text:
    GERMAN CORPORATION v. NEGAUNEE GERMAN AID SOCIETY.
    1. Corporations — Benevolent and Charitable Purposes— Deed.
    A transfer by a corporation organized for benevolent and charitable purposes under §§ 8258-8263, 3 Comp. Laws, 4 How. Stat. (2d Ed.) §8998 etseq., of mineral rights devised to the association unconditionally by the will of a deceased member, is valid only if the consideration is adequate and to be devoted to benevolent purposes, or if the disposition of property is made directly for charitable purposes: its assets cannot be diverted from such objects by a sale of property worth $500 to the members of the corporation for the consideration of one dollar.
    2. Same — Charities—Words and Phrases — Benevolent.
    The words “benevolent and worthy purposes and objects,” as used in said statute, mean more than a charitable object, or generosity, or liberality; they refer to acts tending to relieve misfortune or distress, and do not warrant the conveyance of its property by the society to its members.
    3. Same — Statutes.
    Corporations organized in pursuance of such provisions of statute are not organized for profit within the meaning of the act, whatever may be the intent or purpose of the individual members.
    4. Same — Deeds—Parties.
    A deed to all the members and officers from the corporation was invalid for want of parties to the contract in which the same persons were interested on both sides, and also for the inadequacy of the consideration.
    5. Same.
    Upon the entrance of new members into the corporation, it was entitled to object to the diversion of its funds, and to recover its property from a new corporation to which the original members conveyed the mineral rights.
    6. Same — Stockholders—Equity.
    The finance committee of the grantor, having charge of the entire management of the corporation and its assets, and having a majority of new members, not participants in the transaction, rightly defended the property of the corporation by opposing the suit and conveyance, in the corporate name, although a majority of the members favored it and all the old members participated in the transaction.
    7. Same — Setting Aside Conveyances.
    Any new member of the corporation was entitled to defend against the conveyance, by cross-bill, in a suit brought by the grantee to confirm its title.
    8. Same.
    Corporate powers should only be exercised to accomplish the objects for which the corporation was called into existence, and even a majority should not control those powers to pervert or destroy the original purposes of the corporators.
    9. Same — Officers.
    The officers had no right to attempt to represent the corporation in any transaction in which they were personally interested in obtaining ah advantage at the expense of the company.
    10. Same — Fraud.
    The deed operated as a fraud on the society and was a gross abuse of the trust.
    11. Same — Equity—Inadequacy oe Consideration
    While inadequacy of consideration may not be a distinct ground of relief in equity, it is evidence of fraud that would warrant the interposition of the court, especially when it is so great as to shock the moral sense.

      12. Same — Constitutional Law — Franchise.
    The constitutional provision limiting the right of a corporation ' to hold real estate to ten years unless occupying the property in the exercise of its franchise (sec. 5, art. 12), can only be enforced at the instance of the State.
    Appeal from Marquette; Flannigan, J.
    Submitted October 15, 1912.
    (Docket No. 68.)
    Decided November 8, 1912.
    Bill by the German Corporation of Negaunee, Michigan, against the Negaunee German Aid Society and others for. the reformation of a deed and to quiet title to certain mineral rights. Defendants filed a cross-bill, praying for cancellation of said deed of conveyance. From a decree granting defendants the relief asked, complainant appeals.
    Affirmed.

      G. F. Button, for complainant.

      W. T. Potter, for defendants.
   Stone, J.

This case is here on appeal by the complainant from a decree dismissing the bill of complaint, and granting the relief prayed for in the answer and cross-bill of the defendant, the Negaunee German Aid Society.

The opinion of the learned circuit judge who heard the case so fully states the facts, and so clearly discusses the questions of law involved, that we insert it here, and adopt it as our own :

“The complainant is a corporation organized under the laws of Michigan for mining purposes. The defendant the Negaunee German Aid Society is a corporation organized under sections 8258-8263, 3 Comp. Laws (4 How. Stat. [2d Ed.] § 8998 et seq.). It was organized January 10, 1887, for the purposes and objects authorized by the statute, viz., to provide for the relief of distressed members, the visitation of the sick, the burial of the dead, and such other benevolent and worthy purposes and objects as affect the members of the corporation. The other defendants are members of the Aid Society.
“One Charles L. Werner, who died May 23, 1894, was, at the time of his death, , a member in good standing of the Aid Society. He left a will devising and bequeathing unconditionally all his property, real and personal, to the Aid Society. The will in due time was admitted to probate, and under it the Aid Society became the owner in fee of the lands described in the bill of complaint. Subsequently the Aid Society sold and conveyed the surface of these lands, reserving to itself, its successors and assigns forever, all ores and mineral therein, with the usual rights of exploration and mining. On the 8th day of May, 1906, the total membership of the Aid Society was 39. On that day, pursuant to resolutions passed by themselves, and in form authorizing the transaction, the mineral rights of the Werner lands were deeded by the Aid Society to its members share and share alike. The consideration expressed in the deed was the sum of $1, which was paid. The complainant was organized July 14, 1909, and on August 19th of that year the Werner mineral rights were conveyed to it by deed in due form executed and acknowledged by the Aid Society’s grantees of such rights. It is claimed the testimony does not disclose the identity of the incorporators of the complainant, or the names of the stockholders at the time of the filing of its bill, but the impression received by the court, from the witnesses and on the arguments, was that the members of the Aid Society, who received the deed of the Werner mineral rights, and the organizers and stockholders of the complainant, are identical. However, that may be, it is true the complainant does not deny knowledge before, and at the time of the execution of the deed to it, of all the facts and circumstances surrounding the deeding of the mineral rights to the Aid Society members. About seven months after the conveyance by the society to its old members, a new member was admitted, and from time to time subsequently other new members to the number of 19 or 20 were taken in. Some of the new members knew of the situation of affairs relating to the Werner mineral rights before they sought admission to the society, while others knew nothing concerning the mineral rights transaction until after admission. None of the new members claim they were induced to join the society by reason of the supposed ownership by it of the Werner mineral rights.
“Shortly after the new members became affiliated with the society, they publicly denied a valid transfer of the mineral rights to the old members, and made such representations in that regard that third parties refused to deal with the complainant as the owner thereof. The complainant filed its bill against the society and the new members to quiet its title. The new members answered, disclaiming any ownership of the minerals in themselves, as individuals or members of the society, but insisting that the title to the minerals did not pass to the old members or the complainant, and remains in the society. The society also appeared and answered, denying the validity of the conveyances to the old members and the complainant, and asserting title in itself. The defendants, claiming for their answer the benefit of a cross-bill, prayed for a decree canceling the deeds to the old members and the complainant, and quieting the title in the society. The consideration expressed in the deed is the sum of $1. The actual payment of the dollar is disputed. Relative to its payment, the testimony is in some confusion, but, on the whole, we conclude it was in fact paid. The Aid Society was endowed by the law of its organization with full power to purchase, take, receive, hold and enjoy real estate and personal property, and to give, grant, sell, mortgage, lease, devise, and dispose of the same at its will and. pleasure; but in the same section it is provided that the proceeds arising from all estate and investments of the society shall, after payment of all running expenses, be devoted exclusively to the benevolent purposes and objects of the corporation.
“ The act under which the society organized is entitled ‘ An act to provide for the incorporation of benevolent societies.’ Its purposes and objects are limited by the act to benevolent purposes and objects, and, while it may sell its real estate and other property at its will and pleasure, yet the proceeds must be devoted exclusively to benevolent purposes and objects. It would seem, therefore, that the powers of the society in regard to the disposition of property are limited to a disposition directly for a benevolent purpose, or for an adequate consideration to be devoted exclusively to benevolent purposes. Unless the consideration for the transfer of its property is the accomplishment of a benevolent purpose, the consideration must be money or money’s worth fairly proportionate to the value of the property conveyed, otherwise the provisions of the statute, which permit a conveyance of property on condition that the proceeds are devoted to benevolent objects, is defeated.
“ If the sole consideration for the deed in question here, was the sum of $1, then that .the consideration paid for the conveyance of the mineral rights was inadequate is not open to question. The rights conveyed, according to the testimony, were worth at least $500. This brings us to the question whether the object of the conveyance to the old members was a benevolent one. We are in accord with counsel for complainant that ‘ benevolent purpose or object ’ is not interchangeable with ‘ charitable purpose or object.’ ‘ Benevolent ’ is a word of much broader significance than ‘ charity,’ and includes what are in no sense charities. It rather signifies an act dictated by kindness, good will, or a disposition to do good. The act is characterized by the good and kindly intention of the donor, rather than by the condition of the recipient, and in its broader sense it may be said to mean liberality and generosity, and in that sense might be applied to a straight gift of property by the society to its members. But the word has come to be used with different meanings, according to circumstances, and, where its meaning is important in the determination of a question, the courts invariably search the circumstances of its use to ascertain the meaning intended. The word benevolent, of itself, without anything in the context qualifying or restricting its meaning, will be taken in its broader sense, otherwise, if it is apparent, * from the surroundings, it was used in a stricter or narrower sense. 1 Words and Phrases, 758-756, and cases cited.
“To ascertain the meaning which the legislature gave the word, we may not stop upon recourse to a dictionary, but must go to the statute where the word is found, and determine from the context whether its meaning is narrowed down. 'To provide for the relief of distressed members, the visitation of the sick, the burial of the dead, and such other benevolent and worthy purposes and objects as affect the members of the corporation,’ is the language of the statute, and that the word ' benevolent ’ as there used was intended by the legislature to denote acts tending to the relief of misfortune, if not actual distress, must be clear. As there used,' it means a benefit conferred on a member in need. The recipient may or may not be an object of charity, but, if not an object of Charity, he must be the mark of ill fortune. It was not intended by the legislature to class a gift by the society, whereby a rich member is made richer, a benevolent act. It must be held, therefore, that the sole consideration for the deed to the old members was the sum of $1, and that the same was inadequate.
“There is no justification in the statutes for the position taken for the complainant on the arguments and in the briefs, that the society is a business corporation for profit. The act provides solely for the incorporation of benevolent societies. As has been seen, the word ‘benevolent,’ even in its broader sense, signifies the conferring of benefits as distinguished from the distribution of profits, and that the act limits the objects of societies formed under it to the conferring of benefits, and excludes all objects of a profit-sharing nature, is too plain to require argument. Whether the members of the society regarded it as a profit-sharing corporation is of no moment. The law, and not the will of the members, fixes the status of the corporation.
“ The Aid Society was not really a party to the deed of the mineral rights. Every officer and member of the society was interested on the other side. The officers and members represented themselves. The corporation of which they were officers and members was not represented in the transaction. The officers and members dictated the terms of the sale, directed the execution of the deed, executed it themselves, and delivered it to themselves. The deed, therefore, was not, either in law or fact, executed or delivered by the society to its officers and members, but by its officers and members to themselves. The deed to the old members must be held void, because made upon inadequate consideration by and for the benefit of those in control of the corporation, and also for want of the necessary element of two parties to the contract. Miner v. Ice Co., 93 Mich. 97 [53 N. W. 218, 17 L. R. A. 412]; People v. Township Board, 11 Mich. 222; Flint, etc., R. Co. v. Dewey, 14 Mich. 477.
“ The complainant, having taken the deed to itself with knowledge of the particulars of the transaction between the society and its old members, stands in no better position. The deed to the old members being void, their deed to the complainant was ineffectual to pass title. The complainant took nothing by its deed. The position taken by complainant that, inasmuch as all of the officers and members of the society, at the date of the transaction, were parties to it, neither the corporation nor the new members will be admitted to complain, is unsound. Clark & Marshall on Private Corporations, p. 2297, and cases collected in note 565.
“A corporation is a legal entity and artificial person distinct from its stockholders or members as individuals, and that it may, by a proper action, in the proper court, recover property owned by it, which is unlawfully withheld by its officers and members in control of its affairs, is entirely clear, and the fact that all of its members happened to be in opposition does not alter the case. In such a situation a corporation may sometimes be unable to get into court, but being in, it may demand of all of its members, as well as of a part, the restitution of property unlawfully appropriated. The complainant has insisted throughout that the Aid Society concedes the conveyance of the mineral rights to the old members to be valid and binding upon it, and, further, that the answer of the society was put in without its sanction, and consequently that any defense presented in the name or on behalf of the society should not be considered by the court. The by-laws of the society provide for the election of a finance committee, -to consist of three trustees, who are clothed with ‘ the management of the entire property of the society, and shall be responsible for the same.’ It happened that at the time of the filing of complainant’s bill, the finance committee, or, at least, a majority thereof, was made up of new members who discredited the conveyance of the mineral rights, and that committee employed a solicitor and gave instructions for the defense on the part of the society. It is true that a majority of the members of the society, counting the grantees of the mineral rights, were opposed to a defense on the part of the society. Under the by-laws, and in view of the special circumstances of this case, the finance committee had the right to defend in the name and on behalf of the society and to make all necessary provisions to that end.
“ Furthermore, the nature of this case is such that the defense of the society could be presented, and the case made by the cross-bill prosecuted by any new member of the society. Miner v. Ice Co. [93 Mich. 97, 53 N. W. 218, 17 L. R. A. 412]; Torrey v. Cement Co., 150 Mich. 86 [113 N. W. 580]; Edwards v. Investment Co., 132 Mich. 1 [92 N. W. 491]. A decree is ordered dismissing the complainant’s bill of complaint, canceling the deed from the society to the old members, and from the old members to the complainant, and quieting the title of the society to the mineral rights in controversy, as prayed in the cross-bill.
“ In taking from the society the deed of the mineral rights, the old members did not contemplate a fraud on the society. On the contrary, it appears quite conclusively they acted in the best of good faith throughout, fully and honestly believing they had a right, inasmuch as they included the entire membership of the society, to conclude the transaction which was made. Under these circumstances, costs will not be awarded to either party.”

