author: Moore, O. J.

text:
    GORNETZKY v. GORNETZKY.
    1. Trial — Voir Dire Examination — Limiting- Extent, Discretionary.
    Upon the preliminary examination of jurors as to their competency to sit in a case, the extent of examination to be permitted attorneys is largely in the discretion of the court, the exercise of which will not, in reviewing the cause, be disturbed although defendant’s counsel was denied the privilege of asking certain questions tending to exhibit the feeling or sympathy of a juror towards the plaintiff or witnesses mentioned by defendant’s counsel, who had theretofore fully ex amined the jury, so far as the record showed, relative to any possible bias or prejudice.
    2. Same — Cross-Examination—Impeachment.
    The trial court did not err in refusing to receive in evidence the flies of another cause for the purpose of impeaching a witness for plaintiff, by showing that his lawyer, in the collateral proceeding, was not the one stated by witness; the matter was not so material to the issue as to justify admitting the evidence.
    3. Same — Examination of Witnesses.
    Defendant, against whom an action had been commenced for alienating the affections of his son, plaintiff’s husband, was not entitled to show what he had done to induce the son to discontinue a divorce suit, at a time subsequent to the commencement of the action by the wife.
    4. Same — Alienation of Husband’s Affections.
    Nor was his testimony relative to his wife’s feelings competent, when she was a witness and fully covered the point.
    5. Same — Argument—Statutes—Witnesses.
    Defendant’s counsel was properly prevented from commenting unfavorably in argument upon the fact that plaintiff had refused to permit her husband to testify, claiming that the testimony was privileged under section 10213, 3 Comp. Laws, 5 How. Stat. (2d Ed.) § 12857.
    6. Husband and Wife — Alienating Affections of Husband.
    In an action against the parents of plaintiff’s husband for alienating his affections from plaintiff, the court sufficiently covered a request to charge that defendants were not chargeable with the husband’s determination to live apart from her, if he had so decided before they advised with him, by instructing the jury in the general charge that the father and mother were entitled to counsel with their son, that if they acted, in advising with him, out of proper motives, and without malice, they were not liable, that if they caused his affections to be alienated from his wife, and their motives were malicious or improper, or caused by dislike or jealousy of plaintiff, they were liable, that if the jury found the husband, not defendants, was to blame, or anything except malicious interference on the part of defendants caused the estrangement, the verdict must be for defendants.
    7. Same — Conduct of Court — Charge—Trial.
    . In advising the jury not to be swayed by sympathy or prejudice, the court did not commit reversible error by intimating that the case appealed to his sympathies, but that such influence should not affect the verdict of the jury; nothing being said to show in whose favor the sympathy of the court was aroused.

      Error to Wayne; Murfin, J.
    Submitted April 15, 1912.
    (Docket No. 89.)
    Decided October 7, 1912.
    Rehearing denied June 2, 1913.
    Case by Anna Gornetzky against Harris Gornetzky and Matilda Gornetzky for alienating the affections of plaintiff’s husband. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      Thomas W. Payne and Sloman & Sloman, for appellants.

      Bumps & Bishop, for appellee.
   Moore, O. J.

On November 25, 1909, the plaintiff married Lasser H. Gornetzky, the only son of the defendants. The young people commenced housekeeping in a well furnished, comfortable house owned by the mother of the young husband. It was not long before trouble arose between the young people. On March 14, 1910, Lasser H. Gornetzky commenced divorce proceedings against the plaintiff. On the 6th of April, 1910, the plaintiff commenced this suit against the parents of her husband to recover damages for the alienation of his affections from her. A jury trial resulted in a verdict and judgment in her favor for $3,000. The case is brought here by writ of error.

Eight assignments of error relate to what occurred in the examination of the jurors by counsel for defendants. The record does not purport to contain all that occurred. It shows that the trial judge said to counsel that he had asked the jurors a multiplicity of questions that had nothing to do with the case and a colloquy followed, then the following appears in the record:

stMr. Sloman: Your honor will give me an exception to the statement, and I may state at this time that it is my understanding of the rule that for the purpose of peremptory challenging almost any question that is likely to bear upon the juror’s state of mind in an action of this character may be asked.
The Court: My understanding of the rule is that a trial judge has some discretion in the matter. _ I believe the fewer questions asked the better off it will be all around.
“Mr. Sloman (addressing juror): Now, if you should find that..........was in this case, and you knew him, would that affect your mind ?”

The court held the juror need not answer the question and made a like ruling to the following question:

“Mr. Sloman (to a juror): If the plaintiff would be on the stand, would your sympathies be likely to be aroused so that you could not give the defendant a fair show when you came to hear his testimony ?”

Counsel take the same position in this court as to their right that they took in the court below, quoted above, citing Monaghan v. Insurance Co., 53 Mich. 246 (18 N. W. 801). In disposing of that case, the court said, among other things:

“A party has a right to a certain number of challenges, and, in order to exercise this right understandingly, it is proper for him to ascertain as nearly as practicable the disposition of the juror toward him, and towards the subject-matter in controversy; and any inquiry within reasonable limits which tends to bring to light any bias or prejudice entertained by a juror is proper.”

It would perhaps have been well to allow these questions. It is evident, however, that counsel had made so many inquiries of the jurors that the court became impatient, and it does not appear that any question which bore upon the bias or prejudice of the juror was excluded. We cannot say upon this record that there was such an abuse by the trial court of his discretion as to call for a reversal of the case. This ruling is not in conflict with Towl v. Bradley, 108 Mich. 409 (66 N. W. 347); People v. Peck, 139 Mich. 680 (103 N. W. 178). It is said the court erred—

“In restricting the cross-examination of the witness Herstein concerning when the suit was brought by the plaintiff’s husband against him, * . * * in refusing to permit in evidence the files in the case of Passer Cornet zky v. Jacob Herstein, a suit for alienation of affections, to show that the defendant appeared therein by Mr. Alex. J. Groesbeck, as his attorney.”

It was the claim of the defendants that the trouble which existed between the young people was due to the ofSciousness of an uncle of the plaintiff, Mr. Jacob Her-stein, and that the inquiries should have been allowed. Counsel examined this witness at great length. Ten or twelve pages of his cross-examination, mostly in narrative form, appear in this record. In this cross-examination it developed that the witness, at her request, had introduced the plaintiff to a lawyer who afterwards commenced this suit. The witness was then examined in relation to the same lawyer being his attorney in a case commenced against the witness by Lasser H. Gornetzky for alienation of the affections. It was afterwards sought to contradict him by the introduction of the files in the last-named case. The record shows, when the last-named case was commenced, the records and files did not relate to a matter so material to the issue in the instant case as to make them admissible. See Rice v. Rice, 104 Mich. 871 (62 N. W. 833).

Many of the assignments of error relate to the rulings of the court in the cross-examination of the plaintiff. She was cross-examined at great length, and none of the rulings in relation to her testimony constitute reversible error.

Several assignments of error relate to the following:

" In refusing to permit said witness (defendant Harris Gornetzky) to testify as to what he did to induce his son to discontinue the divorce suit. * * * In striking out the answer to the question: CQ. Now, as far as you know, did your wife know anything about it ?’ In striking out the answer of said witness to the question: ‘Q. Is that true, so far as you know, of your wife’s feelings in the matter ?’ ”

The first of these questions relates to something which occurred after this case was commenced. The other questions were not proper in view of the fact that the witness and his wife both testified in detail as to what each of them did and did not do.

Error is assigned because the court refused to permit counsel for defendants to make an argument to the jury based upon the fact that plaintiff refused to consent to allow her husband to testify; citing Zimmerman v. Whiteley, 134 Mich. 39 (95 N. W. 989). A reference to that case will show that counsel here were allowed to go as far as was done in that case. The statute upon that subject is clear. Section 10213, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12857). It has been construed many times. See Maynard v. Vinton, 59 Mich. 139 (26 N. W. 401, 60 Am. Rep. 276); Carter v. Hill, 81 Mich. 275 (45 N W. 988). The purpose of the statute would be defeated if the contention of counsel is to prevail.

A group of assignments of error relate to the refusal of the court to give several of defendants’ requests to charge; counsel citing Rice v. Rice, 104 Mich. 371 (62 N. W. 833). They relate to the subject contained in the following request :

“If you should find from the evidence that Lasser Gornetzky, acting upon his own desires in the premises, had determined to live apart from his wife, and that having reached such determination he proceeded to carry it out; and if you should find from the evidence that after he had formed such determination, his parents consulted with him and they or either of them advised him in relation thereto, then I charge you there would be no liability no matter what the character of such advice was, and your verdict would be of no cause of action.”

