text:
    ORTH v. SAGINAW VALLEY TRACTION CO.
    1. Evidence — Judicial Notice — Street Railways.
    The court will take judicial notice of the fact that in the operation of street cars, conductors are in control of and may cause them to be stopped at any time or place, if circumstances require it.
    2. Carriers — Boarding Car — Negligence.
    A conductor who knows that a passenger is in the act of boarding a car should neither direct the starting of a standing car nor direct the acceleration of speed of a car in motion.
    3. Same.
    Testimony that the conductor signaled the motorman to proceed while plaintiff was boarding a car, after it had stopped, before crossing a railroad track, and that the resulting increase in speed threw plaintiff to the ground, presents a case for the jury, notwithstanding that it was not a customary place for the taking on of passengers.
    4. Same — Contributory Negligence of Passenger.
    It cannot be said as a matter of law that plaintiff was guilty of contributory negligence in boarding the car while it was in motion; the evidence failing to show conclusively that the rate of speed was six miles an hour, and testimony being introduced to prove that the conductor gave the signal knowing the danger to plaintiff.

    5. Same — Boarding Car.
    An instruction to the jury that plaintiff did not assume the risk of the accelerated speed was correct.
    6. Same — Evidence.
    Testimony as to the experience of witnesses relative to the jerking of defendant’s cars when the power was increased, was competent in connection with defendant’s claim and testimony in support thereof that a device in use on its cars prevented jerking.

      Error to Saginaw; Gage (Chauncey H.), J.
    Submitted June 20 1910.
    (Docket No. 97.)
    Decided July 14, 1910.
    Case by George Orth against the Saginaw Valley Traction Company for personal injuries. A judgment for plaintiff is reviewed by defendant on writ of error.
    Affirmed.

      Weadock & Duffy, for appellant.

      IP. E. Emerick, for appellee.

       As to negligence in getting on dr off a moving street car, see note to Jagger v. Street Ry. Co. (Pa.), 38 L. R. A. 786.

   Hooker, J.

The defendant’s street car line on Bristol street, in the city of Saginaw, crosses the Michigan Central Railroad. It is the rule that the cars must come to a stop before crossing the steam road, and proceed across the track only after the conductor has alighted from the car, gone to the railroad and ascertained that no train is approaching, and signaled the motorman to proceed. This rule was duly observed on the occasion of plaintiff’s injury. At the crossing plaintiff attempted to board the car, following the conductor, but fell or was thrown from the running board to the pavement and injured. This action is based upon the alleged negligence of the conductor in ringing two bells, causing the motorman to understand that the conductor was again upon the car, and to turn on the current and accelerate the speed of the car, causing plaintiff to fall or be thrown from the car. The court submitted these questions, and that of contributory negligence, to the jury, and a verdict and judgment for $500 followed. Defendant has appealed.

Refusal to Direct a Verdict. Counsel for defendant assign error upon the refusal of the trial judge to direct a verdict for defendant, contending, first, that there was no testimony tending to show that the conductor’s act in ringing the bell was the cause of the accident. It is said that the signal was not to direct the motorman to increase speed, which was a matter for him to decide for himself, inasmuch as it was not proper for him to stop the car upon the crossing, after he had started to cross it, and that it does not appear that an increase of speed at that time and place was not necessary, as the car was running very slowly; power being shut off as it descended the hill.

We are of the opinion that we should take judicial notice of the fact that conductors are in control of street cars, and may cause them to be stopped at any time or place if circumstances require it, and that, having knowledge that one is in the act of boarding a car or with his consent about to do so, should neither direct the starting of a stationary car, nor the acceleration of speed of a car in motion, nor what might amount to the same thing, give the two-bell signal, if the same would be understood by the motorman to mean that there was no longer reason for not putting on the power, which would have the effect to start or increase the speed of the car.

If the plaintiff testified to the truth, he told the conductor of his intention to board the car at that place, and signaled the motorman, and was given reason to believe that the conductor acquiesced. If so, the conductor owed him the duty of protecting him, by omitting the signal which might result in action by the motorman, until plaintiff was in a place of safety. We do not understand what counsel mean by the suggestion that there was no proof that it was not necessary to put on the power at that juncture, unless it is that the car was not in a safe place for stopping, and should not have been allowed to stop there. The circumstances indicate no danger on that occasion, and had the car even come to a standstill on the track (of which there was little danger, as it was running from two to six miles an hour), it would have been better than to injure a passenger. There is a reasonable inference that the motorman, knowing that his conductor was on the ground, would not apply power until he was apprised by the signal that he was ready to have him do so, and, under the circumstances stated by the plaintiff, there was evidence from which the jury might reasonably find negligence on the part of the conductor in giving the signal, and the case so made was well within the declaration.

It is said to have been assumed by the judge that the conductor could have controlled the operation of the car over the road by withholding the signal. The instructions to the jury were that neither conductor nor motorman had a right to stop the car upon the crossing for a passenger, and that the latter was not obliged to retard its speed, and that only in case the acceleration of speed was in consequence of the signal, could plaintiff recover, and the judge expressly said that—

“ If you find from the evidence in the case that the bell signal which the plaintiff claims the conductor gave to the motorman when the conductor boarded defendant’s car, as the car was crossing the railroad tracks, was taken by the motorman to mean that the conductor had boarded the car after making the crossing, and that the speed of the car was not increased in response to any such signal, your verdict then would be for the defendant. That is, if the motorman did not, as a matter of fact, increase the speed of the car after the bell was rung, so as to produce a jerk or motion of the car that threw the plaintiff to the ground, but simply considered the bell evidence to him that the conductor was on the car, the plaintiff would not be entitled to recover. It is a question of fact for you to determine from all the evidence in the case whether he did or did not increase the speed, and the increasing speed produce a jerking motion of the car.”

This instruction is at variance with such an assumption.

That 'Contributory Negligence was Conclusively Proved. It must be admitted that an attempt by a man 62 years old, weighing 200 pounds, to board a street car going six miles an hour, may well be called negligent, and a jury would be justified in so finding. But in the first place it is not conclusively shown that the car was going six miles an hour, and, moreover, the conductor was apprised of plaintiff’s intention to board the car in motion, and therefore of the danger, and rang his bell with full knowledge of the situation, according to some of the testimony. We are of the opinion that these were questions for the jury, and we cannot say as matter of law that plaintiff was precluded from recovering a verdict. Booth on Street Railways, § 336; 27 Am. & Eng. Enc. Law (2d Ed.), p. 67.

That the Plaintiff Assumed the Risk. The learned trial judge instructed the jury that he assumed the risk of attempting to board the car, but not of the negligence in accelerating speed. We think this correct.

The Starting or Jerking of the Oar. Much is said in the briefs of counsel about the “jerking of the car.” Every one knows that the sudden application of brakes, or of power, has a tendency to disturb the equilibrium of one standing in the car or on the running board. It matters not whether the increased motion be a jerk or merely an increase of speed. It is described both ways in the declaration and testimony. Apparently plaintiff’s fall was due to the inertia of his body as the car started up. Exception was taken to the testimony of some witnesses as to their experience while riding on other cars of the defendant. This testimony would have been inadmissible but for the fact that defendant sought to prove that their large cars, including the one in question, had a device upon them that effectually precluded jerking. As it was, it was proper in rebuttal. It is contended that Miller’s testimony conclusively showed that he fell forward, and hence that it was obvious that it was caused by the brake. This testimony was not important, and, in our judgment, cannot have injured defendant. The cause was submitted by an exceptionally good charge, and we find nothing in the proceedings of which defendant can reasonably complain.

The judgment is affirmed.

Bird, C. J., and Ostrander, Blair, and Stone, JJ., concurred.


source: Caselaw Access Project

author: Blair, J.

license: Public Domain

text:
    MEVES v. SCHRIVER. IRWIN v. SCHRIVER.
    Elections — Charter Commission — Municipal Corporations — Primary Nominations.
    In preceding to nominate members of a charter commission of the city of Grand Rapids, under Act No. 279, Pub. Acts 1909, the candidate must file a petition signed by not less than two per cent, of the voters for secretary of State at the preceding election, as in the case of the nomination of city and ward officers, notwithstanding a resolution of the common council providing a different method. Act No. 281, Pub. Acts 1909.
    Separate petitions for mandamus by Ehlert A. Meves and Robert W. Irwin to compel James Schriver, clerk of the city of Grand Rapids, to place their respective names upon an official ballot.
    Submitted June 21, 1910.
    (Calendar Nos. 24,090, 24,091.)
    Writs denied July 14, 1910.

      Henry T. Heald, Benjamin P. Merrick, and Elvin Swarthout, for relators.

      Moses Taggart, Raymond M. Ferguson, and Clark E. Higbee, for respondent.
   Blair, J.

The city of Grand Rapids is organized under a special act of the legislature (Act No. 593 of the Local Acts of 1905), entitled:

“ An act to revise the charter of the city of Grand Rapids, including therein also as part of such charter the acts controlling the board of education and the board of library commissioners,” as amended.

At the general city election upon the 4th day of April, 1910, the electors of the city of Grand Rapids, by a majority vote, declared in favor of a general revision of the charter of said city under and pursuant to the provisions of Act No. 279 of the Public Acts of 1909, entitled:

“ An act to provide for the incorporation of cities and for changing their boundaries.”

On the 23d of May, 1910, the common council of the city of Grand Rapids in regular session passed and adopted a resolution ordering a special election to be held in said city for the purpose of electing a charter commission and designating the 6th day of September, 1910, for the date of said election. Among other things, the resolution prescribed the method by which candidates for office of member of the charter commission shall be placed in nomination, and the manner in which the official ballots for use at said election shall be prepared. In the case of candidates for the charter commission from the several wards of the city, the resolution provides that nomination shall be by petition signed by not less than 20 qualified electors of said city, irrespective of party, residing in the same ward in which resides the candidate named in said petition, and provides that the petition shall be filed with the city clerk not less than 10 days before the date of said election. Relator tendered to the city clerk of said city a petition nominating him as candidate for member of the charter commission from the Twelfth ward of said city, and requesting that his name be placed upon the official ballot. The petition was signed by 20 qualified electors of the city, irrespective of party, residing in the Twelfth ward, the same ward in which resides the relator, the candidate named in the petition. Relator has the qualifications required by law for candidates. The petition was tendered to the city clerk on the 31st day of May, 1910. The city clerk refused to receive and file the petition, and on June 3d served on relator his reasons in writing for the refusal, claiming:

First. That the method of nomination does not comply with section 18 of Act No. 279 of the Public Acts of 1909.

