author: Hooker, J.

text:
    BARTLETT v. JENKINS.
    1. Malicious Prosecution — Evidence—Opinion of Magistrate.-. —Materiality.
    In an action for malicious prosecution, the magistrate called to prove the issuance of the warrant should not be permitted to state on cross-examination whether at the time under the-statement of defendant he considered that there was probable* cause for making the complaint.
    3. Same — Admissions of Plaintiff — Materiality.
    Testimony that, upon being brought into court, plaintiff scolded, and complained about being arrested, made a statement about settling the matter, and offered to pay for the wheat which he was accused of stealing, is immaterial, such testimony being as consistent with innocence as guilt.
    3. Same — Relations of Parties.
    A statement by plaintiff on direct examination that he had had dealings with defendant and had owed him, the prosecution being for stealing wheat which plaintiff claims to have bought, if improperly admitted, is harmless.
    4. Same — Transaction on Which Prosecution Was Based.
    Testimony of a witness, who was present, showing what occurred when plaintiff obtained the wheat which defendant-prosecuted him for stealing, is competent, as throwing light on plaintiff’s innocence, and as bearing on the state of facta necessary to be known by counsel who advised as to the prosecution, if it should appear that such facts came to the knowledge of defendant.
    5. Witnesses — Examination—Questions—Prejudice — Cure by Answer.
    No prejudice results from'the asking of questions which either are not answered or else are so answered as to support the-theory of the party complaining.
    6. Malicious Prosecution — Statements of Defendant — Admissibility.
    Defendant, in an action for malicious prosecution of a complaint for stealing wheat, may be asked on cross-examination if he did not state to the prosecuting attorney, before the prosecution was dismissed, that plaintiff did talk to him about the wheat, it being plaintiff’s claim that he took the wheat by authority of defendant, intending to pay for it.
    7. Same —Defense—Probable Cause — Advice of Counsel — Transactions with Counsel.
    The defense being probable cause, based on advice of counsel, defendant may be asked on cross-examination whether he paid his counsel, and the time and amount, and the answers may go to the jury.
    8. Same — Evidence—Conclusions—Admissibility.
    A question asked of defendant on cross-examination whether he would have made the complaint if plaintiff had come and settled with him is not objectionable as calling for a conclusion.
    9. Witnesses — Examination—Striking Out — Cure of Error.
    The striking out of a part of an answer of a witness is immaterial where the same statement is immediately made on redirect in fuller terms. .
    10. Malicious Prosecution — Evidence — Interview with Prosecutor.
    The details of an interview between defendant and the prosecuting attorney, and his conduct in relation to the action of the prosecutor and justice in dismissing the case, drawn from defendant on cross-examination, are admissible on the questions of malice and good faith.
    11. Same — Instructions—Assuming Facts.
    An assumption in the instructions that the plaintiff was discharged by the magistrate is not erroneous where the fact is established by undisputed proof.
    12. Saving Questions for Review — Instructions — Exceptions —Necessity.
    Error cannot be predicated upon a charge to which no exception was taken, nor upon failure to give a more specific charge in relation to a matter as to which no request was made.
    Error to Calhoun; Adams, J., presiding.
    Submitted October 16, 1907.
    (Docket No. 110.)
    Decided January 31, 1908.
    Case by Byron E. Bartlett against George W. Jenkins for malicious prosecution. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      H. W. Cavcmagh, for appellant.

      M. H. Nichols, for appellee.
   Hooker, J.

The parties to this action are farmers and neighbors. During the absence from home of the defendant the plaintiff went to his farm and obtained from the tenant eight bushels of wheat for seed. The plaintiff testified on the trial that he had previously spoken to the defendant about the possibility of his wanting some wheat, and that defendant consented to his having it; that he did not intend to steal it; never denied getting it; expected and promised to pay for it. The defendant denied that he had previous talk with the plaintiff about the wheat, and testified that the first he knew about the matter was when he was informed by his tenant and another person, both of whom were present and aided in getting the wheat for plaintiff after plaintiff had obtained the key to the granary from defendant’s wife, to whom he returned it afterwards. There was testimony that tended to show some ill feeling between the parties over a debt owing by plaintiff’s step-father, at the time of his death, which plaintiff, who cared for him during his illness and to whom deceased’s property was bequeathed, promised to pay, but did not pay promptly, which led defendant to institute probate proceedings. This ill feeling, if any existed, was not very clearly proved, but was an element in the cause which was for the jury to consider.

A short time after plaintiff obtained the wheat, defendant made a complaint for larceny and caused plaintiff’s arrest. The complaint was made under alleged advice of counsel and the magistrate after a statement which defendant claims included all the facts in his possession, and after counsel had talked with the prosecuting attorney. After one or more adjournments of the case the plaintiff was discharged by the justice after a jury had been summoned to try him, and before they were sworn. This appears to have been brought about by defendant’s brother-in-law, who paid the costs himself, both plaintiff and defendant refusing to pay anything, and possibly by the advice of, certainly with the acquiescence of, the prosecuting attorney. The plaintiff afterwards brought this action for malicious prosecution and recovered a verdict and judgment for $50, and defendant has appealed.

'There are several assignments of error which we will discuss. 1 and 3. The plaintiff called Mr. Breakey, the justice who issued the warrant, to prove the issue of the warrant upon the written complaint of the defendant, and the docket entries. He was cross-examined at length as to the conversation at the time the complaint was made and was asked whether, at that time, under the statement of Mr. Jenkins (defendant) to him, he considered that there was probable cause for making the complaint. The answer was excluded. It was immaterial.

On cross-examination of the justice, he stated that after plaintiff’s arrest, and on the 8th of December, he did not think—

“That Mr. Bartlett at anytime disputed that he had the wheat. I do not know what he said. He scolded about being arrested and complained about it but I cannot recollect. I think he did make a statement about settling it up. He made a proposition about paying for the wheat when he was brought into court; he offered to pay for it and I think he made the proposition first to Mr. Jenkins. I think he made a tender of the money, either he or Mr. Nichols did.
Q. What did Mr. Jenkins say ?
A. I wish to say this here, that I think this occurred on the 8th of December.
Q. Not on the first day ?
A. No, sir; or on the 11th. I think it occurred on the 8th.
Q. Now do you recollect anything farther that Mr. Bartlett said at that time or on the 8th ?
The Court: I think you may strike out what he said there on the 8th. The jury may disregard it.”

