author: Graves, J. Cheistiancy, J.

text:
    Charles H. Comstock, Administrator of Addison J. Comstock, deceased, v. Medora E. Smith.

      Foreign contract. A contract, for the payment of money, made and to be executed in a foreign country, would be payable in the lawful money of that country, whether so expressed in the contract or not.

      Evidence: Foreign currency. Proof of the foreign law is not necessary to show the value of foreign money. The proof required is similar in kind to that necessary to show the value of chattels in a distant market; such as will enable the jury to express, in our money, the value of the sum shown by the proof to be due in foreign money.

      Evidence: Fraud: Scienter. It is competent for a party charged with misrepresentations, under the influence of which a contract is alleged to have been made, to show that he was not aware of the untruthfulness of the statements imputed to him; and that he had grounds for believing them to be correct.

      Charge of the Court: Immaterial error. A verdict will not be disturbed for an error in a charge which operated to the advantage of the plaintiff in error.

      Examination of witnesses: Discretion of the Court. Where the Circuit Judge, in his discretion, has allowed a wide range of examination by a defense to show fraud, and testimony is admitted in reply of doubtful relevancy; a court of review ought not to reverse a judgment for an error in admitting such testimony» unless clearly satisfied that its admission had prejudiced the legal rights of the plaintiff in error.

      Bebutting evidence: Béleotmcy. The relevancy of rebutting evidence is to be tested, not by its convincing or persuasive character; but whether it tends to cut down, limit, explain or obviate the defense, or to illustrate some legitimate answer to the defense.

      Heard April 22, 23.

      Decided May 10.

    Error to Lenawee Circuit.
    This case came into the Circuit Court for the County of Lenawee, by appeal from the disallowance by commissioners, appointed by the Probate Court of that county, of a claim presented by Medora E. Smith, against the estate of Addison J. Comstock, deceased, arising upon a mortgage executed by the deceased and Darius C. Jackson, on the 25th day of January, 1866, then of the village of Oil Springs, in the Province of Canada, conditioned for the payment “ of two thousand dollars of lawful money of Canada,” and which the mortgagors covenanted to pay. An issue was formed in the Circuit Court for a trial by a jury; the defense being, that the mortgage was given on the purchase of the property described in it, the value of which was fraudulently misrepresented by the agent of the-claimant, and by means of wbicb misrepresentations, the deceased and J ackson had been induced to purchase the property. The jury found a verdict for the claimant.
    The cause now comes into this Court by writ of error, the errors being assigned upon the rulings of the Circuit Court in the admission of testimony, and upon the charge of the Court instructing the jury, “that if the plaintiff (below) was entitled to recover upon the proofs in the case, for breach of the contract declared on, it being payable in the lawful money of Canada, she was entitled to recover the present value of Canada currency as compared with legal tender notes of the United States; that is, that she was entitled to the premium which Canada money was then worth over United States legal tender notes, and that if the plaintiff had proved Canada money to be worth any sum above legal tender notes, the jury should add that sum to their verdict.”

      A. L. Millard and Eldridge & Walker, for plaintiff in error.

      Robinson & Brooks, for defendant in error.
   Graves, J.

The defendant in error presented a claim before the commissioners appointed to examine and adjust claims against the estate of Addison J. Comstock, deceased, and the same was disallowed, whereupon the claimant appealed to the Circuit Court.

An issue was made up in that Court under the statute and tried before a jury, who returned a verdict for the claimant; and the administrator of the estate has brought the case to this Court, upon exceptions to the admission of evidence and the charge to the jury. The claim litigated in the Court below was upon a covenant by decedent and others to defendant in error,' contained in a mortgage made in Canada on the 25th of January, 1866, on an acre and a -half of oil land, on which were two oil wells, and which mortgage and covenant were intended to secure in part the payment of the purchase price of the premises and certain personal property included in the trade. The ' covenant stipulated that the covenantors should pay to the covenantee, the complainant, two thousand dollars of lawful money of Canada, with interest at seven per centum, as follows: One third of said sum of two thousand dollars in six months from date: one-third in twelve months from date, and the remaining one-third in eighteen months from date, with interest at said rate on the unpaid balance, when the payments should fall due respectively. The chief defense, as stated in a special notice attached to the plea, was, that on the sale of the property of which the money specified in the covenant was in part the consideration, the claimant, Mrs. Smith, made certain fraudulent representations, by which the covenantors were damnified to an amount beyond the sum called for by the covenant. The errors assigned are very numerous, but we do not think it necessary to notice them in detail. The first was abandoned on the argument, and the residue may be examined under two general heads.

The questions which properly arrange themselves under the first head relate to the evidence given and requisite to ascertain the amount called for, in this state, by this Canadian contract, and the charge of the Court as to the rule of damages.

It was urged on the trial, and is insisted upon here by plaintiff in error, that the covenant called for a sum in the legal money of Canada. That in order to fix the value in our money of the sum specified by the covenant, it was necessary to ascertain what was lawful money in Canada; that it was to be presumed that what was lawful money in Canada was the subject of positive written law in the Province, and that as a consequence it was incumbent on the claimant to make proof of that law by an exemplification or sworn copy, or in some other established mode.

The view we take of the general question makes it unimportant to consider the validity of the points most pressed by the plaintiff in error in this branch of the case. The force and effect of the covenant were in no degree altered by the words “ of lawful money of Canada,” since, without these words it must have been intended that the agreement made, and to be performed in Canada, contemplated a payment of the given sum in dollars of legal money of the Province.

The case may therefore be regarded as though the words “of lawful money of Canada” had not been in the instrument. The end to he attained upon the trial, in relation to that part of the case we are now considering, was to ascertain the amount of damages or claim to which the claimant would be entitled in this State, and the enquiry necessary to attain the end did not involve the proof of the law of Canada. We are not aware that it has ever been thought necessary in suits in our courts on foreign contracts, when the amount is expressed in sterling money, or other foreign denomination, to require proof of the foreign laws, in order to ascertain the damages to be awarded in American money; and we think no such rule exists anywhere.

It is therefore our opinion, that in this case nothing more was required than to show those facts as to the comparative value of the money of Canada, and of this country, which would enable the jury to express in our money a sum equivalent to that called for in the foreign money. Upon the nature of the evidence bearing upon this question, a few words will be necessary. We think the inquiry to which this evidence belongs is quite analagous to that involved in cases where the market value of chattels is to be ascertained by evidence, and that the employment of the same methods to prove the value here of foreign money, as are authorized to prove the marketable value of commodities at a distance, would, by reason of the greater stability and uniformity of value of money, be less likely to lead to erroneous results, than when used to find the value of such commodities.

The general principle, therefore, which governs, in proving the value of chattels in a distant market, may be applied with safety to a matter like that before us, where the foreign state is a near neighbour, and where the money transactions between the two countries are of hourly occurrence.

We shall refer to but two or three cases to illustrate our view of the appropriateness of the material evidence on the trial, bearing on the question we are now considering.

In Sisson v. Toledo R. R. Co., 14 Mich., 489, it was held competent to prove the market value of cattle in Albany and New York, as derived from the newspapers in which the state of the market was published daily.

In re Cliquot's Champagne, 3 Wall., 114, the Supreme Court of the United States determined that prices current obtained in France, from the agent of a manufacturer or from dealers in the manufactured articles generally, and which had been prepared and used by parties furnishing them in the ordinary course of their business, were admissible to prove the value of wines in France.

In Kermott v. Ayer, 11 Mich., 181, a witness having testified that he had had several business transactions with attorneys and lawyers in Canada, and in that way had occasion to learn the value of Canadian and Halifax currency in common use there, as compared with our own, it was considered by this Court that it was competent for him to testify to the value of Canada money, and to state its equivalent in our own.

The principle of these decisions justified the evidence given on the trial by the witnesses as to the value here of the money called for, in Canada, by the covenant on which the defendant in error based her claim.

Having come to this conclusion as to the character of the evidence given and required, in relation to the amount called for in our money, it becomes unnecessary to consider the question raised upon the admission of the Canadian laws.

The objection to that part of the charge, which in substance instructed the jury, that, if they should find for the claimant, she would be entitled to recover, according to the then value of Canada currency, in legal tender notes cannot be supported. If any error was committed by this direction, it was not against the defense. It was urged on the trial on the part of the claimant, that the damages should be ascertained by adding to the sum of each payment, when due, as measured by American money, the difference at that time, between such money and that of Canada; and there are many authorities which would support that course. The charge, however, as already noticed, required the jury to add to the whole sum as measured by American money, the difference as it existed at the time of the trial, while the evidence shows that there was a steady decline in the difference between the two kinds of money, in the intervals, owing to a gradual appreciation of our money. It is seen, therefore, that the rule given by the charge was favorable to the defense, and was adapted to reduce the damages far below what they, would have been, under the rule invoked by the defendant in error. Upon reflection, we are unable to perceive how the Court could have given an instruction more favorable to the estate, unless a recovery regulated by a gold standard, and made collectable in gold, should be supposed to be so. But if a course of that kind was practicable or legally admissible, a point we do not determine, we are unable to discover how it could have benefited the estate. Certainly no claim was set up by plaintiff in error for a finding in gold coin, and we are not to presume that one was desired.

