text:
    BRYANT v. KENYON.
    1. Pleading — Special Defenses — Notice—Court Rules.
    Under Circuit Court Rule No. 7, requiring defendant, with his plea, to give notice of special defenses, the defense' of res judicata, sought to be established from the files of a chancery-suit in no way connected with plaintiff’s case, or the defense of election of a different remedy, based upon a previous suit in another form of action, should be so noticed.
    2. Trover — Contracts.
    Plaintiff drew wood to defendant under a contract which provided that he should sell and deliver 2,400 cords at $1.50 per cord, payments to be made in sums of $150 as fast as 100 cords should be sold by defendant. Title was reserved - in plaintiff until the wood was fully paid for. Held, that, where defendant continued to dispose of the wood after selling 100 cords without making any payments, he was liable in trover.
    3. Same — Waiver of Tort — ’Election of Remedies.
    Plaintiff, who sold 2,400 cords of wood to defendant at $1.50 per cord by contract providing that as fast as 100 cords should be sold by defendant he should pay plaintiff $150, and that title should remain in plaintiff till it was so fully paid for, did not, by bringing assumpsit for the price of the wood, — -as well that not sold as that already sold by defendant, though defendant was then liable only for what he had sold, — -waive subsequent torts, or make an election of remedies, so as to bar an action of trover for subsequent sales of the wood by defendant after he was in default in his payments.
    Error to Hillsdale; Chester, J.
    Submitted January 5, 1900.
    Decided March. 6, 1900.
    ' Trover by Ira N. Bryant against Daniel B. Kenyon. From a judgment for defendant on verdict directed by the court, plaintiff: brings error.
    Reversed.

      Grant Fellows, for appellant.

      F. A. Lyon and E. J. March, for appellee.
   Montgomery, C. J.

This is an action of trover for the conversion of 512 cords of wood delivered into the defendant’s custody under an agreement the substance of which was as follows:

“First. The said Ira N. Bryant, in consideration of the promises and agreements by the said Daniel B. Kenyon as hereinafter set forth, hereby sells and agrees to deliver to the said Daniel B. Kenyon twenty-four hundred cords of wood, principally hard wood, consisting of beech, maple, ironwood, elm, soft maple, white ash, a little white oak, basswood, and a little black ash, all cut from the Henry Lyons farm, in Adams township, in said county, and being the same wood looked over and examined by the said Daniel B. Kenyon within the past few days, excepting a little not yet cut, but the timber from which it is to be cut the said Kenyon has also looked over and examined. Said wood is to be what is known as block wood, not split fine, and from sixteen to eighteen inches in length. Said Bryant is to deliver said wood in Hills-dale, North Adams, or Pittsford in such proportions and in such place as the said Kenyon may direct, or the whole of it at -either place, if so directed. Fifteen hundred cords of said wood shall be delivered by said Bryant on or before May 15, 1896, and the remaining nine hundred cords on or before September 15, 1896.
Second. The said Daniel B. Kenyon agrees to pay to the said Ira N. Bryant one dollar and fifty cents per cord for said wood, and to be paid as follows: As fast as one hundred cords of wood shall be sold, said Kenyon shall pay said Bryant one hundred and fifty dollars in cash therefor. The wood shall be drawn and piled by Bryant suitable for measuring, and the same shall be measured as drawn by said Daniel B. Kenyon and one Ransom Baker; Baker having charge, of the drawing and measuring for Bryant. And said Kenyon shall deliver to said Baker, for Bryant, a statement in writing, showing the amount of wood received and measured. The title to said wood shall be and remain in said Bryant as the sole and only property of him, the said Ira N. Bryant, with all rights of possession, etc., until the same shall be fully paid for as above set forth.
“Third. The wood shall all be sold and paid for within three years from the date hereof.
“Fourth. Said Daniel B. Kenyon, as earnest money, is forthwith to convey to said Ira N. Bryant a house and lot in the village of Alvordton, Williams county, Ohio, of the estimated value of eight hundred dollars, by good and sufficient warranty deed, excepting as against a mortgage now on same, but which the said Kenyon agrees shall not exceed in amount, at this date, including principal and interest, the sum of three hundred dollars; and upon the receipt of said deed said Ira N. Bryant shall indorse upon this contract or agreement the receipt of the sum of five hundred dollars as payment hereon.”

On the trial it appeared that there had been delivered to defendant, under this contract, about 2,113 cords of wood. And there was testimony tending to show that, after the wood was all delivered, plaintiff brought an action of assumpsit to recover the purchase price of such of the wood as had been sold prior to the commencement of that action; that such judgment remains unpaid; and that some 512 cords, which had not then been disposed of by defendant,- have since been disposed of by him. The circuit court directed a verdict for defendant on the ground that plaintiff had, by bringing his action in assumpsit, made an election, and that he could not now maintain trover. The defendant’s counsel further contend in this court that trover could not be maintained for wood sold under this contract, for the reason that the contract contemplates a sale of the wood by Kenyon; and also that the point that the plaintiff had made a binding election had been adjudicated in a chancery suit between the parties. For convenience we will treat these questions in the inverse order from that in which they are stated.

As to the question of res judicata: The defendant offered in evidence certain chancery files for the purpose of showing (as is claimed) that, in a proceeding between these parties, it was held that the bringing of the action in assumpsit was an election of remedies as to all the wood. This testimony was objected to on the ground that the testimony was incompetent under the pleadings, and not properly proven. We think this objection should have been sustained. The plea was the general issue, simply. Under the authority of section 10074, 3 Comp. Laws 1897, Cir. Ct. Rule No. 7 was adopted to take effect January 1, 1897. This course was taken in response to a general sentiment among members of the profession that issues for trial should be narrowed by requiring notice of affirmative defenses. In this case the chancery proceeding was in no way connected with the plaintiff’s affirmative case, and defendant, if he intended to rely upon it, should have given notice of that intention. In the same connection it is urged that notice of the intention to rely upon the previous action of assumpsit as an election should have been given. We think this point is also well taken, but, as the case must go back for a new trial, we will consider the question of election in its proper order.

We do not think the contract open to the construction contended for by defendant’s counsel. Certainly, the title was reserved in the plaintiff by clear and explicit language. True; the contract contemplated the sale of 100 cords to precede a payment of $150, and it may be that trover would not lie for the first 100 cords sold; but, after the defendant had sold that quantity, it was his duty to make payment of $150. If he did not do so, he was in default, and cannot fall back on any implication to devest the plaintiff of his title.

The important question is the one determined by the circuit court: i. e., did the plaintiff, by bringing the action of assumpsit, waive the tort, and elect to treat the title of all this wood as having passed to defendant ? It is to be noted that as to the wood then unsold, and in defendant’s hands, no tort had been committed for plaintiff to waive. It is clear, therefore, that the action of assumpsit could not have waived such a tort. Was there an election on other grounds ? Did the bringing of the action amount to an election to treat the title of all the wood as having passed to defendant? A similar consideration seems controlling of this question. The plaintiff could not, of his own volition, make a complete sale of the wood to defendant. The defendant was not liable under the contract except for such wood as had been sold. He was not liable in tort except for wood sold after he was in default in his payments, and was liable neither in assumpsit nor in trover for wood remaining unsold. The election to waive such torts as had been committed was not an election to waive any torts which defendant might commit in the future. Was the ineffectual attempt to recover in assumpsit a sum not due a waiver of a future tort? We think not. An election of remedies implies that a party has a choice of remedies. It can hardly be said that he has such a choice when neither remedy is open to him. This question is ruled by McLaughlin v. Austin, 104 Mich. 489 (62 N. W. 719); Edgewood Distilling Co. v. Shannon, 60 Ark. 133 (29 S. W. 147). See, also, 7 Enc. PI. & Prac. 361.

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

The other Justices concurred.


source: Caselaw Access Project

author: Montgomery, O. J.

license: Public Domain

text:
    HOLMES v. MARTIN.
    Mortgages — Validity—Fraud—Mental Incapacity — Notice to Mortgagee.
    Where a mortgagee knew, when, he took his mortgage, that the mortgagor was of feeble intellect, and that he gave the mortgage, which was upon his homestead, to obtain a loan for a third person, upon the latter’s representation that a chattel mortgage, pm-porting to cover commercial paper thereafter to be acquired, given back to the mortgagor, would afford him ample protection, he is not in position to defend his claim as tona fide, even if he had no intention of engaging in any active fraud.
    Appeal from Kent; Adsit, J.
    Submitted January 5, 1900.
    Decided March 6, 1900.

      Bill by Glenn W. Holmes, guardian of Frederick Miller, an insane person, against Joseph H. Martin, to set aside a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Holmes & Holmes, for complainant.

      Wolcott & Perkins, for defendant.
   Montgomery, O. J.