If this testimony was of importance, it was upon the theory that it tended to show an admission of guilt. Had plaintiff admitted that he was guilty of larceny the fact would have been admissible, and if the language quoted could be said to fairly imply or justify an inference of guilt it would have been proper testimony, but there is nothing indicative of guilt in it. First, the justice did not remember his language. He scolded and complained about, being arrested and the witness thought he made a statement about settling it up. What kind of a statement? It may have been an offer or a refusal to settle it up. He offered to pay for the wheat but that was not an admission of guilt. All of this testimony was as consistent with innocence as guilt. We think, therefore, that the defendant suffered no injury from the ruling.

On the direct examination of the plaintiff the following dialogue occurred:

“Q. I think you said that you had had some dealings with Mr. Jenkins previous to this time?
“A. Yes.
“Q. Had you any dealings with him, I mean purchase anything of him or owed him anything ?
“A. Yes I have owed him and had things from him.
“Mr. Cavanagh: I object to this and move to strike it out as immaterial.
The Court: It may stand.”
This testimony was properly admitted but were it otherwise it was harmless.

Eli Moor, a witness who was present, was called to show what occurred when plaintiff obtained the wheat. The testimony was competent, throwing much light upon the question of plaintiff’s innocence, and bearing on the state of facts necessary to be known by counsel who advised in relation to a prosecution, if it should be made to appear that they came to the knowledge of the defendant.

This assignment is within the rule applied to No. 5, and defendant’s counsel appear to concede that it was not harmful.

It is contended that the court erred in refusing to take the case from the jury at the conclusion of plaintiff’s testimony on the ground that malice had not been shown. and that probable cause had. In our opinion there was evidence sufficient to send both questions to the jury and the court did not err in his ruling.

The defendant, in his direct examination, denied that plaintiff had talked to him about purchasing some wheat. On cross-examination he was asked if he did not first tell Mr. Miller, assistant prosecuting attorney, at Homer, on the 11th of December, that plaintiff had never said" anything to him about the wheat, and if Miller did not then say that had he known that he had had any talk with Bartlett about the wheat and about paying for it, he would not have indorsed the complaint, and afterwards ask if defendant did not, before the case was dismissed by the justice, say to Miller that plaintiff did talk with him about the wheat. The first question was answered no, and the second was not answered, so that defendant was not injured by either. The last was answered yes, and was plainly material testimony.

Defendant sought to prove probable cause, based on advice of counsel. It was proper on cross-examination to ask him whether he paid him, the time and amount, and to allow the answers to go to the jury.

There was testimony that defendant and his wife called upon plaintiff one Sunday and did not find any one at home. Defendant was asked whether, if Mr. Bartlett (plaintiff) had remained at home that Sunday and entertained defendant and his wife, instead of going away, he would have made the complaint. He answered that he thought he should unless it was otherwise settléd. He was then asked:

“ What do you mean by otherwise settled ?
“A. If he could have come to terms and made peace with me, there wouldn’t have been any complaint, but as he didn’t — that has no influence with me, that day, because we parted on good, terms that day as far as that is concerned — we had no words.
“Q. The reason that you did not make this complaint was because he didn’t come to you and make peace with you, was it ?
“A. I waited and gave him—
“Q. Just wait. I asked you a question. (Question read.)
“A. Well, now, in what respect are you going into that, that is what I want to know ?
“Q. You answer the question and we will get to the rest of it later.
“Mr. Oavanagh: I object to it as immaterial, irrelevant and incompetent. It also calls for a conclusion from the witness.
“ The Court: Answer.
“Mr. Oavanagh: Exception.
“A. Well, I couldn’t give an answer to that by yes or no, because I could not tell what I would have done.”

We find no error in either of these rulings.

Mr. Oavanagh was sworn for defendant. He stated that he was an attorney at law and advised the defendant upon the subject of making this complaint. On cross-examination he was asked:

“Did he tell you there was any personal malice on his part toward Mr. Bartlett ?
“A. No, sir, he didn’t, and he didn’t manifest any or show any.”

The latter part of the answer was struck out, but, as the witness immediately restated it in even fuller terms on redirect, there is no occasion to consider the question.

Counsel say that this error is similar to the 8th. It related to an interview between the assistant prosecuting attorney and defendant on December 11th, and his conduct in relation to the action of the prosecutor and justice in dismissing the case. It was a competent examination in relation to the question of malice and good faith.

Complaint is made of the statement on the charge that the plaintiff was discharged by the magistrate. The learned judge had stated the elements necessary to a charge of malicious prosecution and said that one was that the prosecution complained of must have been ended by plaintiff’s acquittal or discharge. He said such element was established. We think that it was, by undisputed proof.

It is urged that the language of the judge in relation to the defendant’s discharge was prejudicial because it left them to infer that plaintiff could not be guilty of the charge. Counsel did not request a charge upon this subject and there is no reason to think that the jury were misled. Indeed the testimony was such that had the court advised the jury that the evidence failed to prove guilt we should hesitate to reverse the cause for that reason.

This was considered with the 15th assignment.

Counsel says that the court should have stated a hypothetical case as a basis for the jury to act upon in delivering to them his charge. He relies upon Slater v. Walter, 148 Mich. 650. No exception was taken to the charge, and no request was made in this connection. Moreover, the judge explained the rules relating to probable cause in a way that made it easy to apply them to this case. This is no ground for reversal.

This was a proper case to submit to the jury, and the court did not err in omitting to direct a verdict for defendant.

The judgment is affirmed.