Second. That it does not comply “ as near as may be ” with the law for the nomination of city and ward officers in the city of Grand Rapids as provided in said Act No. 279.

Third. That it does not comply with Act No. 281 of the Laws of 1909, nor with section 27 of said act.

Fourth. That the common council of the city of Grand Rapids cannot change the method of nomination so far as defined in the home rule act.

Petition for the issuance of a writ of mandamus was filed in this court on the 7th day of June, 1910, commanding James Schriver, clerk of the city of Grand Rapids, to receive and file the petition heretofore tendered to him nominating Ehlert A. Meves as a candidate for the office of member of the charter commission of the said city of Grand Rapids from the Twelfth ward of said city. On June 10, 1910, an order to show cause was issued from this court, returnable June 21, 1910, in accordance with the prayer of the petition, and the respondent has filed his answer to said petition. In and by, the said answer the respondent admits the allegations of fact hereinbefore stated to be true, and admits the nominating petition of relator is in conformity with the requirements of the resolution adopted by the common council. Respondent does not admit that it was, in form and substance, in conformity with the requirements of Act No. 279 of the Public Acts of 1909, entitled:

“An act to provide for the incorporation of cities and. for changing their boundaries.”

He does not admit that it was his duty, as city clerk of the city of Grand Rapids, to receive and file the said petition. He claims that the council had no authority to pass the resolution, and that candidates for the charter commission cannot be nominated in accordance with the resolution. He claims that candidates for the charter commission must be nominated under the primary law of 1909 (Act No. 281, Pub. Acts 1909), entitled:

“An act relative to the nomination of party candidates for public office and delegates to political conventions, to regulate primary elections and to prescribe penalties for violations of its provisions, and to provide for the printing upon election ballots of the names of candidates nominated under the terms of this act, and to repeal Act No. 4 of the Public Acts of the Extra Session of the year 1907, and all local primary election acts contravening the provisions of this act, except as in this act otherwise provided.”

Section 18 of Act No. 279, Pub. Acts 1909, provides for the election of a charter commission to make a general revision of the city charter,—

“ Consisting of one elector from each ward and three electors at large, having a residence of at least three years in the municipality; no city officer or employé whether elected or appointed shall be eligible to a place upon said commission; the names of all candidates who have been duly nominated as hereinafter provided shall be placed upon a separate ballot at the election designated to be held for the election of a charter commission and without their party affiliations designated; the candidate having the greatest number of votes in each ward shall be declared elected, and the three candidates at large having the greatest number of votes cast in the city shall be declared elected; the nomination and election of the members of such commission except as herein specified, shall be conducted as near as may be as now provided by law for the nomination and election of city and ward officers in the respective cities of this State.”

We find no serious difficulty in interpreting this section. The language, “the names of all candidates who have been duly nominated as hereinafter provided,” clearly refers to the later provision of the same section that such nominations shall, “except as herein specified,” be conducted, “as near as may be,” in accordance with the then existing law.

Act No. 281 of the Public Acts of 1909, approved on the same day as Act No. 279, in its provisions for the nomination of city and ward officers, applies to the city of Grand Rapids. By section 17 of this act, every city in the State having a population of 70,000 or more is brought within the provisions of the act. Section 27 of this act reads in part as follows:

“To obtain the printing of the name of any candidate of any political party for a city office on the official primary election ballots for use in such city, there shall be filed with the city clerk of such city such nominating petitions signed by a number of enrolled voters of such political party and who reside in such city, equal to not less than two per centum nor more than four per centum of the number of votes that such political^ party cast therein for secretary of State at the last preceding November election.”

Respondent’s answer, paragraph 10 of the Meves Case, and section 11 of the Irwin Case, gives the number of votes of the leading political parties cast at the last general State election for secretary of State. For the two leading parties it would require to nominate a candidate at large a minimum of 207 signers for the Republican petition, and 174 for the Democratic, with a comparatively small number for the others.

It is contended by relator that the words, “ except as herein provided,” in section 18, refer back to the provisions of section 15 relating to the incorporation of new cities, providing, as to the election of a charter commission, as follows:

“ And such county clerk shall also prepare a separate ballot and place upon the same without party designation, under the heading ‘Candidates for members of the charter commission,’ the names of all electors, having the qualifications required by this act for members of charter commissions, who shall file a petition signed by twenty qualified electors residing in the territory proposed to be incorporated, asking that such name be placed upon the ballot.”

We are of the opinion that the exception relates to the designation upon the ballot, “ without their party affiliations,” and not to the provisions of section 15, which relate solely to the incorporation of new cities.

Relator further contends that unless his construction of the words, “except as herein specified,” be adopted, the provision of section 18' that the nomination and election shall be conducted “as near as may be,” etc., is unconstitutional as contravening the provisions of article 8, § 20, and article 5, § 30, of the State Constitution (1909).

We do not find it necessary to consider the constitutionality of the method provided in section 18 for the nomination and election of members of the charter commission, since, in our opinion, it is the only method provided for the purpose, and, not having been followed by relator, he is not entitled to the writ prayed for.

This opinion also disposes of the companion case of Irwin v. Schriver, and the petitions in both cases are denied.

Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


text:
    D’ARCY v. ADAMS EXPRESS CO.
    Carriers — Negligence—Limitation op Liability.
    A shipper who delivers to a carrier goods worth more than §50, and fills out a receipt in which is a clause providing that the rate of charge shall be fixed by the valuation stated, which is agreed to be §50 unless a larger sum shall be declared, may recover only §50 for the loss of the goods where he neglects to declare the value.
    Error to Kalamazoo; Knappen, J.
    Submitted June 22, 1910.
    (Docket No. 120.)
    Decided July 14, 1910.
    Case by Frank P. D’Arcy against the Adams Express Company, for the loss of a parcel intrusted to defendant for delivery. A judgment for plaintiff is reviewed by defendant on writ of error.
    Reversed.

      Harry O. Howard, for appellant.

      Alfred J. Mills, for appellee.
   Blair, J.

This case was tried by the court without a jury and the court made the following findings of fact and of law:

“ On July 37, 1906, the plaintiff, a jeweler and manufacturer at the city of Kalamazoo, shipped by the defendant express company a small package addressed to ‘David Ullman & Co., New York City,’ containing a quantity of valuable opals. Upon the package was the plaintiff’s address, as well as the address of the consignee and also the word ‘ Opals.’ The plaintiff had been in the habit of shipping articles and merchandise by the defendant express company, and defendant had furnished him with a book of receipts to facilitate such shipments. The plaintiff himself filled out the receipt covering the shipment in question in this case and a copy of the same is attached to these findings. The plaintiff delivered the package in question to one of the defendant’s drivers, who called at his store for the same and signed the receipt. Plaintiff testified that he thought, but was not positive, that he informed the driver that the package contained opals. The charges were not paid in advance by plaintiff, but were to be collected of the consignee upon delivery. The defendant lost the package in shipment and same was never delivered to the consignee. The plaintiff on or about November 15, 1906, made a claim as against the defendant for the value of the opals, but defendant denied its liability, except in the amount of fifty dollars ($50), and some time in March, 1907, and before the commencement of this suit, made a tender to plaintiff of fifty dollars ($50) in full of its liability in the matter, which plaintiff declined to accept. The package contained 33 opals of 3 karats in size; 44, 1£ karats in size, and 54, 1 karat in size. I find from the testimony that these opals were fairly worth two dollars ($3) per karat at the city of Kalamazoo at the date of said shipment, and as a whole, the sum of three hundred and seventy-two dollars ($373).
“Findings of Law.,
“Under the facts, as above found, the plaintiff is entitled to recover the full amount of his loss, and is not limited to the amount of fifty dollars ($50). The opals were received by the defendant with notice and knowledge that the package contained valuable opals. The defendant made no inquiry as to their special value, and the limit of liability expressed in the receipt was waived. * * * The plaintiff is entitled to a judgment as against the defendant for the sum of three hundred and seventy-two dollars ($372) the fair market value of the opals at the date of shipment, with interest at five (5) per cent, per annum from that date, namely, fifty-one and 51-100 ($51.51) dollars. Judgment will be entered in favor of the plaintiff and against the defendant for the sum of four hundred and twenty-four ($424) dollars, with costs of suit to be taxed.”

A portion of the copy of the receipt attached to the findings of fact is as follows:

“ (OOFÍ OF RECEIPT.)
“The Company’s Charge is Based upon the Value of the Property, which must be Declared by the Shipper.
“ADAMS EXPRESS COMPANY
“ [Not Negotiable.]
“ Received from F. P. D’Arcy the following articles, subject to the Contract printed below.
DATE
DATE 7/37
ARTICLE 1 Pack opals.
VALUE
CONSIGNEE David Ullman & Co.
DESTINATION w v iN‘ x‘
REO’D FOR THE COMPANY Huelser
ARTICLE
“1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater, value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.”

By the terms of the receipt filled out by plaintiff, the duty of fixing a valuation upon the package of opals was imposed upon plaintiff. He did not discharge this duty, and was, therefore, bound by his agreement that the company should not be liable for more than $50. Smith v. Express Co., 108 Mich. 572 (66 N. W. 479).

The judgment is reversed, and a new trial granted.

Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


text:
    MORTON v. HANES.
    1. Landlord and Tenant — Covenants — Fraud — Action nor Rent.
    In the absence of fraud there is no implied covenant that premises are fit for the purpose for which they are leased.
    2. Same — Fraud and Deceit — Recoupment.
    Where the landlord makes false or fraudulent representations as to material facts not obvious to the lessee, or, knowing such facts, of which the lessee is excusably ignorant, and which .would seriously impair the value of the lease, conceals them, he may be held liable to the lessee for damages incurred in consequence thereof in an action for fraud and deceit, or the lessee may recoup damages in the landlord’s suit for rent.
    3. Same — Lease—Damages—Condition op Premises.
    While the tenant, by remaining in possession, waives the right to rescind the lease, he does not waive his claim for damages for the fraud and deceit whereby he was induced to enter into the lease.
    Error to Washtenaw; Kinne, J.
    Submitted June 23, 1910.
    (Docket No. 54.)
    Decided July 14, 1910.
    Assumpsit by Hudson T. Morton against Laura A. Hanes for rent. A judgment for plaintiff on a verdict directed by the court is reviewed by defendant on writ of error.
    Reversed.

      George J. Burke (Jf. J". Cavanaugh, of counsel), for appellant.

      Blum & Sample (Arthur Brown, of counsel), for appellee.
   Blair, J.

This is an action of assumpsit upon a lease, executed March 16, 1907, containing, among other provisions, the following:

“Witnesseth, that the said party of the first part has agreed to let, and does hereby let to the said party of the second part, and the said party of the second part has agreed to take, and hereby does take, from the said party of the first part the following described premises situated in the city of Ann Arbor, county of Washtenaw and State of Michigan, to wit, the house and premises known as number 611 Church street in the city of Ann Arbor, State of Michigan, to be occupied as a residence by said second party with the privilege of keeping roomers and boarders. On this lease all moneys that are due or to become due shall be deposited in the State Savings Bank of Ann Arbor, Michigan, to the credit of Hudson T. Morton. For the term of three years (with the privilege of making it five) to commence on the first day of September, 1907.”

Defendant gave notice under her plea of the general issue that she would prove that at the time she rented the house the defendant falsely and fraudulently represented to her that the house could be properly heated by the furnace then in the house, and that, in reliance upon these representations, she went to great expense in fitting up the house to accommodate student roomers and suffered great damages, in consequence of the failure of the furnace to properly heat the house, which she would claim by way of recoupment.

Defendant occupied the house for 10 months and was finally ousted by summary proceedings, and this action was brought to recover the balance of the rent reserved in the lease.

In the course of the cross-examination of plaintiff, the following occurred:

“Mr. Burke: The defense is that under this lease there is a purpose for which this house was leased, that it was unfit for that purpose and Mr. Morton made certain representations. We have given notice in our plea that he made these representations. The lease was made with the privilege of keeping roomers. We expect to show that it was not only the privilege, but the purpose of the renter in accepting the contract. I think we have the right to show what the intent and purpose of the lease or contract is. This is not an attempt to change or vary the terms of the written agreement in any sense.
The Court: What do you say to that ?
“Mr. Brown: I think the arrangement was finally merged in the written instrument and that shows.
“Mr. Burke: We ought to be able to show any legal defect in those premises which was known to the plaintiff, but could not be known to the defendant, and which would entirely change the consideration of the lease.
The Court: The language of this lease is that it was with the privilege of keeping roomers and boarders. If you are seeking to show that the house was not suitable by reason of this poor heating plant it is my impression that it is not competent evidence, and that you cannot show it. You are not entitled to show that the house was not properly heated, that the heating arrangements would not heat the house properly. This case was tried once before and that testimony was admitted, but on reflection I am satisfied that was not competent. My present view is that I ought not to admit it.”

Defendant testified in her own behalf:

The first thing I asked him (Morton) on the ISth day of March was whether the house would heat.
“ Mr. Brown: I object to any conversation at this time for the reason that it was merged in the written contract.
The Court: I am inclined to think if you seek to show the heating plant of this house was inadequate to heat the rooms properly you are not entitled to show that under this lease. That is not a defense to an action on this lease. If the heating plant was inadequate she was under no obligation to remain there, but if she did she is bound by it, and it would be no defense to an action for rent to show that that house was not properly heated.
“Mr. Burke: We take exception to the ruling of the court. Do I understand that the fact that the defendant had relied upon the representations of Mr. Morton, and had purchased furniture and moved there with the idea of keeping roomers, and she found she could not do so (because of the imperfect heating) that that defense could not be interposed to avoid payment of rent ?
“ Thé Court: Yes. Somewhat reluctantly I came to that conclusion, but I am satisfied that there is no implied guaranty that the apparatus is sufficient to heat according to her notion.
“Mr. Burke: We take exception to the ruling of the court. The case turns upon whether or not the defect in the heating plant can be shown in defense on this action. We have no further testimony.”

The court directed a verdict for plaintiff, and defendant brings the record to this court for review.

The position of defendant is shown by the following extract from the brief:

“We contend that the failure of the heating plant to operate in a manner suitable for the purpose for which the house was rented caused the consideration for which the defendant was to pay rent, to utterly fail.
‘“The law will not imply any covenant or warranty * * * with regard to the physical condition of the premises at the time of the letting, that they are in a tenantable condition.’
“This is the general rule as laid down in 18 Am. & Eng. Enc. Law (2d Ed.), p. 613. But, where the lease limits the use of the premises to certain specified purposes without showing any intent on the part of the parties that the lessee should fit them for such purposes, there is an implied stipulation that the premises are fit for the specified purposes. This is identically the case in the lease under consideration. 1 Taylor on Landlord and Tenant (9th Ed.), p. 481. This rule is followed by the case of Young v. Collett, 63 Mich. 331 (29 N. W. 850), which is the leading case on this question arising upon a lease.”

The general rule undoubtedly is that, in the absence of fraud, there is no implied covenant that premises are fit for the purpose for which they are leased. Doyle v. Railway Co., 147 U. S. 413 (13 Sup. Ct. 333); Jaffe v. Harteau, 56 N. Y. 398 (15 Am. Rep. 438); Clark v. Babcock, 23 Mich. 164; Rhoades v. Seidel, 139 Mich. 608 (102 N. W. 1025).

In Young v. Collett, 63 Mich. 331 (29 N. W. 850), upon which defendant relies, it is said:

“ When a landlord rents a building, and in the lease, as in this case, limits its use to a certain specified purpose, and the tenant agrees to do no more than keep the same in as good repair as when taken, it is evident that the landlord recommends the building as suitable for that purpose in the condition it then is, if there are no modifying clauses to the contrary contained in the lease, and it should be so held; otherwise there would be no consideration for the tenant’s agreement to pay rent. Tyler v. Disbrow, 40 Mich. 415; Smith v. Marrable, 11 Mees. & W. 5; West Side Sav. Bank v. Newton, 76 N. Y. 616; Salisbury v. Marshal, 4 Car. & P. 65.”

This language was unnecessary to the determination of the case. The defendants had given up the room to the plaintiff for repairs, and he had taken possession for that purpose and taken up the floor of the lodgeroom, rendering the room untenantable,—

“And it was while in this situation the defendants were unable to get the landlord to make the needed change and repairs. This neglect to make the change and repairs necessary was, under all the circumstances, an eviction by the landlord.”

Where, however, the landlord makes false or fraudulent representations as to material facts not obvious to the lessee, or, knowing such facts, of which the lessee is excusably ignorant, and which would seriously impair the value of the lease, conceals them, he may beheld liable to the lessee for damages incurred in consequence thereof, in an action for fraud and deceit, or the lessee may recoup such damages in the landlord’s suit for rent. Steefel v. Rothschild, 179 N. Y. 273 (72 N. E. 112); Pryor v. Foster, 1 N. Y. Supp. 774; Norris v. McFadden, 159 Mich. 424 (124 N. W. 54).

While the tenant, by remaining in possession, waives the right to rescind the lease, he does not waive his claim for damages for the fraud and deceit whereby he was induced to enter into the lease. Pryor v. Foster, supra.

We are therefore of the opinion that the court erred in refusing to permit defendant to show the alleged false and fraudulent representations as to the furnace set up in her' notice.

The judgment is reversed and a new trial granted.

Bird, C. J., and Ostrander, Hooker, and Stone, JJ., concurred.


author:
Hooker, J.
      Blair, J.

text:
    PEOPLE v. ADAMS.
    1. Seduction — Chastity—Reformation—Criminal Law.
    Under evidence tending to support the theory that the complaining witness was seduced by respondent in Michigan, and if improper relations had existed between them in Ohio, where they had been immediately previous to the commission of the offense charged, she had reformed and intended to cohabit with respondent as his lawful wife, but was deceived by false representations and a fraudulent marriage, it was not error to instruct the jury that they might find respondent guilty of seduction if she had reformed and had been subsequently induced by artifice to yield to the respondent.
    2. Same — Evidence—Pregnancy.
    The admission of evidence of the witness’ pregnancy and of her chaste character did not constitute prejudicial error.
    3. Same — Common-Law Marriage — Defenses.
    It is not sufficient, to establish a common-law marriage, that the respondent promised to marry the witness when they should arrive at Detroit, that he attempted to convince her by false papers that they were lawfully wedded, that he made no present promise to take her as his wife, but avoided such an agreement, and that on learning in a day or two of the falsity of his statements she discontinued their relations.
    4. Same — Proof of Previous Marriage — Evidence.
    Admissions of respondent are competent to show a previous marriage, in a prosecution for seduction.
    5. Same — Evidence—Letters and Correspondence.
    Letters and telegrams purporting to come from respondent at a place where he stated he intended to go, sent in accordance with a previous arrangement to the mother of the prosecutrix, and containing references to matters previously discussed between them, were admissible in evidence without identifying the handwriting.
    6. Evidence — Depositions—False Testimony.
    Testimony showing that respondent procured witnesses to make false depositions was admissible, in a prosecution for seduction, in connection with the depositions themselves, as was also expert testimony that the several signatures of ostensibly different deponents were in one handwriting.

