author: 'Moore, C. J.

text:
    SACHS v. NORN.
    1. Chattel Mortgages — Record—Validity—Good-Faith Creditors.
    A bill of sale, intended to operate as a chattel mortgage,- not followed by a change of possession, and unrecorded, is void as to persons in good faith extending credit to the mortgagor without knowledge of its existence. Section 9528, 8 Comp. Laws.

      2. Garnishment — Affidavit—Defects—Waiver.
    After counsel has appeared in garnishment proceedings representing the defendant, the garnishee, and an intervening claimant, and raised various objections to the proceedings, and at the beginning of the trial on the merits states that it is agreed that the intervenor shall be regarded as defendant in the case, and that whatever judgment is rendered shall be binding on him, it is too late to claim that a defect in the affidavit for garnishment, apparent on its face, requires the direction of a verdict for the intervenor.
    Error to Bay; Shepard, J.
    Submitted January 4, 1905.
    (Docket No. 7.)
    Decided March 21, 1905.
    Garnishment proceedings by Henry W. Sachs and Louis E. Wenzel, copartners as Sachs & Wenzel, against James Norn as garnishee defendant of the Rifle River Lumber Company. The Lumberman’s State Bank was permitted to intervene as claimant. There was judgment for defendant bank on verdict directed by the court, and plaintiffs bring error.
    Reversed.

      De Vere Hall (Gilbert W. Hand, of counsel), for appellants.
    .Lee E. Joslyn, for appellees.
   'Moore, C. J.

The plaintiffs are a firm doing business ¡¡at West Branch. The principal defendant was a partnership association, limited, engaged in lumber business near that place. The company purchased of plaintiffs between February 1 and June 6, 1902, supplies for use in its camps. Plaintiffs, failing to obtain payment, on December 6, 1902, commenced suit against the principal defendant, which resulted in a judgment against it on November 16, 1903. For the purpose of procuring a writ of garnishment against Mr. Norn in favor of the plaintiffs, Mr. Brockway, at the same time the original suit was brought, as agent and attorney for the plaintiffs, made an affidavit which reads in part as follows:

“ And this deponent further says that he has good reason to believe, and does believe, that James Norn, of Standish, Michigan, has property, money, goods, chattels, credits, and effects in his hands and under his custody- and control, belonging to said Rifle River Lumber Company, limited, etc., the above-named defendant, and that the said James Norn is indebted to the said Rifle River' Lumber Company, limited, etc., the above-named defendant, whether such indebtedness is now due or not. And this deponent further says that he, the said affiant,, is justly apprehensive of the loss of said sum of $431.98, so due to the plaintiffs from the said Rifle River Lumber Company, limited, etc., the above-named defendant, un- ' less a writ of garnishment issue to the said Henry W. Sachs and Louis E. Wenzel, a firm and copartnership,”' etc.

A writ of garnishment was issued and served upon Mr.. Norn, who, on December 23, 1902, made a sworn written, disclosure showing he was indebted to some one in the sum of $659.82 for lumber; “that on the 3d day of July, 1902, I bought from the Rifle River Lumber Co., per John Walsh, administrator, a quantity of hemlock lumber, and said deal was sanctioned by H. H. Norrington.” He further stated therein, “ I do not know who I owe; would like the court to say.”

A demand for an examination of the garnishee defendant under the statute was made January 2, 1903. An examination was had January 14, 1903, when the following occurred:

“Mr. Joslyn, appearing for the principal defendant,' and especially as attorney for the Lumberman’s State Bank.
‘ ‘ Mr. Joslyn : Let it appear that I appear specially as attorney for the Lumberman’s State Bank, and object to the garnishee being sworn, for the reason that the disclosure filed shows that the Lumberman’s State Bank, or Henry H. Norrington, representing the bank, is interested in the indebtedness, and the bank has had no notice of the garnishee proceedings or of this examination.”

The objection was overruled.' No objection was made that the affidavit was defective, and the examination proceeded, Mr. Joslyn taking part therein.

In January, 1904, a trial was had before a jury. At that time the record discloses that De Yere Hall appeared for plaintiff—

For the defendant, the Rifle River Lumber Company, and for the garnishee defendant, James Norn, and for the Lumberman’s State Bank, intervening, L. E. Joslyn.
“Mr. Joslyn: In this case it is agreed between the attorney for James Norn, the garnishee defendant, and Hall & Brockway, attorneys for the plaintiffs, that the Lumberman’s State Bank may intervene, and that from this time the Lumberman’s State Bank will be considered as a defendant in the case, and' that whatever determination may be made in the suit as between the plaintiffs and the garnishee defendant shall be binding upon the Lumberman’s State Bank.
‘ ‘ Mr. Hall: Whom do you represent ?
“Mr. Joslyn: I represent the Lumberman’s State Bank and also the principal defendant.
“Mr. Hall: That is right with respect to any intervention that the bank could take, or any rights it might have or might take by filing the ordinary petition for intervention. There is no objection, and we will treat it as intervening.
“Mr. Joslyn: I desire to raise the point of law that the affidavit for the writ of garnishment in this case is not sufficient upon which to warrant the issuing of the writ of garnishment or to found any subsequent proceedings. _ The statute provides that the plaintiff, or some one on his behalf, shall file an affidavit which requires, among other things, that it shall be stated that the affiant is justly apprehensive of the loss of his claim or the claim of the plaintiff unless a writ of garnishment issue to the party whom he claims is indebted to the principal defendant, * * *
“Hr. Hall: The facts which the plaintiffs expect to be able to prove are that a judgment was secured in this court for goods and supplies furnished the principal defendant, which, with the .cost taxed, now amount to about $470; that this writ of attachment was duly issued on the affidavit in question; that Mr. Norn has filed two disclosures, in which no question has been raised such as is now raised; that a notice under the statute for the taking of Mr. Norn’s testimony has been given, and his testimony has been taken here, at which time Mr. Joslyn appeared on behalf of the Lumberman’s State Bank, and raised a question as to the right of the court to proceed. He did not raise this question, or any question similar to it. Mr. Norn was examined by the counsel for the plaintiffs, he was cross-examined by counsel for the bank now raising this question. That testimony has been transcribed, and stands as testimony in this case. The case has been on the docket for two terms, at least, and stands continued to this term by special order of the court, and now for the first time this question is raised. We submit, if it is to be disposed of, it ought to be disposed of on a trial after the proofs are in, so that, if the Supreme Court acts upon this matter, it may act finally, and that there will be no going up there and coming back and a long delay in the matter.
The Court: I won’t make any change in the ruling I made before the recess. From the affidavit I don’t think that there is anything misleading about it, and I will overrule the motion, and, if it is deemed necessary to make any formal amendment, it may be made as a curative one.”

Mr. Joslyn made no suggestion that the statement of Mr. Hall was not true. The court permitted the amendment, and the trial proceeded upon the merits, Mr. Joslyn taking part therein.

Upon the trial a paper was introduced in evidence, the material portions of which read as follows:

“Know all men by these presents, that the Rifle River Lumber Company, limited, a partnership association organized and doing business under the laws of the State of Michigan, for and in consideration of the sum of one dollar, and other good and sufficient consideration, to it paid by Henry H. Norrington, treasurer of said Rifle River Lumber Co., Ltd., of West Bay City, Bay county, Michigan, for the uses and purposes hereinafter referred to, have granted, bargained, and sold, and does hereby grant, bargain, and sell to the said Henry H. Norrington, treasurer, all of the following pe'rsonal property and chattels, to wit: All of the timber, logs, and lumber now standing, growing, or being on the following-described lands in Ogemaw county. * * *
“Also all the West Branch Mill property, so called, including furniture, fixtures, and supplies in the office and bed rooms, sleeping camps, cook camps, West Branch yards, camp equipments, blacksmith shops, together with all of the other goods, chattels, and personal property described and referred to in a certain bill of sale. * * * Provided always, and this agreement is subject to the following covenants and agreements, to wit:
“ (a) Said Rifle River Lumber Co., Ltd. (hereinafter called first party), is to have possession of all the foregoing goods, chattels, and property, with the full right to use the same for the purpose of manufacturing the timber and logs referred to into lath, lumber, shingles, ties, posts, and other suitable marketable material, and to sell and dispose of such material dn the usual course of trade. But said first party shall not dispose of or sell any of the within and foregoing goods, chattels, or property, except in the usual course of trade, without the written consent of said Norrington (hereinafter designated as second party). * * *
“ (c) It is understood and agreed that this bill of sale is given for the express purpose of securing the just and full payment of the sum of fifteen thousand dollars ($15,000.00), owing and due, or to be advanced and to become due, to the Lumberman’s State Bank of West Bay City, Bay County, Michigan, from said first party. * * *
(e) If said first party shall at any time neglect, refuse, or fail to pay the aforesaid sum or sums of money whenever and as often as the same shall become due and payable ; or if said first party shall sell, assign, transfer, mortgage, or incumber said property or any part or parcel thereof, or shall permit any lien whatsoever to be placed thereon and shall not promptly discharge the same, and if in the opinion of said second party the security herein provided for is or shall become impaired, then and in that case, said second party may take possession of all of the within and foregoing property (and which shall also include any and all sums of money due or owing to said first party, all bills receivable, accounts and bills of account, all books, and all of the property of every kind, name or nature owned by said first party whether the same is or shall be herein described or referred to or not), and to use the same in such manner as he shall deem for the best interests of the said bank. And said second party in sucb event may continue the business herein contemplated, or he may sell and dispose of said goods, chattels, and property, in bulk or in parcels, at public or private sale, giving such notice of the sale thereof, if any, as he may deem for the best interests of said bank. * * *
“Dated March 14, 1902.”