Ostrander, Moore, Carpenter, and MoAlvay, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    BATTLE CREEK LUMBER CO. v. POLAND.
    1. Mechanics’ Liens — Time for Filing — Extension—Articles Furnished — Sufficiency.
    The furnishing of artioles not ordered, not used, and not suitable for use in a building cannot operate to extend the time for filing a lien for materials furnished for the construction of the building.
    2. Same — Order—Evidence—Sufficiency.
    Testimony by defendant that he spoke to complainant about the sash, and that complainant said he would send them right up, and that defendant said he had not the dimensions, is not • an admission by defendant that he gave an order for the sash delivered afterwards by complainant and not used because not of the proper dimensions.
    3. Same — Testimony—Book Entries — Probative Effect.
    Complainant’s testimony that defendant ordered the sash is not materially strengthened by an entry in his order book to that effect made by himself, it being at most a contemporary act tending to show his understanding of the transaction.
    4. Same — Defendant as Witness — Impairment of Credibility.
    That complainant actually furnished materials for which defendant is indebted to him, and for which he should pay, though a potent force in the administration of justice, should not be used to impair defendant’s credibility as a witness while testifying as to whether he ordered certain materials delivered by complainant and relied upon to extend the time for filing a lien.
    5 Same — Rights of Defendant.
    It is the right of a landowner that this property be not held subject to a mechanics’ lien unless the creditor has complied with the statute.
    Appeals from Calhoun; Hopkins, J.
    Submitted October 16, 1907.
    (Docket Nos. 72, 73.)
    Decided January 31, 1908.
    Bills by the Battle Creek Lumber Company against. Adrian A. Poland and others to enforce mechanics’ liens. From decrees for complainant, defendant Poland appeals.
    Reversed, and bills dismissed.

      Duane C. Salisbury, for complainant.

      Willard A. Knight, for appellant.
   Hooker, J.

The above-entitled causes between the same parties were commenced simultaneously to enforce two mechanics’ liens upon two city lots for building material alleged to have been furniáhed for the respective houses. That the defendant is indebted to the complainant for most of the items charged is not denied. The most important question is one of fact, viz., whether two items of April 21, and May 12, 1904, respectively, were ordered by the defendant for, and were used in, the respective houses. If they were, the liens were seasonably filed; otherwise they were not. The bill of April 21st included several items of lumber; that of May 12th, cellar windows for both houses. No witness for the complainant testified that these" articles were delivered at the premises except the complainant’s salesman. On cross-examination he admitted that he had no personal knowledge upon the subject, but relied upon his delivery slips and books, neither of which indicated anything except the ledger, and this one from pencil memoranda made by him subsequent to the posting of the items from the sales-book by a bookkeeper. He admitted that the windows were not used in the houses. On the other hand, the defendant testified that the windows were delivered but were not used; being not the right size. In this he was corroborated by another witness who testified that on September 12, 1904, he ordered windows from another firm, and that those furnished by the complainant were not used in the buildings.

Defendant testified that the April 21st items were delivered elsewhere and went into another house at the corner of Pearl and MeOamly streets. Defendant denied that he gave a positive order for the windows. He testified: “Yes, I mentioned to Mm that I hadn’t got cellar sash, and he said, c We’ll send them right up.’ I said, ‘ I can’t give you the dimensions,’ and I didn’t have them. I never gave him the dimensions, nor I never gave him the order.” The circuit court considered this a “ practical admission that he gave the order.” It certainly was not an order for sash that would not fit and we are of the opinion that the complainant had no reason for sending them without first obtaining the measurements.

Complainant’s witness testified that defendant gave the orderfor the windows. He could not tell where it occurred and he did not give the conversation or contradict defendant’s version of the talk. He produced the order book, however, showing an entry of an order for two sash for each house. This, however, did not materially strengthen his testimony, for it was nothing more than self-made evidence of a transaction testified to by him and the defendant which might or might not justify the entry. It was at most a contemporary act which tended to show that he understood that the sash were ordered for the houses.

It is not denied that the defendant is indebted to the complainant, whom he should pay, and we recognize such a fact as a potent force in the administration of justice. But a debtor has his rights, and one is that his property be not held subject to a lien unless the creditor has complied with the statute. In this case the debtor is subject to judgment and execution, but it does not follow that his property is subject to a lien; nor is a court justified in using that fact as a sort of impairment of his credibility. The most that this record can be claimed to show is that the sash were ordered for the houses; that sash suitable for the purpose were never furnished and never used. We are convinced that no order was given that called upon complainant’s salesman to send sash until dimensions should be furnished, and that proper sash were not furnished. The defendant being under no obligation to pay for them, they could not well constitute an item that would extend the period for filing k lien.

We think the items furnished on April 21st are open to a similar criticism. It is to our minds satisfactorily proved that these articles were ordered for, delivered at, and used in, a third house. Complainant’s testimony shows that it was giving defendant a general credit, items for several jobs being charged in a single account. It has not produced much evidence to sustain its claim, most of it being deductions from books made by others, or otherwise in its nature hearsay. It let the period for liens on these two buildings expire, with the consequence that it has difficulty in establishing a lien or liens that .would cover the entire account.

The decrees are reversed, and bills dismissed, with costs of both courts.

Ostrander, Moore, Carpenter, and McAlvay, JJ., concurred.


text:
    SCOTT v. BAY CITY.
    1. Reference — Compensation of Referee — Discretion of Court — Review.
    Only an abuse of discretion will justify the interference by this court with the allowance of fees to a referee.
    S. Limitation of Actions — Waiver of Statute.
    By participating in the hearing of a motion to fix the compensation of a referee, and moving to have the allowance reduced without raising the question of limitations, the party against whom the allowance is made waives the point.
    Certiorari to Bay; Collins, J.
    Submitted November 18,1907.
    (Docket No. 106.)
    Decided January 31, 1908.
    Petition by James A. Scott against the city of Bay City for the allowance of a claim for services. There was an order allowing the claim in part, and respondent brings certiorari.
    Affirmed.

      8. G. Houghton, for appellant.

      Charles W. Hitchcock, for appellee.
   Hooker, J.

In-1898 an action was begun by declaration by the city of West Bay City against Reuben C. Tasker and others to recover from Tasker, as city treasurer, and his sureties, moneys received by him as treasurer and not accounted for.

The cause came on for trial in 1899 and, it appearing to the court ( Maxwell, J., presiding) that an examination of long accounts would be necessary, an order was made under the statute, 3 Comp. Laws, § 10098 et seq., referring it to James A. Scott as auditor. He made a final report on December 11, 1899. The court was not asked at that time to fix his compensation, the petition filed March 15, 1906, being his first attempt to bring that subject before the court. He had, however, received $1,000; the last payment being on or about March 5, 1900, for his services from the city. The present controversy is based upon that petition.

The petition was apparently entitled in the original cause. It sets forth the circumstances leading up to petitioner’s appointment, alleges that he was employed 2521-days, and that he was to receive not less than $10 per day therefor, and that his services were worth from $10 to $15 per day. An order appointing April 7th as a day for bearing was made and served. Neither appearance, answer, nor objection was made or filed on behalf of the city, which was not represented at the hearing. An order was made allowing the claim at $2,600.

