text:
    BIGELOW v. BROOKS.
    1. Certiorari — Jurisdiction—Objections not Made Below.
    The Supreme Court will not, on certiorari, entertain objections to the jurisdiction which were not made in the court below, nor stated in the. petition as a reason for allowing the writ.
    2. Mandamus to Highway Commissioner —Rebuilding Bridge.

      Mandamus will lie to compel a commissioner of highways to perform the duty imposed by 3 How. Stat. §§ 1379-1381, of rebuilding a township bridge, when an expenditure of not to exceed §1,000 is involved. Travis v. Skinner, 72 Mich. 152, distinguished.
    3. Highways — Town-Line Roads — Establishment.
    A road recognized as a town-line road for inore than 10 years must, under 3 How. Stat. § 1315, be deemed to be such, though proof is lacking that it was established by the joint action of the township commissioners.
    A Same — Bridges —Construction of Statutes — Retroactive Effect.
    Act No. 62, Pub. Acts 1889 (3 How. Stat. § 1810a et seq.),
      relating to the 'construction of bridges on township lines, > will not be given such retrospective action as would destroy lawful agreements between townships, which existed at the date of its passage and had long been acted upon.
    5. Same — Repair of Bridge — Allotment Between Townships.
    It is the duty of townships to rebuild and keep in repair a bridge upon a line road between them, although it stands upon a portion of the highway allotted to one of them, where the construction of bridges was not included in the allotment, and the former bridge, as well as its approaches, was constructed and repaired by both townships.
    6. Same — Discontinuance.
    Under 3 How. Stat. § 1310, providing that no line .road between two townships, which shall have been in use 10 years, shall be discontinued except by the act of the authorities of both townships, an attempt by the commissioner of one township to discontinue such a road, upon the refusal of the other commissioner to act with him in keeping a bridge on such road in repair, is ineffectual.

      Certiorari to' Oakland; Smith, J.
    Submitted November 15, 1898.
    Decided January 3, 1899.

      Mandamus by Thomas Bigelow and others to compel David C. Brooks and William F. Wood, highway commissioners of the townships of Southfield and Farmington, respectively, to rebuild a bridge on a town-line road. From an order granting the writ, respondents bring certiorari.

    Affirmed.

      Davis & Bromley, for relators.

      Aug. C. Baldwin, for respondent Brooks.

      James H. Lynch, for respondent Wood.
   Moore, J.

The relators filed a petition for a writ of mandamus in the Oakland county circuit court. Each of the respondents filed an answer to said petition. These answers denied many of the material allegations contained in the petition. The relators then asked that issues might be framed and submitted to a jury. The respondents severally objected to the court submitting any questions to the jury. These objections were overruled. The respondents then framed certain questions to be submitted to the jury. After a trial, the jury passed upon the issues submitted to them. The court made findings as to certain questions of fact, and declined to pass upon- certain questions of law, and directed a writ of mandamus to issue as prayed in the petition. The respondents have brought the case here by writ of certiorari. The record does not purport to contain all of the evidence taken in the trial before the jury. The questions involved will better be understood by a reference to the accompanying plat:

Where the townships of Bloomfield, Southfield, Farmington, and West Bloomfield corner upon each other, the ground is so broken for a distance of about 40 rods each way from the corners that it was not practicable to continue the public highways running north and south and east and west upon the true town line. It is the claim of the relators that the town-line road between Southfield and Farmington is upon the actual line until it gets to within about 43 rods of the four corners, when it bears west or westerly 38 rods, thence northerly 43 rods, and that it has been opened up and in constant use by the public as a public highway and town-line road for 40 years or more; that the road crosses a stream between B and D, which it is necessary should be bridged, and a bridge has been kept and maintained at this point until the spring of 1894. It is alleged that in June, 1893, the bridge was carried away by high water, and soon thereafter a new bridge was erected by the townships of Farmington and South-field, each township paying half of the expense thereof. This bridge was carried away in 1894, making the highway impassable. It is alleged the commissioners of highways of the two townships neglected and refused to rebuild the bridge, though petitioned to do so by seven or more freeholders and taxpayers, and still neglect and refuse to build the bridge. The petition represents that Thomas Bigelow and his family, and Henry Grinnell and his family, are compelled to travel an extra distance of two miles to reach the village of Franklin, which is their post-office and trading point, and that a large number of persons living in the vicinity of the bridge are put to great inconvenience and damage because of the failure to rebuild the bridge. It represents that it is the duty of the two townships to erect and maintain the bridge; that Mr. "Wood is highway commissioner of Farmington, and Mr. Brooks of Southfield; and prays for a writ of mandamus.

In the answer of Mr. Brooks, he denies that the portion of the highway westerly from the town line was ever laid out as a public highway of Southfield, or that Southfield ever had any interest in it; that, if anything was done by the officers of Southfield towards paying for the bridge erected, as stated in the petition, the officers acted illegally. He denies he has been petitioned to rebuild the bridge, and avers the bridge has always been in the road district which is in Farmington, and that Southfield is neither equitably nor legally liable to aid in the construction of the bridge. He says verbal appeals have been made to him to aid in constructing the bridge, but he refused them, because no part of the bridge is within the jurisdiction of Southfield, and the portion of the highway westerly and northerly of junction A is not part of the town-line road between Farmington and Southfield.

In the answer of Mr. Wood, it is stated the township records of Farmington were destroyed by fire in 1874, and he does not know what the records would show about the laying out of the road at the disputed point; that he has lived in Farmington a good many years, and always supposed and believed that the disputed road was part of the town-line road between Southfield and Farmington, and that for at least 20 years the bridges on the town line between the two townships have been constructed and repaired under the joint supervision of the officers of both townships and at the expense of both townships. He says, in 1883, and again in 1893, bridges were erected at the disputed point at the expense of both townships, each paying one-half of the expense thereof; that in 1894 the bridge in controversy, known as the “Bigelow Bridge, was washed away, and the June Hill bridge needed repairs; that Southfield refused to help bear the expense of either of these bridges. He further answers that a petition was presented to the board of supervisors in October, 1894, asking that Southfield be compelled to pay one-half the expense of these two bridges, which petition was refused. He further avers that, because of the condition of the records, Farmington, through its commissioner of highways, discontinued the highway from B to D. He says that he does not know whether the Bigelow bridge is located upon a town-line road or not, but that Farmington was perfectly willing to carry out the arrangement which for years had existed between the townships in relation to bridges.

The jury found the facts to be as follows: They found that the highway from A B to D is a public highway; that from B to D is the town-line highway between Farmington and Southfield, which has been in use by the public as a town-line road since 1883; that it was kept up and maintained by the two townships from 1883 to 189.4; that the two townships kept up and maintained the bridge about 11 years prior to the spring of 1894; and that it is a public bridge. They found that it was the duty of the two townships to keep in repair that' portion of the highway running from B to D, and to build and maintain the bridge. They also found that it was not reasonably possible to build the highway on the true town line between the townships for a distance of about 40 rods. In response to questions put by the respondents, they found that the evidence did not disclose the disputed highway was laid out by the joint action of the authorities of the two towns, but that it did disclose that they ordered the bridge to be built jointly. They also found that there was no testimony that the authorities of Farmington ever laid out the road, but that one Shattuck did build The bridge, and repaired the same, but no evidence appears that he agreed to keep it in repair. They also found that the road from B to D was discontinued by the commissioner of highways of Farmington in 1895, and had not been re-established. They also found that the bridge was over a mill-race pertaining to the Bigelow Mill, both bridge and mill being in Farmington. They found that the road was changed in 1851 or 1852 to accommodate Mr. Shattuck, who built and maintained a bridge, but did not bind his successors to maintain it. They also found that an allotment of the town-line road was made by the authorities of the two townships in 1861, and that the half mile of road upon which the bridge is situated fell to Southfield, but that the allotment did not include the construction of the bridges.

A great many errors are assigned. We do not deem it necessary to discuss all of them, for nearly all of them depend upon the question whether it was the duty of the highway authorities of the two townships- to erect the bridge.

One or two preliminary questions must be passed upon. It is now claimed by tbe respondents that this proceeding is not brought by the proper relator; that it should have been brought by the attorney general or the prosecuting attorney. This claim was not made in the court below, nor is it stated in the petition for the writ of certiorari. If it had been made before the circuit judge, and he thought the claim was well taken, the proceedings could have been discontinued when but little cost was made and not much time would be lost. The respondents, however, did not see fit to make this claim. A hearing has been had, involving a good deal of expense. This court ought not, on certiorari, to entertain objections to the jurisdiction which were not made in the court below (Wilcox v. Railroad Co., 45 Mich. 280; Hopkins v. Green, 93 Mich. 394), and which were not stated in the petition as a reason for allowing the writ of certiorari (Grand Rapids, etc., R. Co. v. Weiden, 69 Mich. 572; Woodmere Cemetery v. Roulo, 104 Mich. 595).

It is also said mandamus is not the proper remedy. This question was not raised in the court below. Whether mandamus is the proper remedy or not depends upon whether it is the duty of the respondents to build this bridge. The record discloses that a wooden bridge could be built for not exceeding $200, and an iron bridge for not exceeding $500. In People v. Insurance Co., 19 Mich. 392, it is said, when a statute imposes a specific duty, and there is no other specific or adequate remedy, the writ of mandamus may issue. See Webster v. Newell, 66 Mich. 503. In People v. Post, 30 Mich. 353, the writ was refused. In that case the record showed the bridge would cost much in excess of the amount the commissioners were authorized to expend. The writ was also refused in Travis v. Skinner, 72 Mich. 152, for the reason that, in the opinion of the commissioner, the cost would largely exceed the amount he was authorized to expend for repairs. It is the duty of the highway commissioners of townships to build, rebuild, or repair bridges, and to keep bridges in repair, where they are not called upon to expend more than $1,000. 3 How. Stat. §§ 1379-1381.