In the recent case of Dalrymple v. Sheehan, 19 Mich., 839, where one part owner of a vessel had incurred expense for repairs and equipments which involved the procurement of Canada money, we held that the premium necessarily paid in American money, to obtain the Canadian funds, was a proper charge against the other part owner. It appears to us that the charge finds support in the rule laid down in that case.

The questions belonging to the second head relate to the admission of evidence for the claimant, in reply to evidence given by the defense. And all the allegations of error, falling under this head, were only so far noticed in the brief for plaintiff in error as to suggest that they were relied on.

Upon the argument, but two or three of them were commented on by counsel for the estate, and we have been compelled to go through this branch of the case almost wholly unaided. In doing so we have concluded that the great body of objections now referred to, are so clearly untenable, that they demand no greater notice from us, than they received from counsel for plaintiff in error.

This opinion makes it necessary to advert only to such of the rulings as were questioned on the argument by counsel for the estate.

It appears from the bill of exceptions that when the defense proceeded to prove the fraud alleged in the special notice, the Court, under objections by claimants’ counsel, permitted a very wide range of inquiry, and allowed a course of examination more extensive, perhaps, than a rigid and technical application of the rules of evidence might be thought to justify. This is a subject, however, that must always present many difficulties to a court of review. It is not to be expected that a bill of exceptions can exhibit a case to an appellate court, in the fullness, and with all the lights and shadings in which it appears in the trial court. The appearances of the witnesses upon the stand, their way of testifying, the emphasis placed upozi words and phrases, the coloring caused by peculiarities of manner, the displays of irony and jest, and the shifting expressions of countenance and the like can never be pictured upon the record. But all of these things are present to the jury, and trial Judge, and are part of the evidence.

These are actions which give rise to peculiar difficulties in deciding upon the relevancy of evidence. In cases where fraud or conspiracy form the groundwork of the action or defense, it is often a matter of much nicety for the trial court to mark out the line which separates the relevant from the irrelevant, or to determine whether a particular piece of evidence is so remote as to be inadmissible or improper as evidence in reply; and the law recognizing these difficulties has wisely permitted a considerable latitude of inquiry, and a pretty large discretion in the courts. When, upon consideration, there is doubt as to the relevancy of evidence offered in a civil case, to prove or disprove fraud, it is generally the safest course to admit it, and leave its value as evidence to be determined by the jury. And a court of review ought not to overturn a verdict in a case of that description, for error in admitting such evidence, unless clearly satisfied that the evidence should have been excluded, and that its admission, in view of the whole ease, may have prejudiced the legal rights of the plaintiff in error.

In the present case, as already intimated, the defense was, in part, that the claimant, through her husband, acting as her agent, made false and fraudulent representations to Comstock and Jackson, in respect to the quality, value, and productiveness of the oil wells, and their yield at the time of the purchase, and therefore, that he practiced fraudulent artifices, to deceive them in relation to the then condition and productiveness of the wells. In order to establish this defense, the counsel for the estate were allowed to .show negotiations between the claimant’s husband and Addison J. Comstock and Darius C. Jackson, and their sons, Darius E. Comstock and Addison C. Jackson, in respect to the property in question, and other matters connected with oil speculations, and running back to November, 1865. The defense also gave evidence to show the consideration which was agreed to be paid for the property, that Comstock and Jackson were to assume the payment of a mortgage given by the claimant to DeCau a few months before, when she purchased. Evidence was also given on the part of the estate, as to certain instructions sent by Smith to Marshall, who was running the pumps, to suspend during the night, and steam up in the morning, when Comstock and Jackson were to appear there. Evidence was likewise introduced, on the same side, to show the value of oil property, to prove what effect it would have upon a well to let it lie still for a time; to prove the productiveness of the wells in question for some time before negotiations between the parties commenced; and to prove conversations between one Ennis, the principal manager for claimant, and the witness, Marshall, before the trade was concluded,' in relation to the dropping of a pump in one of the wells.

Without referring more particularly to the testimony for the defense, it will suffice to say that it embraced a wide field as to time and circumstances, and was not restricted to the conduct and declarations of Smith, but branched out into conversations between those at work at the wells when he was not present, and into matters apparently quite remote from the real issue. The evidence was directed to show that Smith, by words and acts, knowingly misrepresented the value and productiveness of the property, and thereby actually deceived the purchasers.

In reply to this, the evidence complained of as irrelevant was admitted.

One John Q. Brainard, a witness for claimant, having shown his acquaintance with such property in the vicinity in 1865 and 1866, and that he knew one of these wells when DeCau owned it, a few months before the sale to Comstock and Jackson, was allowed to testify, under objection, as to the market value of such property along in the fall of 1865 and winter of 1866.

This evidence was certainly not very closely connected with the real issue to be tried, and it appears to have been introduced to meet certain evidence of the defense equally remote. If not technically admissible, it seems to us that its admission, in view of the evidence which had already been given by the defense, could not have prejudiced the legal rights of plaintiff in error.

The question put to DeCau as to how much Smith paid him for one of the wells, called for evidence tending to show the difference between the price paid by claimant,' and the price for which she sold; and had some connection with the purchase by Comstock and Jackson. They assumed the payment of part of the purchase money going to DeCau, and the price Smith agreed to pay DeCau, was a circumstance, though a very slight one, bearing upon the honesty of his bargain with Comstock and Jackson, and we cannot regard its admission in reply as erroneous.

The claimant’s husband was allowed to testify, under objection, as to what was said by the men engaged in making one of the wells, about the products brought up, and what they indicated. We think the objection to this inquiry was not well taken.

It was certainly competent for Smith to show that he was unaware of the untruthfulness of the representations imputed to him, and that he had grounds for believing them to be correct, and the statements made to him by those engaged in making the well, and who were experienced in such matters, had some bearing upon his knowledge of the truth or falsity of the alleged representations.

The same is true of the evidence of Smith as to his inquiries respecting the productiveness and quality of the DeCau well, and the representations made to him when he bought. In oases of this kind, when the question is as to the relevancy of evidence in reply, the point is not whether the evidence offered is the most convincing or persuasive, but whether it tends to cut down, limit, explain, or obviate the defense in any part of it, or to illustrate some legitimate answer to the defense. In order to be relevant, it is not requisite that the testimony should be essential. It may be cumulative, it may be supererogatory, and still be relevant.

Having noticed those points which the counsel for plaintiff in error deemed of sufficient importance to be touched upon, on the argument, and having considered the remaining allegations of error; we are of opinion, that the record discloses no error of which the estate may rightly complain, and that the judgment of the Circuit Court ought to be affirmed with costs.

Campbell, Oh. J. and Cooley, J. concurred.

Cheistiancy, J.

I concur fully in the opinion of my brother Graves, except so far as relates to the testimony which the plaintiff below was allowed to give against defendant’s objections, to show what the well was represented to her to produce at the time she purchased from DeCau, what it had produced when previously owned by DeCau, and what she paid when she purchased it.

The defendant defended on the ground that his intestate had been induced to make the purchase, and to give the mortgage (upon which the action was brought), by the false and fraudulent representations of the plaintiff’s agent, (her husband), that the well was a five-barrel well, and was then producing five barrels of oil per day, when in fact it did not produce over about one-fourth of that quantity.

The evidence tended to show that such was the representation of her agent, who was at the place in charge of the well, and well acquainted with its real production; that this representation was a chief inducement to the intestate to make the purchase, and that he did make the purchase, relying upon its truth.

The evidence also tended to show that the representation was false, that the well did not produce more than one-fourth the amount respresented, and that her agent knew it.

It was, I think, no answer to such a defense, and did not tend to answer it, to show that the well had, at some former period, when owned by DeCau, produced this amount, nor to show what the plaintiff below had given for it when she purchased it, nor what it had been represented to her to produce when she purchased. If she had been defrauded by DeCau, it was no justification or excuse for her to defraud the deceased by the like or any other means, in selling to him.

All such evidence was, it seems to me, wholly inadmissible, and calculated to mislead the jury, to the prejudice of the defendant. On this ground alone I think the judgment should be reversed and a new trial awarded.


source: Caselaw Access Project

author: Cooley, J.

license: Public Domain

text:
    The People ex rel. Charles H. Estes v. John Denahy.