But little need be added. It is very evident that the property in question was willed to the defendant, the Negaunee German Aid Society, to be used for the purposes and objects for which such society was formed. Those objects and purposes are distinctly stated in the statute.

Corporate powers should only be exercised to accomplish the objects for which they were called into existence, and even a*majority should not control those powers to pervert or destroy the original purposes of the corpora-tors.

The officers of the corporation had no right to represent the corporation in any transaction in which they were personally interested in obtaining an advantage at the expense of the company they represented. Ten Eyck v. Railroad Co., 74 Mich. 226-232 (41 N. W. 905, 3 L. R. A. 378, 16 Am. St. Rep. 633); 1 Morawetz on Private Corporations, § 517. To permit the officers and members of. the Aid Society (even in its corporate name) to deed to themselves the mineral interest in question, under the circumstances here shown, would be to pervert and destroy the purposes of the society. The statute provides that—

The proceeds arising from said estates and investments shall, after the payment of all running expenses, be devoted exclusively to the benevolent purposes and objects of the corporation.”

Such deed operated as a fraud upon the society, and was a gross abuse of the trust. Sparrow v. E. Bement & Sons, 142 Mich. 441-453 (105. N. W. 881, 10 L. R. A. [N. S.] 725). Complainant’s counsel quotes the following from the constitution of said society:

“For profit making the best for the society is to accumulate real estate so that the necessary capital can then be withdrawn from the society treasury, when three-fourths of its members vote so to do.”

If this provision means what counsel claims for it, it is in conflict with the statute authorizing the organization of the society. The consideration expressed in this deed to the 39 members was $1. A fair conclusion from the evidence is that it cost the society $10 to make its deed. The undisputed evidence shows that the property was worth at least $500, and probably much more. Counsel urges that mere inadequacy of price is not ground for setting aside a sale, either in law or equity, and cites 6 Am. & Eng. Enc. Law (2d Ed.), p. 696 et seq. On page 699 is the following:

“But though inadequacy of consideration is not itself a distinct ground of defense at law nor of relief in equity, yet it is evidence of fraud which is both; and while, as evidence, it is ordinarily entitled to very little weight . when standing alone, yet when it is coupled with other circumstances showing overreaching or oppression, or when the parties stand in such relation that this will be presumed, inadequacy becomes a material element of constructive fraud.”

It is also well settled that, where the inadequacy is so great or gross as to shock the moral sense, it is a suspicion or evidence of fraud. It should be borne in mind that there was here no dissolution of the corporation, as was the case in Hopkins v. Crossley, 138 Mich. 561-565 (101 N. W. 822, 823). It was there said:

“ Had not the corporation been dissolved, we cannot doubt that it could recover the fund, and devote it to its own purposes, as provided in section 6 of its own organic act.”

We are not prepared to say that under the circumstances of this case the defendant Aid Society could not have maintained an original bill to set aside the conveyance. Having been brought into equity as a defendant, it certainly was entitled to the benefit of its cross-bill.

Complainant’s counsel raises the constitutional question that the defendant corporation could not hold real estate for more than 10 years except when actually occupied by it in the exercise of its corporate franchises. It is a sufficient answer to say that this constitutional provision can only be enforced at the instance of the public. Pere Marquette E. Co. v. Graham, 136 Mich. 444-450 (99 N. W. 408).

The decree of the circuit court is affirmed, with costs of this court to the defendant the Negaunee-German Aid Society.

Moore, C. J., and Steers, McAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    LAKE v. HOUGHTON CIRCUIT JUDGE.
    1. Mandamus — Issues—Return.
    Unless an issue of fact is joined, the respondent’s return to writ of mandamus must be taken as true.
    2. Same — Function of Writ — Contempt.
    The court will entertain mandamus proceedings on the relation of a defendant in a cause for divorce who has been imprisoned for failure to pay alimony, but the writ will not be issued to set aside the aotion of the lower court on account of irregularities that have been waived in the lower court, or for defects that are not jurisdictional or do not affect the very right of the case.

      3. Contempt — Answer—Waiver.
    Objections to formal defects in contempt proceedings, not raised by the answer in the court below, will be treated as waived.
    4. Same — Divorce—Alimony.
    An order requiring defendant in a bill for divorce to pay temporary alimony amounting to $20 a month, and “necessary court expenses and witness fees as they shall accrue,” is sufficiently definite to be valid.
    5. Same.
    Where a petition was filed setting forth facts that put the defendant in contempt of court, and no answer was filed at the hearing, at which the court determined that defendant, the relator herein, was guilty, allowing his solicitors, upon special request, to file an answer to the petition before a stated time next day, relator was then in default, and, his answer failing to show any sufficient excuse, the order adjudging him guilty of contempt was properly entered and was not extrajudicial.
    Mandamus by John Lake against Patrick H. O’Brien, Houghton circuit judge, to compel respondent to vacate an order adjudging relator guilty of contempt of court, and to release him from custody.
    Submitted October 1, 1912.
    (Calendar No. 25,213.)
    Writ denied November 8, 1912.

      Burritt & Burritt, for relator.

      Galbraith & McCormack,■ for respondent.
   Ostrander, J.

Relator’s wife filed a bill for divorce, and an injunction was issued restraining relator from disposing of his property, which consisted, in part, of $260 in bank. Relator was employed and earning $55 per month. The bill was filed in December, 1911, and in January, 1912, the wife of relator (complainant in the divorce suit) petitioned the court for alimony and for an allowance for the expenses of her suit. The petition was brought on for hearing on February 15, 1912, when the court made and entered the following order:

“That the defendant, John Lake, alias Jarvi, pay forthwith to Messrs. Galbraith & McCormack, solicitors for the complainant, the sum of twenty-five ($25) dollars as a reasonable retainer fee, and that he pay to the complainant or to her solicitors the further sum of twenty ($20) dollars per month on or before the 20th day of each and every month commencing on the 20th day of February, A. D. 1912, for the support and maintenance of the said complainant and her minor child, during the pendency of this suit, and it is further ordered that he pay to Messrs. Galbraith & McCormack all necessary court expenses and witness fees as they shall accrue and on demand.”