Is it the duty of the two commissioners to rebuild this bridge ? It is urged on the part of the respondents that the office of highway commissioner is a statutory one; that the right to establish a town-line road is given only by the statute, which requires the joint action of the commissioners of the two towns; and that, when it is determined the highway shall be established as a town line, the commissioners shall at the same time determine and allot what portion shall he maintained by each township (3 How. Stat. § 1307), subject “to all the liabilities * * * as if the same was located wholly in such township; ” and counsel say the inference is irresistible that, if not so allotted, the commissioner could not go outside his township, and, as the record does not show this road was established by the joint action of the commissioners of the two towns, there is no statutory town-line road, and there can be no joint liability.

In construing the highway statute, all its provisions should be taken into consideration and given effect, if possible. Sections 1305-1307, 3 How. Stat., confer authority upon the highway commissioners to lay out roads between townships, and between townships and municipalities. Section 1308 provides:

“The commissioners acting jointly in laying out any line road may, if they consider it necessary to avoid any obstruction, or for other good cause, deflect the line thereof from the boundary line, and they may locate and establish such road in the same manner as if the line thereof were upon the boundary line; and, when so located and established, such road shall be deemed a line road for all the purposes contemplated by this chapter, and the same shall be opened and improved in the same manner, and with the same power, privileges, and liabilities, as in case of line roads.”

Section 1310 provides that no line road which shall have been in use 10 years shall be discontinued except by the act of the authorities of both townships.

Section 1315 reads:

“All highways regularly established in pursuance of existing laws, all roads that shall have been used as such for ten years or more, whether any record or other proof exists that they were established as highways or not, and all roads which have been or which may hereafter be laid out and not recorded, and which shah have been used eight years or more, shall be deemed public highways, subject to be altered or discontinued according (to) the provisions of this act. All highways that are or that may become such by time and use shall be four rods in width, and, where they are situated on section or quarter-section lines, such lines shall be the center of such roads, and the land belonging to such roads shall be two rods in width on each side of such lines.”

It is impossible to read this record, especially in view of the location of the highway, without coming to the conclusion that the town authorities regarded the deflected portion of the road as part of the town-line road. As the records of the highways for Farmington were destroyed by fire, it is not known what they contained. It is very clear, however, that from 1883 to 1893, inclusive, the authorities of both townships recognized a joint obligation to construct and maintain this bridge. Whatever may have been the origin of this highway in the first instance, it must be regarded as a public highway (3 How. Stat. § 1315); and, as this road has been recognized as a town-line road for more than 10 years, it must be deemed to be such.

It is said that, when the township authorities cannot agree about the construction of a bridge on the town line, the proceeding must be governed by Act No. 62, Pub. Acts 1889 (3 How. Stat. § 1310a et seq.), and the authorities should have appealed to the board of supervisors. In Stitt v. Casterline, 89 Mich. 239, it is held by the court, in construing a similar statute, that it could not be given such “retrospective action as would destroy the agreements between townships lawfully made, existing at the date of its passage, and having been acted upon for years. Such a construction of the act would do great injustice, and is not to be inferred.” In Sharp v. Township of Evergreen, 67 Mich. 443, it is held, in relation to a State road built upon the division line of two townships, that a fair construction of the provisions of the statute places the line road under the jurisdiction of the townships between which it passes, and that, where the commissioners have made a verbal allotment of what portions of the road the several townships shall build, which agreement has been acted upon, the township will be liable. In Wrought-Iron Bridge Co. v. Township of Jasper, 68 Mich. 441, it is held that, where a township-line road has been allotted under the statute, each township becomes liable to keep its portion in repair, and one township cannot obligate itself to aid in the erection of a bridge forming a part of the highway allotted to the other town. A reference is made to the case of Sharp v. Township of Evergreen, and the language used in it is quoted approvingly. All the cases hold it is the duty of the highway commissioners to keep the highways and bridges in a condition reasonably safe and fit for travel. The record shows that, as long ago as 1861, the commissioners of these two townships allotted the portions of the town line to each of the townships, and the portion of highway in dispute would fall under the allotment to Southfield; but it also shows that the construction of the bridges on the town line was not included in the allotment. It also shows, and the jury found, that as early as 1883 the highway authorities of both townships built this bridge at the joint expense of the two townships. In 1893 it was rebuilt by them. The approaches to the bridge were kept in repair by the two townships, and I have no doubt it is the duty of the two townships to rebuild the bridge and keep it in repair.

It is claimed the highway was discontinued in 1895. What was done was the act of the highway commissioner of Farmington. If we are right in the conclusion that this was a town-line road, it could not be discontinued except by the joint act of the authorities of the two townships. 3 How. Stat. § 1310.

Judgment is affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    BOWEN v. BROGAN.
    1. Mortgages — Void Foreclosure.
    A sheriff’s deed on foreclosure of a mortgage upon which nothing was due at the time of foreclosure passes no title to the purchaser.
    2. Same — Payment of Interest — Life Tenant and Remainder-man.
    As between the owner of the fee and of a life estate in mortgaged property, the owner of the life estate is charged with the duty of paying the interest upon the incumbrance.
    3. Same — Title Through One’s Own Default.
    A life tenant cannot, by neglecting this duty and allowing the mortgage to be foreclosed, acquire title through the foreclosure sale, and cut off the remainderman.
    4. Same — Void Sale — Ejectment.
    Ejectment may be maintained against a mortgagee in possession under a void or irregular foreclosure.
    5. Same — Contribution by Remainder-Man.
    A grantee of a deceased life tenant, in possession under an invalid foreclosure of a mortgage to which the life estate was subject, cannot enforce contribution from the remainder-man as a condition to the latter’s recovery in ejectment.
    6. Adverse Possession — Tenancies.
    There can be no adverse possession against a remainder-man, by one claiming through a life tenant, during the lifetime of such tenant.
    Error to Calhoun; Smith, J.
    Submitted October 4, 1898.
    Decided January 20, 1899.
    Ejectment by Edwin Bowen and others against Patrick Brogan and wife. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      Jesse M. Hatch (Louis C. Miller, of counsel), for appellants!

      Frank W. Clapp, for appellees.
   Moore, J.

Plaintiffs, as heirs at law of David Bowen, deceased, commenced an action of ejectment to obtain possession of real estate occupied by defendants. The case was tried before the circuit judge, who decided in favor of defendants.

David Bowen, at the time of his death, was the owner of the land in question. He was in possession of the land at the time of his death, in 1872. He left no children surviving him, but left a widow and an adopted son. He left no will. In 1871, Mr. Bowen gave Mr. McKinstry a mortgage upon the land in question, for $700, payable October 10, 1880. The interest was payable annually. The mortgage contained an interest clause, providing that, if default was made in the payment of interest, the principal might be treated as due. A foreclosure of this mortgage, by advertisement, was commenced in March, 1874, which notice stated that there was due, as principal and interest, $645.15. June 19, 1874, the sheriff sold the property to Robert Murphy for $735.80, and issued to him a sheriff’s deed, which was recorded June 24, 1875. On the same day, Mr. Murphy gave a quitclaim deed of the premises to the widow of David Bowen, who had again married. She had remained in possession of the premises all of the time, and continued to remain in possession of them up to the time of her death, which occurred in December, 1886. Prior to June, 1875, Mrs. Bowen was appointed administratrix of her husband’s estate, and was such administratrix at the time the land was deeded to her by Mr. Murphy. The adopted son of Mr. and Mrs. Bowen died in December, 1873; and it is altogether probable the Bowens regarded this son as their legal heir, as the law under which he was adopted was not declared unconstitutional until after the death of Mrs. Bowen. After the death of Mrs. Bowen, the land was assigned by the probate court to Richard White and Kate Donahue, as the only heirs of Mrs. Bowen, and they sold the premises to Patrick Brogan and his wife.

It is the claim of the plaintiffs that, at the time the mortgage was foreclosed, the interest and part of the principal had been paid, and nothing was due upon it, so that the foreclosure proceeding was a void proceeding, and no title was obtained through it. The circuit judge found there was paid in July, 1873, upon this mortgage, $547.20. We think this finding was justified by competent and material testimony. If this amount was paid, it is evident there was nothing due upon the mortgage when it was foreclosed, and the right to foreclose it did not exist, and no legal title was obtained by the foreclosure.

There are also other objections to the defense which is interposed here. In the absence of a. will and of children, Mrs. Bowen’s interest in her husband’s real estate was a life interest (2 How. Stat. § 5772a, subd. 2); and, upon the death of Bridget Bowen, the mother and the two brothers of David Bowen, deceased, would be entitled to the property (Id. subd. 3). Mrs. Bowen, then, being possessed of the life estate, and the plaintiffs in this case being the remainder-men, what was the duty of Mrs. Bowen in relation to the real estate and the mortgage upon it ? The rule is well settled that, as between the owners of the fee and the life estate of incumbered property, the owner of the life estate is charged with the duty of paying the in-' terest upon the incumbrance. Campbell v. Campbell, 21 Mich. 438; Defreese v. Lake, 109 Mich. 415 (32 L. R. A. 744, 63 Am. St. Rep. 584); Damm v. Damm, 109 Mich. 619 (63 Am. St. Rep. 601). It, then, being the duty of Mrs. Bowen to pay the interest upon the mortgage, by neglecting the duty, and allowing the mortgage to be foreclosed, she could not, by acquiring the property through the foreclosure sale, cut off the title of the remainder-men. To allow her to do so would be to allow her to profit by her neglect of duty. Dubois v. Campau, 24 Mich. 370; Connecticut, etc., Ins. Co. v. Bulte, 45 Mich. 113; Whitney v. Salter, 36 Minn. 103 (1 Am. St. Rep. 656).

It is claimed by défendants that, there having been a foreclosure of this mortgage, even though the foreclosure is irregular, the purchaser is subrogated to the rights of the mortgagee, and, being in possession, ejectment is not the proper remedy, but the proceeding must "be in a court of equity; citing Gage v. Sanborn, 106 Mich. 270, and Gale v. Eckhart, 107 Mich. 465. It is also claimed that as Bridget Bowen was under no obligations to pay the principal of the mortgage, and the remainder-men were bound to pay it, this action cannot be sustained until the amount which the remainder-men should pay has been paid by them; citing Whitney v. Salter, supra, and Daviess v. Myers, 13 B. Mon. 511.