      Constitutional law ; Title of legislative acts. A law which provides for the expenditure of certain highway taxes on two distinct State roads ; and for the location and construction of a third State road, and for the expenditure of certain other taxes upon that; (No. U71 Laws of 1867, p. 96k), is repugnant to Artk, § SO of the Constitution, that “ no law shall embrace more than one object, which shall be expressed in its title.”

      Heard April 26.

      Decided May 10.

    Application for mandamus:

    By Charles H. Estes, Commissioner appointed under the act of 1867 (No. Jfll, p. 964-), appropriating certain nonresident highway taxes for the improvement of certain State roads, and providing for the construction and improvement thereof, to compel John Denahy, Treasurer of the township of Elk Rapids, to pay to the relator, certain moneys in the possession of Denahy, and which the relator claims, were appropriated to the improvement of the Traverse Bay and Houghton Lake State Road, — one of the roads mentioned in the act.

      Dwight May, Attorney General, for relator.

      G. V. JV. Lothrop, for respondent.
   Cooley, J.

• The relator in this case is the Commissioner appointed by the G-overnor for the purpose of receiving and expending the moneys appropriated to the Traverse Bay and Houghton Lake State Road by “an act appropriating certain non-resident highway taxes for the improvement of certain State roads, and providing for the construction and improvement thereof,” approved March 27,1867. Laws 1867, vol. 2 p. 964. The respondent is Township Treasurer of the township of Elk Rapids, and has in his possession certain of the moneys, which, by the act aforesaid, were appropriated to the Traverse Bay and Houghton Lake State road; but which he refuses to pay over, on the claim that the act is in violation of that clause of the Constitution of the State which provides that “no law shall embrace more than one object, which shall be expressed in its title.”— Art. 4> § ®0.

A mandamus was applied for to compel such payment.

The first section of said act provides that all the nonresident highway taxes assessed and unexpended for the year 1866 and to be assessed for five years thereafter, in certain specified townships in the counties of Wexford, Grand Traverse and Leelanaw, shall be appropriated for the improve-meat of that part of the Newaygo and Northport State road, which lies north of the south line of Wexford County. The second section appropriates all the non-resident highway taxes assessed and unexpended for the year 1866 and to be assessed for five years thereafter in the north half of Manistee County, and in the County of Benzie, except in the township of Homestead, to the improvement of that portion of the Allegan, Muskegon and Traverse Bay State Boad, which lies north of Manistee river. The third section appropriates all the non-resident highway taxes assessed and unexpended for the year 1866 and to be assessed for five years thereafter, in the east half of Wexford and Traverse Counties, and in the unorganized counties of Crawford, Kalkaska, Missaukee, and north half of Boscommon counties, and in two townships in the County of Clare, for the purpose of laying out and constructing a State road at some point at or near the head of Grand Traverse Bay, in Grand Traverse County, to some point at or near Houghton Lake, and to be known as the Traverse Bay and Houghton Lake State Boad. The eighth section provides for the laying out of the last mentioned road; the ninth section repeals contravening legislation; and the remaining sections provide for the appointment of commissioners, for the payment to them of the moneys specified in the preceding sections, and for their annual report.

We have found insurmountable difficulties in our eflfort to sustain this law, since it cannot be denied that the three roads, the improvement or construction of which is provided for by it, appear to be three distinct objects of legislation, which might, with entire propriety, have been provided for by separate acts, and indeed, ought to have been, in view of the care which is taken by the Constitution to compel each distinct object of legislation to be considered separately. People v. Mahaney, 13 Mich., 494; State v. County Judge, 2 Iowa, 282 ; Davis v. Bank of Fulton, 31 Geo., 69. These objects have certainly no necessary connection, and being grouped together in one bill, legislators are not only precluded from expressing by their votes their opinion upon each separately; but they are so united, as to invite a combination of interests among the friends of each, in order to secure the success of all, when, perhaps, neither could be passed separately. The evils of that species of omnibus legislation which the constitution designed to prohibit, are all invited by acts thus framed; and although we have no reason to suppose that those evils actually existed in the present case, or that there was any purpose on the part of the Legislature to disregard the constitutional requirement, yet we cannot be governed by these considerations, if the act is of a class which is actually prohibited.

The act, it will be seen, is not one which establishes a general system for the expenditure of non-resident highway taxes, or for the construction of State roads. It singles out two State roads, and provides for the expenditure of certain non-resident high way taxes upon each. It then proceeds to provide for the location and construction of a third State road, and the expenditure of certain other taxes upon that.

The three objects are as separate and distinct as the three great lines of railroads crossing the state, and the same arguments which might be advanced in support of this act, would support also an act which would single out those three railroads for special and peculiar legislation, in respect to which the roads have no necessary connection. A combination of that description would at once be pronounced unconstitutional by general consent; but it would not differ at all, in principle, from the present act, in which the combination of objects is equally apparent and equally unnecessary for any proper purpose of legislation. The only difference there could be in the two cases would be that in the case of a combination of interest among powerful corporations to secure favorable legislation on their behalf, a purpose to evade the constitutional requirement would generally be very apparent, while in this ease we do not imagine it to have existed at all; but the question of violation of the Constitution is not a question of intent. In most' instances, we suppose, in which the provisions of that instrument have been disregarded, it has been through inadvertence rather than of deliberate purpose. The present we regard a case of that character, and however much we may regret being forced to this conclusion, we do not perceive that we have any choice, but to deny the writ of mandamus which was applied for.

The other Justices concurred.


author: Grates, J.

text:
    Albert Weston v. Olive McDowell.

      Pleading and evidence: Common Count for goods, wares and merchandise. Evidence of the sale of animate 'property is admissible tinder tbe common count for goods, wares and merchandise sold and delivered.

      Heard May 3.

      Decided May 10.

    Error to Oakland Circuit.
    This was an action of assumpsit brought by Olive McDowell, against Albert Weston, before a Justice of the Peace, in which the plaintiff declared in the words following:
    “ The plaintiff declares against defendant for goods, wares and merchandise, sold and delivered; cash lent; and work and labor done, — all within the last six years, to the amount of ($300 ) three hundred dollars.” The defendant not appearing, a plea of general issue was entered in his behalf by the Justice, who, after hearing testimony, rendered judgment in favor of plaintiff, for one hundred and thirty dollars damages and six dollars costs.
    The defendant appealed to the Circuit Court for the County of Oakland, where he filed a plea of the general issue accompanied by a notice of set off. Upon the trial of the cause, the plaintiff offered evidence to show that in the spring of 1867, she sold the defendant a yoke of oxen, and for the price of one hundred dollars. To the admission of this evidence the defendant objected that such proof was not competent under the declaration, — there being no count in said plaintiff’s declaration charging defendant with said cattle. The Circuit Judge overruled the objection, and received the evidence, to which decision the - defendant excepted.
    A 'judgment having been rendered for the plaintiff below on this evidence, the defendant removes the record to this Court by writ of error.

      Grofoot <& Brewer, for plaintiff in error.
    It is a general rule that in pleadings, words must be construed according to their general acceptation.— # GMtty Pleading, 218. — We think the words, goods, wares and merchandise, cannot include cattle or oxen j that neither of said words in their general acceptation, include animate objects. Bouvier says “the term chattels is more comprehensive than that of goods, and will include all animate as well as inanimate property. — 1 Bouvier's Diet., 608, title goods. — All our forms of pleading seem to indicate that where a party seeks to recover for cattle sold and delivered under the common counts, it is necessary to use the words cattle or chattels, or something more comprehensive than that of goods, wares and merchandise. — 1 Ghitty’s Pleading, 54-

    Mr. Chitty says, “It seems that the price or value of fixtures, and perhaps crops, sold, may be recovered under the common count, provided there be inserted therein, besides the word goods, the term, fixtures, crops, chattels, effects, &c. If cattle were sold, that word should be introduced into the count; though the word chattels, which includes animate as well as inanimate things, would suffice.” Nor, he says, is the price of fixtures or cattle recoverable, it seems, under a count for goods sold; the words, chattels, fixtures, cattle and effects, should be added.— Ghitty on Gont., —Neither do the words, goods, wares and merchandise, include building materials. — 6 Taunton, 825; Ghitty on Gont., ifi2.— “Movables consist of, — first, inanimate things such as goods, plate, money, jewels, &e.; and secondly, animate things, as animals, &c.” — 2 Stephen’s Com., 67.

      Williams on Executors, vol. 2, 10H, speaking of what property passes in a devise, under particular words, says, the word, “goods,” is nomen generalissimum, and when construed in the abstract, will comprehend all the personal estate of the testator, as stocks, bonds, notes, wares, plate, furniture, &c. And to sustain the above principle, the author cites — Ryal v. Rolle, 1 Atk., 180, 2; Crichton v. Symes, 3 ib. 62; Stukey v. Stukey, 1 Hill S. C. Ch. 309.