U pon the trial it was conceded by Mr. J oslyn, representing all the interest not represented by the plaintiffs, that Sachs and Wenzel knew nothing of the claims of the Lumberman’s State Bank at the time they sold the goods to the defendant for which they secured a judgment in this court, and that the business was then conducted by the Rifle River Lumber Company, at West Branch, and that there was no chattel mortgage or conveyance of any kind from the Rifle River Lumber Company to the bank, or any one representing the bank, filed in the city recorder’s office of West Bay City, where the office of the principal defendant is, or in the township clerk’s office at West Branch, where this property in Ogemaw county was located, or the register of deeds’ office at West Branch being in the said Ogemaw county.

At the conclusion of the testimony on the part of the plaintiffs, the circuit judge directed a verdict in favor of defendant. The case is brought here by writ of error.

The plaintiffs claim a verdict should have been directed in their favor. It was their claim that Mr. Norn bought the lumber of the principal defendant, and was indebted to it. It was the contention of the intervening claimant that the lumber was bought from the Lumberman’s State Bank, and that the direction of the verdict was right. The position of plaintiffs is discussed by counsel under eight heads, the last one of which is “that under section 9523 of the Compiled Laws of 1897 the bill of sale was entirely void as to plaintiffs as a matter of law, and, in any event, under section 9520 of the Compiled Laws, plaintiffs were entitled to go to the jury, because there was no actual or continued change of possession of the property covered by the bill of sale.”

If it had been entirely clear that Mr. Norn purchased the property of the principal defendant, as claimed by plaintiffs, we have no doubt that, inasmuch as the paper called a bill of sale was not recorded, the case would come within section 9523, 3 Comp. Laws. As the lien given to the Lumberman’s State Bank was not properly filed, and the plaintiffs had no knowledge of it, when they extended the credit, it would be void as to them. We think it equally clear that the bank could not, by making a sale to Mr. Norn, put him in any better position than it occupied. Taking either horn of the dilemma, we think plaintiffs were entitled to priority, and a verdict should have been directed in their favor. Section 9523, 3 Comp. Laws, and the many cases cited thereunder. See, also, Lingle v. Owosso Sugar Co., ante, 203.

Defendants contend that the reasons given by the' circuit judge in directing a verdict were based upon an undisputed legal basis; but, whether they were or not, it is contended that the verdict is a proper one, for the reason that plaintiffs and appellants had no standing whatever in court by reason of the defective affidavit filed in the garnishment proceedings-; citing Maynards v. Cornwell, 3 Mich. 311, and other cases, all of which we have examined, as well as the case of Hebel v. Insurance Co., 33 Mich. 400. A reference to these cases will show they are distinguishable from the one at bar. ' In this case, after personal service upon him, the garnishee defendant, without questioning the jurisdiction of the court, made a disclosure. Later, when the garnishee defendant was examined under the statute, Mr. Joslyn appeared generally for the principal defendant and specially for the intervening claimant, and objected to the garnishee defendant being sworn, because the disclosure which had been made showed the bank was interested, and had not received notice of the garnishee proceedings. When the objection was overruled, the examination proceeded, and Mr. Joslyn took part therein. It will be observed the jurisdiction of the court was not questioned, because of a defective affidavit, by any of the parties who were then before it, and they were all there. Again, upon the trial Mr. Joslyn appeared for the principal defendant and for the garnishee defendant, and agreed with the attorney for the plaintiffs in open court that the bank might intervene, and “ that from this time the Lumberman’s State Bank will be considered as a defendant in the case, and that whatever determination may be made in the suit as between the plaintiffs and the garnishee defendant shall be binding upon the bank.” After this occurred, objection was made to the sufficiency of the affidavit, as we have already stated. It was amended, over the objection of counsel, so as to cure a defect which appeared upon the face of the affidavit, and the trial upon the merits proceeded, counsel who had appeared as we have stated, taking part therein. Under these circumstances we do not think it can be said the judge should have directed a verdict because of the defects .in the affidavit. See Millard v. Lenawee Circuit Judge, 107 Mich. 134; Wattles v. Wayne Circuit Judge, 117 Mich. 662; Union Nat. Bank of Chicago v. Muskegon Circuit Judge, 117 Mich. 678; Tiffany’s Justice Guide (5th Ed.), pp. 136, 137, and cases cited in note 1.

Judgment is reversed, and new trial ordered.

McAlvav, Grant, Blair, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J.

license: Public Domain

text:
    WILCOX v. WILCOX.
    1. Witnesses — Examination — Form oe Question — Harmless Error.
    It is not reversible error to overrule an interrogatory to a witness containing two questions where everything material and competent might have been obtained from the witness by other questions.
    2. Same —Competency—Matters Equally Within Knowledge oe Deceased.
    A claimant against the estate of a decedent for money expended in his behalf may testify as to expenditures about whioh deceased had no knowledge, but not as to those which he knew about.
    3. Limitation oe Actions — Claim Against Estate —Husband and Wiee — Question eor Jury.
    A widow, in support of a claim against the estate of her husband, who died in 1902, showed that when they were married in 1892 she had ready money, that he had none, that his farm was mortgaged and the buildings in need of repairs, that he earned no money after marriage, and that their living expenses, the mortgage, repairs to the house, and the expenses of his last sickness and burial were paid by her. He frequently recognized his obligation to her, and recently before his death stated that she should be paid. Held, that it was error to direct a verdict for the estate on the ground that limitations had run against items of her claim dated in 1893 and 1894.
    Error to Mason; McAlvay, J.
    Submitted January 7, 1905.
    (Docket No. 77.)
    Decided March 21, 1905.
    Mary D. Wilcox presented a claim against the estate of Levi Wilcox, deceased, for money loaned during his lifetime. The claim was allowed in part in the probate court, and Frank Wilcox, an heir at law, appealed to the circuit court. There was judgment for contestant on verdict directed by the court, and claimant brings error.
    Reversed.

      Fitch & Peek (James H. Pound, of counsel), for appellant.

      David Stockdale & Son (Wilkes & Stone, of counsel), for appellee.
   Moore, C. J.

Levi Wilcox died in 1902. Mary D. Wilcox presented a claim against the estate of her deceased husband, the following items of which were allowed in probate court:

First. 1893, to Levi Wilcox, cash, $250.
Second. By cash expended, lathing, plastering, papering, chimney built, bedding, linen, silver, and china, etc., paid mortgage and interest, bought farming tools, implements, etc., built barn and double granary, 1894, $875.
Third. Expenses connected with final sickness, $132.
Fourth. The other item is widow’s mourning, $97.

From the allowance of these items an appeal was taken by the son of Mr. Wilcox to the circuit court. A trial was had before a jury, which returned a verdict, by direction of the trial judge, in favor of the estate. The claimant brings the case here by writ of error.

The record shows that the claimant, who was then a comparatively young woman, in 1892 married Mr. Wilcox, who was then more than twice as old as she, and not in good health. She then had upwards of $1,500 in the bank. He had 80 acres of new land in Mason county, incumbered by a mortgage, with an unfinished house upon the land, and some other small buildings. Her money was used to make the house habitable, to pay off the mortgage, and for the living expenses of the family. Mrs. Wilcox claims her money was used with the expectation upon her part it would be repaid to her, and upon Mr. Wilcox’s part that he would repay it. For the purpose of making claimant’s case, her sister, Mrs. Hunter, was sworn. After testifying to the marriage of the parties.in 1892, and to the fact that she visited them at their home in 1895, and to some other things, she said:

Q. What did he say as to his condition in regard to money ?
“A. He was very sorry he didn’t have more. She had so much and he had so little. He said he would pay it back; that he had been so sick; that now he was feeling fine, as fresh as a colt; that he had got a new horse, and was going to begin to work like a young fellow, and pay that back.
Q. How much had he used at that time, if he stated ?
“A. About a thousand dollars. He said he was very sorry that it should be so.
Q. He told you he had been sick, and used the money ?
“A. Yes, sir; they had no home.
Q. State whether or not he told you anything at that time about what kind of a home he had for your sister when he married her.
“A. He told me he had none; a deplorable hole — that is, the condition of his home; no lath, no plaster, no nothing, but that he had begun to build a shell. He said she furnished the money to lath and plaster the house and fix it; get the furniture of every description — everything that was in it. * * *
Q. Did he say.anything what was to be done with the property ? Did he say anything about his family ? (Objected to as immaterial. Sustained. Exception taken.)”

On the cross-examination she said:

Q. You stated that Mr. Wilcox stated to you that he had about $1,000 F
“A. Yes, sir. This conversation was in the afternoon the time I was there.
Q. How long had he had that money, did he say ?
“A. They were expending it as they went along. They had never earned a cent.
Q. Did not say so, did he ?
“A. He did, but he was going to begin; but he never began yet.
Q. And the $1,000 was entirely used up at the time you made the visit there ?
“A. Yes, sir.
Q. Can you tell us where, and for what, it had been used ?
“A. Everything that had been done, and their living for three years, came out of that, and their living still.
Q. What was furnished there that did not come from the farm — everything ?
“A. Sugar, lemons, bananas, and lots of everything they should eat.
Q. What else?
‘ ‘A. They should buy of the grocery in the neighborhood.
Q. Whose money did he use ?
“A. Her own.
‘ ‘ Q. Are you sure of that ?
“A. Yes, sir.
Q. You were there when she was using her own money?
“A. Yes, sir; there was no other to be used.
Q. You know that to be a fact of your own knowledge ?
“A. He told me. I never had any conversation with Wilcox after my visit there about money in the summer of 1895.”

