text:
    DEMERSE v. MITCHELL.
    1. Parties — Judgment—Cancellation of Instruments.
    Complainants, who were not made parties to a suit to determine mineral rights in lands, were not bound by the decree entered therein:
    2. Deeds — Estates by the Entireties — Husband and Wife— Reservations.
    Where a wife, who has only an inchoate right of dower in lands, joins with her husband in conveying same, reserving the mineral rights, the presumption is that she joined merely for the purpose of subjecting her dower, and not to create an estate by the entireties in the mineral rights.
    3. Same — Waiver—Conditional Transfer — Estoppel.
    Where a 'husband, who had eonveyed lands to his wife upon condition that she would furnish support for him during his life, negotiated a transfer of the property by her, by warranty deed, and later quitclaimed to the same grantees, he is held to have waived the further performance of the condition, so far as third parties might be affected.

      4. Same — After-Acquired Title.
    If the wife did not own the lands unconditionally at the time of the transfer, she afterwards became the owner in fee by her husband’s devise, and her title inured to the benefit of her grantees under her warranty.
    5. Same — Fraud—Cancellation of Instruments — Evidence.
    In a suit to cancel a deed on the ground of fraud, evidence held, not to support the allegations of fraud and deceit alleged in the bill.
    6. Same — Mental Capacity — Insane Persons.
    Evidence .that grantor was queer, eccentric, unreasonable in his conduct, harsh, of violent temper, and disposed to act in all things in opposition to the comfort, peace, and happiness of his family, is not sufficient to show want of capacity to convey real property, where the evidence shows a long list of real estate and other important business transactions during the period when it is now claimed he was incompetent.
    Appeal from Marquette; Flannigan, J.
    Submitted November 19, 1914.
    (Docket No. 86.)
    Decided September 28, 1915.
    Rehearing denied June 23, 1916.
    Bill by Abilene Demerse and others against Elizabeth Mitchell and others for the cancellation of certain deeds. Defendants filed an answer in the nature of a cross-bill. From a decree for defendants, complainants appeal.
    Affirmed.

      J. L. Heffernan, for complainants.

      S. W. Shaull, William P. Belden, and Horace Andrews, for appellees.
   Kuhn, J.

After a careful consideration of the briefs in this case and a study of the record, we find that we are in entire accord with the learned trial judge upon his conclusions as to the facts and the legal questions therein involved. After having heard the case, the trial judge has given us the benefit of a carefully prepared and exhaustive opinion, of which we will adopt so much as is essential to a decision of the questions at issue:

“In the year 1866, Charles T. Harvey surveyed and laid out into lots, numbered from 1 to 18, inclusive, portions of sections 5 and 6, in township 47 N., of range 26 W., Marquette county. A plat of these lots, which was made by Mr. Harvey, was not recorded, and while, as a rule, they are described in the various conveyances by metes and bounds, they are commonly known by their respective numbers. _ i
_ “At the date of the plat Mr. Harvey was the undisputed owner of the entire surface and of an undivided half of the minerals of the 13 lots. His ownership of the remaining undivided half of the minerals was disputed. Such dispute continued for many years, and was not finally settled in favor of the grantees in the Harvey Chain of title until the decision of Pellow v. Arctic Iron Co., reported in 164 Mich. 87.
“The title of Harvey to lot 11 was acquired by Jean Blais in 1867, the title to lot 8 in 1869, and the title to lot 9 in 1871, through mesne conveyances in the regular chain of title. Lot 13 did not pass in the regular chain of title to Jean Blais. In 1867 Harvey conveyed that lot to one Anna Collins, who allowed it to go delinquent for taxes for the years 1875 to 1880, inclusive, with the result that it was sold for the taxes of those years, and the auditor general issued a tax deed thereof, dated September 12,1884, to Samuel E. Byrne, of Marquette, Mich., who, with his wife, conveyed to Jean Blais. On January 19, 1885, Jean Blais conveyed lot 13 by special warranty deed to his wife, Zoe, who reconveyed to him on or about March 1, 1888.
“In 1883, Jean Blais and Zoe Blais, his wife, conveyed by warranty deed to John S. Newberry and Hugh McMillan, trustees, for right of way for the Detroit, Mackinaw & Marquette Railway Company,, a portion of lots 8, 9, and 11. On July 16, 1884, they conveyed by warranty deed to Joseph H. Primeau a part of lot 9, comprising about half an acre, and on the same day they conveyed to their son, Joseph Blais, another part of lot 9. From the grants to Newberry & McMillan, trustees, Joseph H. Primeau, and Joseph Blais, the ores and minerals were excepted.
“Besides other lands comprising about 160 acres and not included in this litigation, Jean Blais, by warranty deed, executed May 7,1885, conveyed to his wife, Zoe, all of lots 8 and 9 not previously conveyed to New-berry and McMillan, trustees, Joseph H. Primeau, and Joseph Blais. The consideration recited in that deed is the sum of $1,500, and the obligation assumed by Zoe, the_ grantee, ‘to keep and provide comfortably for the maintenance and support’ of h'er husband during his life, and the deed provides that, in the event of her default in that regard, it was. to be treated as a mortgage subject to foreclosure, ‘in the same way as mortgages on real estate are foreclosed.’
“March 30, 1887, Zoe Blais executed and delivered to Samuel and George Mitchell a warranty deed of lot 8, except the railroad right of way previously conveyed to Newberry and McMillan, trustees, and also excepting the surface of another small part of the lot. On the same day she executed and delivered to the same persons a warranty deed of lot 9, excepting the surface rights therein previously conveyed to Newberry and McMillan, trustees, Joseph H. Primeau, and Joseph Blais. On the same day Jean and Zoe joined in a warranty deed to Samuel and George Mitchell, conveying lot 11, excepting the railroad right of way of Newberry and McMillian, trustees, and also excepting the surface of a small part of the lot outside the railroad right of way. On the same day, March 30, 1887, Jean Blais executed and delivered to the Mitchells a straight quitclaim deed of lots 8 and 9, without exception or reservation of any surface, minerals, or other rights. The consideration expressed in each of the three warranty deeds is $925, and in the quitclaim deed $1; but the fact is these deeds represented a single transaction, and the consideration paid by the Mitchells for the four deeds was above $2,400. The small surface rights excepted by Zoe in her deed of lot 8 and the other small surface rights excepted by the deed of lot 11, were subsequently sold, and by mesne conveyances acquired by the Mitchells.
“There existed through many years a lack of harmony between Jean and Zoe. They separated and rejoined several times. They were separated when the deed of May 7, 1885, was executed, and, while the fact does not appear on its face, it is evident from surrounding circumstances that that deed was intended as a sort of a separation settlement. Subsequently they became reunited, and were living together when the four deeds to the Mitchells were executed and delivered. The reconciliation, unfortunately, was not lasting, and on the 5th day of March, 1888, they finally separated. On that day they executed articles of separation whereby Zoe, in consideration- of the lands theretofore and other lands at the date of the articles conveyed to her by Jean, released her claims for maintenance and her right of dower in all lands of which Jean remained seized or might thereafter acquire.- The execution of these articles had the effect to release the right of dower of Zoe in lot 18.
“By a deed executed in September, 1888, by another executed in December, 1888, and another executed in December, 1890, Jean Blais conveyed to third parties all of lot 13, surface and minerals, except the minerals in a portion of the lot measured by the width of the lot and 32 rods in length, which minerals he quitclaimed on July 22, 1899, to Louis Corbett. Corbett purchased the estates in lot 13 previously conveyed by Blais. He also purchased from Anna Collins, and so became, not only the owner of all the right and- title acquired by Blais under the tax deed, but of the government title as well.
“Jean Blais died May 18, 1901. By his last will which was executed October 10,1882, he left all of his estate, real and personal, to his wife, Zoe, absolutely, exc'ept a small bequest of money to each of the children. The will was admitted to probate June 16, 1902, and execution thereof was committed to the widow, Zoe, who, surviving her husband about two years, died intestate. In 1905, Pickands, Mather & Co. obtained from the Mitchells an option for a mining lease of lots 8, 9, and 11. After conducting extensive and costly exploratory operations on the property, they, transferred the option to the defendant, the Athens Mining Company, which last-named ■ company, in 1906, took a mining lease of the property. In December, 1906, Louis Corbett and his wife, the defendant Marie Corbett, executed and delivered to the Cleveland-Cliffs Iron Company a mining lease of lot 13.
“At all times, from the date of the Harvey purchase .in 1857 until the year 1911, the ownership of one-half the minerals in lots 8, 9, and 11 was in controversy, and from 1905 until 1911 in actual litigation between the Mitchells and the Arctic Iron Company. The litigation was finally terminated by a decree of the Supreme Court establishing in the Mitchell heirs the title to the lots in fee, ‘together with all the minerals thereon and therein contained.’ The heirs of Jean and Zoe Blais were not parties to that litigation, and therefore the decree therein did not bind them. The lots of the Harvey plat not involved in these suits were acquired by the Arctic Iron Company. The ore underlying the lots of the Harvey plat is a continuous body, and could not have been mined out, either safely or economically, by operations conducted by the various owners on their respective lots, and following the entry of the decree of the Supreme Court in the Arctic Iron Co. Case, negotiations were opened which finally resulted in the various owners of the 13 Harvey lots and the Cleveland-Cliffs Company as lessee of lot 13, conveying to the Athens Mining Company; the object being to form of the separate holdings a single mining property, and thus avoid the great danger to life and limb and the heavy cost which would attend separate mining. George Mitchell died April 6, 1905, intestate; Samuel Mitchell died May 9, 1908, testate; and Louis Corbett died January 14, 1910, testate.
“To set aside the deeds from Jean and Zoe Blais to the Mitchells, and the deed from Jean Blais to Louis Corbett, and to establish the title to the property described in such conveyances in themselves, the heirs at law of Jean and Zoe and William C. Foard, who, under quitclaim deeds from the Blais heirs, claims an undivided one-half interest in the lands, filed their bills of complaint against the heirs and devisees of George and Samuel Mitchell and other defendants, and the Athens Mining Company, and against Marie Cor-* bett, sole devisee of Louis Corbett, and other defendants, and the Athens Mining Company. The defendants claimed for their respective answers the benefits of a cross-bill. Both suits were heard together. The proofs were taken in open court, except certain depositions, which were read in evidence, as was also the testimony of Samuel Mitchell, given in the suit of Pellow v. Arctic Iron Co., supra.
“The propositions advanced by the bills of complaint to substantiate the complainants’ claim of title are in substance that Jean and. Zoe held the minerals underlying certain portions, of the surface of lots 8 and 9 as tenants by the entireties, and their separate deeds thereof to the Mitchells were, for that reason, ineffectual to pass the title; that the deed of May 7, 1885, of lots 8 and 9, from Jean to Zoe, was void for uncertainty of description; that, if not void for the reason mentioned, in legal effect it was but a deed on condition, the terins of which were never carried out by Zoe; that whether the title to the lots in question was in Jean, or partly in Jean and partly in Zoe, their deeds were ineffectual, because, as it is claimed, at the time of the execution of the deeds to the Mitchells, both Jean and Zoe were, and when he executed the deed to Corbett Jean was, of unsound mind and incompetent to execute such deeds; and that the Mitchells and Corbett knew of the incapacity of both Jean and Zoe, and wilfully deceived them regarding the value of the properties, and thereby obtained what they knew to be exceptionally valuable properties for a mere pittance.
“A clause will be found in each of the deeds from Jean and Zoe to Newberry and McMillan, trustees, Joseph H. Primeau, and Joseph Blais, of parts of lots 8 and 9, reading in substance as follows:
‘‘ ‘Saving and reserving, however, unto the said parties of the first part, and to their heirs and assigns, forever, all ores and minerals on or beneath the surface of said lands, together with the right to enter upon said lands and explore the same therefor and to mine the same without let or hindrance.’
“The contention of the complainants’ counsel is that, although it be conceded Zoe joined in the execution of these deeds for the purpose merely of releasing her dower, nevertheless the legal effect of the quoted clause was to constitute her a tenant by the entirety with her husband in the minerals underlying the surface deeded. It is not recalled that during the oral argument counsel for the complainants referred to this subject. Many pages of his brief are devoted to rules and decisions relating to the alienation of estates by entirety, which would be interesting, once a tenancy of that character, in Jean and Zoe, was established; but upon what principle of law the clause may be given the effect claimed the brief is profoundly silent. That the legal effect of a clause such as is found in the Newberry and McMillan, Primeau, and Joseph Blais deeds is to separate the surface and mineral estates, and to pass only the surface estate, was settled in Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264 (96 N. W. 468); and where the wife has no interest other than an inchoate right of dower in lands conveyed by a deed, in which she joins with her husband, the presumption must be that she joined merely for the purpose of subjecting her dower, and plainly the intention and effect of such a clause, in a deed executed by the husband and wife, is not to create in the thing excepted any new right in the husband or wife, but to preserve in each the same rights each had therein before the execution of the deed. * * *
“The uncertainty of description which appears in the record of the deed of May 7, 1885, and which was supposed by the complainants to render that deed void, was discovered, on the introduction of the original deed, to have been an error in transcribing.
“The deed of May 7, 1885, was upon condition that Zoe would furnish support for Jean during his life. There is no warrant for saying Zoe did not, up to the time of the transfer to the Mitchells, perform the condition. Her conveyance to the Mitchells was made, not only with Jean’s full approval, but was mainly negotiated by him, and so it may be said he waived the further performance of the condition, at least so far as third parties might be affected who were dealing with both of them respecting the title. If the further performance of the condition was not waived at that time, it certainly was later. The articles of separation and the deeds exchanged between them in the plan of separation leave no doubt of the release of Zoe respecting that condition. If, however, Zoe did, not own lots 8 and 9 unconditionally, at the time of the transfer to the Mitchells, or following the articles of separation, she did become the owner thereof in fee upon the probate of Jean’s will, and in either case her title acquired after the delivery of her warranty deeds to the Mitch-ells would inure to their benefit.
“In the view of the case taken by the court, the legal effect of the clause of the deed of May 7, 1885, providing for the support of Jea,n, as well as the question whether that condition was performed, are not important matters. If at the time of the transfer to the Mitchells lots 8 and 9 were owned by Zoe, they passed under her warranty deeds. If at that time they were not owned by Zoe, and were owned by Jean, they passed under his quitclaim deed, and if for any reason it may be said his quitclaim deed was ineffectual to pass the title if he owned it then the absolute unincumbered title passed to Zoe under the separation agreement, and, if not, then under his last will, which title, however, or whenever, she received it, inured by operation of law to the benefit of the Mitchells. Lee v. Clary, 38 Mich. 223; Morris v. Jansen, 99 Mich. 436 (58 N. W. 365); Duffy v. White, 115 Mich. 264 (73 N. W. 363). The question of a tenancy by the entirety does not go to the minerals underlying the surface conveyed to Newberry and McMillan, trustees, in lot 11, since that lot was conveyed by deed in which Jean and Zoe both joined, nor does it.concern lot 13, which, when conveyed by Jean, was owned by him absolutely, relieved even from the inchoate right of dower of Zoe by virtue of the separation agreement, and the only questions to be considered are whether, in obtaining the deeds of lots 8, 9, and 11 from Jean and Zoe, either of the Mitchells, or in obtaining the deed of lot 13 from Jean, Corbett practiced any fraud or deceit, and whether, when such deeds were executed, the grantors therein were competent to contract.
“William C. Foard, one of the complainants, is employed by the State land commissioner in connection with the examination of State lands. Abilene Demerse, also one of the complainants, has resided since 1901 with her husband and family on a farm in the eastern end of the peninsula not far from Sault Ste. Marie. Mr. Foard, being engaged upon the examination of certain lands of the State in the vicinity of the Demerse homestead, arranged with the Demerse people for lodging and board while his work in the neighborhood continued. During the course of the first evening he spent at the Demerse home, Mrs. Demerse, on learning he was from Marquette county, brought out a clipping from the Mining Journal, which dealt with the case of the Mitchells against the Arctic Iron Company, and mentioned that the lots had been explored and valuable mineral discovered thereon. She stated to Mr. Foard that her father ‘was one of the original owners’ of the lots described in the newspaper clipping, and she thought ‘there was some land there which they were entitled to, but she didn’t know what.’ Mr. Foard thereupon volunteered to investigate on the occasion of his next trip to Marquette. The records which he examined some two weeks later did not ‘look just right’ to Mr. Foard, whereupon he invited Mr. Heffernan, later employed as solicitor for the complainants, to look them over. Following these examinations of the public records, Mr. Foard returned to the Demerse homestead and informed Mrs. Demerse ‘he thought there was a good chance for her to get a part of her father’s land, and that it had never passed entirely,’ and that if she employed an attorney ‘he would probably get something out of it.’ She replied she had no money. He said ‘she might get some one to take hold of it on an interest,’ and she answered, T will give you a half interest if you take hold of it; I can’t tell anything about these attorneys.’ On his next visit to Marquette, which occurred shortly, Mr. Foard again consulted Mr. Heffernan, and another inspection of the records seems to have confirmed them in the view that the heirs of Jean and Zoe could recover a portion of the lands, whereupon Mr. Foard concluded to accept the offer submitted by Mrs. Demerse, and immediately called upon or wrote the other heirs, at the addresses furnished by Mrs. Demerse, with the result that he eventually obtained from a number, if not from all the heirs, a quitclaim deed of an undivided half of the lots in question and of all other lands at any time owned by Jean or Zoe Blais. The consideration moving from Mr. Foard for these quitclaim deeds was his undertaking to employ an attorney to commence these suits and to furnish means to carry them through this court and the Supreme Court.
“What was the difficultv with the record title of the defendants, which Mr. Foard supposed he found, he did not say. Inferentially it was the notion that the separate deeds of Jean and Zoe did not convey all the minerals of lots 8 and 9, on the supposition that part thereof was held by them as tenants by the entirety. But, be that as it may, it is quite conclusively shown by the testimony of Mr. Foard that it was a supposed defect in the record title of the defendants to a part of the land, and not fraud or deceit in obtaining either the Mitchell or the Corbett deeds, or the want of mental capacity in either Jean or Zoe to contract, which decided Mr. Foard and the heirs to launch an attack upon the title of the defendants. T came up and looked at the records, and from the records I concluded there was a chance to speculate; and I went back to her and told her “I thought there was a good chance for her to get a part of her father’s land,” ’ testified Mr. Foard. * * *
“As bearing on the good faith of the claims of fraud and mental incapacity put forward by the bills of complaint, the fact is of weighty significance that not a single descendant of Jean or Zoe claimed the deeds were fraudulently obtained, or that either Jean or Zoe lacked the mental capacity necessary to execute the same, until long after they had planned with Mr. Foard to open an attack on an entirely different ground. What happened is not hard to discern. Mr. Foard’s first impression of the state of the records was found on a subsequent examination to be incorrect, or the point he had in mind was found to be of doubtful service, whereupon the father and mother were alleged to be insane, and charges of fraud and deceit were spread with a lavish hand upon the pages of the bills of complaint against men long in their graves.
“Whether the prices paid by the Mitchells and by Corbett for the conveyances to them, respectively, were reasonable and fair, in relation to the value of the properties as the same was understood at the time of the. transactions, and whether there was fraud or deceit on the part of either of the Mitchells, or on the part of Corbett, in obtaining either of the deeds, the evidence is all one way. The complainants offered no evidence touching the value of the properties at the dates of the disputed conveyances, or showing, or tending to show, that the Mitchells when they purchased, or that Corbett when he purchased, possessed any knowledge or information on the subject of the mineral value of the properties not also known to Jean and Zoe Blais, and not publicly known in and about the city where the lands are situated. * * *
“In furtherance of their effort to establish that the Mitchells and Corbett took advantage of the alleged ignorance of these people, and deceitfully and fraudulently induced them to part with these properties for a trifling sum compared to their value, the complainants would be expected to at least show that the Mitchells and Corbett sought out Jean and Zoe to bring about the sale. Whether Corbett applied to Jean, or Jean to Corbett, the testimony does not disclose; but that the property was brought to the Mitchells, that they did not seek the purchase, and only purchased after Jean had called on them repeatedly in an effort to induce them to buy, is an inference well supported by the evidence. The record does not contain evidence of a single word uttered by either of the Mitchells or by Corbett in the negotiations. It does not appear that any, much less any false or deceptive, representation regarding the value of the land, or of any matter or thing, by way of inducement to Jean or Zoe to sell at the prices named, or at any other price, or on any other terms, was made by Corbett or by either of the Mitch-ells to Jean or Zoe, either directly or indirectly, and no attempt whatever was made by the complainants to support by evidence the allegations of fraud and deceit found in the bills of complaint. * * *
“Giving the testimony presented by the complainants its greatest value, and the most that can be said of it is that Blais, in his family relations, was queer, eccentric, unreasonable in his conduct, harsh, of violent temper, and disposed to act in all things in opposition to the comfort, peace, and happiness of his family. But the question here is. not whether Jean Blais was an eccentric man, and on occasion did unusual or even foolish things, but whether, at the time he executed the deeds, he had mental capacity sufficient to understand and fully appreciate the business on which he was engaged. Davis v. Phillips, 85 Mich. 198 (48 N. W. 513); Ramsdell v. Ramsdell, 128 Mich. 110 (87 N. W. 81); Hayman v. Wakeham, 133 Mich. 363 (94 N. W. 1062). And see, also, Ward v. Ward, 86 Neb. 744 (126 N. W. 305).
“The record of this case contains a long list of real estate and other important business transactions in which Jean Blais participated during his lifetime, and especially during the period when it is claimed he was incompetent, and it is of weighty import that no member of his family, or any other person, was found to testify that in any one of the numerous, and in some instances very complicated, transactions, Jean Blais made a bad bargain. The extent of the list and the nature of the transactions furnished evidence of his competency to transact intelligently and skillfully, not only ordinary, but difficult, matters, and shows he was shrewd beyond the average man of his education and environment. His- children witnessed his conveyances, and some actually bought from him and transacted business with him at a time when they now allege he was of unsound mind. Members of the bar of this circuit, and others who have held and are holding positions of trust and responsibility, and to whom Jean Blais was well known, witnessed his instruments, took his acknowledgments, bought from him, and sold to him.
“According to all accounts Jean Blais was a familiar figure about the city of Negaunee, where he resided for upwards of 30 years, and, if he was of unsound mind, it is surprising the complainants are unable to produce á single person, outside liis interested descendants, to testify to his insanity. On the other hand, the defendants produced several persons representing different walks in life who knew Jean well, who transacted business with him and knew of his dealings with others, and who certify to his mental capacity. Among those witnesses was Joseph H. Primeau, at present and for over 16 years last past register of deeds of Marquette county, béfore that recorder of the city of Negaunee, a countryman and lifelong friend of Jean Blais. Practically all of the instruments, including the deeds to the Mitchells, executed by Jean Blais during Mr. Primeau’s long residence at Negaunee, were drafted or witnessed by him, and in many instances Mr. Blais’ acknowledgments were taken before _ Mr. Primeau as notary. That Mr. Primeau had exceptional opportunity and ability to judge whether or not Jean Blais’ mentality was such as to enable him to know the nature, character, and effect of his deeds and to transact his real property and other affairs intelligently and with due regard to his own interests, is undoubted, and respecting Mr. Primeau’s credibility there is and can be no question. Mr. Primeau’s conclusions are in harmony with the overwhelming weight of the evidence on the question of capacity. He testified:
“ ‘In all these transactions [in which Mr. Primeau acted as conveyancer for Mr. Blais] he made his own bargains and did all his negotiating, every time. If I did not believe he was a man of good sense, I would not have done business the way I did for him. I considered him very sharp — instead of being an insane person, sharp and shrewd. He had his peculiarities; he was queer; he wanted his will to be fulfilled; he wanted everything his own way; but he was far from being crazy or insane. He acted in the transactions referred to as any good rational man would do. He never raised; the idea in my mind that he. was an insane person whatever. I found him very rational' and very sharp when doing business. I never heard anything contrary to that. . He was a man that appeared to have a good many friends, too.’
“The failure to establish that Jean Blais was incompetent when he executed the deeds in question is so complete it is considered unnecessary to discuss the proposition, presented by counsel for the defendants, that in any event, under all the facts and circumstances of this case, his heirs are estopped from asserting his incompetency at this late day. The bill of complaint in both cases will be dismissed, and a decree will be entered quieting the title to the premises as prayed in the respective cross-bills.
“Counsel have found fault with Mr. Foard for undertaking to try out the claims of the heirs on shares. Why he should have refrained from doing what lawyers and others commonly do is not made clear. What, in Mr. Foard’s actions, causes special regret, consists of the unfounded aspersions countenanced, if not instigated, by him, upon the character of men whose lips in their own defense were sealed by the hand of death; and in that, without adequate grounds, he aroused in the minds of those poor people only to become the disagreeable office of the court to dispel, visions of wealth and of release from the hard labor and privations which have been theirs from birth. That they subscribed the allegations of the bills of complaint without full appreciation may be inferred and may not be wondered at. Their disappointment over the result will be hardship enough, without the added burden of costs. The decree in each case will therefore provide for the costs of the defendants to be taxed, but to be recovered from the complainant Foard alone.”

