author: Grant, J.

text:
    SMEDLEY v. SOULE.
    Libel — Pleading—Damages—Evidence—Privilege—Malice.

       1. In an action for libel, plaintiff, in order to recover for damages in his profession, must, in his declaration, connect the libel by the proper colloquium with his profession, and allege special damages.
    2. Where no loss of business is shown, no damage can be recovered for injury, to one’s profession.
    3. Act No. 216, Pub. Acts 1895, providing that the jury, in rendering their verdict, shall state the amount they award for injury to feelings, and the amount of other damages, is constitutional.
    4. Plaintiff, an attorney, presented a bill for legal services to a municipality. The common council were evenly divided upon its allowance. The bill was allowed by the casting vote of the mayor. The mayor being a candidate for re-election, defendants published a circular reading as follows: “Does any citizen believe that he [the mayor] did not have a ‘ divy ’ in the notorious fraudulent Smedley bill? * * * The notorious Smedley bill, that the mayor has included as one of the items the people are asked by him to bond the city to pay, don’t have to be paid. Judge Padgham has taken care of that. The people will not have to stand that fraud.” Held, that the publication was libelous per se.

    5. Where the defendants admit that they had no foundation whatever for the publication of the libel, and no reason to believe it was true as to the plaintiff, the rule of privilege has no application.
    6. Where the publication is libelous per se, and charges criminal or disreputable conduct, express malice may be inferred from such reckless charges. Malice, in such case, cannot be conclusively disproved by the testimony of the defendants that they had none.
    Error to Kent; Grove, J.
    Submitted October 2, 1900.
    Decided November 13, 1900.

      Case by Charles O. Smedley against Charles E. Soule and others for libel. From a judgment for plaintiff, defendants bring error.
    Reversed.
    Plaintiff is an attorney at law residing in the city of Grand Rapids. He was employed by the mayor of the city of Grand Haven, on behalf of the city, in a case which involved the veto power of the mayor. The circumstances of that litigation are stated in Baar v. Kirby, 118 Mich. 392 (76 N. W. 754). For such services plaintiff presented a bill against the city. The council were a tie upon its allowance. The mayor, claiming the right to vote in case of a tie, voted for it. The clerk refused to issue his warrant for the amount. Thereupon plaintiff brought suit in the Ottawa circuit court by mandamus to. compel the clerk to issue it. He was defeated there, and brought the case to this court. A statement of that case will be found in Smedley v. Kirby, 120 Mich. 253 (79 N. W. 187). Subsequently the question of bonding the city to pay certain of its indebtedness, including plaintiff’s bill, was submitted to a vote of the electors. That submission took place before the decision in this court of Smedley v. Kirby. The mayor issued a manifesto urging the electors to vote for the bonds. The defendants — four of them aldermen and the other the city attorney — issued a circular in opposition to that of the mayor. This circular contained the following language:
    “Does any citizen believe that he [the mayor] did not have a ‘ divy ’ in the notorious fraudulent Smedley bill ? * * * The notorious Smedley bill, that the mayor has included as one of the items the people are asked by him to bond the city to pay, don’t have to be paid. Judge Padgham has taken care of that. The people will not have to stand that fraud.”
    The declaration, in setting forth this article, contains appropriate innuendoes that plaintiff had an agreement with the mayor to divide the amount ‘ of his services with him, that his bill was a fraudulent one, and that the circuit court had so decided. With their plea of the general issue the defendants filed a notice of special defense, claiming that they—
    ‘ ‘ Only imputed fraud to the mayor, and that their only reference to plaintiff’s name was in designating the bills as the mayor had designated them, and not to make any personal reference to the plaintiff; and that they did not impute, or intend to impute* any fraudulent, uncomplimentary, unprofessional, or other wrong conduct to the plaintiff in making said publication.”
    Plaintiff recovered verdict for $1,500, of which $500 was for injury to feelings and $1,000 for other damages.

      Walter I. Lillie and Charles E. Soule ( George A. Farr, of counsel), for appellants.

      Smedley & Corwin (Knappen & Kleinhans, of counsel), for appellee.

       Head-notes by Grant, J.

   Grant, J.

(after stating the facts). The court held, and so instructed the jury, that:

“ The declaration avers an injury to plaintiff’s fame and character as an attorney. * * * The publication complained of tends, upon the face of it, to the injury of plaintiff in respect to his profession and business.”

It is insisted that the declaration sets forth no injury to plaintiff in his professional or business capacity, but only in a general way to his feelings, credit, and reputation^ and that without such allegation no recovery can be had. The declaration is general. It states that he is an attorney at law and solicitor in chancery, residing in the city of Grand Rapids, and doing business in the counties of Kent, Allegan, and Ottawa, and especially in the city of Grand Haven; that he had many friends, acquaintances, and clients in said city of Grand Haven; that he acted in the conduct and management of said business with integrity and skill, and thereby derived and acquired great gain and profit; that he was reputed, esteemed, and accepted among all good and worthy citizens to be an attorney and a person of good name, fame, reputation, and credit in said counties; that the defendants, contriving and wickedly and maliciously intending to injure him in his good name, fame, and credit, and to bring him into public scandal, infamy, disrepute, and disgrace among his neighbors, published the libel complained of. After setting forth the libel and appropriate innuendoes, the declaration alleges that “by means of the committing of said several grievances • * * * he hath been and is greatly injured in his good name, fame, and credit, and brought into public scandal, infamy, and disgrace with and amongst all his neighbors,” etc. The declaration does not allege any loss or injury to his profession, and the record is barren of any evidence tending to show any such loss or injury.

The learned counsel for plaintiff cited Henkel v. Schaub, 94 Mich. 542 (54 N. W. 293). The distinction between the declaration in that case and this is apparent upon examination. In that case the declaration expressly alleges the intent to “injure plaintiffs in their property by bringing said property into bad repute and lessening the value thereof.” It expressly alleges a loss and damage to the plaintiffs by reason of the libel; alleges of what the loss consisted, and that the amount thereof was $600. The declaration in this case does not attempt to allege injury to plaintiff in his profession, or that he has been injured therein. It is urged that a presentation of a bill by an attorney is a necessary incident to his business, and any disreputable conduct alleged in connection therewith should be held to be, upon its face, spoken of him in his profession. If plaintiff had not performed these services, but the claim for such services rendered by another had been assigned to plaintiff, and he had presented that claim to the common council, and the same charge made, could it be said that that was an attack upon him as an attorney, and without any colloquium to show that it was spoken of him as an attorney, or intended to injure him in his profession, and to allege resultant damages ?

Where A., a physician, brought an action for slander against C. for stating, that A. had been guilty of adultery, the declaration, as does this that plaintiff was an attorney, stated that A. was a physician. The declaration failed to allege that the act was committed while in the exercise of his profession, though it did allege that it was said—

“Of and concerning the said plaintiff, so carrying on such profession as aforesaid, and of and concerning him in his said profession, and of and concerning the said rumor and report, that is to say, ‘ Have you heard that it is out who are the parties in the crim. con. affair that has been so long talked about ? ”

The court arrested the judgment, and said:

“After full examination of the authorities, we think that in actions of this nature the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession.” Ayre v. Craven, 2 Adol. & E. 2.

That case was approved in Gilbert v. Field, 3 Caines, 329, in which case the declaration contained no colloquium respecting plaintiff’s profession. After stating the rule, the court say:

“The reason assigned for the rule is that, unless the words appear to be spoken concerning one’s profession, office, or trade, he cannot lose or be discredited thereby.’’

In Van Epps v. Jones, 50 Ga. 238, under a statute which, like ours, authorizes the recovery for damages to one’s profession, trade, or business, it is said:

“ The authorities indicate that the charge must be of something that affects his character generally in his trade. A particular act may or may not do this, aDd the matter would depend on the colloquium. But the authorities are uniform that the words must be charged to have been used in reference to one’s trade or profession. The speaker must have had the trade or profession of the plaintiff in view, and utter the words in reference to it; as if he should say of a grocery merchant he keeps false weights, or of a lawyer that he won’t pay his clients the money he collects for them. Starkie, Sland. 109, 126. It would be entirely a new ground of action to hold that it was actionable to utter of a lawyer that he refused to pay a particular debt, there being nothing in the words or in the colloquium to indicate that the speaker was alluding to him as a lawyer. Such a rule would put lawyers on a vantage ground that the law has not put them on. See Starkie, Sland. 109, 126.”

In McCallum v. Lambie, 145 Mass. 234 (13 N. E. 899), the second count in the declaration alleged plaintiff to be a merchant and manufacturer, and that the publication greatly injured him in his trade, business, and employment. Held, on demurrer, to be insufficient, because he did not allege that the “ words were published of and concerning the plaintiff in his trade, business, or profession.”

It is common in all actions for libel and slander for* the plaintiff to allege not only his good name, etc., as a citizen, but also to allege his business or profession; and the mere fact that such occupation or business is stated in the declaration is not sufficient to justify the inference that the libelous or slanderous article was uttered with reference to his particular business or profession, especially in the absence of any allegation that he has suffered pecuniary loss in his profession or business, but has only suffered loss in his good name, fame, and credit. What is there in such a declaration to notify a defendant that plaintiff claims injury to his profession or business, or that he would show pecuniary loss without alleging any, or that a jury should be turned loose in a realm of speculation to guess what loss in that direction plaintiff has sustained ? See Barnes v. Trundy, 31 Me. 321; James v. Brook, 9 Q. B. 7; Curry v. Collins, 37 Mo. 324; 13 Enc. Pl. & Prac. 38; Weiss v. Whittemore, 28 Mich. 366.

