text:
    Edwin E. Reed v. Walter J. Gould et al.
    [See 93 Mich. 359.]

      Partnership — Fraudulent sale by one member of firm — Remedy at ■ law.

    1. One partner cannot maintain an action on the case to recover damages from a purchaser from the other partner of the partnership property in fraud of the plaintiff’s rights.
    2. The non-joinder of the other partner need not be pleaded, as the action cannot be maintained in the joint names of the partners, the remedy being in equity.
    Error to lug-ham. (Person, J.)
    Submitted on briefs April 18, 1895.
    Decided May 21, 1895.
    Trover. Defendants bring error.
    Reversed.
    The facts are stated in the opinion, and in 93 Mich. 359.

      Cahill é Ostrander, for appellants.

      Smith, Lee & Bay, for plaintiff.
   Montgomery, J.

This case was before the Court at

the October term, 1892, and thé decision of the Court is found reported in 93 Mich. 359. As the case was then presented, the action was one in which the plaintiff sued to recover the value of his exemptions in a stock of goods belonging to the firm of Reed & Jacobs, which had been transferred to the defendants, and the judgment was reversed, on the ground that the circuit judge submitted the case to the jury upen a different theory than that claimed in the declaration, and upon which the case was tried. After the case was remanded, the plaintiff amended his declaration, and, upon a second trial, recovered against the defendants, upon the ground that the sale of the copartnership property of Reed & Jacobs, and its transfer to defendants, in satisfaction of their debt and for a money consideration received by Jacobs, was in fraud of plaintiff’s rights. The plaintiff recovered a verdict of $1,000, and after moving for a new trial, which was refused, the defendants brought error.

The case is submitted upon three propositions urged by defendants: -

1. That there was no sufficient proof to show that there was any fraud in the sale of the goods by Jacobs to defendant.
2. That plaintiff has been guilty of such laches as debars him from now asserting such fraud.
3. That this action, by this sole plaintiff, cannot be maintained in a court of law, but that his remedy is in equity.

In the view we take of the case, it is unnecessary to consider the first two points, as we are satisfied that the plrintiff cannot maintain this action at law, even if it be conceded that there was testimony fairly tending to show fraud, and that the plaintiff’s laches have not been such as to bar his remedy, as matter of law. This case well illustrates some of the difficulties in the way of applying the remedy which the plaintiff has sought. The theory is that the plaintiff’s partner was guilty of a fraudulent disposition of the assets of the" firm. The court below could find no safer or other rule of damages than to permit a recovery by the plaintiff of the full value of the property disposed of, except the books of account, which were not in controversy. We are unable' to conceive upon what principle this should be permitted. The transfer was undoubtedly effectual so far as related to the interest of Jacobs in the property. Wells v. Mitchell, 1 Ired. 484; Blaker v. Sands, 29 Kan. 551; Kingsbury v. Tharp, 61 Mich. 216, 225.

A distinction is to be taken between a mere possessory ■ action and an action to recover damages for the wrong, The defrauded partner may treat a fraudulent sale as void, and reclaim the property; or he may have his appropriate possessory action; and certainly, in the absence of a plea of non-joinder, he can maintain this action without joining his copartner. Hutchinson v. Dubois, 45 Mich. 143. But does it follow that in an action at law for damages the rights of the parties can be worked out? We think not. The question has usually arisen in cases in which the copartner brought suit, including, as plaintiff, the partner who had been guilty of the wrong. In these cases the remedy has been pointed out, and held to be in equity. A leading case is Jones v. Yates, 9 Barn. & C. 532, in which case Lord Tenterden said:

“We are not aware of any instance in which a person has been allowed, as plaintiff in a court of law, to rescind his own act, on the ground that such act was a fraud on some other person, whether the party seeking to do this has sued in his own name only or jointly with such other person. * * The defrauded partner may perhaps have a remedy in equity, by a suit in his own name, against his partner and the person with whom the fraud was committed. Such a suit is free from the inconsistency of a party suing on the ground of his own misconduct.”

See, also, Estabrook v. Messersmith, 18 Wis. 545; Ellis v. Allen, 80 Ala. 515; Homer v. Wood, 11 Cush. 62, — in which latter case the 'holding of the court is quite as applicable to a suit by an individual partner as to one instituted by the firm. The court say:

“It may seem hard and inequitable that the innocent party, who is himself the victim of his copartner’s fraud, should be thus shut out from his legal remedy. But the legal connection of copartners is so peculiar and intimate that their rights and remedies in a court of law are necessarily limited by the relation which they hold to each other. They cannot sue each other. They cannot maintain an action against one of their copartners who is indebted to them in his individual capacity, nor against another firm of which one of their copartners is also a member. These and similar restrictions are the unavoidable results of the technical rules of law in their application to the mutual relations of copartners, and serve to show that, in a court of law, the rights of copartners cannot always have corresponding and adequate remedies. These must be often sought in a court of equity only.”

See, also, Story, Partn. § 238; Craig v. Hulschizer, 31 N. J. Law, 363; Piercy v. Fynney, L. R. 12 Eq. 69; Miller v. Price, 20 Wis. 117; 17 Amer. & Eng. Enc. Law, 1247, 1248.

In Wells v. Mitchell, supra, the question was directly presented whether the defrauded partner may maintain an action in his own name, and, principally upon the authority of Jones v. Tates, it was held that he could not. The court, in deciding the case, use the following language®, in which the distinction between tenants in common and partners is very clearly made:

“If a tenant in common destroy the chattel, or, as some think, if he sell the whole, his fellow may have trover or trespass against him. But it is clear that between partners those actions do not lie; nor, indeed, any others at law. Everything rests in confidence between partners, and lies in account while the partnership continues; and, if one of them sell or take or destroy the joint effects, all that can be done is to charge to him the value in account. The interest of partners in particular chattels cannot be determined by the number of partners or their shares of the profits; nor can one of them claim a division of specific articles. * * * If this action had. therefore, been brought against the fraudulent partner himself, it must have failed; and it might-be on the clearest ground of right and justice. So, for the same reason, it must against the vendee of that partner. As respects the right to the thing sold, the assignee stands in the shoes of his assignor. Besides, it is impossible to say what damages the plaintiff ought to recover. In an action by one tenant in common, he has only to show his interest, which is determinate, as a quarter or an half; and, no plea in abatement being put in, the jury apportions the damages accordingly. - But, as already mentioned, the interests of partners are complicated, and depend upon the result of all the accounts of the partnership. To take the accounts a court of law is unfit, and, indeed, incompetent; and therefore the jury cannot apportion the damages which, as a partner, the plaintiff ought to recover. As a court of law thus finds itself incapable of ascertaining the rights of the parties and doing justice between them, it ought not to assume the jurisdiction for any purpose, but leave the whole subject to tha^ tribunal which can administer exact justice in the premises.”

We think this reasoning peculiarly applicable to the present case. It is contended that the case of Grimes v. Bowerman, 92 Mich. 258, is an authority sustaining plaintiff’s right. The case is clearly distinguishable. Grimes charged a conspiracy between Fleming and defendant antedating the formation of the copartnership, and counted, not only upon fraudulent acts of the copartner and defendant, but upon a malicious suit by defendant in which not only plaintiff’s interest in the firm was seized, but his individual property as well. The Court, by Mr. Justice McGrath, said:

“We are of opinion that, under the peculiar facts of this case, plaintiff was entitled to maintain his action.”

In the present case the firm property alone was involved, and, if the sale was void, the firm, and not Eeed alone, was entitled to the property. As has been seen, he might have taken possession, but it does not follow that he can recover in his own right, in an action at law, the full value of the goods. It may appear on an accounting that he has no interest in the property, and that the full value has been applied to the extinguishment of copartnership debts.

A plea of non-joinder was not necessary, for, if Jacobs had joined, it would bring the case directly within the cases above cited, and the action could not be maintained. The appropriate remedy is in equity.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    Letitia Dillenbeck v. Thomas B. Simons et al.

      Pleading — Now-joinder of parties.

    The question as to a non-joinder of parties defendant must be raised, if at all, by a plea in abatement.
    Error to Midland. (Dodds, J.)
    Submitted on briefs April 18, 1895.
    Decided May 21, 1895.

      Assumpsit. Upon the trial, defendants sought to raise the question of non-joinder of defendants, which defense the court ruled could not be made under the ■general issue . From a judgment for plaintiff defendants bring error.
    Affirmed.

      George J. Cummins, for appellants.

