text:
    DAVIS v. MICHIGAN CENTRAL RAILROAD CO.
    1. Statutes — Construction—Retrospective Effect.
    Statutes will be given a prospective operation only, unless the legislative intent clearly appears, either by express terms or by necessary implication, to give them a retrospective effect."
    2. Same — Death—Damages—Application.
    Act No. 89, Pub. Acts 1905, changing the rule of damages in actions for wrongful death ‘ ‘ hereafter prosecuted ” does not apply to cases pending when it took effect.
    3. Trial —Instructions —General Charge — Necessity of ReQUESTS.
    Where the requests presented by counsel cover all the important phases of the case, there is no prejudicial error in the court limiting the charge to such of the requests as it is proper to give; if counsel desire further instructions upon any particular branch of the case they should so inform the court.
    4. Same — Reading Requests — Prejudice.
    A slight difference in the verbiage used by the court in submitting the requests of the parties cannot be complained of where the attention of the court was not called to the matter before the jury retired.
    5. Same — Repetition of Request.
    .The repetition of a request to charge containing a correct statement of the law is not prejudicial.
    6. Same — Argumentative Instructions.
    A charge presenting the theories of the parties and closing with a statement of facts which are undisputed, and which must necessarily occur to every juror, the court in no way intimating his opinion as to which theory he prefers, is not argumentative.
    7. Damages — Personal Injuries Resulting in Death.
    In an action for damages for personal injuries resulting in the death of plaintiff’s intestate, brought under section 10117, 3 Gomp. Laws, the damages recoverable include the present worth of the intestate’s earnings during his probable lifetime had he not heen injured, undiminished by the expense of his living during that time.

      8. Same — Mortality Tables.
    In an action for damages for personal injuries resulting in death, where deceased’s father testifies that he enjoyed excellent health, which testimony is undisputed, the mortality tables are controlling on the present worth of deceased’s earning capacity.
    Error to Bay; Collins, J.
    Submitted October 19, 1906.
    (Docket No. 106.)
    Decided March 12, 1907.
    Case by Noble Davis, administrator of the estate of Harry E. Davis, deceased, against the Michigan Central Railroad Company for the negligent killing of plaintiff’s intestate. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Cooley & Hewett (Henry Bussell and O. E. Butter-field., of counsel), for appellant.

      De Vere Hall, for appellee.
   Blair, J.

This case was before the court at a previous term, and is reported in 142 Mich. 382, where a sufficient statement of the facts will be found. On the second trial, plaintiff secured a verdict and judgment, to review which defendant prosecutes the writ of error in this case.

Defendant’s counsel argue for reversal, upon the grounds that:

(1) Plaintiff was guilty of contributory negligence as a matter of law.

(2) The court erred in holding that Act No. 89 of the Public Acts of 1905 did not apply to the case.

(3) The court did not give to the jury an independent charge, explaining the nature of the case and indicating the points at issue, but substantially limited his charge to the giving of requests to charge.

(4) The charge was more favorable to plaintiff than defendant.

(5) The court erred in giving, without modification, plaintiff’s twelfth request to charge.

We do not think the proofs were so materially different at the second trial as to require a reconsideration of this question.

We are all of the opinion that Act No. 89 of the Public Acts of 1905 was not intended to apply to pend-.. ing actions. Angell v. West Bay City, 117 Mich. 685. The rule of construction is well settled that statutes will be given a prospective operation only, unless the legislative intent clearly appears, either by express terms or by necessary implication, to give them a retrospective effect. The statute in question, in terms, applies to “ actions for negligent injury to persons hereafter prosecuted,” etc. As held, by the supreme court of Massachusetts, the term “ ‘ prosecution ’ includes the institution of a suit, and is not confined to the mere pursuit of a remedy after proceedings have been instituted.” Inhabitants of Clinton v. Heagney, 175 Mass. 134. See, also, Hirshbach v. Ketchum, 5 App. Div. (N. Y.) 324; Merchants’ Mut. Ins. Co. v. Lacroix, 35 Tex. 249. It does no violence to the language used in the act under consideration to construe the word “prosecuted” as meaning the complete prosecution, including the institution of the suit, and we think this was the legislative intent.

At the beginning of his charge, the trial judge said:

“ In this important case, the counsel for the respective parties have prepared and handed to me requests to charge which cover every phase of the case, and, under the law, where counsel present proper requests, they have a right to have them given in the langauge in which they are requested, and for that reason I shall not go outside of those requests, except, perhaps, at the conclusion or in some parts of them.”

An examination of the charge discloses, as stated by the circuit judge, that the requests given did cover the important phases of the case, and, if defendant’s counsel desired further instructions upon any particular branch thereof, they should have so informed the court. Alderton v. Williams, 139 Mich. 296. While the practice of confining the charge to the giving of requests il somewhat hazardous, and not to be commended, we do not think that, of itself, it should be held to constitute reversible error.

Defendant’s contention upon this point is as follows:

“ The charge was more favorable to the plaintiff than to the defendant. When about to read the requests proffered by the plaintiff, the court said:
‘“I first give the plaintiff’s requests, which are to be treated by you in every respect the same as if prepared and furnished by the court.’
“The tendency of that language was to invite undue attention to these requests, and to unfairly enlarge and strengthen their effect upon the jury, because the court did not make the same or a like statement preceding defendant’s requests, but merely said:
Upon the subject of liability, I give you the following requests, prepared and submitted by the defendant.’
‘ ‘ The result of this was to disturb the even balance required by the scales of justice.
“ The same tendency is manifest when the circuit judge repeated, without explanation, plaintiff’s eleventh request; giving this request a second time called undue attention to the point involved in it.
“ It is further contended that the charge was argumentative, and therefore erroneous. One instance of this appears from plaintiff’s eighth request, which the court gave in the exact language in which it was proffered, although it is plainly argumentative in form. By giving this request in this form, the court expressed his view of the degree of weight which should be given that portion of the testimony, and it was improper under the rule in Hart Manfg. Co. v. Car Co., 65 Mich. 570.”

■ If defendant’s counsel thought that the jury were likely to be misled by the difference in verbiage in the submission of the requests of the respective parties, they should have called the court’s attention to the matter before the jury retired. Moreover, we must presume that the jury was composed of men of at least ordinary intelligence, and must therefore have understood from the opening statement of the circuit judge that all of the requests read to them were submitted to them as statements of the rules of law governing the case. The plaintiff’s eleventh request, given by the court, was a correct statement of the law as laid down by this court. Why the court repeated it, the record does not disclose; but, even if such repetition was for the purpose of emphasizing the rule of law given, and attracting the attention of the jury to its importance, it is not apparent how this could have prejudiced the defendant’s case. The court may properly direct the attention of the jury to the legal principles which he deems to be of special importance in a case, so long as no opinion is expressed as to the facts to which the principles are to be applied. We discover no attempt on the part of the court, in this instance or throughout the charge, to indicate to the jury his opinion upon the facts or to favor either party; but, on the contrary, we think the charge was impartial, and that the defendant had a fair trial of the merits of the case.

Plaintiff’s eighth request to charge, as given, was as follows:

‘ ‘ The plaintiff claims that the car was standing within 6 or 8 feet of the young man as he stood upon the crossing, with his back toward it, and that while in this position the engine and a second car came in behind and moved the first car unexpectedly up onto him, causing the injury. It is the claim of the operatives of defendant that the first car was standing 60 or 80 feet east of such sidewalk, and that before setting it in motion each of the switchmen looked, and saw no one upon the sidewalk; nor did either of them see the young man come onto the sidewalk, although a lookout was maintained. It is undisputed that the young man was found under the second car 40 feet west of the sidewalk, and it is apparent that he must have come there in some way. It is for you to say which of these two conflicting theories is the moré probable.”

The only portion of the request which can be complained of as argumentative is that contained in the last two sentences. The statements of fact were undisputed, as stated by the court, and were such as must necessarily have occurred to every juror, and the court in no way intimated any opinion as to which theory he preferred. The objection is so devoid of merit as to be almost frivolous.

Plaintiff’s twelfth request to charge, as given, was as follows:

“ If you find for plaintiff, you will render a verdict for all damages sustained in consequence of the injury to and death of the young man. These will comprise a reasonable amount for any pain and suffering he endured from the time of the injury to his death, and, in addition, a reasonable amount for all sums that he would probably have earned during the years that he would probably have lived, but for the injury. Your verdict will be the sum of these two. You are not concerned with the amount of earnings that the young man would probably have saved during his probable life, but only with the probable earnings themselves. The table of expectancy put in evidence shows that, if of good health, he might have lived 40 years longer than he did. Estimate the present worth of his probable earnings during the time that he would probably have lived at 5 per cent, simple interest for each year, and the sum of these for the several years that he would probably have lived will be the amount of your verdict for loss of earnings.”