The injunction was so modified as to release the money in bank, and thereafter relator paid to complainant’s solicitors $20 in compliance with the order for alimony. He also paid his own solicitors $150, a doctor’s bill of $25, other debts to the amount of $50, purchased for himself clothing valued at $15, and sent to Finland $35 to persons who are there caring for his, or one of his, children. A demand in writing and a certified copy of the order granting alimony were served on relator March 27,1912, but no other demand was made for payment. The demand was itemized as follows:

Calumet, Michigan, March 27, 1912.
John Lake, alias John Jarvi,
To Galbraith & McCormack, Solicitors, Dr.
To retainer fee by order of court...................$25 00
To filing fee, N. F. Kaiser......................... 3 00
To James Byers, serving writ of injunction on Superior National Bank____________________________1 00
To serving writ of injunction and subpoena on John Lake, alias John Jarvi.__________________________ 1 75
To serving writ of injunction on Copper Country Building & Loan Ass’n.......................... 1 75
To serving petition for temporary alimony and notice of hearing on same........................ 1 75
To two certified copies order for alimony, pendente lite, N. F. Kaiser_________________________ 3 00
To Ellen Lake, complainant, alimony to March 20, 12........................................... 20 00
§57 25

Relator did not pay, and was served on April 16, 1912, with a certified copy of an order to show cause why an attachment should not issue and he be punished for contempt of court. Copies of the affidavits upon which the order was based were not served. Relator appeared in person and by solicitor on the return day of said order.

The foregoing statement of facts is from the relator’s petition for mandamus, and no part of it is in dispute. What occurred on April 23, 1912, and thereafter, is not much, but is somewhat, in dispute.

No issue of fact having been made, the respondent’s answer must be accepted for the facts. No, written answer to the order to show cause had been filed when the parties appeared in court on April 23,1912, and none was filed that day. Relator’s solicitor stated that he had known nothing about the pendency of the proceeding until 11 o’clock of that day; that relator could not speak English. There was no interpreter present. He asked permission to get-an interpreter and to have relator sworn and give his testimony concerning his reasons for not complying with the order for alimony. The court declined to permit such proceeding, and announced that an order might be prepared convicting relator of contempt of court. Thereafter, and after respondent had left the bench, he stated to relator’s solicitor, in response to his request, that he might have until 9 o’clock the next morning to file an answer, and, if respondent desired to hear argument, he would notify counsel. The answer was filed, and no further proceedings were had until respondent, at his office, signed the order adjudging relator to be guilty of contempt. Court was not in session from April 23, 1912, until May 4, 1912. The order adjudging relator guilty was signed April 26, 1912. A warrant was issued April 26, 1912, and the relator was taken into custody by the sheriff April 30, 1912, and committed to the county jail, where he was when the petition for mandamus was filed in this court. Relator moved to set aside the contempt proceedings, and the motion was denied. Later relator was admitted to bail upon his own recognizance pending the proceedings in this court.

We set out here relator’s answer in the contempt proceeding :

“(1) Defendant, answering, says that at the time the order was made for the payment of temporary alimony, namely, $25 solicitor’s fee and $20 a month during the pendency of this suit, and other costs which might accrue, this defendant had in the Superior National Bank of Hancock the sum of $260; that said money was tied up by injunction which was modified on or about the 15th day of February, 1912, the date of said order; that defendant drew said money from the bank, paid his solicitors, Burritt Sc Burritt, a solicitor’s fee of $150, paid a doctor bill of $25, paid the complainant the sum of $20, purchased some clothing for himself which cost him $15, and used the balance of said amount — $50—in payment of debts then due.
“(2) Defendant, further answering, says that he is in the employ of the Quincy Mining Company, and earns $55 a month; that he is keeping house and employs a servant girl to do his work; that he has used all of his wages in the payment of expenses; that he has sent $35 to Finland to the people who are bringing up his child.
“ (3) Defendant further says that he has some building and loan stock which is tied up by injunction of this court, and a quantity of household furniture which is also tied up by injunction; that he has $2.05 in money; that the only other personal property he has not tied up by injunction is a watch of the value of $10, which he hereby tenders into court.
“ (4) Defendant further says that he is now under the treatment of a physician.”

It is contended in this court that the contempt proceedings are irregular and void. . The first objection made is that the order for alimony is uncertain in part and being in the nature of an interlocutory decree and judgment,

' upon the nonperformance of which further proceedings may be grounded, certainty in the thing to be done or performed is essential. It is objected, further, that no oral demand was made upon the relator for payment of the money, and that the order to show cause was not served with copies of the affidavits upon which it was based. A third objection is that permission to file an answer amounted to a continuance of the proceeding, and that no judicial determination or pronouncement of relator’s guilt appears. Finally, it is urged that the answer furnishes adequate reasons for failure to perform the order for payment of alimony. Substantially the same objections were urged upon the motion to set aside the order adjudging relator guilty.

We are disposed, over the objection of respondent, to entertain this proceeding; it appearing when the writ was applied for that relator was imprisoned. Dillon v. Shiawassee Circuit Judge, 181 Mich. 574 (91 N. W. 1029). But the writ of mandamus will not be issued to set aside the action of the lower court on account of irregularities in the proceedings which were waived in that court, or for defects which are not jurisdictional, or which do not otherwise affect the very right of relator.

It will be noticed that in his answer to the order to show cause why he should not be adjudged guilty of contempt, relator does not question the form of the order for alimony, the form of the demand which was made upon him, or the validity of any of the items for payment of which the demand was made. Consequently, in this proceeding, such objections will be treated as having been waived, and nothing need be said about them beyond this, that we do not regard an order for the payment of “necessary court expenses and witness fees as they shall accrue” as so indefinite as to affect the validity of the order. It was said in Froman v. Froman, 53 Mich. 581 (19 N. W. 193), which was an appeal from an order adjudging defendant guilty of contempt:

“ The order of the court in such cases should be promptly complied with; and when the court makes an order to show cause why such compliance has not been made, and insufficient cause is shown, and the court finds, as in this case, a wilful disobedience of the order on the part of defendant, technical irregularities in complainant’s proceedings will not be held a sufficient excuse for such noncompliance, or allowed to defeat the enforcement of the order.”

Was the determination of relator’s guilt extrajudicial? It is undisputed that the court, in effect, pronounced judgment at the hearing, directing complainant’s solicitor to prepare the proper order. Relator was then in default for want of an answer. No cause was shown when the answer was filed; all of its statements being regarded as true. Treating the case, as we do, as if the answer had been seasonably filed, the order which was made was warranted and, indeed, was required. Relator was in contempt. The power of the court to punish him therefor is undoubted. 1 Comp. Laws, § 312; 3 Comp. Laws, §§ 10891, 10893, 10894.

No substantial right of relator has been invaded, for which reason the writ of mandamus is refused, with costs.

Moore, C. J., and Steers, McAlvay, Brooke, Stone, and Bird, JJ., concurred.


author: Brooke, J.

text:
    BLANKSMA v. KING.
    1. Fraud — Pleading—Falsity. ¡
    On objection to the introduction of testimony for the alleged reason that the declaration failed to charge fraud and was insufficient, the trial court properly held that the allegations that certain false and fraudulent representations were made, relied on and deceived plaintiff, whereby he paid certain money to defendant, who converted it to his own use, stated a case.
    2. Evidence — Compromise—Curing Error.
    The action of the trial court in sustaining an objection to evidence of an offer of compromise made by defendant, and withdrawing from the jury the answer of the witness, protected defendant’s rights.
    3. New Trial — Motions.
    It is correct to deny a new trial if alleged newly discovered evidence would not change the result.

      Error to Kent; McDonald, J.
    Submitted October 11, 1912.
    (Docket No. 56.)
    Decided November 8, 1912.
    Case by Peter Blanksma against George W. King for fraud and deceit. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Charles A. Watt, for appellant.

      Linsey & Shivel, for appellee.
   Brooke, J.

In this suit plaintiff declared as follows:

‘ ‘ For that whereas, at the time of committing of the several wrongful acts by the said defendant hereinafter mentioned, and for a long space of time immediately previous, the said defendant professed and practiced medicine and surgery in the city of Grand Rapids, in the county of Kent, and State of Michigan; and whereas, on, to wit, the 1st day of May, 1910, said defendant was called professionally to treat one Henry Blanksma, brother of this plaintiff, and treated the said Henry Blanksma from that time on, to wit, the 5th day of May, 1910, when he, the said Henry Blanksma, died, and that on, to wit, the 7th day of May, 1910, said Henry Blanksma, deceased, was buried by and under the direction of one Charles A. Humphrey, an undertaker, residing and doing business in the city of Grand Rapids, Mich., who furnished the necessary furnishings, paid the funeral expenses, and performed the services of directing the funeral and interment of the remains of said deceased, that the said Charles A. Humphrey was procured at the request of this plaintiff to take charge of the burial of said deceased, as aforesaid, and, for the expense and charges of said Charles A. Humphrey therefor, this plaintiff became and was responsible to pay the same to him, that said charges and expenses on the part of the said Charles A. Humphrey were in the sum of $161: The plaintiff alleges that on, to wit, the 12th day of May, 1910, the said defendant, intending to injure and defraud the said plaintiff, did go to the said Charles A. Humphrey, and fraudulently represent and pretend to the said Charles A. Humphrey that he wanted a bill of the services of the said Charles A. Humphrey, as aforesaid, in order that he, the said defendant, might present the same to, this plaintiff at the time that he, this defendant, presented his bill for professional services. And the plaintiff alleges that the said defendant did procure from the said Charles A. Humphrey a bill for the services of the said 'Charles A. Humphrey in the sum of $161, and did on, to wit, the 12th day of May, 1910, with the intent to defraud and injure this plaintiff, present to this plaintiff a false and fraudulent statement of the claim of the said Charles A. Humphrey, in the sum of $352; that the said defendant, falsely and fraudulently with the intent to defraud this plaintiff, did claim and represent to this plaintiff that the bill of the said Charles A. Humphrey was the sum of $352, as aforesaid, and by such false and fraudulent representations did induce this plaintiff to make out his personal check on his account in the Madison Square Bank of Grand Rapids in the sum of $352, payable to the said Charles A. Humphrey, and delivered the said check to the said defendant for the said Charles A. Humphrey, and in payment of the charges and expenses of the said Charles A. Humphrey for the burial of said deceased, as aforesaid, and for no other purpose. Plaintiff further alleges that the said defendant, with the intent to defraud and injure this plaintiff, did take said check to the said Charles A. Humphrey, and fraudulently and falsely represent and pretend to the said Charles A. Humphrey that the said sum of money represented by said check was in payment of his, the said Charles A. Humphrey’s claim of $161, and the claim of this defendant of $191 for professional services performed, as aforesaid; that upon the representations of the said defendant, as aforesaid, the said Charles A. Humphrey presented said check for payment at the Branch Commercial Savings’ Bank, West Side, and received the sum of $352; that the said Charles A. Humphrey then paid this defendant upon his representations as aforesaid the sum of $191; that said check was presented to the Madison Square Bank in due course, and the said sum of $352 was paid from the account of this plaintiff. The plaintiff further alleges that he believed these representations and statements made by the said defendant, as aforesaid, and relied thereon, and that, by reason thereof, he was induced to deliver to the said defendant his check as aforesaid, and that the said defendant did wrongfully and fraudulently receive the said sum of $191, and has converted the same to his own use. Plaintiff alleges that, by reason of premises as aforesaid, he has been deprived of said sum of $191 and the use thereof, and has been greatly injured and damaged to the amount of, to wit, $500, and therefore he brings suit.”

To this declaration a plea of the general issue was interposed by defendant. The jury rendered a verdict against defendant in the sum of $197.37, upon which judgment was entered. Defendant reviews that judgment in this court by writ of error.

Defendant’s first assignment of error is based upon the action of the court in refusing to sustain his objection to the introduction of any testimony under the pleading; it being his claim that the declaration does not state a cause of action. In support of his contention, defendant cites and relies upon Parker v. Armstrong, 55 Mich. 176 (20 N. W. 892). We are unable to find that the declaration in the case at bar presents the infirmity pointed out in that case. This declaration clearly avers that the defendant made the false and fraudulent representations, that they were believed and relied upon by plaintiff, and that as a result the defendant wrongfully and fraudulently received the sum of $191, the property of the plaintiff. Defendant’s objection was properly overruled. Hopkins v. O’Neil, 46 Mich. 403 (9 N. W. 448), and cases there cited; 20 Cyc. p. 98.

In the course of the trial, defendant, upon cross-examination, was asked if he had not offered $100 to settle the matter. The question was objected to and the answer excluded. In addition thereto the court said:

“Mr. Watt may have an exception, and the jury is instructed that they must forget the testimony or the question. It was not answered. Don’t allow it to influence your verdict in the least.”

There is no merit in this exception. We are of opinion that defendant’s rights were fully protected.

Error is assigned upon the denial of a motion for a new trial principally based upon the fact that defendant had discovered new evidence. Touching this assignment, it is sufficient to say that we agree with the finding of the learned circuit judge that the evidence referred to would not change the result upon a new trial. Morin v. Robarge, 132 Mich. 337 (93 N. W. 886).

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

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


text:
    POWERS v. COUNTY OF CALHOUN.
    1. Appeal and Error — Trial by Court — Findings oe Fact.
    Upon error to a judgment that was rendered by the court, acting without a jury, the findings of fact must be accepted as conclusive if there was evidence to support them.
    2. Attorney and Client — Counties—Fees—Contracts.
    Findings that plaintiff, an attorney, was requested by the prosecuting attorney, of Calhoun county to assist him in a mandamus proceeding instituted against the board of supervisors, and was advised that the prosecutor would approve his bill, if it was reasonable, that the chairman of the board and one other member were informed that plaintiff was acting, but the board have the right to pass upon th e claim for services, in the absence of any finding that the court authorized or approved that appointment, or that the board or prosecuting attorney employed plaintiff, justified a judgment for defendant county.
    Case-made from Calhoun; North, J.
    Submitted October 11, 1912.
    (Docket No. 48.)
    Decided November 8, 1912.
    Walter S. Powers presented to the board of supervisors of Calhoun county a claim for services rendered as attorney and counsel. It was disallowed and plaintiff appealed to the circuit court. Judgment for defendant. Plaintiff brings case-made.
    Affirmed.

      J. M. Powers, for appellant.

      B. H. Kirschman, Prosecuting Attorney, and Edward B. Loud, Assistant Prosecuting Attorney, for appellee.
   Ostrander, J.

In April, 1911, the supervisors of Calhoun county met to canvass the vote cast for and against local option in the county. It adjourned without repealing the prohibition resolution, which for two years had been in force in the county. Legal proceedings were instituted to compel them to reconvene and repeal the said resolution. The circuit court for the county of Calhoun, upon the petition of interested parties, in mandamus proceedings, issued its order directing them to show cause why they should not meet, and declare that local option, so called, had been defeated at the said 1911 election. The supervisors, as a board, answered, and, after a hearing, the court made its order that the writ prayed for should issue. The supervisors then sued out of the Supreme Court a writ of certiorari to review the action of the circuit court; the affidavit therefor being made by the chairman" of the board. The writ of certiorari issued and the determination of the circuit court was affirmed. Plaintiff assisted the prosecuting attorney of Calhoun county in such proceedings in the circuit court and in this court. He gave his assistance upon the request of the prosecuting attorney, who advised him that he would O. K. a reasonable bill for his services, and who expected, as he later testified, that the supervisors would take his (the prosecuting attorney’s) advice and .pay the bill. Upon presenting his bill, the amount of which is not questioned, the board of supervisors refused to allow it. Plaintiff thereupon appealed to the circuit court for Calhoun county, and that court, after a hearing, at which testimony was introduced, declined to allow the claim. The court made a finding in the form of an opinion, and plaintiff proposed a finding amendatory thereof.

The finding proposed by plaintiff we set out, with the rulings of the circuit judge thereon:

“Proposed Findings.
“(1) I find as a fact that, before the services were rendered by the plaintiff, the prosecuting attorney for said county of Calhoun said to the plaintiff that, if he would assist him in the case of the Battle Creek Brewing Company v. Board of Supervisors of Calhoun County, he, the said prosecuting attorney, would O. K. the plaintiff’s bill for such services to said board of supervisors, and that said prosecuting attorney did O. K. said bill after the services were rendered and before the bill was presented to the board of supervisors, viz., on the 16th day of June, 1911.
“(2) I find as a fact that the plaintiff assented to that arrangement and said to the prosecuting attorney, in substance, that such arrangement would be satisfactory.
“ (3) I find as a fact that the services charged for in this cause were rendered by the plaintiff in pursuance of such arrangement with the prosecuting attorney.
“(4) I find as a fact that the circuit court for the county of Calhoun made an order directing the board of supervisors of said county to show cause before said court why a mandamus should not issue directing said board to reconvene and repeal the local-option resolution then on the records of said county of Calhoun, and that the claim of the plaintiff in this cause grew out of said litigation for legal services rendered in said litigation.
“ (5) I further find that said board of supervisors did show cause by an answer signed, ‘ Calhoun County Board of Supervisors, by Robt. H. Kirschmann, Prosecuting Attorney, W. S. Powers, of Counsel.’
“(6) I further find as a fact that, when the hearing was called in the circuit court on said order to show cause, the prosecuting attorney for said county said to the court, in substance, that he desired the court to recognize the plaintiff as his assistant on said hearing; that plaintiff took charge of the case, interrogated all of the witnesses that were sworn on said hearing"; that plaintiff made an argument to the court at the close of the testimony taken; that said plaintiff was recognized by the court as requested by the prosecuting attorney.
“(7) I further find as a fact that the petition to the Supreme Court for a writ of certiorari to review the decision of the lower court was made by Ralph Doolittle as chairman of the board of supervisors of said county, signed and sworn to by him, and that such petition at the time it was signed and sworn to contained the name of Robt. H. Kirschman, prosecuting attorney, and W. S. Powers, of counsel.
“(8) I find as a fact that all the papers in the circuit court and Supreme Court on behalf of the respondent, board of supervisors, in said litigation, contained the name of Robt. H. Kirschman, prosecuting attorney, and the plaintiff as counsel, and that said papers contained the name of no other attorneys.
(9) I find as a fact that when the petition to the Supreme Court for said writ of certiorari was signed and sworn to by the chairman of said board, Ralph Doolittle, the plaintiff’s name was signed to said petition as counsel, and that said Doolittle was told, in substance, that a bill would probably be presented to the county for the services of the plaintiff as attorney in said cause.
“ (10) I find as a fact that the following bill was presented to said board of supervisors at its October, 1911, session, certified to by Robt. H. Kirschman, prosecuting attorney for said county, disallowed by said board, after plaintiff presented evidence of the claim; that the plaintiff appealed from said decision, and that said claim is the basis of plaintiff’s claim in this suit; that it was admitted on the trial of this cause that said prosecuting attorney signed and certified said bill after the services were all rendered.
“‘County of Calhoun.
“ ‘In account with W. S. Powers, Dr.
‘“1911.
“ ‘Toservices rendered as attorney in the Local-Option cases before the Board of Supervisors in the Circuit Court and in the Supreme Court from the 10th day of April to the 27th, 1911, $200.00.
“ ‘To expenses to Lansing on said case, $2.28.
“ ‘I hereby certify that the above services were rendered by W. S. Powers, and the charges therefor are reasonable in amount and proper to be paid by said county of Calhoun.
“Robert H. Kirschman,
“ Prosecuting Attorney.’
“ And I also find as a fact that the amount claimed by plaintiff, viz., $202.28, is a reasonable charge, and that plaintiff’s services rendered in the circuit and Supreme Courts in said litigation was worth the amount claimed.
“(11) I further find as a fact that several attorneys were sworn on this trial and testified that plaintiff’s services were worth from $500 to $800, and that no testimony was offered to contradict such evidence.”
“Proposed Findings oe Law.
“(1) I find, as a matter of law, that the prosecuting attorney had a legal right to employ the plaintiff to assist him in the trial of the case of the Battle Creek Brewing Company v. Board of Supervisors of Calhoun County, and that such charges would constitute a proper charge against the county.
“(2) I find, as a matter of law, that when the prosecuting attorney said to the plaintiff, if he would assist in the trial of the case, he, the prosecuting attorney, would O. K. the bill before the board of supervisors and the plaintiff assented and performed the services, that would constitute a binding agreement on the county, and the plaintiff would be entitled to recover what his services were reasonably worth.
“(8) If the services were rendered by the plaintiff with the knowledge and consent of the prosecuting attorney upon the statement that the bill would be O. K.’d by the prosecuting attorney to the board of supervisors, that would constitute a binding agreement, and the county would be liable for plaintiff’s services.
“ (4) It being admitted that the plaintiff performed the services and paid out the money for and claimed in this case in the above-mentioned litigation, and that such services were necessary and the charges therefor reasonable, that such services were performed in connection with the prosecuting attorney, both in the circuit and Supreme Courts, that the prosecuting attorney advised with and accompanied the plaintiff to Lansing to procure the writ of certiorari, that the name of the plaintiff was on all the papers in the case, wherever the prosecuting attorney’s name appeared as counsel, and it was known to the chairman of the board of supervisors that the plaintiff’s name so appeared, and said chairman was informed that there would probably be a bill presented to said board of supervisors for the service of plaintiff, I find as a matter of law that such facts would be sufficient to authorize the plaintiff to recover $202.28.
“(5) The services charged for and money paid out by the plaintiff having been done with the knowledge of the prosecuting attorney and in connection with him as his assistant in the case, and the said defendant having received the benefit of such services and money paid out, the law will imply a contract to pay, and I find, as a matter of law, that the plaintiff can recover what such services were reasonably worth.
“(6) I find that, under the law as it now stands, the defendant is placed on the same basis as an individual respecting claims against a county, and if services were performed and money paid out by plaintiff, and accepted by the defendant, the law will imply a contract to pay, and plaintiff can recover what his services were reasonably worth in this case, which would be $202.28.”
“By the Court.
“ Since the finding of the court was filed in the above-entitled cause, the plaintiff has submitted for hearing a motion for amended findings of fact and law. Counsel for the respective parties have been heard relative to these amended findings, and, after due consideration of the same, I make the following disposition thereof:
“ First. I find as I am requested in the proposed finding of fact No. 1, with this modification, that the expression assist him5 should be understood in the light of testimony given by Mr. Kirschman as follows:
“‘I said [speaking to the plaintiff] that I thought I had no authority to engage any one to assist me in the preparation of that case or whatever it was we were working on at that time.’
“Also:
“ ‘There was something said about the board of supervisors paying the bill, and I tried to make it clear to Mr. Powers that the extent of my power was to O. K. the bill, and would do what I could to see that the bill was properly paid, and I certified to that effect on his behalf.
‘“Q. Did you ever tell Mr. Powers or the hoard of supervisors that it [Mr. Powers’ hill] was a legal claim against the county, or that you had the legal authority to employ Mr. Powers to perform the services that he did ?
“‘A. No.
‘Q. Didn’t you say to him [Mr. Powers] that if he would assist you that you would O. K. his bill to the board of supervisors ?
‘“A. I said I would O. K. the bill for him.
‘Q. You understood at the time that you agreed to O. K. that bill you were engaging Mr. Powers to assist you on behalf of the county or board of supervisors, did you not ?
‘“A. No, sir; I did not.
“‘Q. Did you expect that he [Mr. Powers] would receive his compensation from the county, if he received any ?
‘“A. I expected that they would take my advice and pay him, and I think now they are morally bound to pay the bill.
Q. Is there anything further ?
‘“A. I would like to say, if I may, that, when the question of the O. K. was mentioned in Mr. Powers’ office, I said in substance that I would O. K. Mr. Powers’ bill. He was doing work on the case at that time.’
“I find as I am requested in the plaintiff’s proposed amendment to the findings of fact Nos. 2, 3, 4, and 5, and I find as requested in proposed finding No. 6, except that the .evidence does not show with any degree of certainty what the exact words were which were used by the prosecuting attorney, that is, whether he referred to Mr. Powers, as ‘his assistant,’ or as Mr. Kirschman testifies which was as follows:
“ ‘ I arose and addressed the court in substance that Mr. Powers appeared with my consent.’
“And—
“ ‘ I think he [the plaintiff] said he represented the prosecuting attorney, or words to that effect. I cannot give the precise language that he used.’
‘ ‘ I find the facts established as set forth in the plaintiff’s proposed amendment findings of fact Nos. 7, 8, and 9, with this modification to No. 9, which appeared in the testimony of Mr. L. E. Stewart:
“ ‘I told Mr. Doolittle that Mr. Powers undoubtedly would render a bill to Calhoun county for his services in the case, that he was acting as attorney for the board; that my understanding was that the board of supervisors are authorized to allow or disallo w the bill which was true at the time I was prosecuting attorney, and that was my opinion at the time, and Mr. Miller assured them of the same thing.’
“I also find facts established as set forth in the proposed amendment findings of facts Nos. 10 and 11.
“Proposed Amendment of Findings of Law.
“I do not find any of the proposed amendments to the findings of law to be true propositions of law, these proposed findings being Nos. 1, 2, 3, 4, 5, and 6. But, on the contrary, I find that none of 'the legal propositions contained in these proposed findings of law are true as matters of law.”

Exceptions were filed by plaintiff to all adverse findings, of both fact and law.

The findings of fact must be accepted in this court as conclusive if there was evidence tending to sustain them. The ultimate fact that plaintiff was employed by the prosecuting attorney is not found. What is found is that there was a qualified employment of plaintiff so far as any intention to bind the county or the board of supervisors is concerned. There is testimony tending to sustain this finding. It is not found that the board of supervisors employed plaintiff, or knew that he was acting for them. The chairman of the board, and perhaps one other member, did know that he was acting and would probably present a bill for services, but the chairman was also informed (but not in the presence or to the knowledge of plaintiff) that it was for the board to decide whether, if the demand was presented, it should be paid. It is not found that the court, upon the application of the prosecuting attorney, or otherwise, authorized or approved the appointment or hiring of plaintiff.

Questions are raised and discussed in the brief for appellant which we think are not presented by the record. One of these questions is whether, under the Constitution of 1909, art. 8, § 9, and Act No. 58, Pub. Acts 1909 (1 How. Stat. [2d Ed.] § 1012 et seq.), as amended, counties may be held liable as an individual would be to pay for goods furnished to it and services performed for it. Another is whether the prosecuting attorney had authority to employ counsel, and bind the county to pay for his services. Whether he had or did not have such authority, it is found that he did not assume to exercise it. He expressly disclaimed it. Nor does the record present the case of one performing services for the county to the knowledge of its managing officers without any arrangement or understanding concerning compensation.

There was an arrangement made with the prosecuting attorney. There was an understanding on the part of such of the managing officers of the county as are shown to have known that plaintiff was rendering services that the board of supervisors were at liberty to pay or not to pay, as they might thereafter conclude to do. That plaintiff was not informed of such an understanding is of no importance. He must establish either the express or legally implied obligation of the county to pay him. He has not established an express agreement and the facts conclusively negative the necessary implication. Clark v. Township of West Bloomfield, 154 Mich. 249 (117 N. W. 638).

The judgment is affirmed.

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


author: Kuhn, J.

text:
    BOWEN v. CHANDLER.
    1. Appeal and Error — Trial—Saving Questions for Review— Motions.
    After a witness has interjected improper matter, a motion to strike out is necessary to review the point.
    2. Contracts — Implied Agreement — Frauds, Statute of.
    In an action for the value of a boiler and engine, which plaintiff orally traded to defendant for land that defendant refused subsequently to convey, evidence as to the oral transaction was admissible, notwithstanding the statute of frauds, to show the relation of the parties and defendant’s acceptance of the property.

      3. Appeal and Error — Briefs—Supreme Court Practice.
    Criticisms of the conduct of plaintiff’s counsel will not be considered if the brief contains no reference or citation to the record.
    4. Evidence — Conclusions.
    It was not erroneous to refuse to strike out as a conclusion the testimony of a witness that defendant wanted to buy the engine, and he and plaintiff spoke about a deal for some land, and defendant said he would have his foreman look at the engine and, if it was satisfactory, would take it and exchange, as the witness understood it.
    5. Trial — Election of Counts.
    The court did not err in refusing to require plaintiff to elect whether to rely on a special count or on the common counts, if plaintiff could recover under both or either.
    6. Contracts — Implied Contract — Delivery.
    .Defendant’s receipt of the engine, use and retention for three years, was evidence of acceptance sufficient to sustain a verdict for plaintiff.
    Error to Cheboygan; Shepherd, J.
    Submitted October 14, 1912.
    (Docket No. 38.)
    Decided November 8, 1912.
    Assumpsit in justice’s court by David Bowen against Merritt Chandler for the value of an engine and boiler. From a judgment for plaintiff defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry, for appellant.