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

This is a case assigned to the late Justice McAlvay, remaining undetermined at the time of his death.


source: Caselaw Access Project

author: Kuhn, J. Kuhn, J.

license: Public Domain

text:
    NEWELL v. DETROIT, GRAND HAVEN & MILWAUKEE RAILWAY CO.
    1. Railroads — Trespassers—Warning—Negligence.
    In an action for the death of plaintiff’s decedent, who was killed while walking on a trestle or bridge on his way to work, by defendant’s engine backing down upon him without a light, where the evidence showed that decedent disregarded the notices defendant had posted warning pedestrians to keep off, the court was not in error in directing a verdict for • defendant on the ground that it had performed its duty to the public.
    ON REHEARING.
    2. Same — Trespassers — Naked Licensee — Negligence — Gross Negligence.
    Plaintiff’s decedent being no more than a mere naked licensee, no obligation was imposed on defendant other than not to do him wilful injury; and plaintiff's danger, not having been discovered, the doctrine of gross negligence does not apply.
    Error to Ottawa; Cross, J.
    Submitted April 21, 1915.
    (Docket No. 77.)
    Decided September 28, 1915.
    Reargued January 19, 1916. Former opinion affirmed March 31, 1916.
    Case by Sarah Newell, administratrix of the estate of David Newell, deceased, against the Detroit, Grand Haven & Milwaukee Railway Company for the unlawful killing of plaintiff’s decedent. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Louis H. Osterhous, for appellant.

      Harrison Geer (W. K. Williams, of counsel), for appellee.
   Kuhn, J.

This is an action brought by the plaintiff to recover damages for the death of one David Newell, who was run down and instantly killed by one of the defendant’s locomotives at 6:15 a. m., central standard time, January 14, 1914, while it was still dark.

The defendant-owns and operates a line of railway running from the city of Grand Haven northerly and eastwardly through Ferrysburg, which is' a village of some 300 or 400 inhabitants, to Detroit, and the property includes a strip of track between a railroad trestle over the south channel of the Grand river and a swing bridge over the main channel of the Grand river between Grand Haven and Ferrysburg station. The right of way at this point consists of an embankment built up to a height of from 8 to 12 feet above the ordinary ground level on each side, and is occupied' by two straight parallel tracks. The west track is the main line of thé defendant railway company; the east track is the main line of the Pere Marquette Railroad Company, which company was using the same at the time in question under a lease from the defendant. The distance from the bridge to the trestle is 1,455 feet, and the trestle itself is 650 feet in length; there being two separate trestles, one for the east track and one for the west track, separated by an open space of about 5 feet. The tracks from the swing bridge south up to the Pere Marquette cross-over beyond the trestle were maintained and looked after by the section crew of the defendant company, and not by any employees of the Pere Marquette Railroad Company. Mr. Newell was a member of the Grand Haven section crew of the Pere Marquette- Railroad Company, and his section commenced about 600 feet south of the trestle and extended in a southerly direction. The defendant maintained on the bridge a sign which read as follows :

“Warning: No Thoroughfare. — No persons allowed on this bridge except employees”

• — and also had similar signs at both ends of the trestle.