Defendant’s counsel contend:

“ This was clearly erroneous. The entire probable earnings are not basis for damages. Jones v. McMillan, 129 Mich. 86, 90, 91. Furthermore, it was improper for the court to leave the question in such condition that the mortality table was conclusive as to the expectancy of deceased. It is not conclusive. Damm v. Damm, 109 Mich. 619, 622.”

The measure of damages given was correct. Olivier v. Railway Co., 138 Mich. 242; Miller v. Sadowsky, 138 Mich. 502. Jones v. McMillan relates to the death act, and does not apply. The instruction did not make the mortality tables conclusive. In form it was correct, and, if defendant’s counsel desired further instructions as to the bearing which the health of deceased might have upon his expectancy of life, they should have so informed the court. Furthermore, the father of deceased testified that:

“His health prior to his injury was first class.- He never was sick.”

There was nothing in the case to impair the effect of this testimony, and, as we have heretofore held, in such cases the tables would be controlling. Jones v. McMillan, supra.

We find no other points requiring consideration, and the judgment is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J. Ostrander, J.

license: Public Domain

text:
    KNACK v. WAYNE CIRCUIT JUDGE.
    1. Judgment — Rendition—Findings of Law.
    Section 10260, 3 Comp. Laws, authorizes the rendition of a judgment on findings of law filed by a circuit judge, as well as on findings of fact in cases tried without a jury, conformably to the practice of rendering judgment on the matter found by the verdict, authorized by section 10297, 3 Comp. Laws.
    2. Same — Justices of the Peace — Certiorari — Decision — Effect.
    Where, on certiorari to review a justice’s judgment, the circuit judge takes the case un der advisement, and later files an opinion deciding in detail the points raised by the plaintiff in certiorari against his contentions, and concluding with the statement that the writ of certiorari may be dismissed, the paper filed is equivalent to a determination of the cause against the plaintiff and the direction of a judgment in favor of the defendant in certiorari.

      3. Same — Form op Judgment.
    Section 948, 1 Comp. Laws, contemplates that on certiorari to a justice of the peace the circuit court shall enter a new judgment on which execution may issue as on the original cause of action, and a judgment dismissing the writ is improper, except perhaps in a case in which the writ does not confer jurisdiction.
    4. Same — Motion por Judgment — Judges—Expiration op Term.
    Where, after a hearing on a writ of certiorari, the circuit judge filed an opinion deciding all the points raised against the contentions of the plaintiff in certiorari, but concluding with a direction that the writ be dismissed, and the clerk did not enter judgment for defendant as prescribed by section 10260, 3 Comp. Laws, the defendant was entitled to apply to the circuit judge, or, after the expiration of his term of office, to his successor, for such judgment as the record showed him entitled to.
    6. Justices op the Peace — Certiorari—Judgment—Terms and Extent.
    Where, on certiorari to a justice of the peace to review a judgment for the plaintiff in the suit the circuit court determines the case against the contentions of the plaintiff in certiorari, defendant in certiorari is entitled to a new judgment for the aggregate of his damages, costs, and interest.
    6. Certiorari — Appeal—Bonds—Security por Costs — Liability op Sureties.
    Section 10363, 8 Comp. Laws, providing for the entry of judgment against sureties for costs, has no application to certiorari and appeal bonds.
    7. Same — Bonds—Judgment—Entry Against Sureties.
    Section 933, 1 Comp. Laws, providing for entry of judgment against the sureties on appeal bonds, applies as well to bonds on certiorari.
    Mandamus by Julius Knack to compel George S. Hosmer, circuit judge of Wayne county, to enter judgment for relator on dismissal of a writ of certiorari.
    Submitted December 18, 1906.
    (Calendar No. 22,042.)
    Writ granted March 12, 1907.

      Arthur H. Covert, for relator.

      Slomcm & Sloman, for respondent.
   Hooker, J.

This cause originated in justice’s court, where a judgment was rendered for the plaintiff. The defendant removed the cause by certiorari to the circuit court, and the same was heard before Judge Frazer, who took it under advisement. He prepared and signed an opinion deciding the points raised in detail, and concluding with the following statement:

“ I think this covers all the objections made,'and as, in my opinion, they are none of them well taken, the writ of certiorari may be dismissed.”

This writing was dated December 7, 1905, and bears the filing of the clerk of that date. Judge Frazer’s term of office ended December 31, 1905. An application was afterwards made, asking that judgment be rendered affirming the judgment of the court below, and that the plaintiff recover against the defendant and the surety upon his bond in certiorari the sum of $108.75, being the amount of his damages and costs recovered in the justice’s court, and interest thereon from the date thereof, amounting to $9.97, together with his costs and charges, etc. This application was heard and denied, whereupon an application for a mandamus to require the entry of such judgment was filed in this court, and an order to show cause was issued. The return shows the foregoing facts.

The following is a summary of the reasons given in the return for the denial of judgment:

1. Because there was no evidence in the record of a legal determination by Judge Frazer during his term of office upon the matters involved in the cause; there being no entry in the short book to show that any order or judgment was rendered by Judge Frazer during his term of office.

2. Because, in any event, the determination of Judge Frazer, if it can be called a decision or judgment, extended no further than permitting a dismissal of the writ of certiorari, while the judgment moved for differed from that rendered in the justice’s court, in the following particulars : (a) It was for a different and larger sum. (6) It was a judgment against the surety in the bond as well as the defendant, (c) It was a judgment including an amount for interest.

It has been customary for judges to hear in open court and take under advisement questions of fact and of law, and to file decisions in writing during vacation, or in term without oral announcement, with the clerks of their respective courts, and it has been a common practice for the clerks to enter judgment in the journal in accordance with such findings or determinations. 3 Comp. Laws, § 10297, provides that after verdict judgment shall he rendered upon the matter found by the verdict. In some circuits the practice has prevailed of deferring the entry until a formal motion for judgment should be made and granted in open court, but that practice has generally given way to the custom, on the part of the clerks, of entering judgment immediately, or after a limited time, within which a motion to set aside a verdict might be made.

As the reading of the journal and signature of the judge would be in the nature of approval of the judgment entered, and as it was within the power of the judge to correct or vacate such a judgment, even after signature, there is no hardship in that method of procedure. Again, where a trial of a cause upon the merits takes place before the court without a jury, the statute expressly permits the judge to take the case under advisement, and to file his findings of fact and law in vacation, and provides that the clerk shall at once enter a judgment upon the findings which are equivalent to a special verdict. See 3 Comp. Laws, §§ 10260, 10261, 10264; Delashman v. Berry, 20 Mich. 295; 1 Green’s New Practice (2d Ed.), p. 282. And we are of the opinion that questions of law only as well as of fact were intended to be included as within that practice, under the provision of section 10260; the last clause of that section increasing the time within which such filing should be made over that specified in cases of trial of questions of fact.

In this case the paper filed, while not in itself a formal judgment upon which execution might issue, was a decision and determination of each question raised by the certiorari, and it concluded with the statement that the writ might be dismissed. We have no doubt that this was equivalent to determining the cause against the plaintiff in certiorari, and directing a judgment in favor of the defendant in certiorari — i. e., the plaintiff in the original action — and that the same was a valid compliance with the statutes cited.

Had the application for entry of judgment been made to Judge Frazer during his term, he should have granted it, unless reasons justifying a modification or a vacation of his findings were made to appear, and we see no reason why the same is not true as to his successor. Had there been an appeal to the judicial discretion, it might have been proper to decline to order a judgment, vacate the order, and direct a rehearing of the case, but we do not find evidence that this is what occurred. Apparently the denial was left to rest upon the ground that there had been a hearing, but no decision, or that, if a decision was made, it did not justify the judgment asked. We have already decided that there was a valid finding. We must yet consider the question last mentioned.

The determination as to all questions of law raised is plain. It is contended, however, that the only judgment that can be entered is that the writ be dismissed because that is what the order in terms provides for. Bearing in mind that the learned circuit judge decided every point raised against the contention of the plaintiff in certiorari, what judgment was his opponent entitled to? Section 948, 1 Comp. Laws, provides:

“ The court shall proceed to give judgment in the cause as the right of the matter may appear, without regarding technical omissions, imperfections or defects in the proceedings before the justice, which did not affect the merits; and may affirm or reverse the judgment, in whole or in part, and execution shall issue thereon, as upon other judgments rendered in the circuit or district court.”