On April 17, 1906, counsel for the city made an application asking that the order be set aside and the city permitted to file an answer. It was heard on May 2d, and testimony was taken in support of and in opposition to the motion which was taken under advisement and decided December 19, 1906, by reducing the allowance to $2,150. While neither the opinion nor the order formally granted leave to plead the statute of limitations, the opinion indicates that the learned circuit judge took this defense into consideration, for he said in the opinion that the delay in filing the petition did not present any legal objection to the allowance of the claim. On January 7th, a second motion was filed asking that the allowance be reduced to an amount not exceeding $1,000, for substantially the same reasons as before. The court modified the former order by reducing the allowance to $916, over and above the sum of $1,000 theretofore paid. Thereupon the cause was removed to this court by certiorari.

The assignments of error are:

(1) That the allowance of $1,916 is exorbitant under the proofs.

( 2) The claim is barred by the statute of limitations.

Merits. We are of the opinion that , the record fails to show an abuse of discretion which alone would justify an interference with the order of the learned circuit judge, if we can review the question of fact on this writ, which we do not intimate.

Statute of limitations. Upon the first modification of the order allowing $2,600, the appellant was in a situation to review the question of the statute of limitations by taking the proper writ from this court. Instead of doing so he made a motion to reduce the allowance, and both parties again took testimony upon the services rendered and their value, and a further reduction was made. There is nothing to indicate that the court considered the question of the statute of limitations as a bar to the claim, though that is a reason stated in the motion for reducing the allowance. "We have no evidence that it was even alluded to upon the hearing by counsel or court. We are of the opinion that counsel waived the point by his last motion.

The order is affirmed.

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


text:
    HARKER v. DETROIT UNITED RAILWAY.
    1. Street Railroaps — Injuries to Team — Negligence — Evidence — Sufficiency .
    In an aotion against a street-railroad company for injuries to a team which was left standing in the street and strayed upon the track, evidence examined, and held, to present a case for the jury whether defendant’s motorman was negligent in failing to observe that the team was without a driver.
    2. Trial — Instructions—Weight of Evidence. .
    Where, in answer to a request for further instructions as to whether the evidence was clear enough to decide whether defendant’s motorman was in fault or not, the trial judge stated, “ I think there is evidence in the case, there is testimony in the case, from which you might find that the defendant is guilty of negligence; but that depends upon whose i evidence you believe,” the charge is not open to the criticism that the jury were told to render a verdict for the plaintiff if they believed his witnesses and for the defendant if they did not.
    3. Saving Questions for Review — Evidence — Specific Objec tion — Necessity.
    The court will not reverse a case because an immaterial answer, ‘made before objection could be interposed, was allowed to stand, no specific ground of objection being stated and no request for instructions regarding it being made, especially a case in which it is improbable that the result was affected by the statement.
    Error to Wayne; Hosmer, J.
    Submitted October 22, 1907.
    (Docket No. 111.)
    Decided January 31, 1908.
    Case by Joshua Harker against the Detroit United Railway for injuries to plaintiff’s horses and wagon. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Lizzie J. MeSweeney and Henry G. L. Forler, for appellee.
   Hooker, J.

The plaintiff’s teamster, driving a team attached to a furniture van, left the same standing in the highway while he accepted an invitation to visit a saloon for some beer. He stated that he tied the reins to the seat and attached a weight to the left-hand horse. While yet in the saloon, his attention was attracted by the clangor of' a street-car gong, and rushing out he found his horses upon the street-car track with a rapidly-approaching car 4'5 to 50 yards distant. Seeing that he had not time to extricate the horses he signaled the motorman but without avail and the horses were struck.

The declaration charges negligence in not stopping the car after discovering the danger, the car not being under proper control. It also charges that the plaintiff’s horses were frightened by the car, causing them to run across the track. The case was made to turn upon the question whether the motorman was negligent in failing to discover at the time the team started that it was without a driver, and in not promptly bringing his car under control so that he could stop it in time to avoid a collision. A verdict .for plaintiff followed and defendant has appealed, claiming that a verdict for defendant should have been directed. Some other errors are alleged.

The testimony of plaintiff’s witnesses shows that the team crossed the road upon a walk, and in a diagonal direction, dragging the weight. It also shows that the seat was not covered by the top or side canvas of the van, and the negligence apparently relied on is a failure to observe that there was no driver upon the seat, and that the team was hitched to the weight. On defendant’s part we are asked to say that the evidence conclusively shows that, owing to the angle at which the team proceeded, the motorman could not have known that there was no driver from observation, and that the strap attached to the left horse was obscured by the team which was between it and the motorman. Also that he was justified in supposing it had a driver, as it was walking. If a motorman knew that a team without a driver was approaching the track in front of his car it would be negligence not to act at once to avoid the possibility of a collision; while if the driver was present there might be no such duty.

The angle of approach was not made definite by the witnesses. Neither are we able to say that, at the most acute angle of approach conceivable under the proof, some portion of the driver could not have been visible had there been one upon the seat. Again, if the reins were fastened to the seat or dragging upon the ground and visible so far, that fact, if noticed, would tend to indicate absence of the driver, and the same may be said of the weight strap in view of the testimony of one witness who stated that it was attached to the right-hand horse, which, if true, would make it between the horses and the car. The question was therefore one for the jury. Counsel for the defendant make a strong presentation of their side of the case upon the merits, but we are constrained to say that it does not reach a degree of certainty that would have justified the learned circuit judge in taking the case from the jury.