Plaintiff’s decedent, who.resided at Ferrysburg, was accustomed to report for work every morning at the Grand Haven depot at 6:25 a. m., and it was his 'habit and custom to go to his work upon and along the railroad track from his home in Ferrysburg, which made the distance shorter than if he had traveled along the public highway. On the morning in question he left his home between 6 and 6:15, and met his partner, a Mr. Lulofs, and they started for Grand Haven about 6:10. This was the last seen of Mr. Newell alive, and he and his fellow workman, Mr. Lulofs, were run down and killed by a locomotive of the defendant company, which was backing down the track without a headlight on its tender.

It was the theory of the plaintiff that the defendant, in operating its engine in this manner, under the circumstances and at the time and place in question, disregarded its duty to any person who might have been walking along the tracks', and particularly to the plaintiff’s intestate, in the following respects:

(1) In not keeping any reasonable, proper, and necessary watch and lookout for pedestrians along the track.
(2) In not having and keeping upon the engine tender a suitable, sufficient, and necessary headlight, which would serve as a warning to pedestrians on the track, and by the light of which the engine crew could have seen such pedestrians.
(3) In not keeping a watch and lookout from and on the footboard on the rear of the engine.
(4) In not blowing the whistle, or sounding any signal or warning whatever, that could have been heard by any pedestrians on the track, and also that the injury complained of is claimed to have been inflicted “wilfully, recklessly, carelessly, negligently, and wantonly.”

At the close of the proofs in the case counsel for defendant moved the court to direct a verdict of no cause of action for the following reasons:

(1) Because the plaintiff’s intestate was a trespasser, to whom the defendant at the time and place in question owed no duty, other than to do him no wilful or wanton injury.
(2) Because the defendant had not been guilty of any wilful or wanton injury.
(3) Because plaintiff’s intestate was guilty of contributory negligence.

The trial court directed a verdict for the defendant on the ground that the defendant, having put up signs warning people to keep off the track, had done its full duty to the public, being of the opinion that the case presented was ruled by the decision of this court in Winnie v. Railroad Co., 160 Mich. 334 (125 N. W. 351).

It is the claim of the plaintiff — and testimony was offered to sustain this claim— that the right of way in question had for years been used by the public as a thoroughfare, and that therefore plaintiff’s decedent was a licensee, and not a trespasser, upon the railroad right of way and tracks at the time he was killed. Counsel for appellant, in a well-prepared brief, has gone over all the authorities in the various jurisdictions upon this question, and concedes the rule that ordinarily a railway company owes no greater duty to a trespasser upon its track than to use reasonable care not to injure him after his peril has been discovered, and that the company need exercise no lookout, nor maintain any crew or watchman, to discover him, but contends that this rule should not apply to a situation where people are accustomed to travel on the railroad tracks and this public use is known to the railroad company. In discussing the case of Winnie v. Railroad Co., supra, counsel says that it should be distinguished, but does not indicate in what way it can be distinguished. He further says that the decision is contrary to all other authorities in the State, and has been in effect overruled by the decision in Huggett v. Erb, 182 Mich. 524 (148 N. W. 805).

It is true that an examination of all the authorities discloses that there is considerable conflict in the .various jurisdictions over the duty railroad companies owe to trespassers on their tracks. But in our opinion the situation here presented is clearly ruled in this State by the decision in the Winnie Case, supra, which we think cannot be distinguished in principle. This court in that case said:

“It is difficult to conceive what more this company could have done to give warning to the general public that this was a place of danger. The evidence tended to show that a fence had been maintained which had been torn down from time to time. The yard was very plainly devoted to railroad tracks, in which cars and engines were frequently moving back and forth and were of themselves a warning of danger, and, with the notices posted as they were, the public who saw fit to pass over these tracks did so with full knowledge of the danger. Except by stationing men at the highway along the track, it is impossible to conceive how the company could have more effectively warned the public that this territory was not a thoroughfare. The case upon this point is very similar to that of Perego v. Railway Co., 158 Mich. 225 (122 N. W. 535).”

We see no reason why the conclusion therein reached should be now overruled, as we are of the opinion that that conclusion should result, not only in the protection of property, but, what is far more important, the preservation of personal security and human life.

The right of way was the exclusive property of the defendant, upon which no unauthorized person had the right to be for any purpose. Plaintiff’s decedent in this' case was not upon the right of way by any invitation of the defendant, express or implied. He was there, knowing of the defendant’s wish that he should not walk along this right of way at the point in question ; defendant having for years maintained signs forbidding people doing what the decedent did. He was not there to transact any business whatever for the defendant, and in our opinion, as was said in the Winnie Case, supra, the railroad company did all that it should be called upon to do in warning the public of the fact that the right of way was not a thoroughfare. A court should not say to wilful trespassers of mature years, after they have been warned, that if they go upon a railroad track in case it suits their convenience the railroad company is obliged to protect them further than to avoid doing them injury after their peril is discovered.

We think that this case is readily distinguishable from Huggett v. Erb, supra, where a child of 2 years and 8 months of age was run over in the city of Alma at about 1:40 o’clock in the afternoon, while walking down the track of the defendant within the limits of that city and between two public crossings. We think the distinction can be readily drawn from the following language used by Mr. Justice Steere in writing that opinion:

“Conceding that children non sui juris, invading private property, are technical but unconscious trespassers, as would be a wandering animal, the view is sustained by these cases and abundance of other authority that they are not wilful trespassers, knowingly doing a wrong or incurring a risk in a sense which could legally charge them with negligence or personal responsibility, as in the case of older persons not under such disability.”

In the instant case we have a man of mature years, in the full possession of all his faculties, and not a child of tender years, incapable of “knowingly doing a wrong or incurring a risk in a sense which could legally charge them with negligence or personal responsibility.” There is no escape from the conclusion that under the authorities in this State, under the facts set forth in this record, plaintiff’s decedent was a wilful trespasser, and that therefore the circuit judge was correct in holding that there was no liability on the part of the defendant, and in directing a verdict in its favor.

Judgment is affirmed.

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

This is a case originally assigned to the late Justice McAlvay, remaining undetermined at the time of his death.

ON REHEARING.

Kuhn, J.

The argument on the rehearing granted in this case was had in conjunction with a rehearing granted in Risbridger v. Railroad Co., opinion appearing in 152 N. W. 961. After a careful review of the elaborate briefs submitted by counsel, and a full consideration of the arguments had at the hearing, we have been unable to come to any other conclusion but the one arrived at in the opinion heretofore written. In our opinion, the facts in this case clearly bring the situation within the rule announced in Sturgis v. Railway Co., 72 Mich. 619 (40 N. W. 914); Clark v. Railroad Co., 113 Mich. 24 (71 N. W. 327, 67 Am. St. Rep. 442); Winnie v. Railway Co., 160 Mich. 334 (125 N. W. 351).

It is the contention of counsel that this conclusion is at variance with the opinion of this court in Morrison v. Carpenter, 179 Mich. 207, 214 (146 N. W. 106, Am. & Eng. Ann. Cas. 1915D, 319). But we think that that case is readily distinguishable from the case now under consideration. For there the court said that if a licensee uses a well-defined, openly, and continuously used way, he takes only such risks as have existed during the time of using the same. But this does not extend to additional risks on the path made afterwards by the licensor without the knowledge of the licensee. And it was said that if'the licensor interfered with the path by making it more dangerous, he should give notice to the licensee or guard the dangerous place so made.

In the instant case there is no question but that the path used by the plaintiff’s decedent at the time he met his death was in the same condition that it had been in, and that he was not confronted with unusual danger at that time. As we have before said, the plaintiff’s decedent was upon the track without any invitation, express or implied, and the most that can be said is that he was there by tacit permission only. The plaintiff’s decedent, walking longitudinally along the track, was in a place of known danger. The use he was making of the track was simply by sufferance, which amounted to no more than a mere naked license, and imposed no obligation on the railroad company to provide against the danger of accident other than not to do him wilful injury.

The distinction between the situation in this case and the case of Huggett v. Erb, 182 Mich. 524 (148 N. W. 805), was commented on by this court in the case of Hoover v. Railway Co., 154 N. W. 94, where Mr. Justice Steere, in speaking for the court, said, in referring to the Huggett Case:

“The latter case lays down no new doctrine and changes no previous rule, but, as applied to the case then under consideration, reiterates and points out the distinction, relating to trespass, involving danger of injury, between infants non sui juris and adults or those of sufficient age to realize the nature of their conduct, care for themselves, and. be accountable for their acts.”

It is also urged that under the facts shown in this record the case should have been submitted to the jury on the theory of the defendant being guilty of gross negligence. It will be unnecessary to determine whether or not a railroad company might not be guilty of gross negligence, as it has been held in many jurisdictions, in operating a train, even over its private right of way, at a high and dangerous rate of speed, unlighted, and without proper warning signals, in a densely populated community, over tracks known by the company to have been frequented by pedestrians. In the instant case no such situation confronts us, for the place where decedent met his death was not such a place, but on the contrary was away from the populated areas. We do not'think that the doctrine of gross negligence could be said to apply to such a situation, unless the peril of the deceased had been discovered. See Strong v. Railroad Co., 156 Mich. 66 (120 N. W. 683); Knickerbocker v. Railway Co., 167 Mich. 596 (133 N. W. 504); Putt v. Railway Co., 171 Mich. 216 (137 N. W. 132); Fike v. Railroad Co., 174 Mich. 167 (140 N. W. 592).

Being constrained to come to the same conclusion we reached before, judgment is affirmed.

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

       Publication withheld, pending rehearing.