The last-named authorities sustain the doctrine as contended for by defendants; but a very different rule prevails in this State as to the right of the mortgagee in the mortgaged property from what obtains in many of the States. The mortgage is not a grant of the land to the mortgagee, defeasible upon condition subsequent, and to become absolute on failure to pay at the specified time. It is a mere security, the estate in the land and the right of possession remaining in the mortgagor until the mortgage is foreclosed and the equity of redemption has expired. Caruthers v. Humphrey, 12 Mich. 270; Grippen v. Morrison, 13 Mich. 23; Newton v. Sly, 15 Mich. 391; Hogsett v. Ellis, 17 Mich. 351; Newton v. McKay, 30 Mich. 380; Wagar v. Stone, 36 Mich. 364. It cannot be said in this case that defendants are in possession by any act of the mortgagor. The maker of the mortgage was ' dead. The only persons having any interest in the mortgage, besides the mortgagee, so far as the record discloses, at the time of the attempted foreclosure, were Mrs. Bowen and the heirs at law of Mr. Bowen. Mrs. Bowen could not consent to put the mortgagee in possession at the time of the foreclosure; for, as we have already seen, it was her duty to pay the interest and to prevent the foreclosure. It does not appear the heirs at law ever consented to the foreclosure proceedings, or to the mortgagee’s taking possession thereunder. Ejectment may be maintained against the mortgagee in possession under a void, invalid, or irregular foreclosure. Humphreys. Hurd, 29 Mich. 44; Newton v. McKay, 30 Mich. 380; Sherrid v. Southwick, 43 Mich. 515.

It is claimed title inures to defendants by reason of adverse possession. We have already seen that, by virtue of the statute, Mrs. Bowen had a life estate in the land. It is well settled that a life tenant in possession does not hold adversely to the remaindermen. Lumley v. Haggerty, 110 Mich. 552 (64 Am. St. Rep. 364); Gindrat v. Western Railway, 96 Ala. 162 (19 L. R. A. 839). Mrs. Bowen died in 1886. This action was brought in 1897. Title by adverse possession was not acquired by defendants. Judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Long, J.

text:
    BISSELL v. MOORE.
    Agency — Authority to Retain Attorney — Evidence.
    The question as to the authority of an agent to employ an attorney for defendant, and to agree upon his retainer, should be submitted to the jury, upon evidence that the agent represented to the attorney that he had such authority, that the latter refused to accept the retainer unless a claim that he held against the adverse party to the suit was settled for a specified amount, that the defendant gave the attorney his note for that amount, receiving an assignment of the claim, that the .'attorney then agreed to be retained, and afterwards had conversations with the defendant about what had taken place between himself and the agent, that the defendant then desired him to confer with another attorney, and to take part in the trial, that he did confer with the latter, and made briefs and sent them to him, and that upon one occasion the defendant remarked, “You are my attorney, and not the agent’s,” and that, after the suit was settled, the defendant asked for the attorney’s bill.

      Error to Wayne; Frazer, J.
    Submitted October 5, 1898.
    Decided January 20, 1899.

      Assumpsit by Edward J. Bissell against Charles W. Moore for services as attorney. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John Atkinson, for appellant.

      Edward J. Bissell, in pro. per.

   Long, J.

This action was brought to recover the amount claimed to be due the plaintiff as a retainer and for services in a suit brought by the defendant. Plaintiff is an attorney at law, and resides at Milford. Defendant resides in Detroit. Plaintiff’s claim is that one Colegrove came to him at Milford, and stated he was the agent for Mr. Moore, the defendant here, and was authorized by him to retain the plaintiff in a suit against one Ainsworth; that plaintiff made briefs in the case, and performed cer-. tain other services therein, for which he claimed compensation. On the trial, the defendant contended that Cole-grove was not his agent, and had no authority to make the agreement. This was the main issue on the trial, and the court below left it to the jury to determine. Plaintiff had verdict and judgment for $250. Defendant brings ■error.

Defendant claims here that there was no evidence tending to show that Colegrove had authority to make a contract with plaintiff for his services or to agree upon a retainer. The plaintiff was called as a witness, and testified substantially that Colegrove came to Milford, and told him that Moore had authorized him to retain him (plaintiff) in the case against Ainsworth; that.Colegrove said he had told Moore it would cost him $200 or $250 for a retainer; that he (plaintiff) before this time had had •some trouble with Ainsworth, in which he claimed the latter owed him $500, and he would not be retained unless Colegrove or Moore fixed that up; that this was settled for #300, Moore giving his note to plaintiff for that amount, and taking back from him an assignment of plaintiff’s claim against Ainsworth; that plaintiff then agreed to be retained against Ainsworth; that he afterwards saw defendant, Moore, in Detroit several times, and had some conversations with him about what had taken place between himself and Colegrove, and that defendant then desired him to confer with Col; Atkinson,. — who was then Moore’s attorney in the matter, — and to take part in the trial of the case; that he did confer with Atkinson repeatedly in the matter, and made briefs and sent them to Atkinson ; that upon one occasion he complained to defendant of something Colegrove had said or done, and defendant said, “You must remember you are my attorney, and not Colegrove’s.” It appears that, after matters were settled between defendant and Ainsworth, defendant wrote plaintiff to send him his bill. This plaintiff did, but, getting no response from it, about a month later he . wrote defendant to send him a part of it if he could not send the whole. Shortly after this, defendant wrote plaintiff, claiming he was not indebted to him, and had never retained him in the case, and that it was a matter of Mr. Colegrove’s, and he must settle with Colegrove. Mr. Colegrove in his testimony admitted that in a conversation with plaintiff he told him he had had a talk with defendant, and that defendant wanted plaintiff to appear in the Ainsworth case, and that plaintiff had better go up and see him. It cannot be said, under these circumstances, that there was no evidence to go to the jury on the question of the authority of Colegrove to make this contract for defendant with the plaintiff. The court submitted the question very fairly to the jury.

Some other questions are raised, which we have carefully examined. We find no error on the trial of the cause.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    ANTISEPTIC FIBER PACKAGE CO. v. KLEIN.
    Principal and Agent — Fraud—Damages.
    A principal- who elects to retain an article turned over to him by his purchasing, agent, after learning that the agent had received nearly all of the purchase price, paying over to the ostensible seller only a small balance due him upon a sale to the agent of the article in question, cannot recover from the agent the amount so received to his own use, if the price paid did not exceed the reasonable value of the article.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted October 5, 1898.
    Decided January 20, 1899.
    Case by the Antiseptic Fiber Package Company against Eugene Klein for deceit. From a judgment for plaintiff for less than the amount claimed, it brings error.
    Affirmed.

      Brown & Adams, for appellant.

      Taggart, Knappen & Denison, for appellee.
   Hooker, J.

In 1896, the plaintiff, a corporation, was formed for the purpose of engaging in the manufacture of “Antiseptic Fiber Packages,” under patents theretofore owned by the defendant and his wife. The capital stock was $10,000. The patents were put in at $5,000, stock being taken therefor; and the defendant, Klein, was made manager, at a salary of $15 per week, and he was instructed by the directors, at a regular meeting, to purchase the necessary machinery, at the lowest cash price. The machinery was delivered, and the company’s checks were made therefor, payable to a Mr. Tannewitz. Tannewitz met Klein at the bank, and drew the money upon these checks, and retained a portion, the rest being paid over to Klein. The plaintiff asserts that, of this money, Klein received and kept $444.14, and this action was brought soon after it discovered the fact.

The undisputed evidence shows that, about a year before the corporation was formed, Klein hired Tannewitz to make these machines, he (Klein) furnishing designs, and supervising the work of Tannewitz, and making payments to a considerable amount. The machines were completed before the defendant was employed as plaintiff’s manager, and, when he was directed to procure machinery, he caused these machines to be delivered to the plaintiff, and payment to be made, as stated, by checks payable to Tannewitz, who deducted the unpaid balance due to him, turning the remainder of the proceeds over to Klein, who thereby reimbursed himself for money which he had expended, and time spent, in the construction of the machines, which he claims that he was justly entitled to do.

The plaintiff’s declaration alleges that it purchased these machines from Tannewitz, through its agent, Klein, and that the price paid to its agent was $444 more than the agent paid to Tannewitz, and that, by reason of the agent’s deception, it suffered damage, the measure of which is the difference between the amount received by Klein and that paid by him to Tannewitz. The evidence failed to support this theory, for it showed that Klein did not buy the machines of Tannewitz for the plaintiff, for Tannewitz did not own them. At the most, he had a lien upon them for a small balance, and we are not advised that he even claimed a lien. But it did show that Klein turned over to the company machinery belonging to himself, at a price fixed by him; and there is testimony tending to show that he concealed the facts from the officers and stockholders of the company, though he testified that it was understood. There is nothing in the record tc show that the machinery was not of good quality, or that it was in any way unsatisfactory. The plaintiff kept it, and apparently found it acceptable. While it is true that the agent could not bind the company by such a contract as he made on its behalf, unless its other officers chose to ratify the bargain, it does not follow that it could keep the machinery and compel a return of the money paid. It might return the property and recover the consideration, or it might perhaps keep the property and recover the excess paid over its reasonable value, upon a proper declaration. Counsel requested the court to direct a verdict in favor of the plaintiff for the full amount of the checks, less the amount retained by Tannewitz, upon the theory that this was the price paid for the machines. The court properly refused this request, for it was clearly shown that the cost of the machines was more than this, Tannewitz having received considerable money upon his labor and material furnished before the plaintiff directed the defendant to procure the machines; and this was as much a part of the cost of the machines as that paid after-wards. No good reason has been suggested why the plaintiff should not pay the full cost of the machines if it chooses to keep them, at least so long as such cost did not exceed the reasonable value of such machines.