The bill in this case was filed originally by Frederick Miller. Since the case was submitted to the court below, a guardian has been appointed. The purpose of the suit is to set aside a mortgage of $250, executed by the complainant to defendant in July, 1894, covering complainant’s homestead in the township of Walker, Kent county, which consisted of about two acres of land, with a small house on it; the premises being worth from $800 to $1,000. The bill, as amended, avers, in substance, that the mortgage in question was given without any consideration whatever passing to complainant, and wholly for the accommodation of one Klugh’ who committed an outrageous fraud on complainant; that Klugh gave to complainant the pretended security of a chattel mortgage, which was insufficient — First, because it in terms professed to provide security on commercial paper not then in existence, but to be thereafter acquired by Klugh; and, second, because the tangible property mortgaged was not owned by Klugh. The bill avers that complainant was at the time mentally incompetent to execute the mortgage, which was well known to defendant’s agent, John B. Martin, who transacted the business for defendant.

The testimony shows that Klugh was slightly acquainted with complainant, and had had some previous talk with him about giving a mortgage on his place to enable him (Klugh) to raise some money; that Klugh went to John B. Martin, and stated that he had a friend who would give a mortgage to secure a loan, and furnished him an abstract; that Klugh had John B. Martin draw up a chattel mortgage purporting to cover one chestnut mare, one top buggy, and “certain commercial paper to an amount of $400 just as soon as received in payment of certain work I am doing,” running to complainant, and purporting to secure the payment of a note due in one year. Klugh and Martin visited complainant. Complainant testifies that he then told Martin that he would not give a mortgage unless he was sure it was going to be paid; that he would not take Klugh’s word for it; and that Martin replied that, if Klugh did not pay it, he would see that it was going to he paid, — • evidently meaning, as complainant understood,’ that Martin would, if necessary, proceed against Klugh. Mr. Martin testifies that complainant did not express any unwillingness to rely on Klugh. He testifies on cross-examination that he made no inquiry of Klugh about the contracts that Klugh claimed to have, out of which he expected to realize the commercial paper, but that he 'understood from Miller’s looks that he would understand that the chattel mortgage gave a valid lien on the commercial paper. The witness also testified that he did not assure Miller that he would look to Klugh, but that it was talked in Miller’s presence that Klugh was to attend to the payments, and make the payments to him.

The evidence is ample to show that complainant was weak-minded, and incompetent to understand the nature of the transaction. The only doubtful question is whether defendant had sufficient notice of this to put a prudent man on inquiry. We think that, on the whole record, there was sufficient to suggest caution. The defendant’s agent had for eight years been engaged in the business of loaning money and taking securities. While he was not a lawyer, he must have known that the so-called security on the commercial paper to be thereafter acquired was in fact no security. He also knew that the chattel mortgage, without this, was wholly inadequate. He knew that complainant was so ignorant as to believe that he was obtaining valid security on such paper. He knew that the transaction was in no way beneficial to complainant, and we are satisfied that he must have known that complainant expected to be protected by the security of the chattel mortgage. Nor could the mental weakness of complainant, which so impressed itself on others, have wholly escaped the notice of Mr. Martin. While we attribute to Mr. Martin no purpose of engaging in any active fraud, we think that he exhibited an indifference to the consequences of the wrongful acts of Klugh which should debar him from the claim of bona fides.

The decree will be reversed, and a decree eritered in accordance with the prayer of complainant’s bill.

The other Justices concurred.


author: Moobe, J. Hooker, J.

text:
    RAMSAY v. C. K. EDDY & SONS.
    Personal Injuries — Obvious Danger — Contributory Negligence.
    A brakeman who, while engaged in the daytime in switching cars in the yard of a manufacturing company, mounted a side ladder of a moving car a few feet from a pile of lumber out of which several boards projected towards the track, was guilty of contributory negligence, precluding a recovery for injuries sustained by being caught between the car and the projecting boards; it being apparent, from the evidence, that he would have seen the boards had he looked. Moore, J., dissenting.
    Error to Saginaw; Wilber, J.
    Submitted October 7, 1898.
    Decided March 6, 1900.
    Case by Clark R. Ramsay against C. K. Eddy & Sons, a corporation, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Humphrey & Grant, for appellant.

      Crane & Crane and James H Davitt, for appellee.
   Moobe, J.

(dissenting). Plaintiff, a brakeman upon a freight train, recovered judgment against defendant for personal injuries received by him while at work in defendant’s yard. From this judgment defendant appeals.

A reference to the annexed plat will help to understand the situation. The railroad tracks indicated upon the plat

are in the yard owned by the defendant. Plaintiff was in the employ of the railroad company, which was, at the request of the defendant, putting a furniture car on the track for the use of defendant. The plaintiff was an experienced brakeman and switchman, but was not familiar with this yard. The locomotive, a flat car, and the furniture car were backed from the south. The brakeman threw switch 6, and, as the furniture car passed him, he climbed upon a ladder at the side, and while there was caught by three or four boards which projected six or eight inches beyond the rest of a pile of lumber which was near the railroad, and was injured. It is the claim of the defendant that it was the duty of the plaintiff to look and see whether he could pass the lumber safely before climbing upon the ladder, and that he did look, and thought he could pass the lumber safely, when in fact he could not; that he assumed the risk, and that he cannot now complain, — citing Grandorf v. Railway Co., 113 Mich. 496 (71 N. W. 844), Illick v. Railroad Co., 67 Mich. 636 (35 N. W. 708), and many other cases. In all of the cases cited, the danger was obvious. It is the claim of the plaintiff that the danger in this case was not apparent; that he looked at the lumber pile, and there was nothing in its appearance to indicate he could not pass it safely; that the lumber had been piled more than a year; that the projecting boards were weather-stained, and were shaded by the boards higher up in the pile to the north and west of them, so that, looking from where he was, the projections were not apparent, and the pile appeared to be one that could be passed safely. There was testimony in addition to his own which tended to sustain this claim. He also claimed there was a slight curve in the track at this point, and that, had he been upon the ladder upon the other side of the car, he could not have been seen by the engineer; and that further down the track were an overhead pipe and tramway, which crossed the track, and would require him to get down from the car; that good railroading required he should be where he was that he might warn persons who were crossing the roads in the yard of the approaching train, and that he might signal the engineer. It was also the claim of defendant that plaintiff was guilty of contributory negligence, and a verdict should have been directed in favor of defendant.

The court charged the jury as follows:

“The plaintiff, with other employés of the F. & P. M. Railroád, was, at the time of the accident, upon the premises of the defendant, at its request, to place this car in position. Under such circumstances it was the duty of the defendant to see that its premises were in a reasonably safe condition for doing the work. On the other hand, it was the duty of the plaintiff, while in the employ of the railroad company, to exercise due and reasonable care in avoiding danger; and the degree of care must be in proportion to the nature of the danger to be encountered, and the extent of the .risk. Reasonable care in such a case required the plaintiff to be diligent in the use of any and all appliances and facilities necessary in ascertaining and avoiding danger. Anything less than this must be regarded as negligence on the part of the plaintiff; and, whenever such negligence contributes to produce the injury complained of, the plaintiff cannot recover for such injury. In order for the plaintiff to recover for such injury, it is just as essential that he show himself without negligence at the time of the happening of the accident as' it is for him to show that the defendant was negligent; and the burden of proof is upon him to establish both propositions.
“Was the plaintiff negligent in not seeing the projecting boards that caused the injury ? If so, then he cannot recover. Did he exercise care and caution in ascertaining whether it was safe for him to ride upon the car past this pile of lumber, that he was in duty bound to exercise under the instructions I have given you ? If he did not, then your verdict must be for the defendant, irrespective of what you find the other facts to be. The defendant claims that the projecting boards were in plain view; that, if the plaintiff had looked, he would have seen them; that there was nothing deceptive in their appearance or location. If this is true, he should have discovered them, and avoided the danger. Defendant also claims that this pile of lumber was so near the track that the plaintiff could not safely ride past it upon the side of the car, irrespective of these projecting boards; and they claim, too, that, if he had 'given it proper attention, he would have seen that this was true. If this is the fact, and the plaintiff concluded to take his chances, seeing just what the situation was, then he is not entitled to recover, even if the projecting boards were in a position where he could not readily discover them, and did not see them. If you find that the plaintiff did not exercise reasonable care in avoiding this danger, then you would have no occasion to consider the case further, and your verdict would be for the defendant. But, if you should find in favor of the plaintiff upon this proposition, you should then determine whether or not the premises of the defendant were in a reasonably safe condition for the plaintiff to do his work.
. “ It is an admitted fact in the case that the lumber was piled by one of the employes of the defendant. The knowledge of the employé as to the manner of piling would be the knowledge of the defendant. Was it in reasonably safe condition ? I submit this as a question of fact for you to find. Take into consideration all of the facts bearing upon it, — its closeness to the railroad tracks and switch; the manner in which the switching is usually done at that place; the position of the switchman on the car, if he rides; also whether the defect in the piling was so open and notorious as of itself to constitute a warning to the switchman not to attempt to ride past it upon the side of the car. If you should find that the defendant was negligent in this, and also that the plaintiff himself was not guilty of negligence that contributed to the injury, then you should consider the plaintiff’s injuries, and the damages he is entitled to, bearing in mind that your verdict must be based upon the view, not of punishing the defendant, but solely upon compensating the plaintiff for the injuries he sustained.”