This statute apparently contemplates that the circuit court will enter a new judgment on which execution may issue, upon the original cause of action, unless it be where the writ does not confer jurisdiction to review, when perhaps a judgment of dismissal may be proper. Upon this, however, we express no opinion.

We have, then, a case where the circuit court on a valid writ heard and decided all points raised, concluding his decision with a direction for a judgment not authorized by the statute. The clerk did not enter judgment according to the practice pointed out by 3 Comp. Laws, § 10260, and there was nothing left for the defendant in certiorari to do but to ask the intervention of the court to obtain the entry of such a judgment as the decision warrants. Such an application to Judge Frazer would have been proper, and it is no less proper to address it to his successor, and either might enter such a judgment as the record upon its face clearly shows the defendant in error to be entitled to. Manifestly the successor could do no more without granting a rehearing, whether or not Judge Frazer could lawfully have done so. Under the finding the plaintiff in the action was entitled to a new judgment which should include all that was awarded him by the justice of the peace, and this should take the form of the judgment for the aggregate of the damages, costs, and interest, had he applied for that, and no more. McDermid v. Redpath, 39 Mich. 372; Ringelberg v. Peterson, 76 Mich. 113. It required a mere computation and involved no uncertainty as to amount.

It is suggested that the entry of judgment against the sureties upon a certiorari bond is not authorized by law. We will assume that, without statutory authority, the remedy against the surety would be confined to an action on the bond. It is not likely that this was overlooked by Mr. Justice Cooley in the case of McDermid v. Redpath, supra, though he may have assumed the existence of a statute which does not exist. We are unable to ascertain whether the point was discussed by counsel, as a single brief is all that remains of the record in that case. At that time sections 5462 and 6133 of the Compiled Laws of 1871, corresponding with sections 933 and 10353 of the Compiled Laws of 1897, were in force. The latter has reference to security for costs, and cannot well be applied to appeal or certiorari bonds. The former occurs in the justice’s act, under a subdivision of the chapter, with the caption, “Of Appeals.” It provides:

“ In all cases where judgment shall be rendered against the appellant, in the circuit or in the Supreme Court, the same may * * * be entered against both appellant and surety.”

Following the provisions under this caption is the subject “ Of Cértioraris,” in which the method of review by certiorari is provided, which includes the giving of a bond. Unless the provisions of section 933 can be so construed as to apply to all cases of appeal from justice’s court, whether denominated appeal or certiorari, we can find no statutory authority for entering judgment against the surety in certiorari bonds. That such has been the construction is inferable from the case cited, which was followed as late as in the case of Ringelberg v. Peterson, 76 Mich. 107. We find corroboration in the fact that this statute was cited in the case last cited (2 How. Stat. § 7029), as also was the case of Porter v. Leache, 56 Mich. 40, where the court appears to have recognized the propriety of the practice, though it was probably unnecessary to a determination of the case. It is the more significant, however, for the reason that, had the practice not been a proper one, the right to sue upon a certiorari bond would not have been open to question, and the discussion indulged in would have been superfluous.

While there is force in the suggestion that it does not appear that this particular point was clearly made in either case, we cannot say that it was not considered, in view of the express reference to it; and the fact that the validity of these judgments depended upon it, and the prevalence of the practice both before and after those decisionsj and the absence of any good reason for a distinction between appeal and certiorari cases are persuasive evidence that such has been the opinion of the court and profession, and we think that these cases should not be overruled, though, were it a new question, we should doubt whether section 933 was intended to apply to certiorari cases. Taking this view, we are of the opinion that it was the duty of the court to enter judgment against the surety, as well as the plaintiff in certiorari, unless there is such a defect in the bond on the face of the record as to preclude liability, or unless on proper application there is a showing made which should require an investigation of the surety’s liability. Nothing appears in this record upon these subjects. We have not even the bond before us, but it was proper for the defendant in error to ask the court for a judgment, and a proper question for him to decide was presented. Under the terms of the statute, it is the clear duty of the court to enter judgment against the surety, unless there is such a defect in the bond, on the face of the record, as to preclude liability, or unless, on proper application, there is a showing made which would require an investigation of the surety’s liability. See McLean v. Isbell, 44 Mich. 129; Boatz v. Berg, 51 Mich. 11.

We conclude that, upon this record, the circuit judge should be advised to grant a rehearing of the motion for judgment and to render such a judgment as the defendant in error shall be entitled to, under the views hereinbefore expressed, unless, upon application, it is made to appear, or from the record he shall be of the opinion, that justice requires that a rehearing of the cause should be ordered. No costs will be allowed to either party.

McAlvay, C. J., and Carpenter, Grant, Blair, Montgomery, and Moore, JJ., concurred with Hooker, J.

Ostrander, J.

(concurring). There appears to be no good reason why the court below should not now take up the case at the point to which it had been considered, and, treating the questions raised in the certiorari proceedings as determined against the plaintiff in certiorari, complete the record by entering such judgment as in the opinion of the court ought to be rendered. We are not called upon to say more than this.


author: Blair, J. Per Curiam.

text:
    NESTER v. SULLIVAN.
    Statute of Frauds — Partnership—Parol Contract — Dealing in Lands.
    An oral contract of partnership for the purpose of dealing in lands is void under the statute of frauds.

    ON MOTION FOR MODIFICATION OF OPINION AND DECREE.
    Appeal and Error — Determination of Cause — Dismissal Without Prejudice.
    Where the legal question presented by a bill has not before been passed upon by this court, and there is much weighty authority for the contention of the complainant, this court, on dismissing the bill, will do sq without prejudice'to further proceedings on the part of complainant not inconsistent with the decision.
    Appeal from Ontonagon; Cooper, J.
    Submitted January 9, 1907.
    (Docket No. 10.)
    Decided March 12, 1907.
    Motion to modify opinion and decree granted May 18, 1907.

      Bill by Timothy Nester against Thomas G. Sullivan for a partnership accounting. From a decree for complainant, defendant appeals.
    Reversed, and bill dismissed.

      Chadbourne & Bees, for complainant.

      Tarsney & Fitzpatrick, for defendant.

      As to validity of parol partnership to deal in real estate, see note to Scheuer v Cochem (Wis.), 4 L. R. A. (N. S.) 427.

   Blair, J.

This suit was instituted for the purpose of obtaining an accounting of the interests of complainant and defendant in the assets of a certain alleged partnership, consisting of timber lands in Ontonagon county. The bill of complaint alleges:

“That in the spring of the year 1900 your orator and one Thomas G. Sullivan entered into an oral partnership agreement for the purpose of buying, selling, and dealing in lands and timber in Ontonagon county, Michigan, and elsewhere; that under the terms of said partnership agreement, whenever the said partners deemed the purchase of any tract of land or timber desirable, it became the duty of your orator to locate the owners thereof, and negotiate with them for terms of purchase and obtain options upon said lands, and thereupon it became the duty of said Thomas G. Sullivan to examine or cause said lands to be examined, and to make or cause estimates of the timber thereon to be made, showing the quantity, kinds and quality of such timber, and it became and was the duty of both your orator and said Sullivan to either raise the money required to purchase such lands or to interest other parties in such purchase who might advance the money necessary for that purpose, and give your orator and said Sullivan an interest in said lands for their work and services in looking the lands and procuring the options for purchase; that in and by the terms of said agreement the said Thomas G. Sullivan and your orator were equal partners in said enterprise, and were to have equal interests in all lands and timber purchased by them or by other parties whom they might interest in such pur-' chase, and that they were to bear and pay the expenses of said partnership in equal proportions; that said Sullivan and your orator at once entered upon the business for which the partnership was formed, and did a large amount of business in locating, securing options upon, buying and selling different tracts of land and timber in said county of Ontonagon, during the years 1900, 1901, 1902, and 1903; that the active conduct of the business has not been prosecuted by said partnership since the spring of 1904; that the said partnership has never been dissolved nor its affairs and business settled between the said partners, and no accounting or settlement has ever been had between the members of said partnership with respect to said partnership business, and no boobs of account of said part-ship business have ever been kept; that no common fund or capital was ever provided or furnished in said partnership business, but that each of the partners from time to time furnished money for defraying the expenses of the partnership business, for the purchase of land and timber, and the conduct of the business of the partnership.”