The court charged the jury in part as follows:

“ But, if his affections have been alienated, you will then.pass to a consideration of the question as to whether or not the alienation of these affections was due to these defendants or either of them. Now, I say to you, gentlemen, at the outset, there can be no question whatsoever but that a father and mother, or a father and mother-in-law, have a right to give advice and suggestions and help to their son, or to their daughter-in-law. How far that will go, or how far that must go, is, of course, entirely a matter of taste. But if they have been advising, assisting, from proper motives, and with a natural desire of a parent to be of assistance to a son or daughter, even though their motives may be mistaken, and even though they may have done things in a way that you or I would not have done, if their motives have been honest, proper motives, then, obviously, there can be no cause of action; merely alienation of affection, unless it is brought about through malice, does not give rise to a cause of action. In other words, if the father-in-law and mother-in-law, complained of in this case, were prompted in what they were doing by honest and proper motives, then, even though the result of their conduct estranged this young couple, there can be no liability, but if they were actuated by improper motives, through a desire to stir up trouble, through a jealousy of their son, through a desire to get him back, or because, improperly, they have formed a dislike towards this plaintiff, or for any other motive which is not proper, and which would not be honorable, in other words, if it was done maliciously, then, if there had been an alienation of affection, and they are to blame for it, under those circumstances, they would be liable, or either of them would be liable, as you find the case to be. So, gentlemen, in that connection, I say this to you, it is not necessary that they should be the sole cause of the alienation of the affections, but, if maliciously they were the real, final cause of bringing about an estrangement between these people, they would be liable. But, if they are not, gentlemen of the j’ury, if you find that the estrangement between these young people, if there was one, was brought about in some other manner entirely, manifestly, these defendants would not, nor would either of them, be liable in this case. You will recall that it is the claim of these defendants that an uncle, Mr. 'Herstein, by name, I think, is to blame for this trouble. If you find from the evidence in this case that he, rather than they, are to blame, manifestly they cannot be liable. If you find anything else was to blame rather than a malicious interference by these defendants, or either of them, these defendants cannot be liable. So, gentlemen, to recapitulate briefly, you will find, first, whether or not there has been any alienation of the affections of this plaintiff’s husband; second, whether that was brought about by the malicious interference and conduct of these defendants, or either of them. If it was, they are liable. Otherwise, they are not liable. * * * In this case, as in all cases of this description, the burden of proof is upon the plaintiff. That is to say, upon the controverted questions of fact involved, she must make out her case before you by a fair preponderance of the evidence. I am requested to charge you, and I think it is the law, that the natural presumption is that a father and mother in what they do for a son are doing it through proper, conscientious motives, and the burden of proof is upon this plaintiff to show you by a fair preponderance of the evidence that if there has been an estrangement, and if it was brought about through the interference and intervention of these defendants, or either of them, that that interference, and that intervention, was not from proper motives but from malicious motives. Now, gentlemen of the jury, when we say the burden of proof is upon a party, that means, not necessarily that that party must produce for you to hear and see, but they must produce before you such testimony as satisfies your minds that they have the right of the case. When they have done that, then they have maintained that burden of proof that the law requires.”

This feature of the case was fully covered in that portion of the general charge we have quoted.

In his charge to the jury the judge used the following language:

“ This is a case, gentlemen of the jury, that has peculiar features connected with it. It is a case that confessedly appeals to our sympathies, and it is a deplorable case, as you probably have heard me suggest. But, gentlemen of the jury, these are not considerations that may enter into our deliberations as jurors and judges in the trial of a lawsuit, no matter what our sympathy may lead us to think. Sympathy has no place in the trial of a lawsuit, and in making up your minds as to what your verdict shall be, gentlemen of the jury, do not permit that element to enter into your deliberations whatsoever. Do not permit your deliberations on the testimony in this case to be influenced in the slightest degree by the result or effect of your verdict. If this testimony in your opinion warrants a verdict, it is your duty to bring in a verdict as the testimony tells you to bring it in, regardless of what you may think the consequences of any verdict may be. I say that to you, gentlemen, because of the peculiar character of this case, which has appealed to me very much, and undoubtedly has appealed to all of you.”

Counsel predicate error upon five lines of this portion of the charge. The argument is:

While it is proper for the court to charge the jury that they should not be influenced by sympathy or prejudice in the case, there were peculiar circumstances in this case that necessitated the court’s refraining from expressing his own feelings in the matter. It is quite fair to assume that what appealed so strongly to the court was the alleged hardships and sufferings of the plaintiff as well as the distressful situation she claimed the defendants had placed her in, as testified by her and her witnesses, as well as the fact that these young people were separated and their home broken up. * * * No inference from this statement could be drawn by the jury in favor of these defendants, and its effect was to place them at a disadvantage, and we submit was likely to and did have a large influence upon their verdict.”

There is nothing in what was said to indicate where the sympathies of the court were. Its purpose was manifestly to caution the jury against acting from sympathy and emphasizing the necessity of basing a verdict upon the evidence. We do not think the jury misunderstood.

There are other assignments of error which have had our attention, but we think it unnecessary to discuss them. The case was hotly contested, and we think fairly tried.

Judgment is affirmed.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    HUNT v. STEVENS.
    1. Guardian and Ward — Dower—Sale by Guardian — Estoppel — Limitation of Actions.
    Where defendant, as a guardian of her minor children, petitioned the court in chancery for a license to sell lands belonging to their estate, to which property she made no claim of a dower interest, and set up no such claim in her answer in this suit, and where final distribution of the estate of her deceased husband had taken place, in which proceedings she claimed no dower interest, and after five years had elapsed since the sale under order of the court, she was estopped from claiming any dower interest in the real property sold and her claim was barred by the five-year statute of limitations ; section 9714, 3 Comp. Laws (5 How. Stat. [2d Ed.J § 14119).
    2. Same — Confirmation of Sale — Equity.
    It is necessary, to the validity of a sale of lands of minors under the order of a court in chancery, that the sale be confirmed pursuant to section 542, 1 Comp. Laws (4 How. Stat. [2d Ed.] § 12058).
    3. Same — Quieting Title.
    Having jurisdiction of a bill to quiet title to lands purchased by complainant at a judicial sale that was void for want of confirmation, defendant wards offering to pay back to complainant the consideration paid by him, equity will retain jurisdiction to dispose of the matters in controversy and remove the cloud on defendants’ title, setting aside the purchaser’s deed and decreeing a lien on the property for the amount so paid.
    Appeal from Montmorency; Emerick, J.
    Submitted April 10,1912.
    (Docket No. 52.)
    Decided April 8, 1913.
    Rehearing denied July 18, 1913.

      Bill by William N. Hunt against Una Stevens and others to quiet title to certain lands. From a decree for complainant defendants appeal.
    Affirmed in part and reversed in part.
    J. 8. Canfield, for complainant.

      Joseph H. Cobb, for defendants.
   McAlvay, J.

Complainant in this case filed his bill of complaint in the circuit court for the county of Montmorency, in chancery, against defendants, for the purpose of quieting title to certain descriptions of land situated in said county. Issue was joined upon the several answers of defendants, and a hearing was had in open court which resulted in a decree for complainant, granting him the relief he asked. The defendants have appealed from this decree.

John H. Stevens, of said county, who died intestate June 19, 1892, was, during his lifetime, the owner of several descriptions of land situated in Montmorency county, among which were the two descriptions involved in this suit. The defendants are his widow and children who survived him. On October 15, 1892, the widow, Una Stevens, upon her application, was appointed administratrix of her husband’s estate by the probate court for said county. Her petition shows that at that time she was 36 years old and the children were all minors, being nine, five, and four years of age. She entered upon the duties of her office and an inventory of the estate was filed December 3,1892. On December 28,1892, she filed her petition to be appointed guardian of her minor children, and upon such petition an order was duly made appointing her such guardian, and she filed the requisite bond, which was duly approved. She entered on the discharge of her duties as guardian, taking charge of the estate left by her husband. She rendered her first account to the probate court April 27, 1897, which shows a balance due her of $250, and an order was made allowing her $300 per year for the support of said minors from May 4, 1896. A second account was rendered by her to said probate court May 3, 1898, showing a balance due her of $926.19. This also shows that all the property described in the inventory, except one description of real estate, not involved in this suit, remained under her care and control. During her guardianship, the record shows that she sold, under an order of the circuit court for the county of Alpena, in chancery, certain real estate not involved in this suit, the details of which are not necessary to be stated. At that time the widow and children were residents of the city of Alpena. Later they removed to Big Rapids, Mecosta county, where they resided from early in the year 1902 until late in the year of 1904. In May, 1902, as guardian, defendant Una Stevens applied to the circuit court of Mecosta county and obtained a license to sell some of the land belonging to the estate of the minors, which was situated in Montmorency county, to complainant, which sale was duly approved. Later, November 19, 1902, she filed another petition in said circuit court for Mecosta county, as guardian for her then minor children, for license to sell all of said lands in Montmorency county, showing that the lands were nonproductive; that there were back taxes against them; that she had no means of maintaining and supporting said infants other than from said real estate; and it was necessary, in order to support, maintain, and educate them and to pay the taxes and save the estate for them, to sell and dispose of the lands described in the petition, which were all the lands belonging to said estate, and included both descriptions of lands involved in this suit. Further showing that by an order of the probate court for Montmorency county, dated May 4, 1896, she had been allowed $300 a year for supporting and maintaining said children; that the income from the property had been utterly inadequate to pay her said allowance; and that there was due her over $2,100 from the estate, which, without sale, could not be obtained.