After a period of deliberation the jury returned into court, when the following occurred: ■

The Court: Well, gentlemen, what is it ?
“A Juror: Your honor, we are unable to agree, and we would like further instructions as to the evidence which would make out a case on a technical point raised — whether the evidence was clear enough to decide whether this motorman was in the fault or not — we would like a little further instructions.
The Court: Well, I can only say to you, gentlemen, as I said before, that I think there is evidence in the case, there is testimony in the case, from which you might find that the defendant is guilty of negligence; but that depends upon whose evidence you believe. If-you believe from the evidence that the van so crossed the road that the motorman should have seen it and should have seen that it was without a driver, then and under those circumstances, if you find that when a reasonable man would have discovered that, he still had time to stop his car so as to avoid a collision, then and under those circumstances alone would the plaintiff be entitled to a verdict. Do I make myself clear ? But unless you find those things — unless you are satisfied by a preponderance of the evidence of that fact, — because it is upon the plaintiff to prove his case as in all these cases, by what we call a preponderance of the evidence, then your verdict should be of course for the defendant. Now, I cannot take your place. If all the testimony in this case was one way, it is possible I might say that two inferences should not be drawn from them, and instruct you as to the matter, but the evidence varying as to various points, why of course it becomes a question of fact for you, because the court is not allowed to usurp the province of the jury and determine a disputed point of fact. I give you the law, which you have got to take. If there is any question that you would like to ask about that does not involve a question of fact—
“A Juror: Then I would like to ask whether it is not a fact that the evidence must be clear that the motorman showed negligence ?
The Court: Undoubtedly.
A Juror: That must be established by a preponderance of the evidence ?
The Court: There is no doubt about that.
“A Juror: If there is any doubt in the mind of the jury—
The Court: I would not say if there is any doubt —that is going to the rule as laid down in criminal cases.
‘ The Juror: I was going to ask who was entitled to the doubt ?
The Court: The rule in civil cases to establish a thing, the plaintiff is bound — obliged to establish a thing by a preponderance of the testimony. That is to say, if the testimony were equally balanced in your own mind as to negligence or want of negligence, under those circumstances a verdict should be rendered for the defendant. It does not go to the extent that you have got to — in order to find a verdict you have got to exclude every reasonable doubt, but there must be-a preponderance of the evidence in your minds in favor of the plaintiff before you are authorized to give him a verdict. It does not go so far as it does in the criminal law, because a man may not be convicted if there is a reasonable doubt in the mind of the jury. Although you may think in a criminal case that the preponderance of the evidence shows guilt, still you may not convict him if there is a reasonable doubt in your own mind as to his guilt. But in this case, if you find there is a preponderance of the evidence showing negligence, under those circumstances you may find a verdict for the plaintiff for such damages as he suffered, hut unless you do find that there is a preponderance of the evidence, showing negligence, you must find a verdict for the defendant. That is all I can say to you, gentlemen, on that subject. Is there anything further ?
“A Juror: Nothing that I know of.
“The Court: In other words, you cannot speculate— in a certain sense speculate as to the negligence of the motorman; you must be satisfied from the position of the car and from the position of the van, and from the fact that there was an unobstructed view, that it was his duty not only to have seen the van, but to have seen that it was without a driver, for if he had reason to believe that there was a driver, the rule that I have read to you would prevail, that he would have a right to approach at full speed until he was satisfied from something that appeared to him there, that there was nobody in charge of the van.
“A Juror: Your honor, supposing the man driving the van did not know that there was — or the motorman did not know that there was a man on that van until he was so close that he could not stop his car ?'
The Court: That would depend upon what a man ought to have done under his circumstances. That is the point I leave to you in that respect, because of course the motorman has got to observe everything there is along the road, and he cannot keep his eyes on a thing the entire time, if there is anything else that should attract his attention. For instance, if there were a cow in the road he has got to see the cow as well as the van. Now, what he ought to have done under the circumstance of this case becomes a question for you, and that is what you are to determine. The mere fact that he did not see a man there may not be negligence, because the duties of the motorman there under those circumstances I think is a question for you and not for me, and I should be usurping your province if I attempted to give my own views as to what I believe in that case, because that is what a jury is for, and the court has no right — no more right to inflict his views on the jury as to a point of fact than you have to disregard the law that I lay down for you.
“A Juror: Well, I guess we may as well go.”

Counsel assign error upon the expression, “Well, I can only say to you, gentlemen, as I said before, that I think there is evidence in 'the case, there is testimony in the case, from which you might find that the defendant is guilty of negligence; but that depends upon whose evidence you believe,” read in connection with the following: The juror wished to know “whether the evidence was clear enough to decide whether this motorman was in fault or not.” We are cited to the case of Henderson v. Railway Co., 116 Mich. 368, in support of this claim. The charge in the present case is not open to the criticism that the jury should render a verdict for the plaintiff if they believed his witnesses, and for defendant if they did not. The terms “whose witnesses” and “whose evidence” are radically different. The subject of the jurors’ inquiry was discussed and explained at length, and no error is found in it.

The defendant called as a witness one Brandeau, whose furniture was in the van when it was struck. He testified in relation to the accident, and upon cross-examination was questioned in relation to a conversation with the plaintiff, which he denied, and in that connection was asked whether he did not then and there tell plaintiff that he had a good case against the railroad company. He answered no. On rebuttal plaintiff’s witness contradicted him in both particulars. We are of the opinion that there was a proper foundation laid for this testimony, except as to the latter statement which was immaterial to the case. The trial judge expressed this opinion but allowed the answer to stand (the answer being given before the objection could be made), giving counsel an exception. No specific ground of objection was stated, and under numerous cases that fact permits us to disregard it. Counsel made no request for instructions regarding it. People v. Moore, 86 Mich. 134; People v. Pope, 108 Mich. 361, 365; Detzur v. Brewing Co., 119 Mich. 282 (44 L. R. A. 500). We are the less reluctant to apply this rule because of the improbability that the result was affected by this statement.

The judgment is affirmed.

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


author: Ostrander, J.

text:
    SIMMONS v. DAY.
    Injunction — Trespass—Beal Estate — Quieting Title — Bill — Sufficiency.
    A bill alleging ownership and possession of certain lands, and praying an injunction to restrain the cutting of timber thereon, and a decree determining the ownership of the timber and compensation for the timber already cut, does not merely incidentally involve the title to the land, but, the answer claiming title in defendant, the title is directly involved, and, there being no prayer that title be quieted, the averment of possession in complainant is immaterial in support of equitable jurisdiction.
    Appeal from Van Burén; Des Voignes, J.
    Submitted October 25, 1907.
    (Docket No. 141.)
    Decided January 31, 1908.
    Bill by Leander Simmons against Byron G. Day to restrain the cutting of certain timber, to quiet title, and for an. accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      A. L. Free (F. J. Anderson, of counsel), for complainant.