The lands comprising the assets of the so-called partnership are described generally in the bill, after the specific description thereof, as: (1) The Marquette Silver Land Company lands; (2) the Wilmott Mining Company lands, or the Norton lands; (3) the Potter lands; (4) the Meads lands; (5) the Towar Tax Pool lands. At the time of filing the bill of complaint, the record title to the Marquette Silver Land Company lands, the Norton lands, and the Potter lands stood in the name of defendant, and the controversy between the parties relates to these lands. The Towar Tax.Pool lands were admittedly held in trust by Mr. Towar, and the Meads lands were in the name of Arthur Nester, a son of complainant. The prayer for relief contains, among other things, the following:

“ That the said Thomas G. Sullivan be decreed to convey to your orator an undivided one-half interest in and to all of the land and timber last above mentioned. ”

Complainant was sworn as a witness in his own behalf, and gave testimony tending to show:

“That some time early in 1900 the parties “entered into negotiations with several parties concerning the purchase and sale of timber on lands. Our interests were always equal. I mean, we were interested together, share and share alike, in these deals, share and share alike in every deal we were into. * * * That we would do our best, each one of us, to find tracts of timber and obtain options and get the money the best way we could to carry them, and give our interests to the parties who furnished the money, and we would each have an equal interest in the results.
Q. Anything specifically arranged as to what you should do or what he should do in connection with it ?
“A. No; no specific arrangement was made as to that. I was perhaps adapted to certain phases of the business better than Mr. Sullivan, and he was adapted to certain other phases much better than I was.
Q. In carrying out the arrangement, what did you each do ? That is, whether you took one branch and he another ?
“A. I generally made arrangements to purchase and sell, and he aided me whenever he could, and he generally took the phase of the examination of the lands to see whether they were profitable or not.
Q. That is, the physical examination ?
“A. Yes; the physical examination.
Q. Was that true generally in the whole course of dealing in Ontonagon county ?
“A. Yes; in Ontonagon county, anditwas true before. * * * We didn’t have enough money to buy the lands that we were examining, and we called in Mr. Mather "to furnish some money, and he sent me, I think, $5,000, and I took the title of the lands that this money procured and passed it for his benefit to Mr. Holt, of Grand Rapids.
Q. For Mr. Mather’s benefit?
“A. Yes; for Mr. Mather’s benefit, and the intention and understanding was that he was to have a half and Sullivan and I, we, should have a half.
Q. That is, you were to bunch them together?
“A. Yes; organize them into a company. Well, you see, that as it was in the case of the Norton lands, for the time being Mr. Sullivan put the money in and it was felt that the proper title should stand in his name, and the same way with Mr. Mather.”

With reference to the Towar Tax Pool lands, a written agreement was entered into between Towar and wife, of the first part, and “ Timothy Nester and Thomas G. Sullivan,” of the second part:

“That the said parties of the first part do hereby covenant and agree that they will sell and convey, as hereinafter mentioned, to the said parties of the second part, all those certain pieces or parcels of land in the county of Ontonagon, State of Michigan, described as follows. * íj» !¡{
“It is further convenanted by.and between the parties aforesaid that on the performance of all the conditions to be done and performed at the time and manner above mentioned and specified on the part and behalf of the said parties of the second part, the said parties of the first part «shall execute a warranty deed to the said parties of the second part, their heirs, executors and administrators.”

Defendant, having obtained some money, paid the sum required by the contract with Towar, and took-the title in his own name, but prior to this and prior to the contract with Towar, a declaration of trust had been executed declaring the interests of the parties.

Q- Did you say anything to him about taking the title in his own name ?
“A. That was customary with us at all times — that the party furnishing the money would take the title — and Mr. Towar took the title in his own name or as trustee. Most of the time as Towar, trustee, for the purpose of securing the amount of money advanced, and that was agreeable to me. * * *
.“ Q. You have mentioned the arrangements or negotiations with reference to the railroad. What had that to do with you and Mr. Sullivan ?
“A. It went in as a part of the general scheme. There had to be a railroad built in there to make the lands very valuable, so we thought a railroad would be a good thing in itself.
Q. I didn’t hear that last.
A. I say, we thought the railroad would be a good thing in itself because we got all the steel and fastenings for nothing for 25 years.
Q. How did that come to be a part of your — what were alleged to be a part of the business ?
“ A. Because it would enhance the value of the lands we already had purchased, and what we intended to purchase.
Q. And whether it was understood and arranged between you and Mr. Sullivan ?
A. There was an arrangement. "We considered that a very important feature of the transaction, to control for that extensive territory the means of taking the timber out. It practically controlled the timber, the taking out of several townships; and also was intended to take out the timber that others owned. Of course, if we couldn’t buy it.
Q. Was it a part of this scheme that you and Mr. Sullivan carried on ?
“A. Yes; it was a part of it. * * * •
Q. How about the expenses ?
“A. They were paid by both parties. I think Mr. Sullivan paid the most.
Q. What was the understanding between you as to such expenses ?
“A. The expenses was to be taken out of the general profit. The purchase price and the expenses was to be taken out of the profit.
Q. And suppose you didn’t have any profit ?
“A. Well, we never made that characteristic.
“ Q. What was your understanding as to how the expenses should be shared if you had any ?
“A. Our understanding was, frankly, that we were going to have a profit. We never made any calculation of not having one. * * *
“ Q.- When was the first time * * * that you first knew that Mr. Sullivan denied there being a partnership, or denied your interest in the lands in the bill of complaint ? * * *
“A. I think it was some time along in 1904. * * *
‘ Q. Now, was that original entry into this Ontonagon district under the arrangement between you that you were to get share and share alike ?
“A. Yes; but we had no money then, and we took in Mr. Powell and Mr. Towar.
“ Q. You took them in on those particular lands ?
“A. Yes; on those particular lands, and they furnished the money or raised it at the bank to pay for these tax titles.
“Q. That first transaction, then, was the one which you mentioned in the bill of complaint as the Towar Tax Pool lands ?
“A. Yes, sir. * * * Anything that we did or any title that we took in our general arrangement, and any profits we made we was supposed to divide them. If we could go in and purchase a tract of land where we could get a quarter of an interest where we thought it was desirable to do it, we, of course, would take half the profits of that quarter, as we did in the Towar Pool and the Meads tract. * * * The substance is this: We agreed in our talks that if the country was what my previous notes and information of it was that we were to go in there and try and pick up financial assistance at a time neither one of us had any amount of ready money, and the understanding was we were to get financial assistance from whoever we could and divide with them — well, make the best bargain we could. If we could only save half out of' the purchase, why we took a quarter of it, as we did in the Towar Pool, which was the first, and that was the line that we had a general understanding on. We were together, as I said before. * * *
ilQ. Now, as to the basis on which you were going in together, I think you already testified to that ?
“A. The basis was this: To do the best we could and cut it in two on the profits. * * * Our first purchase, to give you a little history of it, our first purchase was in 1900, that was the Towar Pool, and then there was some let up. We were busy in other fields, and I think it was in 1902, or the latter part of 1901, that I began negotiations with Mr. A. O. Bird, third vice president of the St. Paul Road.
“ Q. My question was directed as to when the proposition came up between you and Mr. Sullivan . about the railroad.
“A. Mr. Sullivan and I talked of it many times, the necessity of a railroad into that territory in order to economically pick out the timber. In fact, we considered that any other course would be unprofitable, and I was on the lookout consequently. I think I took the first step with Mr. Bird without notifying Mr. Sullivan, as I knew his mind and mine were the same on that point. * * *
Q. So there was no agreement that you should contribute any particular sum of money, nor that he should contribute any particular sum of money to any enterprise, was there ?
“A. No; we were simply to go into that territory and do as we really did do — obtain the money when we didn’t have it ourselves from others, make the best bargain that we could make to ..parties advancing the money, and divide equally the results.
Q. What do you mean by the results ?
“A. The profits, the interest, whatever we got. Whatever we got, whatever we got, whether it was interest in the lands or interest in the profits, we divided. * * *
‘e Q. What do you say about procuring a deed from Norton to Sullivan ?
“A. I say now that I procured a contract from Mr. Norton and sent to Sullivan, but I don’t remember now who procured the deed. I don’t remember whether I did > or he did. My impression is that he did.
Q. Did you know that the deed was made to Sullivan?
“A. Yes, sir.
Q. And you knew it was to be made to him ?
“A. Yes, sir; because he was advancing the money.
Q. And you say the same thing of the Towar property ?
‘ ‘A. When we bought the Towar property, neither of us had any money, or, if we did have we—
Q. When the deed from Towar to Sullivan was made—
“A. I didn’t know anything about it until after-it was done.
‘ ‘ Q. Did you know that Sullivan was going to pay the money to Towar ?
“A. No; Sullivan paid the money very soon after he got the money from the Ross estate.
Q. How soon after?
“ A. I don’t know, I don’t remember.
Q. Did you know that he was going to pay it and take the deed ?
“A. Well, I think so, I think I knew he was. He had funds then, and I expected he would. * * *
Q. Mr. Nester, I am asking at the time this bill was filed did you know these lands were not sold ?
“A. Yes; I understood so from the examination I made.
“Q. Any of them, either the Norton lands, the Potter lands, or the Towar lands ?
“A. It was my understanding.
“Q. Now, do you want us to understand here this morning that the arrangement between Mr. Sullivan and you was that anything that he went into you would be into it with him, and anything that you should be into he should be in it ?
“A. Yes; that is what I want you to understand. * * * !
“Q. In this contract with Norton that was shown you this morning, you signed that Thomas G. Sullivan by you as agent. Why did you do that ?
11 A. I did that for the purpose of making a binding contract with Norton; thought of various ways in conducting our deal, and I concluded that was the best way.
“Q. There was a large amount of correspondence read into the record here yesterday in relation to lands and matters outside of matters that are involved in this suit. Nothing ever came of any of them, did they ?
“A. No; I believe not; that is, I don’t know; not that I know of. Mr. Sullivan may have done something that I don’t know about, but I don’t know of anything. * * *
‘ ‘ Q. Let me state another proposition to get your understanding of this: Suppose that you had paid with your own money the Taylor lands, where would you have taken the deed ?
“A. If I had my own money, I would have taken the deed myself.
“Q. What interest in that land do you understand Mr. Sullivan would have in that deal ?
“A. He would have the same as I did ?
“Q. What was that ?
“A. One-half of it if I bought it.
Q. One-half of the lands ?
“A. Yes, sir.
“Q. Or one-half of the profits?
*'A. Half of the land. You might call it profits if you like. These sort of deals was sometimes called profits and sometimes called lands. Now, if I furnished all the money, I would take the title, and I would do exactly with Mr. Sullivan—
“Q. When it was sold out, what would you do ?
“A. Divide the money equally with Mr. Sullivan.
‘"Q. Would you regard that he had anything until the money was divided ?
‘"A. Justas much to do about it as I did, excepting that I would take the title for the purpose of securing me for the amount of money advanced.”

