author:
Brooke, C. J.
      Mr. Justice Moore,

text:
    MYERS v. MYERS.
    1. Taxation — Life Tenancy — Obligation to Remainderman.
    The duty to pay taxes rests upon a life tenant as between him and the remainderman.

    2. Husband and'Wife — Taxes—Adverse Interests.
    A purchaser of a tax title by the wife of a life tenant, occupying the premises jointly with her husband, inures to the benefit of the remainderman to whom the life tenant owed the 'obligation to pay the tax.
    3. Homestead — Taxes—Husband and Wife — Estates.
    Premises occupied by the life tenant and his family as a homestead may not he purchased at tax sale by the wife so as to divest her husband of his life interest, or the persons entitled to the remainder of their title.

      4. Same — Marriage.
    Neither husband nor wife may secure a tax title upon premises occupied as their joint, homestead and defeat the interest of the other party to the marital relation.
    Appeal from Lenawee; O’Mealey,' J.
    Submitted April 14, 1915.
    (Docket No. 82.)
    Decided June 7, 1915.
    Bill by Almond B. Myers and another against Dan-forth Myers and others to set aside a tax deed.'' From a decree for defendants', complainants appeal.
    Reversed.

      J. N. Sampson and Arthur P. Hicks, for. complainants.

      Baldwin, Alexander & Bussell, B. L. Hart, and H. B. Jewett, for defendants.
    The bill of complaint in this cause is filed for the purpose of setting aside a tax deed dated June 15, 1894, by the terms of which the defendant Charlotte Myers secured title to 100 acres of land described therein. The facts upon which the controversy arises are, briefly, as follows: In the year 1865 the defendant Danforth Myers married one Susan Bates. Two children were born of this union — the two complainants in this case. Some time prior to the year 1882, Susan Bates Myers secured a divorce from the defendant Danforth Myers, and she and her two children took up their residence apart from the defendant Danforth Myers. In the year 1882, said Danforth Myers married the defendant Charlotte Myers, and as a result of this union four children were born, who are the other defendants named in the bill .of complaint. It appears that Nathan Myers, who was the father of Danforth Myers, left a last will and testament by the terms of which he devised to his son, defendant Danforth Myers, a life estate in 100' acres of-land, which is the farm in controversy in this case. The remainder was devised by said Nathan Myers to the two complainants and to any other child or children' of said Danforth Myers yet unborn, to be equally divided between them after the expiration of the life estate. Nathan Myers, the testator, died in-the year 1887,. and shortly thereafter • defendant Danforth Myers with his second wife and such of his children by said- second wife as were then in being went upon said farm, and from that time up to two of three years ago they-have made said farm their home. During the last two or three years said defendant and his wife 'have not lived -upon the farm, but it is in possession of their .son, defendant Floyd, under some arrangement satisfactory to them. The record discloses the fact that defendant Danforth Myers was from early manhood addicted to the excessive use of intoxicating liquor. He seems to have been a fairly industrious worker, - but his overindulgence in the use of intoxicants unfortunately -resulted in his becoming shiftless and permitting things to go at loose ends about the farm. This course entailed upon his wife and family much -suffering. His wife, defendant Charlotte Myers, was obliged to and did frequently seek employment of a menial nature in the houses of neighbors in order that she might secure money with which to clothe and feed her children at times when the dissolute habits of her husband prevented him from making suitable provision in that behalf. The taxes upon the farm were not paid for the year 1890. The place was.advertised for sale and was bid in by the State. Defendant Charlotte Myers, through her own labors and by sacrificing some articles of jewelry which she had owned before her marriage, was able to purchase the same 'from the State, which she did in 1894 at a cost of $44.88. Since that time the family, consisting of Danforth Myers, Charlotte Myers, and their four children, have continued to occupy the farm as before as their home, and the taxes have been paid by defendant Charlotte Myers. During the years following her purchase of the farm from the State, defendant Charlotte Myers was able to pay the taxes and preserve a home for herself, her husband, and her children, only with the greatest difficulty. The farm at the time she purchased the tax title was worth about $5,000, and at the present time is worth between $7,500 and $8,000.
    Complainants charge in their bill of complaint that by permitting the taxes to go unpaid and the land to be sold to the State, and afterwards repurchasing it in the name of defendant Charlotte Myers, defendants Danforth Myers and Charlotte Myers- have wrongfully conspired to rob them of their interest in the estate of their paternal grandfather. They further charge that whether entered into deliberately with the purpose of defrauding them, the transaction, if permitted to stand, will amount to a legal fraud upon their rights. The six defendants answer jointly and deny any fraudulent intent. They all insist, however, that by the purchase of the tax title from the State, defendant Charlotte Myers became in fact the sole owner of the farm in question, and that whatever interest complainants had therein under the will of their grandfather Nathan Myers has been cut off by such sale and purchase.

       As to duty of life tenant to pay taxes see note in 32 L. R. A. 744.

   Brooke, C. J.

(after stating the facts). After a careful perusal of the record before us, we find no difficulty in agreeing with the finding of the learned circuit judge that the defendant Charlotte Myers did not acquire the tax title as the result of an express agreement between herself and her husband, but that she did so for the sole purpose of preserving a home for herself and her children. She took the title in her own name instead of in the name of her husband, upon the advice of counsel, and it would seem probable that originally she had no thought of asserting an absolute ownership in the farm growing out of the deed to her from the auditor general. This position she takes now, however, and through her counsel asserts with confidence that she was under no disability at the time of the purchase which would prevent her from acquiring title from the State. On the part of the complainants it is urged that a wife, who with her husband is in possession of a piece of real estate in which the husband has a life estate, cannot become a purchaser of a tax title from the State which she could assert adversely to the interest of her husband or the remainderman. The proper solution of this question will dispose of the case, and in reaching a determination we think the peculiar hardship under which defendant Charlotte Myers acted at the time she made the purchase from the State should be wholly disregarded as not affecting the principle involved; it being conceded that she acted in good faith and without fraud

The exact question involved is without precedent in this State. In the case of Ward v. Nestell, 113 Mich. 185 (71 N. W. 593), Mr. Justice Grant said:

“The law does not permit a husband to acquire a tax title adverse to the title of his wife. This tax title inured to her benefit just as conclusively as though he had taken the title in her name. It could not be made the basis of an adverse possession during her life”

—citing several cases, among them Laton v. Balcom, 64 N. H. 92 (6 Atl. 37, 10 Am. St. Rep. 381).

Mr. Justice Moore,

in writing what afterwards became the opinion of the court, said:

“I agree with Mr. Justice Grant that the husband, while in joint occupancy of land with his wife, cannot acquire a tax title valid as against her.”

In Simons v. Rood, 129 Mich. 345 (88 N. W. 879), Mr. Justice Hooker, speaking for the court, said:

“It is inequitable for a husband to acquire title to the wife’s premises by obtaining tax titles upon them. As to her, at least, they would be void. So, also, should they be as to her grantees or mortgagees, under circumstances like these. * * * If there was not collusion between the Roods in acquiring the title, Dearborn Rood paid the taxes for her; and in such case, or if the purchase was collusive, it was a fraudulent taking color of title, merely.”

A somewhat similar question was considered in Hubbard v. Shepard, 117 Mich. 25 (75 N. W. 92, 72 Am. St. Rep. 548), and also in Chamberlain v. Forbes, 126 Mich. 86 (85 N. W. 253).

There can be no doubt concerning the rule in this State in a case where a husband attempts to acquire a tax title to his wife’s property. This cannot be done even though the title is not asserted against the wife herself, but only against those who claim through her.

There remains for determination the question whether the rule applicable to husbands should apply to wives who thus seek to acquire title to property in which their husbands are interested. In this connection, an examination of the case of Laton v. Balcom, 64 N. H. 92 (6 Atl. 37, 10 Am. St. Rep. 381), twice cited with approval, will be found illuminating. The court there said:

“The obligations and' duties of husbands and wives to each other, both express and implied, create such relations of trust and confidence between them that neither can acquire the other’s property by a clandestine payment of taxes. Such a seizure of each other’s estate, alike inequitable and shocking to the moral sense, is believed to be unsupported by any adjudged case, and would be a palpable violation of the marital contract, which, from its very nature, creates a mutúal right'of faith in the constant regard of each for the interests and welfare of the other.' In this respect husband and wife are still a legal unit. * * * And although ‘they two are no longer one, and he that one,’ in respect to property, they still have interests, direct and indirect, in each other’s estates, and these interests alone, like those of partners and tenants in common, are sufficient to prohibit such an adverse resort to a tax title by either as in the fair understanding of both would be a breach of marital faith.”

In the case of Nagle v. Tieperman, 74 Kan. 32 (85 Pac. 941, 88 Pac. 969, 9 L. R. A. [N. S.] 674, 10 Am. & Eng. Ann. Cas. 977), it was held that in the absence of fraud a married woman could acquire a valid tax title upon the husband’s property. A note to this case, found in 9 L. R. A. (N. S.) page 674, indicates that the decision not only overrules several previous decisions in Kansas, but is contrary to the weight of authority on the point in question. A strong dissenting opinion was filed in this case, the reasoning of which follows that used in Laton v. Balcom, supra.

In support of complainants’ position, see, also, Swift v. Agnes, 33 Wis. 228; Herrin v. Henry, 75 Ark. 273 (87 S. W. 430); Life Insurance Co. v. Day, 127 N. C. 133 (37 S. E. 158); and Sanders v. Ellis, 42 Ark. 215.

