text:
    Sophia Turner v. The City of Detroit and Albert Stoll, Receiver of Taxes.

      Constitutional law — Impairing obligations of contract — Delegation of legislative power — Municipal corporations.

    1. Act No. 388, Local Acts of 1889, under which the boulevard in the city of Detroit was opened and is maintained, contains no-agreement or obligation on the part of the city to construct sidewalks at its expense; hence an adjoining lot-owner, a portion of whose lot was condemned under said act for the purpose of said boulevard, cannot successfully contend that Act No. 415, Local Acts of 1893, which imposes such expense upon adjacent land-owners, is invalid, in that it impairs the obligation of the implied contract existing, as he alleges, between the city and himself, exempting him from such expense.
    2. Act No. 415, Local Acts of 1893, which authorizes the board of commissioners of parks and boulevards of the city of Detroit to order the construction of sidewalks by adjacent land-owners, and determine where and of what material said walks shall be constructed, is not open to the objection that it delegates to said commissioners legislative power, which, under the Constitution, is conferrable on the common council alone.
    Appeal from Wayne. (Hosmer, J.)
    Submitted om briefs February 12, 1895.
    Decided March 12, 1895.
    Bill to restrain the collection of taxes assessed for the construction of a sidewalk in front of complainant’s premises. Complainant appeals from decree sustaining demurrer.
    Affirmed.
    The facts are stated in the opinion.

      George V. Candler and Henry■ H. Gaudier, for complainant.

      John J. Speed, for defendants.
   Grant, J.

Complainant is the owner of a lot facing on the boulevard in the city of Detroit. She was notified by the board of park commissioners to construct a stone sidewalk in front of her lot. She refused to do so, and the board constructed the walk, at an expense of $57. The lot was assessed for this amount, and the assessment roll placed in the hands of the receiver of taxes for collection, who was proceeding to enforce the same under the provisions of law. She thereupon filed a bill in equity to restrain such collection. A demurrer was interposed and sustained.

By Act No. 415, Local Acts of 1893, the commissioners are empowered to order the construction of sidewalks, and to determine the material for their construction, and their location. If, after notice, the owner neglects to construct the walk so ordered, the commissioners are authorized to construct it, and to report the cost thereof to the common council, whereupon the sum so reported is required to be assessed upon the land. Two objections are raised to the validity of this act:

1. That it impairs the obligation of the contract between the city and the owners of property taken for the boulevard.

2. That it delegates legislative power and authority to the commissioners.

If the act under which complainant’s land was taken for the boulevard contains an exemption from liability for the construction of sidewalks, her contention is correct. The difficulty with her position is that the act in question contains no agreement or obligation on the part of the city to construct sidewalks at its expense, the cost to be levied upon the whole city. The complainant alleges in her bill that her land was condemned for the use of the boulevard in 1890, under Act No. 388, Local Acts of 1889. Her counsel, in their brief, refer to the original boulevard act (No. 374, Local Acts of 1879). This act was expressly repealed by the act of 1889. Complainant’s rights must therefore be determined by the later act. The title and ¡some of the general provisions of this act may be found an Commissioners of Parks v. Common Council of Detroit, 80 Mich. 667-669. There is nothing in this act from which any inference can be drawn that the adjoining lot-owners are exempted from liability to construct sidewalks. The act contains provisions for condemnation which are, in substance, the same as those for condemning lands for streets. Counsel, in their brief, do not call attention to a single provision of the act showing any intention on the part of - the Legislature to obligate the construction of sidewalks at the expense of the city.

The act establishing the board of park commissioners gives them the power to lay out. driveways and walks, canals, and flower beds; to set out trees; and to determine where, and of what material, sidewalks and roadbeds shall be constructed. This is not such a legislative power as is conferrable under the Constitution on the common council alone, and the power may be conferred by the Legislature upon the board. People v. Hurlbut, 24 Mich. 69.

Decree affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J. Walter J.

license: Public Domain

text:
    Herbert M. Rogers, Administrator of the Estate of Walter J. Fairbanks, Deceased, v. Henry S. Robinson et al.

      Confusion of goods — Evidence—Conversion by mortgagee — Estoppel — Pleading—New trial.

    1. A father moved a stock of goods valued at $1,300, which he claimed to own, to a neighboring city, where his daughter engaged in business. The daughter made large additions to said stock, and about seven months after such removal mortgaged the entire stock to a. firm of whom she had been purchasing goods. The mortgagees seized the goods, and the father sued in trover for their value., - On the trial plaintiff only claimed to recover for the' original stock of goods, but offered no testimony tending to show the amount or value of such portions of the original stock as remained at the time of the foreclosure, or that any of said goods were then on hand, and no attempt was made to show that such proof could not ' be made or that it was difficult to make it. And it is held that the presumption would be that the original stock would be reduced by sales, and that a verdict for the plaintiff for $800 was therefore merely conjectural.
    2. The original stock of goods was placed in and as a part of the business carried on by the daughter, and the goods were used as a basis for credit, to the knowledge of the father. The clear preponderance of evidence was in favor of the contention of the mortgagees that they had no notice that the father claimed an interest in the mortgaged property. And it is held that the motion, of the defendants for a new trial should have been granted.
    8. The defendants were entitled to avail themselves of the estoppel on the part of the plaintiff under the plea of the general issue; citing Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489.
    Error to Ingham. (Person, J.)
    Submitted on briefs February 14, 1895.
    Decided March 12, 1895.
    Trover. Defendants bring error.
    Reversed.
    The facts are stated in the opinion.

      M. V. & R. A. Montgomery, for appellants.

      Q. A. Smith, for plaintiff.
   McGrath, C. J.

On August 17, 1891, Sarah Fisher executed to defendants á chattel mortgage in the sum of $1,967.19 upon a stock of boots and shoes in a store at Lansing. The stock was afterwards sold by defendants under said mortgage. Plaintiff, as administrator of Walter J. Fairbanks, brings trover for the conversion of the stock.

Fairbanks was the father of Sarah Fisher.' The shoe business had formerly been carried on at Stanton under the name of Ann' Fairbanks & Co., a firm composed of the wife and one Woodruff, a son-in-law, of Walter J. Fairbanks. The stock there was claimed to be worth about $1,300, but was subject to a mortgage of $400 to one Salisbury. The mortgagee threatened to foreclose, but under some arrangement with him the stock was brought to Lansing, where a store was opened in January, 1891, which was known as the Fisher Shoe House,” carried on in the name of Sarah Fisher. On behalf of Walter J., it is claimed that, although the business had been carried on at Stanton in the name of his wife and son-in-law, he was the real owner, and that the real object was to protect himself against a pending judgment. After the goods were brought to Lansing, Guión T. Fisher, husband of Sarah, claimed to be the real proprietor, but a judgment was pending against him also. However, Guión took charge of and managed the business at Lansing. Large quantities of merchandise were added to the stock, were bought in the name of and billed to Sarah Fisher, and shipped to the Fisher Shoe House. The mortgage to defendants was for goods purchased after the removal to' Lansing. Sarah was held out to the commercial agencies, and to the parties with whom dealings were had, as the owner of the stock and business. In the rear of the store-Fairbanks had a bench, and did the cobbling for the business. He says that Fisher ran the front end of the store, and had charge of it, and made the purchases for it; that he ran it in the name of the Fisher Shoe House.

" “ Q. Who was the party that Mr. Fisher was representing whom the goods were purchased for? In whose individual name were the goods purchased?
“A. Well, I really could not tell you that, because he-never opened his head to me.
“ Q. You knew that he was running the business and making purchases there in the store?
“A. Yes, sir.
“ Q. And making large purchases from various wholesale houses?
“A. I could not tell you that.
“ Q. You knew that Henry S. Eobinson & Oo. had sold Mrs. Fisher a large amount of goods there, did you not, from time to time?
“A. Well, I could not tell you the amount.
“ Q. Well, you knew that they had sold her goods from time to time?
“A. Yes, sir. * * *
“ Q. From the time you commenced there, then, in that store, Mr. Fisher had charge of all purchases, didn’t he, up to the time Henry S. Eobinson & Oo. took possession?'
“A. Yes, sir; he took the charge of it.
“ Q. And it was run in the name of the Fisher Shoe House all that time?
“A. Yes, sir.
“ Q• And the purchases which were made from Henry S. Eobinson & Co. by Mr. Fisher were made in the name of Mrs. Sarah Fisher, weren’t they?
“A. Yes. * * *
“ Q. You say they belonged to you privately. What do yon mean by that?
“A. I always owned them;' I always carried on a shoe shop.
“ Q. You didn’t 'put those into the stock of goods at all, — into the general business?
“A. Yes, sir; I think they were put in, but I don’t remember; I would not say for that.
“ Q. Now, Mr. Fairbanks, other purchases that were made there were made in the name of Mrs. Fisher from other wholesale houses?
“A. Yes, sir.
“ Q. All the purchases which were made after the business was opened were made in the name of Mrs. Fisher?
“A. Yes, sir.
“ Q. And the business was conducted in her name, as the proprietress? That is correct?
“A. Yes, sir. * * *
Q. What did you mean by telling me that the goods were ordered in Mrs. Fisher’s name?
“A. Well, of course, I didn’t know what he ordered; he hardly ever told me what he did order.
“ Q. In her name, — it was in her name?
“A. I don’t know anything about it.
“ Q. You supposed he was ordering them in his wife’s name?
“A. No, sir; I didn’t suppose anything.”