      7. Same — Cross-Examination.
    No error was committed in refusing to permit a question on cross-examination of a witness for the people, who testified that respondent told him certain facts and procured him to depose to the same of his own knowledge, and who was asked if he had not heard other members of the household make similar statements.
    8. Same — .Hearsay—Curing Error.
    Hearsay evidence is harmless where the same facts are shown by competent proof.
    9. Criminal Law — Sentence.
    The order recommitting a respondent who has served a portion of his sentence and has secured an order admitting him to bail will require him to serve the remaining portion of the sentence.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted June 24, 1910.
    (Docket No. 140.)
    Decided July 14, 1910.
    John A. Adams was convicted of. seduction, and sentenced to imprisonment for not less than 2-J nor more than 5 years in the branch of the State prison at Marquette.
    Affirmed.

      Frank F. Bumps and M. H. Bishop, for appellant.

      Philip T. Van Zile, Prosecuting Attorney, for the people.
   Hooker, J.

The complaining witness, a girl 18 years of age at the time of the transactions detailed in her testimony, was the daughter of well-to-do German people in the city of Louisville, Ky. Her testimony shows that her attention was caught by an advertisement in the matrimonial column of a Cincinnati paper. It read as follows:

“Business man of means, refined, 36, wishes acquaintance of congenial young lady, eighteen to twenty-five; fond of amusements; correspondence strictly confidential; give description. ’K9 Inquirer.”

She wrote to the address mentioned, this letter:

“Louisville, Ky., Sept. 21, 1908.
Dear Sir: I seen yonr ad. in the Cincinnati Enquirer, and take the pleasure to answer it. I am a congenial, respectable, honest, young lady, 18 years of age. And I would like acquaintance of a business gentleman your age. I have blond hair, blue eyes, fair complexion, 5 feet 4 in. tall, weigh 120 lbs. And I am German-American. If you think you would like further acquaintance, I would be pleased to hear from you.
“Yours truly,
“ Miss Rosa Renz,
“1531 W. Ormsby Ave., Louisville, Ky.”
“Louisville, Ky., Sept. 25, 1908.
“Mr. A. J. Adams.
Dear Friend: I take the pleasure to answer your welcome letter which I rec’d. And I am very much pleased with your description. I would also like to meet you. I have no photo of myself at present, but I will have some taken. Then I will give you one. You say you would like for me to make an appointment with you. I surely will and hope it will be a suited one to you. I would like very much for you to come down to Louisville this coming Sunday (October 4). I will meet you at the depot. Let me know what time you will come. And to which depot you will come in. And how you will be dressed. I will also write and let you know how I will be dressed. Then there will be no danger of us missing each other. Or you may come any day you wish as I am mostly always at home. I hope you will come, and I will make everything just as pleasant for you as I can. I live at home with my parents and two brothers. My father died when I was a very small child, but I have a stepfather. I will close for this time. Hoping to hear from you soon, I remain,
“ Yery respectfully,
“Rosa Renz,
“ 1531 W. Ormsby Ave., Louisville, Ky.”
“Louisville, Ky., Sept. 30.
"Mr. A. J. Adams.
“Near Friend: Your letter received. Was pleased to hear from you. My brothers are 16 and 9 years of age. I never told my mother yet of me corresponding with you. I would like to come up to Cincinnati, but my mother knows that I have no acquaintance there. And that is the reason I could not get the money from her to come up on. But if you will send me a ticket I will come up. I will tell her I am going to spend a day with a young lady friend of mine. And then she will have no thought of me going to Cincinnati. I could come any day. And if you have honorable intention, I surely will come. I will close for this time, hoping to hear from you soon.
“ Yours truly,
“Rosa Renz,
“ 1531 W. Ormsby Ave., Louisville, Ky.”

Defendant’s letters were generally destroyed when read, as he requested. She went to Cincinnati at his request, and while there, he asked her to get married there but she refused, and went home the same day. She promised to marry him, however. He said he was obliged to go to Columbus on business and asked her if she would go up there if he should send her a ticket, and said they would get married there, and asked her to write him as soon as she got home. She did so and told him she would do so, and he sent her transportation to Columbus.

He wrote as follows:
“Columbus, Ohio, November 5, 1908.
My Dearest Rosa: I received your two letters, the one at the hotel, and also the one at the general delivery. The last one I got last night, and the first one I got yesterday morning. I went out at once yesterday and found out the best way for you to come. I think it is over the B. & O. to Cincinnati, and from Cincinnati over the Big Four to Columbus. It goes out of the same station that the B. & O. comes into Cincinnati. You will have about 30 minutes to wait in Cincinnati, but there is eight trains that leave there for Columbus every day, and you can get one every hour or two; so in case you miss one you can take the next one on the B. & O. from Cincinnati to Columbus. (Col. for Columbus.) There is only two or three trains all day, so you see it is best to go over the Big Four from Cincinnati to Columbus, but remember you take the B. & O. to Cincinnati, and from there the Big Four. I have telegraphed you two tickets. One you can get in the Louisville B. & O. office, and the other you get as soon as you get to Cincinnati. Right at the depot where you come into Cincinnati, that is the Big Four— the Big Four and the B. & O. have the same depot in Cincinnati. I think you will understand now, and all you have to do is to ask for a ticket for Miss Rosa Renz that was telegraphed there for you by me. If there is anything you do not understand, or should have any trouble, all you have to do is to telegraph me. If so, address No. 46 North Third street, and I will see to it at once. But, my dearest, there is no danger at all, as the tickets are paid for and will be delivered to you as soon as you call for them. Write me as soon as you receive this, and let me know what time you will leave Louisville so that I can meet you at the depot. Trains leave Louisville at 2:30 and 8:10 in the morning and 2:10 and 5:45 in the afternoon. They will make good connection in Cincinnati with the Big Four in Columbus. Address letter care of general delivery, as that is open until, about 9 p. m., but if you telegraph, address 46 North Third street. Well, my dearest Love, I will close for this time. Hoping to see you soon, with best wishes and a great many loving kisses, I remain, your ever loving
“Antony.
“P. S. I did not send ticket to your house, as it must he used the same day it is dated, with stamp on the back, so you see the other way is the better.”

She arrived there Saturday. He took her to his boarding house, kept by a Mrs. Familton, and got her a room, and one for himself. He told her that a marriage license could not be obtained on Saturday afternoon or Sunday; so they would get married on Monday, and while there he would call her his niece. He was a man about 45 years old. On Monday he made an excuse for not getting married, but said they would go to Cleveland and be married there. On the following Saturday they left for Cleveland. On the way he proposed to pass her off as his wife, but she refused to allow this. They went to the Wayside Inn, kept by Mr. and Mrs. Kingsbury, and he obtained a separate room for her there. He made further excuses for not marrying her at Cleveland, but said they would be married in Detroit the same day that they should arrive there, and on Thursday night, November 19th, they went by boat to Detroit. They went to the Cadillac and be again wanted to register ber as bis wife and be said he would get tbe license that day. Sbe told bim sbe would not pass off as bis wife until sbe was married. He then took some rooms at a Mrs. Morse’s and left her there, while be went out to get tbe license. Her testimony continued as follows :

“This was No. 55 Elizabeth street, west, a rooming bouse kept by a Mrs. Morse. We each bad a room by ourselves, a front and back parlor. He then went to get tbe license, and be came back with tbe license, and be asked me my people’s name, and I gave them, and be told me to sign my name to tbe bottom of tbe paper, which I did; and then be told me be would take it back and bring tbe certificate; and then be brought three papers and I signed my name to them, and be told me then we were married. I asked bim if we didn’t need a preacher to marry us, and be told me, ‘No.’ I told bim they did down in Kentucky, and be said: ‘ You must remember that you are not in Kentucky — you are in Michigan.’ I believed bim and be put tbe certificate then in bis trunk, and I thought it was all right. Exhibit D is what be brought back to me as tbe license, and Exhibit E is one of tbe certificates of marriage, and Exhibit F tbe other. He signed bis name and then I signed my name to Exhibit D in his presence. He said that was necessary. Then be said Exhibit D would be filed. After I signed tbe license I signed tbe certificate. He said I would have to sign them — to sign my name. He showed me bow to sign. * * * He said in Michigan we need three papers. X asked bim if we did not have to have a preacher to marry us, and be said, ‘ No.’ * * * And be says that was tbe reason they bad the three papers in Michigan. I believed that we were married at that time, and if I hadn’t X would never have lived with bim. Up to that time from tbe 20th on, X bad never bad connection with a man before in my life, and I bad connection with bim because X thought I was bis wife, and I lived with bim from Novem20th until tbe 28th. * * * About Wednesday be told me if I told anybody we were married he would pull up bis trunk and leave me. I bad been watching tbe papers to see if X could see tbe notice, and X couldn’t; and be wanted me to tell tbe people X was bis sister, and I suspected that we were not married; so on Friday I went to the county building to find out about tbe license; and when I came back to Mrs. Morse’s house I told him I had been to the county building and had found that no licenses were taken out; and he said there was, and he had paid a large amount to keep it secret; and he says I should pláce more confidence in him than that; and I told him: ‘Well, if I was wrong, I was sorry,’ and he said he would bring a man to prove that we were legally married. Then I had a talk with Mrs. Morse, and Detectives High and Larkins were sent for, and they came over in about an hour and took us both to headquarters.”
Copies of these papers are here inserted.
“Affidavit for License to Marry.
“ State of Michigan, ) aa
aa “ County of Wayne. [ SS:
“ November 20, 1908.
“John Antony Adams, as applicant for license for marriage between himself and llosa Mary Renz, being duly sworn, deposes and says that he is acquainted with the laws of Michigan relative to marriage, as printed upon the back of this blank; that there is no legal impediment to the marriage of himself and the other person named, and that to the best of his knowledge and belief, the following statements are true:
“Full name — John Antony Adams.
“ Age at last birthday — 26 years.
“White, Black, Mulatto, Indian — White.
‘e Residence — Detroit.
“ Birthplace — New York.
“Occupation — Physician.
“ Father’s name — John L. Adams.
“ Mother’s maiden name — Clara Houseman.
“Number of times previously married.
“Female.
“ Full name — Rosa Mary Renz.
“ Age at last birthday — 18 years.
“White, Black, Indian — White.
‘ ‘ Residence — Detroit.
“Birthplace — Louisville, Kentucky.
“ Occupation — Housework.
“Father’s name — Frederick.
“Mother’s maiden name — Mary Phloor.
“ Number of times previously married................
“Maiden name of bride, if widow...................
“Subscribed and sworn to before me, S. C. Wilson, clerk, in and for Wayne county, Michigan, 20th day of November, 1908.
[Signed] “John Antony Adams.
“Rosa Mary Renz.”
“Certificate of Marriage.
“ I, Samuel P. Stinger, of the city of Detroit, in the county of Wayne, State of Michigan, do hereby certify that on the 20th day of November, in the year A. D. 1908, John Antony Adams, of Detroit, in Wayne county, Michigan, and Rosa Mary Renz, of Detroit, in the county of Wayne, Michigan, were united by me in the bonds of matrimony, in the city of Detroit, in the county of Wayne, State of Michigan, according to the laws of said State, the license, authorizing the marriage of said parties, having been by them delivered to me as required by law, and that there were present, as witnesses, John Antony Adams, of Detroit, and Rosa Mary Renz, of Detroit.
“Dated, November 20th, 1908.
[Signed] “John Antony Adams, “Rosa Mary Renz.”
“ Marriage Certificate.
“This is to certify that John Antony Adams, of Detroit, and Rosa Mary Renz, of Detroit, were by me joined together in Holy Matrimony, according to the usages of the Church, and the law of the State of Michigan, on the 20th day of November, in the year of Our Lord, 1908.
[Signed] “ Samuel Stinger.
‘c Witnesses:
“S. C. Wilson.
“S. P. Snyder.”