In Randall v. Evening News Ass’n, 79 Mich. 266 (44 N. W. 783, 7 L. R. A. 309), the declaration specifically and plainly charged that the publication complained of imputed to the plaintiff a “gross misconduct in the discharge of his official duties ” as a member of the legislature. If the declaration had alleged that the plaintiff in that case was an áttorney at law, clearly that allegation would not be sufficient for him to recover damages for injury to his profession; not even if he had alleged that he was so injured. All charges of disreputable or criminal conduct tend to injure every man in his profession, trade, or occupation; but the law does not permit recovery therefor unless the words be spoken of him in regard to such profession, trade, or occupation, and loss is alleged and proved. Every such plaintiff can recover for injury to feelings and damage to his reputation. If he desires to go beyond this, it is a wholesome rule to require him to connect the libelous charge by the proper colloquium with such profession, trade, or occupation, and to allege special damages.

We think this declaration was not sufficient to justify the court in submitting to the jury the question of damages in his profession.

The instructions were erroneous for another reason, viz., there is not a scintilla of evidence upon the record that the plaintiff was injured in his profession. Upon this the record is silent. If it should appear that plaintiff’s business had increased after the publication of this article, would the jury be justified in finding that he had suffered loss in consequence of the publication ? When one claims loss in his business or profession, it is certainly in his power to show such loss. Is it not a reasonable rule which requires him to do so before he can obtain a judgment ? When no su'ch loss is shown, the injury must be confined to injured feelings and injured reputation. This will afford ample opportunity for compensation resulting from the libelous publication, as will appear by reference to the case of Maclean v. Scripps, 52 Mich. 214 (17 N. W. 815, 18 N. W. 209), wherein plaintiff, a professor in the University of Michigan, recovered a verdict of $20,000. This point was settled in Scougale v. Sweet, 124 Mich. 311 (82 N. W. 1061), where we held that an award by the jury of $50 damages for injury to plaintiff’s office as sheriff of the county could not be sustained in the absence of any testimony to show any loss in such office.

Counsel assail Act No. 216 of the Public Acts of 1895 (sections 10423-10425, 3 Comp. Laws 1897) as unconstitutional, and cite Park v. Free Press Co., 72 Mich. 560 (40 N. W. 731, 1 L. R. A. 599, 16 Am. St. Rep. 544), and McGee v. Baumgartner, 121 Mich. 287 (80 N. W. 21). In the latter case we declined to pass upon its constitutionality, as a determination upon that point was unnecessary. We held that the legislature could not take from the plaintiff the right to recover for injury to his reputation. The difference between the act involved in Park v. Free Press Co. and the present act will appear upon a comparison of the two. In that case the court pointed out that that act deprived a woman slandered in her chastity from recovering damages; also a man whose income was from salary, or from a fixed investment. It was held that this was beyond the power of constitutional legislation. The act of 1895 does not attempt to deprive a party of his right of action for any libel or slander which existed at the common law. It merely provides that the jury, in rendering their verdict, shall state the amount they award for injury to feelings and the amount for other damages mentioned. We see nothing unconstitutional in this provision of the act.

This publication was libelous per se. The plain inference from the article is that the plaintiff and the mayor had entered into an agreement to defraud the city, and had agreed to divide .between them the amount of the bill that was allowed. Such conduct would be disreputable and corrupt, if not criminal. The mayor alone could not make such an agreement to “have a divy.” Upon the face of the article it charged plaintiff with the same conduct that it charged upon the mayor, and that one was as guilty as the other. Bourreseau v. Journal Co., 63 Mich. 425 (30 N. W. 376, 6 Am. St. Rep. 320).

It is urged that the publication was one of qualified privilege. This is not a case for the application of the rule of privilege, absolute or qualified. Defendants all admitted that they had no ground whatever for charging plaintiff with being a party to this corrupt agreement. On the contrary, they admitted in open court that plaintiff was in no way connected with the mayor in the controversy between the mayor and the council. The only defense they could make for the publication of such an article would be its truth, or their honest belief of its truth. But when it is admitted that they had no foundation for such belief, the question of privilege is excluded from consideration; and the court correctly charged the jury that the defendants were liable for whatever damages plaintiff sustained by virtue of its publication. Belknap v. Ball, 83 Mich. 583 (47 N. W. 674, 11 L. R. A. 72, 21 Am. St. Rep. 622); Bronson v. Bruce, 59 Mich. 467 (26 N. W. 671, 60 Am. Rep. 307).

It is urged that there was no malice, because the defendants all testified that they had no malice against the plaintiff, and plaintiff testified in reply to a question by defendants’ counsel:

“You never believed that Judge Soule or these aider-men had anything personally against you, did you ?
“A. I believe that they printed anything and did anything they could against Mayor Baar,"and they didn’t care how they threw me on. When I read that circular, I was warm under the collar.
“Q. Just answer my question.
“A. Why, no; they never had anything against me; but I think they printed stuff, and didn’t care whom they talked about.”

Defendants could not charge plaintiff with crime or disreputable conduct, and then conclusively disprove'malice by testifying that they had no malice, or by the testimony of plaintiff that he did not believe they had anything personal against him, but were so reckless that they did not care what they said. Express malice may be inferred from such reckless charges; and, where the publication is not privileged, the question of malice is properly left to the jury. In reply to a special question, the jury found that there was express malice. We think there was sufficient testimony upon which to base the finding.

[ Subsequently, on plaintiff’s motion, the judgment was affirmed as to the $500 awarded by the jury for injury to feelings, on the filing of a remittitur as to the balance of the judgment. — Reporter. ]

Judgment reversed, and new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, C. J.

license: Public Domain

text:
    HOFFMAN v. LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO.
    1. Sale — Bill op Lading — Delivery—Title.
    Where a consignor attaches to the bill of lading a draft at 20 days, which the consignee refuses to honor unless the demur-rage charges are adjusted by the consignor, and the consignor, on being advised to that effect, directs the immediate delivery of the bill of lading, the consignee is invested with title, which will support a lien for freight charges incurred by him.
    2. Same — Partnership—Witnesses — Competency— Knowledge op Facts.
    Where a bill of lading was delivered to the purchaser of goods by one member of a firm in the absence of another member, the latter was incompetent to testify in regard to the purpose for which the delivery was made, since it was impossible for him to know what purpose his fellow partner had in making the delivery.
    3. Same — Rescission—Lien por Freight Charges.
    The vendor of goods fraudulently purchased cannot, by rescission, defeat the lien of a railroad company for freight charges accruing to it under contract entered into in good faith with the vendee.
    Error to Kalamazoo; Buck, J.
    Submitted October 3, 1900.
    Decided November 13, 1900.

      Replevin by Richard C. Hoffman and John T. Hill, copartners as R. C. Hoffman & Co., against the Lake Shore & Michigan Southern Railway Company. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Boudeman & Adams, for appellant.

      E. A. & Robert B. Crane, for appellees.
   Montgomery, C. J.

The plaintiffs recovered in an action of replevin. Defendant brings error. The circuit judge found the facts, and defendant excepted to certain of the findings. As all the testimony is returned, and in essential points undisputed, the material points in the case may be as well understood by a succinct statement of the essential facts as disclosed by the record as by setting out the findings, which are lengthy.

The plaintiffs are dealers in railroad supplies. In April, 1899, one C. H. Lawrence, as a representative of the International Construction Company, opened negotiations with the plaintiffs for the purchase of three car loads of railroad spikes, stating that the construction company intended to make use of them in building the Erie & Cambridge Spring road. On the 7th of May an order for 700 kegs of spikes was given for delivery, to be delivered the latter part of June to the middle of July; “terms, five days’ sight draft against bill of lading.” By mistake, plaintiffs, having overlooked the date fixed for shipment, ordei’ed the spikes from the manufacturers at once, and on the 12th of May wrote the construction company as follows:

“Referring to your letter of the 7th inst., ordering 700 kegs of spikes, we sent the order into the mill, and, through an inadvertence, the delivery latter part of June or first of July was overlooked, and we are today in -receipt of bill lading showing that shipment has been made. We have asked the R. R. Company to stop it, and in the meantime we would like to know from you whether you can receive these spikes now or not. We greatly regret the oversight, and trust you can take them.”

The construction company replied that they could not take the spikes except on 20 days’ draft. Plaintiffs replied :

“We are in receipt of and thank you for your T. D., stating that you will take the spikes if we will make draft in 20 days. We are very anxious to close this matter out, as we have next to no margin on it, and, as an inducement to do so, we wired you today if you would not accept them at a discount of 1 per cent., a day sight draft at onée. We trust you can do this.”

To this the cdmpany replied on the 20th:

“We cannot use spikes except on terms as made you, viz., 20 days’ draft attached to bill of lading.”

Plaintiffs on the 23d made draft at 20 days attached to bill of lading. The construction company refused to accept the draft unless the bill of lading should be delivered, and explained their action by letter on the 30th:

“We beg to acknowledge the receipt of yours under date of May 27, 1899, and in reply to same would say we accepted your draft, and the next day the bank messenger returned, saying that the instructions from the Baltimore bank were not to deliver the papers until the draft was paid. You will understand that the demurrage on the three cars of spikes will amount to f6 per- day, which will amount to $120, and, with the price of $120 added to the price of the spikes, there would be no economy by purchasing them at your figure. Of course, this is neither here nor there. If you can arrange to hold the spikes in the cars at the point of shipment, or arrange so there will be no demurrage, we have no objections to accepting the draft, and allowing the bill of lading to remain with it until it is paid: Kindly’advise us if you can do this, and there will be no trouble about the acceptance or the payment of the draft when due.”

To this the plaintiffs replied as follows:

“We are in receipt of your letter of the 30th ult., in regard to the draft attached to the bill of lading. We directed the bank immediately on receipt of your telegram to deliver the bill of lading to you, and we suppose this has been done, and that everything will be all right.”

The company then accepted the draft by “E. R. Elmer,” received the bill of lading, presented the same to the company and reshipped two car loads of the spikes to Kalamazoo, Mich. The cars came into the possession of the defendant company from connecting lines, and the defendant claims a lien on the spikes for the freight advanced, and for the freight earned by its own services, and for demurrage, amounting to $318. No tender of payment of these charges was made prior to bringing suit.