      Lincoln H. Titus, for defendant.
    In his bill, complainant avers ownership and, since the date of his deed in 1863, continued occupancy of land described as the southeast fractional quarter of section three in Pine Grove township, Yan Burén county. He charges that defendant, in October, 1906, purchased adjoining land, and on January 22, 1907, began cutting and carrying away pine timber from the said land of complainant under a claim of right, threatens to continue such cutting and removal of timber, which is worth more .than one hundred dollars, and would, unless restrained, inflict a great and irreparable injury. The bill prays for an injunction, for a decree determining the ownership of the timber, and fixing the compensation to be paid for the in-

    jury suffered. The answer of the defendant admits the complainant’s ownership of the land described above, admits the cutting of some timber, but denies that complainant owns the land upon which the timber is growing, and asserts that defendant and his wife are the owners thereof under a deed conveying to him the southwest fractional quarter of the same section. It is further averred that defendant and his grantors have for more than twenty-five years been in the open, adverse, continuous, notorious, hostile, possession of said land. It appears that a portion of the southwest quarter of section three is occupied by a meandered lake which at its extreme eastern end invades the northwest quarter of the southeast quarter of the section, and that the particular piece of land is about three acres, triangular in form, in the northeast quarter of the southwest quarter, separated by the lake from the remainder of the southwest quarter. It is not a part of the description of land described in the complainant’s deed unless it was by meander and survey made a portion of the northwest quarter of southeast quarter. The accompanying diagram is a reproduction of the map of the government survey made in 1829.
    Timber of the value of $40 was cut. The decree, from which complainant appealed, dismissed the bill and contained also a finding and determination that defendant and his wife jointly own the land in question. While insisting that he is entitled to the relief prayed for in his bill, complainant asks, in any event, for a modification of the decree upon the ground, I quote from the brief, that—
    “Thebill of complaint did not ask to have the title quieted but did ask to have a decree that the timber on said land, whether standing or cut, belonged to the complainant. Nor did the defendant file a cross-bill asking to have his title to said premises quieted, hence there was nothing in the case to determine except as to the ownership of this timber, which perhaps incidentally brought into the case a dispute as to the title of the land, but we insist that it was not necessary to determine more than the title to the timber. * * * We were entitled to have the title to this land settled by an action in ejectment wherein we could have three separate and different trials if we desired, but the decree * * * has taken away from us that right, and denies unto us certain privileges granted by the laws of this State.”
   Ostrander, J.

(after stating the facts). In asserting equitable jurisdiction, complainant claims to have brought his case, by the averments in his bill, within the rule of Campbell v. Kent Circuit Judge, 111 Mich. 575; Brassington v. Waldron, 143 Mich. 364, and the cases cited in the opinions delivered in those cases. In both of those cases, the court was asked to find that a boundary-line between properties had been established and to restrain threatened trespasses, likely to result in irreparable injury, pending the determination of the principal issue. Unlike the instant case, however, the question of the true boundary line was submitted to the court for authoritative and final determination, and in Campbell v. Kent Circuit Judge it was asked that the title be quieted. The questions presented to this court in-those cases arose and were determined upon the pleadings. In the case now before us, counsel for complainant could have labored under no misapprehension concerning the" issue made by the bill and answer. Title to the land was not incidentally involved in the matter of title to the timber; title to the timber depended upon title to the land. If an action of trespass had been begun in justice’s court, and equivalent pleadings had been filed, the case must have been certified to the circuit court for trial for the reason that title to land was involved. Unless complainant owns the land there has been no trespass, no trespass is threatened, there is no injury, irreparable or other. The testimony produced is directed wholly to the question whether complainant, or defendant and his wife, owns the particular parcel of land. If complainant does not own the land, it is because defendant and his wife do own it. The contention of complainant’s counsel then amounts to this: If the court determines that complainant owns the land, defendant shall be enjoined from taking timber from it; if the court finds that complainant does not own the land and that defendant and his wife, jointly, do own it, the effect shall be merely a determination of title to the timber. This theory, it is clear, renders the allegation of the bill that complainant is in possession of the land entirely immaterial for the purpose of supporting equitable jurisdiction, especially so when it is considered that the wife of defendant is not brought upon the record. The case is within the rule of Dolan v. Smith, 147 Mich. 276, and the decree dismissing the bill should be affirmed without prejudice to the rights of either claimant of the title to begin an action at law. Defendant will recover costs.

Grant, O. J., and Blair, Montgomery, and Hooker, JJ., concurred.


author: Moore, J.

text:
    LEE v. ANDREWS.
    Witnesses — Impeachment — Character Witnesses — Competency.
    Witnesses called in rebuttal to sustain the reputation of a witness who has been impeached, who do not state that they know the reputation of the witness, cannot testify to their confidence in his veracity based on their personal knowledge of his character.
    Error to Van Burén; Des Voignes, J.
    Submitted November 11, 1907.
    (Docket No. 147.)
    Decided January 31, 1908.
    Case by Judson M. Lee against John Andrews for alienating the affections of plaintiff’s wife. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      A. J. Lewis, R. M. Chase, and T. J. Cavanaugh, for appellant.

      Core & Harvey and Anderson & Warner, for appellee.
   Moore, J.

The defendant claims that plaintiff was allowed to show in effect that the wife of defendant had made complaint' against defendant and the wife of plaintiff; that a warrant was issued and defendant and the wife of plaintiff were arrested. The deposition of the wife of plaintiff was also taken and read in evidence. It is said the effect of this testimony was to get the charge of adultery before the jury, which was not admissible under the pleadings, and to get the testimony of the wife before the jury when it was forbidden by the statute. We think, in view of the disposition we shall make of the case, that it will be unnecessary to decide whether what was done under this branch of the case was reversible error.

The defendant introduced testimony for the purpose of impeaching the plaintiff who was a witness on his own behalf. For the purpose of rebutting this testimony witnesses were called on the part of the plaintiff. The character of the testimony allowed is shown by the testimony of the witness Carmsen, as follows:

‘ ‘ I reside at Bangor; have been druggist there six years. I am acquainted with the plaintiff and some with his wife. * * * I did not know the reputation of the plaintiff in the community prior to bringing this suit. I had not heard it questioned, no, sir. Well, I might have heard it said, but then. I have transacted business with plaintiff quite extensively in the six years. * * * He has dealt with me, usually paid cash. I generally went to his place once a day, and our business relations were satisfactory. Got what I paid for so far as I know.