There was evidence tending to show that plaintiff exercised due and reasonable care, and that no negligence of his contributed to the injury. The evidence was disputed by defendant.

It was the duty of Mr. Ramsay to exercise reasonable care and diligence to ascertain whether it was safe for him to do what he did or not. Indeed, he had the greatest incentive to caution, for he was a man of sufficient sense to know that, if there was not sufficient space between the car and the lumber for him to pass, he was in danger of getting seriously hurt. I do not think the court can say, or that it ought to say, that, under the showing made in this case, he did not exercise proper care. That is a question within the province of the jury. Continental Improvement Co. v. Stead, 95 U. S. 161. The record shows the foundations of this lumber pile were a proper distance from the track, and, if the lumber had been properly piled, it would not have been dangerous. The danger came because three boards projected beyond the body of the pile. It was the claim of the plaintiff that the northwest cqrner of the pile did not recede from the track, as did the remaining portion of the pile; that this side of the pile was ragged and uneven in appearance; and that all of the pile, including these boards, was weather-stained, so it was not easy to discern that these boards projected farther than the others; and that the boards were a concealed danger. The plaintiff testified that, before going upon the car, he looked, and did not see the boards which projected; that he saw no danger. Mr. Hunter, a switchman, said there was trouble in seeing the boards. Mr. Grobe testified that he observed the lumber the next day, from the cab of the engine, at the switch, and could see no danger, and it was not until his attention was called to the dangerous boards that the danger became apparent. Mr. Egger, the engineer, got the signal from the plaintiff to start the train; saw him get upon the car, and saw the pile of lumber, and did not suppose he was in any danger until he was struck by the boards. The boards were cut off the next day after the injury. In speaking of the rule applicable to such cases as this, in Carver v. Plank-Road Co., 61 Mich. 593 (28 N. W. 721); it is said:

“The difficulty is not in the rule, but in the application of it to the facts of the particular case. The testimony is often of such a nature that the trial judge is greatly embarrassed to determine whether any facts have been established by the evidence from which negligence may be reasonably inferred. In all cases of doubt, the proper method is to submit the evidence to the jury, under proper caution and instructions, to determine whether, from the facts as they shall find them established by the evidence, negligence ought to be inferred. In determining the preliminary question of law, it is not the province of the court to pass upon the weight of the evidence, for the sufficiency and weight of evidence, and the effect to be given thereto, is a question exclusively for the jury; and it follows that it is only where there is no legal evidence, which, if believed, will establish a fact material to the plaintiff’s case, that the trial judge can take the case from the jury.”

See, also, Dundas v. City of Lansing, 75 Mich. 499 (43 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457);, Engel v. Smith, 83 Mich. 1 (46 N. W. 31, 31 Am. St. Rep. 549); Sweets. Railroad Co., 87 Mich. 559 (49 N. W. 883); Balhoff v. Railroad Co., 106 Mich. 606 (65 N. W. 593); Woods v. Railway Co., 108 Mich. 396 (66 N. W. 338).

This is not like an accident at a highway crossing, where one has failed to see a locomotive and train,- — large objects, which we may assume would be seen if the one whose duty it was to look had done so. Here the projecting boards were comparatively small. They were-weather-stained, — a color which we all know is a difficult, one to see. As long as a jury is allowed to judge of' questions of fact, it is not the province of the court to say, under such circumstances as this record discloses, that, if' the plaintiff had looked, he would have seen, and therefore is guilty of contributory negligence. The court cannot put itself in the place of the witnesses, and see the situation as they saw it. They gave their version of what they saw, and it was for the jury to say whether they correctly described the situation. The language used in Texas, etc., R. Co. v. Gentry, 163 U. S. 353 (16 Sup. Ct. 1104), is very pertinent in such a case as this:

“ ‘The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that-case was such as would be expected of reasonable and prudent men under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that, all reasonable men must draw the same conclusion from them that-the question of negligence is ever considered as one of law for the court.’ Grand Trunk R. Co. v. Ives, 144 U. S. 408, 417 (13 Sup. Ct. 679).”

I do not think this case can be said to be a case for the application of the doctrine of assumed risks — First, because it does not appear from the evidence that plaintiff saw; the projecting boards which caused the mischief; and, second, because there were no contract relations between the plaintiff and defendant. The liability, if any exists, does not .grow out of the relationship- of master and servant. It is the claim of the plaintiff that the car was placed in the yard of the defendant at its request, and for its benefit, as well as for the benefit of the railroad company, and that while performing that act he was injured. The duty of the defendant may be stated as follows:

‘ ‘ If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence.” Whart. Neg. § 437.

This is the same language used in Sweeny v. Railroad Co., 10 Allen, 368 (87 Am. Dec. 644), in which case the following language was also used:

“The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement, or inducement, either express or implied, by which they have been led to enter thereon. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner or person in possession to provide against the danger of accident. The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability, but if he, directly or by implication, induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use; and for a breach of this obligation he is liable in damages to a person injured thereby.”

. I think the case was carefully tried, and the judgment should be affirmed.

Long, J. I am unable to agree with my Brother Moore in this case. From the testimony of the plaintiff it is apparent that the danger was obvious. It was his duty to look, and see if the way was clear, before climbing upon the ladder upon the side of the car. If he had looked, he would have seen the projecting boards. He was asked:

“Q. If you had looked, you could have seen them?
“2. I did look.
‘ ‘ Q. And you say you could not see them ?
“A. I did not see them. * * *
“Q. What you wish the jury to believe is this: That, until you got hit with those boards, you couldn’t see them, even if you had looked ? Answer the question yes or no. [No answer.]
‘ ‘ Q. Do you want the jury to understand that you could not see those boards, if you looked, until they hit you ?
“A. I did look, and I. didn’t see the boards until they hit me.
“Q. Now, I ask you if you could have seen them if you had looked ?
“A. Well, I did look, and I did not see them.
“Q. Do you mean that you want the jury to understand that you could see better after the boards hit you than you did before ?
“A. Why, I looked to see what had hit me; just how far they were, and why I hadn’t seen them before. * * *
Q. And you had just as good an opportunity to see before you were hurt as you did afterwards ?
“A. I should have thought so.
"Q. And before you were hit you didn’t see the boards, and after you were hit you did see them ?
“A. I saw them after they hit me, yes, sir. Most anybody would, getting rolled through a space of eight inches.”

Plaintiff confesses that no one ordered him to get up on the side of the car where he was injured. He had charge of the train. He made the motions with his hands for the engineer to move it backward and forward. He possessed all his faculties, and was an experienced switchman. It was broad daylight; and the evidence is conclusive that, had he looked, he could have seen that it was dangerous to ride on the ladder by these boards. They were eight feet from the ground. The lumber had been piled in this position for more than a year prior to the accident, and cars had been hauled there many times. The railroad company had given the defendant no notice that the piles were in dangerous proximity to the railroad tracks. The foundations to the lumber piles had been there for several years. They were there when the railroad companies laid the tracks for the purpose of hauling out the product of the mill, and were placed there at the expense of the railroad companies. It cannot be said from the testimony that the plaintiff, who was within a few feet of these projecting boards, — boards 10 to 12 inches wide,— could not have seen them if he had looked. He was not called upon to act suddenly. He was in charge of the train. The danger was just as apparent to him as it could have been to anybody else. There was no question of fact for the jury to determine. Under the testimony of the plaintiff, the court should have directed the verdict for the defendant.

The judgment must be reversed. No new trial will be ordered.

Montgomery, C. J., and Grant, J., concurred with Long, J.

Hooker, J.

I am of the opinion that contributory negligence upon the part of the plaintiff is conclusively shown by his own testimony. For that reason the judgment should be reversed, and no new trial ordered.


text:
    GRAHAM v. ALEXANDER.
    1. Promissory .Notes — Consideration — Advancement of Legacy.
    Where the amount of a promised legacy was advanced upon an understanding that interest should be x>aid during testator’s lifetime, and the legatee’s husband, in recognition of the obligation to pay interest, voluntarily, without request, gave testator his note for the amount, and paid interest thereon until testator’s death, it was properly held, in an action by the administrator, that there was no consideration for the note.
    3. Witnesses — Competency — Matters Within Knowledge op Decedent.
    In an action by an administrator upon a note, the wife of defendant is not an “opposite party,” within 3 Comp. Laws 1897, § 10213, precluding the opposite party from testifying to facts which, if true, must have been equally within the knowledge of deceased.
    Error to Kent; Adsit, J.
    Submitted January 9, 1900.
    Decided March 6, 1900.