The outline of facts hereinbefore given is taken from the testimony of Rosa Renz, the complainant. As the defendant was not a witness, much of it stands uncontradicted on the record, except as it may be affected by circumstances testified to by other witnesses. There was some corroborating testimony, however, and some of the questions raised relate to it.

By way of defense, defendant caused some depositions to be filed in the case under a stipulation that he might take them in the absence of the prosecuting attorney. He also called some witnesses, the apparent purpose being to prove that he cohabited with Rosa Renz in Columbus and Cleveland, and that Rosa Renz was a girl of dissolute habits at home.

Upon the argument, his counsel’s main contentions were that he could not be guilty of the offense charged, for the reason that he had cohabited with her in Ohio the week before, and, second, that the transaction showed a common-law marriage between the parties in Detroit. These two questions will be discussed first because they are the most important.

Unchastity. The learned circuit judge refused to give the following request offered by defendant’s counsel:

“ (a) If you believe from the evidence that Rosa Renz had carnal intercourse with this defendant while said parties were stopping at No. 16 North Third street, Columbus, Ohio, or while they were stopping at the Wayside Inn, at Cleveland, Ohio, then I charge you that the said Rosa Renz was not a previously chaste woman, as required by law to be in order to be seduced; that no sufficient time had elapsed for her to reform before the act complained of in Detroit, Mich., and therefore that the act of carnal intercourse complained of as taking place in the city of Detroit, on the 20th day of November, 1908, and relied on in the information in the case, was not seduction, and the defendant must be acquitted.”

He instructed the jury that:

" It is a part of the claim of the defense, on the other hand, that on the day in question that the complainant was not a chaste girl, and was not thus fraudulently deceived into yielding her virtue, but on the other hand, she had pursued a course of continued cohabitation with the defendant in Cleveland and Columbus, Ohio. I charge you, gentlemen of the jury, that the defendant at the bar cannot be convicted upon the charge in this court for any seduction which took place in Ohio; this court not having jurisdiction of such offense. It is not, however, true, as a legal proposition, that because a woman once submits to sexual embraces of the man, he cannot thereafter seduce her. The law does not contemplate that only virgins may be seduced, but the language of the statute is unmarried women. If a woman has submitted to the sexual embraces of a man, and thereafter has reformed and returned to the path of virtue, she may again be seduced by the same man, although the burden of proving such reformation would be upon the prosecution.
“ Every woman is presumed by law to be chaste until the contrary is shown. If, however, the evidence proved that she has departed from the path of virtue and it is sought to establish the seduction of her by the same man, her reformation and return to a chaste and virtuous character must be proven by the prosecution. So that, gentlemen of the jury, even though previous sexual intercourse between a woman and a man might be shown, yet, if the jury is satisfied that at the time of the alleged seduction she was of chaste and virtuous character, and was living a chaste and virtuous life, and was drawn therefrom by some artifice or inducement of the man, her second seduction would be as criminal as the first.
“ I do not wish to be understood as intimating to you, gentlemen, in any way, that the court is of the opinion that the complainant, Rosa Renz, had sexual intercourse with the respondent before coming to Detroit. That is a fact for you to determine. If you are satisfied beyond a reasonable doubt that it was not so, and that on the 20th day of November, A. D. 1908, she was a virgin, as she claims upon the witness stand to have been, and that she yielded up her virginity to the defendant by reason of the promise, artifices, and inducements practiced upon her by him, which caused her to believe that she was his wife, wherefore, she submitted to his sexual embraces and without which she would have not submitted to his sexual embraces, you must find him guilty.
“In addition thereto, even though she had previously submitted to his sexual embraces, yet had reformed and was again chaste and virtuous, if she yielded by reason of those artifices, promises, and inducements, this, too, would constitute the crime of seduction. In the first case that I have indicated to you, as well as the last, you must be satisfied of the chaste and virtuous character of the complainant, and that she was turned aside from the path of virtue and inveigled into submitting to the carnal intercourse with the defendant by reason of artifices, promises, or inducements, without which she would not have otherwise submitted to him.”

We understand this to be a correct statement of the law, and though the jury should have found that the complainant yielded to him in Ohio, they may also have found that she had seen her error, and determined to do differently thereafter, considering all of the circumstances. We understand that defendant’s counsel do not dispute the general rule, but contend that there was no testimony indicating a reformation — citing the case of People v. Bressler, 131 Mich. 390 (91 N. W. 639), where the circumstances were such that we were unable to say that there was a presumption of reformation. In the present case the court left the question to the jury with the instruction that the burden of proving it rested upon the prosecution. Under the testimony it would not be an unreasonable conclusion. The instruction was appropriate and it was correct. ■

In this connection we refer to some testimony, taken under objection, upon which error is assigned. It is this: The complainant testified that she became pregnant, and that she never had sexual relations with any other man, at any place or time. This testimony was competent, though perhaps of little importance. If the two facts were true, it was cogent evidence of a completed sexual act, but being, wholly dependent on the truthfulness of Rosa Renz, it was probably no more convincing than her statement that they had sexual intercourse. It was not error to admit this testimony.

Marriage. The defendant’s counsel offered a large number of requests in relation to their claim that the defendant and complainant were lawfully married in Detroit. If they were, this defendant was improperly convicted. The judge made no allusion to the subject in his charge, further than to say that the jury must find that she was an unmarried woman in order to convict defendant. The claim that the transaction in Detroit amounted to a valid common-law marriage seems to have been overlooked or ignored. Counsel for the State seeks to justify this upon the ground that there is no testimony in the case tending to prove the agreement necessary to such a marriage. If we can say that such is the fact, no error was committed; otherwise the question should have gone to the jury.

We have examined the testimony and we find testimony tending to show—

(a) A promise to marry when they should arrive at Detroit.

(b) An effort to convince the complainant by false instruments which they both signed that they were thereby married.

(c) Defendant’s statement to her that such was their effect.

(d) An utter absence of any suggestion of a present promise by one to the other, especially by him, that they would and did then take each other as husband and wife, and would live together as such thenceforward; but, on the other hand, most convincing evidence that he avoided any such promise, and that he had no intention to enter into the marriage relation with her.

(e) Cohabitation afterwards for a day or two, and until the complainant ascertained the falsity of his statements.

If this situation is one in which the law requires us to say that the parties made a valid contract of marriage, the question should have gone to the jury. If, on the other hand, the trial judge could properly say that there was no testimony tending to show a valid marriage between these parties, there was no error in the omission. Cases involving the proof of marriage arise in many ways, and common-law marriages are inferred from circumstances of greater or less significance, where the legitimacy of alleged heirs is concerned. Again there are cases where, as between an innocent woman and her seducer, it is held that promises and conduct may estop him from denying the marriage, although he had an actual intent not to be a party to a valid marriage. In a case like the present, where it is clear that the man not only intended to avoid a marriage which should bind him, and avoided making or having the woman make a present promise that they took each other as husband and wife, to be such thenceforward, he should not be permitted to escape the consequences of his wrong by such a claim.

The cases of People v. Loomis, 106 Mich. 250 (64 N. W. 18), and Judson v. Judson, 147 Mich. 518 (111 N. W. 78), cited by counsel, are readily distinguishable from this case. In the former there was a clear, present promise, the very thing that is lacking here. In the latter, the bill was dismissed for the lack of the present promise to take each other for husband and wife. This is not a civil case arising years after a transaction, characterized by long years of cohabitation and conduct consistent with marriage, but one arising at once, depending upon the nature of the alleged promise of marriage, where the facts show that the minds of the parties did not meet in a common understanding of, and consent to, the present and future existence of the relation of husband and wife between them. The unrighteousness of the proposition that, one caught red-handed may lawfully set up the claim that the alleged contract, which he did not agree to, became nevertheless a valid marriage, binding upon both, because the woman acted in good faith and in the belief that she was married, cannot be sustained, where it affirmatively appears that it lacked the essential promise; if it can, where the duplicity has been carried so far as to make the promise, is a question we need not decide. We are of the opinion that the learned circuit judge did not err in denying these requests, and in omitting to .confuse the jury by this question of marriage.