In his opinion for a decree filed in the case the circuit judge said:

“ The sole question now before the court for decision is:
‘: First. Did a verbal partnership agreement exist between the complainant and the defendant as testified to by the complainant ?
Second. If a parol partnership did so exist, is it within the statute of frauds because it relates to the purchase and sale of real estate and void because not in writing ?
“ In the case of Canton Bridge Co. v. City of Eaton Rapids, 107 Mich. 614, the court says:
“ ‘To determine whether persons are in fact partners we must look at their intention, and this is deducible from their declaration as to their intention, and the agreements that they make regarding the subject-matter. ’
“A number of the usual elements of a partnership are missing from the agreement in question.. No partnership name was adopted, no common partnership fund created, and no agreement to share losses. I am very reluctant to hold that the testimony of the complainant regarding the nature of the agreement created a partnership between the parties, but I have before me the uncontradicted testimony of complainant that such partnership did in fact exist, and also the admissions and declarations of the defendant himself that such partnership existed. This certainly was a declaration and admission on the part of the defendant that a partnership was intended by the verbal agreement. I conclude, therefore, that a partnership as alleged in the bill of complaint existed between the complainant and the defendant.
“ Upon the second question, there is much conflict in the decisions. There appears to be no doubt but that a partnership can, in general, be formed by parol, and that such partnership may hold real estate. It is also clear that partnership property may be proved by parol, and this is .true, even though the title to the property stands in the name of only one of the partners.
“ The exact question as to whether a parol partnership to deal in real estate is within the statute of frauds, and void, does not appear to have been decided by our Supreme Court. In the case of Raub v. Smith, 61 Mich. 543, arid the case of Brosnan v. McKee, 63 Mich. 454, cited by and relied upon by defendant, the court in my opinion does not decide this question. In both cases the court held that the parol agreement itself was for the purchase of land, and was within the statute. Both agreements provided for the purchase of a particular description of land, and the purchase thereof was a part of the consideration of the parol agreement. The question of the legality of the parol partnership to deal in real estate was ndt decided by the court in either of the cases. Pulford v. Morton, 62 Mich. 26, is also cited by the defendant as sustaining his contention, but in that case, although the question of the legality of such a partnership was raised, the court expressly held that no partnership was proven, and says:
“‘We need not, therefore, consider whether, if made [speaking of parol partnership], it would justify such a suit as the present under the statute of frauds.’
“It is therefore necessary for me in deciding this question to consider authorities from other States. The supreme court of Wisconsin, in the case of Seymour v. Cushway, 100 Wis. 580, and in Bird v. Morrison, 12 Wis. 138, has passed upon the precise question, and has expressly decided that an agreement to form a partnership to deal in lands is within the statute of frauds and void unless in writing. There are some other authorities to the same effect, notably Smith v. Burnham, 3 Sumner (U. S.), 435. I find, however, that there is another line of authorities holding directly opposite, and that such an agreement is not within the statute of frauds, and need not be in writing. Williams v. Gillies, 75 N. Y. 201; Dale v. Hamilton, 5 Hare, 383; Bates v. Babcock, 95 Cal. 479 (16 L. R. 745).
“In Bates v. Babcock, supra, speaking of a parol partnership agreement, the court says:
“‘Whether such a partnership can be formed, except by an agreement in writing, has been the subject of conflicting decisions. * * * The great weight of modern authority, however, is in support of the rule that such a partnership may be formed in the same mode as any other, and that its existence may be established by the same character of evidence. * * *
“ ‘ Irrespective of any decision, however, an agreement of this character cannot be said to contravene the provisions of the statute of frauds. It does not contemplate any transfer of land from one party to the other, or the creation of any interest or estate in lands. In One sense the parties to such an agreement may be said to have an interest in the lands that are to be purchased under the agreement — that sense in which the beneficiary under a trust for the sale of real estate, and payment to him of the proceeds of the sale, has an interest in the land — but it is only a pecuniary interest resulting from the sale, and a right to have the land sold, rather than an interest in the land itself. * * *
“ ‘ The settlement of partnership accounts, and the conversion into money of the assets of the partnership, whether real or personal, and their division among the partners, has always been one of the functions of a court of equity, and that court never stops to inquire into the source of the title of such assets, or in whose name they are held. * * * ,
‘ It was not necessary for the plaintiff, in support of these averments, to produce written evidence of the agreement, but the agreement could have been established by his oral testimony; and the court erred in striking out the testimony that he gave in support of the agreement.’
“In Forster v. Hale, 5 Ves. Jr. 309 (cited in Bates v. Babcock, supra), where the right to an interest in the leasehold of a colliery, claimed by virtue of a partnership with one of the lessees, was involved, and it was objected that, by permitting parol evidence to establish such interest, an interest in real estate or a declaration of trust would be gained without any writing, in violation of the statute of frauds, the court said:
‘ ‘ ‘ That is not the question. It is whether there was a partnership. The subject being an agreement for land, the question is whether there was a resulting trust for that partnership by operation of law. The question of partnership must be tried as a fact, and as if there was an issue upon it. * * * That partnership being established by evidence upon which a partnership may be found, the premises necessary for the purpose of that partnership are by operation of law held for the purposes of that partnership.’
“In view of the foregoing decisions, and of many others cited by counsel, I am of the opinion that the weight of authority is now in favor of sustaining a partnership to deal in real estate, resting upon a parol agreement, and that such agreement is not within the statute of frauds. I therefore find that the partnership agreement in question in this case is a valid agreement, not within the statute of frauds, and the evidence establishing the same was properly admitted. A decree will be entered accordingly, and the defendant will proceed to make a partnership accounting.”

Conceding, without deciding the point, that the circuit judge was correct in holding that a partnership agreement was established by complainant, the question remains whether such agreement was outside of the statute of frauds. If each transaction were to be considered by itself as a separate and distinct transaction and not as one of a series of partnership dealings, there can be no question that under the decisions of this court the agreement would have been within the statute and void. As said by-Mr. Chief Justice Campbell, giving the opinion of the court in Pulford v. Morton, 62 Mich. 25:

“ So far as the particular purchase is involved, it would not be possible to make out any interest in it for complainant. Any agreement made by him was by parol entirely, and no act was done by him except the payment of some small sums of money, for which, if made with authority, he has a legal remedy. Moreover, by the deliberate and voluntary act of complainant, the title was placed in Robert Morton, with nothing but a verbal understanding how he should hold it. Our statute expressly declares that, under such circumstances, there can be no resulting trust. 2 How. Stat. §§ 5569, 5571, and notes. No other trust could exist without a written agreement; and, on this theory, the testimony is quite as conflicting as upon the other.”