In addition to the above facts, certain facts were found by the circuit judge which it is claimed the testimony wholly fails to support. These findings are numbered 10, 11, and 16, and are as follows:

“10. That the said C. H. Lawrence, pretending to represent a company styled the International Construction Company, fraudulently represented to the plaintiffs that he desired to unload the spikes from off the cars at Erie, Pennsylvania, to save demurrage, and that to do so it would be necessary for him to have the bill of lading; that on these representations he sought and obtained the same for that purpose only.
“11. That plaintiffs, relying on these fraudulent representations, consented to the bill of lading being delivered to said C. H. Lawrence for the sole purpose of permitting the spikes to be unloaded from the cars at Erie, Pennsylvania, and for no other purpose.”
“16. That the plaintiffs never intended to part with the title or possession of the spikes till they were paid for, and that they only consented to the surrender of the bill of lading for the purpose of permitting the spikes to be unloaded at Erie, Pennsylvania.”

An examination of the record discloses that the only competent testimony to support these findings is that contained in the correspondence above quoted. We think this evidence does not support the findings. The original shipment was without the authority of the construction company. The proposition to accept the goods on the terms of 20 days’ draft attached to bill of lading, and the drawing of the draft in pursuance thereof, did not pass title or the right of possession to the purchaser. W. & A. McArthur Co. v. Old Second Nat. Bank, 122 Mich. 223 (81 N. W. 92). But when, on learning that large demurrage charges would be made, the construction company refused to accept the draft, and suggested a new airangement, the plaintiffs, instead of accepting this proposition, directed the delivery of the bill of lading to the construction company on acceptance of the draft. The bill of lading was so delivered. What is the inference ? We think it clear that this act manifested an intention of extending credit to the construction company and to pass the title to the property to them. Mr. Hill, one of the members of the firm, was permitted to testify that the object in surrendering the bill of lading was to permit the construction company to unload the spikes from the cars; but, as the bill of lading was surrendered in his absence by Mr. Hoffman, it is manifest that the witness could not know what purpose his partner had in surrendering the possession of the spikes. The only competent evidence on this subject was the correspondence, and this shows a delivery to the construction company without reserve. If, then,' we assume that there was fraud in the purchase by the construction company, the question is presented as to whether the plaintiffs, on rescinding the sale for fraud, are entitled to recover the spikes freed of the lien acquired by the railway company.

The plaintiffs’ counsel contend that the title to the spikes never passed to the construction company; but, as we have seen, this proposition is untenable, and, this being so, the railway company received the goods from one in whom the plaintiffs had vested title, and, as is conceded, performed services in good faith, and in reliance on the apparent ownership of the construction company. This case is not different in principle than when the fraudulent purchaser has, before rescission, mortgaged or sold the goods purchased to a bona fide third party. In such case the rule that, where one of two innocent parties must suffer for the wrong of a third person, that one shall bear the loss who has placed it in the power of the wrong-doer to work the injury, applies. For cases applying this rule in circumstances analogous to those surrounding this case, see Zucker v. Karpeles, 88 Mich. 430 (50 N. W. 373); Pangborn v. Ruemenapp, 74 Mich. 572 (42 N. W. 78); Hoffman v. Noble, 6 Metc. (Mass.) 68 (39 Am. Dec. 711).

The lien of defendant should be sustained. The judgment will be reversed, and a judgment entered in this court in favor of defendant for the amount of the lien, with costs of both courts.

The other Justices concurred.


author: Hookes,, J.

text:
    TAFT v. SIMPSON.

    1. Deeds — Validity—Acknowledgment.
    A deed which, is good at common law is valid as between the parties, and as against the grantor’s heirs or devisees, though the notary did not sign the acknowledgment till after the grantor’s death.
    2. Same — Omission of Revenue Stamp — Intent — Burden of Proof.
    One who attacks the validity of a deed because of the absence of the required revenue stamp has the burden of proving that the omission was with fraudulent intent.

    Appeal from St. Joseph; Yaple, J.
    Submitted October 4, 1900.
    Decided November 13, 1900.
    Bill by' Lydia A. Taft against James Wray Simpson to set aside a deed. From a decree for complainant, defendant appeals.
    Reversed.

      Howard, Boos & Howard, for complainant.

      Frank F. Knappen and Hugh P. Stewart, for defendant.

       Rehearing denied June 24, 1901.

       As to effect of omission to stamp an instrument on which the law requires a stamp, or to cancel stamps on such an instrument, see note to Knox v. Rossi, (Nev.) 48 L. R. A. 305.

   Hookes,, J.

Seth Taft was the owner of a farm in St. Joseph county, and the father of two children, James H. and Lydia A. Taft, both unmarried, and both well advanced in years. The family lived upon Seth Taft’s farm. James H. Taft was engaged in the business of raising Hampshire sheep, and was well to do. He owned a farm, without buildings, across the road from his father’s place, which farm his father had given him. In December, 1897, Seth and Lydia Taft went to California to reside, leaving James H. upon the home farm. In the spring of 1898 James H. Taft and his uncle, James Simpson, visited Ireland together. In September, 1898, James was taken with pains in his hip, and his disease was soon after diagnosed as a cancer, and on Tuesday, October 11th, he died, about 3 o’clock in the morning. In the afternoon of the previous day James Simpson went to Mendon, and procured a lawyer, who returned with him, and drew a deed conveying James H. Taft’s farm to James Wray Simpson, who is the son of James Simpson. He also made a bill of ■sale of Taft’s personal property to James Simpson, in trust to convert into money; pay his debts and funeral expenses, and the surplus to his father, Seth Taft. These papers were executed by James Taft, and a day or two later the deed was put on record. Lydia Taft filed the bill in this case, alleging that on February 20,1884, James H. Taft made his will, whereby he bequeathed to her a life estate in all his property, and left the remainder undisposed of, and that the same would descend to her father under the law; that her said father has since conveyed his interest to her, and she has become the owner of and is entitled to said farm. She alleges that, at the time said deed was made by James H. Taft, he was incompetent to make the same, and that it was procured by undue influence; and she prayed that said deed be declared void, and she decreed to' be the sole and absolute owner of the premises. In the circuit court the prayer of her bill was granted.

The question before us seems to be mainly one of fact, and from an examination of the testimony we are convinced that the deed was not procured through undue influence, and that when it was made the grantor was competent to make the same. We think it unnecessary to discuss the testimony, and therefore merely state our conclusion upon the question of fact.

At the time the deed was made, revenue stamps were not at hand, and they were afterwards supplied. The notary omitted to sign the acknowledgment. Both of these deficiencies were made good after Taft’s death. It is contended that it was beyond the power of the notary to make a certificate on another occasion, and that the stamp was not legally supplied, and therefore that the instrument is invalid.

Whether the deed was entitled to record or not is immaterial, as the original was produced, proved, and offered by the complainant, and was a good deed at common law. See Brown v. McCormick, 28 Mich. 215; Price v. Haynes, 37 Mich. 487; Taylor v. Youngs, 48 Mich. 268 (12 N. W. 208).

There is nothing in the case to indicate a fraudulent intent in the omission of the stamp. Under the former revenue law it was held by the great weight of authority that such intent must be shown by one seeking to have the instrument held invalid. See Ash’s Ann. Int. Rev. Laws, pp. 375, 376. See, also, Gibson v. Hibbard, 13 Mich. 214. We see no reason why the same rule should not be applied under the present law.

The decree of the circuit court is reversed, and the bill is dismissed, with costs of both courts.

The other Justices concurred.


author: Montgomery, O. J.

text:
    LEONARDSON v. SCHOOL DISTRICT NO. 3 OF TROY TOWNSHIP.
    School District — Contract—Agency—Ratification.
    Use by a school board, in calling a special meeting, of a blank form of notice prepared by a lawyer at the request of one who was not a member of the board, is insufficient to show a ratification on its part 'of a promise by such third person that the board would pay a specified sum for the legal services rendered.
    Error to Newaygo; Palmer, J.
    Submitted October 4, 1900.
    Decided November 13, 1900.

      Assumpsit by Warren D. Leonardson against school district No. 3 of Troy township for services rendered. Erom a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      TV. D. Leonardson, in pro. per.

      A. IP. Tibbitts, for appellee.
   Montgomery, O. J.

The plaintiff sues to recover the agreed compensation for procuring a loan of $800 for the defendant school district. The statement of counsel for the plaintiff in opening the case to the jury was that one Bassford, a resident of the district, came to him to procure his services on behalf of the district to procure a loan, and agreed that the compensation should be $15; that Bassford was not a member of the school 'board, and that no arrangement was made by plaintiff with the board, or any member thereof; that he had no knowledge of Bass-ford’s authority except what Bassford himself told him; that he prepared and handed to Mr. Bassford a draft for a call for a special meeting, and drafted and furnished to Bassford notices to be posted calling such meeting, and later mailed to the director forms of entries upon the record books of the meeting thereafter to be held; that thereafter plaintiff received from the district officials proof of the posting of the notices to hold said meeting theretofore held, all of which had been prepared by the plaintiff, and were duly signed by the respective officials of the district ; that the loan was not procured through plaintiff, but another person. The circuit judge, on this statement, directed a verdict for defendant, and plaintiff brings error.

It is apparently conceded that there is nothing shown or offered to show that Bassford had any original authority to bind the district, or that the board ever took any action looking to the obtaining of a loan through the plaintiff. The plaintiff, however, contends that the facts proposed to be shown would have tended to show a ratification of the contract with Bassford as one made on behalf of the district. It will be noticed that there was no offer to show that the director made use of the blanks sent him by mail. The only blanks which plaintiff offered to show were used were those intrusted to Bassford. Did the use of these blanks amount to a ratification ? It does not appear that the board knew of the terms of plaintiff’s alleged contract, or that he claimed to have a contract at all. The draft of notice which the board made use of was delivered to them by Bassford, and their use of such blanks, under the circumstances, did not amount to a ratification.