The jury rendered a verdict for the plaintiff for $45.24, and the plaintiff has brought error.

It is contended on the part of the defendant that it is unnecessary to consider the assignments of error, for the reason that the uncontradicted evidence shows that the court should have directed a verdict for the defendant. It is urged that the testimony did not support the declaration, failing to show that it purchased the machinery of Tannewitz, but showing clearly that Klein attempted to sell machinery of his own to the plaintiff; and it is maintained that if the variance could be disregarded, and the declaration treated as sufficient, the plaintiff failed to prove a case, because there was no testimony tending to show that the plaintiff paid more than the machines were worth. Counsel for the plaintiff lay great stress upon the concealment by the defendant of the fact that he sold his own machines to the company, and insist that the plaintiff was entitled to keep the machines, and pay therefor only a small fraction of their actual value, viz., the small balance paid Tannewitz; but we think there is much force in the defendant’s contention that it must pay the reasonable value of the machines, having decided to keep them. It is true, as counsel for the plaintiff maintain, that the law does not permit an agent to bind his principal by a purchase from himself, without the principal’s assent, such contracts being void, or at least voidable; but, on the other hand, it does not permit the principal to keep property so purchased, and refuse to pay anything therefor. The evidence clearly shows that this machinery could not have been procured any cheaper. It also shows, and the jury must have found, that the plaintiff had no claim upon the interest .that the defendant had in it, though they gave the plaintiff a verdict for $45, apparently placing a less value on Klein’s services than he did. We are of the opinion that the verdict is quite as favorable to the plaintiff as the facts and pleading warrant.

The judgment is therefore affirmed.

The other Justices concurred.


text:
    ANTISDEL v. CANFIELD.
    Real-Estate Brokers — Commissions—Evidence.
    Plaintiff, a real-estate broker, was given a specified time to accomplish a sale of defendant’s land. A sale was not effected by plaintiff, but, after the time limited had expired, defendant named a new price, and plaintiff thereupon agreed to sell the land at once. A year later defendant closed a deal with one with whom plaintiff had carried on some negotiations, but the price realized was less than that for which plaintiff had been authorized to sell. Held, that plaintiff did not bring himself within the terms of the agreements, and was not entitled to commissions.
    Error to Kent; Grove, J.
    Submitted October 5, 1898.
    Decided January 20, 1899.

      Assumpsit by Arthur It. Antisdel against John Can-field for commissions on the sale of land. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Fitz Gerald & Barry (Francis A. Stace and Benton Hanehett, of counsel), for appellant.

      W. D. Fuller (Bunker & Carpenter and George A. Farr, of counsel), for appellee.
   Moore, J.

The plaintiff recovered a judgment against the defendant for commissions, to which he claims he was entitled upon a sale of pine land made to the Thayer Lumber Company. The defendant brought the case here by writ of error.

Some correspondence was had between the parties in relation to the sale of a large tract of land in which Mr. Canfield had an interest. It is claimed by plaintiff that in August, 1895, an arrangement was made by which the plaintiff was to have a commission of $20,000, and that the conditions had occurred which entitled him to his commission. Mr. Canfield denied in the most emphatic language that he had ever employed Mr. Antisdel as his agent, or had ever had any relations with him, except upon the basis that Mr. Antisdel represented a purchaser from whom he was to obtain his commission. It is the claim of counsel for defendant that, taking the record as made by the plaintiff and his witnesses, plaintiff is not entitled to recover, for several reasons:

1. Because he has not brought himself within the terms of the agreement which he says he had with Mr. Canfield.
2. Because Mr. Antisdel did not keep faith with Mr. Canfield in truthfully advising him of his relations with would-be purchasers, inasmuch as an offer he claims Mr. Moni’oe made of $1,150,000 was reported to Mr. Canfield as an offer of $1,125,000 net.
3. Because it appears, from testimony offered on the part of the plaintiff, he had associated with himself, to assist in the sále of the land, Mr. Brayton and Mr. Houseman, each of whom was to share equally with plaintiff in his commission from Mr. Canfield, while at the same time Mr. Houseman and Mr. Brayton had agreed with Mr. Monroe to help him buy the land, and, in case he succeeded in doing so, were to be paid by him $5,000.

It is urged that, under such circumstances, it is against public policy to allow the plaintiff to recover. The case has been thoroughly and ably briefed.

The case as made by the plaintiff is substantially as follows : January 14,1895, Mr. Antisdel wrote Mr. Canfield, asking if he could be induced to sell his pine; if so, at what price; stating he would like a large tract for Muskegon. On the following day, Mr. Canfield replied:

“It is not for sale based on present prices for lumber. Think I offered it, * * * with a mill plant and salt block here, valued at $100,000, for $1,500,000. Based on such valuation, I would consider an offer.”

Mr. Antisdel afterwards visited Manistee, and procured plats showing the lands. He then arranged to have Mr. Brayton assist him in handling the land. He does not claim that, prior to August 14, 1895, he was expecting a commission from Mr. Canfield. It is his claim that, on August 14th, he, in company with Mr. Brayton, had an interview with Mr. Canfield, at which time the price put upon the land was $1,500,000 if sold with the timber to be manufactured elsewhere than at Manistee, and $1,400,000 if sold with the timber to be manufactured at Manistee; that it was then arranged the mill and salt-block property were to be left out of the transaction, and, if Mr. Antisdel found a purchaser satisfactory to Mr. Canfield, Mr. Antisdel was to be paid a commission of $20,000, and Mr. Antisdel was allowed until January 1, 1896, to accomplish a sale. Shortly after this, Mr. Houseman was brought into the transaction to assist Mr. Antisdel and Mr. Brayton. It is plaintiff’s claim that, during the year 1895, he obtained an offer from Mr. Dempsey of $1,010,000, which offer he communicated to Mr. Canfield, and the offer was declined. On November 8, 1895, Mr. Canfield wrote Mr. Antisdel:

“I decline Mr. Dempsey’s offer, and, if not disposed of before the 1st of January, withdraw my offer to accept any price. Although urgently requested to name the same price to other parties, I think it a bad time to sell pine, and refrain from doing so.”

It is the claim of Mr. Antisdel that on December 26, 1895, he was informed over the telephone by Mr. Houseman and Mr. Brayton that Mr. Monroe, acting for the Thayer Lumber Company, would pay $1,150,000 for the lands. The next day he wrote Mr. Canfield, “I am offered by good parties $1,125,000 net for your pine timber,” etc. An examination of the record shows Mr. Monroe did not in fact make any such offer, but there was talk in which he was urged to make an offer of that amount, but declined to do so, but said if an offer was made he would soon decide whether to accept it or not. It is Mr. Antisdel’s claim that on January 3d he had an interview with Mr. Canfield in the office of Mr. Antisdel, and what occurred there and subsequently is stated by Mr. Antisdel as follows:

“Mr. Canfield began to tell me about his pine. He said he had been deceived by some one, but whom he did not say. I said, ‘Mr. Canfield, you have been asking too much for your pine. Now,’ I said, ‘what is the least thing you will take for it?’ Mr. Canfield says, ‘I will take $1,200,000 net.’ I said, ‘ Mr. Canfield, I will sell it at once.’ He gave me 10 days to report what success I met with. * * *
“Q. What did you do then? What happened in reliance on that ?
“A. I informed Mr. C. L. Houseman at once of the proposition that had been made.
" Q. What more did you do with Mr. Canfield, if anything, in regard to the matter ?
“A. I saw Mr. Canfield on the. 11th of January, at his home again, in 1896, and I told him that Mr. Monroe had accepted his proposition, had been to Boston to see his company, and it was a mere matter of time when they would buy the pine, but for the present the condition of money matters was in such condition that they thought they would have to wait a little. Mr. Canfield said that he did not know that he blamed them; he would probably do the same thing. But I said, ‘ Mr. Canfield, you don’t need to cut your price or change.it; the price has practically been accepted.’
“Q. What was that proposition which you say Mr. Monroe had accepted ?
“A. Twelve hundred and twenty-five thousand dollars. Mr. Canfield asked me what the price was that I offered it for to Mr. Monroe, and I told him, and he said that was very low. He says, ‘ I asked him $1,350,000 for the same piece.’
“Q. This was after he had placed the $1,200,000 figure on it, was it not ?
“A. Yes, sir.
“Q. Now, go on and state briefly what else took place in regard to this matter, down through until the final end of it, — between you and Mr. Canfield, I mean.
A. I met Mr. Canfield at different times at the Morton House, and Mr. Canfield told me to keep him posted; that it was not necessary for me to come to his place or do anything without I had a definite or sure proposition to make him. During the summer, or at the commencement of the fall of 1896, I met Mr. Canfield, and I said, ‘Mr. Canfield, I have not bothei'ed you of late because matters stand about the same as they did.’ I said, ‘ These parties are waiting now for election.’ I said, ‘We probably cannot do anything until after election. If McKinley is elected, why, they feel that they would be justified in buying the pine.’ I don’t think I saw Mr. Canfield again untihafter election, but I wrote him right after election.
“Q. You wrote a letter after election?
“A. I wrote a letter after election.
‘ ‘ Q. On this subject-matter ?
' “ A. On this subject-matter, which the letter will show
for itself, and the answer from Mr. Canfield to it.
Q. Well, what else took place?
“A. I think it was about the 20th of December, 1896,1 saw Mr. Canfield at his home, and I told him that, from the way things looked, it looked as though he and Mr. Monroe had gotten together for the purpose of closing the deal and leaving me out. He did not tell me whether they had or had not. Then, when I started to come away . he said, ‘ If anything new comes up, let me know.’ That’ was about the last words he said before I left him.
Q. Well, after that?
“A. About January, I think, the first, I heard that the deal was about being closed.
“Q. What deal?
“ A. The deal to the Thayer Lumber Company.
Q. Of this land?
“A. Yes.
Q. Did you see Mr. Canfield after that?
“A. Yes, sir.
Q. State when.
“A. I saw Mr. Canfield at the Morton House, and I told him, as the deal had been closed, I expected him to pay his commission; and he said that he had not been informed up to that time of the deal’s being closed.
‘ ‘ Q. When was this ?
“A. About February 2Óth, I think, 1897.”