      W. A. Burritt, for plaintiff.
   McGrath, C. J.

The case of Searles v. Reed, 63 Mich. 485, does not change the rule that the question as to a non-joinder of parties defendant must be raised, if at all, by plea in abatement. In that case suit was brought in justice’s court against Reed and one Worden upon a Sunday contract. On the trial there, plaintiff discontinued as to Worden, and took judgment against Reed, who appealed to the circuit. Upon the trial in the circuit, plaintiff insisted that Reed was liable upon an implied contract growing out of negotiations with plaintiff prior to the Sunday in question. The trial court, however, held that it clearly appeared that an express contract was entered into between plaintiff, on the one part, and Reed and Worden, on the other; that the contract was made on Sunday, and therefore void; that the law would not imply a contract in such case; and directed a verdict for defendant. This Court affirmed the judgment. Plaintiff had in that case commenced» suit against two parties, who were liable jointly, if at all, in which case judgment against one was unauthorized.

Judgment affirmed.

The other Justices concurred.


text:
    David M. Cooper v. James Joy and Helen N. Meredith, Administrators of the Estate of Henry A. Newland, Deceased.

      Landlord and tenant — Option for extension of lease — Notice to lessor.

    Where a lease provides for notice by the lessee of his intention to claim the benefit of an option given him in the lease for an additional term, such notice must be given, or such intention on his part must be otherwise manifested; and a naked holding over is insufficient to warrant a finding that the lease has been extended.
    Error to Wayne. (Frazer, J.)
    Argued April 18, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      William J. Gray, for appellant.

      DieMnson, Thurler & Stevenson, for defendants.
   McGrath, C. J.

Defendants’ decedent, under the name of Henry A. Newland & Co., was a tenant under a lease for the term of three years from and after May 1, 1886. The lease contained a provision that—

“The said parties of the second part may, at their option, have an extension of this lease for three years additional, upon giving notice thereof to said party of the first part at least four months previous to May 1, 1889.”

The decedent occupied the store until April 30, 1891, but the four-months notice provided for in the lease was not given, nor was any notice given. Plaintiff sued to recover the rent for the unexpired portion of the second three-year term. The sole question in the case is whether the holding over was in and of itself sufficient to extend the lease for the new term, or sufficient evidence of the intention of the lessee so to do.

The rule seems to be that, if the lease does not provide "that notice shall be given by the tenant of his election, merely remaining in possession after his term has expired is sufficient, and binds both him and the landlord for the additional term. But, if notice be stipulated for, it must be given. Wood, Landl. & Ten. (1st ed.) p. 678; Id. (2d ed.) p. 947; Tayl. Landl. & Ten. § 332, p. 383. Delashman v. Berry, 20 Mich. 292, was a case where no notice was required, and this Court held that the holding over was, in and of itself, sufficient notice of election. See Clarke v. Merrill, 51 N. H. 415

There are cases which hold that, where the provision for an extension is at an increased rental, the holding-over, and the payment for a time of the increased rental, is sufficient evidence of an election. Kramer v. Cook, 7 Gray, 550; Stone v. Stamping Co., 155 Mass. 267; Long v. Stafford, 103 N. Y. 274. In the Kramer case the court •say: .

“The provision in the lease is not a mere covenant of the plaintiff for renewal. No formal renewal was contemplated by the parties. The agreement itself is, as to the additional term, a lease de futuro, requiring only the lapse of the preceding term and the election of the defendant to become a lease in praesenti. All that is necessary to its validity is the fact of election. Even if notice of the lessee’s intent to continue might be insisted upon by the lessor, he clearly might waive it; and he clearly did waive it by the acceptance of the increased rent on the 1st days of April and July, — an increase which could be predicated only upon such election by the lessee. Indeed, after the payment of the rent of July 1, and the receipt given therefor, and in the absence of evidence to control their effect, the question of the defendant’s election to continue, and of the plaintiff’s assent thereto, would not seem to be an open one.”

In the Stone case the lease not only provided that the renewal should be at an increased rental, but that, “if the lessee holds over, the rent shall be at the original rate.” The lessee not only continued in possession, but actually paid the increased rate for six months, and the court held that the holding over and the payment of the increased rental were sufficient to warrant a finding that the lease had been extended in accordance with its provisions.

In Clarke v. Merrill, supra, the lease was for five years, with the right to extend the lease “five years longer, if the said lessee shall so elect at the expiration of said term.” The trial court found that defendant held over, intending to extend the lease, of which intention plaintiff had knowledge.

In McClelland v. Rush, 150 Penn. St. 57, three months’ written notice was required, but the court refused to follow Beller v. Robinson, 50 Mich. 264, upon which case the trial court relied, and held that the notice was for the benefit of the lessor, and that written notice might be waived. There was abundant evidence of oral notice of the lessee’s intention to extend the term, and of the waiver of the written notice by the lessor, and the court held that it was error to take the case from the jury because the notice was not in writing.

In Bradford v. Patten, 108 Mass. 153, the lease was for one year, but contained a provision that the lessee should have an extension of two years upon notifying the lessor of his wish to retain the premises by April 1,1869, a time two months before the expiration of the first year. -The court say:

“These provisions gave the lessee the right to have the term extended upon giving notice of his election, as provided in the lease. But his election to retain the premises for the enlarged berm, and the giving notice thereof -to the lessor, were conditions precedent to the extension of the term. If he failed to perform these conditions, the term expired by its own limitation on June 1, 1869, the lease then became inoperative, and the lessor was entitled to the possession of the premises. It may be that the lessor might waive the provision as to notice to her; but, in order to hold the lessee liable under the covenants of the lease for rent for any part of the enlarged term, it is still incumbent upon her to prove that he elected to hold the premises for the extended term.”

The rule seems, therefore, to be well settled that, where notice is required of the lessee’s intention to claim the extended term, notice must be given, or the intention must be otherwise manifested; and that a naked holding over is insufficient to warrant a finding that the lease has been extended.

The trial court was therefore right in directing a verdict for defendants, and the judgment is affirmed.

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

       The suit was brought against the decedent, and after his death, and before trial, was revived against the administrators of his estate.


author: Long, J.

text:
    Ernest A. Wood v. Allen C. Adsit, Circuit Judge of Kent County.

      Constitutional law — Removal of cause — Jurisdiction.
    1. How. Stat. § 6584, which provides for the removal of any cause, either at law or in chancery, from the circuit court of Kent county to the superior court of Grand Rapids, is constitutional.
    2. Upon filing a bill for divorce in the circuit court for Kent county, a preliminary injunction restraining the defendant from disposing of his property, was granted ex parte. On the following day a petition for temporary alimony was filed, and, together with the usual subpoena to appear and answer and the injunction, was served upon the defendant, who, three days later, and before any further proceedings had been had in the case, caused his appearance to be' entered, and filed a petition and bond for the removal of the ease to the superior court of Grand Rapids. And it is held that the ease had not proceeded so far that a removal could not be made under said statute.
    3. The fact that the parties were residents of the city of Grand Rapids sufficiently appeared from the allegation of such fact in the petition for transfer, in the absence of any denial of the fact by the return or otherwise.

      Mandamus.

    Argued April 30, 1895.
    Granted May 21, 1895.
    Relator applied for mandamus to compel respondent to vacate an order granting temporary alimony after an application had been made to have the cause removed to the superior court of Grand Rapids. The facts are stated in the opinion.

      More & Wilson, for relator.

      Franlc L. Carpenter, for respondent.
   Long, J.

March 11, 1895, Marguerite J. Wood, filed a bill for divorce in the Kent circuit court, in chancery, against her husband, the relator here. Judge Adsit granted a preliminary injunction, ex parte, restraining defendant from disposing of his property. On March 12, complainant filed a petition in the cause for temporary alimony, and the subpoena, injunction, and petition for alimony were served on defendant on March 15. On March 18 defendant caused his appearance to be entered by his counsel, and filed a petition and bond for the removal of the cause to the superior court of Grand Rapids. The circuit court held the removal statute invalid, and entered an order for temporary alimony. A motion was then entered asking that the order so made be vacated, which was denied. Relator now asks for mandamus to compel the respondent to vacate the order so entered.