The case of Tuttle v. Bristol, 142 Mich. 148, is very similar to the case at bar, except in this one respect: That it relates to a single transaction, and there was no claim of a partnership. In that case it was held, in substance, that a verbal contract between complainant and defendant — whereby the latter was to advance money towards the purchase of land on which the former held an option, and a third person was to be procured to advance the balance of the purchase price and to take title until complainant and defendant should be able to pay for the land, at which time title was to be deeded to them, it being understood that until that time they should be the equitable owners of the land purchased and the timber thereon, and should equally bear the expense and share the profits of cutting the timber and the money to be received from the sale of the land, it thus being contemplated that complainant should have an interest in the land itself — was an agreement for an interest in land within the statute of frauds (3 Comp. Laws, § 9509), providing that no interest in lands shall be created except by deed or conveyance in writing, and could not be enforced by complainant against defendant.

In the case before us, as in the case cited, the agreement did contemplate, according to the testimony of complainant, that each of the parties should have an equal interest in the lands purchased. The contract with Towar indicates clearly the understanding of the parties as to their respective interests in the subject-matter of the partnership,'and by that contract the lands were to be deeded to them by Towar as tenants in common. The .case, therefore, is within the statute of frauds, unless the fact that it was contemplated, and there actually were several transactions, instead of one under a general partnership agreement to deal in lands, differentiates the cases. This case must be determined upon the theory, in my opinion, that the rights of the parties flow entirely from the oral agreement. There has been no other or different part performance of the contract in this case than existed in the case of Tuttle v. Bristol, 142 Mich. 148. The property was not purchased with partnership funds. It was not used in the partnership business. It was not a mere incident to the partnership; nor did it fall within any of the classes which have influenced the decision of this court in holding that the statute of frauds did not apply. See Merritt v. Dickey, 38 Mich. 41; Way v. Stebbins, 47 Mich. 299; Williams v. Shelden, 61 Mich. 311; Petrie v. Torrent, 88 Mich. 43, 100 Mich. 117; Davis v. Gerber, 69 Mich. 246; Lindsay v. Race, 103 Mich. 28; Dunlap v. Byers, 110 Mich. 109; Winans v. Winans’ Estate, 99 Mich. 74; Bennett v. Hough, 141 Mich. 162.

The bald question, then, is presented whether this contract of its own force affords any protection to the complainant. It is true that the weight of authority is in favor of the doctrine that such contracts are outside of the statute of frauds, if the weight of authority is to be determined by the numerical majority of the cases. It is worthy of note, however, that in Williams v. Gillies, 75 N. Y. 201, cited by the court in support of the doctrine, the court expressly declined to approve it, saying:

“ To sustain this judgment requires the adoption of several propositions, all of which I find it difficult to approve. An existing partnership may purchase real estate with partnership funds, and for partnership purposes, and it is immaterial in whose name the title is. ' It is regarded in equity as between the partners and creditors as personal estate. A trust results from the payment of the consideration with partnership funds in favor of the firm. It is also well settled that a partnership may exist for the purpose of dealing in real estate, and there is considerable authority, and perhaps a preponderating weight of authority, that such agreements may be proved by parol, without violating the statute of frauds. The tendency of the decisions in this State is in that direction, although the point has never been definitely settled by this court in a case where the question was necessary to the decision.
“ I shall assume the validity of the parol agreement in this case, but, in doing so, it is not intended to affirm the proposition unqualifiedly that every parol agreement between two persons to purchase a specific parcel of real estate, and pay for the same from their individual means, and take the deed in the name of one, although with a view of selling at a profit, is valid and binding upon the ground that it constitutes a partnership in any commercial sense, and is therefore not violative of the statute of frauds. In some of the cases where this doctrine is held there were other circumstances which obviated the objection, and there are respectable authorities against the doctrine. ”

If the question of the weight of authority is to be determined by the persuasiveness of the reasoning upon which .the decisions depend, which must be conceded to be the case in considering the decisions of the courts of our sister States, then, in my opinion, it should be held that the agreement falls within the two sections of the statute of frauds referred to in Pulford v. Morton, supra. The reasoning influencing my mind in arriving at this conclusion is so ably and elaborately set forth in Smith v. Burnham, 3 Sumner (U. S.), 435, and Bird v. Morrison, 12 Wis. 138, that I content myself with a reference to those cases. In the case of Dale v. Hamilton, 5 Hare, 369, quoted and criticised by the court in Bird v. Morrison, supra, the vice chancellor, sustaining the doctrine contended for by complainant, upon what he considered the ground of compelling authority, said:

Humphrey & Grant, for the motion.

Tarsney & Fitzpatrick, opposed.

“ When the proposition was first advanced by the plaintiff, I confess it appeared to me that to admit the agreement to the extent contended for would virtually be to repeal the statute of frauds or nearly so; for, if a party by alleging an interest in land of any specific kind can escape from that safeguard against fraud and perjury which the statute has provided, it remains only that those who are prepared by fraud and perjury to invade the rights of another shall make that specific interest (to which it is said the act does not extend) the ground of their claim and the statute is at once evaded. Thus, if A. alleges that B. agreed to give him an interest in land, the statute applies; but, if he adds the land was to be improved and resold at their joint risk, for profit and loss, * * * the statute does not apply.”

There is no authority in this State which compels us to virtually repeal the statute of frauds, as I, agreeing in that respect with the vice chancellor, think we should be obliged to do if we sustained the decree in this case.

It results that the bill must be dismissed, with costs of both courts to defendant.

McAlvay, C. J., and Grant, Montgomery, and Ostrander, JJ., concurred.

ON MOTION TO MODIFY OPINION AND DECREE.

Per Curiam.

Motion to modify opinion and decree so as to provide that the bill of complaint be dismissed without prejudice. The legal question presented in this case had not theretofore been directly passed upon by this court. There was much weighty authority in favor of the complainant’s contention, which was adopted by the learned circuit judge as determining the law of the case.

We are therefore of the opinion that the opinion and decree should be modified so as to provide that the bill of complaint be dismissed without prejudice to further proceedings on the part of complainant not inconsistent with our decision.


author: Ostrander, J.

text:
    HENRY v. MANISTIQUE IRON CO.
    1. Trover and Conversion — Right of Action — Title to Property.
    Where plaintiff in trover claims no title to certain buildings • on defendant’s land, constituting a lumber camp, except as part consideration for performing a contract which he abandoned, it does not appear that defendant’s possession of the buildings was unlawful, or that plaintiff had either the title to them or the right to their possession.
    2. Appeal and Error — Instructions—Prejudicial Error.
    Defendant in trover cannot complain o"f an instruction authorizing the jury to deduct from the amount of plaintiff’s verdict the amount of an unmatured chattel mortgage given by plaintiff on the property to a person who was asserting no rights under it.
    Error to Schoolcraft; Steere, J.
    Submitted January 11, 1907.
    (Docket No. 33.)
    Decided March 12, 1907.
    Trover by John Henry against , the Manistique Iron Company. There was judgment for plaintiff, and defendant brings error.
    Eeversed.

      O. W. Dunton, for appellant.

      B. B. Stewart, for appellee.
   Ostrander, J.

The action is trover for the conversion of certain buildings, wood, and camp equipage; the plea the general issue. There was verdict and judgment for plaintiff, and defendant has proceeded by writ of error for a review.

The plaintiff and defendant sustained contract relations, evidenced by the following writing:
“Shingleton, Mich., 9-15-04.
“ Mr. John Henry,
“ Shingleton, Mich.
Dear Sir: You may take the five teams, wagon, sleighs, chains and tools as inventoried by L. O. Paquin last July. If you will keep the teams in good order, wagons and c., in repair and use them for their keep until sleighing arrives. Also you may have the loose lumber at Camp No. 69, and the camp buildings on section 3, town 45 N., range 18 W., owned by us and build camps on section 31, town 46 N.., range 17 "W.
“Provided you will draw and load all the cord wood on cars now located on section 1, town 45 N., range 18 W., andón section 31, town46 N., range 17 W.
‘ ‘ In drawing this wood, you must pick up and load all scattering piles, and wood bottoms in a workmanlike manner, and commence loading as soon as there is snow enough for sleighing, loading the cars as directed, and properly care for the horses.
“ If you do as above, we will pay you 85 cents per cord for drawing and loading the wood, and give you the camp buildings when the job is completed, paying you as above, on or about the 15th day of each month for wood delivered the previous month. But in case you fail to load wood promptly as above, you are to at once deliver said above teams, wagons, sleighs and tools and the camp buildings erected on above described section 31, that we may at once go on with the work and complete the job during the winter of 1904 and 1905.
“ Furnace measurements on wood must prevail, and all above conditions complied with.
“Yours truly,
“ Manistique Iron Company,
“By R. R. Jenney, Superintendent.
“I accept the above proposition, and will comply as above.
“ John Henry.”