Judgment affirmed.

The other Justices concurred.


text:
    LITTLE v. BARRY.
    Lumbering Contract — Modification — Construction — Breach.
    Where a lumbering contract, which originally provided that defendants should stock plaintiffs? mill and that plaintiffs should saw for defendants exclusively, is modified to permit plaintiffs to “manufacture their own stock,” the parties should adjust by agreement the portion of stock each shall thereafter furnish; and where no such adjustment is made, and no notice is given defendants as to the portion required from them, no action will lie for breach of their contract.
    Error to Benzie; Aldrich, J.
    Submitted October 4, 1900.
    Decided November 13, 1900.

      Assumpsit by John Little, John R. Little, and Thomas Little, copartners as Little & Sons, against Thomas W. Barry and Thomas Kenny, copartners as Barry & Kenny, for the breach of a lumbering contract. Erom a judgment for plaintiffs, defendants bring error.
    Reversed.

      McAlvay & Grant, for appellants.

      D. G. IP. Warner and George G. Qovell, for appellees.
   Montgomery, C. J.

On the 10th of April, 1893, the defendants were the owners of a tract of timber adjacent to Edgewater, in Benzie county. On that date a contract was entered into between the parties as follows:

“That said parties of the first part, for and in consideration of the covenants and agreements on the part of the second parties, hereinafter mentioned, hereby covenant and agree to and with the said parties to manufacture for them, at Edgewater, lumber for the term of four years from on or about May 1, 1894, and shingles for a term of five years from said date; to saw said second parties’ logs into lumber and shingles of such grades as they may direct from time to time, and deliver over the rail of a vessel said manufactured lumber and said shingles, properly packed and branded; and the said first parties further agree to saw for no other parties, or allow their mill to be used to saw for other parties, during the time above specified.
“The said second parties, in consideration of the above covenants, hereby covenant to and with the said first parties to stock their mill at Edgewater as follows: For the lumber mill, for the term of four years from on or about May 1st, at the rate of two million feet per year, or eight million in all; for the shingle mill, for the term of five years from said date, such an amount of logs as will be required to keep two hand machines running during the running season of each year. To pay said first parties for the lumber properly manufactured, and delivered over the rail of a vessel, at the rate of three dollars and twenty cents per thousand feet, board measure, for the hardwood lumber, and two dollars and twenty-five cents per thousand feet for the hemlock and pine lumber; and to pay for the shingles properly sawed, packed, and branded, and delivered over the rail of a vessel, as follows: Cedar shingles, firsts, 92{- cents per thousand; cedar shingles, seconds, 55 cents per thousand; pine shingles, firsts, 82£ cents per thousand; pine shingles, seconds, 55 cents per thousand.”

Some delay occurred in getting the shingle mill into operation. On October 17, 1894, the contract was modified as follows:

“That the said second party is hereby relieved from furnishing and delivering under the agreement hereto attached, and of which this is a part, more than one million feet of logs per yéar, reserving the privilege and right to furnish the entire amount mentioned in said contract, according to the terms thereof. The said first party is no longer bound by that clause in said contract which prohibits them from using their lumber mill to saw for other parties during the time for carrying out said contract, shingle mill excepted, for the manufacture of their own stock only. But it is understood that nothing herein contained shall change or affect said contract in any other particular than is expressly mentioned herein.”

This action is brought for a breach of contract in supplying the shingle mill with timber according to the terms of the contract. It was conceded on the trial that defendants had fully complied with their contract to furnish logs for the sawmill. The plaintiffs recovered a judgment for $3,510, and defendants bring error.

It is contended by defendants’ counsel that .the supplemental agreement relieved the defendants from supplying stock for shingles, at least to this extent: That the contract left the parties to adjust by agreement the proportion of stock each would furnish the shingle mill, and in the absence of any agreement, and in the absence of any notice by plaintiffs as to the amount of shingle stock they proposed to manufacture each year, the defendants would be left to use their own judgment as to stocking the shingle mill. The circuit judge took a different view, and held that the original contract made it the duty of defendants to furnish such a quantity of shingle timber as would be required to keep two hand machines running, and that under the amended contract their duty continued. This ruling presents the question of the greatest difficulty in the case. The amendatory contract is not as clear in its terms as could be desired. Plaintiffs’ counsel state their position as follows:

“Under the agreement the court justly held that, so far as the shingle mill was concerned, it was agreed ‘ that the plaintiffs might manufacture shingles for themselves, but it was not modified to permit the plaintiffs to manufacture for any other persons than the defendants.’ While the defendants contend that the plaintiffs could manufacture their own stock of shingles a-s they desired, it would be absurd for any person to say that under this contract they could keep their mill running, manufacturing their own shingles at all times, and ignore this contract as to the manufacture of shingles for the defendants, as they undertake to contend in their brief. Defendants virtually say in their brief that the plaintiffs might have used this mill continually for manufacture of their own stock. If such was a fact, they would be under no obligations whatever to manufacture any shingles for the defendants; and, if this contract or agreement can be so construed, we frankly admit that the plaintiffs have no case, and had no case when it was tried, and that the plaintiffs have been in error in their understanding of the same, and that the court and jury were in error at the time of the trial.”

This concession is not, in our view, too broad, when it is considered that the owner of timber must make preparation to get out the timber some months in advance. How are we able to say that the plaintiffs did not reserve the right to manufacture shingles on their own account for any considerable portion of the time without reading it into the contract ? It is in evidence that they did use the shingle mill for some portion of the time in sawing their own shingles. ' In doing so they were plainly acting upon the express authority given by the amendatory contract, and as plainly they were putting it out of their power to manufacture shingles for defendants up to the full capacity of the mill. At what point, then, did plaintiffs’ right to continue the manufacture of shingles on their own account cease ? It clearly was a right inconsistent with a duty to manufacture to the full capacity of the mill for defendants, and we think it equally clear that the obligation of defendants did not extend to furnishing for manufacture material which the plaintiffs were not bound to manufacture when delivered. If the plaintiffs had given notice to the defendants of the amount of shingle timber desired, it would have become defendants’ duty to furnish it within the limits of the capacity of the mill; but, in the absence of such notice, we are unable to sa.y that the defendants were in default, and, judging from the plaintiffs’ concession, it is to be assumed that no such notice was given. In any view, the charge of the court stated the defendants’ obligation too broadly.

As the view expressed apparently disposes of the case, we do not deem it necessary to discuss the other questions presented.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


author: Moore, J.

text:
    ECKLER v. ALDEN.
    Deeds — Recital of Consideration — Parol Evidence.
    Though a deed recites an adequate consideration and its receipt, the grantor therein may, under a bill to set the deed aside, introduce parol evidence to deny consideration in toto.

    Appeal from Montcalm; Davis, J.
    Submitted October 5, 1900.
    Decided November 13, 1900
    Bill by Amanda Eckler against Avery E. Alden and Josephine Alden to set aside certain deeds. From a decree for complainant, defendants appeal.
    Affirmed.

      M. Brown, for complainant.

      G. W. Perry (N. O. Griswold, of counsel), for defendants.
   Moore, J.

The defendants are husband and wife. The complainant is 78 years of age. She made to defendants deeds of certain real estate described in the bill of complaint. She filed this bill to have those deeds set aside. The witnesses were examined in open court. A decree was granted in her favor, from which decree the defendants have appealed. Their solicitors state in their brief the questions involved in this case are:

First. "Was the deed of the property in question, under date of December 21, 1893, executed in consideration of the promise of Dr. Alden to provide a home for her, or were all negotiations and acts of the parties in relation to the care and maintenance of complainant by defendants had subsequent thereto and irrespective thereof ?
Second. Does the law permit a grantor in a deed under seal, properly acknowledged and delivered, and reciting an adequate consideration, and its receipt by the grantor, to deny such consideration in toto, for the purpose of rendering the deed void ?

The first of these questions is one of fact. The testimony is conflicting. The witnesses were sworn in the presence of the circuit judge, who had better opportunity to judge of their truthfulness than we have. It would not profit any one to recite here what is shown by the record. We are satisfied, from its perusal, with the conclusion reached by the circuit judge.

The answer to the second question is found in the following cases: Church v. Case, 110 Mich. 621 (68 N. W. 424); Breitenwischer v. Clough, 111 Mich. 6 (69 N. W. 88, 66 Am. St. Rep. 372); Ford v. Savage, 111 Mich. 144 (69 N. W. 240); Clark v. Lowe, 113 Mich. 352 (71 N. W. 638); and the many cases cited therein.

It is urged that, if a decree is given to the complainant, it ought to be modified, because one of the defendants had expended a good deal of money in making repairs. He has had the use of the premises for seven years. This use of the premises is quite as valuable as the sum expended in repairs.

The decree is affirmed, with costs.

The other Justices concurred.


author: Hooker, J.

text:
    DASCHKE v. SCHELLENBERG.
    1. Mechanics’ Liens — Unsworn Bill — Demurrer.
    A bill to enforce a mechanic’s lien, not> sworn to, as required by 3 Comp. Laws 1897, § 10719, is demurrable.
    2. Same — Jurisdiction—Amendments.
    Where defendant in a bill to enforce a mechanic’s lien is served with subpoena and duly appears, he cannot object to a verification of the bill being introduced by amendment after the time within which such bills may be filed, on the ground that a sworn bill is essential to confer jurisdiction, since jurisdiction is acquired by the service and appearance.

      Appeal from Wayne; Frazer, J.
    Submitted October 5, 1900.
    Decided November 13, 1900.
    Bill by John Daschke and another against Harry L. Schellenberg and others to enforce a mechanic’s lien. From an order overruling a demurrer to the bill, defendant Schellenberg appeals.
    Reversed.