The statute which it is claimed authorized the removal is section 6584, How. Stat., and reads as follows:

“If either party to any cause now pending in the circuit court for the county of Kent, either at law or in chancery, and within the jurisdiction of said superior court, shall, after the taking effect of this act, or if the defendant in the ease of a suit within such jurisdiction hereafter commenced, at the time of entering his appearance in said circuit court, shall file with the clerk or register of said court a petition for the removal of the cause into the said superior court for the city of. Grand Rapids, and shall at the same time file with the clerk or register of said circuit court a bond to the opposite party, with, sufficient surety, to be approved by the judge of said circuit court, or a circuit court commissioner of said county of Kent, and in such sum as such judge or commissioner shall direct, conditioned for the entering in said superior court, on the first day of its next regular term, if that shall be at least 40 days after the date of the filing of said bond, and, if it shall not, then within forty days from the filing thereof, copies of all papers filed' and proceedings had in said cause in the said circuit court, and also for his there appearing and entering special bail in the cause if special bail was originally requisite therein; and, upon the filing of said petition and bond, it Shall thereupon be the duty of said circuit court for the county of Kent to proceed no further in the cause, and no order of said circuit court for the removal of said cause shall he requisite, and. the filing of said petition and borid shall operate as a stay of all proceedings in said circuit court in said cause, and any bail that shall originally have been taken shall not be discharged; and, the copies of said papers and proceedings being so entered and filed as aforesaid in such superior court, the cause shall then proceed in the same manner as if it had been originally brought in said court, and any attachment of the goods or estate of the defendants by the original process shall hold the goods or estate so attached to answer the final judgment, in the same manner g.s they would have been held to answer the final judgment had it been rendered by the court in which the suit was commenced. It shall be the duty of the clerk of said circuit court, within the time prescribed for filing said copies, to deliver to the person so seeking to remove said cause, upon being paid therefor five cents per folio for making and certifying such copy, and in case the clerk of said circuit court shall, upon demand and the payment or tender of his fees, refuse or neglect to deliver to such party certified copies of such record and proceedings, the superior court, on proof by affidavit that the said clerk has refused or neglected to deliver such copies thereof on demand as aforesaid, shall direct and allow such record to be supplied by affidavit or otherwise, as the circumstances of the case may require or allow, at any, time within which the court shall direct; and thereupon such proceedings, trial, and judgment may be had in said superior court as if certified copies of such records and proceedings had been regularly before the said court: Provided, however, that no action at law pending in said circuit court when this act takes effect shall be thereafter removed under the provisions of fíiis act during a final trial thereof.”

In Heath v. Circuit Judge, 37 Mich. 372, this statute was under consideration, and it was held that the cause was not removable, because the circuit court had already passed upon the merits, and had entered a decree for accounting, which had partly been carried into execution, and there was nothing left for future inquiry but the pecuniary balance and the consequent determination of the final measure of relief. The constitutionality of the act was not passed upon. It was said, under the circumstances, that a removal at this stage of the proceedings “would give to the superior court what is practically an appellate power of reviewing and reconsidering what has already been decided at the circuit.” It was further said: “So long as the circuit court has not entered upon the hearing of the cause, it cannot be said' to have involved any judicial action.” The section providing for the removal of causes from the circuit court to the superior court of Detroit is, so far as any constitutional question can be raised, identical with the section now before us, and the constitutionality of that act has been recognized by this Court. Bigelow v. Booth, 39 Mich. 622; Rankin v. Circuit Judge, 39 Id. 115; Butler v. Circuit Judge, 41 Id. 654.

It is contended by respondent that the cases heretofore passed upon were at law, and that in this chancery proceeding, where- an injunction has been issued, the transfer to the superior court would permit that court to rehear that question, and therefore it would give, in effect, the superior court appellate jurisdiction. We thinh the case had not proceeded so far that a removal could not be made under the provisions of this statute. The injunction was issued upon an ex parte showing, and the application was made upon the entry of appearance in the cause.

It is also contended that there is nothing appearing upon the papers showing that the parties were residents of the city of Grand Rapids. The petition for the transfer of the cause shows that the parties were both residents of the city of Grand Rapids, and there is no denial of the fact by the return or otherwise.

Inasmuch as tin1 act authorized the transfer, we see no valid reason for holding that the relator did' not apply in time.

The writ must be granted.

The other Justices concurred.


text:
    Maurice Nash v. Robert Geraghty and Mary E. Geraghty.

      Fraudulen t conveyances — Evidence.
    1. Before a decree is granted in behalf of creditors setting aside a conveyance, it should be made affirmatively to appear that the creditors have been substantially injured by the transfer.
    2. A conveyance by a husband to his wife of his home farm of 120 acres, in consideration of her agreement, contained in the deed, to pay and discharge a mortgage of $2,550 on the land, and account to his minor children, when the youngest should become of full age, for the homestead, will not be set aside as in fraud of creditors, the highest value'placed upon the farm being $4,200, and the lowest value $3,800.
    Appeal from Washtenaw. (Kinne, J.)
    Argued April 30, 1895.
    Decided May 21, 1895.
    Bill in aid of execution. Defendant Mary E. Geraghty appeals.
    Decree reversed.
    The facts are stated in the opinion.

      J. T. Honey and M. J. Lehman, for complainant.

      A. J. Smoyer, for appellant.
   McGrath, C. J.

This is a hill filed in aid of execution. Robert Geraghty was the owner of 120 acres of land, subject to a mortgage of $2,550, upon which himself and family lived. He was indebted to various parties; and on June 5, 1893, complainant recovered a judgment against him before a justice of the peace, a transcript of which was filed in the circuit on June 12, 1893, an execution issued, and a levy made upon the land in question. On June 7, 1893, Robert Geraghty conveyed the land to his wife, the defendant Mary E. Geraghty, the only consideration being her agreement to pay and discharge the mortgage, and account to the minor children, when the youngest became of áge, for the homestead. The highest value placed upon the property by any of the witnesses is $4,200, and the lowest $3,800. The homestead interest and the mortgage aggregated $4,050.

Before a decree is granted on behalf of creditors setting aside a conveyance, it should be made affirmatively. to appear that the creditors have been substantially injured by the transfer. It does not so appear in the present case, and the decree below must be reversed, with costs to appellant.

The other Justices concurred.


text:
    George C. Hascall v. David W. Brooks.

      Justices’ courts — Appeal bond — Insufficiency—Dismissal of appeal— Action on bond — Wstoppel.
    1. A bond given on appeal from a justice’s judgment, though insufficient in amount, operates as a stay of proceedings; and the appellant has the right, under How. Stat. § 7018. which provides that no appeal shall be’dismissed on account of any informality or imperfection in the appeal bond, if the appellant and his sureties consent to amend the same, or if another sufficient bond, to be approved by the court, shall be filed, to amend the bond or file a new one.
    2. On appeal from a justice’s judgment, the penalty of the appeal bond was for the same amount as the judgment. On motion of the appellee, an order was made in the circuit court that the appeal be dismissed unless a new and sufficient bond be filed within 10 days. The order was not complied with, and the appeal was dismissed. After an . execution, issued on the justice’s judgment, had been returned unsatisfied, the appellee brought suit on the appeal bond. And it is held that the appellee, in moving to dismiss the appeal in default of a new and sufficient bond, did not release his rights under the original bond until the order of the ’ court for the filing of such new bond had been complied with, and that he was not estopped from bringing suit on the original bond.
    Error to Wayne. (Donovan J.)
    Submitted on briefs May 1, 1895.
    Decided May 21, 1895.
    Debt. Plaintiff brings error.
    Reversed.
    The facts are stated in the opinion.

      Barbour & Rexford, for appellant.

      Otto Kirchner, for defendant.
   Long, J.

Defendant signed a bond as surety for Sarah Stewart bn appeal to the circuit court from a judgment rendered before a justice of the peace. The judgment was for $213.28. The bond was given for the same amount. The appeal was dismissed in the circuit court, on-the ground that the bond was not sufficient in amount. The bond was conditioned—

“That if the above-bounden Sarah Stewart shall prosecute her said appeal with all due diligence to a decision in the said circuit court, and, if a judgment be rendered against her in said circuit court, shall pay the amount of such judgment, including all the costs, with interest thereon; and, in case the said appeal shall be discontinued or dismissed, if the said Sarah Stewart shall pay the amount of such judgment rendered against her in said justice’s court, including all costs, with interest thereon, then this obligation to be void; otherwise in force.”

The order was made in the circuit court that the appeal be dismissed unless a new and sufficient bond be filed within 1Ó days. No new bond was filed, and the final order of dismissal was entered. Execution was thereupon issued from justice’s court against Sarah Stewart, and returned unsatisfied. This action of debt on the bond was then commenced in the circuit court, and, on the hearing, the court, upon findings of fact, entered judgment in favor of defendant.

Defendant contends in support of this finding that inasmuch as the only defect in the bond was the amount, and the appellee (the plaintiff here) having moved to dismiss the appeal, he cannot now be heard to claim anything under the bond, as he had deliberately refused to receive it, and by so doing had destroyed the only consideration for which it was given, to wit, the right of defendant’s principal to appeal. We are unable to agree with this contention. The bond operated as a stay of proceedings, and the party appealing had the right under How. Stat. § 7018, to amend the bond or file a new one. That section provides that no appeal shall be dismissed on account of any informality or imperfection in the bond. The bond given, though not sufficient in the amount of the penalty, conferred jurisdiction upon the circuit court to act in the premises. The circuit court had no power to dismiss the appeal in the first instance, but to order a new bond, and, in default of compliance with that order, then to dismiss the appeal. The appellee, in moving to dismiss in default of a new and sufficient bond, was only exercising his right to have a sufficient bond to cover the damages and costs, as the statute prescribes. He did not, however, in taking that action, release his rights under the former bond until the order of the court had been complied with, and a new bond filed.