The camp buildings were built in part from lumber and logs belonging to defendant, were occupied by plaintiff, and the loading of the wood contemplated was proceeded with; but it was not all of it removed during the season of 1904-05. Plaintiff, in the spring of 1905, “abandoned the contract,” as he himself testifies. He left his camp equipage stored in the buildings he had erected. The conversion attempted to be -made out is that defendant took possession about December 20, 1905, of the buildings for the purpose of removing the remainder of the wood, and, also, after giving plaintiff notice to remove his equipage, used it or some of it in the camp. While the property — dishes, stove, blankets, etc. — were so being used, and after being notified by defendant to remove them, plaintiff went to the camp, and, unhindered, made an inventory of his property. The reason given by plaintiff for not removing the property is that he wanted it left in the camps where it was; that he wanted it there later on, and did not feel like moving it. He had kept a man to watch the camp during the summer of 1905, until danger from forest fires had passed. The camp buildings were on defendant’s land. As plaintiff, under the contract, could get title to them only by completing the job, and as it does not appear that he had or claimed title in any other right, and as the job, whether or not it might have been completed by plaintiff in the winter of 1905, was abandoned, it is difficult to understand how defendant’s possession of the buildings was unlawful, or how plaintiff had either title to them or the right to their possession. Upon the evidence, the jury should have been instructed that plaintiff could not recover the value of the buildings. As to the wood, the court charged the jury that plaintiff had no title thereto, and could not recover the value thereof.

It appeared that plaintiff had mortgaged the camp buildings and camp equipage and other personal property to some third perstm to secure payment of a sum stated tobe “something like $1,000 or $1,500;” the mortgage, not produced in evidence, being outstanding at the time of suit. The court said to the jury that in such case plaintiff could recover judgment for the value of the property less the mortgage upon it. By some process of reasoning, the jury made a deduction on account of the mortgage of $300, and gave a verdict for $758, and this is the amount of the judgment. While the court announced an incorrect rule of law, appellant has no reason for complaining of the action of the court or the jury. The mortgage was not due. The mortgagee was asserting no rights under it. Plaintiff was asserting that defendant was, as to all the property, a stranger and trespasser. Parkhurst v. Jacobs, 17 Mich. 302.

There was evidence tending to show conversion by defendant of at least some of the camp equipment.

Because the court left to the jury the question of plaintiff’s ownership of the buildings, the judgment is reversed, and a new trial granted.

McAlvay, C. J., and Grant, Blair, and Montgomery, JJ., concurred.


author: Moore, J.

text:
    FLEMING v. WOOD.
    Trusts — Estate op Trustee — Rights op Creditors.
    Land conveyed by a father to his son in trust to make provision for the son and bis family cannot be reached by the son’s creditors.
    Appeal from Muskegon; Chittenden, J., presiding.
    Submitted January 16, 1907.
    (Docket No. 40.)
    Decided March 12, 1907.
    Bill by R. Andrew Fleming, administrator de bonis non of the estate of Frank Wood, deceased, against Wesley F. Wood and others to set aside certain deeds. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      Nims, Hoyt, Erwin, Sessions & Vanderwerp, for complainant.

      William Carpenter, for defendants.
   Moore, J.

Frank Wood died intestate in the city of Muskegon on February 22, 1904, with debts existing against him to the amount of $5,702.79. . His heirs at law were Jessie L. Wood, his widow, and Cornelia Wood Hume and Mary S. Wood, his children. The defendant Wesley F. Wood was his father. This bill was filed in the interest of a creditor of Frank Wood to reach certain real estate in Muskegon, and in Massachusetts. Fraud was charged in the bill of complaint. The trial court found there was no fraud and no equity in the bill of complaint, and dismissed it. The case is brought here by appeal.

It was admitted in the answers that defendant Wesley F. Wood conveyed to Frank Wood, agent, by warranty deed, on or about August 11, 1902, certain properties known as the “ Newell Properties,” located in the city of Muskegon; that Prank Wood retained this deed during his lifetime without recording the same, and this deed was found among the papers of deceased after his death; that Prank Wood had been and was at the time of his death financially embarrassed and unable to pay his debts. It was also admitted that, after the execution of said conveyance, said lands and premises were rented to various tenants, and several parcels were sold, all being done in the name of Wesley P. Wood, and that, when deeds were given, they were executed by Wesley P. Wood. A further claim in relation to said lands was made in the answer which will be referred to later. It was also admitted by the answers that, at the time of Frank Wood’s death, he held the record title of a piece of land situated in the city of Beverly, State of Massachusetts; that on February 28, 1905, the widow and' children of Frank Wood, deceased, conveyed these premises to Wesley F. Wood. A further claim was made in said answer which will be referred to later. The complainant insisted through his solicitors:

jFirst. That he was entitled to a decree setting aside and declaring void the conveyances of the Muskegon city premises from Wesley F. Wood to Jessie L. Wood; that it be decreed by the court that the unrecorded deed from Wesley F. Wood to Frank Wood, agent, is still in full force and effect, notwithstanding the admitted surrender and purported cancellation of same; and that said lands might be sold by the complainant for the payment of debts and expenses of administration of said estate.
“Second. That Jessie L. Wood be compelled to account to complainant for the proceeds of all lands sold or leased by her and which were described in said deed to Frank Wood, agent.
“Third. That it be decreed that the title of the parcel of land situated in the city of Beverly, State of Massachusetts, was in Frank Wood at the time of his death.?’

As to the first and second of these claims, defendant insists that such title as Frank Wood had was not a title in fee, but as trustee, and was such a title as could not possibly inure to the benefit of the creditors of Frank Wood. The deed to Frank Wood described him as agent. It never was put upon record. It was found in his effects after his death. Attached to it was a paper in his handwriting, reading as follows:

“Muskegon, Michigan, November 15th, 1902.
“The property deeded me as agent 8-11, ’02, by Wesley F. Wood, I treat as follows: viz., Namely, I act as agent for my family in the same. My tickets in cash drawer to come out of same.
“ Frank Wood.”

The record shows that Wesley F. Wood was an old man. His son Frank was in poor health. He was also badly in debt. The correspondence which passed between father and son shows very clearly that the former desired to make some provision for the son and his family. The correspondence is too long to insert here in full, but it shows very clearly that it was not the intention of the father to convey to his son title in fee to the land, nor did the son suppose he was acquiring a title in fee. He had no interest in the property described in the deed. It belonged wholly to the father. We think a fair reading of the correspondence shows that the relation of Frank to the property was that of trustee. The case is clearly within the principles stated in Cummings v. Covey, 58 Mich. 494. See, also, Edinger v. Heiser, 62 Mich. 598; O'Neil v. Greenwood, 106 Mich. 572; Lee v. Enos, 97 Mich. 276.

In reference to that portion of the decree referring to the lands in Beverly, the solicitors for the complainant say it was wrong:

“1. Because the admitted facts showed that Frank Wood died seised of this Massachusetts property, and his estate is entitled- to the benefit of this property. If the heirs conveyed their interest in same to defendant Wesley F. Wood, he should account to the estate for the value of this property.
“ 2. Because the complainant was entitled to a decree declaring the Massachusetts property to belong to _ the estate of Frank Wood. With such a decree, proceedings could then be instituted in the State of Massachusetts to administer the estate there.
“3. Because, if the court did not have any jurisdiction over the Massachusetts property, there should have been no decree in this case declaring that none of the property wherever situate was the property of Frank Wood at the time of his death.”'

As to the last of these claims, the solicitor for defendants say it is inconsistent with the other two, and that, as counsel sought the jurisdiction of the court, he cannot now complain. We do not deem it necessary to pass upon that phase of the case.