       Decided September 29, 1915.


author: Person, J.

text:
    MOSS v. DETROIT & MACKINAC RAILWAY CO.
    1. Carriers — Railroads — Personal Injuries — Contract — Evidence.
    In an action against a railroad company by an infant 13 years of age for injuries received by being carried past his destination, and having to walk back a distance of nearly eight miles, in a storm, evidence that plaintiff’s father purchased a ticket for him from the agent of another railroad, who was authorized to sell the same; that the ticket asked for was to Linwood, and the ticket received was to Linwood Park; that the conductor of defendant’s train accepted the ticket without objection and promised to tell him when the train reached the station; that the defendant’s brakeman told plaintiff when he got on that the train went to Linwood, held, sufficient to establish a contract to carry plaintiff to Linwood Park.
    2. Same — Contributory Negligence — Question of Pact.
    It cannot be said, as matter of law, that plaintiff, at his age, in a strange place, and without any instruction from defendant’s employees, or any one else, was guilty of contributory negligence in not stopping at some house instead of continuing his journey on foot to his destination.
    3. Appeal and Error — Evidence.
    Where plaintiff recovered in the court below, this court, on appeal, is bound to take that view of the evidence most favorable to plaintiff.
    4. Damages — Personal Injuries — Proximate Cause.
    Whether the damages alleged in a particular case are the proximate results of the injury, is usually a question of fact for the jury.

      5. Carriers — Damages—Proximate Cause — Negligence.
    Where the evidence showed that plaintiff, who had previously been in good health, was suffering from cold and exhaustion' when he reached his destination, gradually growing worse until pneumonia set in, and no exposure or cold, other than the one alleged, is shown by the testimony, the court was justified in submitting to the jury the question whether plaintiff’s illness from penumonia was a proximate result of defendant’s negligence.
    6. Same — Damages—Conjecture—Instructions—Tort.
    Although plaintiff would have had a considerable distance to walk to his destination, and it is impossible for the jury to determine what share of his illness was caused by the increased distance in being carried past the station, it was not error for the court to submit the question of damages to the jury, under proper instructions; this being an action in the nature of tort.
    7. Damages — Carriers—Excessive Yerdict.
    Where plaintiff, an infant 13 years of age, brought an action for injuries caused by severe cold and resulting pneumonia, contracted by exposure and exhaustion in reaching his destination on foot after being carried past his station by defendant’s train, necessitating an operation and large quantities of pus taken from his side, from which he had not fully recovered at the time of the trial, a verdict for $600 cannot be said to be excessive.
    Error to Bay; Connine, J., presiding.
    Submitted April 21, 1915.
    (Docket No. 155.)
    Decided September 28, 1915.
    Case by William Moss, an infant, by next friend, against the Detroit & Mackinac Railway Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Henry, Henry & Henry, for appellant.

      Thomas G. Baillie (R. L. Crane, of counsel), for appellee.
   Person, J.

Plaintiff, who was a little more than 13 years old, with his sister Pearl, who was still younger, went from their home in' Saginaw to pass Christmas with their grandfather, near the village of Linwood. This was on the 23d day of .Decembér, 1911. From Saginaw to Bay City their route was by way of the Pere Marquette Railroad, and from Bay City over the defendant’s road. The children were traveling alone, and when the conductor on defendant’s road took up their tickets, after leaving Bay City, he promised, as they claim, that he would notify them on reaching Linwood, and tell them when to get off. They say that they relied upon this promise and did not hear the name Linwood called at any station. After a time the plaintiff, thinking they had traveled far enough to have reached their destination, again spoke to the conductor, who told them that they had already passed Linwood, and had better hurry and get off, or they would be carried still further. They thereupon left the train, at a flag station called Mitchie, and from there walked back, through the village of Linwood, to their grandfather’s home, a distance of nearly eight miles, reaching there some time after dark. The day was stormy and there was snow on the ground. The boy carried a suit case weighing some 15 pounds, and most of the way also a basket. When he reached his grandfather’s he was tired, had contracted a severe cold, and could not eat his supper. From that time on he claims that he never felt well and always had a cold; that his lungs were continually sore; and that he suffered from pains in his side, as well as in other ways. In May he became very ill with pneumonia, and was taken to a hospital, where an operation was performed, and large quantities of pus taken from his side. He had not fully recovered at the time of the trial. The jury awarded him a verdict for $600. '

Before the trial of this case in the circuit court, the sister had obtained a judgment in an action for the same alleged negligence, and that judgment had been affirmed by this court. Moss v. Railway Co., 182 Mich. 40 (148 N. W. 204).

1. It is urged by defendant that no contract was established by which it was required to carry the plaintiff from Bay City to Linwood Park, or to any other station on its road. In this we think defendant is mistaken. There is evidence that tickets for the children were purchased by their father in Saginaw at the Pere Marquette depot, where the agent was authorized to sell tickets over defendant’s road. It is true that the father asked for tickets to Linwood, and there was, at the time, no such station on defendant’s line; but there was a station at Linwood Park, about two miles from the village of Linwood, and when tickets were asked for to Linwood the agent would say “Linwood Park” and sell the tickets to that place. The children testified that the conductor on defendant’s road accepted their tickets without objection and promised to tell them when the train should have reached the station, so they might get off. They also testified that the brakeman told them, when they got on defendant’s train, that it went to Linwood. There was plenty of evidence from which the jury could justly find that the children held tickets to Linwood Park, which were accepted by defendant’s officials, and that the station was spoken of, by those connected with the road, both as Linwood Park and Linwood.

2. The trial judge left it for the jury to determine whether the plaintiff was guilty of any negligence that contributed to his injury. This was sufficient. It cannot be said, as matter of law, that the plaintiff, at his age, in a strange place, and without any instruction from defendant’s employees, or anyone else, was guilty of contributory negligence in not stopping at some house, instead of continuing his journey on foot to his grandfather’s. This question was disposed of, substantially, in the other case.

3. It is urged that plaintiff’s illness from pneumonia was not shown to have been a proximate result of defendant’s negligence, and that the jury should not have been allowed to consider it in connection with the question of damages. But on this appeal we are bound to take that view of the evidence most favorable to the plaintiff. Looking at it in this way, we find that up to time of leaving defendant’s train, after having been carried beyond his station, this boy of 13 had always been in good health. Upon reaching his grandfather’s house, in the evening, having walked some’eight miles, over a snowy road, on a more or less stormy winter day, carrying a heavy valise and a basket, he was too exhausted to eat his supper, and complained of having chills and not feeling well. After that he always had a cold, his lungs were continually sore, and he suffered from pains in his side. About the middle of January a physician was called, who has continued his treatment ever since. In April this physician thought he saw symptoms of pleuropneumonia, and on the 20th of May pneumonia was pronounced and severe. Later the plaintiff was taken to a hospital, where a surgical operation was performed, and a large amount of pus,' which had been a long time in forming, was taken from his side. From this testimony it might be found that the bojr’s illness, resulting from his exhaustion and the cold contracted during his exposure, continued gradually to grow worse until pneumonia set in. The doctors agree that exposure and colds are the most common causes of pneumonia, and no exposure or cold, other than the foregoing, is shown by the testimony. Whether the damages alleged in a particular case are the proximate results of the injury is usually a question of fact for the jury. Light v. Railway Co., 165 Mich. 433 (130 N. W. 1124, 34 L. R. A. [N. S.] 282) ; 4 Elliott on Railroads, § 1799. And we think the court justified in leaving that question to them in this instance.

4. It is further urged that, if plaintiff had not been carried by Linwood Park, the walk to his grandfather’s would have equaled a considerable portion of that which he did take in getting back from Mitchie; that it was impossible for the jury to determine what share of his subsequent illness, if any, was attributable to the increased distance; and hence that the award of any damage was mere conjecture, and should not have been permitted. This, however, is an action in the nature of tort. In finding that plaintiff was wrongfully carried by his station, the. jury have found that he is entitled to such damages as will compensate him for the injury. To refuse him all damages because their proper amount cannot be accurately measured would throw the entire loss upon the injured party, to the complete acquittal of the wrongdoer. As was said in Allison v. Chandler, 11 Mich. 542, 555:

“When from the nature of the case, the amount of damages cannot be estimated with certainty, or only a part of them can be so estimated, we can see no objection to placing before the jury all the facts and circumstances of the case, having any tendency to show damages, or their probable amount, so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit. This should, of course, be done with such instructions and advice from the court as the circumstances of the case may require, and as may tend to prevent the allowance of such as may be merely possible, or too remote or fanciful in their character to be safely considered as the result of the injury.”

The rights of the defendant were very carefully protected by the instructions given and we see no error in the submission of the question of damages to the jury.

5. Under‘all of the circumstances, it cannot be said that the verdict was clearly excessive, nor that it was against the weight of evidence.

The judgment is affirmed.

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

This case having been submitted on briefs, without oral argument, was reassigned after the death of Justice McAlvay.


author: Kuhn, J.

text:
    LOUD v. SOLOMON.
    1. Witnesses — Re-examination—Discretion of Court.
    After a witness has been examined, he may be subjected to further interrogation by the party by whom he is called; the extent of such re-examination resting largely within the discretion of the trial court.
    2. Same — Abuse of Discretion.
    Where, while plaintiff was upon the witness stand, at the close of a redirect examination, and before recross-examination began, the court asked that each counsel finish with the witness, and no further questions were asked by plaintiff’s counsel, and, after a short recross-examination, plaintiff’s counsel asked the privilege of asking a few more questions, the refusal of such request was not an abuse of discretion by the court.
    S. Fraud — Evidence—Corporations.
    In an action upon promissory notes given in payment of stock in a cement corporation, which defendant claims he was induced to purchase by means of false and fraudulent representations as to the financial condition and property of said company, the articles of association, and the annual reports of the company to the secretary of State were properly admissible in evidence.