    None of the above cases go far enough to sustain the broad doctrine laid down in the text; and we have been unable to find any case holding that the word goods, in its general acceptation, includes animate objects. It is true that the word goods, in wills, has at times a very broad signification, but its meaning is generally limited or enlarged by the context of the will; and in pleadings, there is no such controlling influence, and the word must be used in its general acceptation.

      A. G. Baldwin, for defendant in error.
    The words “goods, wares and merchandise” are very general in their character, and, as I believe, comprehend all property of a personal nature. The usual printed forms of the common counts of a declaration contain only the word “ goods,” and the word “ chattels,” is seldom or never found. The word “goods,” was sufficiently comprehensive to entitle the plaintiff by law to recover.
    In Webster’s Dictionary, edition of 1856, “ Goods,” is defined as “personal or movable estate as horses, cattle, utensils, etc.; and in the edition of 1864, the word is defined as — “a valuable possession or piece of property; goods, wares, commodities, chattels.”
    In Worcester’s Dictionary, the word is defined as, “the term goods comprehends a person’s furniture, and other movable and personal property; cattle, implements of husbandry, etc.”
    At one time it was supposed that shares in an incorporated company were not included in these terms, and the twelve Judges were equally divided upon the question. The question has since been settled in England, that shares are included under the term “goods.” — Pickering v. Appleby, Comyn’s Rep., 354 — But by the whole current of American authorities, that question is now finally settled. — In Tisdale v. Reed, 20 Pick., 13, the question was fully examined by the Court, Chief Justice Shaw giving the opinion.
    It will be considered that this was an action brought before a Justice of the Peace. No bill of particulars was called for, and no demurrer or objection interposed to the looseness or generality of the declaration. Declarations in Justices’ Courts have always been favored. — People v. Foote, 1 Doug., 102; Hartford v. Holmes, 3 Mich., 460.

   Grates, J.

The defendant in error prosecuted Weston before a Justice, and declared orally for the price of goods, wares and merchandise, sold and delivered, and having recovered judgment, Weston appealed to the Circuit Court.

The declaration remaining as it was before the Justice, the plaintiff in error pleaded the general issue thereto in that court, and the parties proceeded to trial on that issue. The defendant in error, under objection, gave in evidence the sale by her to Weston of a yoke of oxen, and judgment again passed for defendant in error. The only question is, whether the sale of the oxen was provable under the pleading.

It is claimed on the part of Weston, that the phrase “goods, wares and merchandise” did not authorize proof of the sale of animate property, and that the word “chattels” or “cattle” or some equivalent or equally comprehensive word or term was needed to admit of such evidence as was given on the trial.

There has been some diversity of opinion as to the legal scope in pleading, in criminal as well as civil cases, of the words “goods, wares and merchandise;” and some writers of authority have supposed it to be necessary, or at least the safer course, to use the word “ chattels ” in the common count, when the price of cattle is sought to be recovered; and it is possible, that in earlier times, when the rules of pleading were much more technical than at present, and the meaning of “ goods and merchandise ” according to general and approved usage, was somewhat more narrow than it has beeome since, it was necessary to take the precaution suggested.

There seems, however, to be no good ground, at this time, for the distinction which has been mentioned, when the question relates to the structure of the common indebitatus count, for property sold and delivered. For whatever may have been the received meaning formerly of the words goods and merchandise, it is quite certain that at present according to our standard linguistic authorities, the word “goods” may well include oxen. The language of the law itself affords an example of the use of the words found in this declaration, in a sense broad enough to include cattle. The third section of the statute of frauds, — § 8181^ Comp. L.— provides that “ no contract for the sale of any goods, wares or merchandise, for the price of $50 or more, shall be valid, unless,” &c., and the succeeding section provides what shall be a sufficient memorandum in case of a sale of “ goods ” at auction. It has always been considered that the phrase “goods, wares or merchandise” in the third section, and the word “goods” in the fourth of this statute, embraced animate as well as inanimate property, and no reason is perceived for giving a narrow meaning to the words when used in the common count.

The goods themselves are not to be recovered in the action or any damages for them. What is sought is to recover damages for nonpayment of the price for which the articles were sold, and hence the goods are said to be quite collateral to the action. The party need not be misled by the general language of the declaration. He can always compel a more specific and detailed statement of the items of the plaintiff's demand, by calling for a bill of particulars.

The judgment below should be affirmed with costs.

The other Justices concurred.


author: Christiancy, J. Campbell, Ch. J. Cooley, J.

text:
    Bidwell Chapman and George P. Chapman v. Keystone Lumber and Salt Manufacturing Company.

      Assumpsit upon a statutory liability: Act No. 231 of 1868 for floating logs. The remedy of a party, who, under the act of 1863 (No. 221, p. 374) clears a river of obstructions occasioned by jams of logs, is not confined to the enforcement of the lien given by that act; but an action of assumpsit may be maintained upon the provisions of the act, which declare that the logs may be run at the cost and expense of the owner of them, and that such owner shall be liable for such cost and expense.

      Heard May 3.

      Decided May 10.

    Error to Bay Circuit.
    Bidwell Chapman and George P. Chapman brought an action of assumpsit in the Circuit Court for the County of Bay, against the “Keystone Lumber and Salt Manufacturing Company,” declaring specially: “ For that whereas the said defendant, to wit: on the first day of April, 1868, caused to be put a large quantity of logs, to wit, ten thousand logs into the Rifle River, the same being a navigable river in said county, for the purpose of floating the same to the place of manufacture; and whereas the said defendant did not make adequate provisions nor put on sufficient force for breaking jams of such logs and for running and driving the same in said river; and whereas said logs so put in formed jams in said river and the navigation of said river was thereby obstructed, and whereas the said plaintiffs had a large quantity of logs in said river in the rear of said defendant’s said logs, and whereas the said plaintiff's in order to float and run their said logs had to and did cause said jams so formed to be broken, and did run and drive said defendant’s said logs a long distance, to wit, twenty miles, which said breaking of jams, running and driving said logs was well worth the sum of seven hundred dollars, and for which said sum said plaintiffs claim a lien upon said logs of said defendant under and by virtue of Act No. 221 Session Laws of 1863, whereby the said defendants became liable to the said plaintiffs under and by virtue of the provisions of an act of the Legislature of said State, entitled an act to provide for the floating of logs and timber in the streams of this state, “Approved March 16, 1861,” and the amendments thereto, which said sums the said defendant, in consideration of the premises, afterwards faithfully promised and undertook to pay. Yet the said defendant, not regarding its said promise and undertaking, wholly neglected and refused and still doth neglect and refuse to pay said plaintiffs said sum of money or any part thereof to said plaintiff’s damage one thousand dollars.”
    The declaration contained a second special count, and the common counts in assumpsit. The defendant pleaded the general issue and gave notice of a set off.
    On the trial “ the Court charged and directed the jury to bring in a verdict for the defendant, for the reason that the plaintiffs did not take and retain such possession of the property as would. be sufficient to preserve their lien, and were not therefore entitled to maintain an action of assumpsit ; that when the plaintiffs suffered the logs to go into the boom, and did not obtain the promise of the boom company to take charge of them for said plaintiffs, and in answer to their request, were notified by the boom company that they would not take charge of the logs for the plaintiffs, they thereby lost their jpossession of the same.” To which charge the plaintiffs excepted. Under these instructions the jury found a verdict in favor of the defendant; and the judgment entered thereon is brought into this Court by writ of error.

      Marston é Hatch, for plaintiffs in error.
    The remedy given by the act of 1861 {pp. 557-8) was clearly one against the property; the constable could, by virtue of his execution, only levy on the particular logs run, and the person claiming the lien was required to hold possession of them. The owner was not personally liable. The Legislature not considering the remedy here given sufficient, in 1863, {Laws 1868, p. 871¡), amended the act of 1861 by substantially re-enacting the first section, making, however, the oivner of the logs so run personally liable for the cost and expense of running the same.

    The act in question is remedial: passed, not only to give a remedy, but to supply defects in the act of 1861. It being remedial, then, everything is to be done in advancement of the remedy that can be given consistently, with any construction that can be put on it. — Sedgwick on Stat., and Const. Law. 860,

    The person running or driving logs had a complete and perfect remedy against the property under the act of 1861. If the act of 1861 gave a complete remedy against the property, and the act of 1863 does not give an additional or different remedy, then, for what purpose did the Legisture attempt to amend the act of 1861 ? No rule is better settled than in construing a statute, effect must be given to every part of it; one part must not be so construed as to render another part nugatory, or of no effect. — People v. Burns, 5 Mich., 115.

    The question is for the first time presented to this Court, and must be disposed of upon principle. The statute imposes upon the defendant a moral obligation to pay the claim by declaring it to be personally liable, and in the language of Lord Abinger, “the action may be sustained on the ground of morality and justice. The maxim of the English law is, to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of substantial justice.” Accordingly, the principle upon which courts of law act is to administer justice to a party who can make that justice appear by enlarging the legal remedy, if necessary, in order to attain the justice of the case.— Broom’s Legal Maxims, 77.

