all acts inconsistent therewith.”

Under this title the bill passed the Senate. Pending the question on agreeing to the title, the bill was laid on the table. The Senate journal shows that—

“Mr. Sabin moved to take from the table Senate bill No. 26 (file No. 209), entitled ‘A bill to revise and consolidate the laws relative to the State Prison, to the State House of Correction and Branch of the State Pi’ison in the Upper Peninsula, and to the House of Correction and Reformatory at Ionia, and the government and 'discipline thereof, and to repeal Act 213, Laws of 1875; also Act 176, Laws of 1877, — being chapters 340 and 341 of HowelPs Annotated Statutes, and all laws amendatory thereof; also Act 258, Laws of 1887; also Act 140, Laws of 1891, approved June 17, 1891, and all acts inconsistent therewith/ — which motion prevailed. The question being on agreeing to the title of the bill, the title was agreed to.”

For convenience, we will refer to them as the “short” and “long” title.

The House journal shows that the bill was sent from the Senate under the short title, above given, and was referred to the three committees on the penal institutions of the State. These committees reported the bill back to the House by the short title, and recommended its passage. The next record that, appears in the journal is that “Mr., Sumner moved to take from the table Senate bill No. 26 (file No. 209),” giving the long title. The bill was then passed. It was returned from the House to the Senate under the short title, was engrossed and enrolled under that title, was presented to the Governor under that title, and approved. The acts referred to in the long title are those relating to the various institutions mentioned in the short title. The specific acts mentioned in the long title were as clearly superseded and repealed by the one title as by the other. How the long title came to be used by the members in making the motions referred to does not appear. It is, however, perfectly clear that there wap but one bill before the Legislature, and that the same act was duly passed and approved by the Governor. There is no record of any amendment. A law cannot be defeated by the fact that some member, in calling up the bill, and referring to it by its right number, failed to state the title correctly. We do not think the objection merits further comment.

The next argument against the validity of the law is that it is in violation of section 25, art. 4, of the Constitution, which provides that — -

“No law shall be revised, altered, or amended by reference to its title only, but the act revised, and the section or sections of the act altered or amended, shall be re-enacted and published at length.”

The precise contention, as stated by counsel for the respondent, is that the acts or parts of acts revised and consolidated are not re-enacted and published at length. It would seem in accordance with reason to hold that, when the Legislature revises and consolidates certain acts, and covers the entire subject, the act, as revised and consolidated, supersedes and repeals all other acts in relation thereto. The very terms “ revise ” and “ consolidate ” imply the intention to include in such act entire coptrol over the subject, and to exclude all prior enactments. Cooley, Const. Lim. (6th edi) 182 (note 4). The act in question contains 66 sections, and its provisions cover the entire management and control of and discipline in the penal institutions named. There is not a single provision of the former laws which is requisite or necessary for the management and control of these institutions.

But it is argued that the language in the repealing clause, that “all acts and parts of acts contravening any of the provisions of this act are hereby repealed,” indicates an intention to retain those provisions of the old law which may be held not to conflict with the new. We ^re of the contrary opinion. It would be unreasonable to hold that the Legislature, while covering the entire subject, and declaring its intention to be to revise and consolidate all the laws upon the subject, intended to leave in force any provisions of the former laws which the courts might determine did not contravene the provisions of the new act.

But, however this may be, the repealing section, when read as a whole, shows the understanding of the Legislature to be that the revised and consolidated act should supersede all other acts upon the subject. The repealing section closes with these words:

“But all proceedings pending, and all rights and liabilities existing, acquired, or incurred, at the time this act takes effect, are hereby saved, and such proceedings-may be consummated under and according to the law in force at the time such proceedings were commenced.”

Counsel, both in their briefs and oral arguments, have argued that the purpose of this law was political, and that it was intended to retain certain provisions of the old law. With the reason entertained by the Legislature for the enactment of a law, courts have no concern, unless such reason appears upon the face of the law itself, or upon the legislative journals; and not then, unless the purpose be one prohibited by the Constitution. We have carefully examined the journals, and there is nothing appearing there, or upon the face of the law itself, which shows any of the purposes for which counsel have contended.