      G. 8. Beilley, for appellee.
   Kuhn, J.

This is an action brought in assumpsit to recover the value of an engine and boiler, which, it is claimed, was exchanged by the plaintiff with the defendant for certain real estate. The declaration filed in the cause contains the following count :

“For that whereas, said defendant, before the commencement of said suit, was indebted to plaintiff in the sum of $300 lawful money of the United States for divers goods, wares, and merchandise of the said plaintiff, to wit, one engine and boiler, theretofore delivered to the defendant at his special instance and request under contract of exchange of property in that said defendant then and there promised to deed to said plaintiff certain real estate situate in the county of Cheboygan and State of Michigan, and in exchange therefor plaintiff was to deliver said engine and boiler, and that said plaintiff did deliver said engine and boiler to said defendant, and then and there on numerous occasions requested said defendant to transfer said real estate to said plaintiff, and that he then and there neglected and refused so to do, and has ever since retained said engine and boiler, to plaintiff’s damage of $300, and therefore said suit is brought.”

In addition to this, the declaration contains the common counts. The bill of particulars filed also claimed taxes for the year 1885, amounting to $55. The defendant pleaded the general issue and the statute of limitations as to the item of taxes. No evidence was offered with reference to the taxes. On trial had, a verdict was rendered in favor of the plaintiff in the sum of $280.25, and defendant reviews judgment had thereon in this court by writ of error.

The deal which gave rise to this controversy was had some time in 1908. There is considerable conflict in the testimony as to what the understanding of the parties was. At that time the engine and boiler was at the foundry and machine shop of Henry Deane for repairs.

David Bowen testified with reference thereto as follows:

“I met Mr. Chandler, and I told him that I would like to trade him this engine for a quitclaim deed of the S. i of the N. E. ^ of section 36, town 35 N., range 1 E. He said he would send Mr. Minnick to look at the boiler and engine, and, if it suited Mr. Minnick, that he would make a trade. He sent him, and I went down with Mr. Minnick, who looked it over and said that he would take it out and try it for five or six days, and, if it did the work, that they would keep it, and they did keep it for about three years. I was not there at the time Mr. Chandler’s man took the boiler and engine away. I told Mr. Deane to deliver it to him. The boiler and engine was at the foundry, and Deane was the foundry man. It has been there practically all winter. * * * I agreed, if he would deed this land over to me, to turn over to him this engine and boiler any time for it. That was the talk I had with him. That contract between Chandler and myself was not in writing. I expected him to turn the deed over every day. I never had any contract in writing with him in regard to the engine and boiler. When I had this talk with Chandler, there was nothing said about the price of the engine. He was to deed me that piece of land, and give me enough to straighten up with Deane if it suited him. And he kept it.”

Merritt Chandler, the defendant, testified as follows:

“Q. Did you ever have an agreement with Bowen by which you were to deed him a description of land which he mentioned and take in pay therefor this boiler and engine ?
“A. Not completed; no, sir, not completed.
“Q. Did you ever have any agreement by which you purchased this boiler and engine ?
“A. No, sir; anything further than talking of doing it, or taking it.
“Q. What talk did you have with Mr. Bowen in regard to the engine and boiler, and this land ?
“A. I don’t remember that we had any until after the engine had been taken out to the farm; but it was about that time — soon afterwards, and possibly before, as he states.
“Q. Do you remember the circumstances?
“A. Oh, yes; I remember the circumstances. I know it was to be taken there — I don’t know when it was taken —didn’t know until it had been there several days.
“ Q. Go on with your statement of your talk.
“A. Why, after, if the engine proved satisfactory, we was to make a deal on the land. The engine was tried for about a week, or three or four days, sawing wood, and then my foreman told me, I asked him if it was satisfactory, and—
The Court: State whether or not it was satisfactory to him.
“A. It was not satisfactory.
The Court: I quote his testimony correctly, do I— that his conversation with Mr. Bowen was that it should be satisfactory? Is that what Mr. Chandler swore to? What did he say his conversation with Mr. Bowen was ?
“Mr. Hull: That the engine was to be satisfactory?
“A. Yes, sir; that the engine was to be satisfactory. I never had a contract with Bowen in writing.
“Q. Was there anything further said in regard to this deal of the land ? Was that the complete deal which you have stated ?
“A. No, sir; there was an after consideration. On account of this engine not being satisfactory, I proposed to Mr. Bowen that he deed me the water privileges, water rights of flooding certain lands that he had along Black river, and that was it. I said:
“ ‘ As soon as you get that deed so that you can give me a good deed.’
(He only had a tax title at that time on part of the land.) I said:
“ ‘ As soon as you get that completed and right, we will make the deal. I will make the deed to you for the other land, and the engine could be put in as part of the deal.’
“ That is, it would be considered in the deal.
iCQ. Do you know how much the engine was used on your farm ?
“A. I don’t know of its being used only 3 or 4 days in sawing wood.
“Q. Why wasn’t the engine returned ?
“A. Nobody asked me to return it. I was not requested to return it.”

The defendant asks for a reversal of the judgment rendered, alleging by assignments of error that the court erred in four particulars:

(1) In respect to the admission and rejection of evidence.

(2) Because he denied the motion on behalf of the defendant for a direction of a verdict.

(3) Because the court erred in not requiring the plaintiff to elect whether recovery should be had under the special or common counts.

(4) Because the court erroneously charged the jury with respect to the law involved in the cause.

Admission and Rejection of Evidence, (a) Plaintiff, while being cross-examined, was asked:

“Q. Did you ever tell Mr. Minnick not to turn this engine over to any one while it was ?
“A. No. Why didn’t you bring Minniok down or give us a chance to get him' ?”

The latter part of the answer was excepted to, but no motion was made to strike it out. Such a motion should have been made if counsel desired to have it stricken.

(6) Counsel moved to strike out all the testimony rela-. tive to the sale of real estate because it was not in writing. This testimony was brought out when witnesses were testifying as to the verbal agreemeñt, and, while it is true that no recovery could be had on the contract itself and the verbal contract is void because not in writing, still it was proper to show what the verbal contract was as bearing upon the relations of the parties and upon the question of a delivery to and the acceptance by the' defendant of the property in controversy.

(c) Criticism is made of conduct of counsel in asking of the defendant why a witness was not brought to court. No reference is made to the record, and we will not consider it. Zimmerman Manfg. Co. v. Dolph, 104 Mich. 281 (62 N. W. 339).

(d) Tilden Ratliff, a witness, in testifying as to a talk between plaintiff and defendant, said:

“ Mr. Bowen — Mr. Chandler seemed to me he wanted to buy the engine, and they spoke something about a deal for some land, and Mr. Chandler said he would have his foreman, Mr. Minnick, look at the engine, and, if it was satisfactory to him, he would make the deal, is the way I understood it.”

The refusal of the court to strike out this testimony on motion made by counsel because it stated a conclusion is not reversible error.

Election of Counts. Counsel for appellant in his brief says:

“Undoubtedly, if both counts were good, plaintiff would have a right to rest on either or both.”

Both counts are good, and no error was made because of failure to elect.

Failure to Direct Verdict and Charge of the Court. As there is no question about the delivery of the property to the defendant, it seems to us that the sole question involved in this controversy was whether the conduct of the defendant or his agents with reference to the boiler and engine after delivery amounted to acceptance. It is unquestioned that they were in possession of the defendant for about three years, and the plaintiff testified:

“ Up to March, 1911, Mr. Chandler used the engine on his farm pumping water and cutting wood, and doing anything he wanted to use power for. Mr. Chandler’s farm is a mile and a half north from the foundry. I saw it at his farm at different times. Up to the time that T commenced suit, Mr. Chandler used the boiler and engine on the farm, pumped water with it, and cut wood — anything that he wanted to use power for.”

Tilden Ratliff testified:

“ I have seen the engine in Mr. Chandler’s barnyard in 1908 and 1909 cutting wood.”

While the defendant testified that he only knew of the engine being used three or four days in sawing wood, still the question of whether his acts amounted to an acceptance was properly submitted to the jury.

“ If one sends or delivers goods to another, under circumstances which indicate that a sale is intended, but no price is named, and the other uses or otherwise deals with them as his own, a sale for a reasonable price is implied.” 35 Cyc. p. 59.

In the case of Caulkins v. Hellman, ,47 N. Y. 452 (7 Am. Rep. 461), cited by counsel for appellant, the court said:

“The receipt of the goods, without an acceptance, is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract.”

This question has been passed upon by this court in the case of Harris Photographic Supply Co. v. Fisher, 81 Mich. 136 (45 N. W. 661), and cited with approval in the case of Kendrick v. Hochradel, 167 Mich. 179 (132 N. W. 521). It is practically a parallel case. There was in that case a verbal agreement for the exchange of personal property exceeding $50 in value for real estate. The court said, at page 142 of 81 Mich. (45 N. W. 663):

“ It is conceded that the contract for the exchange of the real estate is void, •because not in writing. It is also conceded that the contract for the exchange of the goods is void, not being in writing, and the value being above $50, and no part of the purchase price paid, unless there has been a delivery of the whole or a part of the goods and an acceptance. It is clearly settled that both acceptance and actual receipt are necessary, and the burden of proving them rests upon the person trying to set up the contract. They are both facts, and the circumstances which go to make up acceptance and actual receipt are for the jury. 8 Am. & Eng. Enc. Law (1st Ed.), p. 730.”

We have carefully examined the instructions to the jury of the learned trial judge, and cannot find any ambiguity which could mislead them as to matters submitted to them for their determination.