      Assumpsit by Matthew A. Graham, administrator of the estate of Andrew Brown, deceased, against James G. Alexander, on a promissory note. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    Carroll, Turner & Kirwin, for appellant..

      Wylie & Clapperton, for appellee.
   Montgomery, O. J.

This is an action on a promissory note of $1,000, given by the defendant to the plaintiff’s testator. The defense is failure of consideration. It appears by the findings, based upon testimony which in some of the most essential parts is uncontradicted, that defendant’s wife, Nancy E. Alexander, was a niece of •decedent’s wife, and lived in the family of decedent for many years; that, on her marriage, Mr. Brown and Mrs. Brown each gave her a bond of $1,000, payable out of his and her estate, respectively. Shortly after this, defendant borrowed of Mr. Brown $500, and gave him his note for it. In March, 1888, the interest on this note was remitted, and, on the 2d of April of the same year, the $500 note canceled, and $500 in a draft, were sent to Mrs. Alexander in a letter in Mrs. Brown’s handwriting, purporting to be written on behalf of Mr. Brown, and saying:

“You will find inclosed in this letter $500. Uncle says you can keep this five hundred and the other five hundred in payment of the thousand that he means to give you when he is gone, after his lifetime; you paying interest on it during his lifetime.”

The matter rested here until, one year later, under a similar arrangement, and with the like purpose of anticipating the payment of $1,000 which Mrs. Brown expected to leave to Mrs. Alexander, she sent to Mrs. Alexander that sum. At this time, and without any new consideration whatever, Mr. Alexander sent his note for $1,000 to decedent, and also a note of $1,000 to Mrs. Brown. The notes were subsequently surrendered to Mrs. Alexander, and destroyed. Mrs. Brown subsequently wrote to Mrs. Alexander that it was better to have notes, and new notes were sent, one of which is the note in question. Upon this state of facts the court held that there was no consideration passing to defendant for the note in question, or for the note in lieu of which this note was given. In this we think the court was clearly right. The original note was given voluntarily, not on request of either Mrs. Alexander or Brown; no consideration passing from either to defendant.

It is contended, however, that the defense was made out by incompetent testimony. The defendant’s wife was an important witness, and testified to facts which were in some part within the knowledge of Mr. Brown. It is insisted that she was not a competent witness as to»such facts, under section 10212, 3 Comp. Laws 1897. This contention cannot be sustained. Mrs. Alexander is not the opposite party to this action, within the meaning of this statute. It is true she assigned the bond, above referred to, to Mr. Alexander; but no recovery on that is sought. In the controversy as it relates to the note, and the recovery thereon, she is no more concerned than is the wife of any litigant in the result of a suit to which he is a party. It has always been understood that she is in such cases a competent witness in his behalf.

It is also claimed that there was error in admitting testimony of the defendant as to facts equally within the knowledge of decedent. The court appears to have ‘confined the testimony of defendant to facts of which deceased had no direct knowledge. If in any instance there was a failure to do so, it was as to a fact which is fully proved by competent testimony, and no harmful error was committed.

It is also claimed that the testimony offered tended to contradict the terms of a writing, and was, therefore, incompetent. There would be force in this if there had been any consideration passing to defendant; but, under the finding, supported by evidence, there was none.

No prejudicial error is found, and the judgment will be affirmed.

The other Justices concurred.


author: Montgomeby, C. J.

text:
    HOEFT v. KOCK.
    Corporations —Increase oe Capital Stock — Neglect to File ■ Amendment — Eights of Stockholder.
    Where all of the stockholders of a corporation were present at a meeting at which a resolution to increase the capital stock was regularly adopted, and money was paid to the manager to cover the cost of recording the same in the offices of the secretary of state and county clerk, there was an increase of stock de facto, and a purchaser of stock forming a part of such increase, having participated in the affairs of the corporation for more than two years, cannot repudiate his subscription, and recover from the officers the amount paid by him for his stock, because of a failure to record such resolution of increase.
    Error to Wayne; Carpenter, J.
    Submitted January 10, 1900.
    Decided March 6, 1900.
    Case by August Hoeft against Jacob Kock and Charles Uelsmann, impleaded, etc., for alleged misrepresentations in the sale of corporate stock. From a judgment for defendants on verdict directed by the court, plaintiff brings error.
    Affirmed.

      Walter Barlow, for appellant.

      Thomas Hislop, for appellees.
   Montgomeby, C. J.

On a former appeal the judgment for plaintiff was reversed (119 Mich. 458, 78 N. W. 556), and the case remanded for a new trial. A second trial has been had, and at the conclusion of the trial a verdict was directed for the defendants. The declaration avers, among other things, that the defendants fraudulently represented that the authorized capital stock was $50,000; the theory of the declaration apparently being that, more than $25,-000 having been issued before that in question was issued to plaintiff, the issue to him was invalid, and that- he is entitled to recover the amount paid, as for a fraud committed against him by defendants. The undisputed testimony shows that prior to the issue of the stock in question, upon a notice to all stockholders, and at. a meeting at which all were present, a resolution increasing the authorized capital stock to $50,000 was passed in due form, and money handed to the manager to cover the cost of recording certificates in the offices of the county clerk and secretary of state. It is evident that all parties understood that this amendment had been filed. The plaintiff himself became a director, and acted for some time. Two years and more after the purchase of the stock, after the company was in financial straits, he discovered the omission, and tendered back his certificate of stock, and now seeks to recover its value from the defendants on the ground that by issuing the certificate (the one as president, and the other as secretary) they represented that they had lawful authority to issue it, when in fact they had not.

It is said that the failure to record the resolution increasing the capital stock rendered the attempt to increase inoperative. It is undoubtedly true that the State might proceed against the corporation, but it does not follow that stockholders are in a position to complain. The stockholders, who all participated in the increase, cannot be heard to say that it was unauthorized. There was an increase of the stock de facto. The plaintiff was in no way damaged because of the omission to file and record the resolution. 1 Cook, Stock, Stockh. & Corp. Law, § 288; Chubb v. Upton, 95 U. S. 665.

The judgment is affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    SCRIPPS v. CRAWFORD.
    1. Sale — Good Will — Allowanoe eor Interest — Usury.
    An agreement of a surviving partner, upon purchase of the interest of the deceased partner, to allow the estate, in addition to one-half of the value of the property, one-half of the net profits of the business for five years, “ as interest * * * and as compensation for the good will,” is not usurious, in the absence of evidence that either party understood that an unlawful rate of interest was contemplated.
    2. Debtor and Creditor — Preferences — Corporations— Assignment of Stock.
    Shares of stock in a corporation in the hands of one who paid value for them, or of one to whom they were assigned as security for a debt of the principal stockholder, will not be subjected to the lien of a judgment against the latter upon evidence merely that the corporation was formed and the shares issued and assigned the day before the judgment was taken, and all of the debtor’s property subject to execution turned over to the corporation; the transaction amounting, in the absence of collusion, to a lawful preference of creditors.
    3. Receiver — Appointment—Parties to Suit.
    A receiver cannot be appointed for a corporation in a suit to which it is not a party.
    Appeal from Wayne; Donovan, J.
    Submitted January 12, 1900.
    Decided March 6, 1900.
    Judgment creditor’s bill by George H. Scripps against Andrew J. Crawford, Flavius L. Brooke, George’E.'Norris, Frederick H. Norris, George H. Hill, and the Union Trust Company, administrator of the estate of Wellesley W. Adams, deceased. From the decree rendered, all parties appeal.
    Reversed and bill dismissed.

      Robert Young, for complainant.

      Flavius L. Brooke, for defendants Crawford, Brooke, Norris, and Norris.

      Rowland M. Connor, for defendant Hill.

      Thomas S. Jerome, for defendant Union Trust Co.
   Hooker, J.

Andrew J. Crawford was a debtor of Scripps, the complainant.' He was engaged in the laundry businéss in Detroit as equal copartner with one Adams, and his interest in the laundry was all of his property subject to execution. Adams died, and the Union Trust Company was appointed administrator of his estate. The laundry had been profitable, having earned from'$4,000 to $7,000 per annum, net, although the investment was comparatively small. Crawford purchased the interest of the estate in the business. An inventory was taken of the property, showing that it was worth about $3,000, and, in view of the good will of the business, Crawford agreed to pay for Adams’ interest $1,500, and one-half of the net profits that should be earned for five years. The agreement stated that this was to be “as interest on said loan, and compensation for the good will of the estate in the business, and its interest in the leasehold” where the business was conducted. In 1897 the parties settled some differences by agreeing that the amount due the estate was $4,600, and this Crawford agreed to pay in weekly installments before July 20, 1901, regardless of profits. It is claimed by the defendants that on October 25, 1897, defendant Hill purchased from Crawford a quarter interest in the laundry, and that the business was afterwards conducted for their mutual benefit. It is claimed by the complainant that this assignment was collusive and fraudulent as against him, if not fictitious.