Mr. Justice Cooley, under the title “ Amendatory Statutes,” in. his valuable work on Constitutional Limitations, quotes from People v. Mahaney, 13 Mich. 497, as follows:

The mischief designed to be remedied was the enactment of amendatory statutes in terms so blind that legislators themselves were sometimes deceived in regard to their effect, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made' in the laws. An amendatory act which purported only to insert certain words, or to substitute one phrase for another, in an act or section which was only referred to, but not republished, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for that express purpose. Endless confusion was thus introduced into the law, and the Constitution wisely prohibited such legislation.”

The learned author then adds:

“If this is a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law, as amended, is given in' full, with such reference to the old law as will show for what the new law is substituted.”

Under a similar, but more restrictive, constitutional provision, the supreme court of Nebraska said:

“ That an act, complete in itself, may so operate on prior acts as to materially change or modify them, without being within the mischief designed to be remedied by, or repugnant to, this provision of the constitution, is doubtless true.” Smails v. White, 4 Neb. 357.

Applying that rule to this 'case, there is no room for holding that any one was, or can be, misled or deceived. Confusion can only be introduced into the law, in this "case, by holding that the Legislature did not intend to revise and consolidate, but, on the contrary, did deliberately intend to introduce endless confusion into the law.

The law must be held valid, the relator entitled to the office, and judgment of ouster entered against the respondent, with costs.

Long and Hooker, JJ., concurred with Grant, J.

Montgomery, J.

(concurring). The facts are sufficiently stated in the opinion of Mr. Justice Grant. From this statement, it appears that the title to the bill was never in fact amended. The bill continued to bear its original title, in which it was introduced, and in which it was transmitted from the Senate to the House. The identity of the bill is clear, and there can be no doubt as to what bill both branches of the Legislature acted upon. The error of the clerk in transcribing the title, or the error of a member in calling up the bill, ought not to defeat the will of the Legislature, where it is clear that the bill upon which the Legislature in fact acted, and which the Governor signed, had a proper entitling. See opinions of Campbell and Christiancy, JJ., in People v. Supervisor of Onondaga, 16 Mich. 258, 260.

I also concur in the view of Mr. Justice Grant that the legislative intent to repeal all other statutes relating to the control and management of the institutions named in the title is clear. Respondent's counsel invoke the rule that where the later statute, covering the same subject-matter, has a repealing clause, repealing all acts and parts of acts inconsistent with the later enactment, the repealing clause is a limitation upon the extent to which it was intended that the former acts should cease to be operative; and there are cases which hold to this rule of construction where the other provisions of the later act do not make the legislative intent clear to supersede all prior provisions upon the general subject. See Gaston v. Merriam, 33 Minn. 271; Lewis v. Stout, 22 Wis. 234; In re Henderson’s Tobacco, 11 Wall. 652. But as was said by Mr. Justice Strong in U. S. v. Claflin, 97 U. S. 551:

“While repeals by implication are not favored, and while it is held that a statute is not repealed by the later one containing no repealing clause, unless the later statute is positively repugnant to the former, or is a plain substitute for it, supplying its provisions, it is still true that repeal or no repeal, substitution or no substitution, is a question of legislative intention."

So, in the present case, the entitling of the act, which is au act to “revise” and “consolidate” the laws relating to the subject, leaves little room for doubt that the purpose of the Legislature was to embody in the act itself all laws which should remain of force, relating to the control of the State institutions named. The use of the word “ consolidate ” indicates very clearly that the purpose of the Legislature was to collect in one act the law relating to the subject.