In Meserve v. Clark, 115 Ill. 580, it was held that, though no appeal was effectuated, yet the party had the right to bring suit on the appeal bond. The court said:

“The question is not whether the appeal was properly taken, for it is conceded that it was not, but the question is, ought the appellant in a suit upon the bond, be heard to say that no appeal was ever taken?”

In Skidmore v. Hull, 33 Mo. App. 41, the action was on an. appeal, bond to tbe .circuit from a judgment before a' justice. Tbe appeal bad been dismissed for some defect in tbe affidavit upon tbe bond. Tbe objection was made, as in tbe. present case, that tbe appellees bad moved to dismiss tbe appeal, and could not then proceed on tbe bond. Tbe court said:

■ •■“Because the plaintiffs moved to dismiss tbe appeal for tbe lack of a proper affidavit does not estop them, from, bringing .an action on the appeal bond; especially in' yiew of the fact’that the dismissal could have been avoided by filing' a proper and' competent bond, or supplying tbe omission in tbe one already filed under tbe 'statute.” ' ■

■ The above case is in point with tbe present, and states the true rule. '

:The court below in tbe present case took tbe view of , the case insisted upon by counsel for defendant here, ' and rendered judgment in favor of defendant. Tbe judgment must be reversed, and a new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    Nellie A. Duvall, Administratrix, etc., v. The Michigan Central Railroad Company.

      Railroad companies- — Accident at crossing — Contributory negligence.

    Plaintiff's decedent went upon defendant’s tracks at a highway . crossing,, with which he was familiar,, jiist: as the gates in use at that. point were going down. There were at this point 12 or 14 tracks, and a passenger train was approach- ' ing from the west on the .second or third track from de- " cedent as he entered, going north. He saw the train, and, instead of stopping, ran in front of the engine when'it was • about 15 feet from him, stopjJed- in'the center of'the next" track, turned around, and stood watching, the passing train. • While thus standing he was struck in the hack'by-an approaching train, which was. running at more than .usual speed. And it is held that decedent was chargeable with notice of the danger, and with the knowledge that trains were liable to pass at any time, and was guilty of such contributory negligence as to call for the direction of a verdict for the defendant.
    Error to Wayne. (Brevoort, J.)
    Argued May 2, 1895.
    Decided May 21, 1895.
    • Negligence case. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      S. E. Engle,' for appellant.

      Henry Russel, for defendant.
   Grant, J.

Plaintiff's decedent was struck by the engine of a passenger train .of the Flint & Pere Marquette Railroad Company, at the crossing on Twentieth street, in the city of Detroit, and instantly killed. Railroad gates were in use at this crossing, which extended across the highway and over one sidewalk. The gate was going down as he passed it, and, when it was down, he was inside. There were at this point 12 or 14 tracks. A passenger train known as the “Bay City Train” was coming from, the west, on the second or- third track from him as he entered, going north. He saw this train, and, instead of stopping, ran in front of the engine when it was about 15 feet from him, stopped in the center of the next track, which was the track.of the Flint & Pere Marquette Railroad, turned round, and was looking at the Bay City train. There was a curve at that point, but at what distance it interfered with the view of the engineer and fireman of the train does not appear. While he was standing there watching the other train, the Flint & Pere Marquette train, being behind time, came along at a faster rate than usual, and struck the deceased,- who was standing with his back towards it. Two witnesses for the plaintiff were the sole witnesses of the accident. They were about 30 feet behind the deceased, and testify to the above facts. They saw his feet and legs under the cars of the Bay City train as he was standing upon the Flint & Pere Marquette track. They saw him after the Bay City train had-passed, and when the other train struck him. Plaintiff’s counsel admits in his brief that he stood their watching the Bay City train for “probably 8 seconds.”

The deceased was familiar with the crossing, and was chargeable with a notice of the danger, and with the knowledge that trains were liable to pass at any time. He was guilty of contributory negligence, and the circuit judge was correct in directing a verdict for the defendant. It is unnecessary to discuss the other questions raised.

Judgment affirmed.

The other Justices concurred.


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    Sigmund Rothschild v. Josiah W. Begole et al.

      Contract — Liability for taxes — When “assessed.”

    A timber contract provided for the payment by the -vendee - of all legal taxes thereafter to become due on the land and timber, subject to the provision that upon the service by the vendee upon the vendor of a notice that he had cut and removed from the land all of the timber he desired, and that he released all rights under the contract, the' vendee should be released from the payment of any taxes assessed after the service of such notice upon the lands listed therein. And it is held that the word “assessed," as used in said contract, includes all steps necessary to be taken in the legitimate exercise of the power of taxation; that the mere listing of the lands for the purpose of taxation is not a completed assessment; and that the service of said notice after the listing of the lands in April for taxation, and before the meeting of the board of supervisors in the following October, and the ascertainment of the amount of taxes to be assessed, relieved the vendee from the payment of the taxes thereafter assessed for said year upon said lands.

    Case made from Wayne. (Carpenter, J.)
    Argued May 2, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff assigns error.
    Affirmed.
    The facts are stated in the opinion.

      Keena & Lightner, for appellant.

      D. F. Glidden, for defendants.

       The question when taxes on land become a lien or incumbrance is the subject of annotation to Craig v. Sumners (Minn.), 15 L. R. A. 236.

   Long, J.

Plaintiff was the owner of an undivided one-third interest in certain pine timber lands, and on March 9, 1887, he made a contract with defendants to sell them the timber on the lands. Under this contract, defendants were allowed till March 9, 1898, to remove such timber. The contract provided that the defendants “shall from time to time, and in due season, pay all the legal taxes which may hereafter become due on said premises, land, and timber, unless released as herein specifically provided.” The contract also provided that—

“Whenever said second parties shall serve a written notice on said first party,- déclaring that they have cut and removed all the pine timber they desire from the lands listed and described in said notice, and thereby releasing said lands and all timber remaining thereon back to said first party from all rights under this contract, that thereupon said second parties shall be released from paying any taxes which may be assessed, after the date of sterling said notice on said first party, on'tlie lands listed and described in said notice.”

On July 10, 1889, July 21, 1891, and May 31, 1892, notices were given by the defendants, as provided by the contrae!, that the timber had been taken off the land upon certain lists contained in the notices. The taxes were not paid by the defendants for those years upon the lands contained in those lists. Plaintiff paid those taxes, and brings this action to recover the amount so paid, contending that, under the contract’ the defendants were bound to pay them.

Those lands, under the tax law, were listed for taxation in the month of April of each year. Plaintiff contends that the clause of the contract above quoted compels the payment by the defendants, although the notices were given before the taxes became a lien on .the land; that they were only to be released from paying any taxes which were assessed after the date of serving said notices; and- that such taxes were assessed before the; notices were given.

We think the word “assessed,” as used in the contract,: can have no such restricted meaning. It includes all the steps necessary to be taken in the legitimate exercise of-the power of taxation. The mere listing of the lands for. the purpose of taxation is not a completed assessment: No amount has as yet been ascertained to be a charge-upon the land, and in fact no amount has been ascertained until the board of supervisors meet, in the month of October following. As was said by this Court in Harrington v. Hilliard, 27 Mich. 271:

“When thus equalized by the board, the roll is again-delivered to the supervisor, with a certificate of the amount of the various taxes to be raised in his township;, and the supervisor, between that time and the first Monday in December, is required to apportion the amount and impose the taxes according to such equalized valuation, and to place the roll in the hands of the township. treasurer for collection; ánd if is from this date that the : statute declares the taxes upon real estate to be a' lien: thereon. It is therefore clear that up to this' time tírele is no tax upon the land which can be paid by or to. anyone, * * * and the land is; just as clear, from any- charge or lien on account of the taxes to be assessed for the current year as it is- from those of- any future year. * * * There is simply a liability to future taxation. * * * But though it is clear the statute makes these taxes, after they are imposed and the roll has gone into the hands of the treasurer for collection, a charge upon the person owning the land on the second Monday in May, it does not make them a charge from that day-, nor until the taxes have been imposed. Until then there is no charge nor any duty to pay, as no such taxes yet exist.”

Speaking further upon the subject of the listing to be made in May, it was said:

“This, though called an ‘assessment roll,’ is but a. list of the taxable persons and the property and its valuation in the township.”

The tax law itself (Act No. 153, Laws of 1885) seems to provide when the assessment is to take place, as section 26 provides that the supervisor of each township, after the certificates are made by the board of supervisors in October, “shall proceed to assess the taxes apportioned to his township.”

In Wells v. Smyth, 55 Penn. St. 159, the Court follows the definition of assessment as laid down in Bratton v. Mitchell, 1 Watts & S. 313, as follows:

“The assessor values and returns to the commissioners, who apportion the sum to be raised in the township on the several tracts,; — -in fact, who perform the most important part of the assessing. The list returned to them and their action on it is the assessment.”