In December, 1897, the complainant put his claim against Crawford, amounting to about $2,000, into the hands of counsel for collection. Defendant Brooke was Crawford’s attorney, and complainant’s counsel was referred to him by Crawford when he presented the claim. Counsel arranged that complainant should defer bringing an action on the claim, and that Crawford should pay $50 a month thereafter in reduction of the demand. One payment was made in January, 1898, and, in default of a second payment, action was brought in February, 1898. Brooke appeared for defendant Crawford in that action, and at his request trial was postponed, upon the promise to make the payments thereafter. Two such payments were made after the action was brought, — one in March and one in July. On August 10th, the day to which the cause had been adjourned, Brooke requested further time to make such payment, and was granted until August 13th, and upon that day asked a further postponement; and, this being refused, he stated to counsel for the complainant that the Grand Laundry had been incorporated the day before, and the articles had been filed in the office of the county clerk that morning. Complainant’s solicitor testified that counsel (defendant Brooke) told him that they could not afford to let him get a levy on that property. Judgment was taken that day.

The record shows that articles of association incorporating the Grand Laundry were filed on August 13, 1898, executed and acknowledged in due form on August 12th, signed by the following stockholders (the shares of each being stated): Andrew J. Crawford, 400 shares; George H. Hill, 175 shares; George E. Norris, 58 shares; Frederick H. Norris, 57 shares; Flavius L. Brooke, 10 shares. On the 12th day of August, 1898, Crawford and Hill assigned the property and business of the Grand Laundry to the corporation for an expressed consideration of $7,000. We are not advised that the shares subscribed were paid in money into the treasury of the company, but the property was put in by Hill and Crawford proportionately to their holdings of stock, the other stockholders adjusting with them for the stock subscribed by them. It is claimed that Brooke received his stock for a debt due him from Crawford, and that the Norrises paid Crawford $1,150 in checks for their shares. On August 12th or 13th, — and it is not clear which day, — Brooke, as Crawford’s attorney, called upon the Union Trust Company, and delivered to it an assignment executed by Crawford of his 400 shares of stock, as collateral security for its claim against him (Crawford).

Complainant took execution on his judgment, returnable September 6th. It was returned unsatisfied by the sheriff on September 7th, at which time an alias execution was issued, returnable December 5, 1898. It is. claimed by complainant that this was levied on Crawford’s interest in the corporation, and upon the property. He thereupon filed the bill in this case, and it is said to' have “the double aspect of a judgment creditor’s bill to reach equitable assets of Crawford not subject to levy of execution, and one in aid of execution.” All defendants, have answered, and the proofs were taken in open court. Mr. Jeróme, representing the trust company, and defendant Brooke, were the only witnesses sworn on behalf of the defendants. The decree says:

1. That the transfer of 300 shares of stock to Brooke, Hill, and George and Fred Norris was made with intent to hinder, delay, and defraud creditors, and is void as against the complainant, and that they have no interest in the laundry as against Scripps, the complainant.

2. That complainant has a lien upon all of the shares of stock of the Grand Laundry and its assets to secure the payment of the costs of suit and the judgment ($3,024.39), and interest at 7 per cent, from August 13, 1898.

3. That said lien and the lien of the Union Trust Company, amounting at the date of the decree to $3,715, are declared simultaneous liens upon all of the shares of' stock and assets of the company.

4. That the receiver appointed by the court be directed to take joint possession with the Union Trust Company of the assets and business, and operate the business of the corporation, to preserve the trade and business until the shares of stock and all property of the corporation may be sold by due process of law to satisfy the claims of complainant and the Union Trust Company.

5. The decree provides how the earnings shall be applied, and that after two years’ trial, if the business fails to be profitable, it shall be closed out.

The foregoing is the substance of the decree, which contains some other provisions that need not now be alluded to.

The contention is made that the contract with the Union Trust Company was usurious, inasmuch as a much larger rate of interest than that permitted by law is provided. We think the allowance of something for the good will of the business was legitimate, and there is nothing to show that either party understood that an unlawful rate of interest was contemplated. One-half of the prospective net profits was to be paid as interest and as a consideration for the good will. We must therefore hold that the claim of the Union Trust Company, as finally fixed by the agreement of the parties thereto, was a valid claim against Crawford.

Hill’s alleged purchase of a quarter interest was made in October, 1897. The bill required answers under oath, and Hill’s answer was verified. It states that he paid for the quarter interest. The assignment to him bore date that day, and Brooke testified that he was present and saw it executed, and a portion of the consideration paid. We think that the complainant has failed to'show an absence of good faith in this transaction.

At the time the corporation was formed, the defendant Crawford was undoubtedly in pecuniary straits. Brooke testified that the business was running down. Apparently he was unable to pay debts that were crowding him,— especially complainant’s claim. Doubtless he desired to continue a business which had been profitable, and for the good will of which he had incurred a large obligation, which was yet unpaid, and one which exceeded the value of the property, aside from the good will of the business. If Brooke’s testimony is true, incorporation had been in contemplation for some time. The coincidence in point of time of the judgment and the filing of articles, and assignment of stock to the Union Trust Company, furnishes a persuasive argument that the entire scheme was a fraudulent attempt to defeat a levy by the complainant, and, so far as Crawford is concerned, we are of the opinion that such was one of the reasons for his action at that time. In other words, by assigning his interest to the Union Trust Company he gave a prior lien to a creditor who was not crowding him, and a preference for whom he has some justification. But we do not see that the formation of the corporation, or assignment of the property to it, can be complained of. We are convinced that it was a good business move, and no property was covered up thereby, unless the stock taken by other creditors was not paid for, and we find no evidence of this. Brooke testified that it was paid for by checks, and the answer of the Norrises states that their stock was paid for. Complainant did not choose to call them to explain the transaction. Brooke undoubtedly paid for his, not in cash, but by the discharge of an indebtedness, which was a sufficient consideration. This left 400 shares of the capital stock in the possession of Crawford. It was subject to levy for his debts, and is now subject to the lien of the Union Trust Company. 3 Comp. Laws 1897, § 10335 et seq. But we are unable to discover that such a levy was made and perfected, although it may have been intended. The Union Trust Company accepted an assignment of the stock as collateral. It had a right to ask security and accept it, although the necessary and obvious consequences would be the delay of other creditors, if not their defeat. It might have done the same by taking a mortgage of the property before it was conveyed to the corporation, and other creditors could not have prevented it, or set aside the transaction as a fraud, so long as there was no collusive attempt to aid Crawford in injuring others. It is not the province of a , court to prefer creditors. That is a privilege of the debtor. In this case, if complainant’s theory is correct, the estate of Adams, Hill, the two Norrises, and Brooke must lose their claims, that the complainant may obtain his pay, while the effect of Crawford’s dealings with the property postpones him to the Union Trust Company’s obligation. The circuit judge has endeavored by his decree to conduct the business of the Grand Laundry, and work off these debts from earnings. As a rule, that is a practice of doubtful expediency, if lawful; and here it cannot be sustained, if for no other reason, because the corporation has had its property taken when not a party to the litigation. We think, however, that complainant has failed to establish a case upon the merits.

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

The other Justices concurred.


author: Moobe, J.

text:
    CLELAND v. CLARK.
    1. Bill in Aid op Execution — Laches—Objection Not Raised Below.
    The objection that a bill in aid of execution was not filed in time, under 3 Comp. Laws 1897, § 9167, cannot be raised for the first time by defendants, after a hearing on the merits, on complainant’s appeal.
    2. Betterments — Basis op Allowance.
    Allowance for betterments should be based on the increased value of the premises, not on the cost of the improvements.
    3. Same — Purchaser by Quitclaim — Good-Faith Occupancy-Priority op Liens.
    The fact that a purchaser of lands, who occupied and improved the same without knowledge that they were subject to complainant’s judgment, took his title by quitclaim deed, will not give complainant priority as against the purchaser’s lien for betterments; the “ good faith ” intended by the betterment statutes meaning, merely, honest belief of the occupant in his right or title.

      4. Same — Equity Practice.
    On a bill in aid of execution to reach lands in the possession of one who purchased and improved them without knowledge of complainant’s judgment, it was proper to make an allowance in the decree for betterments.
    Appeal from Muskegon; Russell, J.
    Submitted January 12, 1900.
    Decided March 6, 1900.
    Rill by Daniel Cleland against John H. Clark, Mary Clark, Charles Carpenter, Harriet Carpenter, George Newville, Lena Newville, and Isaac Manchester in aid of execution. From a decree for complainant, subject to the equities of certain defendants, he appeals.
    Affirmed.

      Holland J. Cleland (Arthur Lowell, of counsel), for complainant.

      Dan T.' Chamberlain, for defendants Carpenter.