As between defendant Danforth Myers and the remaindermen, there is no doubt that the obligation to pay the taxes during the life tenancy rested upon him. Jeffers v. Sydnam, 129 Mich. 440 (89 N. W. 42), and cases cited.

The homestead right, which is not only for the benefit of the owner but for that of his wife and family as well (Riggs v. Sterling, 60 Mich. 643 [27 N. W. 705, 1 Am. St. Rep. 554]), attaches as well to a life estate as to an estate in fee. 21 Cyc. p. 504, and cases cited in note 60.

The farm in question was undoubtedly occupied as a home by all of the defendants both before and after the purchase by defendant Charlotte Myers from the State.

We are of opinion, after a careful examination of all the authorities touching this question, that it must be held that Charlotte Myers, by reason of her relationship to Danforth Myers and the duties and obligations arising therefrom, could not become the owner of a tax title upon a piece of property in which her husband was interested as life tenant, which she together with her husband and children were occupying as a home at the time said title was acquired. We perceive no reason why the rule applicable to husbands prohibiting them from acquiring tax titles upon the property of wives should not be applied to wives as well as husbands. The basic ground for the inhibition as to husbands is of equal validity as to wives.

The fact that her husband is not here complaining, but is apparently consenting, should make no difference in the conclusion. If her tax title is good, she has a right as against her husband to oust him from the possession of the property during his lifetime. To affirm such a right, we think, would tend to the destruction of the marital relation, as well as to the perpetration of fraud.

The prayer of the bill asking that the tax deed of «une 15, 1894, be set aside and be declared void, as to complainants, must be granted, and, inasmuch as the deed obtained by said defendant Charlotte Myers from one Edwin Winne growing out of the foreclosure of a mortgage given by herself rests upon her own title under the tax deed, that likewise must be canceled as to complainants.

A decree will be entered in this court to that effect, with costs of both courts to be taxed.

McAlvay, Kuhn, Stone, Ostrander, Moore, and Steere, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    MAURER v. SCHOOL DISTRICT NO. 1.
    1. Contracts — Waiver oe Terms — Breach — Building Contracts —Construction.
    A construction contract provided that plaintiffs should complete their work on or before a stated date, and that the payments should be made upon the certificates of the architect acting in defendant’s behalf. There was a further provision for liquidated damages of $10 per day in case of failure to complete the building in time. Plaintiffs obtained payments upon the contract, from time to time, as the work progressed without presenting the certificates of the architect to defendant. The building was completed after 6 months’ delay, which plaintiffs claimed was due to the act of the defendant and its architect in calling for extra work without due notice under the provisions of the contract. Belli, that since the architect had no authority under the agreement to refuse a certificate for the reason given by him, i. e., that there-was--a,'dispute as 'to, ,the: .amojmt of liquidated damages due under it which had nqt been adjusted, defendant had waived the provisions of the contract in relation to the requirement of a certificate from '.the architect and plaintiffs were entitled to a judgment:"
    2'. Same — Delay—Breach of Contract^-Recoupment.
    Where the defendant school district caused a delay in the construction of the school building, in that the defendant had to drain an "excavation upon the lot to be used, and its architect made serious errors in the plans, necessitating a reconstruction of a part of the building, and where the defendant delayed to notify plaintiffs of its election to have the defendant construct the second story of the building as agreed upon in the written contract, all of which tended to cause delay in completing the structure, it was not a defense of plaintiffs’ action for the contract price, and defendant must be held to have abandoned the time limit provided for; the trial court should have directed a verdict in plaintiffs’ favor upon the question of liquidated damages.
    3. Same — Arbitration—Construction of Contract — Damages.
    A clause in the contract providing for arbitration of damages in case of defendant’s delay in providing materials, did not apply where no materials were furnished by defendant, and the only question in dispute was one of liquidated damages for alleged delay in construction.
    4. Same — Conditions Precedent — Affidavit.
    Failure to comply with the statute provision calling for an affidavit of the contractor to show the sums due to material-men in case a bond was not given, it appearing that such bond was provided and there were no unpaid claims for materials, did not defeat the right of plaintiffs to recover the balance due as the contract price.
    5. Pleading — Declaration—Building Contracts — Waiver.
    Although plaintiffs’ declaration setting forth a written contract of construction, attached to the common counts in assumpsit, did not state the claim that defendant had waived the clause or provision for completion within a fixed time limit, it sufficiently authorized the recovery of plaintiffs for the balance due for constructing the building.

      Error to Oakland; Smith, J.
    Submitted April 6, 1915.
    (Docket No. 5.)
    Decided June 7, 1915.
    Assumpsit by Charles A. Maurer and O. G. Shoup against school district No. 1 of the township of Bloomfield in the county of Oakland. Judgment for defendant upon a directed verdict. Plaintiffs bring error.
    Reversed.

      Willis Baldwin, for appellants.

      Pelton & McGee, for appellee.
   McAlvay, J.

Plaintiffs brought suit in assumpsit against defendant school district to recover a balance of $1,205.30 claimed to be due upon a contract between the parties for work done and materials furnished by them in the erection of a high school building in the village of- Birmingham. Upon the trial, at the close of the proofs in the case, on motion of defendant, over the objection of plaintiffs, the court directed a verdict in its behalf upon which a judgment was duly entered.

The following are the facts in the case: Plaintiffs, under a written contract with defendant executed on the 22d day of November, 1911, agreed to furnish all the materials and perform all the work, according to plans and specifications, pertaining to the erection and completion of said school building, “excepting second story maple floors, plastering, wood finish, and the painters’ finish of second story” of said building, for the sum of $19,931, the contract providing that defendant had the option and right to furnish the labor and materials in finishing the excepted portions of the second story above mentioned, and to notify plaintiffs at a certain time whether it would exercise such option, and, in case it did not, to pay the plaintiffs the additional sum of $2,825. The contract provided that plaintiffs should complete their work under said contract on or before August 1, 1912, and in default thereof they should pay defendant $10 per day thereafter as liquidated damages. Defendant, on July 24, 1912, notified plaintiffs that they accepted the option for them to complete the second story.

According to agreement plaintiffs gave two bonds, one the usual indemnity bond to the State of Michigan, and the other to the owners for failure to execute and perform the contract, which bonds were accepted by defendant as satisfactory. The contract was an ordinary builder’s contract. It is of considerable length, requiring six printed pages of the record. It is not necessary to state all of it in this opinion, but such portions will be referred to as may be necessary in discussing the questions involved.

From the defendant’s plea it appears to be admitted that the building was completed and ready for occupancy February 7, 1918. It is undisputed that there were no liens on the building for labor or material furnished.

At the close of plaintiffs’ case defendant moved for a directed verdict in its behalf, for the following reasons :

“We ask the court to direct a verdict for the defendant in this case on the ground that the plaintiffs have not furnished a sworn statement and have not executed or delivered to the defendants a statement under oath of the names of subcontractors or contractors of persons furnishing material or labor, together with the amount which is due or to become due to them by reason of section 10713, 3 Comp. Laws, and for the further reason that they have not filed any statement as called for by the provisions of the contract.
“And, further, for the reason that the plaintiffs have not secured from the architect a written certificate as required by the contract, and for the further reason that they have not submitted or tried to submit the question in dispute between the parties to this-contract to arbitration, as provided in the contract.”

The court denied the motion at that time for the reason that defendant refused to rest its case. Later, at the close of taking proofs in the case, defendant' renewed this motion. It was then granted by the court and a verdict was directed against the plaintiffs and in favor of the defendant. Upon this vérdict a judgment was entered.

The case is before this court for review upon errors assigned by plaintiffs to exceptions taken to such ruling by the court. The verdict was directed upon the grounds set forth in defendant’s motion, which embodied a brief statement of the notices of defense given under the general issue which need not be considered, except the notice that defendant would claim by way of recoupment in its defense liquidated damages provided by the contract, from August 1, 1912, to February 7, 1913, amounting to $1,860.

The first proposition to be considered is whether the court erred in holding that plaintiffs could not recover because the terms of the contract were not followed in that they did not procure a certificate from the architects. It is undisputed that from the time plaintiffs entered upon the execution of this work no architects’ certificates were asked for or required, but payments were made by defendant on the contract monthly during the continuance of the work upon informal statements made in writing by plaintiffs, certifying the amounts of material and labor which had actually been expended since the last payment, and as to these payments and the amounts thereof there is no dispute in the case.

There seems also to be no dispute but that the entire contract price of $22,756 has been paid to plaintiffs in this manner, except the balance of $1,205.30, for which suit is brought, and that no such certificates were ever asked for by defendant until some time in April, or. May, 1913, after the foregoing payments had been made and after the building had been completed for about two months, when the contractors asked one of the architects to furnish a final certificate. This architect, who, under the contract, acted as agent of defendant, testified that he refused to furnish such certificate although the building was completed, because there was a question of liquidated damages arising out of delay in completing the building, which had not been adjusted. The contract gave no authority to the architects to refuse a certificate for that reason. The only condition attached to issuing a certificate is the completion of the work. From all the evidence in the case upon this question it is clear that defendant waived the condition in the contract relative to certificates of the architects until the building was completed, and as to the final certificate plaintiffs were not at fault because it was not furnished upon request.