Upon this petition an order was made to sell the real estate described in said petition, according to the valuation thereof; the two descriptions under consideration being fixed at $700 each. This order contained the usual requirement of a report to be made to the court of the sale and the terms thereof, and also of a bond in the sum of $1,000 for the faithful performance of the order. Said bond was duly executed on the same date. On November 5, 1903, defendant Una Stevens, as guardian, executed to said complainant, by virtue of the order of December $, 190$, for and in consideration of $800, a conveyance of the S.£ of the S. W. £ of section 13, being one of the descriptions of land in this suit, hereafter called the first description. In September, 1904, the defendant Una Stevens, guardian, then living with her children at Big Rapids, Mecosta county, went to Montmorency county to sell some more of this land, as is claimed, under the order of December $, 190$, made by the circuit court of Mecosta county, in chancery.

It is claimed by complainant that she represented she had authority to sell the property, which authority would have been disclosed by an examination of the record of the circuit court for Mecosta county, in chancery. Both the complainant and this defendant knew that the property she desired to sell belonged to the estate of these minors, and there is no dispute but that she desired to sell in order to raise money for their use and benefit. She agreed to sell the S. W. £ of the N. W. £ of section $4, being one of the descriptions involved in this suit, and hereafter called the second description, together with the W. £ of lots 5 and 6, block 1, in the village of Hillman, Montmorency county; and, according to such agreement, she entered into a written contract with complainant September 15, 1904, to make a conveyance to him of such lands for the sum of $600. Pursuant to such contract, on September $7, 1904, by warranty deed she conveyed to said complainant the said S. W. £ of the N. W. £ of section $4, and later, in consideration of the sum of $75, conveyed to him the W. £ of lots 5 and 6, block 1, of the village of Hillman, by warranty deed dated October 19, 1904. These deeds were both made and executed at Pasadena, Cal., and forwarded, as agreed in the contract, to the Alpena County Savings Bank; complainant having, at the time of entering into the contract, paid upon the purchase price of these two descriptions of property |300, paid the balance, and received the deeds.

Defendant Una Stevens made her final account as guardian of her children, the other defendants, upon which an order was made by the probate court of Montmorency county, on the 19th day of July, 1909, for a hearing of said petition September 7, 1909, which order was duly published and the hearing had. This final account she testified included all of the moneys received by her from complainant upon the sale to him of the lands of the estate, including the two descriptions involved in this suit. At the time of rendering this final account, she asked the court for an order of distribution of the residue of the estate of her husband, John H. Stevens, deceased, which consisted of the real estate not theretofore sold by her. The order was made on that date and, among other things, recites as follows:

“ In the matter of the estate of John H. Stevens, deceased. This 7th day of September having been appointed for the hearing of the petition of Una Stevens, administratrix of said estate and guardian of minor children of said deceased, praying that the residue of said estate be assigned to the heirs of said estate, and due notice of the hearing of said petition having been given, as directed by said court, the said petitioner appeared and submitted her final account and also made showing that all children were now of legal age, it appearing to the court that all of the debts, funeral charges, and expenses of administration and all allowances for the maintenance of the family of said deceased; * * * that the widow’s preferred claims to the personal estate have been fully satisfied; that all proceedings required by law for the administration and settlement of said estate have been taken; and that there remains to be assigned to the legal heirs of said deceased * * * the following described real estate,” etc.

This order proceeds to determine that these defendants, the widow and three children, are the sole heirs of said deceased, and assigns the remainder of the estate to them as she petitioned; she having furnished the court with a list of the entire estate remaining unsold, which did not include the descriptions involved in this suit.

The record shows that it is undisputed that complainant purchased these lands of defendant Una Stevens; that they were lands which belonged to the estate of John H. Stevens, deceased, of whom the widow and the three children were the sole heirs; that the purchase price of these two descriptions involved in this suit was paid to her; that she admits in her testimony she received such payments and accounted for them to the probate court, which appointed her administratrix and guardian; that such payments were used by her for the support, maintenance, and education of the three minor children; that such sums were included by her in her final account to the probate court of Montmorency county, and were considered and passed upon by the court on the hearing of said final account, before final distribution of the residue of the estate by said court. From all the testimony upon the question of the adequacy of the consideration paid by complainant for this land, we agree with the learned trial judge that they '"sold for their full value and for more than their market value.”

And we are satisfied, from all of the evidence in the case, that defendant, in making these sales of this land to complainant, was acting as guardian of these minors under the license to sell granted by the circuit court for Mecosta county, in chancery. The answer of defendant Una Stevens to the allegation of the bill of complaint in this case shows that she admits that the first description, as charged in said bill of complaint, was sold by her as guardian of these minors under the order of the circuit court for the county of Mecosta, in chancery. Her answer denies the sale as guardian of the minors’ interest in the second description, and asserts that she sold her individual interest only. The answers of the three other defendants specifically deny any valid sale to complainant of the second description; assert that they are each owners of an undivided one-third interest therein. They ask for affirmative relief; that the deed of September 27, 1904, be set aside as a cloud upon their titles; and that they be decreed to be such owners.

Ño question is raised in the case as to the regularity and validity of all these proceedings as far as they relate to the sale of the S. \ of the S. W. £ of section 13, except that it is claimed no report and confirmation of the sale is shown; and in the brief of counsel for defendants all claim on the part of the minors to insist upon this technicality is abandoned, and it will not be necessary, as far as they are concerned, to consider it. The defendant Una Stevens, however, although admitting that she made this sale under the order and license of the court as guardian, claims that she did not sell her dower interest in this description. She makes no claim to the second description. At this point it will be proper to consider this claim and contention of this defendant. In her answer to the bill of complaint, she asserts no such claim. It appears, as already stated, in her petition and final account that she made no claim that these descriptions, or either of them, belonged to her or to the estate and did not include them in the residue of the estate reported by her to the probate court for distribution, and she accepted the share of such residue, which was distributed to her as she requested. It does not appear that she made any such claim at any time as to the first description to complainant or others before the commencement of this suit.

The record shows beyond dispute that the court making this order to sell all these lands located in Montmorency county obtained complete jurisdiction in these proceedings instituted by this guardian, who, during their course, was actively connected therewith, in which no step was taken except at her instance and request. She cannot now make this claim, which is inconsistent with all her previous conduct, by which she is estopped.

She is also barred from insisting upon this defense by the statute of limitations (section 9714, 3 Comp. Laws, 5 How. Stat. [2d Ed.] § 14119), for the reason that more than five years have elapsed since the sale was made and her right of action, if any, accrued. The other defendants in this case, being children and heirs of John H. Stevens, deceased, question the validity of the sale to complainant of the second description involved in this suit, and the sale is attacked both on the ground that it was not made by her as guardian and that no report of such sale was made to the circuit court for Mecosta county, in chancery, or any confirmation thereof made by such court. Upon the first contention it is only necessary to say that an examination of the record in the case satisfies us, by a great preponderance of the evidence, that the guardian, Una Stevens, in making this sale to complainant, acted as such guardian, and intended to sell the same under the order of the circuit court for the county of Mecosta, in chancery, as part of the lands belonging to the estate described in her petition to make such sale, and included in the order granting such petition.

Upon the second proposition the contention of complainant is that the statute under which these proceedings were taken in the circuit court for the county of Mecosta, in chancery, does not require a report and confirmation of sale.

The subtitle of chapter 29 of 1 Comp. Laws, which includes the sections under which these proceedings were taken, is:

“Of proceedings in relation to the conveyance of lands by infants, and the sale and disposition of their estates.”

This statute has provided the necessary proceedings to be taken in order to make the sales in courts of chancery of this State of the lands of infants for certain purposes. With very few changes it has been included in our Michigan statutes since the Revised Statutes of 1846. It appears that this statute was amended by Act No. 117 of the Laws of 1848, entitled "An act to amend chapter 90, section 134, of the Revised Statutes,” whereby was introduced into the statute what is known in the present compilation as section 540 (1 Comp. Laws, 4 How. Stat. [2d Ed.] § 12058). It is in form an original act, but is in fact an amendment, as its title indicates, of section 134 of chapter 90, which in the present compilation immediately precedes it, and it is followed by sections 134 to 141, inclusive, of said chapter. Considering this section as an amendment to the preceding section, and in connection with the sections which follow, we find in section 542 a mandatory provision requiring a report and confirmation of such sale.

It is evident that the court in which these proceedings were taken, at the time the order was made granting the prayer of the petition of the guardian to sell these lands, gave this interpretation to this statute, as appears from the order made, which provides for such report and confirmation of sale. This record does not show that the guardian made any report of the sale of the second description to the court; nor does it show any confirmation of such sale. In construing this section this court has said:

"Under this statute no conveyance could be made, or sales completed, until reported to the court, and sanctioned in each case. How. Stat. § 6727. No sales were ever reported.” Jenness v. Smith, 58 Mich. 283 (25 N. W. 191).