      4. Evidence — Depositions—Stock and Stockholders — Value of Stock.
    A deposition of a mining engineer, offered in evidence for the purpose of showing that other plants in the immediate vicinity, started on the same plan as the corporation in which defendant purchased stock, were being successfully operated, to substantiate the representations that there was no water in the stock, that the company was well financed, and that the value of the land made the stock worth $3.50 a share, the purchase price, was inadmissible, where it does not appear from the deposition that any Questions were asked as to the manner of financing the neighboring companies, the valuation which they placed upon the land taken, or the scheme of their stock issues generally, so as to show that the stock issues of those companies were not watered.
    5. Corporations — Stock—“Watered Stock.”
    “Watered” or fictitious stock is stock that is issued as fully paid up when, in fact, the whole amount of the par value thereof has not been paid in, or which purports to represent, hut does not represent, in good faith, money paid into the treasury of the company, or money’s worth actually contributed to the working capital of the concern.
    6. Evidence — Corporations—Fraud—Fully Financed.
    Where defendant claimed that it had been falsely and fraudulently represented to him, in the sale of stock, that the company had been fully financed, it was not error for the court to exclude a question as to whether the company, with $3,500 in cash available, and its 400 acres of land paid for, could be made a practical or feasible scheme by the sale of stock as the plant progressed, as it could not be said that the answer would show that the company had been fully financed, where its success depended upon the uncertainty of stock sales.
    7. Trial — Instructions—Fraud—Appeal and Error.
    Where the court charged the jury that it was undisputed that plaintiff’s agent made substantially the same representations to defendant that plaintiff made, and the agent testified that he attempted to sell stock to defendant, at plaintiff’s request, that he received his information concerning the financial condition of the company from plaintiff, and that he made the representations claimed by defendant, and plaintiff admitted that the agent assisted in the sale of the stock, while it is doubtful whether the instruction was warranted, yet, in view of the entire charge, and the almost conclusive evidence in support of these facts, it cannot be said that the jury were misled.
    Error to Iosco; Connine, J.
    Submitted April 21, 1915.
    (Docket No. 12.)
    Decided September 28, 1915.
    Assumpsit by H. Kimball Loud against Selig Solomon and another. Judgment for defendants. Plaintiff brings error.
    Affirmed.

      Henry, Henry & Henry, for appellant.

      Jaharus & Rawden (Joseph H. Cobb, of counsel), for appellees.
   Kuhn, J.

This action is brought to recover on two promissory notes, given in part payment for stock in a corporation known as the El Cajon Portland Cement Company. This company was organized in May, 1903, by the plaintiff and 15 others, with a capital stock of $500,000, divided into 50,000 shares, of a par value of $10 each. Each incorporator subscribed for 100 shares, and four of them, including the plaintiff and one Rogers, subscribed for the balance as trustees. The plaintiff and Rogers transferred to the company land owned by Rogers, which had been deeded to the Alpena County Savings Bank to secure a loan of $1,500, and 355 acres of land which had been acquired by plaintiff and Rogers for $1,100, and took in return from the company $1,000 in cash and $85,000 of the capital stock of the corporation.

After its organization the corporation entered into a contract with Mr. Rogers for the construction of its plant for $325,000 of its capital stock and $500,000 of bonds to be secured by a mortgage. It was estimated that the plant would cost $400,000, and Mr. Rogers was to undertake to sell the stock. Rogers and others then organized a corporation known as the Rogers Construction Company, and turned this contract over to it as its principal asset. Plaintiff herein became the treasurer and general manager of the Construction Company.

In the summer of 1903 the plaintiff opened negotiations to sell the defendant stock in the Cement Company, and in January, 1904, the defendant entered into a contract with the Rogers Construction Company for the purchase of 2,000 shares of the Cement Company’s stock at $3.50 per share, payment to be made partly in notes. The notes involved in this controversy are renewals of two of these notes. The notes were executed by the defendant Selig Solomon in the name of Harry Solomon, and payment guaranteed in his own name. They were of the following tenor:

“$500.00. Au Sable, Mich., August 1,1904.
“January 1, 1905, after date, I promise to pay to H. Kimball Loud,' or order, five hundred dollars at Dodds & McNichol’s Bank, Oscoda, Michigan. Value received.
“[Signed] Harry Solomon.”

On the back of this note appeared the indorsements of Selig Solomon and H. Kimball Loud and the following guaranties:

“For value received, I, the undersigned, hereby waive protest on the within note, and guarantee payment of same. Selig Solomon.”
“For value received, the undersigned hereby waive protest and demand for payment, and guarantee payment of same. . H. Kimball Loud.”
“$500.00. Due Feb. 8th.
“Au Sable, Mich., Dec. 5,1904.
“Two months after date I promise to pay to the order of H. Kimball Loud five hundred and no/100 dollars at bank of Dodds & McNichols, Oscoda, Michigan, value received. [Signed] Harry Solomon, per.”

This note was also indorsed by Selig Solomon and H. Kimball Loud, and bore this guaranty:

“For value received, I hereby guarantee the payment of the within note, and waive demand and notice of protest of same. • H. Kimball Loud,

The notes were discounted at the bank by the plaintiff, but were not paid at maturity, and were after-wards paid by the plaintiff. The defendant resisted the payment of the notes on the ground that he was induced to buy the stock of the Cement Company by false and fraudulent representations made to him by the plaintiff and one Ebling, as agent for the plaintiff. The specific representations claimed to have been made are set out in the plea of the defendant, and are as follows:

“That the said El Cajon Portland Cement Company owned 400 acres of land, for which it had paid $200 per acre; that nearly all the stock had been subscribed for by bona fide purchasers; that Frank W. Gilchrist and other capitalists of the city of Alpena owned a large amount of the stock; that said company was fully financed; that the property of the company made the stock worth the sum of $3.50 per share; that there was no water in the stock; and that all its lands were free and clear of indebtedness.”

From a verdict and judgment of no cause of action, the plaintiff removed the case to this court for a review of alleged errors in the admission and rejection of evidence and in the charge of the trial judge.

It appears that while the plaintiff was upon the witness stand, at the close of a redirect examination and before the recross-examination began, the court stated:

“I will now ask that each counsel finish with the witness.”

No further questions were thereupon asked by plaintiff’s counsel, and after a short recross-examination plaintiff’s counsel asked the privilege of asking the witness a few more questions, which request was not acceded to, and the witness was excused. This refusal on the part of the court is assigned as error.

The general rule seems to be that, after a witness has been examined, he may be subjected to further interrogation by the party by whom he is called; but the extent of such re-examination rests largely within the discretion of the trial court. Here the plaintiff had been re-examined, and a recross-examination had also been held. We are not impressed that there was an abuse of discretion on the part of the trial judge in refusing counsel the privilege of further redirect examination under the circumstances here set forth. See 40 Cyc. p. 2520; People v. Moran, 65 Cal. 534 (4 Pac. 545) ; Fowler v. Town of Strawberry Hill, 74 Iowa, 644 (38 N. W. 521) ; Anderson Transfer Co. v. Fuller, 174 Ill. 221, 227 (51 N. E. 251) ; Brown v. State, 72 Md. 468, 475 (20 Atl. 186).

It is also urged that the court erred in admitting the articles of association of the company and the annual reports filed with the secretary of State. It is well established that in cases of fraud a wide range of examination is allowed, and we do not think that the examination here permitted went beyond the proper scope of inquiry. The corporation papers and the reports made to the secretary of State show who the stockholders were at the inception of the company, the stock owned by each, and also the financial condition of the company, and we are of the opinion that it was proper to show that the plaintiff was making false representations regarding the financial condition and property of this company, and that no error was committed in the admission of this evidence, in view of the claims of the defendant as to the fraudulent representations. Millet Co. v. Andrews, 175 Mich. 350 (141 N. W. 578).

It is the claim of the plaintiff that error was committed by the trial judge in not allowing proofs which it is claimed showed that other plants in the immediate vicinity of the plant of the El Cajon Portland Cement Company, started on the same plan, were being successfully operated. For this purpose the deposition of Mr. Henry H. Hindshaw, who is a mining engineer, was offered in evidence. It is claimed that this evidence could be said to substantiate the representations that there was no water in the stock, and that the company was fully financed, and that the value of the land made the stock worth $3.50 a share. In this connection, it is well to consider what is meant by watered stock. Cook on Stock and Stockholders and Corporation Law defines it as follows:

“By watered or fictitious stock is meant stock which is issued as fully paid up, when in fact the whole amount of the par value thereof has not been paid in-If any amount less than the whole face value of the stock has not been paid, and the stock has been issued, as fully paid, then the stock is watered to the extent; of the deficit. Watered stock is, accordingly, stock which purports to represent, but does not represent, in good faith, money paid in to the treasury of the company, or money’s worth actually contributed to the working capital of the concern.” Section 13.

It is also said with reference thereto that:

“There are three different ways in which watered stock is issued: It is done by issue of certificates of stock for an amount of money less than the par value of the stock, the certificates asserting on their face that the full value has been paid in; or for property or construction work taken at a fraudulent overvaluation; or jby a stock dividend, the equivalent par value of which has not been permanently added to the capital stock.” Section 29.

It is the claim of the plaintiff that there was no overvaluation of the property, and that it was worth what it was represented to be for the purposes for which it was going to be used; and to show that there was no overvaluation, the testimony was offered that there were other cement plants in the vicinity, working on the same soil at locations no more available, and that they were successful.