      Charles B. Cross, for defendants Newville.
   Moobe, J.

This proceeding was commenced by a bill filed in aid of an execution. The complainant obtained a judgment against John H. Clark, and caused a levy to be made upon land in which he claimed Clark had an interest. He also claimed that Clark had fraudulently conveyed away some of the land, and he asked to have the conveyances set aside, and that he might be allowed to-sell the land free from said conveyances. The circuit judge made a decree to the effect that 40 acres of said land, when the levy was made, was occupied by Clark as a homestead, and was exempt from levy and sale upon execution, and that said land is now owned by the defendants Newville, and that the levy upon said land was a cloud upon the title, and required complainant to make a release of the levy. The decree also finds that Harriet Carpenter has a mortgage interest in the west 80 acres of the land in controversy, amounting to $728, for which amount she is given a lien upon said land. It also finds "that Mrs. Carpenter entered into possession of the land.

under color of title, and occupied it in good faith, and made improvements thereon amounting to $700, for which she is given a further lien upon said lands. It further finds that there is due the complainant $523, for which, by reason of his levy, he has a lien upon all of the land, except the 40 acres decreed to be a homestead, subject to the lien of Mrs. Carpenter of $1,428, and authorized the complainant to sell said land, subject to said lien, to satisfy his debt. From this decree complainant appeals. 'None of the defendants appealed.

The solicitors for the defendants urge here, for the first time, that under the provisions of 2 How. Stat. § 6108 (3 Comp. Laws 1897, § 9167), complainant did not bring his proceeding in time (citing Edsell v. Nevins, 80 Mich. 151 [44 N. W. 1115]), and that the bill should have been dismissed. The defendants have not appealed from the decree. No such claim was made in any of the answers, nor was it made in the court below. Issue was joined, and a full hearing had upon the merits. The question cannot, under such circumstances, be raised here for the first time.

It is the claim of the complainant that all of the land •described in the bill of complaint should be subject to his le^y, and he makes a long argument in support of his position. We are satisfied with the decree below in relation to the homestead of Mr. Newville, and with that part of the decree finding Mrs. Carpenter entitled to a mortgage lien upon the land, and do not deem it necessary to discuss those features of the case. The portion of the. decree in relation to which we think discussion is necessary is that part of it giving Mrs. Carpenter a lien for the value of her improvements ahead of the lien established by the attachment and execution levy. It is the claim of the complainant that this part of the decree cannot be sustained, for three reasons:

1. Because Mrs. Carpenter is not an occupant under color of title and in good faith.

2. Because her title is by quitclaim deed (citing Peters v. Cartier, 80 Mich. 124 [45 N. W. 73, 20 Am. St. Rep. 508]).

3. Because, by virtue of the statute (3 Comp. Laws 1897, § 10995), the measure of the sum to be paid for the improvements is not the cost of the improvements, but the increased value of the premises.

There is no doubt the rule is properly stated in the third reason as to the value of the improvements. The objection was not made in the court below to the testimony of the witnesses who testified as to the cost of the improvements, that they should not be allowed to testify as to the cost of the improvements, but should confine their testimony to stating how much the improvements enhanced the value of the land. So far as the record discloses, this objection is made here for the first time. The witnesses were sworn in open court. The record is in the narrative form. The witnesses testified as to the value of the improvements. They were not required to limit their testimony to the enhanced value of the land by reason of the improvements. We are not prepared to say the circuit judge reached a wrong conclusion as to the value of these improvements.

As to the first of these reasons: The purchase of the land was made by Mr. Carpenter on the part of his wife. He testifies that when he bought the land for his wife he bought it in good faith, and supposed he was buying a good title, and that they knew nothing to the contrary until nearly all the improvements had been made. It is the claim of complainant that in May, after the Carpenters moved upon the land, he saw Mrs. Carpenter at her home, and notified her that she must not make improvements upon the land. Cleland at jhe same time gave a like notice to Mr. Newville, who was living on the 4Q acres obtained by him from Mr. Clark. Mr. Newville testified that the value of the improvements made by the Carpenters on their land at this time was from seven to eight hundred dollars. The circuit judge had the advan-

tage of seeing the witnesses and judging of their credibility. The testimony justified the circuit judge in the conclusion he reached as to the value of the improvements made before complainant notified the defendants they must not make their improvements.

Is the case of Peters v. Cartier, 80 Mich. 124 (45 N. W. 73, 20 Am. St. Rep. 508), conclusive against the right of Mrs. Carpenter to make this defense? The opinion in that case indicates pretty clearly that Cartier knew he had no title. It is stated there, as is claimed by counsel here, that persons who hold by a quitclaim deed are not bona fide purchasers; but as was explained in Ripley v. Seligman, 88 Mich. 177 (50 N. W. 143), and Culbertson v. Witbeck Co., 92 Mich. 469 (52 N. W. 993), the case arose .under the recording laws, and does not apply to the case at bar. See, also, Otis v. Kennedy, 107 Mich. 312 (65 N. W. 219). If the complainant had faith enough in his attachment and execution levy to buy in the land at execution sale, and had then brought ejectment, could there be any doubt of the right of Mrs. Carpenter under the provisions of section 10995, 3 Comp. Laws 1897, to make this defense ? Why should she be deprived of that right, because the complainant has seen fit to appeal to the equity side of the court ? The theory of all the betterment laws is that no one should be made richer at the expense of another. The claim for betterments is founded upon equitable grounds, and it would be a novel proposition that one could cut off an equitable defense, which could be successfully urged at law, by selecting the equity court as a forum, instead of litigating his case upon the law side of the court. As was said by Justice Montgomery in Petit v. Railroad Co., 119 Mich. 492 (78 N. W. 554), “The good faith intended by this statute means honest belief of the occupant in his right or title.” See, also, Miller v. Clark, 56 Mich. 337 (23 N. W. 35); Sherman v. A. P. Cook Co., 98 Mich. 61 (57 N. W. 23); Lemerand v. Railroad Co., 117 Mich. 309 (75 N. W. 763); Cole v. Johnson, 53 Miss. 94; Rawson v. Fox, 65 Ill. 200; Grisiwold v. Bragg, 19 Blatchf. 94 (6 Fed. 342); Canal Bank v. Hudson, 111 U. S. 66 (4 Sup. Ct. 303).

The decree of the court below is affirmed. We are asked to allow defendants Newville more than usual costs. We decline to do so. The defendants will have costs of this court.

The other Justices concurred.


author: Moore, J.

text:
    DOLLAR v. CITY OF MARQUETTE.
    1. Municipal Corporations — Claim for Injuries — Presentation — Action by Council — Invalid Conditions.
    Under a city charter providing that persons claiming damages for injuries caused'by defective,sidewalks shall, within 30 days after the injury, give written notice thereof to the mayor, recorder, or city attorney, and within 90 days present ' a sworn claim to the city controller, stating the time, place, cause, and manner of such injury, and the facts connected therewith, and the witnesses, if any, present when such injury was received, it is the duty of the council to act upon a claim when duly presented, without demanding, as a condition precedent to its action, that the claimant appear with his witnesses before a committee of the council.
    2. Same — Remedy—Appeal.
    Provisions of a city charter relating to appeals to the circuit court from the disallowance of claims by the common council have no application where the council refuses to act upon a claim duly presented until the fulfillment by claimant of conditions which it has no right to impose, but in such case the claimant may maintain an original action to enforce his claim.
    Ei’ror to Marquette; Stone, J.
    Submitted January 12, 1900.
    Decided March 6, 1900.

      Case by Frank Dollar against the city of Marquette for personal injuries. From a judgment for defendant, plaintiff brings error.
    Reversed.

      John L. Heffernan (JS. J. Mopes, of counsel), for appellant.

      George P. Brown (Charles R. Brown, of counsel), for appellee.
   Moore, J.

Suit is brought by declaration in an action on the case for damages claimed to have been sustained by plaintiff by reason of a defect in a sidewalk. The declaration alleges service upon the mayor of such notice of the alleged injury, and the presentation to the ■controller of such verified claim, as are required to be made by the city charter. The declaration also alleges the presentation of the claim to the council, its reference to a committee, report thereon, and laying of the same on the table, and charges that the council, having reasonable opportunity, has unreasonably and purposely refused and ■neglected to allow and pay or reject the claim. Plea in abatement was interposed upon two grounds:

1. That the subject-matter is pending before the council, undetermined, to be taken up and disposed of whenever claimant will appear to be examined as a witness as to the cause and extent of his alleged injuries; that the ■delay and failure of the council to allow or reject the claim have been occasioned wholly by the failure, neglect, and refusal of the claimant to appear and testify before its committee or to produce any evidence; that the council is, and has been at all times, ready to consider and act upon * said claim upon its merits, upon evidence which will enable it to act intelligently and fairly.

2. That the case was not brought into the circuit court by appeal from any action or determination of the council upon said claim.