The section of the statute referred to in the above quotation is section 542, 1 Comp. Laws, now under consideration.

This sale, therefore, did not convey to complainant the title to this description of the three defendants, the children and heirs of John H. Stevens, deceased. These defendants, in their answers and cross-bills to the bill of complaint, pray for affirmative relief, asking that the deed to the S. W. i of the N. W. i of section 24, township 31 north, range 4 east, in Montmorency county, Mich., given by defendant Una Stevens to complainant on September 27, 1904, be declared invalid and set aside as a cloud upon their title. A careful reading of this record discloses that the guardian and the complainant in this transaction acted in good faith and in the belief that a valid transfer of this description was made to complainant. There is no fraud claimed in the case, or misappropriation of funds by the guardian.

This court, having jurisdiction of all the parties and the subject-matter of this suit, may retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject-matter. 16 Cyc. p. 106, and cases cited, including decisions of this court.

These three defendants, although claiming, as a matter of strict legal right, that they are entitled to have a decree of affirmative relief as asked by them, are willing that, if this relief is granted and the deed to complainant of the second description of land made by the guardian be set aside, it may be upon condition, and make offer to pay to complainant the sum of $525, being the consideration paid by him to the guardian, with legal interest, and all moneys he has paid for taxes upon this land, with legal interest, to be computed from the time such payments were made. Such offer is in exact accord with the authorities above cited and the views of this court as to the equitable determination which should be made of this branch of the case. A decree will be entered affirming the decree of the circuit court, granting the prayer of the complainant confirming his title to the S. £ of the N. W. ¿ of section 13, in township 31 north, range 4 east, in Mecosta county, Mich., and also determining that defendant Una Stevens has no right, title, or interest in and to said premises.

As above indicated, the decree of the circuit court as to the sale of the second description is reversed and the prayer of the defendants Grant H. Stevens, Lavina Stevens, and Royal H. Stevens for affirmative relief in their cross-bill in that respect is granted, and the sale by defendant Una Stevens to complainant of the S. W. £ of the N. W. £ of section 24, township 31 north, range 4 east, in Montmorency county, Mich., by deed dated September 21, 1904, to complainant, in consideration of $525, as far as any interest belonging to the three defendants, heirs of John H. Stevens, deceased, is concerned, is void and the cloud upon their title declared invalid and set aside, upon condition, however, that the said three defendants pay to the complainant the sum of $525, the consideration paid by him, with interest at 5 per cent, from and after the date of such payment, and also the amounts of all taxes paid on said description of land by him, with interest at 5 per cent, from the date of such payments, respectively, and such amount to be and remain a lien upon such land in favor of complainant and against defendants until the said sums are paid in in full, with interest, and that such payments be made within 60 days after settling said decree, and that a certified copy of such decree may be recorded in the office of the register of deeds for Montmorency county. It will not be necessary to remand this record to the circuit court for the purpose of making a computation of the amounts to be paid to complainant above specified; the tax receipts or tax rolls will fix such amounts beyond dispute.

No costs will be granted either party in this cause.

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


text:
    STEERING WHEEL CO. v. FEE ELECTRIC CAR CO.
    1. Sales — Warranty—Sale by Sample — Manufacturer—Contracts— Fitness for Use.
    The -warranty, implied in case of sales by sample, is that
    • the bulk of the goods is fairly equal to the sample in nature, kind, and quality; but where a manufacturer sells goods by sample for a special purpose, there is an implied warranty that the bulk and the sample shall be reasonably fit for the contemplated use.

    2. Same.
    In the sale of non-skid automobile chains by a sample exhibited to defendant, the manufacturer and seller, by implication, warranted that the chains were fit for the purpose that they were intended to serve.
    3. Same — Compromise and Settlement.
    It was for the jury to determine whether, as claimed by defendant, disputed by plaintiff, the parties, after making a contract of sale, later entered into an arrangement at variance with the first agreement, whereby the buyer, which had rejected and returned the goods, agreed to take them back and sell them for plaintiff.
    Error to Wayne; Mandell, J.
    Submitted June 21, 1912.
    (Docket No. 147.)
    Decided April 8, 1913.
    Assumpsit by tbe Steering Wheel Company against the Fee Electric Car Company for the price of goods sold and delivered. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Barnes & Stowers, for appellant.

      Louis G. Wurzer and Harry B. Keidan, for appellee.

       The authorities on the question of warranty on sale of goods by sample are discussed in a note in 70 L. R. A. 653. And as to whether sale by sample excludes implied warranty other than that goods shall conform to sample, see note in 29 L. R. A. (N. S.) 139.
      And on the implied warranty of the fitness of a particular article purchased from a manufacturer or producer for a particular use, see notes in 22 L. R. A. 187; 15 L. R. A. (N. S.) 855; 31 L. R. A. (N. S.) 783; and 34 L. R. A. (N. S.) 737.

   McAlvay, J.

The plaintiff, a foreign corporation, brought suit in justice’s court in the city of Detroit and recovered a judgment against defendant, a Michigan corporation. Defendant appealed to the circuit court, where the result of the trial was an instructed verdict by the court for plaintiff, upon which verdict a judgment was entered.

The facts of the case are as follows:

Plaintiff, in the year 1908, sold defendant certain nonskid chains for use upon automobiles, for which defendant gave an order, as follows:

Fee-Vinoent Electric Car Co.
344-346 Jefferson Ave.
Mail invoice to this office.
Detroit, Mioh., May 35, 1908.
D. W. Henry:
Please enter our order for the following, and deliver to freight
Fee-Vinoent Electric Car Co.
Per K. A. C.
No. 576.
This Number MUST APPEAR on Invoice 50 set chain 34-34.
Grips as per Sample Showed 6.50 per sett, f. o. b. factory.
Fee Electric Car Co.,
By Robt. L. Fee.
H-6
No allowance for Cartage or Packing.

This order was received June 27, 1908, and accepted in the following form:

The Steering Wheel Company,
Sidney, Ohio.
Order mailed. Order received.
6-27-08.
Customer, Fee Electric Co.
Ship to 344 Jefferson Ave., Detroit, Mich.
Your order No. 576.
Via freight.
Can ship about
Quantity. Description.
50 Set 2J" Henry Non-Skid Chains.
COPY.
If any correspondence is necessary regarding this order, kindly refer to our No. H-6.
IMPORTANT. — This is an exact copy of your order as entered and -will be so filled and shipped. If any errors, please notify us immediately.
The Steering Wheel Company,
Sidney, Ohio.

The goods were shipped to defendant July 10,1908, and were received in due time. Afterwards plaintiff asked for payment of these chains by letter, as follows:

The Steering Wheel Company.
Sidney, Ohio, Sept. 15th, ’ 08.
Fee Electric! Car Co.,
Detroit, Mich.
Dear Sirs:
As per inclosed statement, wo beg to call your attention to your account with us, represented by invoice of July 9th, and amounting to 8325.00, which is now past due.
In accordance with our usual custom, we would make draft on you for the amount on this date, however, not being familiar with your manner of settlement, we hesitate to take this action and trust you will favor us with remittance by return mail. In absence of settlement by the 22d instant, however, we will understand that it is agreeable to you for us to make draft and thanking you for your attention, we remain,
Yours very truly,
The Steering Wheel Co.

To this letter defendant replied, asking for an extension, as follows:

Woods Electric).
Robert L. Fee, Prest. & Gen. Mgr.
Louis Rothschild, Vice Prest.
W. W. Bock, Sect. & Treas..
• Fee Electric Car Co.,
344-346 Jefferson Avenue.
Phone Main 786. Detroit, Mich., Sept. 17,1908.
The Steering Wheel Company,
Sidney, Ohio.
Gentlemen:
Your esteemed favor of the 15th inst. received; replying will say: we would much rather you would not draw on us for our account of 8325.00 until Oct. 10th, as you must admit these chains were ordered out of season when there was absolutely no sale for them, we still have every one of them on hand and would appreciate it if you would let the matter rest until after Oct. 10th.
Trusting you will oblige us as above, we remain,
Yours truly,
Fee Electric Car Co.,
Per W. F. Doyle,

Later this request was granted by letter from plaintiff, dated September 18th.

On October 27th plaintiff wrote to defendant, calling attention to the fact, and asking for a remittance of the account.

On November 12th, defendant shipped the chains back to plaintiff, with the following letter of explanation:

Nov. 12, 1908.
Steering Wheel Co.,
Sidney, Ohio.
Gentlemen:
W.e are returning to you the 50 set Henry non-skid chains sent us some time ago for the reason that our customers will not use them, because the chain cuts the tires very badly and what few we have sold have been thrown back on our hands, and they say they won’t use them under any circumstances. We do not think they will do at all for solid tires. On the car we tried them on they cut large pieces out of the tire and almost ruined them. In fact, we bad to repair two tires on account of it. We are very sorry to be compelled to do this, but we certainly cannot use them.
Yours truly,
Fee Eleotrio Car Co.