The condition of the house before the marriage, and statements of Mr. Wilcox that he did not have money at that time to pay his taxes, and the fact that after his marriage the house was put in order and well furnished, was shown by other witnesses. Mr. Shefflers, who rented the farm, testified, among other things:

“ I had a talk with him about two weeks before he died. It was when they commenced talking I had the farm from him, and I made a bargain to rent the farm; and when the bargain was made they tell me not to work on Saturday. He tell me she would not like that. He said she paid so much money in the farm, and he like to pay her back so long as he live, and when he died the farm belong to the woman. He did not tell me how much money she had put in farm, but he would like to pay her back whát she put in.”

On cross-examination:

“Q. You say he did not state how much money he had of his wife ?
“A. No; he said she put so much out there he wants to pay her back sometime. He said the farm belonged to her when he died. He complained he was sickly.”

Mr. Conners testified:

Q. State whether or not you ever had any conversation with Mr. Wilcox relative to any money he intended to pay his wife.
“A. Well, we were once working together, and I guess I made the remark that his wife must have had quite a bit of money when he married her, and he made the remark, he said, ‘ Yes, but I will make it all right with her before I die.’ He said he knew that he was a little hard up at the time he married her. That was about two years ago this fall.”

Mrs. Wilcox was sworn as a witness. She testified that when she married Mr. Wilcox she had between $1,500 and $1,600. The following then occurred:

“Mr. Fitch: I wish to'ask now whether it is the intention of counsel to object to proof by this witness as to expenditures during the last sickness.
“Mr. Stockdale: Yes, sir.
“Mr. Fitch: I make the offer to prove by this witness the amount paid by this witness for medical attendance, nursing, washing, and other incidental expenses connected therewith during the last sickness of the deceased.
“Mr. Stockdale: I object on the same grounds. If anything was paid, it was equally within the knowledge of the deceased, and can’t be proved by this witness, but is open to proof by any other witnesses who had rendered their services, I should think, but hot by any other witness.”

The objection was sustained. No witnesses were sworn on the part of the defense. Counsel for defendant claimed there was no proof of items 3 and 4, and that as to items 1 and 2 the statute of limitations had run, and asked the court to direct a verdict in favor of the estate, which was done by the trial judge. The questions will be discussed in the order presented by counsel for claimant.

First. Should Mrs. Hunter have been allowed to answer the question: “Did he say anything about what was to be done with the property ? Did he say anything about his family ?” It will be observed there are two questions in the interrogatory. It would have been easy for counsel by other questions to obtain from the witness any information she had which was material and competent. We do not think the ruling was reversible error.

Second. Did the court err in excluding the testimony of Mrs. Wilcox when counsel offered to prove by her the amount paid by this witness for medical attendance, nursing, washing, and other incidental expenses connected therewith during the last sickness of deceased ? If any item of what was proposed to be proved by this witness was within the knowledge of the deceased, she could not testify in relation thereto, because of the statute. If, as to some of the items it was proposed to show by her, the deceased had no knowledge, then she would be a competent witness.

Third. The important question in the case is, Was the court right in holding as a matter of law that the statute of limitations had run, and in directing a verdict ? This question is discussed by claimants under two heads: First. It is asserted the statute does not run against the wife in favor of the husband; second, that the statute does not begin to run until a right of action accrues, and whether it had run or not presented a question for the jury — citing Sword v. Keith, 31 Mich. 247; also note 1 to above case and authorities therein cited; also note 2 in Mundy v. Foster, 31 Mich. 313; Winters v. De Turk, 7 L. R. A. 658, and notes (133 Pa. St. 359); Opp v. Wack, 52 Ark. 288 (5 L. R. A. 743); Evans v. Johnson, 39 W. Va. 299 (23 L. R. A. 737). An examination of the authorities shows a want of uniformity as to the first of these propositions. .In our view of the case, however, it is not necessary to pass upon this question. It must be remembered that the mouths of the parties who know just what the transaction was are closed, Mr. Wilcox’s by death, and the claimant’s by the statute; so it is difficult to show clearly just what the arrangement was. It does appear, however, by the testimony, that in 1895 the husband, who was poor, had at that date used about $1,000 of his wife’s money, and that the remaining portion of what she. had was being daily used to pay the living expenses of the family. It also appears that two years before the trial Mr. Wilcox realized his obligation to repay his wife. It is also shown that he recognized this duty as late as within two weeks of his death. We do not think it would be a fair inference to say that it was expected by this man and his wife that he would at once repay the money he had borrowed from her. On the contrary, such an inference would be unfair, because they both recognized he had nothing with which to make an immediate payment. It is not denied that he had this money. It is equally clear that when he got it he expected to repay it at some future time, and that his wife expected he would. The inference would not be farfetched from the testimony that he expected to repay it during his lifetime if he could earn it, and, if not, that it would be paid from his estate. In any event, we think that presented a question for the jury to pass upon.

Judgment is reversed, and a new trial ordered.

Carpenter, Grant, Blair, and Montgomery, JJ., concurred. ' -


author: Carpenter, J.

text:
    BROWN v. HARRIS.
    1. Harmless Error — Errors Cured by Verdict.
    Where the jury found for plaintiff in an action for goods sold, and in order to do so must have found either that the goods actually conformed to the contract of sale, or that defendant accepted them as conforming to the contract, error in rejecting evidence of defendant’s damages claimed for defects in the quality of the goods is immaterial.
    2. Sales — Payment of Prioe — Contract.
    Where a buyer accepts goods supplied on a contract he is bound to pay the contract price for them, and cannot limit the seller’s recovery to their actual value.
    3. Saving Questions for Review — Unresponsive Answer.
    A mere objection and exception to an unresponsive answer is ineffective to preserve a party’s rights. He should move to strike it out and object and except if his motion is denied.
    4. Witnesses — Cross-Examination—Restriotion.
    It is not error to restrict cross-examination where no reason for continuing it is apparent and counsel discloses none.
    5. Evidence — 1Objections—Striking Out Testimony — Harmless Error.
    Errors in rejecting and striking out testimony become harmless when the same witness is elsewhere permitted to testify to the same effect.
    6. Evidence — Best and Secondary Evidence.
    In an action on a contract for the sale of goods it is not error to limit examination of witnesses with respect to a variance between the order for the goods and the invoice, both of which are in evidence.
    7. Same — Presumptions—Receipt of.Letter Mailed.
    A request to charge on the presumption arising from proof of the deposit of a properly addressed and stamped letter in the mail is properly refused, where it is open to the construction of placing upon the addressee the burden of proving that it was not properly mailed.
    8. Principal and Agent —Notice to Agent — Conflict of Interests.
    Where, at the time an alleged notice that goods sued for did not conform to the contract was given to plaintiff’s agent, defendants knew that the agent was acting in antagonism to plaintifE, that he would disregard it, and not communicate it to plaintifE, such notice wás not notice to plaintifE.
    Error to Wayne; Erazer, J.
    Submitted February 7, 1905.
    (Docket No. 99.)
    Decided March 21, 1905.
    Assumpsit by Louis Brown against Saul Harris, Benjamin Harris, Joseph A. Zechman, and George D. Clark, copartners as Harris Bros. & Co., for goods sold and delivered. There was judgment for plaintiff, ahd defendants bring error.
    Affirmed.

      Adolph Sloman (Edmund M. Sloman, of counsel), for appellants.

      Bowen, Douglas, Whiting & Murfin, for appellee.
   Carpenter, J.

Plaintiff brought this suit in assumpisit to recover the contract price of certain cotton worsteds .alleged to have been sold to defendants. These worsteds were delivered in pursuance of an executory contract. It was contended by the plaintiff that they did in fact conform to the description in the contract; that defendants received them, and never notified plaintiff of any claim that they did not conform to the contract. On the other hand, defendants insist that the goods did not conform to the contract description; that they refused to accept them, and promptly notified plaintiff of this fact. This issue was submitted to a jury, who rendered a verdict in plaintiff’s favor. Defendants ask this court to reverse the judgment rendered on said verdict.

The jury must have found either that the goods actually conformed to the contract, or that defendants accepted ■ them as conforming to the contract. If no error of law was committed in reaching that conclusion (a subject which will receive attention later in this opinion), defendants were not, as they insist, injured by the exclusion of . testimony offered by them tending to prove the amount of their damages. Had the excluded testimony been admitted, it could not have affected the result, since it bore upon an issue which the jury did not consider. The error in excluding such testimony, if error it was, was not prejudicial. See Sterling v. City of Detroit, 134 Mich. 22; Scheel v. City of Detroit, 130 Mich. 51.

Nor was it error, as contended by defendants, for the trial court to refuse to charge that plaintiff’s recovery should be limited to the actual value of the goods delivered. Defendants, having accepted the goods, were bound to pay the contract price for them. See Talbot Paving Co. v. Gorman, 103 Mich. 403 (27 L. R. A. 96); Williams v. Robb, 104 Mich. 242. It is true, in Wolverton v. McCabe, 81 Mich. 265, we declined to reverse a judgment where the trial court had charged the jury that in a case like that before us the seller “ would be entitled to recover what the goods were actually worth.” That case was brought to this court by the purchaser, and it is an authority for the proposition that as to him the charge did not constitute reversible error. Indeed, it is clear from the reasoning of that opinion, and the cases upon which it is founded, that the charge was altogether too favorable to him; for in that case, as in this;- the goods were worth less than the contract price. Whether the seller had a right to insist on the contract price — and that is a question determined in the later cases and in this case — was not involved, and was not considered in that case.

We are asked to reverse the judgment because plaintiff on cross-examination made an irresponsive answer to a. question asked by defendants’ counsel. It appears from an examination of the record that defendants’ counsel, instead of asking the court to direct the witness to make his' answer responsive, chose to assume that the court was responsible in the first instance because the answer was not responsive. The exception under consideration is based upon that assumption. It is hardly necessary to say that that assumption is erroneous. Counsel should apply to' the trial judge if they desire him to direct a witness to make responsive answers. If this is not done, the law imposes no duty upon the judge to interfere.