The undisputed evidence in the case upon the question of delay shows such delay was principally if not entirely attributable to the defendant and its architects. The contract was entered into November 22, 1911. The lot upon which the building was to be erected had in it a large excavation full of water which was to be drained by defendant and put into condition so that plaintiffs could enter upon it and proceed with the work of construction. This was not done until April 20, 1912. After the work had pro^ gressed for some time serious errors in the plans of the building which were made by architects of defendant were discovered, which necessitated tearing down considerable brick work and a delay of four weeks before the new steel arrived in Birmingham, which on account of alterations in the plans was required before the work could proceed. The record also shows plaintiffs were further delayed in completing the work by reáson of the neglect of defendant to notify them that it exercised the option provided in the contract for them to complete the second story of the building. It did not give this notice until July 24, 1912, one week before the time fixed in the contract for completing the building. There was no time limit fixed in the contract for the completion of the second story by plaintiffs after defendant had exercised its option not to do this work.

The record shows that it would have been impossible to complete the building within the time limit provided by the contract and' that it was so recognized by all of the parties concerned. The president of defendant school board testified that no claim to that effect was made by defendant until after the building was completed, February 7, 1913. The exercise of this option made it necessary for plaintiffs to procure the material and perform the labor in completing the second story to the amount of $2,825, which it is estimated would require many weeks time, and it appears that it also delayed the completion of the work on the first story while the second story was being completed, and that the first story could not be occupied until all of the second story was finished. In our opinion the undisputed record shows that when defendant required plaintiffs to complete the second story it abandoned the time limit provided by the contract, and such abandonment operated to remove the consideration of liquidated damages provided under this contract.

The court also held plaintiffs could not recover because they had not conformed with the requirements of the contract in submitting matters of difference to arbitration. This contract contained certain provisions relative to arbitration which need not be stated at length. The first (article III) relates to disputes arising from pay for.extras and alterations in the building. It is sufficient to state that no such dispute has arisen.

The second (article VII) relates to extension of time for the completion of the work if asked for by plaintiffs in writing in case of delays caused by defendant, its architects, or by strikes of the employees of plaintiffs. No extension of time was ever asked for by plaintiffs.

There .is another provision (article VIII) treating of arbitration which is of doubtful application to the instant case by reason of its incongruity with the contract as a whole. Apparently this contract was written upon a blank containing this provision, which was not obliterated. It reads:

“The owner agrees to provide all labor and materials not included in this contract in such manner as not to delay the material progress of the work, and in the event of failure so to do, thereby causing loss to the contractor, agrees that he will reimburse the contractor for such loss; and the contractor agrees that if he shall delay the material progress of the work so as to .cause any damage for which the owner shall become liable (as stated above), then he shall make good to the owner any such damage. The amount of such loss or damage to either party hereto shall, in every case, be fixed and determined by the architects or by arbitration, as provided in article III of this contract.”

This contract does not provide for the furnishing by either of the parties any material and labor not included in it. Everything either party was to furnish, either in material or labor, is specifically included in this contract. Neither party has ever claimed damages against the other under this article VIII, nor has either party ever asked for arbitration upon any subject. As already stated, the only question in dispute between the parties is whether or not the plaintiffs should pay defendant liquidated damages because the building was not completed on the date fixed in the contract. Under the circumstances of this case plaintiffs were not required to arbitrate.

Another provision in the contract considered in the determination of the case by the trial court relates to sworn statements of contractors and materialmen indicating that these were not filed. The bonds furnished by plaintiffs of $10,000 each were accepted as satisfactory by the defendant and were given under the requirements of the specifications which provided that only in case the bonds were not given was a contractor’s affidavit required under section 5 of the mechanic’s lien law, 3 Comp. Laws, § 10714 (5 How. Stat. [2d Ed.] §13770).

It further appears without dispute that there are no claims or liens of subcontractors or materialmen against this building or involved in this suit, and that defendant is subject to no liability on account' of any such claims or liens. As already stated, this suit is brought to recover a small balance due plaintiffs for performing this work, and as far as appears from this record the amount of this balance is not disputed. The record shows that the question of this affidavit of plaintiffs was not raised until after the completion of the building by them and a final settlement was demanded, when one was procured and presented by plaintiffs to the architect.

It was the contention of defendant, both upon the trial of the case and in its brief before this court, that the declaration of plaintiffs in this case was not sufficient in law to warrant a recovery for a balance due for work and labor done and materials furnished in completing this building, by reason of the fact that plaintiffs had not complied with these requirements of the contract above referred to. The court, in directing a verdict in favor of defendant, adopted this view.

The declaration is in assumpsit upon all the common counts and for money due plaintiffs from the defendant for the construction of the school building in question. It contained the allegation that the contract had been in all respects performed by them in a proper and workmanlike manner. A copy of the contract was attached to the declaration as an exhibit. To this declaration the defendant pleaded the general issue with certain notices of defense which have already been considered.

It is the contention of plaintiffs that the declaration was sufficient, that the waiver of defendant of the requirements of this contract, the reason for the nonperformance of which defendant claims should appear .in the declaration, and the conduct of defendant by which it would be estopped from urging the performance of the conditions which defendant contends were not performed, were matters to be proved under these pleadings upon the trial of the case. We are of the opinion that this declaration was sufficient in law to support a recovery in this case.

Our conclusion is that the circuit court was in error in directing a* verdict for defendant.

The judgment of the circuit court is reversed, and a new trial is ordered.

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


author: McAlvay/ J.

text:
    MURDOCK v. ROE.
    1. Trial — Motions—Reversible Error — Misconduct of Counsel.
    The jurors, in an action for breach of contract to lease property, were not disqualified by having heard, upon motion for security for costs, the argument of plaintiff’s attorney, in the absence of some showing of bias or disqualification: and defendant, who did not exercise her right to a peremptory challenge, could not complain of the refusal to excuse them for that reason.
    2. Same — Security for Costs — Justices of the Peace.
    The circuit court, on appeal from a justice of the peace, did not err in declining to dismiss the action of a party plaintiff whose affidavit showed that she was a resident of the county, on motion to require security for costs.
    3. Same — Charge—Burden of Proof — Evidence.
    The charge that the burden of proof was on the plaintiff to establish her case was a sufficient statement of the rule, and no reversible error was committed by the failure of the court to give a more extended request which concluded with the instruction that if the testimony was evenly balanced the verdict must be for de- ■ fendant.
    4. Landlord and Tenant — Requests—Compromise—Charge.
    Where plaintiff claimed that she rented a part of a house from defendant, who later refused to permit her to occupy the premises, and they entered into a substituted contract in full settlement of their disagreement, but defendant failed to carry it out, the trial court did not err in charging that plaintiff might recover if the jury found that plaintiff's claim was sustained by the evidence and in refusing a requested instruction that the second, or compromise agreement, replaced the contract on which plaintiff sued.
    5. Same — Anticipatory Breach — Tender.
    No tender of performance by the lessee was required where the lessor absolutely repudiated the agreement and declined to put plaintiff into possession under the lease, prior to the date at which the contract was to commence.

      6. Same — Damages—Time—Breach oe Contract.
    In charging the jury relative to the proper rule of damages, the court properly permitted them to take into consideration the cost of packing and storing plaintiff’s goods and other similar items of loss, shown by the testimony to have resulted from the breach of the lease by the lessor, and it was not erroneous to refuse to instruct the jury that if defendant offered to give possession at a later date than the one agreed upon the damages should be limited to the intervening period.
    7. Same — Charge—Breach. ,
    And the court did not err in charging the jury in substance that if the claim of plaintiff was found to be warranted by them she was entitled to recover unless the defendant had excused the breach, that if defendant had established her claim that the first contract was merged in the second agreement, and it had not been fulfilled by plaintiff, as alleged, there could be no recovery; but if defendant’s claim was established by the testimony in her behalf, she was entitled to a judgment, that if the defendant refused to carry out the modified contract, and receded from it, proposing other terms, and declining to carry out the same, it was a sufficient reply to the claim of the defendant.
    Error to Washtenaw; Kinne, J.
    Submitted November 4, 1914.
    (Docket No. 130.)
    Decided June 7, 1915.
    Assumpsit in justice’s court by Jean Murdock against Clara Roe for breach of contract of leasing. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Lee N. Brown, for appellant.

      Martin B. Stadtmiller (Floyd E. Daggett, of counsel), for appellee.
   McAlvay/ J.

This is an action in assumpsit, brought by plaintiff against, defendant in justice’s court in the township of Ypsilanti, Washtenaw county, and grew out of a contract between the parties'relative to the rental by plaintiff of part of defendant’s house, which defendant refused to carry out. It resulted in that court in a verdict and judgment in favor of plaintiff. Thereupon defendant appealed to the circuit court with a like result. Defendant has removed the case to this court upon writ of error.

Briefly stated, the facts in the case are as follows: Plaintiff, at that time residing in Detroit, desired to move to Ypsilanti to keep house and attend school. On August 30, 1912, she went to that place in company with her brother, and inquired at the office of defendant’s agent, Mr. Wortley, who was in the real estate business, for property which would suit her. He gave her the keys to the north half of a double house which belonged to defendant, which, after inspection, she decided to rent, agreeing to pay $14 a month, she to take possession September 15th following, when rent was to begin. To close the contract she paid the agent $5 on rent account, for which he gave her a receipt. She then went back to Detroit to pack her furniture and get ready to move. Two weeks later, when the goods were ready to ship, plaintiff sent a note to that effect to Mr. Wortley, the agent from whom she rented the premises. She was at once informed by him that the owner of the house repudiated the contract and refused to give possession. Her two brothers went from Detroit to Ypsilanti for her to ascertain the trouble and, interviewing defendant, found that she absolutely refused to let her have the house. She then offered plaintiff’s brothers two of the rooms in the house at $7 a month, which, when reported to plaintiff, she agreed to take if defendant would let her have them. She then proceeded to unpack her furniture and repacked enough for the two rooms and stored the rest. The repacked goods were loaded in a van for shipment to Ypsilanti and started for the depot, and while on the way plaintiff received a telephone message from Mr. Wortley that defendant refused to let her have the two rooms promised. Plaintiff at once went to Ypsilanti and saw defendant, who verified the truth of the notice which she had received, and defendant absolutely refused to allow her possession of the rooms. Defendant then offered to rent her the north half of this house and give possession on September 26th. Plaintiff refused this, as the date was too late. She had shipped her goods to Ypsilanti and would be put to large expense if she delayed in taking them at once. She had no further dealings with defendant, except to begin this suit in justice’s court early in October, 1912.