Ann Fairbanks died in April, 1891.

A verdict should have been directed for defendants. There was no basis for a verdict against them.

The sole claim made by plaintiff was that the goods which were originally put into the store belonged to Walter J. Fairbanks, and it was for the value of these goods that a recovery was sought. The declaration was for a stock of goods. The business had been carried on for about seven months when the mortgage was given. The entire stock brought on foreclosure nearly $1,500, which was about 65 per cent, of the inventoried value. There was no testimony offered tending to show the amount or value of such portions of the stock, alleged to have been put into the store by Fairbanks, as remained at the time of the foreclosure, or that any of said goods were still on hand at that time, and no attempt to show that such proof could not be made, or that it was difficult to make it. The presumption would be that the amount would be reduced by sales. Bethel v. Linn, 63 Mich. 464. The verdict of the jury of $800 was therefore merely conjectural.

Walter J. Fairbanks alleged that he owned the stock at Stanton, and at the time that the goods were put into the store at Lansing. There is no evidence of any understanding or agreement that Walter J. should retain the title to the goods, or that the specific goods should remain his property, and no evidence that Sarah Fisher or Guión T. should account or did account for the proceeds thereof; but, on the contrary, the evidence clearly tends to show that the goods were turned in as a part of the business which was thereafter to be carried on by Sarah Fisher, and were thereafter to be dealt with aB her property, and were so dealt with. Walter J. says:

“ Q. What arrangement, if any, did you bring them here under, with Mr. Fisher?
A. Under Salisbury, that he would not foreclose if I would allow him to come down here and sell it out, and pay him, and that he would rent a room and sell it at cost; and then, when I got down here, they had made different arrangements. Salisbury wanted to get rid of his building, and Fisher bought some goods and put in with them.
Q. State the arrangement distinctly under which you brought the goods down here and put them in the store.
“A. Well, the arrangement was they were to come down, and rent a room, and sell them off at cost until this $400 mortgage was paid off, and I agreed to do that.”

He does not attempt to give any further explanation.

Guión T. Fisher says that the business was carried on in his wife’s name.

“ Q. What basis of credit did you offer those houses when you obtained credit?
“ A. I offered the fact that I had $1,100 worth of goods there.
“ Q. And it was a stock of goods that has been mentioned, was it not?
“A. Yes, sir. * * * I stated that my wife owned the stock of goods at the other trial. It seems to me that I ought to be permitted to make a statement in regard to that. They distinctly understood — Robinson’s people distinctly understood — why that business was done in my wife’s name. Them and myself had a talk there in their house. Mr. Paxton was there; and I told them at the time it was not my wife’s goods, because she never invested' anything in it. It was simply put there for protection of me. Robinson’s people understood that, and went to the courts at Detroit to investigate the matter over a judgment that was over me. That was what I said, because I supposed it was to protect Mr. Robinson’s people from loss. * * * The stock was taken by me to get out of it what I could. * * *
“ Q. Did your father-in-law understand that they were turned over to you to add to and conduct the business there?
“A. Why, he understood the business; yes, sir.
“ Q. And he understood that you were obtaining credit on the strength of that business, did he?
“A. Why, yes; he must have understood that. He understood the way the business was done. Mr. Salisbury had a mortgage on the stock at Stanton. He threatened to foreclose, and turned the goods over to me, and held me responsible for them.”

It appears that Salisbury held as collateral a policy of insurance upon a house in Stanton, owned by Ann Fairbanks. The house was destroyed by fire, and Salisbury assigned his interest in the policy to the witness, who says that out of the proceeds of the policy he paid off the mortgage on the stock of goods.

This stock of goods was placed iñ and as a part of the business carried on by Sarah Fisher. It was used as a basis for credit, and knowledge of this fact was brought home to Walter J. Fairbanks. The clear preponderance of evidence was in favor of defendants as to the fact of notice to them that Walter J. Fairbanks had or claimed an interest in the goods in question, and the court should have granted the motion for a new trial. The only testimony pointing towards plaintiff’s theory.of notice was that of a son of Walter J. Fairbanks, who was a mere clerk in the store for two or three months, and who says that on one occasion, in the presence of Mr. Woodruff, Mr. Fisher, Mr. Paxton (defendants’ salesman), witness, and his father,—

We told him [Paxton], — Fisher and myself, — we talked it over, and told him that the goods that were in there belonged to the old gentleman individually himself, and told him the reason why that they were; and he understood it, and so did Mr. Robinson, I supposed. * * * Well, we both gave him to understand who that stock belonged to. It belonged to the old gentleman individually himself, and the reason why it was, Salisbury and Fisher, came up there and was going to foreclose the mortgage if he didn’t bring it down here and let Fisher run it; that he would foreclose the mortgage, and rather than lose the stock he brought it down here, and let Fisher run it under his wife’s name.”

Walter J.

does not allude to any such conversation. Woodruff is called, but does not support the witness. Fisher, who managed the business and had ample authority, does not corroborate him, and does not attempt to •say that he informed Paxton or-defendants that Walter J. Fairbanks had or made any claim to any part of the stock. He says that he told Paxton that the stock was the balance ■of the Ann Fairbanks & Co. stock, but that he also told him that he owned the stock, and desired the business to be conducted in his wife’s name, in order to protect him•self from an existing judgment. He identified a letter which he wrote to defendants from Lansing, dated January 29, 1891, in which he says:

“Your letter of the 28th inst. is at hand, and in reply would say that my wife is the one to charge the goods to, for the reason that it protects you against any loss, and protects me from being troubled from the old judgment rendered against Gr. T. Fisher & Co., of Detroit. My wife has all we have in her name, and will continue to until I have this judgment canceled, which I hope to do some future day. I made a full statement to the Dun's Reporting Agency of our assets, and supposed you would refer to them. She has $1,300 worth of boots and shoes free of debt; $300 worth of heel-support stock, her half; and a mortgage for $300 at 7%, running three years, on village property in Stanton.”

This létter was written at the commencement of the dealings between the Fishers and defendants, by the manager of the business, — the party who was placed in charge of the stock and store, who looked after the credit, and made all purchases, — and is better evidence of the fact as. to what representations were made to defendants than the uncorroborated statement of a clerk, who alleges that the-conversation to which he testifies was had in the presence' of this same manager.

There is no force in the objection that defendants could not avail themselves of the estoppel under their plea of the general issue. Eureka Iron & Steel Works v. Bresnahan, 66 Mich. 489.

The judgment must be reversed, and a new trial granted.

The other Justices concurred.


author: Grant, J.

text:
    The People v. Frank Warner.