See, also, State v. Fournet, 30 La. Ann. 1104.

' When these notices were given, there was no assessment of taxes on the lands so released. There had been no tax extended, and in fact could not be until the meeting of the board of supervisors in October following. The parties, at the time the notices were given, could not have ascertained by any mode the amount to be paid; No amount was at that time assessed. The court below was correct in holding that no recovery could be had.

The judgment below must be affirmed.

The other Justices concurred.


author: Hooker, J.

text:
    Hervey Sullings v. Frederick Carter.

      Trespass — Right of flowage — Fishing.
    1. In trespass for removing signs which the plaintiff had placed in and upon the shore of a mill pond claimed by him, forbidding fishing in the pond, it appeared that the defendant and his wife were the owners of the fee, subject to the right of the plaintiff to flow the land for milling purposes. And it is held that such easement did not give the plaintiff the right to maintain said notices; citing Bay City Gas-light Co. v. Industrial Works, 28 Mich. 182; Bigelow v. Shaw, 65 Id. 341.
    2. It was competent for the defendant to show, in support of his notice of title, that the fee of the land, was vested in himself and wife.
    Error to Kalamazoo. (Buck, J.)
    Submitted on briefs May 2, 1895.
    Decided May 21, 1895.
    Trespass. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Oscar T. Tuthill, for appellant.

      Franlc F. Knappen and Howard & Boos, for defendant.
   Hooker, J.

The plaintiff brought trespass in justice’s court against the defendant, whom he charged with having removed some signs which he had erected in and upon the shore of a mill pond claimed by the plaintiff. These signs forbade fishing in the pond. The case was certified to the circuit upon a plea of title in the defendant.

The court instructed the jury that the evidence showed title in fee to the premises in- the defendant and his wife, and failed to show such title in the plaintiff, unless it were a title by adverse possession, which question he left to the jury. He instructed the jury further that under the evidence relied upon by the plaintiff, aside from that bearing upon adverse possession, the plaintiff had at most a right to flow the land for mill purposes, and that this right did not preclude the owner of the fee from using the land for purposes consistent therewith, and that he was not a trespasser if he entered and removed the signs, unless plaintiff had acquired title by possession. Counsel for the plaintiff groups his assignments of error, and discusses them together under four questions, viz.:

“1. Does the plaintiff’s deed give him a title to the land conveyed, and for the purpose thereof?
“2. Does he own all the land bounded by the margin of the pond?
“3. Does he have a right to flow all of the land sufficient for milling purposes?
“i. When flowed sufficient therefor, may he not control and use it for any purpose?”

We think it unnecessary to set out in detail the several deeds offered to prove title in the respective parties. The plaintiff claimed to be occupying under a deed from one Cameron, which purported to convey—

“The right to flow the pond the same as heretofore enjoyed by the parties of the first part, or any former owners, without limitation of the head or height of said pond, and all the land flowed by said pond and bounded by' the margin of said pond, hereby intending to convey the water privilege, and all the land that may be flowed by said pond, the same as acquired by deed of George W. Fish and wife by the party of the first part.”

It was contended that this deed conveyed the fee to the land under and surrounding the pond, and upon this claim the plaintiff must stand or- fall, the jury having found against him upon the question of adverse possession.

The deed from Fish has n-o substantial foundation. Fish’s claim of title can be traced back to one Dunbar, but there is nothing to show that Dunbar had any title. On the other band, a perfect title in fee was shown froih the government to the defendant and his wife. The only limitation upon this title was a reservation in a deed •given by Samuel Percival to Montgomery Percival, as follows, viz.:

“Now, the party of the first part reserves and retains the equal, undivided privilege of building a dam find flowing the land on the west side of said creek sufficient for milling purposes.”

The rights of Samuel Percival were not shown to have been conveyed to the plaintiff, or any other person, and the plaintiff was therefore obliged to rely wholly upon his possession of the pond, and the court- could not do otherwise than to hold (1) that the plaintiff’s deed gave him no title to the land as against the defendant and his wife, and consequently (2) that he did not own all of the land bounded by the margin of the pond.

The circuit judge instructed the jury that the defendant and his wife had the entire and unlimited fee of said land, subject to the single reservation of Samuel Percival. If the plaintiff can be said to be the owner of that interest, which, under his deed from Cameron, and possession taken under it, may perhaps be sufficiently proved to support an action of trespass as to such right, it gave him no right to prevent the defendant from exercising dominion, so far as not inconsistent with plaintiff’s easement for milling purposes, and such easement did not give plaintiff the right to maintain notices that persons should abstain from fishing in the pond. Bay City Gas-Light Co. v. Industrial Works, 28 Mich. 182; Bigelow v. Shaw, 65 Id. 341. Hence, if it be conceded that plaintiff had the right to flow all of the land for milling purposes, it does not follow that, “when Sowed therefor, he may control and use it (exclusively) for any other purpose.” ■

Counsel for the plaintiff contends that the defense'set up in defendant’s notice is not supported by the evidence, inasmuch as the defendant and his wife, and not ,the defendant alone, are owners of the title. We think there is no force in this. This title is a defense, because'it shows that the defendant had a right to commit the. act alleged; and this was as much his right as a tenant in common as though he had been sole owner. He relied upon his title, and his only, and it was adequate-to support his right, as alleged in the notice. We think this covers the important questions in the case, and that a discussion of the various assignments of ' error " is unnecessary.

The judgment of the circuit court will be affirmed.

The other Justices concurred.


text:
    Ozias W. Shipman v. Charles Coryell and Frank T. Woodworth.

      Set-off— Unliquidated damages.

    In assumpsit to recover the amount due for a quantity of coal sold and delivered to the defendants, they sought to set ' off against plaintiff’s claim, the amount of whien was admitted, a claim for 110 tons of screenings, which, as they ' claimed, were worthless, and 81 tons of pea coal, worth $3 per ton, while the price was $5.10 per ton, being part of . a quantity of coal bought of the plaintiff aUd paid for during a previous year, and which was to be chestnut, egg, and.' stove coal, upon the theory that defendants bought ’ no pea " ooal or screenings, and that, of the money paid, the portion covering the pea coal and screenings was paid without consideration, and might he recovered in an action for money had and received, or might be set off in said suit. And it is held that the defendants cannot say that the money was paid without any consideration; that the only claim they have, if any, is one for unliquidated damages, for which they must bring their action; citing Machine Co. v. Seaver, 90 Mich. 546.
    Case made from Bay. (Maxwell, J.)
    Submitted on briefs May 2, 1895.
    Decided May 21, 1895.

      Assumpsit. Defendants assign error.
    Affirmed.
    The facts are stated in the opinion.

      C. L. Collins, for appellants.

      J. L. Stoddard, for plaintiff.
   Hooker, J.

The defendants appealed from a verdict and judgment rendered against them by direction of the circuit court. '

Plaintiff’s action is based upon an admitted claim of $561, and the only question in the case relates to a claim of set-off arising upon a previous transaction. In June and July, 1893, the defendants received a large quantity of coal, previously ordered from the plaintiff, which, they allege, was to have been chestnut coal, egg coal, and stove coal. On July 24 and August 28, respectively, the defendants gave their notes, aggregating $6,134, being the full price of this coal. These notes were subsequently paid, the note for $4,134 being paid on March 2, 1894. The defendants offered to prove that they began selling this coal from their bins in September, Í893, and in selling it, and in handling it to deliver to their customers, it was discovered that it contained a large quantity of screenings, and a quantity of pea coal; that the amount of these grades could not be ascertained until the coal was all sent out, and that it was not all sent out until the spring of 1894; that a careful account was kept, and that the screenings amounted to 110 tons, and the pea coal to 31 tons; that the pea coal was worth $3 per ton, and the screenings were worthless, and that defendants had paid $5.10 for the same. The screenings and pea coal constituted a portion only of the coal received and paid for. The counsel for the defendants relies upon the claim that the defendants bought no pea coal or screenings, and that, of the money paid for the cargoes, the pprtion covering the pea coal and screenings was paid without consideration, and may be recovered in an action for money had and received, .or may be set off in this action.

The circuit judge was clearly right. The defendants have received and appropriated to their own use all of the coal received, either because they preferred to do so, or because they could not conveniently return it'. At all events, they have not chosen to refuse to receive the coal, or to rescind the contract and return the coal, without delay, upon discovering the quality. Their remedy, if they have any, must be based upon the contract in an action for its breach.