      James D. May, for complainants.

      Franklin L. Lord, for appellant.
   Hooker, J.

The complainants’ bill was filed to enforce a mechanic’s lien. Subpoena was duly served, and defendant appeared, and demanded a copy of the bill, which was served in due season. Thereafter defendant filed a demurrer, alleging that the bill was defective because it had not been sworn to. The court overruled the demurrer on January 16, 1900. The defendant filed a claim of appeal on February 12th. It appears to be undisputed that such bills must be sworn (3 Comp. Laws 1897, § 10719), and defendant’s demurrer should have been sustained (3 Enc. Pl. & Prac. 371; 6 Enc. Pl. & Prac. 408, 409; Sill v. Ketchum, Har. Ch. 425), or, if denied, it should have been upon amendment of the bill, which is permissible, as to such defect, under 3 Comp. Laws 1897, § 10736.

Counsel argues that a sworn bill is essential to confer jurisdiction upon the court, and that it cannot be acquired by amendment after the period prescribed by law for filing a bill has expired. This was a proceeding not essential to the creation of a lien, but looking to the enforce-, ment of one already created. Jurisdiction of the party was acquired by service of subpoena and appearance; and, if there would otherwise be any doubt of the authority of the court to save the proceeding and the lien by permitting an amendment, we consider that the statute intended to confer it.

The order is reversed, but with leave to the complainants to amend within 80 days nunc pro tunc on payment of costs of the proceedings upon demurrer in both courts, failing in which the bill will be dismissed, with costs of both courts.

The other Justices concurred.


text:
    WALBRIDGE v. TULLER.
    1. Bills and Notes — Consideration—Denial.
    One who indorses her past-due note with a statement that she agrees, for a valuable consideration, to pay the same two years from date of the indorsement, cannot support a defense of want of consideration for the note by testimony that the payee was heard to say, at a time prior to the indorsement, that the note was not to be collected during the maker’s lifetime.
    2. Same — Defenses—Special Notice.
    Under Circuit Court Rule No. 7, subd. c, requiring a defense of “failureof consideration” to an instrument declared upon to be set forth by '.notice added to defendant’s plea, the defense of want of consideration for a note in suit must be so set forth in order to be available at the trial; the language of the rule being used in its broad sense.
    3. Same — Amendment During Trial — Abuse of Discretion.
    It is not an abuse of discretion for the court, in an action on a note, to refuse to permit defendant to amend his plea, after the trial has been entered upon, so as to set up want of consideration as a special defense.
    4. Evidence — Value of Services — Opinion—Foundation.
    In an action by an administrator to recover for personal services of his decedent, a claim of error in permitting plaintiff to testify as to their value, basing his opinion on personal knowledge of the services, not disclosed to the jury, is untenable, where he gave the history of the services, and based his estimate thereon.

      5. Same — Relevancy.
    Where a claim oí indebtedness at a certain time is disputed, evidence that the alleged debtor was at the time an indorser of paper for the creditor's son-in-law, which the maker subsequently paid, and that the creditor signed an agreement to save the inaorser harmless, is irrelevant.
    Error -to Clinton; Daboll, J.
    Submitted October 5, 1900.
    Decided November 13, 1900.

      Assumpsit by Henry E. Walbridge, administrator of the estate of Henry Walbridge, deceased, against Elizabeth Tuller, upon a promissory note and for professional services rendered by decedent. Erom a judgment for plaintiff, defendant brings error.
    Affirmed.

      Flowers & Moloney, for appellant.

      Fedeioa & Walbridge (Spaulding, Norton & Fooling, of counsel), for appellee.
   Montgomery, C. J.

This action was brought by Henry Walbridge in his lifetime, and after his decease was revived in the name of his administrator. The action was founded on a promissory note of $4,260.25, dated February 4, 1887, upon which there was an indorsement as of its date of $260.25, leaving the face of the note $4,000. On the 2d of August, 1893, there was an indorsement on the back of the note, signed by defendant, reading, “For a valuable consideration, I hereby agree to pay the said note in two years from date.” The note of February 4, 1887, recited-that it was given for the amount of principal and interest of a note given August 7, 1880, for $3,000. The plaintiff made a further claim for services as attorney from the date of the $3,000 note to January 1, 1899, at the rate of $300 per year. The services consisted in looking after defendant’s property, securing tenants, attending to repairs, and attending to some cases in court. The plaintiff recovered a verdict and judgment for $9,-094.65, and defendant brings error.

It is contended that the court erred in refusing to submit to the jury the question whether there was any consideration for the note sued upon. The testimony which is said to have raised this issue is that of Louise Tuller, who testified that deceased stated to her that the note was not to be collected during the life,of her mother or herself. If it were competent to vary the terms of the note by such a parol agreement, this testimony could not be given, for the reason that the witness stated the conversation to have occurred .either in 1892 or 1893, at Christmas time. The indorsement on the note made by defendant in August, 1893, purported to be for a valuable consideration, and fixed the time of payment at two years from date. The testimony of Louise Tuller does not show that the alleged conversation with her occurred at a later date, and therefore raises no issue.

Defendant’s counsel further contend that the court erred in refusing to admit evidence of a want of consideration for the note under the plea of the general issue, and, further, that, if the testimony should he held inadmissible under this plea, the court erred in refusing an amendment. The statute (section 10074, 3 Comp. Laws 1897) provides that the Supreme Court may make such rules in relation to notice of matters intended to be given in evidence by either party as shall be necessary to prevent surprise and afford an opportunity for preparation for trial. Under the authority conferred by this section, Cir. Ct. Rule No. 7 was adopted, subdivision c of which reads as follows:

“Whenever it shall be claimed in defense that any written instrument set forth in the plaintiff’s declaration is void or voidable, or cannot be recovered upon by reason of any statute, or by reason of nondelivery, failure of consideration', fraud, payment, discharge, or release, the facts upon which such defense is based shall be plainly set forth in a notice added to the defendant’s plea.”

The purpose of this rule is plain. Under the former practice many defenses were open under the general issue which plaintiff might not be prepared to meet. It was to obviate this difficulty that the court adopted this provision, intending that the plaintiff might stand with safety upon his declaration setting out a written instrument, without being put to the trouble or expense of preparing to meet a defense inconsistent with the validity of such instrument, unless either the execution was denied under Rule 8, or notice of a purpose to claim its invalidity or discharge was given under Rule 7. “Failure of consideration ” was used in its broad sense, and includes want of consideration, as we think is apparent from the context. Defendant’s counsel appear to have so construed the rule, as a motion was made at the trial to amend the plea by adding a notice of want of consideration.

Error is also assigned on the ruling of the court in refusing to permit the proposed amendment. It is conceded that the granting or refusing an amendment rests in the sound discretion of the trial judge, and such has been our holding. Pratt v. Montcalm Circuit Judge, 105 Mich. 505 (63 N. W. 506); Rawlings v. Fisher, 110 Mich. 21 (67 N. W 977). The defendant’s counsel contend, however, that the ruling in this case was such an abuse of discretion as this court ought to correct on error; citing Pangborn v. Insurance Co,, 67 Mich. 683 (35 N. W. 814). The case cited was, however, a case in which the application was made in advance of the trial, and the case showed that the plaintiff would not have been surprised or misled by the amendment. In the present case no application to amend was made until the trial was actually entered upon. We do not think that, under the showing made, the action of the trial judge can be held to have been an abuse of discretion.

Error is assigned upon a ruling permitting Henry E. Walbridge to testify as to the value of the services rendered for defendant by deceased. It is claimed that he was permitted to testify as to the value, basing his opinion on his personal knowledge of the services rendered, not disclosed to the jury. We do not so read the record. The witness undertook to give, in as much detail as could be expected, the history of decedent’s services for defendant, and his estimate of which would- appear to be based on such services.

Defendant offered a memorandum in the handwriting of Henry Walbridge, and signed by him, stating that the defendant had indorsed a note signed by J. H. De May, and agreeing to save her harmless. This was dated April 20, 1889, before the indorsement agreeing to pay the note in two years was made; and it was admitted that the note to which the memorandum referred was paid by De May, and not by the defendant. This memorandum was offered as bearing on the testimony of Henry Walbridge, taken by deposition, that defendant had no money to pay him with, and that he did not need any money. We do not see how it tended to disprove either fact. That Mrs. Tuller was possessed of considerable property, so that her indorsement was good, is apparent. The fact that Mr. Walbridge’s son-in-law needed an indorser did not tend to prove that he (Mr. Walbridge) was in need of money.

The other assignments of error are without merit.

Judgment affirmed.

The other Justices concurred.


text:
    KELLOGG v. STEPHENS LUMBER CO.
    1. Master and Servant — Injury to Employe — Defective Appliance.
    Negligence on the part of a mill owner in causing the death of an employé, who was killed by being thrown onto a saw, which it was his duty to keep clear of slabs and other obstructions, cannot be predicated upon the fact that a wire screen, through which the sawyer, while operating the saw, kept watch of the saw clearer, became at times so clogged with sawdust as to obstruct his view, where there is nothing to show that it was so clogged on the occasion of the accident.

      3. Same — Assumption op Risk.
    A saw clearer who continues at work with knowledge that a screen separating him from the sawyer is frequently clogged with sawdust assumes the risk of injury arising from the inability of the sawyer to' see him through such screen.
    3. Same — Selection op Employés — Due Care.
    A mill owner is not chargeable with want of due care in the selection of a head sawyer because he fills the position by promotion from the next lower grade, instead of choosing a person of experience in the particular place.
    4. Same — Carelessness op Employé — Duty to Dismiss.
    A mill owner is not to be charged with negligence in failing to discharge a head sawyer upon proof merely that he occasionally conversed in a light, vein with fellow employés, thereby indicating that his attention was not centered upon his work.
    Error to Otsego; Sharpe, J.
    Submitted October 9, 1900.
    Decided November 13, 1900.
    Case by Julia Kellogg, administratrix of the estate of Frank Kellogg, deceased, against the Stephens Lumber Company, for negligently causing the death of plaintiff’s intestate. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Arthur M. Johnson and Smurthwaite & Foivler, for appellant.