The statement made by Mr. Antisdel in January, 1896, to Mr. Canfield, that Mr. Monroe had accepted the offer, is not true. The record shows the following facts: The Thayer Lumber Company is a corporation, whose officers and directors reside in Massachusetts. Its manager in Michigan was Mr. Monroe. The record is undisputed that he had no authority to accept or make an offer of upwards of $1,000,000 for these lands. Mr. Antisdel did not have the conversation with Mr. Monroe which he construes as an offer for these lands, but the conversation was between Mr. Houseman, acting for Mr. Antisdel, and Mr. Monroe, who represented the Thayer Lumber Company. Mr. Houseman’s version of it is as follows:

“ I told Mr. Monroe Mr. Canfield had made an offer so we could offer the timber to Mr. Monroe for $1,335,000, and which would include the $5,000 which he had previously promised to Mr. Brayton and me in case we effected a trade. * * * After a long talk over the matter, he told me he would sleep on the proposition, and decide by morning whether or not he would go to Boston to submit the offer to his principals.”

Mr. Monroe went to Boston, and on his return informed Mr. Houseman he had laid the matter before his principals, and they were not inclined to enter into the deal at that time. They did not feel warranted in undertaking a deal of that magnitude until financial conditions should be greatly improved. They did not think the'financial depression would be long continued, and when the times changed they would then talk of the matter, and would then purchase the timber if it was in the market. Mr. Houseman further said that in March Mr. Monroe told him he could not ask him to refrain from offering the timber to other parties, but to keep him advised; and that later Mr. Monroe told him he had received no news from his principals that they wished to take up the trade.

Mr. Monroe’s version of the transaction is that Mr. Houseman informed him he had a proposition on the basis of $1,335,000 for the land, which included the commission of $5,000 which Brayton and Houseman were to receive; that he told Mr. Houseman he would think the matter over, and decide whether to go to Boston and lay the offer before his principals. He decided to do so, and did so. They declined to consider the proposition. They were the directors of the Thayer Lumber Company. They said they did not want it; they did not care to figure on it at all. They said that, “the way financial matters were, it was out of the question. Money was tight; they did not know what would be the outcome of money matters, and they did not want to figure on a trade of such proportions.” He further testified that they gave him no authority in reference to the trade, or its continuance, and there was nothing said about taking up the trade at a later date. On his return, he told Mr. Houseman the result of his mission, and later told him, if he had an opportunity to sell the land, to go ahead and do so. The directors of the Thayer Lumber Company testified they knew nothing of Mr. Antisdel, Mr. Brayton, or Mr. Houseman, but did know of the negotiations begun in December, 1895, and the 1st of January, 1896; that they discontinued them in January, 1896, for the reason that the financial situation was such they deemed it wise to do so, and dropped the matter entirely. They further testified the negotiations were not discontinued through an arrangement or agreement with Mr. Canfield, but for business reasons upon the part of the company.

Giving the most favorable construction possible to this testimony, it not only does not indicate an acceptance of the offer made by Mr. Houseman to Mr. Monroe,, but, on the contrary, indicates that the offer was declined. Mr. Canfield denies that he ever authorized this offer to be made as was claimed by Mr. Antisdel, or that Mr. Antisdel told him it had been accepted by Mr. Monroe. After January, 1896, no offer was submitted to Mr. Can-field through Mr. Antisdel, Mr. Brayton, or Mr. Houseman. In March, 1896, Mr. Antisdel wrote Mr. Canfield, asking if he would be home the coming week. A reply was sent that he would, and adding, “ If it is a land matter, you had better not come unless prepared to make me a positive and definite offer.” In September, Mr. Antisdel wrote, “Theji'party from Muskegon was here only a few days ago, and says, if McKinley is elected, the deal for your pine can be made at once, and McKinley is sure to win;” to which Mr. Canfield replied, ‘ ‘ I am too busy trying to save the few dollars I have laid up to think of making any new deals. After November, I may or may not have something to sell.” November 6th, Mr. Antisdel wrote Mr. Canfield, “ McKinley is elected, and I am very thankful. Expect to hear from my parties soon. Is everything all O. K. ? ” To which Mr. Canfield replied the next day, “Yes, McKinley is elected. I do not know what you refer to in the balance of your letter.” November 10th, Antisdel wrote Canfield a letter explaining his letter of November 6th, and on February 22d telegraphed Mr. Canfield he should hold him for his commission. This is the substance of all the testimony produced by the plaintiff.

It appears from-the record that after January, 1896, no negotiations were had between any of the parties upon the basis of $1,225,000. It does, however, appear that in the latter part of December the directors of the Thayer Lumber Company directed Mr. Monroe to see Mr. Can-field, and learn if the property was still for sale, and at what price. He saw Mr. Canfield, who asked’him $1,-400,000 for the property. Mr. Monroe made him a conditional offer. The negotiations finally resulted in a sale of the property in February, 1897, for $1,200,000, $250,-000 paid down, and the balance to be without interest for a year. This item of interest, and the taxes for a year, which Mr. Canfield had to pay after the talk between Mr. Canfield and Mr. Antisdel of January, 1896, amounted to upwards of $50,000. The testimony offered by the plaintiff shows that one of the conditions of the alleged agreement .of August, 1895, by which Mr. Antisdel was to have $20,000 in commissions,, was that he should furnish a customer on or before January 1, 1896. This he did not do. One of the conditions of the alleged agreement of January, 1896, was that he should make a sale which should net Mr. Canfield $1,200,000. This he did not do. In whatever phase the case is considered, it shows an entire failure on the part of Mr. Antisdel to find a purchaser within the terms of his' employment. The judge should have directed a verdict in favor of the defendant. Chandler v. Sutton, 5 Daly, 112; Wylie v. Marine National Bank, 61 N. Y. 415; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378 (38 Am. Rep. 441); Babcock v. Merritt, 1 Colo. App. 84; Thuner v. Kanter, 102 Mich. 59; Douville v. Comstock, 110 Mich. 693.

It is not necessary to discuss the other assignments o£ error.

The judgment will be reversed; and as, from Mr. Antisdel’s own showing, he is not entitled to recover, no new trial will be directed.

The other Justices concurred.


text:
    CRIBBS v. YORE.
    Slander — Damages—Injuries to Feelings.
    Act No. 216, Pub. Acts 1895, § 1, which provides that, in actions for slander, only actual damages to property, business, or feelings are recoverable, did not abrogate the common-law rule that damages for injuries to feelings are recoverable as general damages, without being specially pleaded or proved.
    Error to Berrien; Coolidge, J.
    Submitted October 6, 1898.
    Decided January 20, 1899.
    Case by Eugene W. Cribbs against Patrick Yore for slander. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      W. C. Hicks and O’Hara & O’Hara, for appellant.

      N. A. Hamilton, for appellee.
   Hooker, J.

The defendant, in presence of others, said to the plaintiff, “You thief; you d-n thief; you are a thief, and I can prove it.” Being held liable in an action for slander, the defendant has brought error, and the brief of his counsel states that there are but two points to be considered:

1. That the declaration sets forth no cause of action, and therefore no testimony should have been admitted against the defendant’s objection, and his request to direct a verdict for the defendant should have been given.
2. That there was neither allegation nor proof of injury to feelings, and the court should have directed a verdict for the defendant, and not have allowed the jury to find a verdict upon the ground of injury to the plaintiff’s feelings.

These contentions are based on section 1, Act No. 216, Pub. Acts 1895, which reads as follows, viz.:

. “ The People of the State of Michigan enact, that in suits brought for the recovery of damages for libel or slander in this State, the plaintiff shall be entitled to recover only such actual damages as he may have suffered in respect to his property, business, trade, profession, occupation, or feelings.”

The declaration concludes with the averment:

“By reason of the speaking, publishing, and uttering of which-said false, scandalous, malicious, and defamatory words, the said plaintiff is greatly prejudiced in his good name, fame, credit, and reputation; wherefore the said plaintiff says that he is injured and has sustained damage to the amount of $5,000, and therefore the said plaintiff brings suit,” etc.

The testimony showed that the language complained of was used boisterously, several times, and in the presence of several persons. The learned circuit judge held the allegation sufficient, and that the jury might infer injury to feelings from the testimony stated.

Injury to feelings has always been included among the things for which general damages are recoverable, and no special allegation has been considered necessary. A statement of the slander, with a general ad damnum clause, was sufficient. And the law presumed the injury to the feelings from the proof of the slander, and the jury were allowed to determine the amount of the damage without opinion evidence thereon. These things are not changed by the statute. It is not necessary to specially plead injury to the feelings, nor does the law require proof beyond the proof of the slander before it will presume injury to the feelings.

We find no error in the record, and the judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
      In re BATCHELOR’S ESTATE.
    Wills — Construction—Allowance for Support — Settlement of Estate.
    Under a will directing the payment of a specified sum yearly to a beneficiary for her support during .the settlement of the estate, payments to be made in stated installments “ until the estate is closed,” the beneficiary is entitled to the allowance until the final settlement actually takes place, notwithstanding the estate is kept open after the time when such settlement might otherwise be made by the prosecution of a claim against such beneficiary.
    Error to Saginaw; Wilber, J.
    Submitted October 18, 1898.
    Decided January 20, 1899.
    Henry A. Batchelor appealed from an order of the pro-hate court allowing the final account of Edward W. Harris, executor of the last will and testament of Jacob E. Batchelor, deceased. From a judgment affirming the order, he brings error.
    Affirmed.

      Humphrey & Grant, for appellant.

      Benton Hanchett, for appellee.
   Montgomery, J.

This is an appeal from the allowance of the final account of the executor of the last will and testament of Jacob F. Batchelor, deceased. The question arises under the seventh clause of the will, which reads as follows:

“I give and bequeath to Martha L. Cable, for her support during the settlement of my estate, the sum of $1,000 yearly, the same to be paid to her quarterly, until my estate is closed.”