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

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


text:
    DOANE v. ALLEN.
    1. Affidavits — Equity Practice — 1Title of Cause.
    An affidavit in opposition to a motion to dissolve a preliminary injunction, not entitled, but annexed to a paper cover bearing the proper title of the cause, was sufficiently identified to be considered. Chancery Eule 15, Circuit Court Eule 37b.
    2. Injunction — Preliminary Order — Vendor and Purchaser.
    A tenant of farm lands, on which he had planted crops, was entitled to have a preliminary injunction remain in force as against a purchaser of the premises, who, complainant claimed, had received notice of the lease before buying the land, and who threatened to turn in his cattle upon it and dispossess complainant, also claiming to have gone into possession himself, and to have continued in possession until the bill was filed.
    Appeal from Sanilac; Beach, J.
    Submitted October 17, 1912.
    (Docket No. 142.)
    Decided November 8, 1912.
    Bill by Silas Doane against Carrie Allen and another for an injunction to restrain a threatened trespass and other relief. From an order denying defendants’ motion to dissolve a temporary injunction, defendants appeal.
    Affirmed.

      H. O. Babcock, for complainant.

      Gates & Simonson, for defendants.
   Kuhn, J.

An appeal is taken from an order denying a petition to dissolve an injunction which has been issued in this cause.

The bill of complaint alleges that the complainant on the 11th day of October, 1909, obtained a lease for one year of 40 acres of land in the county of Sanilac, in this State, and further alleges:

“ That your orator occupied and cropped said premises for the years 1910 and 1911, paying $100 per year rental in advance according to the terms of said lease; that during the fall of 1911 your orator, continuing the occupancy and rental of said premises, put in five acres of wheat and two acres of rye on the said premises and on January 20, 1912, paid the sum of $100, being the rent in full for said land under the terms of said lease for the year ending October 15, 1912, 'taking a receipt therefor, a copy of which is as follows:
‘“Sandusky, Mioh.
“ ‘Jan. 20, 1912.
“ ‘Received in full $100. One hundred Dollars, when paid. For rent of 40 acres from Silas Doan.
“‘Thos. Allen.’”
“ That Thomas Allen is the agent of William J. Allen, and that your orator has transacted all of the business in connection with the rental of said land with Thos. Allen, the agent of said William J. Allen; that your orator has performed all the conditions and covenants mentioned in said lease to be done for or on his behalf, and that under the terms of such lease your orator is entitled to the undisturbed possession and use and occupation of said premises, until the 15th day of October, 1912.
“ That there are 14 acres of meadow upon said premises which with the wheat and rye your orator has sown thereon, and the use and occupation of the remainder of said premises yet to be worked and cropped, said use and occupation is worth to your orator upwards of $600 above the necessary expense and labor in caring for, harvesting, and marketing the crops which your orator expects to reap and harvest from the said above-described land; that on or about the 20th day of February, 1912, one Carrie Allen and Alexander Allen, who are made parties defendant to this your orator’s bill of complaint, claim to have purchased said land from the said William J. Allen, the owner thereof; that the possession of your orator of said premises have been known to the above-named defendants Carrie Allen and Alexander Allen, who are husband and wife; that the said defendants resided within one-half mile of the above-described land, and own land adjoining it, and saw your orator while he was in the act of putting in the wheat and rye now upon said land above described, and that said defendants were informed and knew at the time they purchased the said above-described land that your orator had paid the rent for the year ending October 15,1912, and that he had put in the five acres of wheat and two acres of rye above described; that there are no buildings upon the above-described land.
“That the above-named defendants now threaten to turn their cattle in upon the crops and meadow of your orator upon said land, and have told your orator that, if he does not leave the said premises for their use and occupation, during the summer of A. D. 1912 they will turn their cattle in upon the said land, and destroy the crops and grass of your orator; that the said defendants have interfered with the possession of your orator of the said premises; that on, to wit, the 25th day of April, A. D. 1912, said defendants committed trespass upon the said premises, and removed a plow and harrow belonging to your orator from said premises which your orator was then intending to use in cultivating the unseeded portion thereof; that the said defendants have locked up the gates leading from the highway to said premises, torn out' the culverts, and forbid your orator entering said premises and otherwise annoying your orator and interfering with his rights; that your orator resides a distance of 1£ miles from the above-described premises, and it is very inconvenient for your orator to continually watch his crops growing thereon, and that it would be very expensive for your orator to so watch said crops to prevent them being destroyed by the defendants’ cattle; that the said defendants above named reside on an adjoining 40 acres of land, and that it is their intention expressed to your orator as aforesaid to turn their cattle upon said premises during the nighttime when it would be impossible for your orator to look after the same; that your orator fears that said defendants Carrie Allen and Alexander Allen will execute their threat, and, unless restrained by the order of this court, will destroy the grass, wheat, and rye above mentioned, and also destroy any other crop your orator may plant thereon.
“ That if said defendants do execute their threat, and are not restrained from trespassing upon the said premises, irreparable mischief and injury will be done to your orator ; that your orator is without remedy except in a court of equity where matters of this kind may be fully adjudicated; that since the 1st day of April, 1912, the said Carrie Allen and Alexander Allen have committed several acts of trespass upon the said above-described land, for each one of which your orator would have an action, and that, if said above-described defendants do what they say they will and carry their threats into execution and turn their cattle in upon said premises, your orator, in order to protect his rights, would be compelled to resort to numerous suits of law; that your orator resorts to a court of equity for the purpose of preventing a multiplicity of suits, and also for the purpose of preventing irreparable injury to your orator.
“Your orator further shows on information and belief that the said Alexander Allen has no property and is execution proof, that a judgment for damages or costs could not be collected against him, and that the defendant Carrie Allen owns some property in her own right, but that it is heavily mortgaged, and your orator fears and alleges the truth to be that she is not collectible, and has no property subject to execution, and that, unless the said defendants are restrained as herein prayed for, your orator will be damaged and lose a large sum of money, to wit, the sum of $600 or upwards.”

The defendants filed an answer denying the principal allegations of the bill of complaint, and state:

“These defendants admit: That on the 13th day of March, 1912, defendant Carrie Allen purchased the land described in paragraph two of the bill of complaint of the owner, William J. Allen, paying therefor the just and full sum of $3,000, and receiving therefor a warranty deed, which said deed was duly recorded in the office of the register of deeds of said county on the 30th day of March, A. D. 1912, in liber 129 of Deeds, on page 359, a true copy of said deed being hereto annexed, marked ‘ Exhibit A,’ and made a part hereof. That, after receiving said deed, these defendants went into possession of said land, and commenced to prepare the same for cropping the land for the season, cleaning up the rubbish, cutting down trees that needed removing, for the successful cropping of said land, fixed up the fence enclosing the land, put on a gate, and took such steps as a thrifty farmer would naturally take in and about said land at the season of the year. And these defendants went into the possession as aforesaid after receiving said deed, and remained in the full and absolute possession of said land until ousted by the preliminary injunction issued by this court in this cause. That on the 29ih day of April, 1912, and for the 30 days immediately preceding that day, these defendants were in the full, complete, and absolute possession of said premises, and so remained, and such possession has not been disturbed since the said 29th day of April, 1912, and since the service of the injunction in this case said complainant broke into said premises and remained thereon without right, but under the guise of acting under said injunction for several hours. And, in order to break into said premises, said complainant forcibly opened a gate that had been before and was at that time securely locked by these defendants. These defendants having maintained their possession at all times after they were put into possession of said premises by their grantor, William J. Allen, in the month of March, 1912.”

This sufficiently states the claims of parties so as to understand the questions before us.

The complainant filed an affidavit on May 23, 1912, which affidavit, on its face, is not entitled in the cause, but in the original returns it appears that on the cover to which it is attached appears the cause and the following: “Affidavits in opposition to motion for dissolution.” The petition to dissolve was not filed until June 1, 1912, but we will assume that the affidavit in question was considered by the judge on the hearing of the petition to dissolve. Counsel for defendants in their brief contend that this affidavit is of no value or effect because it was not entitled in the cause, relying upon Circuit Court Rule 37 (6) which provides:

“All papers, except process and pleadings by which the cause is commenced, shall be entitled in the court and cause, and the plaintiff’s name shall be placed first. Provided, that affidavits annexed to and referring to another paper which is properly entitled in the court and cause need not be entitled.”

By Chancery Rule 15 this rule is made applicable to chancery cases. In the case of Beebe v. Morrell, 76 Mich. 119 (42 N. W. 1121, 15 Am. St. Rep. 288), this court held:

“If there be no suit pending at the time, of course, the affidavit must not be entitled. If a suit be pending, and the affidavit is entitled in a suit not pending, the affidavit is a nullity. * * *
“Our attention has not been called to any authorities, in our own State or elsewhere, where it has been held that an affidavit filed in a pending suit not entitled is a nullity. The inquiry in such cases is, Has the affidavit been fully identified as having been filed in that cause? If it has, then the want of the. formality of a title is of no consequence, since the title is for the purpose of identifying the suit in which the affidavit is designed to be used. * * * In civil proceedings courts may, and often do, refuse to hear affidavits that are not properly entitled in a cause read, because practice requires papers read in a cause to be correctly entitled.”

It is contended that this case is not applicable, because the decision was had before the rules referred to were adopted. It seems to us3 however, that the purpose of the rule is that it should be possible to easily identify all papers filed in any cause as connected therewith. As the affidavit in question is attached to a cover properly entitled in the cause, it cannot be said that it could not easily be identified as connected with the cause, and we therefore consider it a substantial compliance with the rules. The affidavit should not be held to be a nullity for that reason.

More seriously, however, counsel contend that the preliminary writ of injunction is void, because it undertakes to change possession of the premises without a hearing on the merits and by an ex parte proceeding to decide the entire controversy between the parties.