      Criminal law — Forgery—Election of counts — Fictitious names— Evidence — Confessions—Instructions to jury,

    1. Respondent was informed against for the forgery of an order for the payment of money, and for uttering said order. The order was set forth in both counts of the information. At the close of the people’s case the respondent’s counsel asked that the prosecuting attorney be required to elect upon which count of the information he would rely for a conviction, and the request was refused. The respondent offered no evidence in his defense. And it is held that the court did not err in his ruling; citing Van Sickle v. People, 29 Mich. 61; People v. Kemp, 76 Id. 410.
    2. The sheriff testified that, after he had arrested the respondent, he visited a neighboring town, to see if he could find the men named in the order as drawer and payee; that on his return he asked the respondent, who had assumed to be the payee named in the order, one George Demming, if his name was not Prank Warner; that the respondent replied that it was, and broke down and cried, and admitted that he had forged the order, and expected to get a trip for it; that in a subsequent conversation the respondent told the witness that he should plead guilty, to which the witness replied that, if respondent was going to plead guilty on his own responsibility, he would speak to the judge, and get him off as easily as possible. And it is held that the evidence did not establish the fact that the confession was obtained by duress; that there was no evidence of any duress or promises at the time it was made; and that the evidence was competent.
    3. Error was assigned in that the court failed to explain to the jury the meaning of the words “false” and “forged,” and to caution them that the fact that the respondent did not testify in his own behalf was not evidence of guilt. And it is held that it is sufficient to say that the attention of the court was not called to said points by respondent’s counsel.
    4. Signing fictitious names, or names of non-existing firms or persons, to an instrument, with intent to defraud, is a false making, and constitutes forgery; citing 8 Amer. & Eng. Enc. Law, 469, and authorities there cited.
    Error to Alcona. (Simpson, J.)
    Submitted on briefs March 1, 1895.
    Decided March 12, 1895.
    ‘■Respondent was convicted of the crime of forgery, and 'sentenced to imprisonment in the State prison at Jackson for 3 years.
    Judgment affirmed.
    The facts are stated in the opinion.

      Henry K. Gustin (James McNamara, of counsel), for respondent.'

      Fred A. Maynard, Attorney General, and O. H. Smith, Prosecuting Attorney, for the people.
   Grant, J.

The respondent was charged with forgery. The information contains two counts. The first count 'charges the forgery of an order for the payment of money, which reads as follows:

“East Tawas, Mach., March 13, 1893. -“J. H. Schmeck & Co., Bankers:
“Pay to the order of George Demming ($87.00) eighty-seven dollars. R. J. Norton.”

The second count charges the uttering of the order.

The respondent was arrested by the sheriff with the ■order in his possession, and while attempting to pass it .and get money upon it. The firm of Schmeck & Co. had failed some time before. The respondent went to the .store of one Piser, wanted to buy some goods, and offered the check. Mr. Piser did not know the respondent, nor any of the parties named in the check. He went into a barber shop near by to ascertain if the check was good. The day after respondent’s arrest the sheriff went to Hewistoon, to see if he could find such a man as R. J. -Norton or George Demining, or E. J. Norton’s camp, where respondent said he had been working all winter. On his return the sheriff asked respondent if his name was not Frank Warner, to which he replied, “ Yes; ” and the sheriff testified that “he cried and broke down; said he had forged the check, and expected to get a trip for it.” On cross-examination, the sheriff testified that in a subsequent conversation with him the respondent told him that he should plead guilty, to which the sheriff replied that, if he was going to plead guilty on his own responsibility, he would speak to the judge, and get him off as easily as possible.

The court did not err in refusing to compel the prosecution to elect under which count it would proceed. Van Sickle v. People, 29 Mich. 61; People v. Kemp, 76 Id. 410, 421.

The evidence did not establish the fact that the confession to the sheriff was obtained by duress. There was no evidence of any duress or promises at the time the confession was made. It was competent evidence. The court instructed the jury that confessions or admissions must be made voluntarily, and that, if they found that they were made by the respondent under undue influence, they could not be considered. This was as favorable an instruction .as the respondent was entitled to.

Error is alleged in that the court failed to instruct the jury as to the presumption of innocence, to explain the meaning of the words “false” and “forged,” and to ■caution them that the fact that the respondent did not testify in his own behalf was not evidence of guilt. We are unable to understand what counsel mean by asserting that the court did not instruct the jury upon the presumption of innocence. The judge explicitly charged them up on this point as follows:

“ The defendant is entitled to the benefit of all doubts. When he' enters the trial, -he has the right to stand before you as an innocent man, until the people have produced evidence sufficient to overcome the presumption of innocence, and force you to believe, and convince’you beyond a reasonable doubt, that he is guilty; and after hearing all the evidence in the case, if, by looking it over and considering it, .you could find any other way whereby it could be-construed consistent with'his innocence, it is your duty to-do so, — that is, after looking at the evidence and considering it, if it can be so construed and passed upon as to be consistent with innocence, it is your duty to give him that right. In other words, before you can convict him the evidence must be such that convinces you beyond a reasonable doubt, and overcomes every presumption of innocence, when most favorably construed in his favor.”

As to the other points, it is sufficient to say that the-attention of the court was not called to them by the respondent's counsel.

It is next argued that the names to the order were fictitious, and therefore the crime of forgery was not committed. The common-law definition of “forgery” is “a false making, or a making malo animo, of any written instrument with intent to defraud.” The present case is-clearly within’ this definition. The authorities, moreover, lay down the rule as follows:

Signing fictitious names, or the names of non-existing firms or persons, to an instrument, with an intention to-defraud, is a false making, and constitutes a forgery.” 8 Amer.. & Eng. Enc. Law, 469, and .authorities there cited.

• The judgment is affirmed.

The other Justices concurred;


text:
    The People v. Donato Ezzo.

      Criminal law — Rape—Evidence—Instructions to jury.

    1. On the trial of a respondent for rape alleged to have been committed upon his stepdaughter during the absence, of her mother, the daughter was permitted to testify that she did not complain to her mother, upon her return on the evening of the day on which the offense was committed, because of the threat of the respondent to kill her if she made such complaint. And it is held that the evidence was properly admitted.
    2. An instruction that a respondent is presumed to be innocent of the offense charged in the information ¡that such presumption surrounds him until removed by evidence that satisfies the jury beyond any reasonable doubt of his guilt; that, by proof beyond a reasonable doubt is meant such proof as precludes every reasonable hypothesis except that of guilt; that it is proof to a moral certainty, as distinguished from an absolute certainty; that it is not proof beyond all imaginary doubt, but is such proof as satisfies the judgment and conscience of the jury, as reasonable men applying their reason to the evidence before them, that the crime charged has been committed by the respondent; so satisfies them as to leave no other reasonable conclusion possible, — correctly and clearly covers the entire subject of reasonable doubt.
    3. In criminal as well as in civil cases it is the duty of counsel to specifically call the attention of the court to points on which they desire the jury to be instructed.
    4. Respondent was informed against for rape. The only witnesses sworn on the trial were the respondent and his accuser. Her testimony, if true, established all of the elements of the offense charged, while his testimony, if believed by the jury, showed that he was not even guilty of taking improper liberties with her person. The court instructed the jury fully as to the offense charged, but did not instruct them that they might convict respondent of assault with intent to commit the.crime of rape, or of assault and battery, nor was any such instruction asked for by the respondent. And it is held that the failure to give such instruction was not error.

      Error to superior court of Grand Rapids. (Burlingame J.)
    Argued March 1, 1895.
    Decided March 12, 1895.
    Respondent was convicted of the crime of rape, and sentenced to imprisonment in the State prison at Jackson for 20 years.
    Judgment affirmed.
    The facts are stated in the opinion.

      Samuel D. Olay and Nathan P. Allen, for respondent.

      Fred A. Maynard, Attorney General, and Alfred Wolcott, Prosecuting Attorney, for the people.

       See People v. Harris, 103 Mich. 473, and cases cited.

   Grant, J.

The respondent was convicted of the crime of rape upon his stepdaughter, 16 years old.

It was not error to permit the prosecution to ask the complaining witness why she did not make complaint toiler mother immediately after the commission of the crime. It is always competent for the prosecution to explain such a delay. In response, she testified that respondent threatened to kill her if she did.

It is insisted that the court did not correctly instruct-the jury upon the subject of a reasonable doubt. The-instruction was as follows:

The respondent comes before you presumed to be innocent of the offense charged in this information, and that presumption continues to surround him until removed by evidence that satisfies your minds beyond any reasonable doubt of his guilt of the offense charged; and by proof' beyond a reasonable doubt I mean such proof as precludes every reasonable hypothesis except that of the respondent’s guilt of the offense charged. It is proof to a moral certainty, as distinguished from an absolute certainty. Proof beyond a reasonable doubt is not beyond all imaginary doubt, but such proof as satisfies the judgment and conscience of the jury, as reasonable men applying their reason to the evidence before them, that the crime charged has been committed by the respondent; so satisfies them as to leave no other reasonable conclusion possible.”