A very similar question arose in the case of Tafoya v. Garcia, 1 New Mex. 480. A statute was. passed entitled “An act relative to the revision of the statutes.” This was done upon the report of a commission empowered by law to collect, revise, and put into systematic order the laws then in force in the territory, and to recommend such changes and amendments of existing laws as the commission might deem necessary and proper to give effect to said laws, with a provision that said commission, on making their report to the Legislature of the revision of the laws .proposed by them, should report at the same time the changes and amendments for adoption or rejection by the legislative assembly. The act hearing the above title, “Relative to the revision of the statutes,” contained a preamble as follows:

“Whereas, the commission of revisers appointed by the governor have reported to this assembly, through the joint committee of both houses, a revision of the statutes of this territory: Therefore be it enacted that the revision of the statutes, commencing with article 1, and ending with article 67, with all and each of the articles and chapters inclusive, be, and the same are hereby, declared to be the revised statutes and laws of the territory of New Mexico, and as such shall have full force and effect in all courts thereof. ”

It was held that by the term “ revised statutes ” was not simply meant the compilation or collecting together of existing statutes, but also the amendation or expurgation of such provisions as the revisers might deem unnecessary, and that the commissioners may have thought proper, in performing the duties required of them, to amend the statutes by omitting entire statutes in force, or parts of statutes, prior to the session of the legislature at which these revised statutes were adopted. The presumption is much stronger in the present case, when the title to the act indicates a purpose, not only to revise, but to consolidate, the laws relative to the government of these institutions.

In Re Roberts, 51 Mich. 548, the question arose as to whether an act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith, had the effect to repeal the provisions of a prior charter providing for a central station police court; and the trial of offenders therein. The later act contained no provision relating to this subject. It was contended that only such provisions of the earlier act as were inconsistent with the later were repealed, but it was ruled otherwise. Mr. Justice Campbell, speaking for the Court, said:

“This charter is entitled ‘An act to provide a charter for the city of Detroit, and to repeal all acts and parts of acts in conflict therewith.’ It does not purport to be partial or supplementary, but to be the only charter. There can be no doubt of this purpose, and there can be no doubt that, without very manifest obligation, it cannot be admissible to select out of older charters matters omitted in this, as still in force. If this could be done on one subject, no one can see where the process would stop. There are many omitted provisions which no one would consider repugnant. We must assume that things omitted are designedly omitted.”

This reasoning applies with peculiar force to the -present case. The title to this act leaves no room to doubt the purpose of the Legislature to cover the whole subject of the government and control of these institutions. The rule is well settled that, even though, two acts are not repugnant, yet if the later covers the whole subject of the first, and contains provisions showing that it was a substitute, it will operate as a repeal. See Shannon v. People, 5 Mich. 85; Feige v. Railroad Co., 62 Id. 1.

The demurrer should be overruled, and judgment of ouster entered.

McGrath, C. J., concurred with Montgomery, J.


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    William H. Buettner v. Robert E. Frazer, Circuit Judge of Wayne County.

      Religious societies — Membership—Jurisdiction of civil courts.

    Chap. 170, How. Stat., which provides for the organization of religious societies, indicates who may be members of the corporation, but does not determine the qualifications of church members, or the mode of their admission, which questions are, primarily at least, of ecclesiastical cognizance; and, in case of disagreement, both parties must first exhaust the remedies afforded by the ecclesiastical body before the courts will consider the questions involved.

      Mandamus. Argued April 10, 1894. Granted May 4, 1894.
    Relator applied for mandamus to compel respondent to dissolve an injunction. The facts are stated in the opinion.

      Thomas -Hislop, for relator.

      Otto Kirchmr, for respondent.

       For cases involving the construction of certain provisions of Act No. 145, Laws of 1855, entitled “ An act concerning churches and religious societies, establishing uniform rules for the acquisition, tenure, control, and disposition of property conveyed or dedicated for religious purposes,” being, as amended, chapter 170, How. Stat., see Wilson v. Livingstone, 99 Mich. 594, and note.

   McGrath, C. J.

The German Evangelical Lutheran Christus Church of Detroit is alleged to be incorporated under chapter 170, How. Stat. William H. Buettner is, and has been for several years past, the pastor of said church. Three persons, claiming to be trustees of said church, file a bill against said Buettner to establish the validity of action taken at a certain church meeting, at which .it is alleged that the pastoral relation was dissolved, and, anticipating an attempt to rescind said action, to restrain said Buettner from admitting or pretending to admit to membership any person whatever without the consent of a majority of the church council, and from voting or offering or advising any person or persons to vote at any meeting of said church who did not sign the articles of association, or who was not received by a majority of said church council, or who was received by said defendant wiihout the consent of said church council, and who has -not been a member of said church six months preceding any meeting of said church at which he offers or is advised to vote. An injunction was obtained in accordance with the prayer of the bill. Upon answer filed, a motion to dissolve the injunction was made and denied. An application is now made for a mandamus to compel such dissolution.