Another question arose in this connection. It was claimed by the prosecution that the defendant was a married man at the time of his relations with Rosa Renz, and if so it would be an end to the claim of the alleged common-law marriage. Counsel attempted to prove it by defendant’s admissions, and error is assigned upon the admission of this testimony; it being contended that marriage cannot be so proved in criminal cases, and cited' the cases of People v. Lambert, 5 Mich. 349 (72 Am. Dec. 49), and People v. Loomis, supra. The former was a bigamy case. The latter was a seduction case, and hardly raises the question before us, as we merely held that a witness not qualified would not be allowed to prove the provisions of law in force in Canada. The Lambert Case, however, does hold that a defendant should not be convicted of bigamy, where the only evidence of the first marriage is proof of cohabitation and statements of the parties. It is true that the English courts have held that admissions of marriage are not sufficient to warrant a conviction in a bigamy case, or to prove marriage in a crim. con. case, following Lord Mansfield’s holding in two cases, viz.: Morris v. Miller, 4 Burr. 2057, and Birt v. Barlow, 1 Doug. 174, cases often said to have been departures from the existing rule, and cases that have been severely criticised. The rule was carefully limited to these two classes of cases, and is at variance with the general rule of law pertaining to other criminal cases, with no very good reason.

But this is neither a bigamy nor a crim. con. case and we are not disposed to extend the rule, as a few courts have done. This testimony was admissible both to prove that defendant had a wife, and also as characterizing his acts in making the alleged contract. For a discussion of this question, see 3 Wigmore on Evidence, § 2084 et seq.

In this connection we refer to a question which arose upon the introduction of two letters and two telegrams claimed to have been sent by the defendant to Mrs. Heye, complainant’s mother. She testified to one or more interviews with the defendant, after his arrest, in which he sought to induce her to go to Detroit. She stated that he came to Louisville and pretended to her to be a detective. He afterwards confessed that he was not a detective, but was defendant’s brother, and at last admitted that he was the defendant; that he had done wrong; that he was married, but would soon get a divorce. He succeeded in inducing Mrs. Heye to say that she thought she would go to Detroit. He agreed to await her at Cincinnati. The letters and telegrams purporting to come from there later, by mail and wire, bore his name (Adams), and contained allusions to the subject theretofore discussed between them. We think that they were competent evidence, although it was not shown that he signed or sent them, in any other way than through the connection that they intrinsically showed to the' previous conversation and the arrangement that he should write. This furnished some evidence of their genuineness, which thus became a question for the jury. See People v. Hammond, 132 Mich. 427 (93 N. W. 1084); 17 Cyc. 411.

Depositions. In making the people’s case the prosecutor called witnesses who confessed to making false depositions at the instigation of said defendant, and gave their conversations with defendant in relation thereto. These depositions were then offered in evidence to show the things that defendant had sought to prove in this way. We have already alluded to the defense that he sought to make. This testimony was admissible. It is always competent to show a defendant’s complicity in obtaining or attempting to obtain false testimony to be used in his defense, and the fact that he does not use it is unimportant. It was also competent to show by expert witnesses that several different names, ostensibly of different deponents, signed to a deposition, were in the same handwriting.

It was not error to admit the examination of witnesses called by the people, in relation to the contents of their depositions, without first reading them to the witnesses. Doubtless this should have been done had they desired it; but apparently they did not. These depositions were not withheld from defendant’s counsel, and were ultimately put in evidence against the strenuous protest of ’defendant’s counsel. Referring to the witness Myers, who testified to statements which he said were false, and alleged facts which he did not know of his own knowledge, but were told him by defendant, counsel sought to show, on cross-examination, that he had heard other inmates of the house make similar statements regarding the conduct of Rosa Renz. While it would have been proper to cross-examine this witness for the purpose of showing his knowledge, or that Adams did not make the alleged statements, proof that he heard others make them was unimportant. It was not substantive proof of the facts, being hearsay, and it was not inconsistent with the statement that Adams told him that. There was no error in this ruling.

The remaining assignments of error relate to unimportant matters, as the testimony stood, and we think that no injury resulted to the defendant from the rulings on which they were based; for example, the deposition of Crandall was not substantive proof in the case; hence it was not important whether he was at Wayside Inn in November, nor whether the Kingsburys said that he was or was not. The same result follows as to the proof about holes in the door and the sufficiency of the alleged test. The testimony of Larkins was harmless in regard to the statements of Familton, because he admitted the same fact practically.

We find no error in the record, and the conviction and judgment are affirmed.

Defendant’s sentence was imposed before his appeal was taken and he had served a portion of his time when its execution was interrupted by an order admitting him to bail, and he was released by the warden of the State’s prison. He is now subject to imprisonment under the sentence for the unexpired period thereof remaining at the time of his said release. The cause will be remanded to the recorder’s court of Detroit with directions to issue a new commitment to the sheriff of Wayne county and said warden, commanding said sheriff to forthwith apprehend said defendant and deliver him to the said warden, and commanding him, the said warden, to receive and safely keep the said defendant for a period equivalent to said unexpired portion of said sentence, in accordance with the command of said original commitment.

Ostrander, MoAlvay, and Stone, JJ., concurred.

Blair, J.

(concurring). I think the evidence discloses a common-law marriage, which would have been legal and binding in its effect as well as in form, except for the previous subsisting marriage of defendant. It does not follow, however, that because defendant was guilty of bigamy he could not be convicted upon the same facts of seduction. In my opinion, the facts would support a conviction for either offense and the prosecution were at liberty to select either. People v. Gibbs, 70 Mich. 432 (38 N. W. 257); People v. Smith, 132 Mich. 58 (92 N. W. 776); Greenman v. O’Riley, 144 Mich. 534 (108 N. W. 421, 115 Am. St. Rep. 466); People v. Bristol, 23 Mich. 118.

I therefore concur in the result.


author: Stone, J.

text:
    ZART v. SINGER SEWING MACHINE CO.
    1. Principal and Agent — Liability eor Torts op Agent — Scope op Authority.
    Evidence that plaintiff went to a branch store of defendant for repairs on her sewing machine; that the managing salesman arranged to call and get her machine, and did so, bringing afterwards another machine to nse pending its return; that the substituted machine was apparently second-hand and he told her he wanted to sell it because he was about to be married; that plaintiff bought it, paying part down, and, on her refusal to pay the balance until he should return the old machine, he and another during business-hours committed an assault in attempting to remove the second machine, presents a question of fact whether he was acting within the scope of his authority or for his personal benefit, upon a showing by the defendant company that the machine did not belong to it, and it received no benefit from the sale.

      2. Evidence — Conflict—Jury.
    The jury is entitled to consider the reasonableness of testimony, and are not bound to believe a witness whose testimony is •inconsistent with the circumstances, although no other testimony bears on the question.
    8. Principal and Agent — Declarations—Res Q-estaj.
    Declarations of an agent and declarations made in his presence at the time of doing an act within the scope of his authority, and relating to the subject-matter of the act, are admissible in evidence as part of the res gestee.

    Error to Wayne; Wisner, J., presiding.
    Submitted June 23, 1910.
    (Docket No. 150.)
    Decided July 14, 1910.
    Trespass vi et armis by Minnie Zart against Andrew J. Brandau and the Singer Sewing Machine Company. A judgment for plaintiff is reviewed by defendant company on writ of error.
    Affirmed.

      Lodge & Brown, for appellant.

      William Look and Lehman, Biggs & Lehman, for appellee.

       As to liability of master for assault by servant, see note to Davis v. Houghtelin (Neb.), 14 L. R. A. 737.

   Stone, J.

The plaintiff brought an action in trespass against the defendants to recover damages for an alleged assault committed upon her by the defendant Andrew J. Brandau, while, it was claimed by the plaintiff, he was engaged in the business of the other defendant, the sewing machine company. The plaintiff recovered a substantial verdict and judgment, and the defendant the sewing machine company has brought error.

(1) It claims that the court erred in denying defendant’s motion to direct a verdict for it, because it appeared from the undisputed testimony that Brandau and his companion, were not, at the time of the alleged assault complained of, engaged upon the business of the Singer Sewing Machine Company, but were engaged in the private enterprise of the defendant Brandau.

(2) That the court erred in denying defendant’s motion to direct a verdict for it, because it appeared by the undisputed testimony that at the time of the assault complained of Brandau and his companions were not acting within the scope of their employment by the said sewing machine company.

(3) That the court erred in denying defendant’s motion for a new trial upon the grounds above stated; and also because the verdict was against the weight of evidence.

After reading the record we are unable to agree with defendant’s counsel that the evidence was undisputed upon the points stated in the assignments of error. There was a conflict in the evidence. The plaintiff offered evidence tending to show that on September 6, 1906, before noon, she went to the branch store of the sewing machine company, at the corner of Chene street and Gratiot avenue, Detroit, to have some repairs made on her sewing machine. There she met defendant Brandau, who was managing salesman for the company at that store, and arranged with him to call at her house and get the machine. Brandau went to plaintiff’s house about 1 o’clock p. m. and took away the old machine, saying that he would bring it back right away. The agreed price of repairs was $4.

That same evening, about 6 or 7 o’clock, Brandau came a second time to plaintiff’s house, and brought another machine for her use, while her own machine was being repaired. He told her that he wanted to sell this machine because he and his girl wanted to get married. The machine was apparently second-hand. After some negotiations the plaintiff agreed to buy this machine for $24, paying $15 down and taking from Brandau the following receipt:

“9/6/’06.
“Received from Mrs. O. Zart $15, balance of $9 to be paid September 7, 1906.
“A. J. Brandau, M. S.”

No further writing was made or passed, nor would there be in a cash sale any written contract. Brandau called the third time on September 8th, in the afternoon, to collect the $9 balance. Plaintiff refused to pay until he brought back her old machine. On October 16th Brandau called again with a Mr. Berg, her neighbor, who was an employe of said company. Berg said to the plaintiff:

“Mrs. Zart, you must pay the $9. Mr. Brandau is the agent. You must pay that money to the company.”

She refused to pay, claiming that he had sold her machine. He finally brought back what he claimed was her old machine. She claimed it was not hers.