The charge is very clear and. explicit, and covers the-entire ground. '

It is contended that the court erred in not instructing the jury that they might convict the respondent of any offense included within the charge laid in the information, viz., assault with intent to commit rape, or assault- and battery. No such instruction was asked, and under* the evidence the respondent was either guilty of the crime* charged or not guilty of any crime. In criminal as well! as in civil cases it is the duty of counsel to specifically call the attention of the court to points on which they desire the jury to be instructed. The instruction was-entirely correct, so far as it concerned the crime alleged! in the information, and it is fair to presume that it was* argued to the jury upon that basis. There were only two* witnesses, the respondent and his accuser. If the jury-believed him, he had taken no liberties whatever with her,, and her story was absolutely false. If they believed her,, all the elements which constitute the major crime were.proven.

The judgment is affirmed.

The other Justices concurred.


author: Per Curiam.

text:
    In the Matter of Clark A. Johnson on Habeas Corpus.

      Criminal law — Costs of prosecution — Judgment.
    1. Where on conviction a respondent is required to pay a specified, fine and the costs of prosecution, and in default of payment his commitment is ordered, the better practice is for the court to determine the amount of costs which the respondent is required to pay, and state the amount in the judgment.

      2. Where such practice is followed, and there is nothing to show that the costs imposed are more than were in fact incurred in •the prosecution of the case, the judgment cannot be attached •collaterally.

      Habeas corpus proceedings.
    Argued March 1, 1895.
    Prisoner remanded March 12, 1895.
    Petitioner applied for the writ of habeas corpus to inquire into the cause of his detention in the Detroit House of Correction. The facts are stated in the opinion.

      Edward S. Grece, for petitioner.

      Fred A. Maynard, Attorney General, for the people.
   Per Curiam.

This is an application for a writ of habeas corpus. The return shows that a fine of 8200 and 850 costs were imposed upon the petitioner, and it was ordered that in default of payment he should be committed to the Detroit House of Correction until the fine and costs should be paid, not exceeding 90 days. This time •has not expired.

It is contended that the costs should have been taxed by the clerk; but the common practice — in criminal cases the better practice — is for the court to determine the •amount of costs which the respondent will bé required to pay, and state the amount in the judgment. The proceeding is necessarily summary. The alternative is given to the respondent to pay the judgment forthwith, and it would be impossible in such . cases to delay the taxing of costs until notice is given and a proceeding had before the clerk.

The judgment appears regular upon its face, and there is nothing to show that the costs imposed were more than were in fact incurred in the prosecution.

Under these circumstances, we think the judgment cannot be attacked collaterally, and the prisoner will be remanded.


author: Hooker, J.

text:
    James H. Pelton v. Charles Schmidt et al.
    [See 97 Mich. 231.]

      Bes judicata — Credibility of witness — Negligence—Dangerous premises — Invitation—Contributory negligence — Compromise — Evidence.
    1. The plaintiff, a teamster, after delivering some merchandise at the hack door of defendants’ store, started towards the desk near the middle of the room to get a receipt for the goods, and was injured by falling through a trap-door into the cellar. Upon the first trial the plaintiff’s own testimony negatived any express or implied invitation on the part of the defendants to enter the store from the rear for the purpose of securing a receipt for the goods, and a judgment in his favor was reversed on that ground, and a new trial ordered. On the second trial the plaintiff’s testimony tended to show such an invitation from the defendants. And it is held that, while the jury might properly consider such change in plaintiff’s testimony as affecting his credibility, it is not the province of the Supreme Court to say that plaintiff must stand or fall by his testimony on the first trial where there has been a legitimate opportunity for a change therein, and that by ordering a new trial the subject was relegated to the jury.
    2. Plaintiff testified that he had been instructed by the defendants to deliver goods at the back door of the store, and that it had been his custom to pass through the store to get his receipts. And it is held that if the defendants permitted this practice to grow up without protest, so that it became the usual course of dealing, plaintiff was justified in supposing that it was expected that he should so enter the store, and, as the testimony was conflicting on this branch of the case, the question was properly left to the jury.
    3. It was lawful for defendants to keep and use the trap-door, subject to the duty on their'part to properly guard it so as to avoid injury to persons (except employes about the premises, or persons having notice of the existence of the trap-door) who should lawfully enter the portion of the store where it was located, upon tlieir express or implied invitation, upon business concerning the defendants.

      4. Plaintiff testified that he did not know of- the existence of the trap-door; that he did not look in the direction of the opening, which he came suddenly upon as he came around a pile of goods. And it is held that, if this was so, it was much as though plaintiff had fallen into a pit immediately upon opening a door; that if he had no reason to expect this trap-door, and did not suspect its existence, he was not required to be watching for it, and therefore the question of his contributory negligence was one for the jury.
    5. Where in a personal injury case the defendants introduce evidence tending to show a compromise of plaintiff’s claim, which plaintiff denies, and plaintiff’s counsel, in his argument to the jury, claims that the interview had with the defendants about the matter was evidence that the defendants had perpetrated the wrong complained of, it is error for the court to refuse to instruct the jury, at the request of the defendants, that such proposed compromise should not be considered by them as an acknowledgment of any liability on the part of defendants.
    Error to Kent. (Grove, J.)
    Argued October 23, 1894.
    Decided March 19, 1895.
    Negligence case. Defendants bring error.
    Keversed.
    The facts are stated in the opinion, and in 97 Mich. 231.

      Henry J. Felker (.Albert Grane, of counsel), for appellants.

      McGarry, MeKnight é Judkins, for plaintiff.
   Hooker, J.

A statement of the principal facts in this case will be found in the opinion filed upon a former review of the case, reported in 97 Mich. 231.

Upon a second trial the plaintiff testified that he had been in the habit of going through defendants* store from the back door to the desk, or other places in the store, to get his book receipted, after delivery of goods at the rear of the store, where he had been directed to leave them at-all times. One or more other truckmen gave similar testimony. His counsel now claim that this evidence brings the case within the rule stated in the former opinion. Upon the first trial there was no evidence tending to show any express or implied invitation to enter the store from the rear. The plaintiff testified that he had never been in •the store from that way before the occasion of his injury, and it appeared from other testimony that it was the intention of the defendants to have the goods inspected and receipted for at the back door, when delivered. Defendants’ counsel contend that the plaintiff is concluded by his former testimony, and that he should not be allowed to recover by reason of evidence flatly contradictory of his former testimony. Decisions of this Court in cases brought here by writ of error are conclusive upon the parties, so far as the law is concerned, whenever the same state of facts is presented; but upon different facts other principles may apply. If parties change their testimony, the jury may properly consider the fact; but it is not for this Court to say that a party must stand or fall by his former testimony, where there is any legitimate opportunity for a change in the testimony. It may, perhaps, be said that there was no such opportunity here, but by ordering a new trial this Court relegated the subject to the jury.

The important question is whether the trial court should have held- that the evidence conclusively showed that the plaintiff was a trespasser, or at most a mere licensee. The record shows that the plaintiff was a truckman for a wholesale house - in the city, who delivered goods to the defendants at their store for his employer. He was required (presumably by his employer) to obtain defendants’ receipts for the goods delivered. He had been instructed by the defendants not to deliver at the front door, but to go to a back door, which he reached through an alley. He says that it was his custom to go through to the clerk to get receipts, entering at the back door. Other truckmen did the same. This evidence was contradicted, but it was for the jury to pass upon, if it was sufficient to make the defendants liable .if found true. It cannot be said that this is a case where the plaintiff visited the store solely for his own accommodation, and crossed, for his own purposes, a portion of the premises kept by the defendants for their sole private use, without encouragement or permission. The evidence tends to show that both understood that he was not to deliver goods at the front door, and that it was a part of his business to get a receipt for the goods. If it be said that he should have had his goods inspected and have received his receipt at the door, it maybe answered that the defendants, and not the plaintiff, were interested in the inspection. Doubtless he was satisfied when he obtained the receipt. If, through confidence in. the truckmen or for other reasons, the defendants relaxed their vigilance, and were content to receipt for the goods upon presentation of the book, without inspecting the goods, and without protest allowed the practice to grow up of receipting in the store, knowing that the truckmen entered and retired by the back door, there is some room for an inference of consent. There is no force in the contention, that the plaintiff should have gone around by the front door, for the reasons — First, that defendants do not say that it was expected, but, on the contrary, that it was not expected, for they desired to receipt at the back door: second, that it would have been a roundabout and unnatural way to go, in the absence of instructions to do so, and there is no pretense that such were given. If the .defendants permitted this practice to grow up without protest, so that it became the usual course of dealing, the plaintiff was justified in supposing that it was expected that he would enter from the rear door. It was therefore proper to leave the question of invitation to the jury.