In our opinion, bearing in mind that the issue as presented was whether the stock was watered, the company fully financed, and the property of such a character as to make the stock worth $3.50 a share, this testimony was properly rejected as offered. To make it competent, an offer should have been made to show that, in addition to the similarity in soil and means of access to the market, the material facts in the organization of the neighboring companies were substantially the same. It does not appear from the deposition of Hindshaw, upon which the plaintiff principally relies, that any questions were asked as to the manner of financing the neighboring companies, the valuation which they placed upon the land taken, or the scheme of their stock issues generally, so as to show that the stock issues of those'companies were not watered. Without proof on these points, the evidence offered could have no bearing on the issues in this case. See Plummer v. Mining Co. (C. C.), 55 Fed. 755; Pensacola, etc., R. Co. v. Atkinson, 20 Fla. 450; Norris v. Clark, 33 Minn. 476 (24 N. W. 128) ; Mead v. Merrill, 33 N. H. 437.

The witness Hindshaw was asked the following question:

“In your judgment, if the land was purchased and paid for, known as the El Cajon lands, assuming there were 400 acres, located as they are, and $3,500 in cash was available to start the construction of a cement plant, would it or would it not be a practical or feasible scheme to complete and make prosperous a cement industry by the sale of stock as the plant progressed, until it was on a paying basis?”

An objection to this question was sustained by the trial court. Assuming that the witness had qualified himself as an expert to answer this question, concerning which there is some- doubt, its only purpose could be to substantiate the representation that the company had been fully financed. However, if an answer had been allowed to the question, it could not be said that the answer would show that the company had been fully financed, as under the question as stated the success of the plant would depend upon the sale of stock as it progressed, and it certainly could not be said that it was on a solid financial basis as long as its success depended upon the uncertainty of stock sales in order to make it possible for operations to proceed.

During his charge the court said to the jury:

“It is further claimed by Mr. Solomon that Mr. Ebling, acting as the agent of Mr. Loud, also came to him and made him certain representations for the purpose of inducing him to buy this same stock. It is claimed by Mr. Solomon that substantially the same representations were made to him by Ebling that were made to him by Loud. Now, that does not seem to be disputed, as I can recall in this case, and that Mr. Ebling was the agent of Mr. Loud; and, if he was, then Mr. Loud would be bound by such representations as Mr. Ebling made.”

It is claimed by the appellant that the court erred in charging the jury that it was not disputed that the same representations were made to the defendant by the plaintiff and the witness Ebling, and that Ebling was the agent of the plaintiff. At the beginning of his charge, the court stated the following:

“Now, it is my purpose to outline to you in my charge the claims that these parties make here. I do not do that for the purpose of directing you as to what your verdict shall be, nor for the purpose of intimating what the facts are, but I do it for the purpose of laying the facts before you — first, the issues of fact; and,- second, the issues of law. It is your duty to accept and. follow and apply to the facts the directions given you by the court; otherwise, your action might take some illegal direction and not result justly. In speaking of the claims that the parties make here, I do not want to be understood as intimating what the facts are, or what your verdict ought to be; but I do it for the purpose of laying the issues before you.”

Again he said:

“Now, the plaintiff, on the other hand, Mr. Loud, denies that he made these representations as claimed by Solomon, and he states to you what he did say to Solomon. Mr. Loud also denies that Mr. Ebling made any such representations to Solomon. So you see that gives rise to disputed questions of fact, and those questions of fact are solely for you to determine and pass upon. I haven’t any right or any business to pass upon it, or decide it one way or the other. That is your duty^ and it is your duty to determine .whether any or all* of these representations were made, and, if they were made, whether they were false. If you find they were not made, then the defense fails, and your verdict would be for the plaintiff for the amount of his notes and interest.”

It also appears from the testimony of Mr. Ebling that he approached Mr. Solomon with the purpose of interesting him in the purchase of stock in this company at the request of plaintiff, and that he received such information as he possessed concerning the El Cajon Company and its financial condition from the plaintiff, for the purpose of conveying it to Solomon and inducing him to buy stock in the company. He was to receive 10 per cent, for his services in the sale of the stock. He testified' that he made the representations with reference to the company and its condition, as claimed by the defendant. The plaintiff, while on the stand, in answer to questions, admitted that Mr. Ebling assisted in the sale of the stock. It may be admitted that it is doubtful whether the record warrants the statement that it was not disputed that Ebling had made the same representations to the defendant as were made to him by Loud, and that Ebling was acting as the agent for Loud. Nevertheless, we are of the opinion that, in view of the entire charge as given and the almost conclusive evidence in support of these facts, it cannot be said to have been prejudicial error, as we are satisfied that what was said by the trial court did not mislead the jury.

We have examined the other assignments of error, and, deeming them to be without merit, and being satisfied that the issues here involved were properly submitted to the jury in a fair and impartial charge, and finding no prejudicial error in the record, the judgment of the trial court is affirmed.

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

The late Justice McAlvay took no part in this decision.


author: Moore, J. McAlvay, J.

text:
    BALDWIN v. VILLAGE OF CHESANING.
    Intoxicating Liquors — Licenses—Invalid Ordinance — Duress.
    Where plaintiff hotel keeper brought suit to recover an amount paid to defendant village under an invalid ordinance, under threat by defendant’s officers that the council would not grant his application for a liquor license unless he complied with the terms of said ordinance, his payment of the money without protest is held, to be a voluntary payment, and without duress. Brooke, C. J., and McAlvay, Kuhn, and Bird, JJ., dissenting.

      Error to Saginaw; Gage, J.
    Submitted April 13, 1915.
    (Docket No. 68.)
    Decided September 28, 1915.
    Assumpsit by Thad G. Baldwin against the Village of Chesaning for money paid to defendant under an invalid ordinance. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      A. Elwood Snow, for appellant.

      Charles W. Cheeney and R. L. Crane, for appellee.

       As to when payment of license fee is made under duress, see note in 22 L. R. A. (N. S.) 873.
      As to right to recover back license fee unlawfully exacted under color of authority, see note in 49 L. R. A. (N. S.) 387.

   Moore, J.

The plaintiff is a resident of the village of Chesaning, and has been for 34 years. He was engaged as a saloon keeper in partnership with one Sutter. Their license expired May 1, 1912.

On .November 10, 1911, the plaintiff bought the Hotel Central property in the village, consisting of a hotel, barber shop, barroom, and livery, on contract, and agreed to pay theréfor the sum of $12,000. On March 6, 1912, the defendant village adopted an ordinance requiring all saloon keepers in said village to pay a license fee of $500. We quote from the brief of appellant:

“In April, 1912, the plaintiff made application for a license to conduct a saloon in his said hotel, and filed his application and bond therefor with the village council. On the evening of April 8, 1912, and before the village council met to pass upon the liquor applications, said meeting night being fixed by statute, the plaintiff was approached by a Mr. Thompson, one of the members of the defendant village council, who said to the plaintiff: ‘You had better get busy and pay in your money. If you don’t get your money up to the council meeting tonight, you won’t get any application; they won’t accept your application at all.’ The plaintiff was further told at that time by Mr. Thompson that if he waited until May 1st to pay he would not get a license. Mr. Thompson said he had been authorized to say those things by the council and the village attorney. * * *
“After the above conversation the plaintiff paid the sum of $500 into the village treasury to obtain such village license in accordance with the village ordinance. The village council met that same night and approved of the plaintiff’s application and bond. * * *
“In April, 1913, the plaintiff again made application to said defendant village for a license to conduct a saloon in his said hotel, and filed his application and bond therefor with the village council.
“On the night before the village council met to pass upon liquor applications the president of said defendant village called upon the plaintiff and said: ‘Boys, there is no question of a doubt but what you have got to put up your money. The way I feel in regard to it, I am opposed to it. I don’t want to see you put up your money, but the council has instructed me to come and tell you you have got to put it up or you won’t have any application for license due this next year.’
“At about 5 o’clock in the afternoon of the day the council met the village treasurer called upon the plaintiff, and said: ‘Baldwin, this is your last chance. You have either got to put up your money or the boys won’t act upon your application. I have been authorized by them to come down and tell you.’ * * *
- “After the above conversations the plaintiff paid the sum of $500 into the village treasury to obtain such village license in accordance with the village ordinance. The village council met that same night and approved of the plaintiff’s application and bond.”

It is the claim of the plaintiff that the hotel property was worth the sum of $12,000, and that, if the liquor license was refused the hotel, the property would not be worth to exceed the sum of $5,000, and that to avoid this depreciation in the value of the property the money was paid, and that the action of the council amounted to duress. The circuit judge thought otherwise, and directed a verdict for the defendant. The case is brought here by writ of error.

It was conceded in the court below and is conceded here that the village ordinance was void, so that the only question is: Were the payments of $500 each of the two years made voluntarily? The defendant insists they were, while plaintiff insists that under the situation disclosed by the record the village subjected him to duress. Whether valid or not, the village had an ordinance requiring the fees which plaintiff paid as a condition of doing business. It is fair to assume that counsel for appellant in their statement of facts will call attention to the strongest proof in favor of their clients, and an examination of the record shows they have done so. There is nothing in the record to indicate that the tax was paid under protest, and it may safely be assumed that, if the council failed to approve of the bond and application of the plaintiff for a license when he was legally entitled to it, the courts would grant him relief upon proper application. He did not appeal to the court. As before stated, he paid the fee without protest, and it was not until after he had sold the property that he brings this suit.

The question of duress has been before this court in Hackley v. Headley, 45 Mich. 569 (8 N. W. 511), and Knight v. Brown, 137 Mich. 396 (100 N. W. 602), and is there defined. The instant case does not come within- the definition. We think the case is governed by Betts v. Village of Reading, 93 Mich. 77 (52 N. W. 940), and the cases cited therein. See, also, Eslow v. City of Albion, 153 Mich. 720 (117 N. W. 328, 22 L. R. A. [N. S.] 872).