On October 23d, in the morning, Brandau came to the plaintiff’s house with one Wood, an employéof the sewing machine company. Brandau came in the front door and Wood in the back door. When they came in, Wood said: “I am the boss from Chicago,” and he showed papers, whieh he had in his pocket. He said: “lam boss; I take the machine,” and then he took it. Wood and Brandau then picked up the new machine and started away with it. In the melee which ensued plaintiff claims to have been kicked and injured by Brandau, and brought this action. Plaintiff’s daughter testified that Brandau came with a wagon that day which had on it the name of the Singer Sewing Machine. It was undisputed that Brandau was the manager of the sewing machine company at the time he had the dealings with the plaintiff, and that the letters “M. S.” added to his name meant “Managing Salesman;” that he hired Wood and paid him, and that he had agents under him, and that he had charge of the entire business that came through the store; that there was no one above him there. The defendant Branda,u testified that he took Wood along to get the money or the machine. That if a machine was not paid for, he looked after taking it back or seeing that the company’s rights were protected. That was in his line of business.

On the part of the defendant it was claimed, and it gave evidence tending to show, that the machine which had been sold to the plaintiff, was received at appellant’s store on March 30, 1906; that it was on trial at the house of an Italian on Rivard street, where a fire occurred on May 6, 1906; that the machine became so smoked and burned by the fire as to be of no further value to appellant; that appellant collected the insurance thereon, dropped the machine from stock, and gave the store credit therefor; that appellant never sold this machine again, and received no money for it from anybody; that appellant’s books show no sale of any machine to plaintiff, nor any business transaction with her whatever during the months of September and October, 1906; that during 1906 Brandau had built a partition in appellant’s store, and had paid for the repairs personally; that after the machine was damaged and dropped from stock, appellant gave it to Brandau to reimburse him for these repairs, to do whatever he pleased with it; that Brandau had the machine refinished and: overhauled, and took it to his house, where it stood for a ' month or two until he sold it to the plaintiff; that appellant did not know that Brandau had sold this machine to plaintiff, or that any trouble had occurred, until the early part of 1907, when this suit was begun; that Brandau and Wood have standing instructions never to use force to obtain possession of a machine, and, if unable to obtain peaceable possession, to commence replevin proceedings. The appellant contends that the above claims were undisputed, and entitled it to a directed verdict. The record shows that there were many points in dispute.

It does appear that the plaintiff never knew Brandau except as manager of the business of the Singer Sewing Machine Company. She went to the company’s store to do business with the company. She made arrangement with the company’s manager to repair her old machine, and it was taken to the company’s store for repairs. There is no evidence that Brandau ever told her that the machine was his own property, and not that of the company. The testimony is conclusive that Brandau was the manager of the store and business. He had Wood, Berg, and another under him. The supervising agent for the State testified that Brandau looked after the company’s interests and business. He selected and hired the company’s help. If he wanted to discharge a man he could. He had for years been held out in the city directory as manager of the appellant’s business, at the store in question. His authority in that business seems to have been plenary. There is no claim that Brandau and Wood were not under pay, and in the employ of the appellant on this day, and the trouble occurred during business hours. These are a part only of the circumstances which, in our opinion, justified the circuit judge in leaving the questions involved to the jury.

The charge contained the following language:

“ I charge you that the liability of the master does not reach wrongs caused by the carelessness of servants in work not directed by the master, as the business of a third party, of the servant himself, or of the master, which he did not expressly or impliedly direct the servant to perform.
“ I therefore charge you that if you find that at the time of the commission of the alleged assault Brandau and Wood were not engaged upon the business of the Singer Sewing Machine Company, but were engaged in the private enterprise of defendant Brandau, the Singer Sewing Machine Company is not responsible for their acts, and your verdict must be for the defendant Singer Sewing Machine Company. If you find that the acts of Brandau and Wood in committing the alleged assault of which plaintiff complains were not acting within the scope of their employment by the Singer Sewing Machine Company, and that their acts in that connection were not expressly or impliedly authorized by the Singer Sewing Machine Company, then the Singer Sewing Machine Company is not responsible therefor, and your verdict must be for the defendant Singer Sewing Machine Company.
“ I charge you that the fact that the plaintiff believed, or was induced to believe by Brandau that she was having a machine from the Singer Sewing Machine Company, is not alone sufficient to make that defendant liable for the assault, unless you find that the Singer Sewing Machine Company actually owned the machine. The defendant Singer Sewing Machine Company is not liable, unless you find that it actually owned the machine sold by Brandau to plaintiff. * * * There are two methods of proving every proposition that is alleged in a court of justice. One is by direct proof; the other is by circumstantial evidence. By direct proof, where testimony is given, such as was given in this case by Brandau and the other two witnesses — that is direct proof.
“ Now, the other proposition sought to be established, that these men were engaged on the business of the Singer Sewing Machine Company, and were acting within the scope of their employment, is sought to be established by circumstantial evidence. Now if you find that all those circumstances, taken together, in your judgment, in some degree, outweigh the testimony that is opposed to it, and that it establishes the fact sought to. be proven by the plaintiff by a fair preponderance of evidence, then you are entitled to act upon the circumstances, notwithstanding an absolute denial.”

We are of opinion that the case and the charge fall within the doctrine of the case of Canton v. Grinnell, 138 Mich. 590 (101 N. W. 811). The jury had the right to consider the reasonableness of the testimony. They are not bound to believe a witness whose testimony is inconsistent with the circumstances, although there is no other testimony bearing on the same question. If there is anything tending to create distrust in the truthfulness of a witness, the question must be left to the jury. Underhill v. Railway Co., 81 Mich. 43 (45 N. W. 508); Michigan Pipe Co. v. Insurance Co., 92 Mich. 482, 488 (52 N. W. 1070, 20 L. R. A. 277); Goppelt v. Burgess, 132 Mich. 28 (92 N. W. 497); Preuschoff v. Brewing Co., 132 Mich. 107 (92 N. W. 945); Abbott v. City of Detroit, 150 Mich. 245 (113 N. W. 1121).

The declarations of an agent, and declarations made in the presence of an agent, at the time of doing an act, within the scope of his authority, and relating to the subject-matter of the act, are evidence, as part of the res gestee. Benedict v. Denton, Walk. Ch. (Mich.) 336; Converse v. Blumrich, 14 Mich. 110 (90 Am. Dec, 230); Butters Salt & Lumber Co. v. Vogel, 135 Mich. 383 (97 N. W. 757).

The case seems to have been properly and carefully submitted to the jury, and a verdict reached which the circuit judge, on a motion for a new trial, refused to disturb. There was sufficient basis for this holding.

The judgment is affirmed.

Bird, O. J., and Ostrander, Hooker, and Blair, JJ., concurred.


author: Moore, J.

text:
    PEOPLE v. LAPHAM.
    Intoxicating Liquors — Local Option — Criminal Law.
    Procuring intoxicating liquors as agent for the purchaser, who provided the money, in a county which had adopted prohibition, was a violation of law. 2 Comp. Laws, §§ 5412-5435.
    Exceptions before judgment from Jackson; Parkinson, J.
    Submitted June 27, 1910.
    (Docket No. 146.)
    Decided July 14, 1910.
    Steve Lapham was convicted of violating the local-option law.
    Affirmed.

      E. J. Marrinane, for appellant.

      Albert O. Beece, Prosecuting Attorney, and Frank L. Blackman, Assistant Prosecuting Attorney, for the people.
   Moore, J.

The information in this case charges that respondent "did sell, furnish, and give to one William Davis, a certain quantity of malt, brewed, fermented, spirituous, and intoxicating liquor, to wit, two pint bottles of whisky,” contrary to the provisions of Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 1889 (2 Comp. Laws, §§ 5412-5435), as amended, etc. The respondent was convicted and brings the case here by writ of error.

The testimony of the witnesses for the people tended to show that respondent, together with three or four other people, was in Prey & Bollinger’s billiard parlor, in the city of Jackson, on the 19th of December, 1909; that the party consisted of respondent, William Davis, and his two brothers, Charles Davis and Myron Davis, and Edward Hogan; that said William Davis remarked that he wished he had a drink, and that respondent said he would go and get some if he had the price, and William Davis gave him the money and respondent went and got it; that William Davis and Myron Davis each contributed 25 cents, and William Davis gave the 50 cents to respondent, and that respondent left the billiard parlor, was gone 15 or 20 minutes and returned with a pint of whisky; that respondent handed the bottle of whisky to one of the Davis boys — which one of the Davises received the bottle from the respondent, none of the witnesses could remember. The three Davises and respondent drank the whisky; afterwards William Davis, as he testified, gave respondent 25 cents and respondent added 25 cents and went ■ out from the billiard parlor and after awhile returned with another pint bottle of whisky, which was drunk by the Davis boys and respondent. There was no testimony as to how respondent obtained either of said bottles of whisky. William Davis further testified that he did not know whether respondent kept liquor for sale, or went and purchased it, or how he got it. Respondent testified that he did not have any whisky in his possession that day, and denied that he furnished any to William Davis or either of his brothers.

The error claimed is stated in the brief of counsel as follows. We quote:

“Appellant relies upon his first assignment of error, which in part is as follows: The court erred in charging the jury:
“ ‘But if he did not have any (whisky) on hand somewhere secreted, out of which he got and produced it for this particular purpose, using Davis’s money, and got it from a third party, still he would be the agent, that is, the means, the active, intentional means, of supplying this liquor to the Davises and the others that used it there, and in that case he should be deemed to be the furnisher of the liquor and furnishing it against the terms of the statute, and therefore guilty. So, in either case, no matter how or where he obtained it, if he did furnish the liquor as charged, and as the people claim, then he should be convicted of this ofEense.’
“ There is no evidence in this case that respondent kept the whisky for sale or that he had it in his possession, or under his control, at any time prior to the time he went out and got it as testified to by the people’s witnesses, nor is there any evidence that he was the servant of, or agent for, or in any way connected with, any person who had the liquor in question for sale. He procured it at William Davis’s request, using William Davis’s money. We contend he was the agent of William Davis. The only point we claim is that the court erred in charging the jury as set forth in our first assignment of error. We submit that .it was a question for the jury whether the liquor produced was liquor that respondent had on hand, whether he was acting as agent of the seller, or whether he was acting as the agent of William Davis, and that if he was acting as the agent of William Davis he was not guilty of selling, giving, or furnishing the liquor to him, and it was error for the court to charge that he was.”