We are cited to several cases in support of the defendants’ contention, but we think that they are not in point. One is where money paid upon an illegal contract was held to be paid without consideration. Webber v. Howe, 36 Mich. 150. Another was where a quantity of shingles were refused because not of the quality contracted,' and. the vendor notified that they would not be accepted. Moreover, they were entirely worthless. . Money paid upon the bill of lading was permitted to be set-off. Petersen v. Lumber Co., 51 Mich. 86. In Gutta, Percha & Rubber Manfg. Co. v. Wood, 84 Mich. 452, a set-off was permitted, when the claim set off was for money paid for goods, the whole of which were entirely worthless. But in that case the Court expressly stated that it was error for the trial court to instruct the jury that if the goods were not entirely worthless, but were of some value, they should find that value, and deduct it from the defendants’ claim. See, also, Chicago Rubber Clothing Co. v. Powers, 91 Mich. 466.

These cases rest upon the proposition that, the money haying been paid without any valuable consideration, an aciion for money had and received will lie. But no such state of things exists here, for the coal was not worthless. At the most, but a part of it was worthless, and there was abundant consideration to support the contract of purchase. The defendants cannot say that the money was paid without any consideration, and the only .,claim they have, if any, is one for unliquidated damages, for which they must bring their action. Wood Mowing Machine Co. v. Beaver, 90 Mich. 546.

The judgment of the circuit court must be affirmed. :

The other Justices concurred.


text:
    Calvin R. Mower v. Jannetje Verplanke and Johannes Verplanke.
    [See 101 Mich. 209.]

      Appeal — Point not raised below — Probate of foreign will — Sufficiency of petition.

    1, A point not raised upon the trial should not be considered on appeal.
    2. A petition for the probate of a foreign will, which sets forth ■that the petitioner is interested “as a subsequent purchaser of the estate of the deceased,” is sufficient, under How. Stat. § 5800, which provides that “when a copy of such will and, the probate thereof, duly authenticated, shall be produced by the executor, or other person interested in such will, to the probate court, such court shall appoint a time and-place ' of. hearing, and notice shall be given in the samé manner '.■.'■as in the case of an original will presented for probate.’": to give .the. probate court .jurisdiction, it not., being neces7 sary to set forth the proofs of petitioner’s interest; citing Clow v. Plummer, 85 Mich. 550.

    Rehearing, upon- application of plaintiff, of casé reported in 101 Mich. 209.
    Submitted January 22, 1895.
    Former decision reversed May 21, 1895.
    The facts are stated in the opinion, and in 101 Mich. 209.

      W. I. Lillie, for appellant.

      Farr & Soule, for defendants.

       For cases bearing upon the construction of .. .and ¡practice under How. Stat. § 5806, see Mower v. Verplunke, 101 Mich. 209, and note; and see'Act No. 105, Laws of 1895, which repeals said section, and amends How. Stat. § 5805; so as to provide "that any will duly -admitted. to probate without the probate,, court of .any county in this State. ,in which thp testator left, real or personal .estate, and -in the place of the testator's. domicile, may be duly admitted to probate, and recorded in tliis State by duly filing an .exemplified copy, of said .will, .and of the record admitting the same to. probate, and proceeding in tl>§ manner hereinafter provided.”

   Grant, J.

For a statement of the issue, see same case in 101 Mich. 209. A rehearing was granted upon the statement in the motion for rehearing that the point upon which the judgment was affirmed was not raised •in the'court below. '• The:point was expressly raised anÜ argued in the brief, for the appellees, and was-nóC mentioned in the brief for the appellant. We therefore assumed that the point whs raised upon the'trial. A re-examination of the record .shows that .it was n.ot, and therefore should not have been considered in the former decision. .

•' The ground upon whiéh the court below excludéd the record of the probate of the will in the county of .Ottawa was that'the petitioner .was not interested in such' will, vyithin the meaning of How-¡Stat. § 58,06, which will, be found in the former opinion.-. The petitioner represented in his petition that he was interested “as a subsequent purchaser of the estate oí the deceased.” It was not necessary for him to set forth the proofs of his interest. This case is clearly within the reasoning of Clow v. Plummer, 85 Mich. 550. The petition was sufficient to give the probate court jurisdiction, and the record was therefore admissible in evidence.

Judgment reversed, and a new trial ordered.

The other Justices concurred.


text:
    S. H. Seamans, Receiver of the Wisconsin Mutual Fire Insurance Company, v. The Temple Company.

      Fire insurance — Foreign company — State comity.

    1. The right of a foreign, corporation to sue in the courts of Michigan is limited:
    a — By How. Stat. § 8136, which provides that when, by the laws of this State, any act is forbidden to be done by any corporation without express authority by law, and such act shall have been done by a foreign corporation, it shall not be authorized to maintain any action founded upon such act, or upon any liability or obligation, express or implied, arising out of or made or entered into in consideration of such act.
    5 — By the general rule that the doctrine of state comity will not be applied in behalf of a foreign corporation seeking to recover upon a claim or contract expressly prohibited by law, or one which is clearly at variance with the settled policy of the state.
    2. It is the policy of this State to limit the business of insurance
    to such corporations, domestic and foreign, as shall be authorized by the Commissioner of Insurance to do business after compliance with certain regulations and conditions prescribed by law, and all fire insurance companies are expressly forbidden to transact any business of insurance within this State without the requisite authority.

      3. A foreign mutual fire insurance company, without having filed the prescribed statement and obtained the requisite authority to do business in this State, received applications from persons called “inspectors,” who examined risks, sug- . gested improvements, filled out and submitted applications, and recommended the same, if favorable, for the company to write, which applications and premium notes being signed by the applicant and received at the home office, a policy would be forwarded, and assessments demanded and paid, by mail. And it is held that said inspectors were agents of the company, within How. Stat. § 4331 et seq., which prohibits foreign insurance companies from transacting business in this State without having first secured the requisite certificate of authority; that the whole scheme is a flagrant' attempt to evade the provisions of 'the statute intended to restrict the insurance business; and that no action can be maintained by said company in this State upon said contracts of insurance.

    Error to Muskegon. (Russell, J.)
    Argued May 2, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Affirmed.
    The facts are stated in the opinion.

      Turner, Turner & Turner (George JE. Sutherland, of counsel), for appellant.

      Bunlcer é Carpenter, for defendant.

       The question what policies -of insurance constitute business within a state under statutes restricting insurance business is presented in numerous decisions collected in -a note to Cone Export & Com. Co. v. Poole, (S. C.) 24 L. R. A. 295.

   Hooker, J.

The plaintiff is receiver of a mutual fire insurance company, organized and doing business at Milwaukee, under a statute of Wisconsin which authorizes such companies to do business in that state and elsewhere. This company has never complied with the statutes of Michigan by filing the prescribed statement and ■obtaining the requisite authority to do business here. How. Stat. § 4331 et seq. It appears, however, that it has done business in most, if not all, of the states, their laws to the contrary notwithstanding; and, although its officers testify that it has had no agents, it is shown that prospective risks have been examined by persons called “inspectors,” who ordinarily carried applications, and, as stated by a witness for the plaintiff, “filled them out whenever he and the applicant could agree upon the question of taking insurance;” and that “he had authority to take applications to submit to the office.” The witness was asked if the company had any other agents than the inspectors, to which he answered:

' “They were not agents. They merely examined risks, suggested improvements, filled out and submitted applications, and recommended the application, if favorable, for us to write.”

The application and premium note.being signed by the applicant and received at the home office in Wisconsin, a policy would be forwarded by mail, and assessments would be demanded and paid in the same way.

That such inspectors were agents of the company, within the statute cited, is plain, and the whole scheme is a flagrant attempt to evade the provisions of the laws of the several states which are intended to restrict the insurance business. The testimony in this case shows that the defendant company succeeded a partnership named Ames & Frost, and that insurance upon the property now owned by the defendant was obtained in the method described. The record fails to show (or, if it does, we have overlooked it) whether the defendant’s policy was given by way of renewal at the expiration of the Ames & Frost policy or upon a transfer of the business to the defendant. Perhaps it is not important. For some reason a new policy was issued, the application and so-called “note” being filled out at the company’s office in Milwaukee, and sent to defendant by mail, who signed and returned the same by mail. It does not appear that any inspector took part in this particular transaction. A receiver, being appointed in Wisconsin, took charge of the affairs of the insurance company, and made an assessment upon the members, and this action is brought for such assessment.