It is claimed that the trial court “ erred in restricting defendants’ counsel in the cross-examination of plaintiff relative to the detaching and removing of a portion of the original order sent in.” On the cross-examination of plaintiff it appeared that his bookkeeper had detached and sent over to his lawyer a portion of the original order. This detached portion contained the terms of payment and of shipment. After defendants’ attorney had, on cross-examination of plaintiff, drawn out the foregoing facts, and the further fact that he did not remember when the detachment occurred, plaintiff’s counsel conceded the correctness of the duplicate in defendants’ possession, and objected to further cross-examination. Defendants’ counsel contented himself with saying, “ I have a right to examine about the way he did send it and the way he filled that order.” The court thereupon made a ruling, which it is contended by defendants prevented further cross-examination on the subject. If there was any reason for continuing this cross-examination, it is not apparent, and it did not occur to the trial judge. Under these circumstances he had a right to act on the reasons stated by defendants’ counsel. If the latter knew of any such reason, he did not state it. He merely insisted upon his “right to examine about the way he did send it and the way he filled the order.” This right he unquestionably had, and it was not affected by the ruling complained of.

One of the defendants testified that it was impossible for them to utilize certain small pieces of the worsted. The trial court struck out this testimony. This action was not prejudicial because later the same witness was permitted to testify “these goods that were shipped were absolutely worthless to us. ”

, One of plaintiff’s witnesses testified that in a garnishment suit an agent of defendants made a disclosure of indebtedness. He testified that he could not remember the exact amount of the disclosure. On cross-examination the court sustained an objection to this question: “ Didn’t you, during the trial there [the former trial in justice’s court], make some remark that you were not clear and definite as to what had been disclosed ?” Defendants were r not prejudiced by this ruling, for it already sufficiently appeared that the witness was not clear and definite as to what had been disclosed.

On cross-examination of one of plaintiff’s witnesses the following occurred:

“ Q. The bill that was sent here two off ten days ? (referring to the bill that plaintiff sent defendants for the goods in question).
‘ ‘ A. They were bought on sixty days, if I am not mistaken. A copy of the order will show.
‘ ‘ Plaintiff’s Counsel: That is admitted two or three times. I object to the endless repetition of propositions that are admitted.
The Court: There is no necessity for it, if you knew that order was admitted and conceded to be the order.
‘ ‘ Mr. Ploman: But as bearing upon the fact that in all things in this entire order it was absolutely disregarded, and a failure to comply with it.
The Court: That is an argument. You need not argue with the witness. I am going to give you time to argue with the jury.”

This was not erroneous. There was no occasion to inquire what was shown on the face of an order already in evidence. If the discrepancy between the order and the bill had any tendency to show that the goods furnished did not conform to the contract, that was, as the trial court said, a matter of argument.

The trial court refused to give the following requests preferred by defendants:

“ Defendants gave testimony tending to show that on or about the day of the receipt of the goods they notified the plaintiff by letter that the goods shipped were not the kind they ordered, and that this letter was enclosed in an envelope addressed to the plaintiff, postage prepaid, with a return stamp on the envelope, and was deposited by one of the defendants in the United States mail box for mailing. The presumption of law is that the letter was received by the plaintiff, and the burden is upon him to show that he did not receive the letter.”

This request was properly refused.. Its vice is this: It does not give the jury to understand, as it should, that the presumption that the letter was received depends upon defendants establishing by a preponderance of proof that they sent the letter. If this request had been given, the jury might easily have inferred that the burden rested upon the plaintiff to prove that he never received a letter which he had a right under this record to claim was never mailed. In other words, this request might, if given, have improperly transferred from defendants to plaintiff the burden of proving that the letter was mailed.

Defendants complain because the trial court did not charge:

“Whether he [plaintiff] received the letter or not, if you find from the evidence that the defendants notified plaintiff’s agent Goldstick, within the reasonable time I have spoken of, of the goods not being what was ordered, as the testimony tends to show on the part of the defendants, such notice has the same effect in law as if it were given to the plaintiff.”

According to the defendants’ testimony, at the time the notice was given to the agent Goldstick the latter was acting in antagonism to the plaintiff. Goldstick desired to have the goods left with defendants to enable him to collect from plaintiff his commissions, while — if the facts were as defendants testified — it was plaintiff’s duty to take them away. In other words, at the time this alleged notice was given, defendants knew that the agent would himself disregard it, and that he would not communicate it to his principal. It is scarcely necessary to say that such a notice was not a notice to the principal.

The record discloses no error. No other complaint demands discussion.

The judgment is affirmed, with costs.

Moore, C. J., andMcALVAY, Grant, and Blair, JJ., concurred.


text:
    COFFEE v. PERE MARQUETTE RAILROAD CO.
    1. Railroads — Injuries at Crossings — Obstruction of View-^ Contributory Negligence.
    ■Where, in an action for injuries at a railroad crossing, plaintiff heard the puffing of an engine before he started across the track, but, his view being obscured, he was advised by another, whose experience in railroading was, but whose opportunity for observation was not, superior to his own, that the puffing he heard proceeded from an engine on another track, whereupon plaintiff started to cross, he was not guilty of contributory negligence, as a matter of law, in not waiting until certain that the puffing was not from an engine approaching on defendant’s track.
    2. Same — Duty to Stop.
    Where plaintiff, approaching a.railroad crossing where his view was entirely obstructed, stopped, when only 30 feet from the track, until satisfied that it was safe to proceed, he was not guilty of contributory negligence, as a matter of law, in not stopping again, in addition to continuously listening, before driving on the track.
    3. Same — Inquiries of Others.
    Where plaintiff’s view of a railroad crossing was entirely obstructed by a building and a freight car, and, as he was about to cross the track, other men were standing in front of him, who were in a position to have seen the approaching engine by which plaintiff was struck, but they said nothing to warn plaintiff of his danger, he was not guilty of contributory negligence, as a matter of law, in failing to ask such persons whether it was safe to cross the track.
    Error to Kent; Wolcott, J.
    Submitted February 9, 1905.
    (Docket No. 114.)
    Decided March 21, 1905.
    Case by John Coffee against the Pere Marquette Railroad Company for personal injuries. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Frederick W. Stevens (Charles McPherson, of counsel), for appellant.

      Ward & Brown, for appellee.
   Carpenter, J.

Plaintiff received serious injuries as the result of a collision between his wagon and defendant’s locomotive. He brought this suit and recovered a judgment in the court below. Defendant asks us to reverse that judgment on this single ground, viz., that the trial court erred in not directing a verdict on the ground of plaintiff’s contributory negligence.

The facts are these: September 18, 1901, plaintiff delivered a load of freight at Metzger’s cold storage building, in the city of Grand Rapids, situated just west of Winter street. In driving from that building to Winter street, plaintiff had to cross two tracks of defendant, viz., a siding and a main track. The main track was situated within the limits of Winter street. While crossing the latter track, the collision which occasioned his injury occurred. In approaching said main track, plaintiff had to pass between two freight cars on said siding, situated about 10 feet apart. The cold storage building and the freight car on his north entirely obstructed plaintiff’s vision, and prevented his seeing the approaching locomotive, which was coming from the north, until he reached the main track. When plaintiff was about 30 feet from defendant’s track, he thought he heard the puffing of an engine. He stopped opposite the door of the cold storage warehouse to investigate. The noise ceased, and he was assured by Mr. Lemstra, an employé of the cold storage company, whose experience about railroads was, but whose opportunity for observation was not, superior to his own, that the engine yvas on another track, and that there was no danger. He started on, listening as he proceeded, and met an acquaintance — a Mr. O’Leary — who had just walked across defendant’s track without seeing the approaching engine. Plaintiff merely said, “Good morning,” and passed on, confirmed in his belief that the passage was safe. When nearer defendant’s track, plaintiff saw some persons standing in front of him on Winter street. These men were in such a position that they could have seen the approaching engine. They said nothing to plaintiff, and he made no inquiries of them, but their silence confirmed his belief that it was safe to cross. Passing on, he did not observe the locomotive which injured him until his horses were on the main track.

Defendant contends that plaintiff was, as a matter of law, guilty of contributory negligence, for three reasons:

First. After hearing the engine puffing, he should have waited long enough to make sure that it was not approaching on defendant’s track.
Second. He should have stopped, as well as listened, in moving from this point to the place where the collision occurred.
Third. Plaintiff should have inquired of the persons he saw in Winter street, whose view of the approaching engine was unobstructed, to learn if he might safely drive across the track.”

We will consider each of these reasons.

1. Defendant’s contention that plaintiff, after hearing the engine puffing, should have waited until certain that it was not approaching on defendant’s track, assumes that the puffing heard by plaintiff proceeded from the engine which occasioned his injury. The record, which the trial judge certifies “contains all the testimony given upon said trial which in any manner affects the exceptions therein noted,” contains no positive testimony tending to prove that assumption. While the jury might have inferred that the puffing heard by plaintiff proceeded from the engine which collided with him, that inference was by no means a necessary one. They might have believed, as Lemstra induced plaintiff to believe, that this puffing proceeded from an engine on another road. Since, for the purposes of this question, we must adopt that view of the facts most favorable to plaintiff, we cannot assume that this puffing proceeded from the engine which later collided with his wagon. This disposes of -defendant’s claim under present consideration, for surely no one will claim that plaintiff was negligent in crossing defendant’s track because an engine was moving on an altogether different track.