    The action of assumpsit is an equitable remedy, and is most favorable to the defendant. To compel plaintiffs to retain their lien, would require additional services on the part of the plaintiffs, increase the cost and expenses to defendant, and prevent the defendant from taking possession of, and manufacturing the logs; it would be very inconvenient, and an argument drawn from inconvenience is forcible in law. Such a construction should not be put upon the statute, unless it is capable of receiving no other.

      Green & Scofield, for defendant in error.
    On the trial in the Circuit Court no claim or offer of proof was made, except under the first count of the declation, and the statement made, and which was taken as the evidence in the case for the purposes of the trial, did not assume any express promise of payment by the defendant.
    1. If the plaintiffs were entitled to a lien upon the logs, they lost it by their failure to retain possession of them. 3 Pars, on Cont., 243, 4l Jordon v. James, 5 Hammond, 88, 98 ; 3 East, 235 ; Nevan v. Roup, 8 Clarke (Iowa), 207; Crouston v. Phil. Ins. Co., 5 Binney, 538; Holley v. Huggeford, 8 Pick., 73; Bailey v. Quinte, 22 Vt., 434.

    2. The statute creates a liability of the owner for the cost and expense of breaking of jams, -&c., and. provides a remedy, and to that remedy the plaintiffs are confined. — Renwick v. Morris, 7 Hill, 575; Stafford v. Ingersoll, 3 Hill, 38; Almy v. Harris, 5 Johns., 175; Edwards v. Davis, 16 Johns., 281.

    The plaintiff's may have a remedy at common law, if the stream was unlawfully obstructed, by an action on the case, but not in assumpsit. The creation of a liability by the first section, if there was no provision for enforcing it, would not give the remedy by assumpsit, but only in case. The action of assumpsit is given by the third section, for establishing and enforcing the lien provided for, and when the lien does not exist the party can have no remedy under this statute. The obligation created by the statute can only be enforced in the way provided by the statute, that is to say, by securing the lien upon the logs and retaining it by holding the possession and prosecuting an action of assumpsit to establish and enforce it.
   Christiancy, J.

The only question in this case is whether, under the act of March 20, 1863, {Sess. Laws, p. 874), a plaintiff, who, in floating his logs in a navigable stream, has, for the purpose of clearing the stream from obstructions by jams of defendant’s logs, caused such jams to be broken and the defendant’s logs to be run under the circumstances authorized by the first section of that act, can, without reference to the lien given by that section, sustain an action of assumpsit against such owner personally for the cost and expense of breaking such jams and running the logs; or, whether the remedy given by the act is intended to be confined exclusively to the enforcement of the lien provided by that act in the nature of a proceeding in rem.

The first section provides that such logs may, under the circumstances there specified, be run, the jams broken, and the banks cleared, “at the cost and expense of the person owning such logs, etc., and such owner shall be liable to such person for such cost and expense.”

If the act had stopped here, an action of assumpsit in our opinion, might be sustained against the owner personally, for such costs and expenses, just as clearly and upon substantially the same principles, as if the plaintiff had done the same work and incurred the same expense “at the special instance and request” of the defendant. Had the work been done and the expenses incurred at the request of the defendant, it would only have created the liability to pay. That liability would, upon the principles of pleading in the action of assumpsit, have been alleged as the foundation of the promise to pay. The statute creates the same liability for the same labor and expense under the specified circumstances. This liability, in both cases alike, creates the legal duty of the defendant to pay. And this duty the law enforces in an action of assumpsit, under the name or theory of a promise to pay; adopting the conclusive presumption that every man promises to pay what it is his legal duty to pay.

Without any aid therefore from any subsequent provision of this statute, the remedy of the plaintiff by a personal action of assumpsit was complete and perfect, unless there is something in the subsequent provisions to modify or limit the effect of that already cited; and we have been able to discover nothing in any part of the act which in any way affects or modifies this provision.

The act, after the provision cited, making the owner liable for such costs and expenses, proceeds, “ and such person, &c., so causing such jams to be broken, or such logs, &c., to be run, &c., may have a lien upon such logs, &c., for his or their reasonable charges and expenses, &c., and shall be entitled to retain possession of such logs, &c.” Section two provides how this lien may be discharged by the owner giving bond.

Section three provides for enforcing this lien by an action of assumpsit against the owner, “to determine and satisfy the amount of the lien, and that the property so held may be levied upon and sold, to satisfy any judgment,” in such action, with the cost and expenses of providing for the care and safety of such property.

Section four makes special provision for enforcing the lien by a proceeding against the property, when the owner is unknown or out of the jurisdiction, by petition, publishing notice, ¿so., in which the owner may appear and defend, but if he do not, the petitioners may proceed to trial ex parte. But in this proceeding, as well as in the action where the owner is served, the judgment can only be satisfied “ out of the property covered by the lien.” All of the provisions in the act following that which makes the owner personally liable, are confined to the enforcement of a lien, by action, against the property covered by the lien.

It is plain that cases may frequently occur under this act when the property upon which the plaintiff has been able to secure and retain' a lien, may be quite insufficient to pay such costs and expense. And from the nature of the peculiar risks to which such property and its possession may be exposed, it may not unfrequently happen, that the lien may be lost without the fault of the plaintiff; and if his remedy be confined to the sale of the property upon which he has been able to secure and retain a lien, he must fail to obtain satisfaction, as no special means are provided by the act for enforcing the personal liability of the defendant.

Such a construction completely nullifies the provision whicb renders the defendant liable to such costs and expense, and upon this construction that provision might as well have been omitted. The property alone would be liable, and not the owner.

We are satisfied, such was not the intention of the act, but that the provision making the owner liable, was intended to be complete in itself, and enforcible by action independent of the provisions for enforcing a lien; that the provisions for enforcing a lien were intended to give a further and optional remedy.

We do not think it necessary here to analyze the act of March 16, 1861, of which this is an amendment; but a careful examination of that act has confirmed us in the interpretation we have given to this.

The judgment of the Circuit Court must therefore be reversed with costs, and a new trial awarded.

Grates, J. concurred.

Campbell, Ch. J.

I think the Circuit Court decided correctly, in holding that no action of assumpsit can be maintained under the statute for regulating the running of logs, by any one who has relinquished his lien upon the property which he has once taken into his possession for the purpose of breaking jams and running it.

So far as any mere personal remedy is concerned, it cannot be claimed that an action of assumpsit is any more appropriate or desirable than an action on the case, for the obstruction and nuisance caused by log jams, which result from want of sufficient force to break them. There was no need of legislation for any such purpose, and such is. not the fair inference from legislative action. The real grievance was that the owners were not always accessible or responsible, and provision was needed whereby the property itself, which caused the mischief, could be held to secure indemnity. There was already a sufficient personal responsibility, if it was desired to pursue the person.

The statute of 1863, under which this action is expressly brought, after declaring that the offending logs may be run at the cost and expense of the owners, and that the owners shall be liable for such cost and expense, proceeds in the same sentence to declare that the person running them shall have a lien, and shall be entitled to retain possession to satisfy his charges, expenses and costs, “ until the same shall be determined, satisfied and paid in the manner hereinafter prescribed.”

After providing that the property may be bonded, the law proceeds to provide how redress shall be had upon the statutory right. It declares that any person, &c., “ claiming any lien as aforesaid,” may bring aii action of assumpsit to determine and satisfy the amount of such lien. This action is to be brought in the county where the property is situated, instead of where one of the parties resides, as in all other cases of assumpsit. And the judgment is to be satisfied by issuing execution against the property. In cases where the owner is not found, proceedings are had by petition and publication, and the property is sold by order, without execution.

These remedies cover all cases where the owner is found or not found, and provide amply for such redress as can be desired against the property. As already suggested, the action on- the case gave a sufficient recourse against the person, when the property was not pursued, and was at least as good a remedy as assumpsit.

There is not the least necessity for straining the statute, in order to secure a personal remedy, and it is certainly an elementary principle that where a statute creates a right and accompanies it with a specific remedy, it excludes other remedies. There never was any common law right resembling those provided for by this statute, and it was not claimed that any such existed. It is very plain that the liability of the owners to pay these costs and charges is purely statutory. We have no more right to give the action of assumpsit where the statute has not given it, than to create the liability which it is sought to enforce by it.