The ■ defendants might lawfully keep and use the trapdoor in their store, subject to their duty to properly guard the same to avoid injury to those persons who should lawfully come into' that portion of the store where it was located. This was a duty owing to all persons lawfully there under an express or implied invitation from the owners, upon business concerning the defendants, excepting employes about the premises, or persons having notice of the existence of the trap. In Shear. & R. Neg. § 719, it is said that—

Such openings, unless far removed from those parts of the building which are lawfully used by persons not having actual notice of their existence, should be thoroughly fenced in, so that no one exercising ordinary prudence could fall through them. If it is impracticable to keep up a fence, as it sometimes is, for example, during the hoisting and delivery of goods through a hoistway, the person using it is bound to give actual notice of the danger to every person lawfully approaching the place, or, in default thereof, he is liable for all injuries resulting therefrom.”

This language was quoted with approval by Mr. Justice Cahill in the case of Engel v. Smith, 82 Mich. 1, 5, where it was held that the opening of a trap-door in a frequented place imposed the duty of guarding it, not to do which constituted negligence as matter of law. The trap-door mentioned in that case was in a «back room, through which the plaintiff was accustomed to pass to and from his room.

The character of the plaintiff's mission upon the‘.premises does not except him from the rule. He was noit-an employé of the defendants, working in and about tlie store, and therefore bound to assume the risks incident to the character of the premises. He went there on business of-the defendants and his employer, by direction of the latter. In that respect the case resembles that of Indermaur v. Dames, L. R. 1 C. P. 274, and L. R. 2 C. P. 311, where this subject is discussed. See Cornman v. Railway Co., 4 Hurl. & N. 781; O’Callaghan v. Bode, 84 Cal. 489. The jury having found the invitation to enter and cross the premises, it was the duty of the defendants to give plaintiff notice of the trap, if he was not already aware of its existence, — a fact that the jury might well have found from the testimony, if they did not. The question was, however, for them, and not for the court, to decide, being disputed.

The further question of contributory negligence is raised, it being contended that such negligence appears from the undisputed facts. These facts are said to be, in substance:

1. That the plaintiff knew of the existence of the trapdoor.

2. That it was a light day, and plainly visible.

3. That he used no care in avoiding it, and did not even look where he was to step.

The first of these propositions is not undisputed, as the plaintiff testified that he did not know of its presence. His testimony probably justifies the statement that he did not look in the direction of the opening that he came suddenly upon as he came around the pile of goods, and it may not have been visible until his foot was upon the edge of the opening in the floor. If so, it was much the same as though he had fallen into a pit immediately upon opening a door. If he had no reason to expect this hatchway, and did not suspect its existence, as his testimony indicates, the law does not require him to be watching for it. When one comes suddenly upon an unexpected opening in a passageway, — one which he has no reason to anticipate, and one which the law makes it the duty of the owner to guard or give notice of, — the case is different from one where a person walks directly forward into an opening, which he would have seen for some distance had he been looking before him as he walked, and where ordinary care could not have failed to discover it. Hutchins v. Sleigh Co., 61 Mich. 252; Tousey v. Roberts, 114 N. Y. 312; Engel v. Smith, 82 Mich. 6. We think, therefore, that the question was one for the jury.

But one other question will be noticed. Evidence was introduced by the defendants tending to show a compromise of the claim of the plaintiff, which was disputed by the plaintiff. An interview about the matter was conceded, and the plaintiff said that the defendant Schmidt admitted that they were to blame. In the argument, ■counsel for the plaintiff claimed that this visit was evidence that the defendants had perpetrated a wrong. Counsel for the defendants asked the court to charge the jury:

“That any proposed compromise should not be considered by the jury as an acknowledgment of any liability to the plaintiff on the part of the defendants.”

This instruction was not given. The parties disagreed •about what occurred at this time, and the question, “What was defendant there for, if not liable?” would naturally •occur to the jury. They should have been told that a man may safely offer a compromise, and that it is no evi•dence of liability. .Counsel say that this was “error with-out injury,” because the defendants’ negligence was indisputable; but this claim loses sight of the fact that the plaintiff’s contributory negligence was involved in the question of liability.

For this reason we feel constrained to reverse the judgment. A new trial will be directed.

The other Justices concurred.


author: Montgomery, J.

text:
    Henry Silberman and David Silberman v. Thomas Munroe.

      Corporations — Annual reports — Falsity of statements — Sale—Rescission for fraud — Evidence.
    1. The reports of the financial condition of manufacturing companies, required by 3 How. Stat. § 416161, to be filed annually by such corporations with the Secretary of State and in the office of the clerk of the county in which the corporate business is carried on, were intended as a means of furnishing information to those dealing with the corporations; and persons so dealing with said corporations upon the strength of such reports, a knowledge of which is acquired through the usual channels, have the right to rely upon the fairness and honesty of the statements ¿therein made.
    2. The inventory filed by the receiver of an insolvent corporation, showing-the aggregate value of the real and personal property which has come into his hands, is some evidence of the value of said property; citing Rosenfield v. Case, 87 Mich. 295,
    3. In a suit against the receiver of an insolvent corporation to recover the value of goods alleged to have been fraudulently purchased by the corporation shortly before it suspended business, it appeared that the inventory filed by the receiver-showed a shrinkage in value of $100,000 in personal property and $140,000 in real estate from the valuations placed upon such property by the corporation in its annual report filed eight months prior to the filing of the inventory. And it is held that it was a question of fact as to whether the discrepancy could be accounted for on the theory consistent with the honesty of the representations made in the report.

      4. Three days after the last of the goods sued for were delivered, the corporation gave a chattel mortgage covering its entire-plant, and two days later it suspended business. And it is held that, if the jury found that the annual report was false, they were not without warrant in finding that the mortgage was-given in contemplation of a suspension of business, and that, even before the mortgage was given, it must have been known, to the management that the business could not proceed, and that it would be beyond the power of the corporation to pay for the goods, and hence beyond its expectations.

      Error to Muskegon. (Bussell, J.)
    Argued November 1, 1894.
    Decided March 19, 1895.
    Trover. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      John Vanderwerp (Smith, Mims, Hoyt & Erwin, of counsel), for appellant.

      Brown é Lovelace, for plaintiffs.
   Montgomery, J.

This, is an action of trover to recover the value of a quantity of scrap iron which came into the-hands of defendant, as receiver of the Muskegon Iron & Steel Company, leave having been granted by the court to bring the suit.

It appeared on the trial that the plaintiffs were dealers in scrap iron, and in June, 1893, sold and shipped to the Iron & Steel Company three car-loads of scrap iron, which were delivered to the company, respectively, June 10,, June 16, and June 23. On the 26th of June, a chattel mortgage covering the entire plant was given by the company, and on the 28th the company suspended business. On the 30th the defendant was appointed receiver. The, plaintiffs subsequently demanded possession of the iron, claiming the right to rescind the sale on the ground that the purchase was made fraudulently; and this Vas based upon the claim that the company had made a false statement of its condition on the 25th of January, 1893, which, formed the basis of credit, and that the purchase was made by the company knowing its insolvency and inability to, pay for the property, and without any intent to pay for it. The return of the property being refused, this action, was brought to recover its value. The plaintiffs recovered: a verdict for the value of the property, and defendant brings error.

It is insisted that there was no sufficient evidence to justify the submission of the case to the jury. It appeared that the statement of the company made January 25, 1893, was made the basis of a report by the commercial agencies, which came to the notice of the plaintiffs and was relied upon. If the report was substantially untrue in fact, the question is ruled by Emerson v. Spring Co., 100 Mich. 127. The January statement, which is required by 3 How. Stat. § 4161H, and the neglect to furnish which renders the directors of the corporation liable in certain cases to a penalty and to the creditors of the corporation, was very clearly intended as a means of furnishing information to those dealing with the corporation; and when parties deal with the corporation upon the strength of such report, acquired through the usual channels, they have the right to rely upon the fairness and honesty of the statement. This statement showed that there was invested in real ■estate $201,645.68, and in personal estate $115,149.36; that the debts of the corporation amounted to $160,260.91, and its credits to $19,739.28. On the 28th of September, the defendant filed an inventory of the property which had come into his hands as receiver, showing an aggregate of real and personal property amounting to $78,502.16. In this inventory the real estate, which is shown to be the same owned by the company in January, was inventoried at $61,000, and the personal property at $17,502.16. The evidence shows that on the 26th of June, when the mortgage was executed under which defendant was appointed receiver on the 30th of June, the corporation was indebted about $142,000, showing a reduction of indebtedness after the 25th of January of $18,000, which it is fair to assume had been paid by realizing on credits and converting personalty. But this should have left on hand substantially #117,000. There was an apparent shrinkage, therefore, of something like $100,000 in personalty and $140,000 in' real •estate.