      W. L. Townsend (Humphrey & Grant, of counsel), for appellee.
   Hooker, J.

The defendant owned and operated a sawmill, in which plaintiff’s intestate worked in the capacity of a laborer, and, at the time of the accident which caused his death, his business was “ clearing the saw;” i. e., taking away the slabs and lumber which fell from the saw, and putting them upon rollers in motion, which removed them. To do this he stood in a space about 3-J- or 3 feet long, between the saw table and the “live rollers.” The saw that was being operated was a circular saw. It ran in a table 30 inches above the floor, upon which the saw clearer was expected to stand, and the live rollers were of the same height. The sawyer stood forward of, and to one side of, the saw, where the levers by which he controlled the machinery were situated. He faced the saw. A board screen was erected between him and the saw, to protect him from the flying sawdust and splinters made by the saw; and about the middle of this screen, about 4¶ feet above the table, there was a hole 10 or 12 inches square, covered by a wife screen, with meshes about 3-16 of an inch. This hole was for the sawyer to look through. The log carriage came from behind the sawyer, towards the saw, and necessarily ran the length of the log beyond the saw. The clearer stood on the opposite side of the saw, and back of it, as stated. On the occasion of the accident, a slab had been cut from a crooked log. It broke about the center; and it is the plaintiff’s theory that, after the slab was cut off, the sawyer ran the carriage back, and started it forward again into the log about 6 feet, when he was shouted at or signaled to stop the carriage by another employé, and he stopped it, but immediately started it backward again. Kellogg was striving to get the slab upon the live rollers, when the head-block upon the carriage struck the end of the slab and threw him upon the saw, which cut his legs, and he bled to death. It was claimed upon the part of the plaintiff that the defendant did not furnish a safe place for the intestate to work, and that it set him at work with an incompetent fellow-servant; i. e., the sawyer. A claim was made that the defendant did not supply adequate help to clear the saw, but that appears to have been abandoned. The circuit judge directed a verdict for the defendant, and the plaintiff has appealed.

It was plaintiff’s claim that the wire netting was not a proper appliance to be used in connection with the partition or screen. It is evident from the testimony that, in mills of this kind, partitions for the protection of the sawyer are essential, and are in common use; and, while one witness said that a mill could be run without a screen over the hole, it is apparent that an open hole would subject the sawyer to the danger of sawdust in his eyes. Indeed, the claim of the plaintiff rests upon the proposition that this screen was an unfit appliance because it would get clogged with sawdust and obscure the vision of one attempting to look through it- thus showing the necessity of some obstruction to the sawdust, and no claim seems to have been made that the sawyer could not see through a screen not covered with sawdust. It is admitted that glass would be worse than the wire, and, in our opinion, the testimony conclusively shows that the wire screen was a reasonably safe and proper part of a necessary partition. It was shown that, when obscured by sawdust, it was easily cleared by a tap of the hand or a stick. Even were we to say that it would have been competent for the jury to find that this wire screen, if covered with sawdust, rendered the premises unsafe, it would be necessary for them to find that the accident resulted from that cause. Our attention is not called to any testimony tending to show that it was obscured on this occasion, and, on the contrary, there is the uncontradicted testimony of the sawyer that there was no difficulty about seeing the saw clearer, that he kept the screen clean by the use of a broom and a stick kept for the purpose, and that he saw him but a minute before he was hurt. Again, the inability of the sawyer to see through the screen, by reason of the tendency of sawdust to obstruct the vision, was as apparent to the deceased as any one. He had worked in the capacity of clearer for some time, and should have been aware of its dangers, and the necessity that the sawyer be in a position to see him while at work, if it was necessary.

It is urged that the defendant was negligent in keeping an incompetent servant in its employ, and it is maintained that the sawyer was a careless, though otherwise competent, man. The circuit judge thought that the evidence showed that he was competent when he was emploj-ed, and that, if he was careless later, there was nothing to show that the fact was brought to the defendant’s attention. The testimony showed that Grant Bettesworth, the sawyer, had worked in the mill for 12 years; that he commenced at the bottom, and worked up to the position of head sawyer. It goes without saying that, as he took each step upward, he was not an old and experienced man in his new position; and counsel argue that it was negligent to employ such a man. We think this is not so. If his experience about the mill had familiarized him with his new duties, his employer might justly consider him competent. If this were not so, and such men are to be held incompetent, there would soon be no competent men to employ, and no opportunity for laborers to advance to higher callings than that of common laborer. The burden was upon the plaintiff to show that the defendant did not use due care in the selection of a competent and ordinarily carefu'l sawyer, and in this she has utterly failed.

But it is said that the testimony affirmatively shows that Bettesworth was careless, and that the evidence justifies the inference, that the employer knew it. There is some testimony that tends to show that slabs accumulated on one or more occasions beyond the power or disposition of the clearer to take care of. One testifies that on one or more occasions he got out of the way to avoid accident. We are asked to conclude that this was carelessness upon the part of the sawyer, and to infer that he should stop the mill until the space Was entirely clear. Richard Chubb was one of these witnesses who saw the mill blocked with slabs three or four times, and he says that the foreman of the mill saw it so. He also stated that the sawyer looked around at the tally board when the saw was in the log on one' or more occasions. In the absence of proof, we cannot say that ordinary prudence in a sawyer forbids a glance at the tally board when the saw is in the logand the witness on cross-examination stated that:

‘ ‘ Mr. Bettesworth operates his saw as ordinary sawyers operate a saw, and ran this mill as circular saw mills are ordinarily run, — just about the same as ordinary, careful, and prudent circular sawyers run a saw. He ran it about the same as other circular sawyers in mills where I have worked.”

And his affidavit was produced, in which he stated that he had worked one season with him, and considered him a competent and careful sawyer.

Joseph Bloom testified that he worked in the mill, and had seen it blocked quite a few times, and on such occasions,—

“Of course, Mr. Bliss [the foreman] jumped over and gave us a hand, in order to keep the rollers clear, and threw them onto the floor; and on such occasions Mr. Kellogg, the deceased [who was clearing the saw], had to do the best he could with the slabs that were coming through the saw.”

From, this testimony it would appear that it was the ordinary way to keep the saw going, and, if Kellogg allowed slabs and other stuff to accumulate, there was other help at command to relieve the jam. Nobody testifies that this was an unusual way to run a mill, and, if there had been such testimony, the plaintiff’s intestate was necessarily fully aware of the method, and assumed the risk. But, furthermore, there was no glut of slabs on this occasion; there was barely one piece of a slab there; and, when the saw was gigging back, the deceased, from some cause, failed to get or keep it out of the way of the carriage, and bhe sawyer did not prevent the result.

Another witness testified that, one-half of the time he was there, the head and tail sawyers were talking about hunting ducks, and aiming sticks as though shooting ducks. In Baltimore Elevator Co. v. Neal, 65 Md. 438 (5 Atl. 338), it is said:

“Negligence, such as unfits a person for service, or such as renders it negligent in a master to retain him in his employ, must be habitual, rather than occasional, or of such a character as renders it imprudent to retain him in service. A single exceptional act of negligence will not prove a servant to be incapable or negligent.”

We think the evidence falls short of showing that the sawyer was an incompetent. No man is infallible. The majority of men have to obtain their livelihood by some kind of employment; and the law does not condemn them as incompetent, and practically blacklist them, by denying to the employer the right to hire them, without some well-founded reason for saying that they are unfitted, by reason of ignorance, physical or mental infirmity, or habit, to perform the ordinary duties of their callings. There is a practical side to such questions, that the law does not overlook; and it does not sanction the doctrine that, before a man can be safely employed, he must have attained the highest standard of skill, and never failed to do exactly the best thing under the circumstances.

The learned circuit judge could do nothing else than to hold that the plaintiff had failed to prove that the loss of her husband was due to the defendant’s negligence, and his judgment is affirmed.

The other Justices concurred.


text:
    JUDD v. JUDD.
    Divorce — Alimony—Refusal to Pay — Contempt—Retrospective Statute.
    Act No. 230, Pub. Acts 1899, giving the circuit court the power to punish as for contempt a person refusing to comply with an order for the payment of alimony, relates only to the remedy, and therefore applies to a defendant in a divorce suit wherein the decree for divorce and alimony was rendered prior to the passage of the act.
    Appeal from Kent; Grove, J.
    Submitted October 9, 1900.
    Decided November 13, 1900.

      Petition by Nellie Post Judd against George E. Judd to punish defendant as for contempt for refusing to pay alimony. Prom a decree dismissing the petition, petitioner appeals.
    Reversed.

      Hyde, Earle & Thornton, for petitioner.

      G. H. Alters, for defendant.
   Moore, J.

On September 9, 1898, the complainant was granted a decree of divorce from defendant. She was given the custody of Edwin Eugene Judd, one of the children of said parties. The decree, in addition to other things, provided for the payment by defendant to complainant of $75 on the 1st day of each month, for permanent alimony, for the support of the complainant and the child. The defendant complied with the terms of said decree until April 1, 1899, when he paid only $50 a month. On the 8th of said month .complainant caused a copy of said decree to be served on defendant, with a demand for the payment of the balance due under the decree. This demand was not complied with. The complainant filed a petition setting up the facts, and praying that the body of the said defendant might be attached, and for other relief. The defendant answered to said petition. After a hearing of the matter, the court found that there was no valid excuse for the refusal by the defendant to pay the alimony as decreed by the court, and that the complainant could not enforce the decree by the writ of fieri facias, and made an order for the sequestration of the property, of defendant, but refused to attach the body of defendant. Nothing was realized by complainant as the result of this proceeding. On the 9th of October, 1899, complainant again caused a demand to be made upon defendant for the payment of the $25 a month, which had been held back by him each month. He did not comply with the demand. She then filed a petition asking that he might be punished for contempt of court. The petition showed that defendant was in the receipt of $157.50 per month from the United States government, and'$125 per month from the State. The defendant then moved to dismiss the petition for the following reasons:

1. Because the facts set forth in the petition do not constitute a contempt of court, and do not authorize proceedings as for contempt.
2. Because the said order to show cause is made in reference to a decree of this court made on the 9th day of September, 1898, before the passage of Act No. 230 of the Public Acts of 1899, and said last-mentioned act has no reference thereto.
3. Because final decrees in divorce cannot be enforced by contempt proceedings.