It will be observed that the questions involved relate to the method of admission to membership in the denominational body, and the qualification of voters at a meeting, not of the corporation, but of the church. It must be borne in mind that there are z’eally two associations here, —the one a voluntary association, with entirely independent activities, deriving its authority, not from the statute, but from an ecclesiastical body; the other, an incorporated body, deriving its powers from the statute. The statute Indicates who may be members of the corporation, but does not determine the qualifications of church members, or the mode of their admission. Hardin v. Baptist Church, 51 Mich. 137. Those questions are, primarily at least, of ecclesiastical cognizance, and both parties must first exhaust the remedies afforded by the ecclesiastical body before the courts will consider the questions involved.

The writ must issue as prayed.

The other Justices concurred.


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    Walter R. Taylor v. George M. Buck, Circuit Judge of Kalamazoo County.

      Replevin — Affidavit—Amendment.
    It is within the discretion of a circuit judge to permit' an amendment of an affidavit in replevin by inserting the word “assess-v ment ” in the averment that the property sought to be replevied “has not been taken for any tax, assessment, or fine levied by virtue of any law of this State,” etc., from which it had been omitted.

      Mandamus. Argued April 24, 1894. Denied May 4, 1894.
    Relator applied for mandamus to compel respondent to quash a writ of replevin, and dismiss the proceedings. The facts are stated in the opinion.

      A. D. Harris, for relator.

      Osborn, Mills S Master, for respondent.
   McGrath, C. J.

On October 27, 1893, a writ of replevin was issued out of the circuit court at the suit of William H. Golding et al. against John S. Sleeper. On the 4th of January, 1894, defendant entered his appearance in said suit, and a copy of the declaration was served upon his attorney. On January 25 defendant filed his plea, and served a copy thereof on plaintiffs’’ attorneys. On January 31, defendant, being an infant, applied to the circuit court for the appointment of a guardian ad litem, and relator was appointed such guardian. On February 5 defendant moved to quash the writ of replevin, and dismiss the proceedings, because the affidavit attached to the writ did not.state that the property described had not been taken for any tax, assessment, or fine levied by virtue of any law of this State, etc. The affidavit omitted the word “assessment.” The court permitted plaintiffs to amend the affidavit in that respect.

While the statute requires the affidavit to be attached to the writ before the execution of the writ, the issuance of the writ does not depend upon the affidavit. The defect was not, therefore, jurisdictional, and the allowance of the amendment was within the discretion of the circuit judge. Baker v. Dubois, 32 Mich. 92.

The writ is therefore denied.

The other Justices concurred.


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    Frances E. Bacon v. Cyrus E. Perkins, Judge of Probate of Kent County.

      Estates of deceased persons — Allowance to widow — Notice.
    1. There is no statute requiring written notice to be given to an administrator of the application of the widow for an allowance for her support pending the settlement of the estate.
    2. Where, in response to an oral notice of such an application, the administrator appears, and is consulted by the court, and furnishes the information upon which the order for an allowance is based, the probate court acquires jurisdiction to act.
    3. An allowance to a widow, out of an estate consisting of $9,000 in cash, of $15 per week during the 22 months of her widowhood, is held not to have been excessive.
    4. How. Stat. § 5755, which provides that a widow may remain in the dwelling-house of her husband one year after his death, without being chargeable with rent therefor, and shall have her reasonable sustenance out of his estate for one year, gives her the absolute right to such sustenance for one year from her husband’s death.
    5. Where no assets come into the hands of the administrator until after the remarriage of the widow, which occurs about 22 months after the husband’s death, the probate court has-power, upon her application made after her remarriage, to grant her an allowance covering the entire period of her widowhood. »

      Certiorari to Kent. (Adsit, J.) Argued April 24, 1894. Decided May 4, 1894.
    Relator applied to the circuit court of Kent county for mandamus to compel the respondent to set aside an order for an allowance to the widow of Fredn A. Holcomb, deceased, and brings certiorari to review the order denying the writ.
    Judgment affirmed.
    The facts are stated in the opinion.