■ The case requires the construction of charter provisions contained in sections 19-22, chap. 11, Act No. 323, Local Acts 1893, which are as follows:

“Sec. 19. The said city shall not be liable to respond in damages for any injury to person or property occasioned, by any defect or alleged defect in any public street, lane, alley, park, walk, public space, or public building or public ground within said city, unless the person claiming such damages shall, within thirty days next after such injury, give written notice to the mayor, recorder, or city attorney of the fact, date, and particulars of such injury, and shall, within ninety days next after such injury, present such claim to the controller of said city in writing and under oath, stating the time, place, cause, and manner of such injury, and the facts connected therewith, and the witnesses, if any, present when such injury was received, and the amount of damages claimed by reason of such injury.
“ Sec. 20. In case any such claim is disallowed by the-common council, or the party claimant is not content with the amount awarded or tendered such claimant in settlement thereof, such claimant shall, within ten days after notice of the action of the council upon said claim, file-with the city recorder a notice of such claimant’s intention to appeal from such determination, and shall, within sixty days next thereafter, cause a transcript of such claim, together with a certified copy of any Vote of the council of said city relative to such claim, to be filed in the office of the clerk of the circuit court of the county of Marquette, in the form and manner appeals from justices of the peace are now filed; and it is hereby made the duty of the recorder to make such certified copy for said appellant without charge therefor.
“ Sec. 21. Before filing such appeal, the clerk of said county shall require' the appellant to execute and file a bond in the sum of three hundred dollars, with one or more sureties, conditioned for the payment of all costs adjudged against the appellant in said action, which bond shall be filed in said cause: Provided, however, that in. case the appellant shall make affidavit that, by reason of' poverty, such appellant is not able to furnish such security,, such bond shall not be required, except upon motion and showing made to the judge of said circuit court that the appellant is able to furnish such security.
“Sec. 22. The appellant shall, upon filing said appeal,, cause notice thereof to be served upon the city attorney, and after such notice the said cause shall be proceeded in, in the same manner as prescribed by law in. suits commenced by summons.”

There is scarcely any dispute about the facts. They are substantially as follows: July 9, 1898, plaintiff served written notice on the mayor of an alleged injury received June 12, 1898, by reason of a defect in a sidewalk in a public street, and on September 10th following filed with the controller his verified claim. At its next session, September 19th, the common council referred the claim to a standing committee, which committee reported at the next session, October 3d, that they had the claim under consideration, and had made such investigation thereof as they were able, from which, in their opinion, there was grave question as to whether, as a matter of fact, the claimant “is or has been suffering from any injury, and as to whether, as matter of fact, any injury which he may have received is or was through or in consequence of any fault on the part of the city,” and recommended that testimony bearing thereon should be formally taken, and submitted to the council for its consideration in acting upon the claim. The council appointed a committee to investigate the claim, empowering them to summon witnesses, employ a stenographer, and make report of their doings “with all convenient speed.” The date for the next regular session thereafter was November 7th. It was agreed upon October 10th between claimant’s representative and the city attorney, acting for said committee, that November 1st would best suit the convenience of all parties to appear before the committee; and on October 31st claimant was personally served with a notice of the appointment, powers, and purposes of the committee, and that they would meet at 8 p. m., November 1st, to commence taking proofs, and that claimant was required to be present with his witnesses to testify in support of his claim. The hearing was adjourned until November 3d. Claimant did not attend. • His attorney appeared specially, and insisted that, although the claimant was under no legal obligation to do so, he was willing to submit to an examination by any two or more reputable physicians as to his injuries; that he was practically a pauper, and unable to furnish medical testimony. Until that was done, he refused to produce evidence, unless the committee would accept as conclusive the testimony of the physician who, without compensation, had been attending him. In addition, claimant, by his attorney, while insisting on his legal rights, offered to produce, if the committee would furnish the means, all the testimony possible to show the merits of the case; objecting to a partial investigation, where he had not the means to produce all the facts. This he offered to do without subpoena, and without notice. The committee decided that it had jurisdiction, and would not accept the offer. The chairman then declared the investigation closed. At the next session of the council, the committee reported fully in writing, and recommended that said claim be laid on the table until such time as the claimant was willing to produce before the council or its committee the evidence required in support of his claim. The claim was laid upon the table. No further action was taken by the council or the committee. No appeal was taken by plaintiff to the circuit court from any action or determination of the common council upon the claim. On December 23d this action was commenced in the circuit court. The case was tried by the circuit judge without a jury, who found the facts substantially as herein stated. He found, as a matter of law, that:

“It was the right and duty of the common council to investigate and pass upon the claim, and, by allowing it in whole or in part, or by rejecting it, reach such a determination thereon as would be appealable to this court, before jurisdiction of the claim could be entertained by this court, unless such right had been waived either expressly or impliedly, by failure to diligently investigate and act on such claim.”

He held that the council had been diligent in the investigation of the claim, and had a right to suspend the investigation of the claim until the plaintiff should be willing to appear and be examined as a witness and produce the evidence in support of his claim, and that their failure to act was not such a waiver as would entitle the plaintiff to appeal to the circuit court, and that upon the facts in the case plaintiff is not entitled to maintain this action. A judgment was entered in favor of the defendant.

Counsel for appellant make two propositions: (1) That the charter provisions above quoted are unconstitutional; and (2) if not unconstitutional, their provisions have been waived by the common council. It is the claim of counsel for defendant (1) that the charter provisions are constitutional ; (2) that the common council has not the power to waive their provisions; and (3) that there has been no such waiver.

It is claimed that the law is unconstitutional because it undertakes to, provide for a judicial tribunal unknown to the Constitution, taking from the circuit courts jurisdiction of causes of action, except they are brought into those courts by appeal from a body unable, under the Constitution, to exercise judicial powers. It is urged that this is a clear invasion by the legislative department of the judicial department of the government. On the other hand, it is insisted that the charter provisions simply affect the remedy, and do not affect the cause of action. Speaking for myself, I should be inclined to the opinion that the law was unconstitutional, because of conferring upon the council judicial power, if I accepted the argument urged by the counsel for the city, that the council was empowered to compel the attendance of the plaintiff and his witnesses, and enter upon a full hearing of the case, and, upon their coming to a conclusion against the plaintiff, their action would be final unless he appealed to the circuit court from this decision. As I view the case, I do not deem it necessary to pass upon the question of the constitutionality of the act. In the absence of these charter provisions, under the general laws of the State, plaintiff would have a cause of action against the city. The charter provisions do not in terms repeal the provisions of the general law. Section 19, already quoted, provides what the claimant must do. Mr. Dollar complied literally with these provisions. The charter does not require him to appear personally and with his witnesses before either the council or a committee appointed by it. When the claimant has complied with the provisions of section 19, it becomes the duty of the council to take action upon the claim. Section 20 gives the claimant no right of appeal, except his claim is disallowed. The council did not disallow his claim, and therefore the conditions under which he was entitled to an appeal had not occurred, and he was not authorized to make it. What is the result? An injury occurred early in June, of which written notice is given in early July, and a verified claim made in early September. The council impose conditions upon the claimant which they have no right to impose upon him, and assign that as a reason for refusing to act, and they say he has no remedy. A statute of this sort was construed in Kraft v. City of Madison, 98 Wis. 252 (73 N. W. 775). Mr. Kraft had a claim against the city, and presented it to the common council, who referred it to a committee. No further action was taken, and he brought suit in the circuit court. It was claimed on the part of the city, as it is claimed here, that the circuit court could get jurisdiction in no other way than by an appeal from the common council disallowing the claim. We quote from the opinion:

“The charter of the appellant provides that no action shall be maintained against the city until the claim on which it is based shall have been first presented to the common council for allowance. The determination of the common council, disallowing the claim, is made final, and a complete bar to any action founded on such claim, otherwise than by an appeal to the circuit court for Dane county, as therein provided. The effect of these provisions of the charter is that no action can be maintained until the claim on which it is based has been presented to the common council for allowance. If the claim is allowed, an action upon it is forestalled and unnecessary. If it is disallowed, no action can be instituted for its recovery. The exclusive remedy in that case is the appeal provided by the charter. So it is always within the power of the common council to prevent the institution of an action against the city in the usual way by acting upon the claim. By allowance it forestalls an action; by disallowance it substitutes an appeal for the ordinary action. These restrictions on the mode of enforcing claims against the city are of some substantial advantage to the city. The claimant, to make his appeal effectual, must give a bond to indemnify the city against the costs of the appeal; •and so the city .is protected against the cost of defending against ill-founded or fictitious claims. This protection it can always command by proper action on the claims. But there is no provision in the charter for the case of an entire omission of the common council to act upon the claim, — either to allow or to disallow it. The institution of an action in the ordinary way upon the claim in that case is not expressly forbidden by the charter. It would seem that in that case the claimant should be remitted to the ordinary remedy for the enforcement of his right; for surely the ordinary remedies of parties are not taken away, except by express prohibition or very plain implication. These provisions of the charter, being intended for the benefit of the city, can be waived by it. No doubt, the common council is to be allowed a sufficient and reasonable time in which to make audit of the claim. It is entitled to so much time for that purpose as is reasonably necessary to enable it fairly to investigate the facts out of which the claim arises and on which it rests, and to inform itself Of its justness and legality. Until the expiration of such reasonable time, the city should not be subject to be harassed by an action. But, by omitting to act upon the claim within such reasonable time, it may fairly be deemed to waive the benefit of its exemption from an action instituted in the usual way. It cannot by inaction stand off the claimant indefinitely.”