Q. From what you know of plaintiff, you would believe his statement under oath ?

A. I would, so.far as I know.”

On the cross-examination he testified:

“I have heard some talk about Mr. Lee’s reputation for truth and veracity that I cannot believe until I see it myself ; I never caught him in any lies and I base my testimony entirely upon personal transactions.”

The question was not asked the witness if he knew the reputation of Mr. Lee for truth and veracity in the neighborhood where he resided, and there is nothing in the record to show that he did know. Much other testimony of a like character was received over the objection of defendant. We know of no authority which justifies the course pursued, and, because of the reception of this testimony, the judgment is reversed and a new trial ordered. People v. Turney, 124 Mich. 542. The case of Merrill v. Leisenring, 149 Mich. 423, will serve as a guide on the new trial.

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


author: Blair, J.

text:
    HULL v. OSBORN.
    1. Perpetuities — Construction op Wills — Rules.
    In determining whether the provisions of a will violate the rule as to perpetuities, the chief inquiry is whether the interest passing to the devisees is vested or contingent; the statutes being confined to avoiding future estates that are made more remote in their vesting than two lives in being, and such arrangements as serve to postpone them.
    2. Wills — Construction—Presumptions Against Illegality.
    Where two constructions of a will are possible, one consistent with the law and the other inconsistent, the presumption that the testator intended to comply with the law will compel that construction which is consistent with the law to be adopted.
    3. Same — Estates Created — Vested or Contingent — Perpetuities.
    Where a testator, by clear and unequivocal language well designed to vest the title, disposes of the residue of his estate to his two grandchildren, providing that it shall be paid to them by the executors in certain payments every fifth year until they reach the age of 45, when the remainder shall be paid, and no estate or interest in the property is by the will conveyed to the executors, a subsequent clause providing that in case of the death of either of the grandchildren without issue before reaching the age of 45 that portion of her share which shall not have become due and payable shall belong to the survivor, does not offend the rule against perpetuities, it being the intention of the testator to vest the property in the grandchildren, subject to its being divested by their death prior to arriving at the age of 45 years.
    4. Perpetuities — Wills—Construction.
    A devise of the residue of an estate to testator’s grandchildren, to be paid to them in five-yearly payments until they reach the age of 45, when the remainder is to be paid, and providing further that in case of the death of both of them without issue before reaching the age of 45 that portion of the estate remaining unpaid to them shall go to certain other persons, at the utmost only postpones the vesting of the estate in the persons named for two lives in being and, therefore, does not conflict with the rule against perpetuities.

      Appeal from Kalamazoo; Adams, J.
    Submitted October 11, 1907.
    (Docket No. 37.)
    Decided November 5, 1907.
    Rehearing denied March 17, 1908.
    Bill by Blanche W. Hull and Frances E. Hull against James W. Osborn, Joseph -A. Pitkin, and Arthur L. Pratt, executors of the last will and testament of Joseph B. Wyckoff, deceased, for a construction of said will. From an order sustaining a demurrer to the bill, complainants appeal.
    Affirmed.

      N. H. Stewart and E. M. Irish, for complainants.

      Alfred J. Mills, for defendants.
   Blair, J.

Complainants, grandchildren of Joseph B. Wyckoff, deceased, filed the bill in this cause for the purpose of obtaining a construction of the will of their grandfather, praying that the trust created by the will be declared at an end, and that certain legacies be declared void for the reason that they were in violation of the rule against perpetuities and accumulations.

The bill of complaint alleges that Blanche W. Hull was born December 13, 1878, and Frances E. Hull, October 17, 1882; that Joseph B. Wyckoff died testate July 7, 1899; that his widow died November 28, 1905; that the said Joseph B. Wyckoff left a large estate consisting of real and personal property, amounting in the aggregate to about the sum of $350,000, as appears by the inventory of the estate on file in the probate court.

Defendants demurred to the bill of complaint. The demurrer was sustained in the circuit court and the bill dismissed. Complainants appeal to this court.

The provisions of the will necessary to be considered in determining the questions raised are the following:

“Second. I give, devise and bequeath to my beloved wife, Frances Charlotte Wyckoff, all the household and kitchen furniture I may die possessed of, including all pictures, the piano and silverware; also I give, devise aud bequeath to her all the clothing, ornaments and jewelry I may die seised of; also I give, devise and bequeath to her all horses, live stock, harnesses, carriages and sleighs I may die possessed of, together with all horse blankets and all other things used in or about my barn or stable, including feed and provender for live stock on hand. And it is my wish and desire, and I direct that the executors and trustees of this my last will and testament pay unto my beloved wife all the time during her natural lifetime, the sum of two hundred and fifty dollars ($250) on the first day of each month after my death, and upon the request or demand of my said wife, that my said executors pay unto her an additional amount of one hundred and fifty dollars ($150) per month for each month after such request or demand shall have been made and during her natural lifetime. And I further direct that my executors pay annually, or at such times as may be necessary, unto my said wife during her lifetime, a further sum sufficient to pay all taxes, insurance and repairs upon her home.

“ The provisions herein made for my said wife are intended to be and are given in lieu of any and all dower interest my said wife might or may have or claim to have in my estate, and in lieu of all other claims or interest she may or might have or claim to have in my said estate. * * *

“Fourteenth. And it is my will, wish and desire, and I direct that the executors and trustees of this my last will and testament each year after my death and during the natural life of Carrie C. Rowley of Canandaigua, New York, pay unto Fred N. Rowley, of Kalamazoo, Michiigan, the sum of one hundred and fifty dollars ($150) for the benefit of said Carrie C. Rowley to be by said Fred N. Rowley paid and used for the comfort, convenience, necessities and welfare of said Carrie C. Rowley.

“Fifteenth. And I do further give, devise and bequeath unto Fred N. Rowley, the sum of ten thousand dollars ($10,000) to be paid on or before five years from my death, and the whole or any part thereof to be paid at such times as the condition of the estate shall admit of.