Counsel cite a number of authorities, but none’ of them are from this State. We think the charge of the court, in view of the testimony, the offense charged, and the provisions of the statute, is not subject to the criticism made by counsel.

The conviction is affirmed.

Ostrander, McAlvay, Brooke, and Blair, JJ., concurred.


author: Brooke, J.

text:
    PEOPLE v. SWENSON.
    1. Intoxicating Liquor —License —Soliciting Orders —Nonresident Corporations.
    It is unlawful to solicit orders for the purchase of intoxicating liquors at wholesale without complying with Act No. 291, Pub. Acts 1909, requiring a bond and license, although the solicitor has no authority to make contracts for his principal and the orders are subject to acceptance by the company which is a nonresident corporation.
    2. Constitutional Law — Equal Protection oe the Laws —Intoxicating Liquors — Discrimination Against Nonresidents.
    The statute prohibiting such solicitation is not unconstitutional as a discrimination against nonresidents.
    Exceptions before judgment from Houghton; Streeter, J.
    Submitted June 27, 1910.
    (Docket No. 148.)
    Decided July 14, 1910.
    Theordore Swenson was convicted of violating the liquor law.
    Affirmed.

      Burritt & Burritt and James T. Drought (.Lawrence Maxwell and Joseph S. G-raydon, of counsel), for appellant.

      Franz G. Kuhn, Attorney General, and William J. McDonald, Prosecuting Attorney (Arthur P. Hicks, of counsel), for the people.
   Brooke, J.

Defendant brings this case to this court for review upon-exceptions before sentence. He was proceeded against and convicted under Act No. 291 of the Public Acts of 1909, upon the charge that he was engaged in the business of selling and offering for sale, and soliciting orders for the purchase of, distilled, brewed, malt, spirituous, and intoxicating liquors, at wholesale, as agent for a foreign and nonresident corporation which had not paid to the treasurer of the State a license fee, as required by law. Defendant, as agent for the William Bergenthal Company of Milwaukee, Wis., solicited and obtained two orders for liquor at Houghton, Mich. Defendant had no authority to enter into a contract in Michigan binding upon the company. His principal reserved the right to accept or reject orders received by it at Milwaukee. It accepted the orders in question and shipped the goods by rail to Houghton, at the risk of consignees, who paid the freight. Neither defendant nor his principal had paid any license fee, or procured a license for the sale of liquor at wholesale in Michigan.

Section 1 of the general liquor law (2 Comp. Laws, § 5379), as amended by Act No. 391 of the Public Acts of 1909, provides, in part:

“Any person or persons, partnership or corporation, being nonresidents of the State of Michigan, who shall in this State sell the liquor referred to in this act, at wholesale, by or through agents, salesmen or other persons soliciting or doing business in this State, shall pay the same license fee as is provided in this section for resident person, persons, partnerships and corporations. * * * It shall not be lawful for any representative of such nonresident person, persons, partnership or corporation to solicit or do business in this State until such bond has been filed and approved and such license fee has been paid.”

Section 3 of the act, as amended by Act No. 391 of the Public Acts of 1909, contains this provision:

“Wholesale dealers shall be held and deemed to mean and include all persons who sell or offer for sale such liquors and beverages at wholesale, in original trade packages and in bulk and by measure, not to be drunk on the premises.”

Defendant urges two grounds for reversal:

(1) That the law does not make it any offense to solicit orders in this State, where the sale is consummated by delivery to the consignee outside the State; and

(3) That, if the law makes such solicitation an offense, it creates an unconstitutional discrimination against nonresidents.

We are of opinion that, upon a fair reading of the language of the statute, with the purpose of giving effect to every part thereof if possible, an elementary rule of statutory construction will demonstrate that it was the intention of the legislature to prohibit the solicitation of orders for, as well as the consummated sale of, liquor within the State, without the payment of the license fee provided by the act. The construction contended for by defendant would place nonresident dealers in a better position, with regard to the traffic, than that occupied by citizens or residents of the State. It cannot be supposed that the legislature intended such a result. Such a construction would permit foreign dealers to do business at will, in Michigan, thereby depriving the State of its revenues, as well as destroying that proper control of the traffic which results from the imposition of the license.

The questions here involved are exhaustively discussed and determined adversely to the contention of defendant in the case of Delamater v. South Dakota, 205 U. S. 93 (27 Sup. Ct. 447). This decision is controlling. See, also, State v. Ascher, 54 Conn. 299 (7 Atl. 822).

The judgment is affirmed.

Ostrander, Moore, MoAlvat, and Blair, JJ., concurred.


text:
    PEOPLE v. DICKERSON.
    Criminal Law — Appeal and Error — Review bv Certifying Record — Statutes.
    Under 3 Comp. Laws, §§ 11966, 11967, the record in a criminal case should be certified to the Supreme Court before judgment, in order to test the validity of a law; after sentence the sole remedy is a writ of error.
    Case certified from the recorder’s court of Detroit;, Connolly, J.
    Submitted June 27, 1910.
    (Docket No. 155.)
    Decided July 14, 1910.
    Frank M. Dickerson was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson: On certificate of trial court to determine the constitutionality of Act No. 175, Pub. Acts 1905.
    Dismissed.

      Frederick E. McCain, for defendant.

      Edwin Henderson, amicus curice.

      Ormond F. Hunt, for the people.
   Blair, J.

Defendant was convicted of the crime of murder in the first degree on the 9th day of April, 1910, and on the same day he was granted 30 days’ time within which to move for a new trial and settle a bill of exceptions. On the 12th day of April, 1910, defendant was sentenced to State prison at Jackson for the remainder of his life and the proper warrant and commitment papers issued, upon which he was incarcerated in said prison. On the 14th day of April, 1910, a motion for a new trial was made and filed, which motion was argued on April 19th and decision thereon withheld. At the conclusion of the argument defendant’s attorney requested the court to certify so much of the record to the Supreme Court as would test the validity of Act No. 175 of the Public Acts of 1905, in pursuance of the provisions of sections 11966 and 11967, 3 Comp. Laws. In accordance with the request of defendant’s attorney, and, as stated in the certificate, in pursuance of the sections referred to, the trial judge has certified to this court a portion of the record, together with a memorandum of certain questions of law, for our opinion.

The sections in question appear in their present form in the Revised Statutes of 1838, pt. 4, tit. 2, chap. 5, §§ 3, 4, and from that time to this, so far as we can ascertain, no question has been certified to this court in pursuance of said section 11966. We are, therefore, unable to obtain any aid from our own decisions in construing these provisions. In Wisconsin, however, a statute substantially the same as ours has been construed by the supreme court to require the report to be certified before judgment, holding that after judgment a writ of error must be resorted to. State v. Sheppard, 37 Wis. 395.

We regard this decision as a correct interpretation of our statute, and we, therefore, decline to consider the questions reported for our opinion.

Ostrander, Moore, McAlvat, and Brooke, JJ., concurred.


text:
    MISCOTTEN v. HELLENTHAL.
    Quieting Title — Equity Jurisdiction — Adequate Remedy at Law.
    An adequate remedy at law exists barring a bill to quiet title against a defendant who is in possession under a claim of title to real property.
    Appeal from Allegan; Padgham, J.
    Submitted June 29,1910.
    (Docket No. 68.)
    Decided July 14, 1910.
    Bill by John Miscotten against Walter Hellenthal and another to quiet title to certain land. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      O. 8. Cross and Perle L. Pouch, for complainant.

      Wilkes & Stone, for defendants.
    The bill of complaint in this cause is filed to quiet the title to a strip of ground, 16£ feet wide and 168 feet long. The strip lies between lands concededly owned by the complainant on the south and by defendants on the north. The true line between the holdings of the parties has never been established. If it is located as claimed by complainant, he is the owner of the disputed strip. If as claimed by defendants, they are the owners thereof. Defendants claim, however, that, irrespective of the true location of the line, they are entitled to the possession of the strip by virtue of a written lease thereof, made by complainant’s grantor to their grantors in February, 1897, for the term of 25 years. From a decree dismissing the bill of complaint, complainant appeals.
   Brooke, J.

{after stating the facts). While the bill of complaint in one paragraph avers that complainant is in possession of the disputed strip, other facts are set out therein which indicate the contrary, and the evidence shows conclusively that defendants and their grantors have held possession of the strip for many years, and are now in possession thereof. The circuit court found that defendants were in possession under the lease, which was declared to be valid, and of which complainant had notice •at the time of his purchase. It is unnecessary to determine whether this holding was correct or not. The decree was one simply dismissing the bill, and we think it was warranted upon the conceded facts in the case.

Defendants being in possession of the property in dispute under a claim of title, equity has no jurisdiction; complainant’s remedy is by an action at law. Stockton v. Williams, 1 Doug. (Mich.) 546; Wykes v. Ringleberg, 49 Mich. 567 (14 N. W. 498); Kilgannon v. Jenkinson, 51 Mich. 240 (16 N. W. 390); Bresler v. Pitts, 58 Mich. 347 (25 N. W. 311); Andries v. Railway Co., 105 Mich. 557 (63 N. W. 526); Dolan v. Smith, 147 Mich. 276 (110 N. W. 932); Simmons v. Day, 151 Mich. 1 (114 N. W. 853); Warren v. Warren, 151 Mich. 96 (114 N. W. 867); Nicholls v. Lumber Co., 157 Mich. 234 (121 N. W. 742).

The cases of Wilmarth v. Woodcock, 58 Mich. 482 (25 N. W. 475), Campbell v. Kent Circuit Judge, 111 Mich. 575 (70 N. W. 141), Rhoades v. McNamara, 135 Mich. 644 (98 N. W. 392), and Cullen v. Ksiaszkiewicz, 154 Mich. 627 (118. N. W. 496), relied upon by complainant, have been examined. They are clearly distinguishable, and have no application to a situation such as is disclosed by the facts in the case under consideration.

The decree is affirmed, with costs of this court to defendants.

Bird, C. J., and Ostrander, Moore, and Blair, JJ., concurred.