Complainant contends that the injunction should stand to prevent irreparable injury, to restrain threatened trespass upon a clear right of the complainant, to prevent a multiplicity of suits, and because complainant has no other adequate remedy. There is no dispute in this case that the complainant was in possession of the premises, undisturbed for a period of three years. The question of the validity of the lease, the authority of the agent, and other matters in controversy can properly be determined at the final hearing. Upon the allegations made in the bill, it seems to us that the court had the power to issue the injunction and to continue it until the final hearing. An injunction is the appropriate remedy as to those holding adverse claims and even against trespassers in case of irreparable injury. 2 Story’s Equity Jurisprudence, § 918; Puterbaugh’s Michigan Chancery Practice (3d Ed.), p. 614. The complainant having been in peaceable possession of the premises under color and claim of right, and because of the fact that, there being no buildings oh the land, it was impossible for him to be at all times in actual occupation, it is not consistent with legal policy to allow him to be forcibly ejected without legal process, and before he can have his rights determined in court. This court has held that the court of chancery has no more power than any other to condemn a man unheard, and to dispossess him of property prima facie his, and hand over its enjoyment to another on an ex parte claim to it. Arnold v. Bright, 41 Mich. 207 (2 N. W. 16). It must necessarily follow that it should have the power to prevent a person with a prima facie claim of legal possession from being dispossessed without being heard and given the opportunity to establish his rights. In the instant case the refusal of the circuit judge to continue the injunction would have resulted in turning the complainant out of the possession of the premises, of which he was prima facie in legal possession under a lease.

Order is affirmed, with costs.

Moore, O. J., and Steers, MoAlvay, Brooke, Stone, Ostrander, and Bird,'JJ., concurred.


text:
    SNYDER v. MARKHAM.
    1. Fraud — Rescission—Measure oe Damages — Instructions to Jury.
    The correct measure of damages for fraud where plaintiffs rescinded and tendered back certain butter machines that they had been fraudulently induced to buy of defendant, together with an exclusive right to handle the machines in two counties, was the value of an automobile and a contract interest in land conveyed by them to defendant in consideration thereof, with interest at 5 per cent., and such reasonable expenditures as plaintiffs had made in reliance on the false representations, excluding from the verdict the value of machines on hand and tendered back, and deducting from the total so ascertained, the value of machines sold by plaintiffs.
    2. Same — Harmless Error.
    No prejudicial error was committed by the court in permitting plaintiffs to recover for expenditures claimed to have been made, but not proved by any competent testimony, when the verdict was shown to have excluded such items.
    3. Same — Tender.
    And under evidence showing that defendant refused to accept a tender made by plaintiffs, who offered to return the property and contract rights received, plaintiffs would not be required to perform the idle ceremony of making a more formal offer.
    Error to Kent; Perkins, J.
    Submitted October 16, 1912.
    (Docket No. 111.)
    Decided November 8, 1912.
    Assumpsit by George 0. Snyder and Edna E. Snyder against Lester B. Markham. Judgment for plaintiffs. Defendant brings error.
    Affirmed.

      Dunham & Dunham, for appellant.

      Swarthout & Master, for appellees.
   Brooke, J.

This is an action of trespass on the case upon promises, in which plaintiffs seek to recover the value of an automoble (worth about $600) and an equity in a land contract (valued at $200), together with certain moneys expended by them in undertaking to carry on the business contemplated by them in making the deal in question.

It appears that .plaintiffs sold said automobile and assigned their interest in said land contract to defendant in consideration of an exclusive right to sell “butter doublers” in the counties of Ottawa and Allegan, Mich., together with 1Ó0 of the machines, known as “butter doublers.” Plaintiffs charged that they were induced to negotiate the deal in question by reason of false and fraudulent representations made by defendant to them.

It is testified by plaintiff that after the discovery of the alleged fraud—

“ I told him here I had not got the territory, and, another thing, the machine is not any good. It don’t do the business represented to do. And I said: ‘ It simply mixes that milk in there, and the milk came right out again; and when it comes warm the milk sours: that the electric battery does not have anything to do with it. It does not sterilize the milk anyway, and you told me it would keep it sweet; it would sterilize the milk, so that the milk would keep sweet and keep the butter as nice as fresh butter until used, or at any time, and now it does not do that.’ I said: f I cannot handle that thing, or do anything with it.’ And I says: * I want my automobile back, and the equity in that lot, and you can take your counties and the machines.’
“Q. Would he do it?
“A. No; he said he would not do it. * * *
“Mr. Swarthout: While Mr. Snyder is doing that, there is a tender I desire to make in furtherance of the tender that Mr. Snyder has already made to the defendant. I, at this time, tender in court the remaining numbers of this apparatus which Mr. Snyder got from Mr. Markham. I think there are 73 of them left, and these 2 I tender as samples of the bunch, and Mr. Markham is at liberty to get the others, as he has been all the way along. They are too bulky to bring into the courtroom, and I also tender back, as we have heretofore done, the contract of February 14, 1910, given by Mr. Markham and Stebbins to George 0. Snyder and Edna Snyder, covering these two counties of Ottawa and Allegan, and also the subjoined contract in regard to the sale of 100 doublers.”

The court charged the jury in part as follows:

“The defendant, therefore, is liable to respond to the plaintiffs in such damages as naturally and proximately resulted from the fraud. He is bound to make good the loss sustained by the plaintiffs, as well as such moneys as the plaintiffs may have paid out in carrying out this transaction, together with interest thereon, which would include the fair market value of the property turned out by the plaintiffs to the defendant in the transaction, and any other outlay legitimately attributable to the defendant’s fraudulent conduct. What the plaintiffs actually paid the defendant for the right and property secured may be considered by you in determining the loss the plaintiffs have sustained. If the rights or property secured by the plaintiffs in the transaction have any value in fact, that value must be determined by you, under the evidence, and applied in reduction of the plaintiffs’ damages. This includes the machines sold by the plaintiffs and the moneys received therefor before the commencement of this suit. The plaintiffs will also be entitled to recover such damages as would be the natural and proximate consequence of the fraud complained of, and which the defendant, from his position, must have contemplated as the probable consequence of his fraud. This would include the necessary and reasonable expenses paid out by the plaintiffs in an endeavor to carry out, in good faith, the purposes of the transaction. You will therefore determine, under the evidence, the value of the property turned over by the plaintiffs to the defendant, together with the necessary expenses paid out by them in carrying out this contract before its repudiation, and the value of the property and rights secured from the defendant by the plaintiffs, strike a. balance, and render your verdict accordingly, adding interest at 5 per cent, from March, 1910, to date. These instructions, gentlemen, exclude from your consideration the value of the machines on hand at the time the contract is claimed to have been repudiated, together with the value of the rights secured under the contract in Allegan and Ottawa counties. The plaintiffs claim that they tendered back to the defendant the contracts delivered to them, securing the exclusive right to sell these machines in these two counties, and also tendered back the machines left on hand at Holland, which had been delivered under the contract, and that the defendant refused to receive them, denying substantially the right of the plaintiffs to terminate the contract. There is some question there, growing out of the fact that at the time this tender was made the plaintiffs had not discovered the falsity of the representations as to the sale of the Kent county rights to Mr. Vanderveen, and as to the effect of the dry cell battery upon the product of these machines. But I instruct you that it makes no difference, so far as the measure of damages in this case is concerned. The offer to turn the property back was made and refused, and the plaintiffs are entitled to the benefit of that offer in this action. So in striking this balance, or rather in determining the amount paid out by the plaintiffs in property and money in this transaction and the amount received by them before the repudiation, you will take into consideration the value of the property turned out, the automobile, and the equity in this lot, and such necessary and reasonable expenses as were paid out in an attempt to carry out the intent and meaning of the contract, on the one hand. On the other hand, such moneys as the plaintiffs may have received by the sale of these machines, or otherwise, if there is any testimony to that effect, in an attempt to carry out the terms and conditions of the contract. The balance will represent the amount you should find for the plaintiffs, if any. Upon this balance you will reckon interest at 5 per cent, from March, 1910, to date. If there is no balance, your verdict will be ‘ No cause of action.’”

Plaintiffs recovered a judgment in the sum of 1873.73. The record contains the evidence of but one witness, plaintiff George 0. Snyder. Defendant asserts that there are two questions involved:

(1) Whether or not the trial judge correctly stated the law upon the measure of damages.

(2) Whether or not the court correctly stated the law upon the question of tender.

We are of opinion that the correct measure of damages was laid down in the charge of the court, above quoted.

It is said by defendant that there is no evidence that the plaintiffs had been put to any expense by reason of the contract between the parties up to the time the plaintiffs attempted to rescind. The plaintiff did testify that he went to Holland and advertised for agents; that he again went to Holland the next week to see the agent in regard to delivering orders; and that he spent money for advertising and hotel bills. The amount of such expense is not given by the witness; but that fact is not important, as it is apparent from an examination of the verdict that the sum awarded is exactly the value of the automobile and land contract, together with legal interest thereon from the date of the contract to the time of trial.

It is urged that no sufficient tender of the property was made. Under the evidence in this case, we think no more formal tender was required. When plaintiffs offered to rescind and turn back the contract and the “doublers,” defendant “said he would not do it.” It is obvious that any further tender would have been an idle formality, which the law does not require. Lacy v. Wilson, 24 Mich. 479; Witt v. Dersham, 146 Mich. 68 (109 N. W. 25); Fournier v. Clutton, 146 Mich. 298 (109 N. W. 425, 7 L. R. A. [N. S.] 179, 117 Am. St. Rep. 638, 10 Am. & Eng. Ann. Cas. 392). See, also, 38 Cyc. p. 134 et seq., and cases cited.

The judgment is affirmed.

Moore, C. J., and Steers, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.