In the eighteenth paragraph of his bill, complainant averred title to the Beverly lands in Frank Wood at the time of his death, and that he got it through a deed attached to the bill of complaint, marked “Exhibit F.” The consideration stated in this deed was “one dollar and other valuable considerations. ” The deed was a quitclaim deed. The defendant Wesley F. Wood answered, as to that paragraph, as follows:

“ 18. He admits the execution to Frank Wood of the deed mentioned in the eighteenth paragraph of said bill of complaint, but denies that the premises therein described belonged to or ever were the property of said Frank Wood. He admits the execution of the conveyances by the said defendants Jessie L. Wood, Cornelia Wood Hume, and Mary Scott Wood, of the said premises as stated in said eighteenth paragraph. He admits that said premises are in the State of Massachusetts, and that they are not in the jurisdiction of any court in the State of Michigan. He denies that either the defendants Jessie L. Wood, 'Cornelia Wood Hume, or Mary Scott Wood has appropriated to herself any part of said property or has become indebted thereby to the estate of said Frank Wood, deceased. He admits that he is in possession of, and has appropriated for his own use, the entire of said premises, but he denies that he has thereby become indebted to the estate of said Frank Wood for a single dollar.
“ Further answering the eighteenth paragraph.of said bill of complaint, he says that this defendant, and this defendant alone, furnished the full consideration for the purchase of said land; that said Frank Wood furnished no part of said consideration; that he never had, and never claimed to have, any right, title or interest in and to said premises; and that he always recognized this defendant’s full and unconditioned ownership of the same. After the death of the said Frank Wood, this defendant completed a cottage on said land for his own use. The expense thereof was paid from his own funds, and no creditor of the estate of said Frank Wood or any other person has any right of any name or nature in and to the said premises or cottage or part thereof. They are the sole property of this defendant. The defendants Jessie L. Wood, Cornelia Wood Hume, and Mary Scott Wood knew those facts and recognized the rights of this defendant, and, as soon as the defendant Mary Scott Wood arrived at her majority, they made the conveyance for the purpose of vesting the legal as well as the equitable title thereto in him.”

The answers of the other defendants were to the - same effect. Replications were put in to the several answers. No proof was introduced upon the part of the complainant in relation to the title to this property, except what was contained in the bill of complaint and in the answer. If it is true, as stated in the answer — and for the purposes of this case we must assume it to be true — that Frank Wood never had any interest in the Beverly property, the creditors could stand in no better position.

The decree is affirmed.

McAlvay, C. J., and Carpenter, Grant, and Hooker, JJ., concurred.


author: Carpenter, J.

text:
    JUDSON v. JUDSON.
    1. Marriage — Existence of Relation — Common-Law Marriage —Requisites.
    To constitute a common-law marriage, the parties must presently agree to take each other for husband and wife, and live together in that relation.
    2. Same — Evidence—Sufficiency.
    On a bill to affirm a common-law marriage with defendant, the testimony of the complainant that defendant requested her to come to his house, and that they would be married as soon as his mother left; that whenever she asked him to have a marriage ceremony performed, he put her off; and that for several years they lived together, she supposing that she was going to be his wife — does not establish a common-law marriage.
    Appeal from Wayne; Hosmer, J.
    Submitted January 17, 1907.
    (Docket No. 52.)
    Decided March 12, 1907.
    Bill by Mary J. Judson against Henry C. Judson to affirm a common-law marriage. From a decree for complainant, defendant' appeals.
    Reversed, and bill dismissed.

      George F. Monaghan, for complainant.

      George X. M. Collier, for defendant.
   Carpenter, J.

This suit is brought, under section 8619 of the Compiled Laws of 1897, to procure a decree affirming a common-law marriage. Complainant affirms, and defendant denies, the existence of said marriage. The circuit court rendered a decre'e in favor of complainant. Defendant asks us to reverse that decree.

Was there a common-law marriage between these parties? The test is this: Did they presently agree to take each other for husband and wife, and live together in that relation? Hutchins v. Kimmell, 31 Mich. 126; Lorimer v. Lorimer, 124 Mich. 631. If we were to determine this issue merely from the conduct and declarations of the parties, we might infer the existence of such an agreement, for they cohabited together several years, and much of their conduct and declarations indicated the existence of a marital relation; but in this case the agreement of the parties is not to be determined by inference from acts and conduct. Each party to that agreement testifies, and the testimony of complainant herself — and even that testimony is not corroborated by defendant— demonstrates that her agreement with defendant did not constitute a common-law marriage. We quote her testimony :

“The doctor [defendant] said: ‘* * * You come and get my mother ready * * * to visit her daughters, and we will be married as soon as we get mother off.’ * * * And I did so, and continued staying at the house, and, whenever I would ask him to have the marriage ceremony performed, he always put me off. * * * During that month and year, September, I first lived together with him as husband and wife, and we were living 10 years this September. * * * I supposed I was going to be his wife. I expected he would be man enough to keep his word. * * * I performed the duties of a wife right straight along. * * * I knew it was a breach in etiquette (to cohabit with him as man and wife), a breach on society, but I supposed the doctor was always a man that would keep his word.”

This testimony establishes a promise of marriage, a breach of that promise, and seduction; but it does not establish a marriage. On the contrary, it proves that the parties did not presently agree to take each other for husband and wife. We are compelled, therefore, to decide that no common-law marriage existed between the parties.

The decree of the circuit court must be reversed, and complainant’s bill dismissed.

McAlvay, C. J., and Grant, Hooker, and Moore, JJ., concurred.


text:
    PEOPLE v. JOURNEAU.
    Intoxicating Liquors — Offense's—Prosecution—Question for Jury.
    On a prosecution for selling liquor without a license, it appeared that respondent kept a restaurant next to a saloon, in which respondent had no interest, and that respondent, with money given her for such purpose by customers, purchased liquor at the saloon, and gave it to the customers, •who drank it in the restaurant. It appeared that respondent made no profit out of the transactions, and made no attempt to conceal them. Held, that the question whether respondent acted in good faith as an intermediary for her customers, or whether her conduct was a mere subterfuge, warranting her conviction, was one for the jury".
    Error to Wexford; Chittenden, J.
    Submitted January 34, 1907.
    (Docket No. 27.)
    Decided March 12, 1907.
    Mrs. Joseph Journeau was convicted of violating the liquor law.
    Reversed.
    Respondent was charged with having been engaged, at a time stated- and in a place described in the information, in the business of selling, and keeping for sale, malt, etc., liquors, at retail, without having paid the tax upon such business or having the receipt for such payment posted up. 3 Comp. Laws, § 5385. The jury by direction of the court returned a verdict of guilty. Respondent kept a restaurant at the place described in the information. Next door to her place of business was at saloon. There was no immediate connection between the two buildings, and no door or other opening from one into the other. Respondent had no proprietary or other interest in the saloon or the business there conducted. Testimony for the people, not disputed, tended to prove that on Decernber 27, 1905, the respondent, with money given to her for that purpose by customers, purchased at the saloon and paid for five pint bottles of beer, which her said patrons, a man, a woman, and her daughter, served to themselves and drank at her table. Respondent admitted that she had at othertimes,.occasionally, at the request of patrons, procured for them at this saloon, with money furnished by them, beer which was drunk in her place of business. Her testimony, undisputed, tends to prove that in procuring the beer she passed from the back door of her establishment to the back door of the saloon, procured the beer, paid the usual retail price therefor, made no profit out of such transactions, had no interest in the business carried on in the saloon, and no arrangement by which she received anything by way of commission or otherwise upon purchases so made by her. There was no secrecy. Her table where the beer was drunk was near the front window, which had no curtain. She never sold any beer in her place, and procured it only as an accommodation.

      Sawyer & Yearnd, for appellant.

      Fred C. Wetmore, Prosecuting Attorney, for the people.
   Ostrander, J.

(after stating the facts). The reasoning of the opinion in People v. Soule, 74 Mich. 250 (2 L. R. A. 494), in which it was determined that a social club was engaged in the business of selling liquor within the meaning of the statute, is that the liquors purchased and kept by the club were, before being given to members of the club, the property of the corporation, and, when passed to the member and paid for by him, became his property, the transaction amounting to a sale and delivery of the liquor by the owner and a purchase of it by the member. This is also the reasoning of the opinions referred to and relied upon in that case.

Plainly, the conduct of the respondent in the case at bar may have been innocent and she a mere errand doer for others; and People v. Soule, supra, is authority for the proposition that a mere agent in procuring liquor is not a seller, and his acts as agent would not amount in law, as they did not in fact, to engaging in the business of selling liquor. Whether in a given case the respondent has acted as a mere intermediary of the buyer, or, in fact, as seller, must be determined from the whole evidence (Black on Intoxicating Liquors, § 408), and is usually a question for a jury. The evidence did not warrant the court in directing the verdict. Campbell v. State, 79 Ala. 271; White v. State, 93 Ga. 47; Com. v. Smith, 102 Mass. 144.

State v. Buck, 37 Vt. 657, cited by counsel for the people, arose under a prohibitory liquor law.

The case should have been submitted to the jury with instructions that if respondent was, in good faith, acting occasionally as an intermediary for her patrons, the buyers of the liquor, she should be acquitted. If her conduct, in view of all the evidence, was a mere subterfuge, and it was a part of her business to sell liquor to those who came to her place for liquor, she should be convicted.

The conviction is set aside, the record remanded, and a new trial ordered.

Blair, Montgomery, Hooker, and Moore, JJ., concurred.