It is insisted by defendant that there was no sufficient •evidence to show a fraudulent overvaluation of property-in the statement of January 25. But the inventory made by the defendant himself is clearly some evidence of value. Rosenfield v. Case, 87 Mich. 295. It is true the evidence shows that there has been some shrinkage in value resulting from a suspension of business. But can it be said, as matter of law, that this large discrepancy is no evidence to show that the statement of January 25 was untrue, that it had no such tendency, and that the case should therefore have been withdrawn from the jury? Wg think not. We are not prepared to say that a case might not be presented in which the court should say that the depreciation in value is so slight that, as matter of law, it should more properly be attributed to difference in judgment or the changed conditions than to a fraudulent purpose. In this case we are fully satisfied that there was some depreciation resulting from a suspension of business, and, if the ■difference were slight, the jury certainly would not have been justified in finding fraud, based upon a discrepancy in estimates of value made before and after the suspension. But this discrepancy is very great, showing a shrinkage in real estate of 69 per cent, in a few months, and we think it was a question of' fact as to whether the discrepancy could be accounted for on a. theory consistent with the honesty of- the first representation, and the •shrinkage in personalty was equally significant. See Emerson v. Spring Co., 100 Mich. 127.

Upon- the question of whether the company received the goods with intent not to pay for them, and knowing its •own insolvency, if the fact is found that the statement of January was false, and that, within a very few days after the iron was received, a chattel mortgage was given covering the entire plant, the jury were not without warrant, in finding that this was in contemplation of a suspension of business, and that, even before this mortgage was given, it must have been known to the management that the business could not proceed, and that it would be beyond the power of the corporation to make the payment, and. hence beyond its expectations.

Some criticism is made upon the arguments of counsel,, but we think we are not justified in disturbing the verdict upon this ground of complaint, under the circumstances, of this case.

Finding, as we do, that there was evidence in the case justifying the submission of the case to the jury, we discover no fault in its submission, and the judgment will be affirmed^ with costs.

The other Justices concurred.


author: Montgomery, J. Grant, J.

text:
    William H. Brace et al. v. John Berdan et al.

      Chattel mortgages — Advances—Fraud—Burden of proof.

    1. Plaintiffs, as mortgagees, replevied the mortgaged property from attaching creditors of. the mortgagor. On the trial the testimony tended to show that the mortgage was given to secure an existing indebtedness and certain advances to be made to-the mortgagor, but these facts did' not appear upon the face of the mortgage. The court instructed the jury that the mortgagees had no right to place on file an instrument which bore upon its face a false statement as to their claim. And it is held that the jury would naturally infer from the language used that the mortgagees had no legal right to incorporate in, their Claim anything more than said existing .indebtedness, and that for this reason it'was error to refuse, on the request of • ■ the mortgagees, to charge further- that if the jury should findi that the mortgagees agreed, at the time they took the mortgage, to make said advances, and that the remainder of the sum secured by 'the mortgage was a valid, existing indebtedness due the mortgagees, the taking of the mortgage for the amount so to be advanced would not affect its validity.
    :2. In such a case the burden is upon the attaching creditors to show fraud in the transaction between the mortgagor and mortgagees.
    Error to Alpena. (Kelley, J.)
    Argued November 21, 1894.
    Decided March 19, 1895.
    Replevin. Plaintiffs bring error.
    Reversed.
    The facts are stated in the opinions.

      J. D. Turnbull and George B. Greening, for appellants.

      I. 8. Canfield and C. E. Williams (D. E. Thomas, of counsel), for defendants.
   Montgomery, J.

I think there was error in the submission of this case to the jury. It appears that plaintiffs, through their agent, received a mortgage from Alexander R. McKenzie, covering his stock of goods, amounting to $7,500. There was due plaintiffs at the time $4,600, and there was testimony tending to show.that the mortgage was received as security for this sum, and for $2,900, •future advances to be made in goods to McKenzie. The •circuit judge charged the jury:

“It appears from the evidence here, and I think I may ,say to you that there is no contention about it, — it is conceded, — that the actual indebtedness was about $4,600, the .actual indebtedness to Phelps, Brace & Co., on the 4th day of January. It is conceded that this mortgage was made to cover an amount of $2,900 in excess of that. * •* * It is not controverted here but that Mr. Greening was acting for them, as their attorney and agent, in securing this mortgage; ° * * * and if he, in this transaction, either with or without their knowledge or consent, secured an illegal lien, or attempted to secure this mortgage for the purpose of covering up the property of MeKenzie, and placing it beyond the reach of other creditors, or for the purpose of hindering and delaying other creditors, the plaintiffs would be bound by his action. * *
* And I charge you, gentlemen of the jury, upon this branch of the case, that the giving of this mortgage, a mortgage which appears to be absolute upon its face, for an indebtedness of $7,500, a mortgage which is sweeping in its terms, and covers the entire property of McKenzie of a. certain class, and which undertakes to cover all property of such class which may be acquired by him in the future, the giving of such mortgage, and the receiving of it by the plaintiffs, would constitute a badge of'fraud. It would be a circumstance which, standing unexplained, would be, at least, a badge of fraud. Parties have a right to secure-their legitimate and honest indebtedness; and they have a right and under the laws of this State they may take a. mortgage or any other means of securing their indebtedness. If they take a chattel mortgage, the law requires,, in order that it may be notice to other people who may be interested in the property of the mortgagor, that it be filed. The filing is for a purpose. It is for the purpose of giving persons who are interested in the debtor’s property notice of the true condition of his business, and of the property upon which the mortgage is placed; and I say to you that, unexplained and standing alone, the fact-of taking a mortgage for $2,900 more than their actual indebtedness would be a badge of fraud. And if it was accomplished, if it was done for the purpose of enabling McKenzie to keep his other creditors from asserting their-rights and enforcing their claims, it would be an actual fraud, and would render the instrument void as to other-creditors who had existing claims then against McKenzie. Now, you understand this proposition. This question of' whether it was fraudulent or not as to other creditors is a. question of fact for you, to be determined from the evidence in this case, and from all the surrounding circumstances. * * *
“Now, this mortgage is the basis of the claim of the plaintiffs, and it becomes their duty and the burden is upon them of establishing the fact that it was Iona fide, and taken in good faith, and not as a means of preventing other creditors from enforcing their claim. ■ The burden is upon them to show it in this case, they deriving their right and their claim through this instrument,— this mortgage.’’

In another place the court said:

“It was the duty of Phelps, Brace & Co., when they" sought to secure their claim, to take such an instrument', as when placed upon file would show a true state of facts.They had no right to put upon file an instrument which bore upon its face a false statement of the condition of’ their claim; and this circumstance you have a right to consider in determining the question as to the character of." this mortgage.”

Plaintiffs’ counsel requested the court to charge the jury that—

“If the jury find that the plaintiffs, at the time they obtained their mortgage from McKenzie, agreed to advance, in money or merchandise, to said McKenzie, the amount, of the note given to said McKenzie at the time of making; said mortgage, and the balance of said mortgage was a-valid, existing indebtedness due plaintiffs, then, the taking; of this mortgage for the extra amount of said note would not affect the validity of said mortgage.”

This instruction was refused, and its equivalent is not. embraced in the charge. We think this was error. The-strong language employed by the court in asserting that-the plaintiffs had no right to put on file an instrument: which bore upon its face a false statement of the condition, of their claim would very naturally lead the jury to suppose that they had no legal right to incorporate in their claim any more than the sum then constituting an existing indebtedness from McKenzie to the plaintiffs.