2. When plaintiff was only 30 feet away from defendant’s track, he stopped until satisfied that it was safe to proceed. Defendant’s contention that, as he approached the track, plaintiff was bound to .stop again, as well as to listen, finds support in no decision of this court. We cannot say, as a matter of law, that a reasonably prudent man, with nothing to excite his apprehension, would not have relied, as plaintiff did, on his sense of hearing. Whether or not he should have stopped again was a question properly submitted to the jury. See Guggenheim v. Railway Co., 66 Mich. 150.

3. Neither do we think that plaintiff was negligent because he did not ask the men standing on the opposite side of the track whether it was safe to cross. An ordinarily prudent person might assume, as it is to be inferred from his testimony plaintiff did assume, that, if those men knew he was putting himself directly in the path of a rapidly moving locomotive, the instinct common to humanity would lead them to warn him of his danger. We conclude, therefore, that the court did not err in leaving the question of plaintiff’s contributory negligence to the jury.

Judgment is affirmed, with costs.

Moore, O. J., and McAlvay, Grant, and Blair, JJ., concurred.


text:
    HARRIS v. BRANDENBURG.
    Specific Performance — Land Contract — Sufficiency' op Eve denoe.
    On a bill for specific performance of a contract for the sale of land, defended on the ground of fraud in obtaining defendant’s signature to the contract, evidence examined and held, sufficient to support the decree for complainant.
    Appeal from Wayne; Frazer, J.
    Submitted February 9, 1905.
    (Docket No. 119.)
    Decided March 21, 1905.
    Bill by Albert M. Harris against Christina Brandenburg for the specific performance of a land contract. From a decree for complainant, defendant appeals.
    Affirmed.

      Charles Flowers, for complainant.

      Haug & Yerkes, for defendant.
   Carpenter, J.

This suit was commenced in chancery to enforce the specific performance of a written contract, signed by the above parties, by which defendant' agreed to convey certain lands to complainant. The single issue in this case is whether defendant’s signature to the contract was obtained by fraud. The learned trial judge determined this issue in favor of complainant on conflicting testimony taken in open court. Defendant appeals to this court.

The sole controversy is one of fact, and its correct determination depends upon the credibility of witnesses. It is sufficient to say that we think it was correctly decided.

The decree appealed from is affirmed, with costs.

Moore, C. J., and McAlvay, Grant, and Hooker, JJ., concurred.


author: McAlvay, J.

text:
    GEORGE D. SISSON LUMBER & SHINGLE CO. v. HAAK.
    Sales — Acceptance op Goods — Evidence—Sufficiency.
    Circumstances attending a sale and delivery of shingles examined, and held, that by receiving and unloading them into his yard and selling from them and'making no claim for defects until nearly a month after their receipt, the buyer accepted them and could not thereafter claim that they were not of the quality ordered.
    Error to Calhoun; Hopkins, J.
    Submitted February 9, 1905.
    (Docket No. 121.)
    Decided March 21, 1905.
    Assumpsit by the George D. Sisson Lumber & Shingle Company against Harry K. Haak for goods sold and delivered. There was judgment for plaintiff on verdict directed by the court, and defendant brings error.
    Affirmed.

      J. M. & J. L. Powers, for appellant.,
    O. S. Clark, for appellee.
   McAlvay, J.

Plaintiff, an Indiana corporation, brought suit against defendant, a dealer in lumber and shingles at Battle Creek, Calhoun county, for the price and value of a car load of shingles sold by plaintiff to defendant under the following circumstances: A letter was sent by defendant to plaintiff on July 13, 1903:

11 Gentlemen: Will you please quote me prices on extra red cedar shingles 5/3. An early reply will be' greatly appreciated. In case you get the order, how soon can you have the car here ?
“H. K. Haak.”

July 18th plaintiff replied by telegram:

“To H. K. Haak,
“Battle Creek, Mich.:
“Clears $3.35 transit car wire acceptance immediately.”

To this telegram plaintiff replied:

“ Send one car shingles.”

The car in transit from the Pacific Coast was reconsigned to defendant by plaintiff, who surrendered the bill of lading to the railroad company, and sent invoice to defendant. Plaintiff ordered these shingles through the Bolcom Lumber Company of Winona, Minn. The transfer was made at Minneapolis. The shingles were sold f. o. b. at Battle Creek. The invoice amounted to $724.75. The shingles arrived at Battle Creek September 9th, and defendant paid $274.77 freight, and soon after they were delivered at his yard and unloaded by his employés.

There is no dispute as to the facts up to this point. The parties do not agree as to what occurred later. Plaintiff claims that defendant never notified it of the receipt of the shingles; that several letters were written to defendant, to which he made no reply; that a draft for the invoice was made upon him, and the letter of November 25th was the first heard from him after the shingles arrived:

“Battle Creek, Mich., Nov. 25, 1903.
“ George D. Sisson L. & S. Co.
Gentlemen: I have just received notice through the
National Bank of this city that they have your sight draft for $734.40. Do not understand why you draw for this amount. Your invoice is $724.75; the freight on this is $274.77. Will you kindly explain why you made draft for $734.40. If there is any reason why I should pay this amount, I will do so, but at present do not understand it.
“ Yours truly,
“Harry K. Haak.”

Defendant gave notice under his plea that the shingles were ordered July 18, under an express agreement to be delivered within 30 days; that they were not delivered until September 9th, and were not clear shingles, but were rotten, defective, and poorly manufactured. Defendant, upon trial, offered to show that he wrote plaintiff two letters, dated October 3 and October 31, 1903, claiming that the shingles were poor, and asking for a reduction. He also offered to show the poor quality of the shingles received by him. The trial court finally excluded the proof offered by the defendant, and instructed the jury to find for the plaintiff the amount of the invoice, less freight paid.

Upon the undisputed facts in this case, we do not find that there was any error. The shingles were received by defendant September 9th, and unloaded into his yard. He had ample opportunity to inspect them. He began at once to sell them out of the yard, and, according to his own testimony, no claim was made as to the shingles until October 3d, and, according to plaintiff’s claim, not until November 25th. The law is well settled that in sales of this nature the consignee must act promptly after opportunity is given to inspect the goods, and reject them within a reasonable time. The two letters claimed to have been written by defendant, about which there was a serious dispute, do not reject the shingles, but claim they are not up to grade, and ask for a reduction. The letter of November 25th, about which there is no dispute, refers in no way to the quality of the shingles, but simply to the fact that the draft on defendant was not correct in amount. The conduct of defendant after receipt of the shingles amounted to an acceptance. The judge properly instructed a verdict for plaintiff.

Judgment is affirmed.

■ Moore, O. J., and Carpenter, Grant, and Hooker, JJ., concurred.


author: Hooker, J.

text:
    McDONELL v. UNION TRUST CO.
    Saving Questions for Review — Case Tried to Court — Request for Findings.
    Where, in a case tried to the court, without a jury, there are no findings of fact or law, the sufficiency of the evidence to support the judgment cannot be reviewed.
    Error to Kent; Perkins, J.
    Submitted February 9, 1905.
    (Docket No. 127.)
    Decided March 21, 1905.
    Garnishment proceedings by Archibald McDonell and Patrick W. O’Connor, copartners as McDonell Bros. & Company, against the Union Trust Company as garnishee defendant of the Traverse City, Leelanau & Manistique Railroad Company. There was judgment for plaintiffs, and the garnishee defendant brings error.
    Affirmed.

      Russel & Campbell, for appellant.

      J. Byron Judkins, for appellees.

      William IF. McKnight, for principal defendant.
   Hooker, J.

An insuperable objection to the review of the questions discussed in this cause is the want óf findings of fact or law. We have often held that in such cases we cannot examine the testimony to see whether it supports the judgment. Van Middlesworth v. Van Middlesworth, 32 Mich. 183; Plumer v. Abbey, 39 Mich. 167; Hedges v. Hibbard, 46 Mich. 551; Green v. Gill, 47 Mich. 86; Wertin v. Crocker, 47 Mich. 642; Irwin v. Schlief, 48 Mich. 237; Morgan v. Botsford, 82 Mich. 153; Haines v. Saviers, 93 Mich. 440; Child v. City of Jackson, 93 Mich. 503; Merrill v. Newton, 99 Mich. 229; Gemberling v. Lazarus, 100 Mich. 324; In re Buchan’s Estate, 100 Mich. 219; Barnum v. Andrews, 106 Mich. 81; Robson v. Dayton, 111 Mich. 440; Laird v. Coach, 112 Mich. 628; Hubbard v. Garner, 115 Mich. 406; Goulet v. Perry, 123 Mich. 264; Wickes v. Pulfrey, 131 Mich. 407.

The case of O'Brien v. Evans, 107 Mich. 625, appears to be a relaxation of this rule. In that case there was no finding of facts. A motion for judgment upon specific grounds was made, however, and an exception follows the charge which disregarded the motion, and was, in effect, a denial of the motion. It may be doubtful if this should have been treated as a ruling made upon the introduction of evidence, or as a denial of a request for specific findings, as it apparently was; but the question was not raised by counsel, and was not considered.

We have no alternative but to affirm the judgment, and it is so ordered.

Moore, C. J., and McAlvay, Grant, and Montgomery, JJ., concurred.


text:
    REYNOLDS v. CAVANAGH.
    1. Assignments — Judgment—Conversion—Action on the Case.
    Where the proceeds of a judgment were not converted by defendants until after the judgment had been assigned by the judgment creditor to plaintiff, an objection by defendants that the action on the case for its conversion is not assignable is without merit.
    2. Wrongful Conversion — Law Partners — Dissolution of Partnership — Time.
    Where attorneys, who had been law partners, were sued for the wrongful conversion of a judgment recovered by them during their partnership, and they defend on the giound that they held a lien on the judgment for their services and that all over their lien has been tendered, the date of the dissolution of the partnership with reference to the time of collecting the judgment and disposing of its proceeds is immaterial.