The first, second and third errors assigned and relied upon by defendant are the reasons upon which the motion for a new trial, which was made by defendant, was based, viz., that the verdict and judgment were against the weight of ' testimony in the case; that the matter at issue was frivolous and speculative and no proper damages were proven; that the case was without merit; that the court erred in denying defendant’s motion for a new trial.

An examination of the record satisfies us that the verdict and judgment were not against the weight of the evidence; also that the matter at issue was not frivolous and speculative, and that proper damages were proven.

' The ground for a new trial upon which defendant placed great reliance related to an argument made by counsel for plaintiff upon the motion for security for costs heard before the jury was called, which it is claimed occurred in the presence of all the jurors. There is no claim made that this argument was improper, but that the jurors, having heard it, were disqualified. No language claimed to have been improper is called to the attention of the court. The learned trial judge, in denying the motion, has answered this contention, as follows:

“When the jury was impaneled in the above cause they were fully examined by counsel for the defendant for their competency to sit as jurors in said cause. They were fully examined as to their knowledge or as to any prejudice that any of them might have in said cause, and if any challenge or objection had been made, the court would have carefully considered the same. At the close of such examination, counsel expressed themselves as satisfied with said jury, and in my opinion a fair, just, and impartial trial was had.”

A further reason urged for granting a new trial was that neither the justice nor the circuit court acquired jurisdiction, for the reason that no security for costs was required of plaintiff in either court. This question was before the circuit court upon the motion for security for costs which, in his judicial discretion, was denied by the court; it appearing from the affidavit of plaintiff that she had been a resident of Washtenaw county since September 24, 1912.

For the reasons above given the foregoing three assignments of error are without merit.

The remaining assignments of error relate to the refusal of the court to give certain requests of defendant and to portions of the charge as given. The court was requested to charge, as follows:

“The burden of the proof is on the plaintiff. She must establish her case by a fair preponderance of evidence (and where the testimony is evenly balanced your verdict should be for the defendant).”

Upon the question of burden of proof the court charged:

“This is a civil case, and the burden of proof is on the plaintiff to establish her case by what we call & fair preponderance of the evidence.”

■ Error is assigned because the court omitted the last clause of the charge requested as above marked in parentheses. It is our opinion that the charge as given was correct and all that is required. It is not improper for a court in giving this charge to elaborate by way of example. Therefore the charge requested, if given, would not have been erroneous, for the reason that the clause refused by the court was of that character.

Error is also assigned on the refusal to give requests to charge, as follows:

“(1) If you find that the rental of the north side of the house was settled and merged in a new contract in Mr. Wortley’s office by which the plaintiff was to take the two rooms upstairs, then the plaintiff cannot collect upon the old contract, but must rely upon the new.”

And further:

“(2) If you find that it was the agreement that the rent was to be paid in advance and occupancy given the 15th of September, before the plaintiff can recover she must show that she paid, or tendered payment, for the rent in compliance with her contract.”

And further:

“(5) If you find, after the first abandonment by the plaintiff of her contract, that the minds of the parties never again met, then the plaintiff cannot recover.”

The portions of these requests to which defendant was entitled are covered by the charge of the court, as follows:

“The defendant insists that there was a substitute for the said original contract, that the former contract was merged into the second agreement, and that this second agreement has. never been fulfilled on the part of the plaintiff, and therefore the defendant is not culpable in this matter, and that the plaintiff has no right to complain, and therefore the plaintiff cannot recover in this action. If from the evidence you find that the defendant is sustained in her view, then the defendant will be entitled to your verdict; but it is the contention of the plaintiff that the defendant utterly refused to carry out the original agreement made by Mr. Wortley with the plaintiff, and that finally, as a compromise, and in settlement of their troubles, she, the plaintiff, did enter into the second agreement with the defendant respecting a lease of a part of the said house, which agreement was intended to be a substitute for the first agreement, but it is the claim and contention of the plaintiff that the defendant finally receded even from the second agreement, and so changed and modified it that the plaintiff was compelled to, and did in fact, utterly refuse to accept such modified and changed substitute. Now, if from the evidence you find that this contention on the part of plaintiff is true, then it is a complete answer and reply to the claim on the part of the defendant.”

As to the second of these requests relative to no tender being made, it was properly refused because defendant on her return to Ypsilanti refused to recognize the agreement made by plaintiff with Mr. Wortley and repudiated it, and again did the same thing in her interview with plaintiff’s brothers. No tender was necessary.

The third request, refused by the court, defendant was not entitled to. It was covered by the portion of the charge of the court above quoted. It is undisputed that defendant absolutely refused to carry out the agreement made with defendant’s agent, Wortley, and offered plaintiff, in lieu thereof, two or three rooms as a substitute, but withdrew that offer at once through Mr. Wortley by telephone; that when plaintiff came to inquire about it, defendant absolutely refused to let her have the rooms; therefore all consideration for release from the first agreement, if there was a release, failed.

Defendant assigns error upon the refusal to charge, as requested, the following:

“If you find that she was to take possession on the 15th of September, and that the defendant was willing to give her possession on the 26th, her damages would be what accrued between the 15th and 26th.”

This is based upon the offer made by defendant to plaintiff at their last interview, when defendant repeated to her the withdrawal of her offer to let her have the rooms which had already been telephoned to her by Mr. Wortley. This was properly refused, because it did not state the correct measure of damages. The record shows, among other things, that before the 15th she had been to considerable expense in packing her goods and in unpacking them, in cartage, and in sending her brothers to Ypsilanti from Detroit and for storage.

The remaining assignments of error are to portions of the charge as given by the court, being the first four paragraphs, amounting to two-thirds of the entire charge. The third and fourth of these have already been quoted in this opinion, supra. The first is the opening of the charge, giving a statement of the claim of plaintiff, and the second paragraph being a general statement that if the jury found such claim established by the evidence, she was entitled to recover, “unless the defendant has established a full explanation and excuse for such breach of contract on her part.”

No error was committed by the court in these portions of the charge given, nor do we find any prejudicial error in the case.

The judgment of the circuit court is affirmed.

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


author: Ostrander, J. McAlvay, J.

text:
    HOLT v. BOARD OF SUPERVISORS OF OGEMAW COUNTY.
    Constitutional Law — Elections—Intoxicating Liquors.
    An election to determine whether the county of Ogemaw should adopt prohibition was not void because only one polling place was provided in the city of West Branch as authorized by Act No. 371, Local Acts 1905, although it is provided by the Constitution, Art. 3, § 1, that a polling place shall be set up in each ward of a city. The result of the election was not rendered invalid if the matter voted upon was sufficiently announced to the electors, and a place provided for voting, lawful ballots furnished and the electors permitted to vote, all that desired to do so exercising their franchise. McAlvay, J., dissenting.
    Certiorari to Bay; Collins, J.
    Submitted March: 18, 1915.
    (Calendar No. 26,463.)
    Decided June 7, 1915.
    Mandamus by James Holt and another against the board of supervisors of Ogemaw county. An order denying the writ is reviewed by relators on certiorari.
    Affirmed.

      Edwin Rawden (William T. Yeo, of counsel), for relators.

      George Bennett, Prosecuting Attorney (Harris & Chapin, of counsel), for respondent board of supervisors of Ogemaw county.
   Ostrander, J.

It is one thing to determine in advance of an election that an illegal provision for the method of holding it shall not be enforced, as was done in Attorney General v. Board of Councilmen of Detroit, 58 Mich. 213 (24 N. W. 887, 55 Am. Rep. 675), and quite another thing to determine that the actual result of an election which has been held shall not be conclusive. No citizen is. here claiming that he was deprived of the right to vote. It does not appear that any one was misled, or refrained from voting, or voted illegally, because of the manner of holding the election. The subject to be voted upon was published to the electors, a place for voting was. furnished, ballots were prepared, and the actual result was honestly declared.

Conceding that the legislative direction for holding elections in the city of West Branch is not in harmony with the Constitution, and conceding, further, the general rule to be that an unconstitutional law is no law and cannot be made the justification, in law, for any action or nonaction, the invalid law is not here used to justify, but is sought to be used to defeat, the action of electors.

The right of the electors affected to vote at the time the vote was taken, upon the matters actually voted upon, does not come from the invalid provisions of the statute. The complaint is that, following the invalid direction, the right was exercised in an improper voting place, in charge of persons having an apparent, but not a real, right to receive and count the votes. By applying a rule intended to preserve the rights of the electors, it is proposed to defeat the will of the electors, with the expression of which the operation of the invalid law is not shown to have in any way interfered. It is a serious undertaking, and the principle involved is not changed by the nature of the matter voted upon.

The same rule should be applied as. in cases where it is sought to disfranchise voters on account of the action, or omission, of officers in following, or failing to follow, the rules governing elections. Adsit v. Secretary of State, 84 Mich. 420 (48 N. W. 31, 11 L. R. A. 534); People v. Avery, 102 Mich. 572 (61 N. W. 4); Bragdon v. Navarre, 102 Mich. 259 (60 N. W. 277), and cases cited in the opinions.