I also think it was error to charge the jury that the burden was upon the plaintiffs to negative fraud in the transaction. Fraud is never presumed, and the burden should never be imposed upon a party to show affirmatively that no fraud exists in a transaction. While the fact that the mortgage was given for a greater sum than the amount due is a circumstance which may be taken into consideration by the jury, and while admittedly, if it is made for a greater amount than the indebtedness owing, for the; purpose of hindering or delaying creditors, it amounts to fraud in law, yet I do not understand that the burden of proof shifts. Such seems not to have been the view of the circuit judge, but he states that the burden of proof is upon the plaintiffs in the case, “they deriving their right and their claim through the mortgage.'” I think it is not the rule of law that a person deriving his claim through an instrument of conveyance or a security has the burden of proof to show that the instrument is not fraudulent.

The judgment is reversed, and a new trial ordered.

McGrath, C. J., Long and Hooker, JJ., concurred with Montgomery, J.

Grant, J.

(dissenting). Plaintiffs, living in Detroit, had a chattel mortgage upon a stock of goods of one McKenzie, living in Alpena. Their actual claim was $4,600, while the mortgage was $7,500. McKenzie was also indebted to the defendants in the sum of $1,100, and to other creditors in the sum of $1,800. The mortgage was absolute upon its face, reciting that McKenzie was justly indebted to them in the sum above named, evidenced by a promissory note of even date, jmyable April 5, the mortgage being dated January 4 previous. Before the giving of the mortgage, plaintiffs had placed their claim in the hands of Mr. Greening, an attorney at Alpena. He testified that he made repeated attempts to induce Mr. McKenzie .to secure plaintiffs’ claim; that he drew up a chattel mortgage for the actual amount of the indebtedness, and presented it to him for execution; that he refused to sign it, and desired to give ,a mortgage to Cover future advances; that he wanted one for about $3,000 more than he owed plaintiffs, because the giving of the mortgage would ruin •his credit, and he could not obtain goods from any one else. The mortgage in question was finally executed, and Mr. Greening executed a promissory note for $2,900, due April 5, payable at the office of the Alpena Banking Company, and signed by plaintiffs, “per George B. Greening, their attorney.” No other consideration than this note ever passed from plaintiffs to McKenzie for the excess in the mortgage above the actual indebtedness. Mr. Turn-bull, now the attorney for plaintiffs, was then the attorney for Mr.. McKenzie. This note was delivered to Mr. Turnbull, was never delivered to McKenzie, and, at the time of the trial, was still in Mr. Turnbull’s possession. The mortgage was made out, signed, and dated January 2, and left with Mr. Turnbull. It was delivered to Mr. Greening January 4. Mr. Burton, defendants’ agent, went to the city recorder’s office about 4 o’clock p. m., just before commencing the attachment suit, and found no mortgage upon record. When Mr. Greening filed the mortgage, he learned that the attachment suit had been commenced, and immediately went to the store and. took possession. The mortgage was filed between the issue and service of the writ. The sheriff obtained entrance to the store, and seized the property, and plaintiffs replevied it. It does not appear that the plaintiffs authorized. this transaction, or had any knowledge of it whatever. It appears to have been conducted by Mr. Greening alone. Neither of the plaintiffs was sworn; but their ratification is to be inferred from the prosecution of this suit. When Mr. Canfield, the attorney for the defendants, asked Mr. Greening about the plaintiffs’ claim under the mortgage, Mr. Greening stated that the amount of the debt was $7,800, and did not inform Mr. Canfield of the true state of the accounts. The amount of the mortgage substantially corresponds to the amount of the debts owed by McKenzie. He testified that it was expressly agreed that the mortgage should not be filed unless the defendants should take legal proceedings to collect their claim. The appraised value of the property was $10,000. After plaintiffs secured possession under their writ of replevin, they immediately turned it over to McKenzie, who continued for some time to carry on the business as before. They never advanced him any more goods or money. Defendants recovered verdict and judgment for the amount of their claim.

This mortgage does not upon its face represent the true state of indebtedness between the parties. The law does not look with favor upon such mortgages. Honesty and fair dealing, and therefore the law, require that mortgages contain truthful statements. It is due to other creditors. The law will excuse honest mistakes, but will not excuse intentional misrepresentations, which naturally will mislead other creditors. Willison v. Desenberg, 41 Mich. 156. I refer to that case for language entirely appropriate to this.

The jury found, in answer to a special question, that this mortgage was given with intent to defraud other creditors of Mr. McKenzie. The evidence justified the verdict. It is very questionable whether the transaction did not amount to a fraud in law, so that the court would have been justified in directing a verdict for the defendants. Diver v. McLaughlin, 2 Wend. 596. The circuit judge, however, in a long and careful charge, left the entire question of fraud to the jury, who; by their verdict, have settled the question against the plaintiffs. It is unnecessary to review the instructions or the numerous requests on behalf of the plaintiffs which were refused. They include principles which are entirely familiar to the profession in this class of cases. The only portion of the instruction upon which any doubt can be raised is that wherein the judge said that the mortgage was the basis of plaintiffs’ claim, and that the burden was upon them to establish the fact that it was taken in good faith, and not as a means of preventing other creditors from enforcing their claims. Where the mortgage represents the true state of the indebtedness, and correctly sets forth the agreement between the parties, such instruction would be erroneous, because the burden of proof is usually upon him who alleges the fraud. But, where the mortgage is confessedly and intentionally false in its statements, the burden of proof is upon the mortgagee to show the bona fides of the transaction. There was a secret understanding between the mortgagor and the mortgagees, which was. in direct conflict with the terms of the mortgage. Such an arrangement is a badge of fraud, and calls for explanation from those claiming under the instrument. The contention has often been made that mortgages given for a. larger amount than the actual debt were fraudulent per se. But it has generally been held, and we think correctly,, that they are not conclusive evidence of fraud, and are-subject to' explanation. Kaysing v. Hughes, 64 Ill. 123; Bell v. Prewitt, 62 Id. 367; Bush v. Bush, 33 Kan. 566;. Tully v. Harloe, 35 Cal. 302; Minor v. Sheehan, 30 Minn. 419; Berry v. O’Connor, 33 Id. 29. Nor need the mortgage necessarily show upon its face to have been given for future advances. Jones, Chat. Mortg. § 96, and authorities, there cited. In Tully v. Harloe it is said:

“A mortgage which misrepresents' the transaction between the mortgagor and mortgagee is liable to suspicion, and ought to be critically examined; but if, upon investigation, the real transaction turns out to be fair, and to have-been had in good faith, it would be unjust to deprive the-person claiming under it of his equitable rights. It is-always better, however, for obvious reasons, that the mortgage should be drawn so as to show the true object and purpose of the transaction; for suspicion is engendered by misrepresentation, but disarmed by a statement of the-truth."

The soundness of this rule is questioned by the supreme court of Wisconsin. Stein v. Hermann, 23 Wis. 132;, Butts v. Peacock, Id. 359. In the latter case, at page 360, will be found cited the authorities holding such mortgages void. In Carter v. Rewey, 62 Wis. 556, the court held that chattel mortgages may be given to secure future advances, “providing it appears on the face of the mortgage to be intended as a continuing security for such advances.”

The authorities first above cited hold that under such circumstances an explanation is due. From whom is it due? Undoubtedly, from those within whose knowledge lie the explanatory facts; otherwise the opposite party would be compelled to call as witnesses hostile and interested parties. The plaintiffs’ sole right to recover depends upon the validity of their mortgage. In Haynes v. Leppig, 40 Mich. 602, 605, this Court said:

“We think, when a controversy arises concerning a mortgagee’s rights under a mortgage with any one interested in questioning it, that he is bound to prove the amount and conditions of his claim. Without this no one else can tell what his own rights are in the property or against it, and a mortgagee has no right to withhold such information. If he has rights, he has the means possessed by no other person of explaining them, and he is bound to explain them.”

See, also, Ferguson v. Gilbert, 16 Ohio St. 88.

The rule that the burden of proof is upon him from whom an explanation is due, and who alone can explain ■the badges of fraud, is certainly founded upon common sense and reason. I think the charge of the court was correct.

The dealings between plaintiffs and. McKenzie subsequent to the mortgage were competent evidence for the jury to consider in determining the question of fraud. Therefore, the facts that plaintiffs left McKenzie in charge to carry on the business as usual after they had seized the goods upon their mortgage, that they had neither advanced goods nor paid him money upon the note, and other like circumstances, were admissible.

The judgment should be affirmed.

       See Ferris v. McQueen, 94 Mich. 367.


text:
    Edward W. Harris, Executor, etc., v. Martha L. Cable.