      3. Verdict — Entry—Clerical Error — Correction.
    The entry of the verdict in form as in assumpsit in an action on the case, being a clerical error, may be corrected at the next term.
    Error to Calhoun; Winsor, J.
    Submitted February 10, 1905.
    (Docket No. 138.)
    Decided March 21, 1905.
    Case by Eliza Reynolds against Howard W. Cavanagh and Charles R. Mains for wrongfully converting a judgment. There was judgment for plaintiff, and defendant Cavanagh brings error'.
    Affirmed.

      Howard W. Cavanagh (John Patterson, of counsel), for appellant.

      L. B. Tompkins and W. 8. Powers, for appellee.
   McAlvay, J.

Defendants were attorneys at law, and as such were employed by plaintiff’s assignor, Alice Mason, to prosecute a certain claim against one Wakelee. Suit was brought by these attorneys, and a judgment recovered against George Howes, trustee of said Wakelee, for $500 damages and costs of suit. That case was appealed to this court by defendant, and judgment affirmed. Mason v. Howes, 122 Mich. 329. It is admitted that this judgment and costs, amounting to $651.52, was after-wards paid in full; $147.74 being paid on the order of this plaintiff, and the balance, $503.78, was paid to defendant Cavanagh, who turned it over to defendant Mains.

Plaintiff is the sister of said Alice Mason, and had loaned her $500, taking as security therefor an assignment of the said judgment against George E. Howes, trustee of Clement Wakelee. After demand in writing for the amount claimed, she brought this suit against both Mains and Cavanagh. Plaintiff claimed that she was present when Mrs. Mason made an agreement with defendant Mains to take the case for $50. Defendants claim that they took the case on an agreement that they were to receive 50 per cent, of the judgment. This is the principal dispute as far as the facts are concerned.

The action is trespass on the case and the declaration is in four counts. At the close of plaintiff’s case defend•ant Cavanagh moved for judgment for defendants, for the reason that the declaration is in trover, and under the proofs no recovery could be had. This motion was denied, but renewed again at the close of the case. The ■court held the motion good as to three counts, and submitted the case to the jury; the fourth count being held good as a declaration in an action of trespass on the case. Defendant Cavanagh further moved for a judgment on the ground that the fourth count in the declaration is in trespass on the case, and such action is not assignable. This motion was denied. Three counts of the declaration were in trover, the fourth in trespass on the case.

This plaintiff was the bona .fide assignee for value of this judgment obtained against Howes, trustee of Wakelee. The first assignment was made September 29, 1898, the day after the judgment was obtained; and the other February 23, 1900. The first assignment was drawn by the defendants with full knowledge of the transaction', and is in the handwriting of one of them. This judgment belonged by assignment to the plaintiff in this suit at the time it was paid to defendants, and they received plaintiff’s money. If it has been wrongfully withheld, the injury has been done to plaintiff. No assignment of any right of action in tort has ever been made, and no right of action has been assigned since the right of action accrued in this. case. Plaintiff’s assignor never had any right of action against these defendants. . No money came into their hands until after she had sold the judgment to the plaintiff, who took subject to the equities between the parties. There was no error in refusing these motions. The fourth count of the declaration sufficiently stated a case, and the question of assignment of a right of action in tort was not in the case.

The jury found a verdict generally against both defendants, and specially, in answer to a question by defendant Cavanagh, that the assignment of the judgment to plaintiff occurred after January 9, 1900. It is claimed that this special verdict is inconsistent with the general verdict, which should, for that reason, have been set aside by the trial court.

The law partnership between defendants expired about January 1,1900. This date was not material to this issue. Both defendants claimed a lien upon this fund by reason of services rendered as attorneys, and there was no dispute in the case but that they were entitled to receive something, the amount depending upon what was found to be the agreement for services; and this plaintiff, having bought the judgment subject to defendants’ charges for services, must allow whatever is found to be due them. The testimony without dispute shows that defendant Cavanagh, as attorney for plaintiff, collected and receipted for this judgment January 9, 1900, that this was in a case where Mains and Cavanagh had been attorneys of record, and had performed the services for which they claim a lien should be given in this suit; that Cavanagh turned' this money over to Mains; and both these defendants, by their pleas, claim that the money is simply held subject to said lien.

These defendants appeared separately, and each gave a notice with his plea of the general issue; Cavanagh claiming that he paid over this money to Mains at the request of plaintiff and Mrs. Mason, which was considered a full release as to him, and, further, that they did so claiming’ they could settle with Mains, as Cavanagh did not understand the arrangement; also that the partnership was dissolved before that date; also that he claimed an attorney’s lien on this fund, and that all balance has been tendered to plaintiff. Defendant Mains, in his notice, denied that plaintiff had any right to the proceeds of the judgment, as the assignment to her was for the purpose of defrauding creditors of Alice Mason; that the suit was to blackmail defendant, and defeat his just dues as attorney; that the money is held by him for both defendants by reason of a lien for their services and advances., Upon this trial Mains did not appear. Defendant Cavanagh defended for himself alone. Under the issue as framed by the defendants, the date of the dissolution of the partnership was immaterial. All of the questions properly raised by these notices were considered by the court in submitting the case to the jury, as favorably to the defendants as the testimony would warrant. The jury found for plaintiff upon evidence warranting such finding.

The verdict was entered in form as in assumpsit. On motion of plaintiff this was at the next term of court corrected, and a judgment was then entered in due form upon the corrected verdict. Error is assigned as to this correction. The court was not in error. This was a clerical error, and it was properly corrected, on motion duly noticed, to accord with the facts.

The motion for a new trial was based upon the claimed errors already considered. The court did not err in denying said motion.

The judgment is affirmed.

Carpenter, Grant, Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    GARRISON v. UNION TRUST CO.
    1. Banks and Banking — Collections — General Balance — Lien.
    A bank has a lien on the proceeds of a draft sent to it by a correspondent for collection for the general balance of its account with the correspondent unless it has notice that the draft is not the property of the correspondent.
    3. Same — Lien—Assertion Against Owner.
    A general indorsement on a draft sent for collection conveys an apparent title to the bank to which it is sent, and on that bank’s sending it to another, which actually makes the collection, entitles the last-named bank to a lien on the proceeds for its general balance with the intermediate bank, though the first-named bank is in fact the owner.
    3. Same — Notice.
    Where a draft bears a general indorsement apparently transferring title to a bank, the fact that the bank indorses a collection number upon it does not put a correspondent bank upon notice that it is held for collection merely.
    4. Same — Disobedience of Instructions.
    Where a sight draft drawn against a car of grain in transit is accompanied by instructions to “return at once if not paid,” and the bank to which it is sent, following an established custom, holds it until the car arrives, when it is paid in full, the bank does not, by so doing, forfeit its right to a lien on the proceeds for its general balance with the forwarding bank.
    Appeal from Wayne; Donovan, J.
    Submitted January 17,1905.
    (Docket No. 58.)
    Decided March 21, 1905.
    Petition by William D. Garrison and Arthur Garrison, doing business under the name of Exchange Bank, against the Union Trust Company, receiver of the City Savings Bank of Detroit, for the return of a deposit made after the insolvency of defendant bank. The State Bank of Carson City also filed a petition praying for the return of a draft sent for collection. The petitions were heard as one, and from the order entered the Garrisons appeal.
    Reversed.

      Angelí, Boynton, McMillan & Bodman, for petitioners Garrison.

      Thomas A. E. Weadock, for petitioner Carson City Bank.

      Bowen, Douglas, Whiting & Murfin, for defendant.
   Blair, J.

On January 30, 1902, the State Bank of Carson City sent to the City Savings Bank a sight draft drawn by the Rockafellow Grain Company, Limited, upon the Vernon Milling Company, at Vernon, Mich. The form of the draft was as follows:

“ $467.50. Carson City, Mich., Jany 29, 1902.
“For car No. 20714, at sight, pay to the order of E. C. Cummings, Cash’r, four hundred sixty-seven and 50 /100 Dollars.
“ Value received, and charge the same to account of “The Rockafellow Grain Co., Ltd.
“ Per F. A. Rockafellow, Mgr. “To Vernon Milling Co.
“No. 123 Vernon, Mich.
“Rockafellow Grain Co., Ltd.”

On a perforated stub, the following:

“No protest. Take this off before presenting. If not paid, return without delay and state reasons given.”

When this draft was received by the City Savings Bank, it bore the following indorsement:

“Pay City Savings Bank, Detroit, or order.
“State Savings Bank of Carson City, “Carson City, Mich. E. C. Cummings, Cashier.”

With the draft came a letter from the Carson City bank, of which the following only is important:

“ Carson City, Mich., Jan. 30, 1902.
“City Savings Bank,
“Detroit, Mich. .
Gentlemen: I enclose for credit,
[here follow several items.]
“For col., credit and advice,
“No; 123, Rockafellow Gr. Co. on Vernon Mill- . ing Co. ...................................$467 50
“No Protest.
“Yours truly,
[Signed] “ Ira Cummings, Ass’t Cash.”

The difference between the manner in which items were treated when sent “for credit,” and when sent “for col. [collection] credit and advice,” was as follows: Items sent “for credit ” were items drawn on other banks, and were credited by the City Savings Bank as soon as received. If they were not paid, the Carson City bank would be charged back with the amount. Items sent for “collection, credit and advice ” were forwarded to some bank where the collection was to be made, and they were not passed to the credit of the Carson City bank until the collection had actually been made, at which time the Carson City bank would be credited and advised thereof.