Usually, the writ of mandamus will not be granted where justice does not require it. I think the court below was right, and its action should be affirmed.

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

McAlvay, J.

(dissenting). A writ of certiorari was issued in these proceedings to review an order made by the circuit court of Bay county denying a writ of mandamus in this cause, which had been transferred to that court from Ogemaw county. There is no disagreement as to the facts out of which these proceedings arose.

The city of West Branch, in Ogemaw county, which was formerly the village of West Branch, was incorporated as a city of the fourth class by Act No. 371, Local Acts 1905 of this State, entitled:

“An act to incorporate the city of West Branch in the county of Ogemaw as a city of the fourth class, and to repeal all acts or parts of acts relative to the incorporation of the village of West Branch.”

This act was given immediate effect and approved March 9, 1905. The act is a brief one, containing but 13 sections. Only the provisions involved in these proceedings require to be stated. Section 1 describes the territory affected, as follows:

“The territory in the county of Ogemaw and State of Michigan, described as follows, to wit: the south one-half of section 19 and the north one-half of section 30, all in township 22 north,- range 2 east, is hereby detached from the township' of West Branch and tibe said territory so detached is hereby incorporated as the city óf West Branch.”

Section 2 divides the city into three wards, giving the boundaries of each ward.

“Sec. 3. The said city of West Branch shall in all things not herein otherwise provided for, be governed, and its powers and duties defined and limited by an act, entitled, ‘An act to provide for the incorporation of cities of the fourth class/ being act number two hundred fifteen of the public acts of eighteen hundred ninety-five, approved May twenty-seventh, eighteen hundred ninety-five, and all acts amendatory thereto, except so far as the same may be inconsistent with this act.”

Section 4 refers to the school district of the township of West Branch, of which the territory detached was a part, and to levying taxes for school purposes.

Section 5 makes a single assessment district of the city of West Branch and provides for the assessment and spreading of taxes therein by the city assessor, such assessor to be elected annually with powers and duties as provided by the act referred to in section 3, supra, entitled “An act to provide for the incorporation of cities of the fourth class.”

Section 6 excepts this city from creating a board of public works, as provided in the act governing fourth class cities.

Section 7 creates a board of review.

“Sec. 8. The city hall shall be the voting place of all the electors of the various wards, and the electors of each ward shall be furnished with a booth, or booths, plainly labeled on the outside with the number of the ward where they have their residence, and each elector shall mark his ballot in the booth numbered in correspondence with the number of his ward, and the inspectors of election shall deposit the ballots so marked in ballot boxes provided for each separate ward.
“Sec. 9. The board of registration for the entire city of West Branch shall consist of the clerk of said city and two electors thereof, to be/appointed by the mayor, by and with the consent of the council, who shall perform all the duties of the several boards of registration provided for in said act number two hundred fifteen.
“Sec. 10. Inspectors of election for the city as a whole shall consist of the city assessor and the aider-man from each ward whose term of office expires last.”

The other sections do not require attention, except to say that, in conformity with the entitling of the act, the last section repealed all acts or parts of acts relative to the incorporation of the village of West Branch.

The sections of the said act of 1905 specially involved in these proceedings are sections 8, 9, and 10, quoted supra, relative to the place and manner of voting in said city, the board of registration of voters for the entire city, and the board of inspectors of election for the city as a whole. These provisions apply to all elections of State, county, district, and city officers, and all special elections for every, purpose for which elections may be held.

In March, 1908, the record shows that the common council of the city, having been advised that sections 8, 9, and 10 were unconstitutional and inconsistent with the provisions of the general law in relation to cities of the fourth class, by a resolution determined to proceed at the following April election pursuant to such general law. This was done, and thereafter all elections in said city were so held until October 10, 1912, when by resolution the common council instructed the city clerk to notify the electors:

“That the board of registration and election will hereafter be held only at one polling place in said city, which place is hereby designated the city hall.”

The questions involved in these proceedings arise out of an election held April 6, 1914, in the county of Ogemaw, when, under what is known as the “Local Option Law,” the question, “Shall the manufacture of liquors and the liquor traffic be prohibited within the county?” was submitted to the electors of Ogemaw county. At the meeting of the board of supervisors of said county as required by law the following week to canvass votes upon said question, a petition was filed with them protesting against the canvass of votes cast in the city of West Branch for the reason that no legal election had been held in said city: First, that no election was held in the first and second wards in said city and no booths or election boards in said wards; second, that the only place where electors cast their votes in said city was at the city hall, located in the second ward of said city, where the electors of the first and third wards cast their ballots and voted outside the limits of the respective wards in which they resided, where the electors of the second ward also voted, at which place an election was conducted by a board of inspectors of election representing the city as a whole; third, that no legal and valid election was held at any place in said city, for the reason that this election was conducted by a board of inspectors of election acting for the city as a whole, which board was constituted of members, from all the wards, and also that there were no boards of registration provided for each of said wards in said city of West Branch.

This meeting of the board of supervisors pursuant to statute as a board of canvassers was held April 13, 1914, at which meeting a special committee of five supervisors was duly appointed “to canvass the local option vote of Ogemaw county for the year 1914, and report the result of their findings, to this board.” Thereupon said board took a recess until April 14, 1914, at 9 o’clock a. m., which committee on the following day reported to the board the result of its findings.

“We find that in the townships and wards outside of the city of West Branch there was voted upon said question as follows: (Giving the detailed vote in all of said townships and wards, specifically naming them.)
“We find the total votes cast in the several townships and wards above specifically named on said question, ‘Yes,’ 818 votes, and ‘No,’ 803 votes.
“We further find that in the city of West Branch at the election held at the city hall in said city as certified by the inspectors of said election there was voted upon said question as follows:” (Giving the detailed vote in all of said wards.)

The report then states:

“We find the total votes cast in said city of West Branch on the said question, Yes, 98 votes, and No, 183 votes.”

The committee further reported:

“We further find that the election held in said city of West Branch for the several wards in said city was held in the city hall located in the second ward of said city.
“We further find that the inspectors of election of said election held in said city at the city hall was composed of Curtis J. Winslow, an elector of the second ward, James B. Ross, an elector of the first ward, Samuel D. Shaffner, an elector of the second ward, and Aberdeen McGregor, an elector of the third ward, as is shown by the poll list and certificates of election examined by us. •
“We further certify that we are unable to determine further the result of such canvass by reason of the legal questions involved, and we herewith submit with this our' report a true copy of the protest herein referred to. All of which is respectfully submitted.”

This report was accepted and adopted by the board upon a yea and nay vote, 14 to 4, following which a resolution was presented and adopted which stated the material facts contained in the report and concluded as follows:

“Therefore, be it resolved, that we are unable to determine the result of said election satisfactory to ourselves without a determination of the legal questions involved in said protest, the constitutionality of the law under which said city assumed to hold elections at said city hall and the right of the central board of inspectors therein to conduct such election as, held in said city on April 6, 1914, upon said question, and, therefore, we decline to make final decision at this time.”

This concluded the business of the board of supervisors convened as a board of canvassers, and upon motion the board then adjourned sine die.

Thereafter proceedings were begun in the circuit court for Ogemaw county by filing a petition therein praying for an order to show cause why a peremptory mandamus should not issue against the board of supervisors of said county compelling it to reconvene as a board of canvassers and proceed to canvass the vote had on the question, “Shall the manufacture of liquors and the liquor traffic be prohibited within the county?” at the election held in said county April 6, 1914, from the statements of the election inspectors of all the townships and wards therein outside the-city of West Branch, and to determine and declare the result of said election from the votes cast in said county outside of the city of West Branch, and then to adopt a resolution of prohibition and take other steps necessary under the law. The circuit judge of said court being disqualified, application was made to the judge of the circuit court for the county of Bay, who issued the order to show cause and, after the answer of respondent board was duly filed, the matter was heard before the circuit court for the county of Bay and a writ of mandamus was denied. Later, this court issued the writ of certiorari in these proceedings to review such order.

In an opinion filed in the mandamus proceedings, it appears that the writ of mandamus was denied for the reason that holding this election for all three wards at the city hall in the second ward of the city of West Branch, under the conditions stated, was a mere irregularity and did not invalidate the election held in said city. Relators contend that said court was in error in so holding, and insist that no lawful election was held in any of the wards of the city of West Branch on April 6, 1914. This is based upon the contention that the provisions of sections 8, 9, and 10, of Act No. 871, Local Acts 1905, under which the city of West Branch was incorporated, providing but one board of registration of electors in said city and for holding the election for the three wards of said city at the city hall in the second ward, to be conducted by a board of election inspectors for the city as a whole, consisting of members residing in each of the three wards, were unconstitutional and void.

Article 3 of the State Constitution relates to the elective franchise. Section 1 of that article, after designating who shall be an elector and entitled to vote, reads as follows:

“But no one shall be an elector or entitled to vote at any election unless he shall be above the age of twenty-one years, and has resided in this State six months and in the township or ward in which he offers to vote twenty days next preceding such election.”

This constitutional provision, which is the same as that of the Constitution of 1850, was before this court for construction at an early date, and the decisions relative thereto are familiar to the profession. One of the earliest was the case of People v. Blodgett, 13 Mich. 127, which involved the constitutionality of the soldiers’ voting law, in which every member of the court wrote an opinion. Mr. Justice Campbell, who agreed with the majority of the court, in the opinion written by him, said:

“That the township is the necessary place for the vital purposes of the law is manifest, for no offer to vote in any other township but that of the voter’s residence is permitted by the Constitution.”