On November 25th plaintiff acknowledged that they had notice that the skid chains had been received at Sidney, Ohio, by the railroad company, and refused to accept them, giving reasons therefor in the following letter:

The Steering Wheel Company.
Sidney, Ohio.
Nov. 25th, ’08.
Fee Eleotrio Car Co.,
Detroit,' Mich.
Dear Sirs:
We have just received notice from local railroad station to the ■effect that they have on hand, consigned by you, a box of auto ■chains, for our account. However, in view of the fact that this sale was made by Mr. Henry, who is personally responsible, we are refusing the shipment, pending instructions from him.
We are advised by Mr. Henry that he is taking up the matter direct with you, and trusting that you can arrive at satisfactory’ adjustment, we remain,
Yours very truly,
The Steering Wheel Co.

Not long after this was written,-Mr. J. B. Tucker, the president of the plaintiff company, while in Detroit, had an interview with Mr. Fee in the presence of Mr. Jones, which resulted, as defendant claims, in a new agreement between them relative to these skid chains; that they were to be held by defendant for plaintiff, to be disposed of as fast as possible, the proceeds to be sent to plaintiff. Plaintiff disputes this claim, and Mr. Tucker denies that any new agreement was made. After this interview in Detroit, Mr. Tucker returned to Sidney, Ohio, and wrote defendant as follows:

The Steering Wheel Company,
Sidney, Ohio.
Deo. 17, 1908.
Fee Eleotrio Car Co.,
Detroit, Mich.
Dear Sirs:
Agreeable to and in accordance with verbal conversation between Mr. Fee and the writer Tuesday morning last, please be bind enough to mail us an order authorizing the return of the Henry non-skid chains to you. While this may not really be necessary yet the R. R. Co. requests some authority for their files.
Thanking you for immediate attention to this matter, and trusting that you will be successful in disposing of the chains, believe us to be,
Yours .verv truly,
The Steering Wheel Co.
J B T — G

The goods were reshipped to defendant, and an attempt was made to sell the parts to certain dealers, as defendant claims, as was suggested by Mr. Tucker; but no purchasers could be found.

At the close of the testimony of both sides, counsel for each moved for a directed verdict. The court denied the motion of defendant, and instructed a verdict for the plaintiff for the sum of $378.94. The case is before us for review upon writ of error. The errors relied upon by appellant are: First, that the court was in ferror in not submitting the question of warranty to the jury; second, that the court erred in not submitting to the jury the question of the new arrangement made between the parties in this case.

In all cases where a verdict is directed against the appellant, the case made by him upon the trial will be considered in the light most favorable to appellant which may be given it.

The court, in directing a verdict upon the contract between the parties, did so upon the theory that this was a sale of goods, by sample, upon an order given by defendant, accepted by plaintiff, and the goods shipped and delivered under it. Both parties in their briefs have accepted the theory that this was a sale by sample, defendant making no claim that the acceptance of this order, which is given in the statement of facts, which states the terms upon which the goods were shipped by plaintiff, might throw doubt upon such construction, but conceding that it was a sale by sample.

The court, in delivering his charge to the jury in directing a verdict for plaintiff, held that this was a contract of purchase and sale by sample, complete in itself, and that oral testimony could not be introduced to vary its terms, and that there was no dispute that the goods furnished were not up to that sample, and that any representations of warranty given by plaintiff’s agent not contained in the writing cannot be considered.

Defendant contends that if no express warranty can be shown, these non-skid chains were represented by the salesman, who was the inventor, as fit for the use for which they were sold, which was to prevent automobiles from skidding upon wet or icy highways, and that in any event plaintiff was the manufacturer of these goods and selling them for the purpose of use as non-skid chains; that in such case of a sale by sample the law implies a warranty that the goods were reasonably fit for the use for which they were designed. There is no dispute in the case but that these'articles were manufactured and sold by plaintiff, to be used for the purpose stated. In fact, it appears from the record that they were not and could not be adapted to any other use. The general rule of law in sales by sample is, as stated by Mr. Mechem, as follows:

“ The warranty arising in these cases is that the bulk of the goods is fairly equal to the sample in nature, kind and quality, and if the bulk does so correspond the warranty is satisfied.” 2 Mechem on Sales, § 1328.

Where, however, a manufacturer sells goods by sample for a special purpose, there is an implied warranty that the bulk and the sample shall be reasonably fit for the contemplated use. 2 Mechem on Sales, §§ 1331, 1343. This is a recognized implied warranty coexistent with the warranty arising in general rule above stated.

The circumstances in the instant case when this sale was made were that the plaintiff’s agent came to defendant’s place of business with an article for sale known as the “Henry Non-Skid Chains,” of which this agent was the inventor. At the time these chains were not known to the trade and were being introduced. Plaintiff was the manufacturer. This article could only be used for the purpose for which it was sold to defendant, as both parties to the transaction well knew.

There seems to be in the authorities no disagreement that the rule in such cases is that there is an implied warranty of the reasonable fitness of the article for the use intended, and from a careful examination of the cases upon the subject it is apparent that no distinction can be made in the application of this rule between cases of this class and cases where machinery or other articles are ordered from manufacturers for a certain specified purpose, where reliance is had upon the skill and judgment of such manufacturer. An early English case of this last class, decided in 1829, was Jones v. Bright, 5 Bing. p. 533.

In the notes to Mr. Mechem’s valuable work, under the sections above cited, are many English and American cases to the same effect. In the case of Leavitt v. Fiberloid Co., 196 Mass. 440 (82 N. E. 682), reported in 15 L. R. A. (N. S.) 855, a valuable case note upon this question of implied warranty will be found. Reference is also had to Hallock v. Cutler, 71 Ill. App. 471. In the examination of the many cases of the sale of food products by sample we have discovered no authority which holds against the rule above given, that there is an implied warranty on the part of the seller that such products shall be fit for use, and many of these cases are founded upon the rule of such implied warranty first established by the English courts.

We find, from an examination of the decisions of this court, such holding in the first case involving this question, where the- sale involved an article of food, and the authorities relied upon to sustain the implied warranty of fitness for use, are the line of English authorities to which reference has already been made. Hoover v. Peters, 18 Mich. 51. In a recent case-this court has treated this implied warranty as a well-settled doctrine, where property is bought for a particular purpose and where the articles are for consumption. Cook v. Darling, 160 Mich. 475, 481 (125 N. W. 411), and cases cited.

We hold, therefore, that in the instant case, without reference to the claim at the trial on the part of defendant that there was an express warranty relative to the fitness of these goods for the purpose intended, as a matter of law, there was an implied warranty on the part of plaintiff that these goods were reasonably fit for the use for which they were purchased and sold. It follows that the trial court was in error upon this branch of the case in holding to the contrary and should have submitted the question of fact as to such fitness to the jury.

Upon the second branch of the case the contention of the defendant is that a new agreement was entered into between these parties relative to these non-skid chains, as already stated, and need not be here repeated; against this contention the court charged the jury that there was no consideration for that contract and because none of these chains were sold thereafter by defendant, and because the supplementary contract was not performed, therefore the original contract was in full force and effect and the defendant was liable. Upon this question we think that the trial court was also in error.

A reference to the statement of facts will show that it is admitted that plaintiff’s president, representing his company, came to Detroit and had an interview with defendant’s president. What occurred or what was agreed upon at that interview is not for us to determine.

The contention of defendant is that the consideration for the new agreement was that the plaintiff recognized that the goods could not be used for the purpose intended and the endeavor on the part of defendant to sell them for the plaintiff. The question involved is one well established upon authority, and one upon which this court has several times passed.

The contention of defendant is that such a verbal agreement, although at variance with the original contract between these parties, might be shown to have been made and acted upon by both parties, and the testimony on behalf of defendant tended to show such fact. This new agreement was denied absolutely by Mr. Tucker, plaintiff’s president.

As already stated, we are considering this case in the most favorable light for defendant, and, taking this testimony on its part as true, the question should have been submitted to the jury. 9 Cyc. p. 597, and cases cited; Cook v. Darling, supra, citing all the earlier decisions of this court.