On receiving this draft, the City Savings Bank marked upon its back: “ Pay to the order of any S tate or National bank. City Savings Bank, Detroit, Mich. H. R. Andrews, Cashier ” — and on its face, with a rubber stamp: “ City Savings Bank. Collection, No. 4627, Detroit, Mich*”

The City Savings Bank then sent the draft to Wm. D. & Arthur Garrison, at Vernon, with the following letter:

“City Savings Bank.
“Detroit, Mich., 1/31, 190 “W. D. & A. Garrison, Esq., Cashier.
“Vernon.
‘ ‘ Dear Sir:
“I enclose for collection, and Cr.
Please Report by Number. Kindly follow instructions below.
4627 No Pro........................$467 50
C. C. No. 2123.
Protest all items unless otherwise instructed. Advise payment promptly and return at once if not paid. When unpaid, give reason.
“ Respectfully yours,
“EL R. Andrews,
“Cashier.”

The draft was paid February 8th. The reason why it was held was because the car of grain against which the paper was drawn had not arrived. On the same day, February 8th, the Garrisons credited on their books the account of the City Savings Bank with the amount of the collection, and sent to the City Savings Bank notice of this credit as follows:

“Vernon, Mich., Feby. 8/02.
“We credit your acc’t with No. 4627, $467.50.
“W. D. & A. Garrison, C. S.”

This notice was written upon the letter of the City Savings Bank of January 31st, which was returned to the City Savings Bank; reaching Detroit at the opening of the bank, Monday, February 10th, at which time the bank had ceased to do business, and was in the hands of the banking commissioner. Under authority of the banking commissioner, the Garrisons were charged with the amount of the collection, and “State Special Account” was credited with the same amount for the account of the State Bank of Carson City. After this credit was made, the Carson City bank was notified as follows:

“City Savings Bank,
“ Detroit, Mich.
“ Detroit, 2/10. '
“ Your favor of the-instant received with stated enclosures.
Your No. or date We credit • For collection.”
123 ' $467 50

On February 8th, at the close of business, the account of the Garrison bank with the City Savings Bank showed a credit balance of $1,378.13. This includes a deposit of $707.05 made on that day. The Garrisons had for a number of years carried a balance at the City Savings Bank, and for 12 or 15 years had been making collections for the City Savings Bank in the same manner as done in this case; crediting the proceeds of such collections to the City Savings Bank against such balance on a running account existing between them. The Garrisons had no knowledge of the relation which the City Savings Bank bore to the draft in question, except so far as was disclosed by the indorsement on the back thereof, by the rubber stamp on the face thereof, and the letter of instructions sent to them by said bank, and did not know, if such was the fact, that the paper was the property of the Carson City bank, and had only been turned over to the bank for collection.

The City Savings Bank was the correspondent of the Carson City bank, and they had been doing business with each other for some time. There was a running account between the two banks, and there were no remittances of cash, but the course of their dealings was entirely a matter of debit and credit. This was also the case with the bank of the Garrisons.

On the 12th day of February, 1902, the Union Trust Company was appointed by the court receiver of the City Savings Bank, and on March 4th following an order was made directing said receiver to return to depositors all deposits made on the 8th day of February, 1902. Upon demand being made by the Garrisons for the repayment of their deposit of $707.05, the receiver refused to comply therewith, except after deducting the amount of the collection of $467.50. Thereupon the Garrisons filed their petition, praying for an order directing the receiver to refund the amount of their said deposit. The Carson City bank also filed a petition, alleging that the City Savings Bank received the proceeds of its draft above set forth on February 10, 1902, while insolvent, and praying for an order directing the payment to it of the sum of $467.50, with interest. The respondent, the Union Trust Company, receiver, answered the petitions, seeking the instruction of the court, and asking that the petitions be consolidated and heard as one, and they were so heard. After hearing the proofs the court entered an order directing the payment of $467.50 to the Carson City bank, and the payment to the Garrisons of $239.55, being the amount of their deposit of $707.05, less the amount of said collection of $467.50. From this order the Garrisons'appeal.

After the order on these petitions had been entered, no-, tice of appeal given, bond on appeal filed, and the proposed case on appeal prepared and served and presented for signature, counsel for the Carson City bank sought to have the order set aside, and to introduce proof of the insolvency of the City Savings Bank for a period of sis months prior to the 8th day of February, 1902. This application was denied.

Counsel for the Garrison bank contend that, under the circumstances of this case, that bank had a lien upon the proceeds of the draft of $467.50 to secure the payment of its balance against the City Savings Bank; that the Carson City bank was merely a general creditor of the City Savings Bank as to the proceeds of the draft, and, as such, not entitled to a specific return of the amount collected; and that in any event the acceptance of the Garrison bank’s deposit on February 8th of $707.05 was a fraud, from which no rights could accrue to the City Savings Bank.

The briefs filed on the part of the Carson City bank and of the Union Trust Company, receiver of the City Savings Bank, take the position, first, that the words appearing upon the face of the draft, viz., ‘ ‘ City Savings Bank. Collection No. 4627, Detroit, Mich.,” were notice to the Garrison bank that the City Savings Bank was acting as agent for collection, and not as owner of the draft; second, that the Garrison bank disobeyed the positive instructions that, if the draft was not paid promptly,, it should be returned at once to the City Savings Bank.

In Gibbons v. Hecox, 105 Mich. 509, 513, Mr. Justice Long, speaking for the court, said:

“The general rule derived from the cases is that the bank has a lien on all moneys, notes, and funds of a customer in its possession, for any indebtedness of the customer to the bank which is due and unpaid. The reason given for allowing the lien is that any credit which a bank gives by discounting notes or allowing an overdraft to be made is given on the faith that money or securities sufficient to pay the debt will come into the possession of the bank in the due course of future transactions. In Re Farnsworth, 5 Biss. (U. S.) 223, Judge Blodgett, of the XJnited States circuit court of Illinois, held that a bank holding a customer’s demand note has a lien upon the proceeds of drafts delivered to it for collection after the giving of the note, though collected after the filing of petition in bankruptcy, and can apply such proceeds upon the note. In Muench v. Valley Nat. Bank, 11 Mo. App. 144, the court say:
“ ‘ The general lien of bankers is part of the law merchant. That bankers have a lien on all money and funds of a depositor in their possession for the balance of the general account is undisputed. A banker’s lien does not arise on securities deposited with him for a special purpose; otherwise we have no doubt that when a discount has been made by the bank, and the note has matured, so as to create an indebtedness from the depositor to the bank, all funds of the depositor which the bank has at the date of the maturity of the discounted note, or which it afterward acquires in the course of business with him, may be applied to the discharge of his indebtedness to the bank; and this is true not only of the general deposit of the customer,, but the rule applies to any commercial paper belonging to the depositor in his own right, and placed by him with the bank for collection.’ ”

See, also, 1 Morse on Banks and Banking (4th Ed.), §§ 324, 338; Cockrill v. Joyce, 62 Ark. 216. In the case last cited the paper was deposited for collection and credit. The court say:

“The law on this subject is well settled, and is thus stated by a recent writer:
“ ‘A banker has a lien on all securities-of his debtor in his hands for the general balance of his account, unless such a lien is inconsistent with the actual or presumed intention of the parties. The lien attaches to notes and bills and other business paper which the customer has intrusted to the bank for collection, as well, as to his general deposit account, * * * And so, if the securities be deposited after the credit was given, the hanker has a lien for his general balance of account, unless there be an express contract or circumstances that show an implied contract inconsistent with such lien.’ 1 Jones, Liens (2d Ed.), § 244.”

We find no circumstances here to take the case out of the general rule, but, on the contrary, the circumstances clearly entitled the Garrison bank to a lien upon the proceeds of the draft, as against the City Savings Bank, unless it had notice that the latter bank was merely an agent for collection or had disobeyed its instructions, as contended by the receiver, which we shall discuss later on.

The important question, however, remains — whether the Garrison bank was entitled to a lien on the proceeds of the draft as against the Carson City bank, the owner of the draft. We think that, under the circumstances disclosed by this record, it was. The State Bank of Carson City indorsed the draft over' generally — “Pay City Savings Bank, Detroit, or order” — which constituted prima facie evidence of ownership of the draft by the City Savings Bank. The instructions sent by the latter bank to the Garrison, that the draft was inclosed “ for collection and credit ” did not, in view of the unbroken course of dealing between the banks, impugn their apparent title. Cody v. City Nat. Bank, 55 Mich. 379.

Although the proceeds of the draft were not to be credited to the Carson City bank until collected, it never was contemplated that the money, when collected, should be remitted to the Carson City bank. The instructions were •explicit that, when collected, the proceeds should be credited to the transmitting bank. The Carson City bank had no thought of the proceeds of the collection forming a special fund to be held for it, but intended to rely in this instance, as it had in all its past transactions, upon the credit of the City Savings Bank, and its financial responsibility. ’ As testified by Mr. Fuehrer, who was with the City Savings Bank at the time of the transactions in question:

“The State Bank of Carson City and the City Savings Bank had been doing business for some time. The City Savings Bank was the correspondent of the Carson City bank. The manner in which this draft came to the City Savings Bank was not unusual in any way. It came in the customary way. * * * There was a running account, as it were, between the State Bank of Carson City and the City Savings Bank. That is true, also, as between the City Savings Bank and the bank of W. D. & A. Garrison, at Vernon. There were debits and credits on the books of each of them — I mean the City Savings Bank books and the Carson City bank books.
“ Q. I suppose there would also be actual remittances of cash or was it all a matter of debit and credit ?
“A. All a matter of debit and credit. That was true, also, as between the City Savings Bank and the Garrison bank.”-

Under such circumstances, if the collection had been credited and reported to the City Savings Bank by the Garrison bank, and to the Carson City bank by the City Savings Bank, while solvent, the right of the Garrison bank to retain the proceeds of the collection would be unquestionable, under the arrangement between the respective banks. Must the Garrison bank lose its lien because the City Savings Bank had closed its doors when notice of the collection reached it ?