      Clark H. Gleason, for relator.

      Smiley, Smith é Stevens, for respondent.
   Long, J.

Fred A. Holcomb died intestate January 18, 1890. His heirs were his widow, his mother, his sister, and the children of two deceased brothers. An administrator was appointed, who duly qualified. The only estate left by the deceased was an insurance policy of $10,000, and the amount claimed thereunder was in litigation. This suit was not ended until June, 1892, when the administrator received into his hands about $9,000. The widow remarried in November, 1891, and soon after the termination of the suit she petitioned for statutory widow’s allowance out of the estate at the rate of $18.75 per week. An allowance was made by the probate court to her of $15 per week from the time of her husband’s death until the date of her remarriage, amounting to about $1,400. The administrator paid over to her the amount thus allowed. In October, 1893, the administrator rendered a final account of his receipts and disbursements, including the payment of this amount to the widow. On the hearing of this account the relator, one of the heirs at law, objected to the item of allowance to the widow, on the ground that it was made to her after her remarriage. This objection was overruled by the probate court.

This proceeding was commenced in the circuit court for Kent county by petition for mandamus to compel the judge of probate to set aside the order allowing the widow this amount, and to compel the application of the amount so paid to her upon her distributive share of the estate. The mandamus was denied in the court below, and the case comes to this Court by writ of certiorari.

It is claimed:

1. That no legal notice was given to the administrator of the application of the widow for this statutory allowance.

2. That the amount of the allowance by the probate court was an abuse of discretion.

As to the first point raised, the probate judge returns that the administrator was notified, and was aware of the claim made by the widow for the allowance, and was given an opportunity to be heard in relation thereto, and was so heard upon such hearing, and informed the court regarding the circumstances of the widow and the estate. The respondent further returns that, upon thus conferring with the administrator, he determined that 115 per week was a reasonable allowance, and the order was thereupon made directing the administrator to pay the same; and that the administrator thereafter paid said sum in good faith, and upon the strength of such order. No appeal was taken from this allowance by the administrator or by the heirs at law.-

We have no statute requiring written notice to be given to the administrator of the application made by the widow for the statutory allowance. In Freeman v. Probate Judge, 79 Mich. 390, it was held that the administrator is entitled to notice of the application of the widow for an allowance for her support pending the settlement of the estate, under How. Stat. § 5847, and to be heard upon such allowance, and that an order made without such notice is void. But in the present case the administrator had notice, though not in writing. He did appear, and from the return of the probate court it is shown that he was consulted by the court, and gave the court information upon which the order was based. This was sufficient to confer upon the probate court jurisdiction to act.

We cannot say that, under the circumstances, the sum was excessive, or that there was any abuse of discretion in making the allowance. In Freeman v. Probate Judge, supra, it was said:

“It is the policy of our statutes to leave such allowances to the sound discretion of the probate judge, and appellate courts will not interfere, except where there has been an abuse of discretion.”

We have no facts before us which would warrant us in saying that the amount is too large. Undoubtedly facts and circumstances were before the probate court, upon which it acted in fixing the amount, that are not presented to this Court. As was said in North v. Probate Judge, 84 Mich. 69:

“It was for the probate court to inquire into the truth of the [widow’s] petition, * * * to determine * * * just what allowance should be made, and the proportion each part of the estate should contribute to meet the amount [allowed]. * * * We are not called upon to decide whether the probate court fixed the amount which the plaintiffs should pay at too small "or too great a sum. The facts were before that court, and are not present here on this record.”

In Re Power Estate, 92 Mich. 106, an allowance of $800 was made out of an estate of $5,000, and it was said that it did not appear that there was such abuse of discretion as would justify this Court in reversing that order.