By other clauses of the will, specific bequests had been made to Miss Cable, consisting of the homestead of the testator, household furniture, etc., a life-insurance policy of $3,000, and $10,000 in money, which it was provided should be paid to her as soon as practicable after the decease of the testator. In addition, Miss Cable was made one of the residuary legatees, the appellant being the other. It appears by the findings that on the 3d day of February, 1893, all of the debts, expenses of last sickness, and funeral expenses had been paid, as provided in the first clause of said will; that the devise and bequest to Henry A. Batchelor, provided for in the second clause of the will, had then been paid and transferred; that Martha L. Cable had then received the devises and bequests described in the third, fourth, and sixth clauses of said will, and that she had then received $7,500 of the bequest named in the fifth clause of the will, and that all payments due to her under the seventh clause of the will, up to that date, had been paid to her, and that the bequests named in the eighth clause of the said will had then been paid.

It will be seen that the allowance of the account, as stated, works out a great injustice. The effect is to impose a penalty of $1,000 a year upon the appellant for prosecuting the case against Miss Cable. If, however, the terms of the will are unambiguous, as claimed, we cannot ignore them. It is contended by the appellant that the language of the seventh clause, when construed in connection with another clause of the will, to which reference will be made, should be construed to mean that there should be paid over to Miss Cable the sum of $1,000 per year until the funeral expenses were paid and the executor was in position to pay over the legacies; and that it should not be so-construed as to allow the executor, by mere delay, to enlarge the bequest or continue the allowance, or so as to make it possible to embarrass the executor in the prosecution of claims either against Miss Cable or third parties, to the extent of rendering such efforts more than barren to the estate, even in case of success; and that such a construction is reasonable, in view of the twelfth clause of the will, which reads as follows:

“And, in case my estate is not sufficient to pay the costs, expenses, debts, and legacies aforesaid in full, then, in that case, those mentioned in the first ten sections of this, my last will, shall be paid in full, and the remainder shall be divided among the three societies mentioned in the above eleventh clause of this, my last will, in proportion to the bequests therein mentioned.”

The first ten sections of the will include the bequest for support above' quoted. It is therefore urged that the $1,000 per year bequeathed for support must be paid, and the» amount thereof determined, before the amount of the bequests to the three societies could be ascertained, and that the annuity could not, therefore, be continued until the estate was closed. We think, however, that the twelfth clause is not inconsistent with the seventh. It would be entirely proper for the probate court to fix a time for distributing and closing the estate, and, upon the basis of that date, the amounts of the various legacies could be determined. In fact, the entire of the specific legacies to Miss Cable were not paid, and the estate was not settled or closed. The seventh clause is unambiguous, and we are constrained to hold that Miss Cable was entitled to the allowance until the final settlement of the estate actually took place or was determined upon. There is no finding of any collusion between the executor and Miss Cable. Appellant relies upon the case of Cal kins v. Smith’s Estate, 41 Mich. 409; but the language of the will under consideration in that case was materially different from the one here considered. In that case the court construed the expression, “before my estate is settled,” to mean the time before the funeral expenses, debts, and legacies were paid. If the similar expression in this will were so construed, it would not aid appellant, as the' legacies were not all paid.

Judgment affirmed.

The other Justices concurred.


text:
    PEOPLE v. SCHOONMAKER.
    1. Marriage — Minors —Consent of Guardian — Authority of Probate Judge.
    Under Act No. 180, Pub. Acts 1897, § 1, authorizing the judge of probate to issue a license and perform the marriage ceremony in certain specific cases where one of the parties is under the marriageable age, when the application for the license is accompanied “by the written request of the parent or guardian,” if the minor is an orphan having no guardian, one must be appointed, and his written request obtained, before the probate judge is authorized to act.
    2. Same — Avoidance.
    Under 2 How. Stat. § 6224, providing, in case of marriage of parties either of whom is under the age of 'consent, that if they shall separate during such nonage, and not cohabit together afterwards, the marriage shall be deemed void, without legal process, the marriage is to be deemed void whenever, after the minor comes of age, the question of its validity may arise, and it appears that there has been no actual cohabitation from a time during the nonage, unless the failure to cohabit is due to desertion of the minor by the other spouse.
    3. Same — Statutory Rape — Evidence.
    In a prosecution for statutory rape, it may be shown, to enable the prosecutrix to testify, that no lawful marriage ever took place between, her and respondent, though they went through the ceremony.
    4. Evidence — Competency—Harmless Error.
    Whether the court was in error in admitting certain documentary evidence is immaterial where the facts upon which it bore were otherwise established.
    Exceptions before judgment from Emmet; Adams, J.
    Submitted November 18, 1898.
    Decided January 20, 1899.
    Earl Schoonmaker was convicted of statutory rape.
    Conviction affirmed.

      B. T. Halstead, for appellant.

      Fred A. Maynard, Attorney General, and Clay F. Call, Prosecuting Attorney, for the people.
   Montgomery, J.

This case has once been before this ■court for review. The opinion on the former hearing will be found reported in 117 Mich. 190. On the second trial the respondent was again convicted. On the second trial it appeared in evidence that the parties went through the ceremony of marriage before the judge of probate, and that this marriage took place on petition of Maude Breen, without any consent by a guardian; that, ■after the ceremony, the parties made arrangements to go to housekeeping, but never in fact lived together, either before or after the witness arrived at the age of consent, she being, at the time the testimony was given, 16 years and 3 months of age, or thereabout. Two questions are presented: First, whether the marriage was a valid marriage under Act No. 180 of the Public Acts of 1897; and, second, whether the marriage was void under the general statute.

1. Section 1 of the act of 1897, above referred to, confers authority upon the judge of probate to issue a license and perform the marriage ceremony in certain specific cases, yíz. :

' “Where the female is with child, or where she has been living with some man as his wife, in cases in which the application for such license is accompanied by the written request of the parents of both parties, if living, and their guardian or guardians, if either or both of the parents are dead, or by the written request of the parent [or guardian] of the minor where only one of the parties is under the marriageable age now fixed by the statute, when, according to his judgment, such marriage would be a benefit to public morals.”

The circuit judge held, in effect, that this statute conferred a special authority upon the judge of probate, and, before that officer is authorized to act, the conditions fixed by the act must be complied Avith. We think this ruling right. This statute had a special purpose, and the marriage of young children, under the age of consent fixed by the general statute, was safeguarded by a requirement that there be a consent by the parent or guardian. It is contended that the statute should be so construed as to require the assent of the guardian in case the infant already have a guardian; but such a construction would, in our judgment, amount to an extension of the statute. The provision requiring the assent of the guardian was doubtless inserted with the view that the guardian would have opportunities not afforded a probate judge for making investigation of the character and ability of the contracting parties, with a view to determining the propriety or desirability of a marriage between them.

2. The witness Maude Breen was, at the time of the ceremony, under the age of 16 years, and incapable of making a full contract of marriage, under sections 6209 and 6210, 2 How, Stat. The question is therefore presented whether, under section 6224, the voidable marriage, was avoided at the time the testimony was given on this, trial. This section provides that in case of a marriage solemnized when either of the parties was under the age of consent, if they shall separate during such nonage, and. not cohabit together afterwards, the marriage shall be deemed void, without any decree of divorce or other legal process. In the case of People v. Slack, 15 Mich. 193, it was held that a marriage between two parties, one of whom was under the legal age of consent, was voidable merely, and not absolutely void, and when, as appeared in that case, the party to the marriage who was of full age deserted the other, the marriage had not ceased to be binding upon him; the court treating the word ‘ ‘ separation,” as used in the statute, as signifying a voluntary separation. Upon this point there was an able dissent by Mr. Justice Campbell, but the rule oh the majority opinion has too long prevailed to be now open to question. In that case, however, there was cohabitation immediately following the marriage, and continuing until the desertion of the wife by the husband. In the present case the witness never, after the marriage, cohabited with the husband. She testifies that, at the time of the marriage, it was her intention to live with respondent; that, shortly after the marriage, she went to the house of her stepfather, intending to return to respondent; that this was understood between herself and respondent; but she did not in fact return to him, and has never cohabited with him since she reached the age of consent, nor is there any evidence of a present purpose to do so. Clearly, the marriage has never been ratified or validated in the manner contemplated by the section above quoted. Does it then continue for all time a marriage merely voidable? If so, this woman, for some purposes, is to be treated as respondent’s wife during life, although .she has not, since reaching the age of 16, cohabited with him, or exhibited any intention .of doing so. We think the statute cannot be so construed. It provides that such a marriage, not followed by cohabitation'after the disability of-nonage is removed, shall be deemed void, without any decree or order of the court. When deemed void? Clearly, whenever, after the disability is removed, the question may arise, and when it appears that there has been no cohabitation, unless such failure to cohabit is due to the desertion of the minor spouse, in which case the willingness to cohabit may be treated, upon the authority of People v. Slack, as equivalent to continued cohabitation. See People v. Bennett, 39 Mich. 208. We think the testimony of Maude Breen was properly admitted. It is competent to show that no lawful marriage ever took place, even though the parties went through the ceremony. 29 Am. & Eng. Enc. Law, 633.

Objection was made to the certified copy of the license, etc., given out by the secretary of state; but the testimony of the witness Maude Breen showed the absence of any request by a guardian, and, as the question of competency was for the court, this testimony was sufficient to prove the fact, and it is unimportant whether the objection to the documentary evidence is well or ill founded.

The charge of the court we find full and fair, and sufficiently favorable to respondent.

The conviction is sustained.