Although the rule is well established that, when a bank acts as agent for the collection of paper, the property does not pass from -the depositor, it is equally well settled that, when the money has been collected and credited, the title passes. Wallace v. Stone, 107 Mich. 190.

In Commercial Bank v. Armstrong, 148 U. S. 50, Mr. Justice Brewer, speaking for the court, said:

“We also agree with the circuit court in its conclusions as to those moneys collected by subagents to whom the Fidelity was indebted, and which collections had been credited by the subagents upon the debts of the Fidelity to them, before its insolvency was disclosed, for there the moneys had practically passed into the hands of the Fidelity — the collection had been fully completed. It was not a mere matter of bookkeeping between the Fidelity and its agents. It was the same as though the money had actually reached the vaults of the Fidelity. It was a completed transaction between it and its subagents, and nothing was left but the settlement between the Fidelity and the principal — the plaintiff. The conclusions of the circuit court were based upon the idea that these collections could not be traced, because they had passed into the general fund of the bank. We think, however, a more satisfactory reason is found in the fact that, by the terms of the arrangement between the plaintiff and the Fidelity, the relation of debtor and creditor was created when the collections were fully made.”

Under this high authority, the Garrison bank, having collected the draft without knowledge of the insolvency of the City Savings Bank, and having given that bank credit for the amount thereof, stood in precisely the same position as though it had actually transmitted the money to the bank.

Mr. Morse, in his work upon Banks & Banking (4th Ed.), §§ 591, 592, discussing the question “when a correspondent bank can hold paper sent to it for collection, or the proceeds of it, against the real owner,” says:

Sec. 591. When the last bank has successfully effected the collection, it is directly liable to the owner to pay the amount over to him only until such time as it has actually remitted the amount to its predecessor. But some nice questions have arisen where such predecessor, intervening between the real owner of the paper and the bank actually receiving the money, becomes insolvent before the receiving bank has actually paid over the amount to this predecessor. The general rule of law is that, if a person employs an agent to collect money under such circumstances that the agent naturally employs a subagent to accomplish the actual collection, then the principal will be entitled to sue the subagent, and collect the money directly from him, without regard to the relationship or condition of accounts existing between such agent and subagent, and although the subagent had no knowledge that his employer was an agent, and not a principal. But if the owner has delivered the paper to the agent, with no indicia whatsoever to show that such agent is not the owner, and the subagent receives it from the agent, supposing him to be the owner, and gives him credit upon the strength thereof, then the principal cannot recover from the sub-agent. * * *
“Sec. 592. The leading case illustrative of this principle is that of The Bank of the Metropolis v. New England Bank (1 How. [U. S. ] 234, 6 How. [U. S.] 212). The latter gave to the Bank of the Commonwealth for collection a piece of negotiable paper indorsed generally, so that, for all that appeared upon it, the Bank of the Commonwealth might be the sole and real owner. The Bank of the Commonwealth forwarded it to its correspondent, the Bank of the Metropolis, with which it had a running account. That bank collected it, and gave the Bank of the Commonwealth credit for it upon the running account. The Bank of the Commonwealth failed, being indebted to the Bank of the Metropolis, and soon afterward the Bank of the Metropolis was notified of the true ownership of this piece of paper. The latter refused, however, to account to the New England Bank, which accordingly brought suit. The case is first reported in 1 How. (U. S.) 234; but at a second trial at nisi prius in the lower court the rulings of the Supreme Court appeared to have been so misunderstood that the court reiterated them with much clearness and succinctness, in the following shape:
“1. If, upon the whole evidence before them, the jury should find that the Bank of the Metropolis, at the time of the mutual dealings between them, had notice that the Commonwealth Bank had no interest in the bills and notes in question, and that it transmitted them for collection, merely, as an agent, then the Bank of the Metropolis was not entitled -to retain the money, as against the New England Bank, for the general balance of the account with the Commonwealth Bank.
“2. And if the Bank of the Metropolis had not notice that the Commonwealth Bank was merely an agent, but regarded and treated it as the owner of the paper transmitted, yet the Bank of the Metropolis is not entitled to retain against the real owners, unless credit was given to the Commonwealth Bank, or balances suffered to remain in its hands to be met by the negotiable paper transmitted, or expected to be transmitted, in the usual course of the dealings between the two banks.
“3. But if the jury find that, in the dealings mentioned in the testimony, the Bank of the Metropolis regarded and treated the Commonwealth Bank as the owner of the negotiable paper which it transmitted for collection, and had no notice to the contrary, and, upon the credit of such remittances made or anticipated in the usual course of dealing between them, balances were from time to time suffered to remain in the hands of the Commonwealth Bank, to be met by the proceeds of such negotiable paper, then the plaintiff in error (the Bank of the Metropolis) is entitled to retain against the defendant in error (the New England Bank) for the balance of account due from the Commonwealth Bank.
“ Chief Justice Taney, in the first opinion in Bank of the Metropolis v. New England Bank, expressly denied that the former was put upon its inquiry as to the true ownership of the paper; the indorsement by the true owner being general, and not ‘for collection.’ The cited cases also establish that the collecting bank, the subagent, may retain the money, if, without making an actual payment, it has merely given credit to the agent, or suffered balances to its own credit to remain undrawn with the agent upon the strength of these receipts. But unless it has made some payment, or suffered a balance to remain undrawn, or otherwise substantially relied on the agent’s ownership, so that it would be unjustly prejudiced by the denial of that ownership, then it cannot retain the money. The true owner, by indorsing, ‘ For collection,’ could save all question; but if he chooses to neglect this precaution, to indorse generally, and thereby to permit his agent to appear as the owner, then, if a subagent or any other person be misled, and a loss occurs, it is proper that the owner whose carelessness has given opportunity for the sub-agent to be deceived should, as between these two, bear the loss.
“Where a negotiable instrument indorsed and delivered in blank to a bank, though in fact only for collection, is sent by it to another bank ‘ for collection and credit ’ before maturity, and the latter receives it without notice that it does not belong to the former, it may lawfully retain the proceeds of the collection to satisfy a claim for a general balance against the other bank, if that balance has been allowed to arise and remain on the faith of receiving payments from such collections pursuant to a usage between the two banks.”

■ The doctrine of Bank of the Metropolis v. New England Bank has been adopted and applied in Vickrey v. State Savings Ass’n, 21 Fed. 773; Wood v. Boylston Nat. Bank, 129 Mass. 358; Wyman v. Colorado Nat. Bank, 5 Colo. 30; Rathbone v. Banders, 9 Ind. 217; Millikin v. Shapleigh, 36 Mo. 596; Carroll v. Bank, 30 W. Va. 518. It has been repudiated in New York and some other States. We incline to the view of Mr. Morse (4th Ed., § 600) that the doctrine of the Supreme Court of the United States is the better one, both upon reason and authority.

Did the words, “City Savings Bank. Collection, No. 4627, Detroit, Mich.,” stamped upon the face of the draft,, notify the Garrison bank that the City Savings Bank was not the owner of the draft, but a mere agent for collection? This draft was sent to the Garrison bank for “ collection and credit,” in accordance with the uniform practice of 12 or 15 years. The instruction to credit the proceeds of the draft to the City Savings Bank was inconsistent with the idea that that bank was a mere agent, for collection, and was in harmony with the indorsement, showing ownership. In the absence of any evidence in the record to invalidate the assumption, we think the Garrison bank might reasonably assume that the words were stamped upon the draft as a part of the bank’s system of keeping track of its own collection items by number. We do not think these words, under the evidence in the case, tended to show that the City Savings Bank was acting as an agent for collection. As said by Mr. Justice Campbell in Cody v. City Nat. Bank, 55 Mich. 379:

“When the paper came into the defendant’s hands, it had an unqualified blank indorsement of plaintiff's, which presumptively transferred title to any one who might become the holder. The fact that Rice and Messmore indorsed it for collection had no tendency to show that they held it themselves merely as agents for plaintiffs,” etc.

Should the amount of the draft be deducted from the deposit of $707.05 because the Garrison bank disobeyed instructions? This certainly presents a very unusual question. Ordinarily failure to follow instructions is complained of because such failure results in the partial or total loss of the collection. But in this case the failure to follow instructions, if there was such failure, resulted in securing the entire collection of the v draft. The draft in this case was drawn against a car of grain to arrive. It was presented at once, and the drawee did not refuse payment or acceptance, but stated that he was willing to pay it as soon as the car of grain arrived. He was a customer of, and had money on deposit with, the Garrison bank, and actually did pay the draft when the car arrived. As shown by the record:

Q. Now, have you frequently had paper of this kind, •drawn by the same party and on the same parties, frequently come to your bank for collection, drawn on the City Savings Bank ?
. “A. Yes, sir.
Q. Was it customary for instructions of the kind that appear upon the stub attached to this draft to be upon ordinary paper that came from them — ‘ If not paid, return without delay and state reasons given ? ’
“A. Yes, sir; they always put that upon the draft.
. “ Q. Now, what was your practice in collecting paper ■of this kind drawn by the same parties in the way I have described — getting there before the goods arrived ?
“A. Held the draft until the goods arrived.”

The natural construction of the language used was that the draft should be returned at once if payment was refused or if not paid promptly. The parties, by their course of dealing, had placed a practical construction upon the ■meaning of the adverb “promptly,” which justified the course taken by the Garrison bank in this instance.

It results that, in our opinion, the Garrison bank was •entitled to credit the amount of their collection upon their balance with the City Savings Bank, and to have repaid to them the amount of their deposit of $707.05.

A decree will be entered in conformity with this opinion.

McAlvay, Grant, Montgomery, and Ostrander,JJ., concurred.