Even if the statute had continued as first enacted in 1861, when it was as distinctly provided as now, that the logs should be run at the “ charge and expense of the owners.,” and when the action of debt provided for was nugatory in many respects, it would have been a strained construction to assume that assumpsit would lie. No doubt the Legislature may allow any form of action to be used, whether conformable to common law usage or not, but the common law action cannot lie except where the common law incidents exist. There is no principle which will fit the common law action of assumpsit to a statutory liability raised in invitum, and some other remedy would have been necessary if the statute had not provided any. — Cornyn’s Digest, “Action upon Statute.”— The Legislature has no general power to authorize one person to perform services upon the property of another, or to assume charge of it for his benefit. Such legislation would be clearly invalid. This statute does not attempt to authorize any such unlawful meddling. It is not aimed at all at providing for the management of logs for the especial benefit of their owners. It is designed entirely for the advantage of those who are obstructed by their neighbors. No one can interfere with the logs of others until it becomes necessary for his own safety to do so, and no one can continue to keep up such interference beyond what is necessary to prevent obstructions, and to preserve his lien for expenses necessary to that end. It is merely a right to abate a nuisance, and to retain a lien for reimbursement. The log-owner gets no benefit from it beyond what accrues from the logs themselves, and for this the logs are ample security. If they are not, there is at all events no other lien created on any thing else, and when logs will not pay the expense of running, it is not likely that any one will expend a great deal of money in clearing away such hindrances.

The proceeding is analogous to that for impounding beasts, where the injured party has his option to bring his action for the injury which he sustains, or to distrain. The law provides for ascertaining the amount of damages and expenses; it speaks of it as the amount for which the owner is “ liable ” ( G. L. § 5056) and as the sum due from the owner or keeper of the beasts.” ( O. L. § 5057). It provides “ if the sum so found to be due shall not forthwith be paid,” the property may be sold. § 5058. The words importing debt and liability are fully as strong as any in the statute before us, but it has never been supposed that in addition to the statutory remedy, the party could be regarded as entitled, inferentially, by virtue of these clauses, to an action of assumpsit, in lieu of the action of trespass or case, if he should sue directly for the injury, instead of distraining, or should waive a sale.

There is no hardship and no injustice in compelling a plaintiff to elect between his statutory and common law remedies. In the case before us the declaration is framed on the statute, and avers that the plaintiff claims Ms lien. This is a condition of suit. He had in fact, as he concedes, waived his lien. He thereby debarred himself from claiming under the statute, and the Court below in so holding, was sustained by legal principles.

Cooley, J.

I concur in the opinion of my brother Christiancy. I am unable to discover any other purpose in some of the provisions of the act of 1863, but to give to a party, where he has been compelled, in order to run his own logs, to run those also belonging to other parties, who have made no provision for that purpose, a personal action for the recovery of the proper compensation. It is true he might have had an action at the common law to recover damages for the injury caused by the destruction of his rights; but an action on the case for this purpose was a very inadequate, as well as very uncertain remedy. The damages recoverable were not liquidated or definite, and no such remedy aided the party at all in running his logs. The power to send the logs forward was the most valuable part of the remedy given; but the right to maintain an'action for damages which are certain or capable of being rendered so, is a much more valuable one than a right of suit, where the damages are uncertain and almost wholly at large. I have no doubt the purpose here was to give the more valuable and simple remedy.


author: Graves, J.

text:
    John W. Phillips v. George Jacob Stauch.

      Appeal in Chancery: Rearing in the Supreme Court. Where a case has been heard in the Court below upon pleadings and proofs, and comes into this Court by appeal, if the pleadings be in substance sufficient, objections of a formal nature will not be regarded. — Dye v. Mann, 10 Mich., 201.

      Specific performance; Contract to convey a homestead.. A deed by a husband, not signed by his wife, of premises occupied by them as a homestead, is not merely voidable, having a contingent operation as to the homestead; it. is wholly invalid. And a contract by the husband to make such a conveyance, intended to have a direct and present operation, will not be specifically enforced. — Ding V» Burt, 17 Mich., U65.

      Compensation in lieu of specific performance. In a case where the value of the property, which includes a homestead, and which the husband contracted to convey, exceeds the maximum allowed as a homestead, and the premises are also subject to the contingent dower of the wife,1 the adjustment of compensation, together with a decree for a partial performance, would be so difficult, that it ought not to be attempted.

      Heard May 5.

      Decided May 10.

    Appeal in Chancery from Oakland Circuit.
    John W. Phillips filed his bill in the Circuit Court for the County of Oakland in Chancery, to obtain the specific performance of a contract, by which George Jacob Stauch agreed to convey to him, a farm in Oakland County, of about ninety-two acres; on which, at the time of the contract, Stauch was residing with his family. The facts of the controversy were settled by stipulation, as follow:

      “First. That on the 12th day of January, 1869, the said defendant was the owner, seized in fee, of the premises described in the complaint’s bill of complaint; and that the defendant was then in the possession of said premises, and that upon that day he, the defendant, made, executed and delivered to said complainant a bond for a deed of said premises, upon an agreement for the sale of the same by the said defendant, to said complainant. This purchase, by said complainant, included the wheat on the ground, and the coarse fodder which should be on the premises on the first day of April, 1869. Also, that the complainant was allowed by said defendant to take possession of said premises under said agreement to purchase, on or about the 20th day of March, 1869; and he moved on said premises with his family, and has ever since remained in possession of said premises, under and in pursuance of said agreement.”
    The bond referred to was conditioned that the defendant should convey the premises to the complainant by a good and sufficient warranty deed, duly witnessed, &c., on or before the first day of April, A. D. one thousand eight hundred and sixty-nine: “ Provided that the said John W. Phillips, his heirs, executors, administrators or assigns, pay to said George Jacob Stauch, for the said land as follows, fifty dollars per acre: Fifteen hundred dollars on the first day of April, 1869, and the balance to be secured by a mortgage on the said land, at seven per cent, interest.”

      “ Second. On the first day of April, 1869, the parties met at Royal Oak, but the complainant not having yet received his money did not pay the said fifteen hundred dollars; said defendant demanded said money, and offered to make a deed, but the complainant told the defendant he could not pay that day, but if he insisted on the payment at once, he would get the money and pay the $1,500 in a day or two. The defendant did not on said day tender the complainant any deed, but said he was ready to make one, and he had a deed drafted but not signed. Said complainant, on the third day of April, 1869, tendered to said defendant the said sum of fifteen hundred dollars, having before the first day of April, 1869, to wit, on the day after the agreement, paid to said defendant the sum of sixteen dollars of said purchase money, and said complainant, also, on the third day of April, offered to make and execute a mortgage on said premises to secure the balance of said purchase money to said defendant, according to said bond.
    “That said complainant demanded a deed of said defendant, according to the terms of the bond; said defendant refused to accept said money or make a deed. After said third day of April, the said defendant commenced a suit against said complainant, before the Circuit Court Commissioner- of said County of Oakland, to recover the possession of the premises. Afterwards, the complainant commenced this suit.
    “On the 16th day of April, 1869, the said defendant tendered to the complainant a warranty deed of said premises, executed by the said defendant, but not executed by his wife, and said defendant demanded of said complainant the payment of said sum of fifteen hundred dollars, and the execution of a note and mortgage, for the balance of the purchase money of said premises. The complainant refused to accept said deed and pay over said money, and execute said note and mortgage, for the reason that said deed was not executed by the wife of said defendant.”
    “It is also admitted, that at the time of making said contract for the sale of said premises, said defendant had a wife, and with his wife and family resided upon said premises, as his homestead, and that afterwards, and before the first day of April, 1869, said defendant, with his wife and family moved off said premises, and into Macomb county, where he has since resided with his wife and family. That at the time he, said defendant, so executed said deed, he had a wife, and that his wife is still living, and is the lawful wife of said defendant, and she refuses to execute said deed. Afterwards, and on the said 16th day of April, 1869, the said fifteen hundred dollars was paid into Court by said complainant, in pursuance of the order of Court, dated 17th January, 1870.”
    The cause having been heard upon pleadings and proofs, a decree was entered that the defendant should within forty days execute and deliver a warranty deed, with the usual full covenants, and bearing date the 1st day of April, 1S69, conveying to the said John W. Phillips, the premises described in said bill of complaint, with the full release of the right of dower of Barbara Stauch, his wife, to said premises; but in case she should refuse to execute said release, or to join in said deed for that purpose, that then the said George Jacob Stauch execute the deed by himself as aforesaid, and deliver the said deed to the Register, to be delivered over to said complainant upon the compliance by said complainant on his part with the terms of said agreement, as hereinafter specified. These terms were the payment of the money as agreed, and the execution of a mortgage to secure the deferred payments.
    Tiie decree further “ordered, that unless the said defendant, George Jacob Stauch shall procure the release by the said Barbara Stauch, his wife, of her right of dower in said premises, there shall remain in abeyance of said purchase money the sum of one thousand five hundred and thirty-nine 33-100 dollars, (being one-third of the purchase money) of the last payment thereof, being the eight hundred dollar payment which is to become due on the first day of April, 1875; and the payment of five hundred dollars to become due on the first day of April, 1874, and the sum of two hundred and thirty-nine 33-100 dollars of the payment to become due on the first day of April, 1873, the principal of which shall not become payable until the said defendant shall procure the release of the right of dower of the said Barbara Stauch, his said wife, or until said right of dower shall become extinguished in said premises by the act or deed of the said Barbara Stauch, or by the operation of law, but that in every other respect, both as to principal payments and interest, the said mortgage shall stand and remain in full force.”
    The decree contained some further provisions to secure its enforcement.
    From this decree the defendant appeals to this Court.