The circuit judge dismissed the petition.

Many questions are raised by the record, but, as we think one of them disposes of the case, the others will not be discussed. Act No. 230, Pub. Acts 1899, was approved June 9, 1899. So far as important here, it reads as follows:

Section 1. Every court of record shall have power to punish by fine- and imprisonment, or either, any neglect or violation of duty, or any misconduct, by which the rights or remedies of a party in a cause or matter depending in such court, or triable therein, may be defeated, impaired, impeded, or prejudiced in the following cases.”
“Sec. 3. Parties to suits, attorneys, counselors, solicitors, and all other persons,, for the nonpayment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum; the disobedience of [or] refusal to comply with any order of such court for the payment of alimony, either permanent or temporary, made in any suit for divorce; and any other disobedience to any lawful order, decree, or process of such court. ”

There can be no doubt that, if the terms of that act apply to the facts of this case, it is within the provisions of the act. It is claimed by the solicitor on the part of the defendant that, as the decree was entered before this act was passed, this case is not within its provisions. It is said that the statute is penal in its nature, and is not retrospective. His position, as found in the brief, is:

“The legislature has no power to enact laws which in effect can enhance or diminish the rights which a party secures by a judgment or a decree. Wade, Retro. Laws, § 171, lays down the following rule:
The rights secured to either party to a suit by an adjudication of the matter in controversy between them are proprietary rights, which the constitution will protect. The legislature has no power to set aside a judgment, or authorize courts to set aside those rendered anterior to the statute, for any cause that would have been insufficient when the judgment was rendered. So, a statute allowing interest on judgments was held not to apply to such as had been rendered prior to its enactment. The rights secured by the judgment are such as the law gives to the prevailing party when it is rendered. To materially enhance or diminish those rights is to work a deprivation of the rights of one or other .of the parties. In Atkinson v. Dunlap, 50 Me. 111, * * * it was held that a statute allowing previously-adjudicated cases to be opened by a petition for review, if retrospective, and intended to apply to cases in which existing remedies had been exhausted, and the judgments had become final by the expiration of the time limited for appeals or reviews, was manifestly unconstitutional.’ ”

It is true, the legislature cannot interfere with vested rights; but is the act in question an interference with vested rights? It does not change the amount of the decree. It does not increase the liability of defendant. It simply provides a remedy for the collection of a decree which defendant is legally and morally bound to pay. Can it be said that one has a vested right to disobey a decree of court? In End. Interp. Stat. § 285, it is said:

“ No person has a vested right in any course of procedure, nor in the power of delaying justice, or of deriving benefit from technical and formal matters of pleading. He has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which he sues; and,- if statute alters that mode of procedure, he has no other right than to proceed according to the altered mode. The remedy does not alter the contract or tort. It takes away- no vested right; for the defaulter can have no vested right in a state of the law which left the injured party without, or with only a defective, remedy.”

At section 287 it is said:

“In this country the general rule seems to be, in accordanee with the English, that statutes pertaining to the remedy (i. e., such as relate to the course and form of proceedings for the enforcement of a right, but do not affect the substance of the judgment pronounced, and neither directly nor indirectly destroy all remedy whatever for the enforcement of the right) are retrospective, so as to apply to causes of action subsisting at the date of their passage. A few illustrations will serve to elucidate the application of this rule: A statute giving to plaintiff suing for purchase money of land a lien thereon in the vendee’s hands, and authorizing a proceeding in rem against the same, in addition to a personal judgment against the defendant, was held to apply to causes of action existing at the date of the passage of the enactment.”

In Coosa River Steamboat Co. v. Barclay, 30 Ala. 120, the court used this language:

“The legislature may alter, enlarge, modify, or confer a remedy for existing legal rights without infringing any principle of the constitution. People v. Tibbets, 4 Cow. 384; Baugher v. Nelson, 9 Gill, 299 (52 Am. Dec. 694); Read v. Frankfort Bank, 23 Me. 318; Woods v. Buie, 5 How. (Miss.) 285; Fales v. Wadsworth, 23 Me. 553; Woodfin v. Hooper, 4 Humph. 13; Fishery. Lacky, 6 Blackf. 373; Knight v. Dorr, 19 Pick. 48; Com. v. Phillips, 11 Pick. 28. * * * Statutes which relate alone to the remedy, without creating, enlarging, or destroying the right, operate generally on existing causes of action, as well as those which afterwards accrue. People v. Tibbets, 4 Cow. 384; Baugher v. Nelson, supra; Bank of U. S. v. Longworth, 1 McLean, 35 (Fed. Cas. No. 923); Pratt v. Jones, 25 Vt. 303; Searcy v. Stubbs, 12 Ga. 437; Paschal v. Perez, 7 Tex. 348; Hope v. Johnson, 2 Yerg. 125; Maltby v. Cooper, Morris (Iowa), 59; West v. Creditors, 1 La. Ann. 365; Newton v. Tibbatts, 7 Ark. 150; Rockwell v. Hubbell's Adm’rs, 2 Doug. 197 (45 Am. Dec. 246).”

It was held that an attachment authorized by an act taking effect after an injury complained of occurred was valid.

In Lawrence R. Co. v. Mahoning County Com’rs, 35 Ohio St. 1, it was held that the legislature cannot create a liability for acts as to which there was no liability when they were committed, but, where a remedy exists, the legislature may change the remedy.

In Green v. Anderson, 39 Miss. 359, the court used the following language:

“ It is not questioned that the legislature has the power to create new remedies, and to make them applicable to causes of action existing before the passage of the new act; but it is insisted that the statute in question does not, in terms, apply to antecedent transactions, and that the sound rule of construction in such cases is not to give the statute a retroactive effect, because it would work injustice and oppression to the interests involved. This is undoubtedly the true rule with reference to statutes impairing rights existing at the time of their passage, or creating new obligations or imposing new duties or attaching new disabilities in respect to transactions or considerations already past. Sedg. Stat. & Const. Law, 188. But it is different with regard to statutes relating' merely to the remedy for wrongs or causes of action existing at the time of their passage; for not only is it settled beyond question that the legislature has the power to abolish old remedies for causes of action then existing, and to prescribe new ones in the same cases, but that such statutes should be construed liberally, to advance the remedy. Sedg. Stat. & Const. Law, 360, and cases cited. There can be no injustice or oppression in this, as there would be in the case of a statute which created a certain right, or made an act a wrong, which were not of that character when the statute was passed. In this case the statute simply gives the remedy of attachment in a case to which it did not before apply, but in which the plaintiff had another remedy. The language is general and unrestricted, and it must be presumed that the legislature intended to extend it to all cases, whether then existing or to arise thereafter, embraced within the terms prescribed, and that it was considered that the pre-existing remedy for the wrong was inadequate. The statute appears to be just and salutary, and to extend the remedy to a class of cases to which the pre-existing remedies were frequently inadequate.”

This case was approved and followed in Excelsior Manfg. Co. v. Keyser, 62 Miss. 155. See Cooley, Const. Lim. (6th Ed.) 460; note to Potter’s Dwar. Stat. p. 164; In re Miller, 110 Mich. 676 (68 N. W. 990, 64 Am. St. Rep. 376).

We think the learned circuit judge was wrong in thinking that the provisions of the statute do not apply. The decree of the court dismissing the petition is reversed, the petition is reinstated, and the court is directed to proceed to act thereunder. The complainant will recover costs of both courts.

The other Justices concurred.


text:
    SMITH v. SMITH, STURGEON & CO.

    1. Witnesses — Contradiction.
    A party, at law or in equity, may contradict, though he cannot impeach, his own witness.
    2. Corporations — Reorganization—"Freezing out” Minority Stockholders — Fraud .
    Complainant, a creditor of one of two firms which were consolidated as a corporation, accepted as collateral security for her debt certain stock in the corporation. Subsequently the corporation was reorganized by agreement between H., a creditor thereof, and its directors, by which H. assumed all the liabilities of the corporation, and obtained its assets. Two of the directors of the old corporation were placed in the management of the new one, and the same number of shares which they had in the old corporation were issued to them in the new, apparently without any consideration. Held, that complainant was entitled to a personal judgment against the two directors of the old corporation, and the purchaser of the assets thereof, for the amount of her claim, and to a lien for the same on the assets of the new corporation, since the stock issued to the two directors without consideration should be treated as assets of the old corporation.

      3. Same — Pledgee of Stock — Bight to Complain.
    The fact that complainant held the stock only as security for her debt did not deprive her of the right to relief, on the theory that the owners of the stock were alone entitled to call the directors to account, as complainant had an interest to the amount of her claim in the stock pledged to her, and indirectly in the assets of the corporation.
    Appeal from Wayne; Waite, J.
    Submitted October 10, 1900.
    Decided November 13, 1900.
    Bill by Mira J. Smith against Smith, Sturgeon & Company, Martin S. Smith, 3d, Frank G. Smith, Jr., Charles F. Hammond and Charles E. Dorr, trustees, William A. Sturgeon, Charles E. Dorr, Charles W. Hayes, Edward Holbrook, and W. A. Sturgeon & Company, to set aside a transfer of corporate assets. From a decree dismissing the bill, complainant appeals.
    Reversed.