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


author: Grant, C. J.

text:
    STEYSKAL v. DETROIT JOURNAL CO.
    Libel — Conduct oe Jailer — Damages.
    A newspaper article which, states that a jailer accepted a gold watch from a prisoner as security for five dollars, advanced to pay his fine, and that the watch was subsequently identified as one that the prisoner had stolen, will not support a verdict for plaintiff in a libel suit brought by the jailer, where there is no proof of special damages.
    Error to Wayne; Donovan, J.
    Submitted October 19, •1898.
    Decided January 20, 1899.
    Case by Mathias Steyskal against the Detroit Journal Company and others for libel. From the judgment rendered, both parties bring error.
    Reversed.
    This is an action of libel, based upon the following publication in the Detroit Journal:
    “JOKE ON STEYSKAL.
    “bought a stolen watch to help a prisoner.
    “Winfred M. Raymond, 24 years of age, who gives his residence as 961 Sixteenth street, was locked up in the Central station this morning, charged with the larceny of a revolver, two watches, and $25.00 in cash, the property of Wm. S. Gill, of 920 Grand River avenue. A few days a go Raymond was arraigned at the early session of the police court, charged with being drunk and disorderly. He was fined $10.00 by Justice Whelan, who told the prisoner he would stand committed to the House of Correction for a period of six months if the fine was not paid. Raymond had $5.00 in cash, and, not liking to spend the holidays at the workhouse, disposed of a gold watch to Turnkey Steyskal at the county jail for the other $5.00, paid his fine, and was released. He then went to Belle River, Canada. Monday morning Mr. Gill reported his loss to the police, and he identified the watch given to Mr. Steyskal as part of the stolen property. An effort was then made to find Raymond, and he was finally located at Belle River. He refused to come back to the States, and extradition papers were secured. In the police court this morning he pleaded not guilty to the charge made against him, and will have his examination next Tuesday.”
    The facts are that Raymond was found guilty of being drunk and disorderly, and fined $10. He had $5 in cash and a gold watch. Plaintiff was the jailer. One Peter Knauss was his deputy. Knauss took the responsibility of discharging Raymond on his promise to pay the other $5, leaving the watch with him as security.' Knauss turned the watch over to plaintiff, to be kept with other property taken from prisoners. Plaintiff testified that Knauss did not inform him that he held the watch as security. He also testified that Knauss told him he would pay the fine, and that, when Knauss put the watch in the drawer, he said to plaintiff: “There will be a man here after it. When he comes, call me. The man will be back, and pay his fine, and claim his property.” The watch was stolen, and Raymond was arrested for the larceny, and convicted. The court directed a verdict in favor of defendants Palmer and Livingstone, and submitted the question as against the defendant Detroit Journal Co. to the jury, Who found a verdict for plaintiff of $200.

      James H. Pound, for plaintiff.

      Cutcheon & Stellwagen, for defendants.
   Grant, C. J.

(after stating the facts). We need consider but one question. The article was not libelous. Plaintiff claims no injury in his business, and the court so .instructed the jury. There is no evidence that his reputation was injured. He testified that the following evening, in a restaurant, some half dozen persons jokingly asked him what time it was, and that one of them said to him, “They have your picture in the paper,” to which plaintiff testified: “I laughed at him, and he says: ‘I feel sorry. That is abad article.’” The article charges no criminal or immoral conduct. Construed most strongly, it meant only this: That the prisoner was willing to part with the gold watch to obtain $5 to pay his fine, and that plaintiff took it to enable him to do so. The court should have directed a verdict for the defendant.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


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    CORBETT v. SCHULTE.
    Vendor and Purchaser — Election of Remedies.
    Where the vendee in a land contract refuses to vacate upon a forfeiture’s being declared for nonpayment, and sets up in defense of the vendor’s attempt to recover possession a right to withhold the payments until the vendor shall move the house upon the premises so that it will not encroach upon the adjoining lot, he affirms the contract, and limits his remedy to an action at law for damages.
    Error to Wayne; Grove, J., presiding.
    Submitted October 19, 1898.
    Decided January 20, 1899.

      Assumpsit by Mary A. Corbett against Peter W. Schulte to recover moneys paid on a land contract. From a judgment for plaintiff, defendant brings error.
    Reversed.
    On December 14, 1885, Peter Schulte, defendant’s grantor, and Patrick H. Corbett, entered into a land-contract, by which the former agreed to sell to the latter the north 26 feet of lot 191 of the Stanton farm, in the city of Detroit. Upon the lot was a small house, resting upon' posts. Corbett made sundry payments to Mr. Schulte, who, on December 24, 1892, deeded the land to defendant, subject to the conditions of the above contract. Corbett was duly notified of the deed, and made sundry other payments to defendant. In 1891 it was discovered that the house encroached from three to five inches at the ground upon the adjoining lot, owned by one Winslow. The eaves extended over some inches farther. The house upon the opposite side of the' lot encroached also to about the same extent upon the Schulte lot. Plaintiff gave evidence tending to show that Mr. Corbett notified defendant of the defect; that he demanded that the.house be moved over upon the lot conveyed, and that he was ready and willing to pay when defendant was' ready to give him a good title to the lot and house; that defendant gave him notice of forfeiture of the contract for nonpayment, and afterwards, by proceedings before the circuit court commissioner, ejected him from the premises. Defendant gave evidence tending to show that he offered to move the building; that Corbett refused to let him move it; that defendant, after taking possession, did move it, at an expense of $18, including the cost of new posts; and that, after giving notice of forfeiture, and upon the trial to recover possession, he offered to convey to Mr. Corbett a strip of land which he had obtained from Mr. Winslow, covering the ground upon which the house stood. Mr. Corbett assigned his claim to plaintiff, his wife, who brought suit to recover the amounts paid upon the contract, taxes, repairs, and insurance, less the value of the premises during the time of its occupancy. v Plaintiff recovered verdict and judgment.

      James H. Pound, for appellant.

      Frank C. Cook and R. E. Van Syckle, for appellee.
   Grant, C. J.

(after stating the facts). The only real controversy of fact was whether defendant offered to move the house back on the land conveyed. Schulte had a complete title. The court instructed the jury that Corbett “had the right to cease paying if defendant, on being notified of the situation, refused to put himself in a position where he could give a marketable title to the property, including the house.” The converse of the proposition was also stated. The court further instructed the jury that the measure of damages was the money he had paid, less what they should find to be the rental value of the property.

The defendant insists that the court should have directed a verdict for him, and the refusal to so charge is the principal error alleged. There was no defect in the title or in the description of the land. Upon the execution of a deed, Mr. Corbett would have become the owner of the precise land he contracted to buy. The small building, supposed to be located upon it, was found to be a few inches over the line. At an expense of six or eight dollars, he could have removed the building so as to place it entirely upon the land conveyed. He possessed the legal right to move it, so far as the grantor was concerned, and no objection was made by Mr. Winslow to removal. He occupied it 11 years, during which time his possession was not disturbed by his neighbors. He lived upon the land five years after he knew the situation. He now seeks to make an innocent grantee pay damages for which he is in no sense responsible. His claim has no equity. Has it any standing under the law ?

If it be conceded that Mr. Corbett might have filed a bill to rescind the contract, or have abandoned the premises, and recovered back so much of the consideration as had been paid, it is also true that he might have affirmed the contract, and removed the house from the adjoining land, which Mr. Winslow asked him to do. After Mr. Schulte had given him notice of forfeiture of the contract, and demanded possession, he not only refused to vacate, but successfully defended an action for possession, basing his defense on his alleged right to withhold the remainder of the purchase price until the vendor should perfect the title. He admits that after this the vendor offered to throw off $100 of the purchase price if he would pay, and his own attorney admits a tender of a deed, not only of lot 26, but 18 inches more land upon which the house stood, which he bought for the purpose. This second suit he did not defend. His attorney testified that, at the time of the trial, the defendant offered such a deed, and was told by counsel that Corbett “did not claim any rights under the contract; that Schulte had forfeited his rights under the contract, and he simply wanted his money back.” It is elementary that a man is bound by his election of one of two inconsistent rights, and when Corbett not only delayed rescinding, but insisted on occupying under the contract to the extent of defending and defeating the vendor in an attempt to recover .possession, he unqualifiedly affirmed the contract, and limited his remedy to an action at law for damages.

Judgment reversed, with costs of both courts, and no new trial -granted.

The other Justices concurred.


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    NILES v. FARMERS’ MUTUAL FIRE INSURANCE CO.
    Fire Insurance — Incumbrances—Breach oe Warranty.
    Plaintiff purchased on contract 10 acres of land, being a part of a tract of 80 acres, which was mortgaged for $500. In his application for insurance he stated that his property was incumbered for §350; that being the amount of the unpaid balance on the purchase price. By the terms of the insurance contract, the statements in the application were made warranties. Held, that there was a breach of warranty avoiding the policy. American Ins. Co. v. Gilbert, 27 Mich. 429, distinguished.
    Error to Antrim; Corbett, J.'
    Submitted October 19, 1898.
    Decided January 20, 1899.

      Assumpsit by Cyrus Niles against the Farmers’ Mutual Fire Insurance Company of Grand Traverse, Antrim & Leelanau counties on a policy of insurance. From a judgment for plaintiff, defendant brings error.'
    Reversed.

      Leavitt & Guile, for appellant.

      H. B. Hudson and N. C. Weter, for appellee.
   Long, J.

This is an action on a fire-insurance policy held by plaintiff in the defendant company. The policy was issued December 2, 1893, and covered $750 on dwelling house, and $250 on furniture, etc., therein. The premiums were fully paid, and the house, furniture, etc., were destroyed on March 3, 1897. On the. trial the jury returned aver diet in favor of plaintiff for $562.50 on dwelling house, and $187.50 on furniture, etc. Several defenses were interposed, but most of them were settled by the verdict on questions of fact, which were properly submitted, and will not be discussed.