See, also, White v. County of Polk, 17 Iowa, 413; Sharp v. City of Mansion, 92 Wis. 629 (66 N. W. 803).

The charter of the city of Lansing has a provision that it shall be a defense to a claim of this character that a verified claim had not been rejected by the council, or that the action or proceeding was brought before the council had reasonable time to pass upon the claim. A claim was presented January 16th. It was referred to the city attorney, who reported it back with the recommendation that it be laid upon the table, which was done. The council made no investigation of the merits of the claim, and suit was brought April 23d. The court held that the plaintiff had substantially complied with the provisions of the-charter, and could maintain her action. Dundas v. City of Lansing, 75 Mich. 499 (42 N. W. 1011, 5 L. R. A. 143, 13 Am. St. Rep. 457). The charter of Port Huron . has a similar provision. The plaintiff presented her claim December 6th. No action was taken upon it, and on January 12th she brought her suit. The court said that she waited long enough before she did it. Whitney v. City of Port Huron, 88 Mich. 268 (50 N. W. 316, 26 Am. St. Rep. 291). The charter of Muskegon provides that suits shall not be instituted against the city until a claim, duly verified, has been presented to the common council. It was held that where a claim not properly verified was rejected, but not for that reason, the defect was waived. Germaine v. City of Muskegon, 105 Mich. 213 (63 N. W. 78). The city of Jackson has a charter provision like-the one in the charter of the city of Lansing, to which we have alluded. A claim which had not been presented to-the council was sued. The city did not interpose the defense given it by the charter until upon a motion for a new trial, after the case had been tried upon the merits. It was held that the defense was interposed too late. Canfield v. City of Jackson, 112 Mich. 120 (70 N. W. 444). See, also, Griswold v. City of Ludington, 116 Mich. 401 (74 N. W. 663).

It will be seen from these cases that the defense is not one which may be urged by the city, irrespective Of what it has done or has failed to do. When Mr. Dollar complied with the provisions of section 19, it then became the duty of the city to act. It was entitled to a reasonable time to investigate the claim, and either allow or disallow it. But it must do either one thing or the other. It could not impose conditions upon Mr. Dollar not imposed by the statute, and refuse to act until he had complied with those-conditions. Five months elapsed after the city was notified of the accident before suit was brought. It was not brought until six weeks after his claim had been laid upon the table because he did not submit to conditions not imposed upon him by the charter. Unless he was willing to abandon his claim altogether, it is difficult to see what else he could do, except to bring suit.

Judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    SMITH v. KIDD.
    Homestead — Abandonment.
    One cannot claim homestead rights in a house and lot from which he has removed with his family, and to which he has no definite intention of returning.
    Appeal from Berrien; Coolidge, J.
    Submitted February 8, 1900.
    Decided March 6, 1900.
    Bill by Alfred E. Smith against Andrew J. Kidd and others to set aside a levy and sale on execution. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    Complainant seeks by bill in equity to set aside an execution levy and sale upon the ground that the land levied upon and sold was a homestead. Complainant purchased the land in 1892, built a house upon it, moved into it, and resided there until 1894. He then rented it, and his wife and family moved into the upper story of another building in New Buffalo, in the first story of which he had a store. He closed this business out in 1895. He then left New Buffalo, entered the service of the Detroit & Mackinac Railroad Company as engineer, and made his home at East Tawas, with his sister, where he still lives. He has continued in this employment ever since, has never returned to New Buffalo, and has voted elsewhere. About a year after complainant left New Buffalo, his wife and children moved to Detroit, where they have since resided. She was not made a party to the bill, and was not a witness.

      Main J. Connine, for complainant..

      Valentine & Ellsworth, for defendants.
   Grant, J.

(after stating the facts). If complainant had not abandoned his homestead, it would follow that there can be no abandonment if the party will testify that he intended at some future time to return to it. Ownership and occupancy are both required by the Constitution and statute to establish a homestead. Const, art. 16, § 2; 3 Comp. Laws 1897, § 10362. Temporary absence has often been held not to destroy the occupancy required. Complainant testified: “I don’t know as I will come back to New Buffalo at all. * * * I think I will make my home in East Tawas. I have not fully made up my mind to this. I have been thinking of this about a year.” The abandonment was complete. The circuit judge was right in dismissing the bill. The case is ruled by Hoffman v. Buschman, 95 Mich. 538 (55 N. W. 458), where the defendants made a much stronger case than has the complainant in this.

Decree affirmed.

The other Justices concurred.


author: Mooke, J.

text:
    BLY v. BLISS.
    Actions — Parties—Lease—Assignment of Undivided Interest.
    Under 3 Comp. Laws 1897, § 10054, authorizing the assignee of a chose in action to sue thereon in his own name, the assignee of an undivided interest in a lease may join with the owner of the other undivided interest in a suit for rent.
    Error to St. Joseph; Yaple, J.
    Submitted January 12, 1900.
    Decided March 6, 1900.

      Assumpsit by Kinyon Bly and Alexander Taylor against Isaac G. Bliss, impleaded with J. W. Brady and A. L. Guthrie, for rent. From a judgment for plaintiffs, defendant brings error.
    Affirmed.
    Stewart° & Bliss and B. E. & L. F. Andrews, for appellant.

      J. B. Carr and L. B. Des Voignes, for appellees.
   Mooke, J.

This case has been here before, and is reported as Bly v. Brady in 113 Mich. 176 (71 N. W. 521). A reference to that case will make a detailed statement of the questions involved here unnecessary. In the last trial of the case the plaintiffs obtained a judgment. The defendant has brought the case here by writ of error, assigning 30 errors. Many of the assignments relate to questions that were argued and passed upon when the case was here before. They are again argued here. We do not deem it necessary to allude to them further. Other of the assignments of error relate to rulings upon the admission of evidence, remarks of counsel, and the charge of the court. We have examined all of them carefully, but, except as referred to later, we do not deem it necessary to discuss them, as we are satisfied that the learned judge, as to those matters, carefully guarded the rights of the defendant.

In the course of the trial it appeared that, prior to the time Palmer and Sherrod assigned their interest 'in the lease to Mr. Taylor, Mr. Bly had collected one-half of the rent which was paid, and Sherrod and Palmer had collected the other half. It is claimed by counsel that Taylor, as assignee of part of a chose in action, cannot join in this proceeding with Mr. Bly, who was an original party to the lease, as Mr. Bly, suing as original payee, and Mr. Taylor, as assignee of the other payee, must in their declaration declare in different capacities; citing Mandlebaum v. McDonell, 29 Mich. 91; Learned v. Ayers, 41 Mich. 679 (3 N. W. 178); Otis v. Adams, 56 N. J. Law, 38 (27 Atl. 1092); and other cases. An examination of the cases shows they are not in point. I take it there could be no question but that this action could have been maintained in the names of Bly, Sherrod, and Palmer,, had no assignment been made. The declaration is upon the common counts, and also upon the lease—

“Dated the 28th of March, 1889, signed by Kenyon Bly, one of the above-named plaintiffs, and by E. A. Palmer and C. A. Sherrod, which said E. A. Palmer and C. A. Sherrod have duly assigned their entire interest in said lease to Alexander Taylor, one of the above-named plaintiffs, which said assignment is in writing, and filed herein.”

The record discloses that, when the lease was made, Mr. Bly owned an undivided one-half of the store property, and Palmer and Sherrod owned the other half. Before this action was commenced, Palmer and Sherrod deeded to Mr. Taylor an undivided one-half of the real estate. They also assigned to him all their right and interest in the lease. Mr. Bly being the owner of an undivided one-half of the property, and Palmer and Sherrod of the other half, what interest had the respective parties in the rent due upon the leased property? Clearly, Mr. Bly was entitled to an undivided one-half interest therein and Palmer and Sherrod to the other undivided one-half. When Palmer and Sherrod deeded their interest in the real estate and assigned the lease to Mr. Taylor, he sue- • needed to their rights, and became the owner of an undivided one-half of the amount due on the lease, so that at this time the debt became one due to Bly and Taylor. Under the provisions of section 10051, 3 Comp. Laws 1897, and the many cases there cited, it was competent to bring the suit in the form in which it was brought.

Judgment is affirmed.

The other Justices concurred.