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

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


text:
    MEAD v. MICHIGAN CENTRAL RAILROAD CO.
    1. Eminent Domain — Railroads — Streets — Separation of Grades — Necessity—Statutes.
    By the amendment of 1909, Act No. 268, the legislature has changed the provisions of law for separation of grades so as to eliminate the requirement that the necessity be determined and damages assessed before performing the work of separating the grades of street and railroads; and, accordingly, if the petition for the determination of questions of damages and necessity is filed within a year after the completion of the work, the proceedings are sufficient. An action will not lie for damages in consequence of separating such grades, in behalf of a property owner, whose premises are injuriously affected thereby, while proceedings in eminent domain are pending to determine the amount of damage and the necessity of the taking.
    2. Constitutional Law — Due Process of Law.
    Act No. 268, Pub. Acts 1909, is constitutional: it is not objectionable on the ground that persons are deprived of property without due process of law. The damages suffered by reason of a separation of grades being consequential, not direct, rights of abutting property owners are sufficiently protected by the amendment.
    3. Eminent Domain — Municipal Corporations.
    It is not essential, under the amended statjxte, that the common council determine the necessity in advance of the actual work; or that the resolution be filed with the corporation counsel as a prerequisite to commencing such separation; or that it be recorded with the register of deeds, if the property owners have actual notice of the proceedings.
    Error to Wayne; Van Zile, J.
    Submitted June 18, 1912.
    (Docket No. 17.)
    Decided April 8, 1913.
    Case by John Mead and George Mead, copartners as Mead & Company, against the Michigan Central Railroad Company for damages to property resulting from a grade separation. Judgment for plaintiffs, and defendant brings error.
    Reversed; new trial denied.

      Richard I. Lawson and Walter Barlow, for appellant.
    Lucking, Emmons & Helfman, for appellees.
   McAlvay, J.

Plaintiffs brought suit in the circuit court for Wayne county against defendant in an action on the case in trespass for damages claimed to have been suffered through wrongfully digging and excavating in the street along the property owned by plaintiffs, thereby lowering the grade of said street from three to eight feet, against the protest of plaintiffs. To the declaration filed in the case defendant entered a plea of the general issue with notice that by an agreement with the city of Detroit for the separation of grades at Twentieth street and its railroad, near where plaintiff’s property was located, it conducted whatever operations were had in that locality, made the excavations and lowered the grade of Twentieth street and consequently the grade of Newark street, which runs parallel with defendant’s railroad, so as to adapt it to the grade necessarily established for Twentieth street in separating the grades; and, further, that under the law of this State for the separation of grades, being sections 4=229 to 4=261, 2 Comp. Laws, as amended by Act No. 268, Pub. Acts 1909 (3 How. Stat. [2d Ed.] §§ 6826-6858), adequate provision is made for compensation to plaintiffs, to be awarded to them in proper form and in proper proceedings, which had been commenced by the city of Detroit by filing its petition in the recorder’s court of said city for that purpose, and that in said petition plaintiffs were named as parties thereto, and process from said recorder’s court was duly served upon thorn, which suit was then awaiting its turn for trial in said court, and that the instant suit could not be continued to judgment for the reason that the court was without jurisdiction. The result of the trial was a verdict of $3,500 in favor of plaintiffs, the case having been submitted by the court upon the proposition that the plaintiffs were entitled to recover, and the only question for the jury to determine was the amount of such recovery. Upon this verdict judgment was entered. Defendant brings the case to this court for review upon writ of error.

Upon the material facts in this case there is no dispute between these parties. The only question to be determined is one of law, as appears from the following extract from the brief of plaintiffs:

“It is conceded by counsel for both parties hereto that the Michigan Central Railroad had no right to change the grade in Newark street in front of plaintiffs’ property except under the provisions of the statute. The entire issue therefore rests upon this court’s interpretation of that act.”

Under the statute in question, entitled “The separation of highway and railroad grades,” the following proceedings were taken by the city of Detroit: On October 2, 1906, the common council of the city of Detroit authorized and directed the mayor and chairman of its committee on grade separation to execute, as provided by this statute, on behalf of the city, an agreement with the Michigan Central Railroad Company for the separation of grades in a certain district, including the grade at the intersection of Twentieth street and its railroad track. This agreement was duly executed by the parties and the execution ratified and confirmed by the common council. The ordinance provided for by the terms of this contract relative to the separation of grades at Twentieth street was adopted October 5, 1909. The work of separating this grade was begun by defendant October 5, 1909, and was completed before May 16, 1911, as far as Newark street is concerned. On May 16, 1911, the common council adopted a resolution declaring it necessary for the public benefit to make this separation of grades at Twentieth street, in accordance with the plans prescribed by said agreement with defendant, which resolution was duly filed with the corporation counsel. Later, the corporation counsel for the city of Detroit filed its petition, June 15, 1911, in the recorder’s court as the commencement of judicial proceedings asking for a jury to determine the public necessity of said improvement and the just compensation to be made to parties interested, which proceedings were pending at the time the instant suit was instituted.

Several errors are assigned by defendant, but the issue before this court is so narrow that it will be necessary to consider only those errors which challenge the regularity of the proceedings taken under the statute to make this grade separation.

On the part of defendant, it is claimed that the foregoing proceedings under the law for the separation of highway and railroad grades, above enumerated, were a substantial compliance with its requirements, and conferred jurisdiction upon the recorder’s court of the city of Detroit to hear and determine the public necessity for such improvement and all questions of damages arising in any way from the change of grades caused by such separation, and by reason thereof the circuit court for the county of Wayne had no jurisdiction.

On the part of plaintiffs, it is contended that these proceedings by defendant were not a substantial compliance with the requirements of the act in question and the amendments thereof, and therefore defendant was a trespasser ab initio, liable to respond to plaintiffs in this action.

For convenience in following the changes made in the statute under discussion by the amendments of 1909, and a better understanding of their importance in the determination of this case, the original sections involved, as found in the Compiled Laws of 1897, are added as a footnote to this opinion, with italics or notations where the changes occur.

The grade separation law was amended by Act No. 268 of the Public Acts of 1909. The sections so amended, material to this case, which require consideration, are: Compiler’s section (4230) Sec. 2 was amended by eliminating the first proviso from said section which we have italicized. Compiler’s section (4239) Sec. 11 was amended in several respects, as follows: By striking out the italicized word “forthwith” in the second line, changing the clause to read “ shall prepare and file * * * a petition”; by inserting in the line where we have noted “ amendment ” the words “ or of two or more streets or highways”; by inserting before the italicized word “ changed ” the words “or has been,”changing the wording to “of which the grade is to be or has been changed”; by inserting after the next italicized word “ changed ” the words “or has been,” making the same change as last above; by striking out the italicized words in the last paragraph of said section :and inserting the words, “ determine the public necessity of said improvement in accordance with said plan”; and, lastly, by adding at the end of said section 11 the following paragraph:

“The filing of said petition, if done within one year after the making of such separation of grades, whether in any railroad or in any street or highway, and all other changes necessary to carry out the plan set forth in the resolution or certificate provided for in section three, shall be deemed a compliance with the provisions of this act requiring the filing of said petition for any work done or to be done in connection with any separation of grades as herein provided.”

The plaintiffs contend that the proceedings under the grade separation act were void: (a) Because the common council did not in advance of the work pass a resolution declaring it necessary for the public benefit to make a separation of grades in accordance with certain attached plans; (b) because such resolution was not filed seasonably with the corporation counsel; (c) because such resolution was not recorded seasonably in the office of the register of deeds.

This court has held that prior to the enactment of the amendment of 1909 it was the legislative intent, as expressed by the provisions of sections 3 and 11 of this statute, that the determination of the public necessity and the assessment of damages should be made before any work was done upon the grade separation. City of Detroit v. Railway, 156 Mich. 106, at page 117 (120 N. W. 600). By striking out the first proviso from section 2 the amendment of 1909 eliminated the following provision, “ Provided, that no such agreement shall be enforceable until the damages referred to in section three of this act are fixed by judicial proceedings or by compromise under said section three,” and adding to section 11 the paragraph quoted earlier in this opinion, which provides that the filing of the petition as commencement of judicial proceedings within one year after the completion of the work of separating grades shall be deemed a compliance with the provisions of this act, the legislature thereby made a radical change in the original provisions of the statute by postponing the institution of judicial proceedings for the determination of the public necessity for making the improvement and the assessment of damages by a jury. The other amendments to this act are of minor importance, except as they were made in section 11 for the purpose of making it conform with the two amendments which have just been stated, and which were passed immediately following the decision of this court in City of Detroit v. Railway, supra, apparently because of the construction given the statute in the opinion. This statute is a remedial one, devised for the purpose of permitting municipalities to take proceedings to separate grades between highways and railroads and to provide for a determination by judicial proceedings of the public necessity for the improvement, and damages caused thereby to the class of persons fixed by its terms as entitled to compensation.

Both before and since these amendments were enacted the statute has been before this court for construction, to determine who would be entitled to damages, and the rules to be applied as to the measure of damages suffered. City of Detroit v. Railway, supra, and cases cited. Later it was contended that proceedings under it were, in fact, the exercise of the right of eminent domain, and that its provisions were not in consonance with the constitutional provisions relative to the exercise of such power. It has been decided by this court and in other jurisdictions that the proceedings under this and similar statutes did not amount to a “taking ” of the property of owners abutting upon the improvement or of those injuriously affected thereby. City of Detroit v. Railway, 163 Mich. 339 (138 N. W. 350), and cases cited. By reason of the previous decisions of this court, above cited, supported by authorities collated therein, the constitutionality of this law is no longer open to question. Therefore, in discussing plaintiffs’ contention in the instant case, it will be necessary to determine only whether its plain requirements necessary to give jurisdiction to the proper court to take proceedings under it to determine the public necessity and the damages caused by reason of the separation of grades have been followed. A remedial statute is entitled to a construction favorable to upholding the remedy granted, when it may be found fairly within its terms.