Counsel for plaintiff contend that the insurance company has not done business in this State, but that the contract is one made in Wisconsin, to be performed there, and that it is therefore valid, and, that being so, the plaintiff may sue and recover upon it in the courts of this State under the rule of comity between states. This rule applies to corporations as well as to natural persons. How. Stat. § 8135. But the right of a foreign corporation to sue in our courts is limited — First, by statute (section 8136), and, second, by the general rule that the doctrine of state comity will not be applied in behalf of a foreign corporation seeking to recover upon a claim or contract expressly prohibited by law, or one which is clearly at variance with the settled policy of the state. Thompson v. Waters, 25 Mich. 214; Christian Union v. Yount, 101 U. S. 356. It is the policy of this State to limit the business of insfirance to such corporations, domestic and foreign, as shall be authorized by the Commissioner of Insurance to do business, after compliance with certain regulations and conditions prescribed by law; and all fire insurance companies are expressly forbidden to transact any business of insurance within this State without the requisite authority. How. Stat. § 4277, applies to domestic corporations, and prescribes what stall be “their authority to commence business and issue policies.” How. Stat. § 4331, applies to foreign corporations, and provides:

“That it shall not be lawful for any person or persons to act within this State, as agent or otherwise, in prosecuting or receiving applications for insurance, or in any manner to aid in transacting the business of fire or marine insurance, for any company * * * not incorporated in this State, without first procuring a certificate of authority,” etc.

The section also provides:

“And no insurance company, or officer or agent or agents of any insurance company, unincorporated or incorporated in any other, state, shall transact any business of insurance in this State, unless * * *. And upon the filing * * * it shall be the duty of said Secretary of State [Insurance Commissioner] to issue a certificate thereof, with authority to transact business,” etc.

How. Stat. § 4354, contains a still more pointed prohibition as to foreign companies, declaring it “unlawful for any person or persons, as agent, solicitor, surveyor, broker, or in any other capacity, to transact or to aid in any manner, directly or indirectly, in transacting or soliciting, within this State, business for any * * * insurance company, * * * or in any capacity to procure, or assist to procure, a fire or inland marine policy * * * on property situated in this State,” without procuring the certificate of authority before provided for. Subsequent sections provide a penalty, and a method of enforcing it. Section 4359 imposes a penalty of $250 upon any company which shall issue or permit to be issued upon any property in this State a policy of insurance without having the authority to do so, and provides that no such company shall thereafter be authorized to do business in this State until all such penalties shall be paid.

If it be conceded that the contract was made in Wisconsin, and that the premiums and loss, if any, are payable there, it is as much in contravention of the policy of this State as though it had been made and was to be performed here. It cannot be supposed that the statutes cited were intended merely to prevent the act of making the contract in this State. The object is to protect the citizens of this State against irresponsible companies, and to prevent insurance by unauthorized companies upon property in this State. American Insurance Co. v. Stoy, 41 Mich. 401; Hartford Fire Insurance Co. v. Raymond, 70 Id. 501. The argument of counsel for plaintiff is substantially this:

“We know that the laws of Michigan are designed to prevent our insuring Michigan property, hut we have done so in a way that does not contravene the letter of the Michigan statute. We have made our contract through the mail, and we have committed no violation of the Michigan statute, because we have done nothing upon Michigan soil. We have evaded your law, and obtained a contract which you have sought to prohibit, and now we ask you to enforce it for us under the doctrine of state comity.”

Under such circumstances the courts of the State are not open to the offending company, and the rule of state comity cannot be invoked in its behalf. See Thompson v. Waters and Christian Union v. Yount, supra.

Again, the statute (section 8136) has application. These statutes prohibit all insurance companies, domestic as well as foreign, from issuing policies upon property in this State without express authority. This was an act “forbidden to be done by any corporation [domestic or foreign] without express authority by law,” and no action can be maintained upon any contract arising out of it. Seamans v. Zimmerman, 91 Iowa, 363, and cases cited.

The judgment of the circuit court will be affirmed.

The other Justices concurred.

       See How. Stat. § 4208.


author: McGrath, O. J.

text:
    Ollie M. Petit et al. v. Thomas M. Hubbell and Calvin Currie.
    Fraudulent_ conveyances — Execution—Evidence.
    The owner of a parcel ofland placed it in the hands of a firm- of real-estate agents for sale or exchange. The land was exchanged for a house and lot, the deed of which was executed to one of the agents, without the knowledge of the principal. At the request of the principal, the agent eonveyed the house and lot to the principal and two other persons, to each of whom she had sold a one-third interest. After the delivery of the deed to the agent, and before the execution of the deed to the principal and her vendees, an execution had been levied upon the house and lot at the suit of a judgment creditor of the agent. The principal and her vendees filed a bill to set aside said levy. On the hearing the real controversy was as to the ownership of the land exchanged for the house and lot, the defendant insisting that it was in fact owned by the agent, and that the name of the principal was used and the suit commenced collusively to defeat the levy. And it is held that the facts which appeared on the hearing, namely, that the principal had paid for the land, and had exercised acts of ownership over it, and that by her direction it had been assessed to her, and that the deed from the agent of the house and lot to her and her vendees was executed and delivered in the absence of any claim or showing that either had at that time learned of the levy, are controlling facts, and a decree granting the relief prayed for is affirmed.
    Appeal from St. Clair. (Vance, J.)
    Argued May 2, 1895.
    Decided May 21, 1895.
    Bill to declare void an execution levy as a cloud upon complainants’ title. Defendant Hubbell appeals.
    Decree affirmed.
    Tbe facts are stated in the opinion.

      AtMnson & Wolcott, for complainants.

      8. E. Engle, for appellant.
   McGrath, O. J.

Defendant Hubbell appeals from a decree declaring a levy made by Mm October 15, 1892, upon an execution running against defendant Calvin Currie and one Gilbert, to be a cloud upon tbe title of complainants’ land, and void.

Currie and Gilbert were copartners, and real-estate brokers. Complainant Ollie M. Petit avers that she had placed in the hands of Currie & Gilbert for sale or exchange for other property a parcel of land situate upon the St. Clair flats; that an exchange was effected with one Bennett for a house and lot in Algonac; that Bennett -deeded the Algonac property to Calvin Currie on October 15, 1892; that, on the evening of the same day, Currie delivered to her the Bennett deed, at the same time explaining that it should have been made to her, and promising to convey to her; that she then requested a conveyance to complainants jointly, and later in the evening a deed was executed, acknowledged, and delivered by Currie and wife to her, but that between the time that the Bennett deed was delivered to Currie and the conveyance to complainants the levy was made.

The real controversy is as to the ownership of the lahd in St. Clair flats, the defendant Hubbell insisting that that parcel was in fact owned by Currie, and that Ollie M. Petit’s name is used and this proceeding commenced collusively to defeat Hubbell’s levy. The land had been made by dredging canals around the lots. It was not officially known to either the state or federal government, was unsurveyed, and without title of record. Defendant Currie, his brother, and one Gentle had squatted upon this and adjacent parcels, and this parcel was conveyed to defendant Currie in December, 1890, who, a few days afterwards, conveyed to complainant Petit. Neither of said conveyances had been recorded at the time of the levy: The deeds, however, were produced, and shown to have been executed at the dates named.' It was further shown that Currie & Gilbert were without means; that complainant Petit had, prior to the execution of the deeds, realized quite a sum of money from the estate of a deceased husband; that the consideration, to wit, the sum of $300, had been actually paid by the transfer of certain bank certificates of deposit which were produced; that the supervisor of the adjoining township had, upon Ollie M. Petit’s claim of ownership, subsequently assessed this parcel to her; and that in May, 1891, a written contract for dredging a canal through or adjacent to the land in question had been entered into between Ollie M. Petit and the defendant Hubbell. Bennett testified that Currie & Gilbert represented that they owned the land, and gave him a quitclaim deed, executed by themselves and wives; and that, upon the discovery by him of the contract with Hubbell, he requested, and there was delivered to him, a quitclaim deed from Ollie M. Petit, executed by Calvin Currie as attorney in fact. Currie and Gilbert, however, testified that the negotiations were closed on October-12; that Bennett preferred and requested a deed from Currie & Gilbert; that on October 13, Bennett, at Detroit, produced a deed to Calvin Currie of the Algonac property, and was then told that the deed should run to complainant Petit; that the matter was thereupon deferred until the next day; that the parties met again at Detroit, on the 14th, when Bennett insisted that the delivery of the deeds should take place on the land, and the matter was again deferred until the 15th-, when the deeds were delivered upon the fiats land, they expecting that the suggested correction in the deed had been made; that attention was directed to the fact that it had not been made, when Currie remarked that he could rectify the error by a conveyance to Mrs. Petit. Mrs. Petit had, on the 14th, signed and acknowledged a deed of the marsh land running to Bennett, and she claims that this deed was delivered to Currie; but why it was not delivered in lieu of the deed executed by Currie as her attorney in fact does not appear, except that Currie says that the other was first executed,' and was after-wards delivered by mistake. The deed was, however, produced at the hearing.