It is claimed, however, that the probate court had no power to make aDy order whatever for the allowance upon a petition presented by the widow, after her remarriage. As we have seen, there were no assets coming into the hands of the administrator until after the termination of the suit on the life-insurance policy, which was not ended until the lapse of more than two years after Mr. Holcomb’s death. The petition for allowance, while not made until after her remarriage, asked an allowance for the period of her widowhood only, and it was for that period that the allowance was actually made. Section 5755, How. Stat., provides:

“A widow may remain in the dwelling-house of her husband one year after his death, without being chargeable with rent therefor, and shall have her reasonable sustenance out of his estate for one year.”

Section 5813 provides:

“ The probate court may make such reasonable allowance as may be judged necessary for the expenses- of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.”

Section 5847 provides, by subdivision 2, that—

“The widow and children, constituting the family of the deceased, shall have such reasonable allowance out of the personal estate as the probate court shall judge necessary for their maintenance during the progress of the settlement of the estate, according to their circumstances, which, in case of an insolvent estate, shall not be longer than one year after granting administration, nor for any time after the dower and personal estate shall be assigned to the widow.”

It is evident that: under these statutes the probate court is vested with discretionary power in determining the amount of the allowance, and that the widow is absolutely entitled, under section 5755, to have her reasonable sustenance for one year from her husbands death. In Pulling v. Probate Judge, 88 Mich. 387, it was held that the. widow is entitled, as matter of law, to this allowance; and, in ease the husband died testate, the judge of probate may use his discretion as to continuing the allowance during the progress of the settlement of the estate, but never for a longer period than until' her share is assigned to her. It was further held in that case that it is the duty of the widow applying for an allowance out of her husband’s estate after the expiration of the statutory year to make some showing of her needs and circumstances, if required by the probate judge.

The allowance in the present case covered a period of about 22 months. She was entitled to the allowance absolutely for one year, and there is nothing upon this record showing that the probate court was not fully advised of the needs and circumstances of the widow at the time the order was made, which carried the allowance some 10 months beyond one year. We see-no good reason for saying, under the circumstances here stated, that the widow could not make claim for this allowance after her marriage as well as before. She was absolutely entitled to it for one year, and it was within the discretion of the probate judge to niake further allowance to her during the progress of the settlement of the estate. It is conceded that, if she had made this petition at any time during her widowhood, the probate court would have had power to make the order. But it -tfould have been frivolous for the widow to make claim for an allowance until there was money in the estate upon which the order could operate. As soon as the moneys came into the hands of the administrator, the application was made. We quote with approval from the opinion of the court in Lisk v. Lisk, 155 Mass. 153, 154, upon this subject:

“It has never been held that, because the necessities of a widow have been relieved through the charity of friends or in some other way outside of herself, she is deprived of the right given her by the statute to have them provided for by an allowance in the probate court, so long as there is personal estate undistributed in the hands of the executor or administrator. An application for a widow’s allowance ought to be made at an early stage of the proceedings before the probate court, and it ought not to be granted if it comes so late that the granting of it will cause embarrassment or difficulty in the settlement of the estate. Indeed, ordinarily the occasion for it ceases to exist within a short' time after the appointment of the executor or administrator. But if a widow has borrowed money for the relief of her necessities, or received it through charity, there is no reason why the means of repaying it should not be furnished her by an allowance out of her husband’s estate, to the same extent as if she had applied for the allowance before she obtained the means of relief.”

There is no more reason why she should not have the allowance covered by the period named in this „order because she remarried prior to the time the application was made than though she had borrowed money for the relief of her necessities, or had been supported by the charity of friends, as in the above case. Indeed, as to the year’s allowance, it is an absolute vested right, and the probate court would have no authority, under the statute, to withhold it from her. Brown v. Joiner, 77 Ga. 232; Dorah v. Dorah, 4 Ohio St. 292; Pulling v. Probate Judge, supra. We are satisfied that the probate court not only had the power, under the statute, to make the order complained of, but that there was no abuse of discretion in the amount ordered to be paid. The circuit court refused to disturb that ruling, and, we think, properly.

The judgment of the court below will be affirmed.

The other Justices concurred.