      M. F. Crofoot and C. I. Walker, for complainant.
    I. It is well settled by repeated decisions of this Court, as well as others, that where it is not expressly stipulated by the terms of the contract that time shall be of the essence thereof, a court of equity will relieve a party in default, where there would be no particular hardship imposed upon the party against whom the execution of the contract is sought to be enforced. — Bomier v. Caldwell, 8 Mich., 463; Wallace v. Pidge, 4 Mich., 570; Morris v. Hoyt, 11 Mich., 9; Richmond v. Robinson, 12 Mich., 193; 2 Story’s Fq. Jur., § 775 ; 3 Leading Cases Eq., 83-4.

    II. The defendant, by his bond covenanted to execute and deliver to complainant “ a good and sufficient warranty deed duly witnessed and conveying,” &c., the premises. A conveyance, good in form, does not satisfy such a covenant unless the deed conveys a clear, unincumbered, sufficient title to all the lands. — Dwight v. Cutler, 3 Mich., 566; Pomeroy v. Drury, 14 Barb. 418 ; Clute v. Robinson, 2 Johns. 595; Judson v. Wass, 11 Ib. 525; Fletcher v. Button, 4 Comst., 396; Stow v. Stevens, 7 Vermont, 29; Tremain v. Tinning, Wright, 644 ; Dearth v. Williams, 2 Sergt. & Rawle, 498; Hunter v. O’Neil, 12 Ala., 37; Burwell v. Jackson, 5 Seld., 535 ; Swan v. Drury, 22 Pick., 485.— Where an inchoate right of dower exists, as in this case, a deed without a release of that right is not a compliance with the terms of the contract, and the purchaser is not bound to accept such a deed as a fulfilment thereof. — ■ Ra-tole on Covenants for Title, 121 to 185 ; Shearer v. Ranger, 22 Pick. 447; Jones v. Gardner, 10 Johns., 266; Pomeroy v. Drury, 14 Barb., 418; Park v. Brooks, 16 Ala., 529; Porter v. Noyes, 2 Maine, 22. — Nor on the tender of such a deed could the vendor enforce specific performance. — Fuller v. Wright, 18 Pick., 105. — But the vendee may in just such a case enforce specific performance as against the vendor, and have a deduction made from the purchase price, of the value of the right of dower. — 8 Leading Cases Fq. 72, 89, 90 ; 2 Story’s Fq., § 779; Woodbury v. Luddy, 14 Allen, 1; Davis v. Parker, 14 Allen, 94; Wright v. Young, 6 Wis. 127; Springle v. Shield, 17 Ala., 295; Hazelrig v. Hutson, 18 Ind., 481.

    III. There can be no defense in this action based upon the ground that at the time the contract was made the premises in question were a homestead.

      First. The question is not raised by the pleadings. The answer- incidentally and indirectly states that the premises were at the time of the contract occupied as a homestead, but it is not averred that it was a homestead as described in the law, that the contract was void upon that ground, or that the defendant refused to perform the same, or the wife to sign the deed thereof upon any such ground.— Kitchell v. Burgain, 21 Ill., 40. — On the contrary, the intimation of the occupation as a homestead is simply introductory to the averment that the wife refused to join in the deed and release her right of dower.

      Second. The contract was not void even if the premises at the time thereof constituted a homestead. The Constitution and the homestead law provide that a mortgage or other alienation shall not be valid without the signature of the wife.— Comp. Latos, p. 72 and § H95. — But a contract is neither a mortgage nor an alienation, nor does it effect a transfer of the homestead or create a lien thereon as would a deed or mortgage. It simply creates a personal obligation on the part of the vendor. Equity would not enforce it, and the vendee would be left to his action at law for damages. It does not conflict with the policy of the homestead law to permit the owner to incur personable obligations in relation thereto. — contra, Yost v. Devault, 9 Iowa, 60.

      Third. Before the time fixed for the execution of the conveyance, the premises ceased to be occupied by the defendant and his family and the claim that they had previously constituted a homestead is of no avail.— Williams v. Sweatland, 10 Iowa, 51; Davis v. Kelly, 14 Iowa, 525; Estate of Freeland, 16 Wis., 79; Horn v. Tufts, 39 N. H., 78.

      Fourth. The defendant has, by his conduct waived any claim of this character.

      Fifth. But the premises did not constitute a homestead in the legal sense of that term, that is: a homestead exempt from execution and sale. It consisted of 92 acres of land and was of the value of/ $4,600. Both the quantity and the value were greater than is permitted. There had been no selection by the owner of any portion thereof as a homestead. — Laws of 1.861, p 540 ; Comp. Lazos, § 4418 ; People v. Plumstead, 2 Mich., 465; Beecher v. Baldy, 7 Mich., 488.

      Sixth. But even if the defendant had a right after this contract, to select from the premises a homestead, not exceeding forty acres in extent and fifteen hundred dollars in value, he should have made that selection and tendered a performance as to the balance, and the complainant would have been entitled to such performance as Tar as that portion is concerned, with a corresponding deduction in price. 14 Allen, 1.

    The rights of the wife, if any she still has, may still be asserted, notwithstanding the decree, and there is no objection to the decree against the husband as to the homestead. Yost v. Devault, 9 Iowa, 66 ; Larson v. Reynolds, 13 Iowa, 586.

      W. B. Jackson and Ward & Palmer, for defendant.
    Enforcing specific performance is not a right to be demanded, but a power to be exercised in the discretion of the Court, and will not be decreed if there are substantial objections to the contract. — Seymour v. Delancy, 6 Johns., Ch. Rep. 222 : Chambers v. Livermore, 15 Mich., 381. — In cases where the only obstacle in the way of the execution of .the contract is che wife’s right of dower, the Court will decree a specific performance, so far as the husband is concerned, if the vendee will waive the release of the dower.— Weed v. Terry, 2 Douglass, 344; Richmond v. Robinson, 12 Mich., 193.

    The complainant in this case refuses to accept such a performance, and demands not only the indemnity of the defendant’s warranty, but also that he shall leave one-third of the purchase money unpaid till the wife submits to release her right of dower, or it is extinguished by her death. If the Court would decree that the husband should procure the wife’s release of dower, it would enforce a compliance with the decree, by imprisoning or fining him, or by subjecting him to pecuniary loss or inconvenience, till by acting on the wife’s sympathies or her interests, on account of their close connection with his, they could overcome her wishes and compel her to join in the conveyance. The Court below, by its decree, although it does not, in form, order the defendant to procure his wife’s release, yet resorts to the same compulsory measures to constrain her into giving it, that it would if it had. Such a course is subversive of the policy of our law, which carefully guards the rights of the wife; providing that she may bar her dower by joining in the conveyance with her husband, and acknowledging that she does it freely, and without fear or compulsion from any one; and is averse to the authority of the best considered cases. — Clark v. Seiver, 7 Watts, 107: Carson v. Mulvaney, 49 Penn. St., 88; Clark v. Reins, 12 Grattan, 98; Balamanno v. Lumley, 1 Ves. & Bea., 224; Aylett v. Ashton, 1 Mylne & Craig, 105.

    But, beyond the right of dower, the more important and if possible more carefully guarded right of homestead is involved in this case. A right that may be claimed not only by the husband, but enures to the benefit of the widow and minor children after his death.
    If the defendant, at the time he executed the contract, had executed a deed of the premises instead of the contract the deed would have been not voidable, but absolutely void —as far as the homestead was concerned. — C. L. pp. 72-8 pp. 1217, 1218; Beecher v. Baldy, 7 Mich 488; Dye v. Mann, 10 Mich., 291; McKee v. Wilcox, 11 Mich., 358; Ring v. Burt, 17 Mich., 495; Alley v. Bay, 9 Iowa, 509; Yost v. Devault, 9 Iowa, 60; Larson v. Reynolds, 13 Iowa, 579.

    The complainant, it is true, claims that the wife, by moving off from the premises after the execution of the contract, waived her right to a homestead in them. But such is not the mode provided by statute, independently of which she has no power to act, by which the right can be waived by her, and until she has done it in the manner provided by law, or until at least she has acquired another homestead, a locus penitentm remains open to her. — King v. Cropper, 35 Ill., 256 ; Vanzant v. Vanzant, 23 Ill., 536; C. L. pp. 1217-18; Ring v. Burton, 17 Mich., 465; Dulanty v. Rynchon, 6 Allen, 510 ; Castle v. Palmer, 6 Allen, 401, 404; Conner v. Murray, 2 Allen, 202; Ives v. Mill, 37 Ill., 73.