It is contended that the policy was void because a certain mortgage of $500 was not disclosed to the insurance company. It appears that the plaintiff purchased by land contract 10 acres of land from his brother, upon which was located the dwelling house insured. He paid nothing upon the contract, but went at once into possession of the property. At or before the time of this purchase by the plaintiff, his brother had mortgaged his farm of 80 acres (of which this 10 acres formed a part) for $500. By the terms of plaintiff’s contract, he was to make certain additions to and improvements upon the house, and upon the payment of $350 was to have his deed of the premises. He had made the additions and improvements, but had not paid the $350, when the policy sued upon was issued to him. In the application for the insurance the question was asked, “Is the property incumbered by mortgage or otherwise?” to which the plaintiff answered, “Yes; to the amount of $350.” By the terms of the policy, the application is made a part of the contract, and is to be construed as a warranty by the insured of the truth of the facts therein stated. The contention of counsel for defendant is that the omission to state this $500 mortgage given by the plaintiff’s brother amounts to a fraudulent concealment of a material fact, and avoids the policy.

Counsel for plaintiff insist that this question is ruled by American Ins. Co. v. Gilbert, 27 Mich. 429. That case, however, is not controlling. There Gilbert had purchased by contract from one Prentice the 80 acres upon which the insured buildings stood. The purchase price was $4,000, and only $50 of it had been paid down. • Pren-tice covenanted to convey a good title, free of incumbrances. At the time of this contract, and at the time of the loss, there was an outstanding mortgage on the land to one Smally for $300. The application stated the value of the house at $4,000, and asked for $2,500 insurance, and on the barn $250. The application also stated: “Loss, if any, payable to mortgagee, so far as his interest may appear. John Prentice, mortgagee.” The application then proceeds to ask:

“What is the title?
“A. Article of agreement. * * *
“ Is your property incumbered, — by what, and to what extent ?
“A. By mortgage for $4,000.
“If incumbered, what is the whole value of your real estate (including buildings and land) ?
“A. $8,000 or more.”

The policy referred to the application, and made it a part of it, and a warranty by the insured. In reference to the Smally mortgage, the court below stated to the jury, in substance, that inasmuch as Prentice, by his contract, had undertaken to convey to plaintiff a good title, and was therefore bound to pay off the amount due on this mortgage, and would not be entitled to this $4,000 from the plaintiff until he did so, and could recover only the $4,000, less the sum due on that mortgage, the latter was in legal effect included in the statement of the $4,000 mortgage to Prentice. This charge was held to be correct.

In the present case, however, the representation was that the incumbrance was only $350. This did not include the $500 mortgage with which the 80 acres was incumbered, and was not so intended. The $500 incumbrance was not stated. It is apparent that the property was incumbered for $150 more than stated in the application. The insurance company had the right to be informed of the total amount of the incumbrance. By the terms of the contract, the statements in the application were made warranties, and the company had the right to rely upon them as true. The court below was in error in holding that such representations were immaterial. The court should have directed the verdict in favor of defendant. This policy was issued before Act No. 167, Pub. Acts 1897, took effect.

We find no error in the record, aside from this.

Judgment is reversed, and anew trial awarded.

The Other Justices concurred.


text:
    BINGHAM v. BRANDS.
    1. Contracts — Restraint or Competition — Leoality.
    A contract to sell lambs, wherein the buyer agrees not to buy any other lambs in certain counties prior to the date fixed for delivery, is void under 3 How. Stat. § 9354/, declaring void all contracts designed in any manner to prevent or restrict free competition in the production or sale of any agricultural article or commodity.
    2. Same — Statutes—Constitutionality.
    3 How. Stat. § 9354/, declaring void all contracts designed in any manner to prevent or restrict free competition in the production or sale of any agricultural article or commodity, is constitutional.
    Error to Shiawassee; Smith, J.
    Submitted October 20, 1898.
    Decided January 20, 1899.

      Assumpsit by Washington Bingham and. another against William D. Brands and another for the breach of a contract of sale. From a judgment for defendants on demurrer to the declaration, plaintiffs bring error.
    Affirmed.

      Selden S. Miner, for appellants.

      A. L. Chandler, for appellees.
   Long, J.

This suit was commenced by filing the following declaration:

“For that whereas, heretofore, to wit, on the third day of May, in the year of our Lord one thousand eight hundred and ninety-seven, said plaintiffs and said defendants entered into the following contract, to wit: ‘ This agreement, made in duplicate, this third day of May, in the year of our Lord one thousand eight hundred and' ninety-seven, by and between William D. Brands and Robert Thompson, parties of the first part, and Clare S. Bingham and Washington Bingham, parties of the second part, as follows, witnesseth: That the said parties of the first part hereby agree to sell and deliver to second parties what stockmen call good feeding lambs, to be delivered to second parties as follows: 1,000 lambs to be delivered any time during the first week in September, 1897, and 1,000 lambs to be delivered at any time during the last week in October, 1897, at the stock yards at Kirby, in Shiawassee county, Michigan, and the price and quality is to be as follows: No lambs are to weigh less than 50 pounds, no buck lambs, and no culling of lots, except to take out the bucks or the lambs; all to be delivered, with the exception of buck lambs, as they are purchased from the farmers, and all to be Michigan woole'd lambs; and the price to be paid is 4jr cents per pound for each lamb so sold of the 2.000 lambs. And second parties agree to buy of first parties 2,000 lambs at the time, place, price, and quality above stated, and to pay therefor the sum of 4£ cents per pound when delivered; and second parties agree, in consideration of the above agreements of the first parties, not to buy, nor offer to buy, any Michigan feeding lambs, of the kind or quality herein mentioned, in Genesee or Shiawassee counties at any time before the first day of November, 1897; and second parties also agree that they will not buy, nor offer to buy, any lambs to be fattened by the seller nor themselves during the winter of 1897 and 1898, in lots of less than 200 lambs.’ * * *
“And whereas, said plaintiffs, relying upon said contract, did all things that were necessary for them to do, ás in said contract mentioned, and on the first day of September were ready, willing, and desirous of taking said 1.000 lambs as required and specified in,said contract; yet said defendants, desiring to injure said plaintiffs, neglected and refused to deliver to said plaintiffs said lambs as required in said contract, and still refuse and neglect to deliver said lambs as in said contract specified, except 647, which have been delivered by said defendants to said plaintiffs as specified in said contract, leaving a balance of 353 lambs, which were to be delivered by said defendants to said plaintiffs at the stock yards at Kirby, in Shiawassee county, as specified in said contract, which said defendants refused and neglected to deliver as specified in said contract, and still refuse and neglect to deliver said lambs to said plaintiffs, as required in said contract.”
The defendants interposed the following demurrer:
“In this cause the defendants say that the declaration of the plaintiffs is not sufficient in law; that the contract set forth in said declaration, upon which a recovery is sought, is made void by the statutes of this State, in that, among other things, it attempts to enhance, control, and regulate the market price of sheep, and to prevent and restrict free competition in the production and sale of sheep in Shiawassee and Genesee counties, contrary to public policy and the laws of this State. Said declaration avers no consideration for the contract or promise alleged therein to have been violated.”

The court below sustained the demurrer, and plaintiffs bring error.

It is evident that no principle of the common law is violated by this contract. It \ has been repeatedly held that contracts not to carry on a specific trade or business in a town or county are valid. Thompson v. Andrus, 73 Mich. 551. We think, however, that the contract is in violation of section 9354j, 3 How. Stat., which provides:

“All contracts, agreements, understandings, and combinations made, entered into, or knowingly assented to by and between any parties capable of making a contract or agreement which would be valid at law or in equity, the purpose or object or intent of which shall be to limit, control, or in any manner to restrict or regulate the amount of production or the quantity of any article or commodity, to be raised or produced by mining, manufacture, agriculture, or any other branch of business or labor, or to enhance, control, or regulate the market price thereof, or in any manner to prevent or restrict free competition in the production or sale of any such article or commodity, shall be-utterly illegal and void.”

By the terms of this contract, the plaintiffs were restrained from purchasing lambs in Genesee and Shiawassee counties. The contract had the effect to restrict free competition in those counties, and falls within the very terms of the statute. It is evident that the legislature, in the passage of this act, had the object in view to prevent the making of contracts which before had been recognized by the courts as valid at the common law. Many contracts, even in restraint of trade, when limited to certain territory, had been upheld. The test as to what constituted reasonableness in such contracts was stated by Tindal, C. J., in Horner v. Graves, 7 Bing. 735, as follows:

“We do not see how a better test can be applied to the question whether the agreement is reasonable or not than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either. It can only be oppressive, and, if oppressive, it is, in the eye of the law, unreasonable. Whatever is injurious to the interests of the public is void on the grounds of public policy.”

Examples of contracts which have stood this test may be found in Mitchel v. Reynolds, 1 P. Wms. 181; Gale v. Reed, 8 East, 80; Sternberg v. O’Brien, 48 N. J. Eq. 370; Martin v. Murphy, 129 Ind. 464. The rule at the present time in England and in some of the States of the Union seems to be that such contracts are valid, provided they fulfill the test laid down by Tindal, C. J., in Horner v. Graves, supra.

It was to meet decisions of this character that the act in question was passed, the legislature evidently regarding all combinations of this character as inimical to the public welfare and contrary to public policy. Contracts or agreements made with intent to limit, control, or in any manner to restrict or regulate the amount of production or the quantity of any article or commodity to be raised ■or produced by mining, manufacture, agriculture, or any other branch of business or labor, or to enhance, control, or regulate the market price thereof, or to prevent or restrict free competition in the production or sale of any such article or commodity, are made invalid by the act, except such contracts as are recognized at common law- and in equity for the good will of a trade or business. These last-named contracts are, by a later clause in the section, left to stand upon the same terms and within the same limitations as recognized at common law and in ■equity. Mr. Justice Howe, in Kellogg v. Larkin, 3 Pin. 136, speaking upon the question of public policy, says:

“As a general rule, the immediate representatives of the people, in législature assembled, would seem to be the fairest exponents of what public policy requires, as being most familiar with the habits and fashions of the day, and with the actual condition of commerce and trade, their consequent wants and weaknesses; and a legislative enactment would seem to be the least objectionable form of exposition.”

"We find nothing in this statute beyond the power of the legislature to enact, and its effect should not be frittered away by construction.

The court below very properly sustained the demurrer* The judgment must be affirmed.

The other Justices concurred.