The provision relied upon by plaintiffs, which requires a resolution of necessity to be passed by the authorities of the municipality, is contained in section 3, and reads:

“Such council * * * may pass a resolution * * * declaring it necessary for the public benefit to make such separation of grades in accordance with the plan prescribed by said agreement, which resolution * * * shall have attached thereto, as a part thereof, a copy of the said agreement.”

This is the section which remains as originally enacted. Considered in connection with the statute as it read before any amendments were enacted, it was in harmony with the clearly expressed legislative intent that judicial proceedings should be had and the public necessity and damages determined before any work to carry out the plan of separation of grades could be commenced. It provided that the resolution, plans, etc., should be filed with the city attorney or other officer, who was required to forthwith prepare and file the city’s petition, and institute judicial proceedings. It was within the legislative intent, explicitly expressed in the statute, that this resolution of necessity and commencément of proceedings to determine the necessity of making a change of grades and the fixing of damages were all prerequisites to any proceedings taken to prosecute the work under the agreement provided for by the statute. This is not only the intimation of this court in the case above cited, but is expressly so held. City of Detroit v. Railway, supra [156 Mich. 106 (120 N. W. 600)]. The radical change made in this statute by these amendments, providing that the work might be completed, and extending the time for filing the petition for one year thereafter, removed all necessity for such expedition. In our opinion the provision that the resolution of necessity should be filed with the proper officer, with a copy of the agreement attached thereto, continues to be a prerequisite to the institution of judicial proceedings; but it must be construed in connection with all of the provisions of the statute, as amended.

Plaintiffs’ strongest argument in favor of their construction is that because section 3, which contains the provision relative to the resolution of necessity, was not amended, and the act as amended requiros the corporation counsel to attach to his petition a certified copy of this resolution, and that the petition should recite that it is filed in accordance with the plan set forth in said resolution, it becomes apparent that the legislative intent, by these repeated references to section 3, was to leave that section intact, and that only the filing of the petition and the proceedings subsequent thereto could be delayed for one year after the work was completed.

We do not agree with this contention for the reason that it is apparent that the immediate passage of the resolution of necessity is no longer required, and the provision relative to this resolution was not amended for the reason that it did not require amendment to adapt it to the changes in the statute.

These are not proceedings against abutting owners, strictly speaking, but the legislature has given power and authority to the municipality under the statute to separate highway and railroad grades, and such proceedings are not the exercise of the right of eminent domain; the State having already complete control over its public highways. City of Detroit v. Railway, 163 Mich., at page 234 et seq. (128 N. W. 250), and cases cited; Harper v. City of Detroit, 110 Mich. 427 (68 N. W. 265). The provision made by the legislature for judicial proceedings to determine the public necessity for making the improvement and appraising any damages caused by said change of grade accruing to abutting owners' and others in the class designated furnishes the machinery for the exercise of the powers given, an adequate remedy, and a forum in which to determine the rights of all parties injured.

Plaintiffs cite decisions of this court in support of their contention that the resolution should have been passed before any work was done upon the separation of these grades. We do not think that these authorities are in point in the instant case for the reason that in those cases, in construing charters and statutes where the exercise of the right of eminent domain or the levy of taxes was involved, certain action by the authorities is held to be necessary as a condition precedent, while in the instant case the resolution of necessity was not the initial proceeding, as it could not be passed until after the agreement had been entered into with the railroad, providing for the separation of grades, and the part of the expenses thereof to be sustained by each had been agreed upon, and no exercise of the right of eminent domain is involved, nor the question of taking property without due process of law.

The damages awarded in this case are consequential, for which the legislature has provided a remedy. City of Detroit v. Railway, supra [163 Mich. 229 (128 N. W. 250) ]. And further, this resolution is not a determination by the common council of the public necessity for the improvement. It is a declaration by the common council which is provided for by statute to be served upon the law officer of the municipality as a preliminary to the institution of judicial proceedings to have such necessity determined by a jury, and the requirement of the statute in that regard will be seasonably complied with if such resolution is passed and filed with the proper officer in time for the filing of the petition under the statute as amended.

It will not be necessary to discuss the remaining contention of plaintiffs that the resolution of necessity was not seasonably recorded. This record shows that these plaintiffs had notice of these judicial proceedings instituted by the city of Detroit under the statute, by service of process upon them therein, before this suit was begun. It follows that they cannot raise that question.

Our conclusion is that the proceedings on the part of the city in the suit commenced in the recorder’s court of the city of Detroit by petition, asking that a jury be summoned and impaneled to ascertain and determine the public necessity of said improvement, and to ascertain and determine the just compensation to be paid to the persons entitled thereto for damages caused by such separation of grades, were a substantial compliance with the requirements of said act and conferred upon said court jurisdiction to hear and determine the same; that the trial court erred in holding that the proceedings taken by the common council of the city of Detroit in the matter of the separation of this grade were irregular and void, and in overruling the motion of defendant to direct a verdict in its favor, for the reason that such court had no jurisdiction of the case.

The judgment of the circuit court is reversed, and no new trial will be granted. Proceedings are pending before a court of competent jurisdiction, in a forum and by virtue of a remedy provided by the statute, and plaintiffs may have all claims, if any they have, for damages caused by such grade separation adjudicated and determined according to the provisions of the statute.

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

       Compiled Laws 1897.
      (4230) Sec. 2. Such representative board or officer, as the case may be, may enter into an agreement with any railroad company or companies crossing any such street or highway providing for the separation of the grades at such crossing by carrying said street or highway either over or under said railroad at the point of intersection. Said agreement shall have attached thereto as a part thereof, an accurate profile and map of those portions of the street or highway and railroad or railroads of which the grade is to be changed according to the said agreement and a plan showing the details of construction necessary for the separation of the grades at such crossing. Said agreement shall also provide for paying the cost of making and maintaining such separation of the grades and for the division of the total expense thereof between the parties to such agreement and shall fix the amount of damages, if any, to be paid to said railroad company or companies as compensation for any injury to it or them resultingfrom said changes of grade, exclusive of the expense of construction and maintenance above provided for: Provided, That no such agreement shall be enforceable until the damages referred to in section 3 of this aet are fixed by judicial proceedings, or by compromise under said section three; Provided fur

        ther, that no agreement made by a board of county supervisors, board of county commissioners of highways, or township highway commissioner which necessitates the borrowing or raising by tax of a greater sum by the county or township than such board or (commissioner) commissioners is authorized to raise, shall be enforceable until the authority to raise such excess has been duly given; nor shall any agreement made by a township commissioner of highways be valid until the same is approved by the township board.
      (4281) Sec. 8. When the common council of any city shall have entered into any such agreement, it shall be authorized to settle or compromise with any person having an interest in any lands abutting on that portion of the street or highway within the city of which the grade is to be changed according to the said agreement, and which may be damaged by the proposed change of grade, and with any street railroad company operating or interested in any line of street railway upon such part of such street or highway and which may be damaged thereby. When a common council, being a party to such agreement, cannot effect such settlement or compromise, or shall deem it inexpedient to attempt it, or whenever the representative board or officer of any county or township is a party to such agreement, such common council or representative board may pass a resolution, or such representative officer may make a certificate, declaring it necessary for the public benefit to make such separation of grades in accordance with the plan prescribed by said agreement, which resolution or certificate shall have attached thereto as a part thereof, a copy of the said agreement. Upon the passage of such resolution or the making of such certificate, it shall be filed in the office of the? city attorney of the city where the crossing is within the city, or upon the line between any city or county, or part of a county outside of such city, and in the office of the prosecuting attorney of the county where the crossing is outside of the limits of any city and within such county. Where the crossing is on the line between two or more counties, the resolution so passed shall be transmitted to the railroad and street crossing board hereinafter provided for, who shall file the same in the office of the prosecuting attorney of either of the counties interested as the said crossing board shall determine. And said resolution shall also be recorded in the office of the register of deeds of the county or counties in which such crossing is situate within twenty days after its adoption. The question of the necessity of making the proposed change or changes.of grade, shall then be passed upon, and the damages, if any, shall be appraised in judicial proceedings in the manner hereinafter provided. But in any proceedings instituted on any such resolution said agreement shall be conclusive evidence of the, amount of compensation to be awarded to said railroad company or companies, and no benefits shall be assessed against any railroad company that is a party to such agreement.
      (4239) Seo. 11. Said prosecuting attorney or city attorney, as the case may be, shall forthwith prepare and file in the name of the county, township, or city in the court having jurisdiction of the proceedings, a petition signed by him in his official character, and duly verified by him, to which petition a certified copy of the resolution, or certificate of the representative board or officer referred to in section three, or of the report of said railroad and street crossing board, as the case may be, shall be annexed, which certified copy shall be prima facie evidence of the action taken by said board or officer and of the proceedings prior thereto and of the regularity thereof. The petition shall state that it is made and filed as commencement of judicial proceedings by the county, township, or city, as the case may be, in pursuance of this act for the purpose of separating the grades of the street or highway (amendment) and railroad or railroads at their intersection, designated by any proper descriptive words, in accordance with the plan set forth in said resolution, certificate or report, as the case may be, referring thereto, and for making just compensation to all persons sustaining damage thereby, shall give a description of the property abutting on that part of said street or highway of which the grade is to be changed, also a statement of the manner in which said property and any street railroad line on said street or highway will be affected by such change, and to what extent, and shall state that said representative board or officer or said railroad and street crossing board, as the case may be, has declared it necessary for the public benefit to make said separation of grades in accordance with the plan set forth in said resolution or certificate or in said report, as the case may be, shall contain the names of the railroad companies and street railroad companies to be affected by the proposed change, and of all persons interested as mortgagees, lessees or otherwise in the property of such companies, of the owners and others interested in the property, abutting on that portion of said street or highway of which the grade is to be changed so far as the same can be ascertained, including those in possession of the premises, and in cases where the crossing is of a class embraced in clause (e) or (f) of section one of this act, the name of the city, or of the oounty or counties, township or townships interested, other than the county or township in whose name the proceedings are taken, as the case may be. If the name of any person interested in any of the abutting property is unknown, the petition shall state the fact and the interest owned by such person or persons. All persons, corporations and bodies politic and corporate, so named in said petition shall be made parties respondent in said petition. Said petition shall ask that a jury be summoned and empaneled to ascertain and determine whether it is necessary for the public benefit to make such separation of grades in accordance with said proposed plan and to ascertain and determine the just compensation to be made to street railroad companies, if any, and to the persons interested in said abutting property. And to assess the compensation, cost and expense by them awarded against the city and county or counties, township or townships, company or companies, as the case may be, that are parties to the proceedings, as provided by law. Upon receiving such petition, it shall be the duty of the clerk of said court to issue a summons against the respondents named in said petition, stating briefly the object of said petition and commanding them in the name of the people of the State of Michigan to appear before said court at a time and place to be named in said summons not less than twenty nor more than forty days from the date of the same, and show cause, if any they have, why the prayer of skid petition should not be granted (amendment: added paragraph).