    But if her removing from the premises could have the effect claimed for it, it could be of no avail to the complainant in this case. Neither that act nor any other could galvanize into life a contract that is utterly void.
    The complainant entered into the contract, he now seeks to have enforced, knowing all its defects and infirmities; and that the defendant had not the power to give the title stipulated for. Under such circumstances, if he is not willing to accept such a title as the defendant can give, and such as will not expose him to litigation hereafter, that is a warranty deed, subject to the right of dower and homestead without indemnity or compensation, he should be content if he is remitted to a court of law for his remedy in damages.
   Graves, J.

The bill in this cause was filed by Phillips to compel the specific performance of a contract executed to him by Stauch for the conveyance of a farm of a little over ninety-two acres of land.

The questions discussed before us arise out of the claim of the defendant that the property agreed to be conveyed embraced his homestead, and that his wife has refused to join in any conveyance or release, by which an alienation of the homestead would be effected, or her right to dower would be cut off, and the claim on the part of the complainant, which the defendant resists, that the contract ought to be enforced with a deduction or compensation for any estate or right the defendant is unable to convey.

There is another difficulty in the case growing out of the uncertainty of the contract, as to the terms of the security to be given by complainant to secure the payment of a portion of the purchase money, but as this point was not raised by counsel, and its solution is not found essential to the decision of the case, we abstain from any discussion of it.

The counsel for complainant, in the able argument addressed to us, contended:

First, that the answer failed to present a case which would authorize a defense based on the law exempting homesteads.

Second, that supposing the pleading to be sufficient to allow a defense of that kind, that still the evidence showed that whatever homestead right the defendant may have possessed in the farm, at the time of the contract, was waived before the bill was filed. And—

Third, that if a part of the premises constituted a homestead, and the remainder was subject to the wife’s contingent dower right, the defendant should be decreed to convey whatever right and estate in the premises he can legally convey by deed executed by himself alone, and to compensate complainant by deduction from the purchase price or otherwise for the deficiency.

The foregoing propositions may be conveniently considered in the order in which they are stated.

First. The statements in the bill and the allegations and admissions of the answer are believed to be sufficiently explicit on the hearing here to admit the defense under the homestead law. When a case has been heard in the Circuit Court on pleadings and proofs, and is brought here to be heard again, as in the Court below, and the pleadings are in substance sufficient, we are not disposed to regard objections of a formal nature only. — Dye v. Mann, 10 Mich., 291.

The bill before us states that defendant at the time of the contract was the owner of the premises in fee, that they consisted of 92 36-100 acres of land, with a dwelling house, barn, and the usual out-buildings, that the defendant was in possession, that when complainant went to take possession, the defendant and his wife resided in the dwelling house, that he agreed to give $50 per acre for the land, and that it is now worth $70 per acre.

The answer admits the defendants’ ownership, avers that the property is not worth to exceed $50 per acre, that at the time of the contract the defendant was a married man, and with his wife who is still living, occupied the farm as a homestead, and that his wife refused and still refuses to join in any release or conveyance of the property to complainant.

We think there is enough in these pleadings to allow us to consider the question of exemption, and we find evidence in the record that the parties believed that this matter was in issue, since a portion of the proof was directed to the point. The whole evidence was embodied in a stipulation in which the facts were admitted, and this passage is there found.: “It is also admitted that at the time of making said contract for the sale of said premises said defendant had a wife and with his wife and family resided upon said premises as his homestead.”

It being settled that the pleadings authorized the introduction of evidence to show that defendant had a homestead in the premises at the time of the bargain, the bill and proof make it certain that the defendant did own and occupy a homestead in the premises at the time named.

Second. The complainant maintains that the defendant’s surrender of possession in March, under the agreement to sell, the subsequent residence in Macomb County, and the tender of a deed on the 16th of April, and demand of payment of $1,500 of the purchase money, and the mortgage to secure the balance, constituted a waiver of all right under the homestead exemption law, and that the bond for a deed became operative in equity.

If instead of the contract or bond, the defendant had given his individual deed of his homestead, or of the farm including the homestead, it would have been wholly invalid as to such of the premises as the homestead embraced.— Dye v. Mann, 10 Mich., 291, Ring v Burt, 17 Mich., 465It could not have had a contingent operation in respect to the homestead. It would not have been voidable merely as to that, but would have been wholly invalid.

Therefore no subsequent relinquishment of possession or residence elsewhere could have given it vitality. While the conditions essential to the existence of the homestead right continued, no alienation by the defendant alone could be valid, and no alienation of defendant alone while such conditions remained, could be vitalized or rendered valid by a subsequent change of residence or home. A new grant or other authorized disposition after the removal of the impediment would be indispensable.

This position does not appear to be controverted. But it is suggested that though the defendant by himself could not convey the homestead while it remained intact by occupancy, that nevertheless he could make his personal contract for a conveyance, and that such contract would support a bill for specific performance, if filed after possession given by the vendor, and a residence by him fixed elsewhere.

Whatever may be thought of this distinction when applied to some cases, it is deemed to be untenable when referred to this case. The contract made by defendant was intended to have a direct and present operation against the farm, including the homestead, and to serve as a binding agreement for the conveyance of the legal title. And in fact as claimed by complainant, it sufficed to place him in possession.

If valid it must have conveyed presently an equitable title, and the complainant now contends that it gave him the right to insist upon a conveyance of the legal title, subject only to the dower right of defendant’s wife. The contract, therefore, was in form adapted to operate as an equitable conveyance of the homestead, and to serve as a ground for specific performance.

The law as explicitly disallows the transfer of the equitable title by the husband without the concurrence of the wife, as it does the legal title, (Ring v. Burt, 17 Mich., 465), and the agreement in question was utterly invalid as an alienation in equity of the homestead. The subject matter of the contract was not expectant, but was actually in being and present. The difficulty was that it was not alienable by the means employed. The invalidity of the contract in the sense and to the extent mentioned, has not only prevented it from operating as an equitable conveyance, or from attaching to the homestead; but has disabled it from operating as such a conveyance, and from attaching against property exempt when it was made. And no ground is discovered upon which a court of equity could mould such a contract into a binding 'obligation of the defendant to convey the very property to which the agreement has never attached. There 4is no occasion for dwelling upon the conduct of the parties since their differences commenced. They have been at variance since the default of complainant on the first of April, 1869, and each has acted upon his own theory of the business, and the propositions of neither have been acceded to by the other. The complainant has required more than ' the defendant would concede, and the defendant has offered less than the complainant would accept. These matters have no essential influence upon the contested points in the case.

The result upon this branch of the case is that the action is based upon the contract, and that the Court is not authorized to found upon that, a decree for a conveyance of the homestead.

The remaining inquiry is whether the record discloses a case in which the Court ought to require the defendant to convey what he can, by deed executed by himself alone, and compel him to make compensation for deficiency.

There are certain principles which govern the Court in administering this equity.

In proceeding to give a purchaser something different from that which the vendor contracted to' sell, the Court is enforcing a contract which the parties never in fact made, and the jurisdiction is therefore to be exercised under many restrictions.

It has accordingly been settled that the contract will not be enforced with compensation when a material part of the subject matter is wanting. — Fry on Spec. Perf. §§ SOS, 797. — Nor when a reasonable estimate of the compensation is unattainable for the want of sufficient data. Id. §§ 818, 814; nor when the difference in value of the interest contracted for, and the interest actually to be conveyed is incapable of computation, id. § SOS; nor when the alienation of the partial interest of the vendor might prejudice the rights of third persons interested in the estate, id. 8O4.

The farm in question in this case contains a little over 92 acres, and is valued by complainant at a trifle over $6, 340, and by the defendant at about $4,600. To give relief on the principle of compensation as contended for, would exempt from the conveyance the homestead right of the value of $1,500, and embracing the dwelling house, and and would leave the balance of the premises subject to the contingent right of dower of defendant’s wife.

This would necessarily exclude from the conveyance a very material part of the subject matter of the contract, and almost certainly result in great pecuniary injury to all parties interested. The adjustment of the compensation would be quite difficult in a case like this, and especially that part of it founded on the contingent dower right. That is quite different from the case where the right is consummate. The interest of defendant’s wife would also be exposed to some detriment by partial alienation. These considerations taken together, inspire the opinion that the case is not one in which the Court ought to compel a conveyance with compensation. The case appears to be a hard one for complainant, and we should be glad to relieve him if circumstances permitted.

The decree below must be reversed, and one entered in this Court dismissing the bill, but without prejudice to any proceeding at law the complainant may be advised to institute upon the bond for a deed mentioned in the pleadings.

The defendant will recover no costs.

The other Justices concurred.