And, further:

“I cannot therefore attach to it any other meaning than that the voter must cast his vote personally, in his own township or ward. And I am, therefore, compelled to declare that in my opinion the act of the legislature authorizing voting on a different basis is invalid.” People v. Blodgett, at pages 144 to 149 of 13 Mich.

Later, in the case of Attorney General v. Board of Councilmen of City of Detroit, 58 Mich. 213 (24 N. W. 887, 55 Am. Rep. 675), the court, recognizing the constitutional amendment which had been made relative to soldiers voting, said:

“All male citizens of lawful age, and some whose United States citizenship is incomplete, are entitled after a certain term of residence to vote in the township, or ward, in which they reside. Every vote, for any purpose whatever, is required to be cast in such township or ward. The only exception is in case of soldiers in the field during war.”

It would seem unnecessary to discuss the proposition that a statute, which provides that an elector (not within the constitutional exemption) may vote in any township or ward other than that in which he resides, would be constitutional. It follows that the provisions of section 8 of this statute, which provides that the electors of the first and third wards shall vote in the second ward of the city of West Branch, is unconstitutional and void, and no election was held on April 6, 1914, in the said first and third wards, and therefore the board of supervisors as a board of canvassers had no lawful returns before it of any election held in said wards. This was not a mere matter of irregularity. The votes cast in the second ward of said city returned as from the first and third wards were absolutely void and could not be counted and considered in determining the result of said election. The only election in said city was held in the city hall in the second ward, where all electors from all the wards were permitted to vote, and was conducted under the authority of section 10 of Act No. 371, which provides as follows:

“Inspectors of election for the city as a whole shall consist of a city assessor and the alderman from each ward whose term of -office expires last.”

It is contended that this provision is unconstitutional because it destroys the right of local self-government. It is not disputed but that section 10 deprives the electors of the several wards in said city of the control of their own • elections and imposes a substantial and serious difference upon the electors thereof in the exercise of the elective franchise from that imposed upon the electors in the other townships and wards in the county of Ogemaw, in fact, in the entire State of Michigan.

In the case of Attorney General v. Councilmen of Detroit, cited supra, where a statute was construed which provided for the appointment of election inspectors in Detroit by a certain board appointed by the mayor and council, this court held that it was an interference with the municipal right of local self-government, in. which Mr. Justice Campbell, speaking for the court, after stating, as already quoted from this opinion, supra, said:

“All legislation imposing restraints or conditions upon voting must conform to the other clauses and provisions of the Constitution. No part of that instrument can be allowed to override or destroy any other part. It is also well settled that our State polity recognizes and perpetuates local government through various classes of municipal bodies whose essential character must be respected, as fixed by usage and recognition when the Constitution was adopted. And any legislation, for any purpose, which disregards any of the fundamental and essential requisites of such bodies, has always been regarded as invalid and unconstitutional. There is nothing in the Constitution which permits the legislature, under the desire to purify elections, to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. And, as the right of voting is the same everywhere, it is obvious that the conditions regulating the manner of exercising it must be the same in substance everywhere. The machinery of government differs in its details in cities, villages, and townships, and, of course, it is unavoidable that there must be some differences in methods and officers, to administer the election laws. But it cannot be lawful to create substantial or serious differences in the fundamental rights of citizens in different localities, in the exercise of their voting franchises.”

By the general election laws of this State the electors of each political subdivision, township, ward, or district, is entitled to elect its board of election inspectors from among the electors residing within such subdivision, and also to a board of registration of electors consisting of certain officers of such township, ward, or district to register all qualified electors. The statute under consideration deprives the electors of all the wards in the city of West Branch of the exercise of such rights and privileges, and is therefore unconstitutional and void.

It is the right of every qualified elector to vote in the township or ward where he resides, and in no other place, and to have his vote received and counted and his qualifications passed upon by inspectors of election of that particular township, ward, or precinct.

If the contentions of respondents could be sustained, it follows logically that the legislature may enact statutes providing one place in each county in which the electors from all the townships and wards therein must vote. The statement of the proposition is its own refutation.

. It is hardly necessary to say, from what has already been stated, that no lawful election was held in the second ward of the city of West Branch.

Our conclusion is that the trial court was in error in denying the writ of mandamus to relators. The order and judgment of the circuit court should be reversed.


author: Brooke, C. J.

text:
    MICHIGAN HARDWARE CO. v. MERRIFIELD.
    1. Peeading — Contracts—Assumpsit—Common Counts.
    Plaintiff sold merchandise to defendant upon the stipulation that certain nonsalable goods in defendant’s stock might be returned in part payment for the consignment. Plaintiff found part of the returned goods in poor condition and refused to accept the same, claiming that more than was agreed upon was returned; plaintiff declined to accept the merchandise, and defendant wrote that the plaintiff might dispose of the returned stuff as best it could. No settlement was’ reached and an action was instituted upon the common counts. Held, that the price of the goods sold was recoverable under the pleading.
    2. Saees — Contracts—Acceptance.
    An offer of the seller of goods to accept in payment of the price certain returned goods, to be disposed of on the best possible terms, to which offer the buyer replied that this would be all right, and to please do the best it could, constituted an offer and acceptance, and authorized plaintiff to sue for the price under the common counts, and to retain the goods in its hands to be disposed of upon defendant’s account at the best obtainable terms.

      Error to Van Burén; Des Voignes, J.
    Submitted April 16, 1915.
    (Docket No. 114.)
    Decided June 7, 1915.
    Assumpsit in justice’s court by the Michigan Hardware Company against Edwin J. Merrifield for goods sold and delivered. From a judgment for plaintiff, defendant appealed to the circuit court. Judgment for plaintiff, defendant brings error.
    Affirmed.

      W. J. Barnard, for appellant.

      L. J. Lewis, for appellee.
    Plaintiff declared upon the common counts claiming a balance due of $52.40, with interest. Plaintiff’s demand arose out of a transaction which may be stated briefly as follows: On September 4, 1913, the defendant purchased from the plaintiff a bill of goods amounting to $169.69. It was agreed between the parties at that time that the defendant might ship to plaintiff, in partial payment for said bill of goods, certain seat hooks, neck yoke rings, and soldering irons, which the defendant had in stock and for which he had no sale. The parties do not agree upon the terms of the contract as to either the quantity or the quality of the goods to be shipped by the defendant to the plaintiff. The plaintiff shipped the goods sold by it to the defendant at the agreed price, and no question is made by the defendant as to the quality or price of the goods received by him from the plaintiff. Upon receipt of said goods, defendant thereupon shipped to the plaintiff certain goods which he claimed he had a right to do under the contract. On their arrival at plaintiff’s establishment, it is plaintiff’s claim that as to the seat hooks and neck yoke rings the goods sent were in a badly rusted and unsalable condition, and in a quantity largely in excess of that agreed upon between them at the time the contract was made. The soldering irons were as represented. Defendant made settlement of the account according to his view of the transaction, sending the plaintiff $106,83, and claiming credit by way of discount and goods shipped to plaintiff in exchange, in the sum of $52.86. Upon the examination of the goods shipped by defendant to the plaintiff, plaintiff immediately notified defendant that the goods received were unsalable and largely in excess of the agreement. The soldering irons, however, were found to be as represented in quality and quantity, and credit therefor was allowed defendant in the sum of $8.28. This amount, together with the discount and the cash payment, made a total of $117.29, leaving a balance of $52.40. Receiving no reply from its letter of September 17, 1913, plaintiff, on September 25, 1913, wrote defendant as follows:
    “September 25, 1913, Grand Rapids. “E. J. Merrifield,
    “Bloomingdale, Michigan.

      “Dear Sir:

    “We regret that we have not heard from you in reply to our recent letter relative to seat hooks and neck yoke ends that you recently shipped to us. We are holding them subject to your shipping instructions and unless we hear from you promptly as to where you want them shipped we will find it necessary to return them to you at Bloomingdale. You should have told me at the time the quantity that you had and furthermore the exact condition that they were in.
    [Signed] “Michigan Hardware Company.”
    To this defendant replied:
    “Bloomingdale, Michigan, September 29, 1913. “Mr. H. W. Spindler,
    “President Michigan Hardware Company,
    “Grand Rapids, Michigan.

      “Dear Sir:

    “Your letter of the 17th was received in my absence and regret the delay caused in -answering regarding seat hooks and neck yoke ends. I am certainly surprised at your remarks as you will remember that I called your attention to some of your goods and told you these seat hooks and ends were in about the same condition. These could very easily be brightened up in some foundry by being placed in a rattler, and this could be done at our expense if you wish. We stated to you at the time the deal was made that there was about 40 or 50 dozen of each but we found upon investigation we had more neck yoke ends than the seat hooks. In the event you intend to return these goods to us of course we would be obliged to return like amount of goods which we purchased of you in the deal. Kindly let us know your wishes in the matter.
    “Yours very truly,
    “E. J. Merrifield.”
    Plaintiff thereupon wrote:
    “Grand Rapids, October 2,1913.
    “E. J. Merrifield,
    “Bloomingdale, Michigan.