Judgment is affirmed.

Stone, Ostrander, and Steere, JJ., concurred with Moore, J.

This case was assigned to the late Justice McAlvay.

McAlvay, J.

(dissenting). Plaintiff brought suit against defendant in an action of assumpsit to recover the sum of $1,000 claimed to have been paid by him to the said defendant involuntarily and under duress. A trial had before the court with a jury resulted in a verdict directed by the court in favor of the defendant and against plaintiff. Upon this verdict a judgment was duly entered. Plaintiff has removed the case to this court for review, assigning errors upon the action of the court in directing a verdict against him.

Plaintiff had been a resident of defendant village for over 30 years; and from May, 191Í, up to May 1, 1912, was engaged in business in said village as a retail liquor dealer, in partnership with a man named Sutter. In November, 1911, he purchased upon contract, for the sum of $12,000, “the Hotel Central property,” in said village, consisting of the hotel, barber shop, barroom, and livery. Defendant village is incorporated under the laws of this State, and as such exercises all the rights and privileges of incorporated villages and the power and authority to grant applications and approve the bonds of those intending to enter into the business of selling intoxicating liquors at retail within said village, as provided by the statutes of this State.

On March 6, 1912, defendant village adopted an ordinance entitled “An ordinance relative to saloons and saloon keepers,” requiring every person desiring to keep a saloon within the village before entering upon such business to apply for and procure a license and to pay the sum of $500 into the village treasury.

Plaintiff, intending to enter into the business of retail dealer in said village from and after May 1,1912, in April of that year filed his application and bond therefor, as provided by the statute, with the village council for its approval, to conduct a saloon in his said hotel. On the evening of April 8, 1912, the date fixed by law for the village council to meet and pass upon liquor dealers’ applications and bonds, and before such meeting, plaintiff was approached by Mr. Thompson, one of the members of the village council, who said he had been authorized by said council to say to him that he could not get out of it; that it would be $500 more this year than last; that if he did not get his money up to the council meeting that night his application would not be granted; that if he waited until May 1st he would not get a license. Plaintiff, on this threat, paid $500 into the village treasury, and received the treasurer’s certificate therefor, which was submitted to the council, with his application and bond for a State license, at the council meeting that evening.

The record of the council proceedings shows that all applications and bonds accompanied by the village treasurer’s certificate of $500 were approved unanimously by the council, and the application and bond of one person which were not accompanied by the treasurer’s certificate for $500 were rejected for that reason. Afterwards plaintiff paid to the county treasurer $500, as required, to carry on the business of a retail liquor dealer for the ensuing year, and received his tax receipt therefor, and entered upon and conducted such business during that year at his hotel.

In April, 1913, plaintiff, desiring to continue such business at the same place, again made application to defendant village council, and filed his application and bond to carry on business as a retail liquor dealer in said village for granting and approval. At this time Dr. Elliot was president of the village. Plaintiff had several conversations with him, the last one on the day fixed by law for the approval of applications and bonds of liquor dealers by the village council, in which the president said to him that he must put up the $500; that the council had instructed him to come and tell plaintiff that he must pay the money or he would not have any application for a license approved that year. Later, on the same day, plaintiff having delayed until 5 o’clock in the evening without making this payment, Mr. Slack, village treasurer, came to him and told him that he must put up the money or the council would not act on his application; also that he ,was authorized by them to come and tell him. Plaintiff then paid the money. Other witnesses testified as to these demands made upon the plaintiff by members of the council and officers of the defendant village both in 1912 and 1913. Plaintiff at this time owed a large amount upon this hotel property, for which he had agreed to pay $12,000, and further testified that the action of the village in demanding this extra license money crippled him in his business.

The evidence on the part of the plaintiff is undisputed. Defendant village offered no testimony in the case; the verdict in favor of defendant having been directed on motion made in its behalf at the close of plaintiff’s case. Upon the trial of the case it was conceded by the defendant village that the ordinance was invalid, and that it had no authority or power to pass it. The contention on the part of the defendant upon the trial was that these payments by plaintiff were voluntary, and therefore he was not entitled to recover.

The only question for the court to consider in this case is whether these payments so admitted to have been made by the plaintiff to the defendant village were voluntary or involuntary. In considering this question we are required to apply the rule so often invoked, in cases wher§ a verdict has been directed, to give the evidence in the case on the part of the appellant its strongest probative force in his favor.

The court and counsel for defendant have relied upon the case of Betts v. Village of Reading, 93 Mich. 77 (52 N. W. 940), and it is insisted that this case is controlling of the case at bar. If the instant case cannot be distinguished from the Betts Case, such contention must be conceded.

In the case we are considering the situation was somewhat peculiar. The common council of defendant village, by the provisions of the general liquor law of this State, was the only body with authority and power to pass upon and approve the applications and bonds of all persons who desired to enter into the business of selling intoxicating liquors at retail within the village of Chesaning. They had passed this ordinance for the purpose of obtaining from every such applicant the sum of $500 to be covered into its treasury for municipal uses, and they have succeeded. Upon each of the instances when these payments were made by plaintiff to defendant upon the day fixed by law when the council was required to act upon saloon applications and liquor bonds, members of the council authorized by it came to plaintiff and made these- demands for $500 to be paid to the village, coupled with the threat that, if such sum was not paid forthwith, plaintiff’s application and bond would not be approved. On the last of these occasions the performance of this duty was delegated to the president and treasurer of the village. The authority of these members of the council and officers of the village government to make these demands, and threats is not only undisputed, but the ratification of their acts and threats and the adoption of what they did in the premises clearly appears from the records of the respective meetings of the common council read into the record in this case. It cannot be said in this case that this was not the act of the village council. When these applications and dealer’s bonds were before the council for consideration, it appeared that the application and bond of plaintiff were accompanied by the receipt and certificate of the village treasurer and were approved, because it appeared that the $500 extra had been paid. It further appeared that the application of another person was rejected because it was not accompanied by the treasurer’s receipt and certificate for $500. In this respect it is apparent that the instant case is distinguishable from the Betts Case, where the court said that none of the officers of the village made any threats of prosecution, and there was only random talk by the village attorney; nor in the Betts Case does it appear that threats were made by village officers and their acts ratified by the village council, which was in a position to cripple a man in his business by refusing to approve his application and bond as a retail liquor dealer.

On examination of all of the cases which have been before this court relative to payments of this character to municipal officers, there is no one of them where the facts are similar to those in the instant case. The only thing in common between these cases and the case at bar is that a municipality has unlawfully taken money from a saloon keeper and been allowed to retain it.

It is apparent from the record that the only alternative plaintiff had when this illegal demand was made by members of the council of defendant village was to make the payment, or discontinue business. Such being the case, can it be said that the payments were made voluntarily? These payments made by plaintiff are admittedly illegal exactions, and it is apparent that they were made under apprehension of not being allowed to go on in his business if they were not paid. This being so, the case would come within that class where payments made to prevent apprehended injury to business are held to be involuntary and made under duress. This principle has been recognized by the Federal and several of our best State Supreme Courts.

The case of Swift Co. v. United States, 111 U. S. 22 (4 Sup. Ct. 244), is cited in American Brewing Co. v. City of St. Louis, 187 Mo. 867 (86 S. W. 129, 2 Am. & Eng. Ann. Cas. 821, and note), in support of the proposition that payments coerced under duress or compulsion, though not made in ignorance of the facts, may be recovered. Within this rule are payments of illegal charges or exactions under apprehension on the part of the payers of being injured in their business if the money is not paid. In the reported case cited supra, the supreme court of Missouri said:

“It is * * * well settled that payments coerced under duress or compulsion may be recovered. What constitutes duress has been the subject of much discussion. The general rule was first laid down that: ‘A payment is not to be regarded as compulsory unless made to emancipate the person or property from an actual and existing duress'imposed upon it by the party to whom the money is paid, or to prevent a seizure by a party armed with apparent authority to seize the property. The courts, however, have shown a tendency in the later decisions to extend the doctrine of the earlier common law with regard to compulsory payment, and at the present time, beyond a few * * * principles, they do not attempt to lay down any definite and exact rule of universal application by which to determine whether a payment is voluntary or compulsory.’ 22 Am. & Eng. Enc. of Law (2d Ed.), p. 613, and cases cited.
“Among the instances of the relaxation of the strictness of the original rule is the case of payments constrained by business exigencies; that is, payments of illegal charges or exactions under apprehension on the part of the payers of being stopped in their business if the money is not paid.”

This view of the case was recognized by the trial court, when it said:

“There are courts in this country that hold that a payment made in the manner in which this one was made by the plaintiff in this case is a payment by compulsion.”

We find that the supreme courts of the States of Massachusetts, Illinois, Ohio, Missouri, and other States, have so held. The learned trial judge gave as a reason for not so holding that, in his opinion, there was no evidence to show that the council, as a council, did act. As we have already stated, the record shows without dispute that this was the action of the defendant village of Chesaning. It further shows that it received the money into its treasury without consideration. In our opinion, these payments made under these circumstances were not voluntary payments, and assumpsit will lie to recover the amounts unlawfully paid. Plaintiff was not, as is intimated in the brief of defendant, seeking to recover for damage to his business. He asks simply the return of his money, which defendant village has received unlawfully and without consideration. The court was in error in directing a verdict against him.

The facts in thig case are undisputed. We hold that these payments were involuntary payments. There is no defense which can be interposed to defeat plaintiff’s claim.

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

Brooke, C. J., and Kuhn, and Bird, JJ. The foregoing opinion was prepared by the late Justice McAlvay. We are satisfied with his conclusions.