      Executors and administrators — Assets of estate — Estoppel—Trover.
    1. An executor has no power, on receiving from one of two residuary legatees a note which in fact belongs to the estate, but which the legatee claims to own as a gift from the testator, to authorize the legatee to collect the note and convert the proceeds to her own use.
    2. The collection of the note by the legatee in her own right, and the appropriation by her of the moneys collected, amount in law to a conversion, and the executor can maintain trover without demand against the legatee for the conversion of the note.

    Error to Saginaw. (Wilber, J.)
    Argued January 24, 1895.
    Decided March 19, 1895.
    Trover. Plaintiff brings error.
    Reversed.
    The .facts are stated in the opinion.

      Humphrey & Grant, for appellant.

      Hanchett & Hanehett, for defendant.

       As to when a demand is and when it is not necessary before bringing trover or replevin, see Aspell v. Hosbein, 98 Mich. 117, and note; Crozier v. Partrick, 98 Id. 349; Havey v. Petrie, 100 Id. 190; McGregor v. Cole, 100 Id. 262; Guerold v. Holtz, 103 Id. 118; Felcher v. McMillan, 103 Id. 494.

   Montgomery, J.

Jacob F. Batchelor died January 3, 1892, leaving a last will and testament, by wbicb he bequeathed certain sums of money to his son, Henry A. Batchelor; made certain bequests to the defendant, Martha L. Cable, who had been a member of his household for many years; made certain minor bequests to other persons in his employ, and to public charities; and concluded by making his son and the defendant, Martha L. Cable, his residuary legatees, to share in the estate equally after the payment of the specific legacies. This action is in trover, brought by the executor to recover for the conversion of a note of $5,000, made on the 3d of June, 1891, by Mc-Causland & Co., payable to the order of W. A. Avery, due one year after date, and indorsed by said Avery.

There was evidence on the trial tending to show that after the funeral of the testator, in the presence of the executor and defendant, Henry A. Batchelor mentioned the note in question, and the defendant bowed her head, and said, “Yes; it is amongst his papers.” It is also conceded by defendant that the note was worth its face; “that McOausland & Co. paid the note to the bank; and that Miss Cable got the benefit of it, and that she (the defendant) got the proceeds.” The executor was himself sworn for the plaintiff, and stated that he had seen the note in question; that Miss Cable handed it to him at the former residence of Mr. Batchelor, in Saginaw; that it was handed to him with certain bank books of Mr. Batchelor’s; that he did not know whether he took the note in his hands or not; that he did not know where she got the note, but that she went out of the room, and returned with the note and other papers; that, soon after he had filed his bond as executor and qualified, he went to the house, and took whatever papers he thought best of Mr. Batchelor’s; that at that time a similar note to the one in suit was shown him; that he had it in his hands; that he handed the note back to defendant; that he never after-wards demanded it of her, or asked it of her in any way; that prior to the commencement of the suit he had never made claim for the note. On cross-examination he testified that when defendant brought this note to him she told him about the note, — that it had been given to her, — and ■then stated: “"We talked about that and the other matters, •and I gave her back the note, and later on I went and got the bank books and other papers.” And when asked if he did not state, when he handed the note back to her, that the note belonged to her, and not to the estate, and to keep it, he answered: “In substance, I did. I cannot undertake to give the language.” He was then asked, “ Did you not, in an interview there at Port Huron, upon being asked by her about the note, tell her to collect the money, and deposit the money to her own account?” and .replied: “I don't remember making any such remark to her. It would not be strange, however, if I did.”

Defendant testified that on the occasion when the will was read Mr. Henry A. Batchelor asked her what his ■father ever did with the McCausland note, and she .answered that the McCausland note was all right, and that that was all that passed; that she did not say that it was among the papers belonging to the estate. She testified that subsequently Mr. Harris called for Mr. Batch■elor’s books and some notes, and she then said to him, “ Mr. Harris, you remember Mr. Batchelor asked me what his father did with the McCausland note?” and stated, -“This is the note,” and handed the McCausland note to him; that he (Harris) looked at it, and handed it back, .and said, “I have nothing to do with it, that is yours; put it away, and take care of it;” that subsequently, after -the appointment of Judge Harris as executor, she mentioned the fact to him that the note would be due on the -3d of June, and asked if she should collect it, saying, •“Have you any advice to give me?” and he answered ‘.‘No; collect it, and deposit it to yonr own credit, and go along about yonr business.'” There was also testimony offered by the defendant for the purpose of establishing that the note was given to her by the deceased in his lifetime. This consisted of an indorsement upon the back of the note by the deceased, not necessary, howeyer, for the purpose of conveying title, and of proof tending to show that, as the interest money was collected, deposits were made by her on her bank account, corresponding in every instance to the amount of interest money paid, and also her own testimony that she had no other source of income.

The circuit judge directed a vei'dict for defendant on the ground that the testimony did not tend to show a conversion of the note.

Defendant’s counsel in this Court contend that the record do,es not show that any claim was made at any time by the defendant of title to the note as against the estate, and that she never asserted ownership as between her and the executor, or between her and Henry A. Batchelor. But we think it. is clear from the testimony quoted that both the defendant and the executor did understand that she was asserting a title to this note, and that she retained it, not as the agent of the executor, but under a. claim of right in herself, and that she so collected and appropriated the proceeds..

It is insisted by defendant’s counsel that under the statute (How. Stat. § 5875) the executor was not required to-take possession of the note, if, for any good reason, he-did not see fit to do so. The case of Brown v. Forsche, 43 Mich. 497, is cited to sustain this proposition. In that case the administrator allowed the widow and children of the intestate to take possession of and dispose of the assets belonging to the estate after the time limited for making proof of claims against the estate had expired, and the-question arose as to whether he was in fault in so doing, so that he became liable to respond for the demand of a creditor who subsequently came in by petition and proved his claim after the lapse of the time prescribed by statute, and the Court held that he was not. so liable. So the Court has held in numerous cases that a specific legacy may be paid over to the legatee ^by the executor before the settlement of the estate, whenever the condition of the assets of the estate may admit of it. See Eberstein v. Camp, 37 Mich. 176; Proctor v. Robinson, 35 Id, 284. So it has been held that the executor is not required to take possession of the real estate unless the rents and profits or the estate itself be required for the payment of the debt® of the deceased. But we think these cases are not controlling here. This is not a case where an advance has-been made by the executor to a legatee under the will, but it is a case in which the jury had the right to find, and in which the evidence very clearly indicates, that the defendant was asserting an adverse claim to, specific property, the title to which vested in the executor at the decease of the testator. There could be no doubt about the right of the executor to demand the possession of the note, and there would have been no doubt of the right to recover the note into his possession by replevin if delivery had been refused, and we think it would be equally clear that he would have the right to recover in trover after demand and refusal.

But it is said that defendant has done nothing more with the note than the executor authorized her to do. The answer to this contention is that, if the note was in fact the property of the estate, the executor had no power to authorize her to collect this note and convert the proceeds to her own use. See Gilkey v. Hamilton, 22 Mich. 283; Hatheway v. Weeks, 34 Id. 237. She must be presumed to know the law. Whatever she did in the matter, she did knowing that she had' no authority. The case presented is different than it would be had she, being a proper custodian of this note, simply retained possession of it. She has gone further than this. She has converted and disposed of it, and applied the proceeds to her own use, not in recognition of- the right of the executor, but in denial of that right. This amounts in law to a conversion. Hake v. Buell, 50 Mich. 89; Kenney v. Ranney, 96 Id. 617; Tuttle v. Campbell, 74 Id. 661; Cooley, Torts, 451.

The authorities cited to sustain the proposition that the executor is not bound to institute suit to recover a doubtful claim, if he is satisfied that it is not enforceable, we think do not affect the question here involved. The question is not whether the executor will be chargeable for negligence in not having inventoried this note as an asset of the estate, or for failing to attempt the collection of the proceeds, in a case where the question arises between the distributee, as such, and the executor; but the question here is whether, in a suit instituted by the executor himself against this defendant, the note was in fact the property of the estate, and, second, whether the proper remedy has been adopted. The first question is a question of fact, and the flatter question, we think, is resolved, when it is determined that as a matter of law this executor had no right to surrender up to this defendant a note which in fact belonged to the estate, upon her mere claim of right. Defendant, with knowledge of that rule of law, having converted and disposed of the note, is liable in trover without demand.

The judgment will be reversed, and a new trial ordered.

Long, Grant, and Hooker, JJ., concurred. McGrath, O. J., did not sit.