      William B. Daniels (Frank F. Robson, of counsel), for complainant.

      Warner, Codd & Warner, for defendants.

       Rehearing denied February 27, 1901.

   Hooker, J.

Mira J. Smith, the complainant, was a creditor of F. G. Smith & Sons to the amount of $5,306.39, upon a promissory note, upon which there was due $6,638.01 at the time of the hearing of this cause in the circuit court. Frank G. Smith, Jr., and Martin S. Smith, 3d, gave her in pledge, to secure the payment of this note, 750 shares of the capital stock of a corporation named Smith, Sturgeon & Co., which was formed by a consolidation of the business of F. G. Smith & Sons and Sturgeon & Co., both of which concerns had been theretofore engaged in the jewelry business at Detroit. The stock remained in their names upon the books of the company. The new corporation (Smith, Sturgeon & Co.) was capitalized at $100,000, but only 7,500 shares, of $10 each, were issued. These 7,500 shares were divided between the two old firms as follows: The F. G. Smith & Sons stock was turned in at $86,588.25, upon which Frank G. Smith, Jr., and Martin S. Smith, 2d, received 2,500 shares of stock. The remainder of the $86,588.25 was paid by the promissory notes of Smith, Sturgeon & Co. The stock of Sturgeon & Co. was put in at $59,154.53, and was paid for by 5,000 shares of stock in the new company, and its promissory notes for the remainder. Said 5,000 shares were issued, 4,250 shares to Charles F. Hammond, and 750 shares to W. A. Sturgeon. Two thousand five hundred shares remained in the treasury of Smith, Sturgeon & Co.

When organized, Smith, Sturgeon & Co. had a board of four directors, — Hammond, Sturgeon, F. G. Smith, Jr., and M. S. Smith, 2d. Among the obligations outstanding against Smith, Sturgeon & Co. was one of $42,0.00, represented by promissory notes given to M. S. Smith, 1st. Hammond relieved the company from embarrassment by the purchase of this paper, and raised money for it upon his credit to the amount of $20,000. His claims aggregated $74,000 on October 4, 1897. Among its other, liabilities was one to the Gorham Manufacturing Company, of which company Holbrook was later, and possibly at the time, president, and Dorr was an employé; i. e., a traveling salesman. Hammond sold his interest to Dorr, and their agreement, dated October 4, 1897, to which the company was a party, provided, in substance, that Dorr should purchase Hammond’s 4,250 shares of stock for the sum of $12,500 in cash; 3,000 of said shares to be retained by Hammond in trust for Dorr. Smith, Sturgeon & Co. promised to execute to Hammond its promissory note or notes amounting to $74,000, which notes Dorr and Sturgeon agreed to indorse; and it was further agreed that, upon the delivery of said notes, Hammond should surrender to Smith,. Sturgeon & Co. its then outstanding obligations, amounting to $74,000. The 3,000 shares of stock were to be held by Hammond as security for the payment of the new notes, which were to be indorsed by Dorr, and the stock was to be transferred to Dorr upon such payment being made. It was also agreed that Hammond should have such representation upon the board as he should see fit during the time that said indebtedness should exist. The Smiths retired from the board of directors in January, 1896. Mr. North Willcox then became a director, and remained so until 1898, when Mr..Hayes took his place. Hammond retired in 1898, and Dorr took his place. During 1899, until July of that year, Dorr, Sturgeon, and Hayes constituted the board of directors.

In March, 1899, the directors and Holbrook, whose company, the Gorham Manufacturing Company, was a creditor to a large amount of Smith, Sturgeon & Co., began negotiations with a view to the purchase by Holbrook of the assets of Smith, Sturgeon & Co. Hammond was a party to the transaction. On July 18, 1899, the deal was closed. Holbrook was to receive all of the assets and pay all of the debts of Smith, Sturgeon & Co. This arrangement was made under a resolution alleged to have been adopted at a directors’ meeting, and ratified subsequently by meeting of the stockholders of Smith, Sturgeon & Co. This arrangement between the directors and Holbrook hinged upon an agreement between Hammond and Holbrook whereby Hammond agreed to transfer to Holbrook the M. S. Smith notes, said to amount at that time to $54,000, and to reassign to Dorr the 3,000 shares of stock held in trust, and Holbrook agreed that, after the proposed deal should be ratified by the 'stockholders, he would pay to Hammond $18,000 in cash, and cause tobe issued and delivered to Hammond the sum of $4,000 in the stock of the reorganized company which was contemplated, and would pay two notes of Smith, Sturgeon & Co., of $5,000 each, held by the Commercial National Bank, and that he would assume and pay the entire outstanding indebtedness of Smith, Sturgeon & Co. This arrangement was in part carried out, and Sturgeon and Dorr took, or, more properly speaking, remained in, control of the property for Mr. Holbrook. When the company was reorganized, it was upon the following basis: Mr. Warner, who was Holbrook’s attorney in the transaction, says that he advised how the reorganization should be effected, what name should be used, and how the capital should be subscribed. The name was made W. A. Sturgeon & Co. To determine the amount at which the capital stock should be fixed, so that it could be said to be in good faith paid in, he took $90,967, now said to be the indebtedness of Smith, Sturgeon & Co., which he regarded as being represented by assets which Mr. Holbrook turned into the company. Stock to the amount of $12,500 was issued to Dorr, and $7,500 to Sturgeon. Holbrook took the rest, except $4,000, which was issued to Hammond as per the agreement already mentioned. Thus Dorr and Sturgeon came out of the transaction with the same amount of stock that they had in the old company, while other stockholders received none. That is not all. Such stock was confessedly worth par, while we are asked to believe that the stock in the old concern was worthless.

' The defendants contend that the record shows that the business of Smith, Sturgeon & Co. was a failing business, and that it was imperatively necessary that some change be made if its creditors were to be paid; and they claim that it was within the power of the board of directors to sell all of its assets to accomplish the payment of its debts. If that be conceded, the fact remains that the directors have no right to profit out of such sale. The testimony shows that, while all of the other stockholders lost their investments, Sturgeon and Dorr saved theirs, for they obtained, without cost, the same number of shares in the new corporation, admittedly worth par, that they had in the old; and it requires a degree of credulity that we do not possess to justify the belief that this was a voluntary gift from Holbrook, after his purchase, and not understood and arranged for in advance.

It is said that the testimony of Sturgeon and Dorr must be taken as true, and that, because the complainant has made them her witnesses, she cannot question their statements. That doctrine has been repeatedly urged upon us, and as often denied. We have consistently and uniformly held that while such a witness, like any other called voluntarily, may not be impeached by the party calling him, his testimony may be contradicted.. Darling v. Thompson, 108 Mich. 215 (65 N. W. 754); People v. Case, 105 Mich. 97 (62 N. W. 1017).

In this case the claim that this was a gift is inconsistent with the circumstances established in the case. They are more consistent with the theory of an arrangement to so manipulate the property as to save the interest of some stockholders, at the expense of others, by a process commonly called “freezing out” the minority stockholders, and a reproach upon modern business methods, and which the law forbids, but does not in all cases effectually prevent. In the face of such results, an abiding faith in the integrity of a transaction is not tó be expected from those conversant with the circumstances, although strenuously asserted by the parties who reap the harvest of spoils. Some of the circumstances throwing light on this transaction may be mentioned. In February, 1899, these same directors took an inventory of the property, and it amounted to $166,000. In July they took another, making it $116,-000, in round numbers. They and Hammond at all times were willing to treat the Smith indebtedness in the hands of Hammond as $42,000, although they had been advised that the company was entitled to the benefit of the discount of $21,000 which Hammond obtained. Apparently, Holbrook claimed, and the directors were willing' to concede, that this was a valid claim against the old concern for every purpose except a reorganization. It was used to swell the indebtedness when it was sought to convince stockholders that it was good policy to sell to Holbrook. Again, Holbrook may be presumed to be a sagacious business man, if business success is a test. He had seen this business fail under the management of Sturgeon and Dorr, yet it is urged that he considered their future management so essential to the success of the new company, of which he was substantially the sole owner, that he made them a gift of $20,000 out of a capital of $06,000 to secure it. Passing by all claims that the second inventory was fraudulently low, and that the embarrassment was largely due to the insistence of Holbrook that the $15,000 claim of the Gorham Manufacturing Company should be paid, as well as the pi’e-existing- relations between him and Dorr, the fact that these directors were able to negotiate a disposition of the assets so as to reap a profit therefrom is painfully clear. Granting that they might lawfully dispose of the assets and pay the debts, they, as faithful officers, were bound to account for any surplus that they might be able to save.

It is said that the complainant is not in a situation to claim any relief; that the owners of the stock, only, are persons to whom an account is due from these directors. The complainant has an interest to the amount of her claim in the stock of Smith, Sturgeon & Go., and indirectly in its assets, which alone give value to her security. She may ask equity to protect that right from destruction. Manifestly, she has no interest in the matter further than the amount of her claim against the Smiths, which she holds the stock to secure. But the Smiths are parties to the record, and have answered, and asked the benefit of complainant’s proceedings. There is therefore no impediment to giving full relief to all'parties in interest.

The decree of the circuit court must be reversed. We think it unnecessary to -go further than to hold that the par value of the stock issu'ed to Dorr and Sturgeon,, with interest, must be treated as assets of Smith, Sturgeon & Co., and that the Smiths shall be paid their respective shares, less the amount of the complainant’s claim, which shall be paid to her; that, as Holbrook participated in the arrangement under which such stock was issued, the decree for the payment of said sum will be personal against him, as well as against Sturgeon and Dorr, for the full amount, and the costs of both courts, and the same shall be a lien upon the assets of Sturgeon & Co.

The other Justices concurred.