It clearly appears that during the negotiations Bennett had had several interviews with defendant Hubbell. The negotiations were concluded on the 12th of October. Bennett produced his deed of the Algonac property on October 13 at Detroit. On that day a levy was made upon the marsh land. On the 14th of October, Bennett insisted upon taking possession of the flats parcel, and the delivery of the deeds thereon. On the 15th possession was taken, and the deeds delivered; and on the same day the levy was made on the Algonac property. Hubbell had good reason to suspect that Currie & Gilbert were conducting their matters so as to avoid the collection of the judgment against them, and Bennett seems to have been satisfied that Currie & Gilbert owned the land, and to have paid little attention to the indications, or to the statements, if any, that the land belonged to complainant Petit. However that may be, if Currie & Gilbert instructed Bennett to make the deed of the Algonac property to Mrs. Petit, and he made it to Calvin Currie, or if Currie directed the deed to be made to himself, in either case it was a fraud upon Mrs. Petit. The deéd to Mrs. Petit, executed and delivered in December, 1890, the payment by her of the consideration, the assessment of the land to her, the contract for the dredging, and, lastly, the deed from Currie to complainants, executed and delivered at Algonac, in the absence of any claim or showing that either had at that time learned of the levy, are controlling facts, and the decree must be affirmed, with costs to complainants.

The other Justices concurred.

       Complainant Ollie M. Petit had arranged for the sale to each of her co-complainants of an undivided one-third of the land.


author: Montgomery, J.

text:
    Myra M. Turner v. The Township of Ridgeway.

      Negligence — Evidence—Expert testimony.

    1. Where in a personal injury case the declaration avers only an injury to plaintiff’s spine, the admission of testimony as to uterine troubles, with which she claimed to be affected, on the supposition that they would be shown to be traceable to the injury alleged in the declaration, is not error, said evidence having been withdrawn by plaintiff’s counsel, by permission of the court, upon his statement that he could not furnish said connecting evidence, and the defendant having shown by a medical witness that the plaintiff’s condition of impaired health was due, in part at' least, to a uterine difficulty, with which the witness testified plaintiff was affected, and for which the defendant was not responsible.
    2. Objection was made to the allowance of a question to one of • plaintiff's witnesses as to her present appearance as compared with what it was prior to the injury, on the ground that the proposed testimony was incompetent, as plaintiff’s testimony showed that she was suffering from a uterine difficulty. And it is held that the objection only went to the weight of the testimony, which must depend upon whether or not the uterine difficulty was of a nature which' would cause the change in appearance which the witness testified to.
    3. One of the defendant’s medical witnesses was asked whether, in cases where there is simply a physical shock, as a fall upon the side, and there is no warning or apprehension preceding the shock, he would expect a case of railroad spine or coneussio^L of the spine to follow. And it is held that the question was properly excluded; that, aside from the fact that it did not fairly represent the ease as made by the proofs, it contained an assumption that railroad spine and concussion of the spine meant the same thing; that, as the question was put, it would be impossible for any expert to give an intelligent answer as to whether a fall upon the side would occasion concussion of the spine, and that something of the nature of the fall should have been included in the question.
    Error to Lenawee. (Lane, J.)
    Submitted on briefs May 3, 1895.
    Decided May 21, 1895.
    Negligence case. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.

      Wood & Bird, for appellant.

      Watts, Bean & Smith, for plaintiff.
   Montgomery, J.

Plaintiff recovered a verdict of $1,300 for injuries sustained try being thrown from a carriage on a highway in defendant township, under circumstances which the jury held established negligence on the part of defendant, under a charge which is not excepted to. Defendant brings the case hére, assigning error on the admission of testimony and on the language of counsel in summing up the case to the jury.

The declaration charged that plaintiff was injured in her spine, and when she was on the stand she was asked by her counsel, “How was your period affected by this?” The question was objected to, on the ground that no uterine trouble was alleged in the declaration, whereupon counsel for plaintiff stated that he expected to show a displacement of the womb, and was permitted to proceed on the supposition that he would also show that the uterine difficulty was traceable to the injury to the spine. Some time after this testimony was introduced, counsel for plaintiff stated:

“There has been some testimony put into this case in regard to the uterine difficulty of this plaintiff. It was our understanding that that was the result of the injury to the spine, but I am informed by the doctor that that does not necessarily follow, and I ask leave to strike out-all of that testimony, and withdraw it from the jury, or else I desire to amend the declaration by alleging the injury across the abdomen.
“Mr. Wood: We certainly would object.
“Mr. Bean: I think that I will withdraw the testimony in regard to any uterine difficulty, or any injury to the uterus or displacement of the womb.
“Mr. Wood: We desire an exception, if not already taken, to the introduction of this evidence. It is a very unsatisfactory way to defend, to have testimony of this nature introduced and then withdrawn; although I am not charging counsel with bad faith, or anything of that kind.
“The Court: The only thing the court can do is to permit it to be withdrawn.”

Dr. Eccles was then called to the stand by the plaintiff, and, on his cross-examination, defendant’s counsel drew out the fact that plaintiff had uterine trouble, and asked the following questions:

“Was that uterine trouble in any way connected with this concussion of the spine?
. “A. No, sir.
“Q. It had nothing to do with it?
“A. No, sir. * * *
. “Q. What effect would this uterine trouble have upon the nervous system?
“A. It would tend to reduce it some. It would weaken the system, from flowing.”

Subsequently defendant’s counsel also showed by their own witness, Dr. Eaton, that the plaintiff’s condition of impaired health was due, in part at least, to the uterine difficulty, for which defendant was not responsible.

It is difficult to conceive how this testimony could have worked any injury to defendant. Indeed, it would appear to have been essential to the defense; and, after showing, as they did, that it was not traceable to the injury to the spine, its tendency was to reduce, rather than to increase, the damages.

Exception was taken to the allowance of a question to plaintiff’s witness, as follows:

“What is her appearance now as compared with what it was then [prior to the injury], as to health?”

The objection is that this was incompetent, as the plaintiff’s testimony showed that she was suffering from a uterine difficulty. But this objection only goes to the. weight of the testimony, which must depend upon whether the uterine difficulty was of a nature which would cause the change in appearance which the witness testified to.

1 Exception was taken to the exclusion of a question put to Dr. Kirkpatrick, defendant’s witness, as follows:

“In cases where there is simply a physical shock, — as a fall upon the side, — and there is no warning, no apprehension preceding the shock, would you expect a case of railroad spine or concussion of the spine to follow?”

We think the question was properly excluded. Aside from the fact that it did not fairly represent the case as made by the proofs, the question contained an assumption that railroad spine and concussion of the spine meant the same thing, and certainly, as the question was put, it would be impossible for any expert to give an intelligent answer as to whether a fall upon the side would occasion concussion of the spine. It would depend, of course, upon the nature of the fall. The testimony on the part of the plaintiff tended to show that she was thrown over the heads of the other occupants of the buggy, and plaintiff says:

“I should think it was 15 feet away. Directly down, it would be, in a perpendicular, anywhere from seven to ten feet.”

. Something of the nature of this'fall should have been included in the question.

Objection was taken to the language of counsel in arguing the case to the jury. We do not think that these remarks were of a nature which call for a reversal of the case.

The judgment will be affirmed.

The other Justices concurred.


text:
    The Delbridge, Brooks & Fisher Company v. Edward H. Patterson.

      Bills and notes — Recoupment.
    In a suit by a material man upon a note given him by the owner of a building on the order of the contractor' for materials furnished the contractor for use in said building, it appeared that no guaranty was exacted from the plaintiff when the note was given, that no other contract was entered into respecting the material, and that the contractor had accepted the same. And it is held that the defendant could not recoup damages on the ground that the material did not conform to the specifications in the building contract.
    Error to Wayne. (Frazer, J.)
    Argued May 3, 1895.
    Decided May 21, 1895.

      Assumpsit. Plaintiff brings error.
    Reversed, and judgment entered in this Court for plaintiff.
    The facts are stated in the opinion.

      E. T. Wood, for appellant.

      James E. Found, for defendant.
   McGrath, C. J.

One Crosby contracted to build a house for defendant. Plaintiff furnished the factory work under a contract with Crosby, who gave to plaintiff an order on defendant for $218, the amount of the bill. Defendant, on May 18,1889, gave his note to plaintiff for the sum named. The note was discounted at the bank, and renewed three times. Defendant made a payment upon the note at each renewal. The last note was given December 31, 1889, for $100, and suit was brought to recover on this note. Defendant, claiming that the factory work furnished by plaintiff was not up to the specifications in his contract with Crosby, gave notice of recoupment, and recovered a judgment against plaintiff for $100.

Defendant’s contract respecting the factory work, as well as that of the plaintiff, was with Crosby. Defendant called Crosby, who testified that the factory work was according to contract when delivered, but that the plastering in the house, done in the winter, did not dry out until spring, and that the factory work was affected by the dampness. No guaranty was exacted from plaintiff when the note was given, and no other contract entered into respecting the factory work. Crosby having accepted the work, plaintiff’s contract was performed, and it could not be held liable to defendant for non-performance of Crosby’s contract.

The judgment must therefore be reversed, and judgment entered here for plaintiff, with costs of both courts.

The other Justices concurred.