      “Dear Sir:

    ‘‘The writer has your favor of the 29th ultimo, which has been fully noted, and in reply will say that the writer was no doubt more surprised than you were when he received the seat hooks and neck yoke rings in the condition they were in, because you informed him when you were here that they were in the same condition as what we had in stock. Now, you well know, Mr. Merrifield, that the goods which you returned to us are not in a salable condition, and if they were you would have used them yourself. We are not going to send them to a foundry to be rattled as the quantity is altogether too great for our requirements. If you had told us at the time that you had a barrel of seat hooks and a half barrel of rings the writer would have informed you promptly that he could not use them, as he well knows what our requirements are, and certainly would not stock up on this item three or four years’ supply because the sale on seat hooks is limited and, as stated in our previous letters, we cannot use these goods. We will gladly hold them subject to whatever disposition we can make of them and the writer will make an effort to do the best we possibly can for you. If this is not satisfactory then we must accept your proposition that you return goods to us of like amount; but in closing will say that this will be far from being a good business proposition.
    [Signed] “Michigan Hardware Company.”
    To this letter defendant replied:
    “Bloomingdale, Michigan, October 4, 1913. “Michigan Hardware Company,
    “Grand Rapids, Michigan.

      “Gentlemen:

    “Your letter of the second instant received and we believe your suggestion to hold these goods and make whatever disposal of them that you can to be all right. Please do the very best you can on them.
    “Yours truly,
    “E. J. Merrifield.”
    Following this on October 8, 1913, November 20, 1913, December 6, 1913, December 12, 1913, December 26, 1913, January 16, 1914, and January 23, 1914, plaintiff wrote to defendant making insistent demands for settlement of the balance of $52.40. No settlement was made by the defendant, and on January 6, 1914, plaintiff returned the rejected goods to the defendant. On January 29, 1914, defendant finally answered the demands of the plaintiff and offered to pay $40 in payment of the balance of the claim. This was rejected by plaintiff and suit was brought. The case was first tried in justice’s court before a jury, where a verdict was rendered for plaintiff, and upon appeal to the circuit court the same result was reached.
   Brooke, C. J.

(after stating the facts). There are many assignments of error on the part of the defendant. The one chiefly relied upon, however, seems to be that the defendant was entitled to an instructed verdict because plaintiff’s claim grew out of a special contract and involved an exchange of goods. Many authorities are cited to the effect that recovery cannot be had under the common counts of assumpsit where damages are sought for the breach of a special contract. There is no doubt as to the correctness of the rule relied upon, but we are of .opinion that it is not applicable to the case at bar.

We are of opinion that the original contract was later modified by the parties through their correspondence. On October 2, 1913, after the discovery of the alleged unsatisfactory condition and quantity of the goods shipped by defendant to plaintiff, plaintiff wrote defendant as follows:

“We will gladly hold them subject to whatever disposition- we can make of them, and the writer will make an effort to do the best we possibly can for you. If this is not satisfactory then we must accept your proposition that you return goods to us of like amount; but in closing will say that this will be far from being a good business proposition.”

To this proposition defendant relied on October 4th:

“Your letter of the second instant received and we believe your suggestion to hold these goods and make whatever disposal of them that you can to be all right. Please do the very best you can on them.”

These letters, in our opinion, constitute a very clear proposal and acceptance. Therefore, the balance of the bill owing from defendant to the plaintiff became immediately due and payable and the goods shipped by defendant to plaintiff remained the property of the defendant in the possession of the plaintiff to be disposed of by the plaintiff for the account of the defendant. That such a balance may be recovered under the common counts in assumpsit is elementary. What occurred after that agreement had been reached is of no special importance. The most that can be said is that the defendant refused to pay the balance, and sought to secure a settlement on different terms which the plaintiff refused to accept. We think that the learned circuit judge should have directed a verdict for the plaintiff for the full amount claimed. Inasmuch as the jury, under a charge which is much criticised by the defendant, reached the same result, it becomes unimportant to consider the assignments of error based upon that charge.

The judgment is affirmed.

McAlvay, Kuhn, Stone, Bird, Moore, and Steere, JJ., concurred. Ostrander, J., did not sit.


author: BKOOKE, C. J.

text:
    HODGES v. WEST BLOOMFIELD TOWNSHIP.
    1. Highways and Streets — Dedication—Compromise and Settlement — Deeds—Abandonment.
    Complainant’s ancestor was the owner of a farm which was situated upon a portion of highway that the owner desired to have discontinued. With a number of other petitioners the owner of the property asked the commissioner of highways of the township to alter the course of the highway and pass over her land. As a part of the arrangement the owner executed a warranty deed of the new portion of the highway across her premises which was delivered to the township officials. The original line of the highway being discontinued, upon the application of certain interested proprietors an injunction was obtained against the closing of the old highway. In settlement of the litigation the owner of the property in question arranged with counsel in the case to abandon her rights to closing up the highway and that the township commissioner should abandon his claim to the new road. It had, however, been opened up and graded as proposed by the petitioners. Complainant closed up the new road and removed his fence on the south line. The public at irregular intervals used the highway. Although the township served a notice on the complainant to remove the obstruction he failed to do so, and during the ensuing eight years defendant took no further action. The deed was not recorded until nearly 10 years after its execution. Held, that no dedication of the new road was intended apart from the arrangement to open the new highway and close the old one, and that complainant was entitled to treat the deed from his ancestor to the township as abrogated by the compromise and practical abandonment.
    2. Same — Adverse Possession — Occasional Use — Abandonment.
    Where the use of a new road by the public was occasional and not exclusive the claim of a right to an easement by prescription cannot be sustained.
    3. Same — Equity—Laches—Townships.
    Where the owner of an alleged road asserted his proprietorship and removed the highway fence, claiming title to the premises and exercising acts of ownership over the disputed strip, no right was acquired by public user or prescription.
    Appeal from Wayne; Smith, J., presiding.
    Submitted April 15, 1915.
    (Docket No. 106.)
    Decided June 7, 1915.
    Bill by George Hodges against the township of Bloomfield and others to quiet title to real property. From a decree for complainant, defendants appeal.
    Affirmed.

      Aaron Perry (John H. Patterson, of counsel), for complainant.

      Arthur B. Tripp and Andrew L. Moore, for defendants West Bloomfield township and Johnson.

      Clark, Lockwood, Bryant & Klein, for defendant Spencer.
    The complainant is one of two heirs of Mariva Hodges, and as grantee of his coheir was at the time the bill of complaint was filed in this cause sole owner of a farm in Oakland county bordering upon the north shore of Pine lake. Between said farm and the water of said lake there has existed for many years a public highway. In the spring of 1894, Mariva Hodges, desiring to convert said highway in front of her premises to a private highway, caused a petition to be presented to the commissioner of highways of the township of West Bloomfield to the following effect:
    “Orchard Lake, Mich., April 21, 1894.
    “The undersigned freeholders in the township of West Bloomfield, Oakland county, Mich., hereby petition the commissioner of highways, of said township, in accordance with section 1296,. Howell’s Annotated Statutes, to alter the highway in road district 17 of said township, changing that portion of said road beginning at S. W. corner of land owned by Mrs. A. E. Morris on Pontiac gravel road, and running to boundary line between Mrs. M. Hodges and Mr. G. W. Howard when said line_ meets north shore of Pine lake, said road being so altered as to begin on Pontiac gravel road on land of Mrs. M. Hodges, N. W. of land owned by Mr. J. C. F. Hollister, and to run in an easterly direction along the north line of said Hollister so as to meet the unchanged part of said road district 17, at said Howard’s line on north shore of Pine lake, Mrs. M. Hodges agreeing to donate land required for said road and to plow, grade and roll new road, preparatory to usual road work of said district 17.
    “Charles Durkee.
    “W. H. Butts.
    “Adelaide E. Morris.
    “James C. F. Hollister.
    “J. Sumner Rogers.
    “Mariva Hodges.
    “George S. Hodges.
    “Edward Coates.”
    Action was taken upon said petition, which is evidenced by the following notice:
    “To Mrs. Mariva Hodges :
    “Take notice. That application pursuant to law has been made to the undersigned commissioner of highways of the township of West Bloomfield, by eight freeholders of said township to alter and lay out a part of a highway known as road district No. 17 in said township. The application is to change that part of said road beginning at S. W. corner of land owned by Mrs. A. E. Morris on Pontiac gravel road and running to boundary line between Mrs. M. Hodges and G. W. Howard where said line meets north shore of Pine lake, said road being so altered as to begin on Pontiac gravel road on land of Mrs. M. Hodges, N. W. of land owned by J. C. F. Hollister and to run in an easterly.direction along north line of said Hollister so as to meet the unchanged part of said road district 17 at said Howard’s line on north shore of Pine lake, Mariva Hodges agreeing to donate land required for said new road, and to plow, grade and roll new road, preparatory to usual road work of said district 17, and which highway will pass through land owned and occupied by you. You are therefore notified that the undersigned commissioner of highways will meet at the house of Mrs. Mariva Hodges in said township, on the 15th day of May, 1894, at 1 o’clock p. m. to proceed to view the premises described in said application and notice, and ascertain and determine the necessity of changing highway above described.
    “Dated the 5th day of May, 1894.
    “James White,
    “Commissioner of Highways of the Township of West Bloomfield.”
    Further action is evidenced by the following record:
    “State op Michigan ) . “County of Oakland. )
    “In the matter of the opening of highway, the same being two rods wide on each side of a center line, which said center line of said highway is described as follows: Commencing at a point in the center of the Pontiac and Orchard Lake gravel road located 426 feet east and 430 feet north by 10° E. of the center of section 11, town 2 N., of range 9 E., Oakland county, Michigan; thence south 60° E. 443 feet 2 inches; thence north 83° 20' E. 1889 feet to terminal point of said new highway, or where said center line intersects the highway now running along the north shore of Pine lake, in said township.