text:
    GRAND RAPIDS & INDIANA RAILROAD CO. v. GRAND RAPIDS, KALKASKA & SOUTHEASTERN RAILROAD CO.
    Accounting! — Specific Performance — Equity—Railroads.
    Complainant’s bill in equity was not demurrable on the ground that the remedy at law was adequate, where it averred that one of the defendants, in order to secure the right to cross complainant’s tracks, agreed, by parol, that it would maintain and pay all expenses of the protection and of the crossing so long as the same should remain, that the half interlocker installed under the arrangement, having become inadequate, was ordered replaced by a full interlocker by action of the railroad commissioner, that after notifying defendant and its successor that complainant relied on the said oral arrangement, and was ready to comply with the order, and that complainant thereupon proceeded to install the system as required by the commissioner; the bill also praying for an accounting, and a decree fixing times of payment and determining the rights of the parties. Bird and Ostrander, JJ.,, dissenting.
    Appeal from Kent; Perkins, J.
    Submitted June 19,, 1912.
    (Docket No. 86.)
    Decided April 8, 1913.
    Bill by the Grand Rapids & Indiana Railroad Company against the Grand Rapids, Kalkaska & Southeastern Railroad Company and Pere Marquette Railroad Company for an accounting and other relief. From an order overruling a demurrer to complainant’s bill, defendants appeal.
    Affirmed.

      James H. Campbell, for complainant.

      McPherson, Bills & Streeter, for defendants.
   McAlvay, J.

This is an appeal by defendants from the judgment of the circuit court for the county of Kent, in chancery, overruling their demurrer to the bill of complaint.

The sole ground of the demurrer is that the complainant has a full, adequate, and complete remedy at law. Defendants contend that the principal purpose for which this suit was instituted is to collect from the defendants money claimed to be due to the complainant for the construction and maintenance of the interlocking switch at Kalkaska. To determine this, an analysis of the bill of complaint is necessary. This pleading avers that complainant owned a railroad right of way extending from Ft. Wayne, Ind., to Mackinaw City. Mich., upon which it had operated its road for a term of years before the defendant the Kalkaska Company, a Michigan corporation, was organized; that this defendant, in order to construct its proposed road according to the map required by law filed with the railroad crossing board, would be required to make a crossing over complainant’s right of way and tracks in the village of Kalkaska in Kalkaska county; that, before any action was taken by the crossing board, this defendant applied to complainant for permission to make such crossing over its right of way and tracks, and in consideration thereof, so long as this defendant’s railroad was maintained and operated, it would pay the entire expense of making the crossing and all future protection thereof, to which offer complainant consented and a parol agreement was entered into to that effect, which need not be here set forth more at length.

The State crossing board approved the map of this defendant October 23, 1897, and ordered a crossing at grade, requiring that this defendant, at its own expense, furnish and maintain suitable crossing frogs and to erect a half interlocking switch, with derailing rails, on its tracks; that under this verbal agreement, without condemnation or other right or license, this defendant, in January, 1898, constructed its railroad across the right of way and tracks of complainant, over which it has since continued to be maintained and operated, and also in accordance with the order of the crossing board constructed and maintained at its own expense a half interlocker until August, 1908; that, during all the time after this defendant’s road was constructed, the defendant Pere Marquette Railroad Company, or its predecessors, was the lessee of defendant the Kalkaska Company’s road, and has operated the same up to the present time; that on June 3, 1907, an order was made by the commissioner of railroads (afterwards amended July 31, 1907) because the half interlocker switch provided for had become unsatisfactory and inadequate, requiring a full interlocker and derailing switch and signal system to be constructed and maintained at this crossing at Kalkaska, by complainant and the Kalkaska Company, the expense thereof to be borne one-half by each, its grantees, lessees, and operators, which order further provided as follows: Nothing in this order shall be construed so as tp conflict or interfere with any private contract or agreement heretofore made or now existing, or which may hereafter be entered into between the companies in interest regarding the cost and expense of construction, maintenance and operation of said appliance at the said crossing ” — that after notifying both of these defendants that it was ready to proceed to carry out said last order, and that it relied upon the verbal agreement made with defendant the Kalkaska Company already stated, and that it waived none of its rights thereunder, complainant proceeded and constructed such full interlocking derailing system as required at its own expense, and has continued so to maintain the same up to the present time. Complainant avers that the defendants, by such agreement, are obligated to pay it according to the terms thereof for all cost and expense of the construction, installation, and maintenance thereof, and asks this court to take jurisdiction of this controversy and determine once for all its rights against defendants jointly or severally and the rights of defendants as between themselves, and to take an accounting to ascertain the amount due complainant from them or either of them, and decree payment thereof, and thereby prevent a multiplicity of suits respecting the matter set forth.

Upon these allegations contained in the bill, complainant prays for a decree determining that the verbal contract between complainant and defendant the Kalkaska Company was made upon a valuable and sufficient consideration, and that it is in full force and binding upon said defendant, its successors, assigns, lessees, and operators, so long as this crossing upon and over its right of way and tracks shall be maintained. The bill prays for an accounting that the defendants pay the amount due from them, and each of them, in the premises according to the terms of said verbal agreement. There is also a prayer that, independent of any contract obligation, the defendant the Kalkaska Company should, as a reasonable and equitable compensation to complainant for the use of its right of way by said defendants for the construction and maintenance of its road thereon, pay the full expense of protection at said crossing by whatever method was required by proper authority or agreed upon between the parties, including the cost of purchase, installation, maintenance, and operation; and it also contained a paragraph in the prayer as to the time when such payments should be decreed to be made.

From this résumé of the bill of complaint it appears that primarily its purpose is to have the verbal agreement relied upon established by a decree, and its binding force upon the defendants and all others who may become interested therein, in whatever capacity, determined and decreed; that under such contract an accounting be had with the defendants to determine their status and their liability.

The sole ground of demurrer is that the complainant has a full, adequate, and complete remedy at law. A demurrer in equity operates as an admission that all material averments in a bill, which are properly pleaded, are true. Applying this rule to the instant case, it is apparent that complainant by its bill has stated a cause of action for which a court of law would not furnish a full, adequate, and complete remedy, adapted to the particular exigencies thereof, and therefore it is cognizable in a court of equity. Such court, having assumed jurisdiction, will retain it to determine all matters in controversy and the rights and liabilities of all the parties and make a final disposition of the case.

The order of the circuit court overruling the demurrer is affirmed, with costs.

Steere, C. J., and Moore, Brooke, and Stone, JJ., concurred with McAlvay, J.

Bird, J. I am of the opinion that there is an adequate remedy at law.

Ostrander, J., concurred with Bird, J.