      “I, Thomas Pennell, commissioner of the township of West Bloomfield, in said county, do hereby certify that on the 24th day of May, A. D. 1895, I, as such commissioner, did accept the above-described land as a public highway.
    “Dated June 5, A. D. 1895.
    “Thomas. Pennell, “Highway Commissioner.
    “Recorded by me this 18th day of June, 1895.
    “A. G. Newman, Clerk.”
    In an endeavor to carry out her part of the arrangement Mariva Hodges executed to the township a warranty deed of the new highway which ran some distance back from the shore road. This deed was delivered to the proper township officer. Thereafter obstructions were placed upon the shore line road at its intersection with the gravel road running into Pontiac by or under the direction of Mrs. Hodges, in an endeavor to close it or to limit its use to that of a private way. Opposition sprang up among the residents of the township thereafter, and finally on May 25, 1897, the commissioner of highways filed a bill in chancery against the complainant in this cause praying for an injunction restraining him from obstructing or closing up the shore line road. Complainant appeared in that case by counsel and shortly thereafter negotiations were had between counsel with the result that it was agreed that complainant should abandon any claim of a right to close up the shore line road and that the commissioner would make no claim to the “new road,” which had been opened and graded by Mrs. Hodges in accordance with the proposition contained in the petition. No written stipulation was filed in the cause and no final decree was rendered therein, the preliminary injunction issued against complainant being permitted to stand. It is the testimony of the complainant that shortly after this adjustment of the controversy had been made he closed the so-called “new road” by erecting a fence across the east and west ends thereof and one across the middle. He likewise removed the fence on the south side of the new road which he had previously erected, thus throwing the road into the adjoining fields. He further claims that from that time up to 1913, he has maintained the fences at both ends of said highway with some slight intermissions, and that he has cropped and pastured the land constituting the way. In 1905, some seven or eight years after the adjustment of the chancery suit, defendant Spencer, who had acquired the Hollister property lying next to the “new road” and south thereof, caused the township officials to place upon record the deed which Mariva Hodges had given the township of the “new road,” and which had theretofore not been recorded. At about the same time the township officers served notice upon the complainant in this cause, requiring him to remove the obstructions at either end of the “new road.” This notice is dated June 26, 1905. Complainant did not comply with the demand contained in the notice, and no further action was taken by the township board until 1913, when the highway commissioner, in the absence of the complainant, undertook to reopen and grade the road.
    On the part of the defendant there is evidence to the effect that the general public has made use of the “new road” upon several occasions, and that the complainant has not maintained the obstructions at either end thereof continuously. On one occasion, too, the highway commissioner has caused some small improvements to be made in the road. After a full hearing in which many witnesses were sworn upon each side, the learned circuit judge, who heard the case, filed the following opinion:
    “While the defendant Spencer was permitted to intervene as a party and appears to have been the moving party in procuring the recording of the deed in question, and in urging the township officers to take steps to hold the land in controversy for street purposes, it will not be necessary to consider whether or not he has the right to a special use of the west end of this alleged public highway, because this question is not included in the pleadings. Apparently he is in the case merely to assist the township and because^ of his especial interest financially, growing out of his purpose to plat some of his land.
    “As a matter of convenience, I shall discuss this deed and the highway as if Mr. George S. Hodges was the owner of the land in 1895. His mother was a widow, he lived at home and transacted her business and was the moving party and in charge for her, of all the proceedings to change the lake shore highway and to open the new one and is the present owner of the property.

      “First. Should the deed be set aside for failure of consideration? There can be but one answer unless Mr. Hodges has lost his day in court by long delay in asking for it. The equities are all in his favor. If allowed to stand, the township has secured a strip of land practically through the middle of this valuable farm without paying anything for it. It is an absurdity to claim he dedicated this land for public use as an independent proposition. In 1895 there was no occasion for the road and no motive for the deed except as a part of an agreement with Commissioner White. I do not understand how the township can in good conscience insist upon keeping it unless it is as a matter of punishment of Mr. Hodges for his attempt to close this valuable shore road.
    “This new Hodges highway is not of overwhelming importance to the public at large, so long as the shore road is open. The business traffic of the neighborhood is chiefly north and south on the gravel road to and from Pontiac. The travel for pleasure is great in the summer months, but it is mostly along the shores of Pine and Orchard lake when it leaves the gravel road. The shore road is the better, more convenient, and more attractive for all those living east of it who wish to go south on the Orchard lake gravel road, and there are but few living east of it who have occasion to go north to Pontiac on the gravel road. Also but few living west of it who have occasion to go east upon it. Because it is one of the most beautiful lake driveways in Michigan with an automobile clubhouse and splendid cottages, nearly all of those driving for pleasure (and in the summer, this class of travel is the great majority) will always from choice travel the shore road. There is little reason to believe the township authorities would at this time seriously consider for a moment the opening of this highway if obliged to pay the true value of the strip and its damages to the farm.
    “The record shows and all the circumstances indicate that Mr. Hodges desired to live in a sort of seclusion. Then, as now, there was a very large amount of driving for pleasure between his home and the lake. It annoyed him somewhat. With a large lake frontage it was of value to him to close it. He was willing to donate this strip through the farm, back of his house and buildings for the closing of the shore road in front of them. Commissioner White, wishing to accommodate a neighbor and not fully realizing the attachment of the people for this shore driveway, assented to the arrangement and took the proceedings described in the record. There is no reason whatever for believing the deed would have been made, but for Mr. White’s proceedings to close the shore road. When the closing of the shore road failed, the consideration for the deed failed. Counsel for defendant in- their brief say, ‘There is no competent proof of any such agreement.’ I find it difficult to consider that statement seriously. It is but a technicality. At the hearing I understood one of counsel to admit as true, what one of the witnesses said, viz.: That at the time everybody understood it to be the fact. There is no question but that everybody, then living in that' part of the township, did understand it by the time the injunction suit was brought to preserve the shore road.
    “A long time elapsed before this suit. I think, however, it can be truthfully said in Mr. Hodges’ favor that he supposed when the injunction suit was abandoned it would be the end of the township’s claim under the deed. I do not think he fully understood there would, in reality, be any claim for a permanent highway until after the recording of the deed and visit of the commissioner thereafter. It would seem as if to that time, the township officers considered the road as abandoned or of little value, else the deed would have been recorded. It is my belief that after the injunction suit, the commissioners considered it useless to record it. It is clear that it was not recorded until the order of the supervisor, after defendant Spencer had brought up the question. To invoke the law of laches seems a hardship. Its application is denied.

      “Second. ■ The deed out of the way, can the township hold the land for a permanent highway by user? This, in my opinion, must be answered in the negative. Compared with the immense amount of travel along this gravel road and this Pine lake shore road, there was almost no travel. It seems that some persons traveling past its ends did not know it was open. It has at best but a limited and occasional use. It was with interruptions. It cannot be truthfully said that it was open, notorious, and exclusive. It was mostly a use by a few of the immediate residents with visits of the highway commissioners to remove barriers. Arthur Pack, who had more occasion to use it than any one living east of it, had scarcely used it at all. He seems to have understood the east end next to his home as closed, at least not for travel. I do not think the defendants can prevail. If so, it must be wholly upon technicalities. The merits are with complainant, unless as to a possible easement in favor of defendant Spencer personally, growing out of the use by Hollister and himself of a part of it at the west end, concerning which no opinion is ventured.”
   BKOOKE, C. J.

(after stating the facts). Much learning bearing upon questions of law is collected in the briefs of counsel for both parties. In our opinion the foregoing statement of fact renders it unnecessary to examine and review the. questions discussed. No person can read the record before us without reaching the conclusion that the deed in question was given by Mariva Hodges as a part only of an entire transaction, the whole of which included the closing of the shore road as well as the opening of the “new road.” She never at any time intended to dedicate the “new road” to the public use as an independent proposition, and neither the public nor the officers representing it have understood or believed that she entertained such an intention. Following the settlement of the chancery suit which occurred about two years after the execution of the deed, for a period of about eight years there appears to have been a practical abandonment by the township authorities of any rights they might have acquired under the deed in question. The deed itself was not recorded until 1905. At that time a notice was served upon the complainant in this cause requiring him to remove the obstructions. This he did not do and for a further period of eight years the authorities remained quiescent. The formal acceptance of the deed by the township officials is not sufficient under the facts in this case to constitute an indefeasible title in the township. Following that acceptance, the chancery suit was launched by the township, and an adjustment reached by the terms of which, as evidenced by the testimony of the attorney for the township, the township agreed to abandon any claim to the strip in question. From 1907, when the chancery suit was settled, to 1913, when the township attempted to reopen the road, the complainant and his mother by their acts had at least attempted to retake possession of the strip in dispute. The claim of the township that it has acquired possession and title to the strip through use is not sustained by the evidence in the record. The use has at most been but occasional. From the time of the settlement of the chancery suit the township has never had open, notorious, and exclusive possession of the strip.

Nor do we think laches should be imputed to complainant or to Mariva Hodges. Immediately after the adjustment of the chancery cause they took possession of the property in reliance upon the terms of that adjustment, and during all the time that has intervened from that time to 1913 the acts of complainant and his mother in the assertion of dominion over the disputed strip have not been questioned except in 1905, when a notice was served, and in 1913, when the attempt was made on the part of the township to regain possession of the disputed strip. Asserting ownership and being in possession except for occasional and very infrequent use during the sixteen years, must be held to relieve the complainant from the imputation of laches. As soon as the township by any overt act attempted to take possession, the complainant filed his bill. This, we think, under the circumstances disclosed by this case, was seasonably done. In a court of conscience the real rights of parties should be conserved unless this is forbidden by some controlling legal principle. In the case at bar we find none such.

The decree of the court below is affirmed.

McAlvay, Kuhn,'Stone, Ostrander, Bird, Moore. and Steere, JJ., concurred.