“Sixteenth. And I do give, devise and bequeath all the rest, residue and remainder of my property to my beloved grandchildren, Blanche WyckofE Hull and Frances Evelyn Hull, in equal portions, share and share alike to each, on the terms and conditions herein con-tamed and payable at the times and in the manner hereinafter . set forth. That is to say, there shall be paid to said Blanche Wyckoff Hull when she shall arrive at the age of twenty-one years, the sum of ten thousand dollars, and when she shall arrive at the age of twenty-five years, the sum of ten thousand dollars, and when she shall arrive at the age of thirty years, the sum of ten thousand dollars, when she shall arrive at the age of thirty-five years, the sum of ten thousand dollars, when she shall arrive at the age of forty years, the sum of ten thousand dollars and the remainder of the one-half of said residue hereby devised and bequeathed to said Blanche Wyckoff Hull shall be paid to her when she shall arrive at the age of forty-five years. And there shall be paid to said Frances Evelyn Hull when she shall arrive at the age of twenty-one years, ten thousand dollars, and when she shall arrive at the' age of twenty-five years, the sum of ten thousand dollars, and when she shall arrive at the age of thirty years, the sum of ten thousand dollars, and when she shall arrive at the age of thirty-five years, the sum of ten thousand dollars, and when she shall arrive at the age of forty years, the sum of ten thousand dollars, and the remainder of the one-half of said residue hereby devised and bequeathed to said Frances Evelyn Hull shall be paid to her when she shall arrive at the age of forty-five years.

Seventeenth. It is further my will, wish and desire, and I hereby direct that all assets of my estate not necessary to the payment of the debts I may owe and funeral expenses and the legacies herein provided for, shall by my executors and trustees, be kept safely invested in good securities or productive inside real estate in some solid, flourishing town or city, and while I desire to leave the matter of investmeñts to my executors, I would suggest that as nearly as can be conveniently done, that one-half be kept invested in realty and the other half in securities, and this provision shall apply to all rents, profits and accumulations that may accrue.

“Eighteenth. It is f urther my will, wish and desire, that if either of my said grandchildren shall die without living issue before arriving at the age of forty-five years, such portions of her half of said residue as hereinbefore provided as shall not have become payable at her death shall belong and be paid to the surviving grandchild at the time and in the manner it would have been paid to such deceased grandchild had she lived.

“Nineteenth. It is further my will, wish and desire that in the event of the death of both my said grandchildren without living issue, that all payments herein provided to be made them and which shall not have become due, shall be paid, share and share alike, to the following persons, to wit: To my brothers and sister, nephews and nieces, then living, and to the brothers and sisters, nephews and nieces of my wife, then living, except that it is expressly directed that no portion shall in any event be paid to Dr. Willis Rowley, nephew of my said wife, unless at such time, said Dr. Willis Rowley shall, in the opinion of the executors of this will, have become a reformed and useful man. And it is further herein expressly provided, anything herein contained to the contrary notwithstanding, that the portion herein intended for my sister, Esther G. Pratt, shall go to her daughter, Emily A. Metzer, in the event of the death of my said last named sister before anything hereunder would otherwise have become due to her.

“Twentieth. I hereby authorize and empower my executors and their successors to sell, either at public or private sale, as they shall deem best, and convey at their discretion, whenever a majority thereof shall deem it to the best interests of the estate, any realty that I may die possessed or seised of, or any realty they may purchase in the discharge of their duties, and to reinvest the proceeds as they, or a majority thereof, shall deem best. And I do further authorize and empower my executors and their successors to sell and transfer, at their discretion, whenever a majority thereof shall deem it to the best interests of the estate, any bank stock or stock in any corporation or any municipal bonds and any other securities I may die seised of and to invest the proceeds thereof as provided herein.

“Twenty-first. I empower the majority of my executors and their successors to pay and satisfy, or compromise, or compound, any debts owing or claimed to be owing by or from me or my estate, and any liability to which I or my estate may be alleged to be subject and to accept any composition or .security, real or personal, for any debts owing to me or my estate, and to allow such, time for the payment thereof as to them shall seem reasonable and generally to act in relation to the premises in such manner as they shall think expedient concerning all things which shall be owing or claimed to be owing from or to me or my estate or be depending or arise between me or my said executors and their successors, and any other person or persons, and generally to act in relation to the premises in such manner as they, or a majority of them, shall think expedient.”

In determining whether the provisions of the will in question violate the rule as to perpetuities,—

‘ ‘ The chief inquiry must be whether the interest passing to them is vested or contingent. * * * The statutes restricting perpetuities are confined to avoiding future estates that are made more remote in their vesting than two lives in being, and such arrangements as serve to postpone them. In all cases where the application of the rules against perpetuities is invoked, the character of the interest as vested or otherwise is the turning consideration.” Toms v. Williams, 41 Mich. 552.

The vesting of estates is favored by the courts, and where two constructions of a will are possible, one consistent with the law and the other inconsistent, the presumption that the testator intended to comply with the law will compel that construction which is consistent with the law to be adopted. Foster v. Stevens, 146 Mich. 131.

Having these rules in mind, we come to the consideration of the 16th paragraph of the will. The language of the paragraph is clear and unequivocal and well designed to vest the title of the residuary estate in the two grandchildren, unless there is something in the conditions stated in the 18th paragraph intended to postpone the vesting of their interests until they arrive at the age of 45. It is to be observed that no estate or interest in the property is by the will conveyed to the executors, but, as was said in Rock River Paper Mill Co. v. Fisk, 47 Mich. 212:

“The persons named are designated executors only, and no words of grant or devise are employed to indicate a purpose that any estate should pass to or be vested in them.”

As in that case, so in this; no trust was created in the executors, nor was it necessary to enable them to carry out the terms of the will. This strengthens the interpretation of the will contended for by defendants’ counsel; that it was the intention of the testator to vest the property in the grandchildren, subject to its being devested by their death prior to arriving at the age of 45 years. This construction is also strengthened by the fact that the testator does not confine the grandchildren, in terms, to receiving the income of the property, but apparently gives them, if necessary, a portion of the principal, postponing payment of “ the remainder of the one-half of said residue hereby devised and bequeathed to said ” grandchildren, respectively, until they should arrive at the stated age. We think it must be held, from a consideration of the terms of the will and from authority, that the directions of the will provided for a vesting of the residue in the grandchildren at the death of the testator but postponed the payment of the principal or a portion thereof until they arrived at the age of 45 years, and under such construction the will does not violate the rule as to perpetuities or accumulations. Oxley v. Lane, 35 N. Y. 340; Stone v. Forbes, 189 Mass. 163; Seaver v. Fitzgerald, 141 Mass. 401; Lunt v. Lunt, 108 Ill. 307; Dulany v. Middleton, 72 Md. 67; Simonds v. Simonds, 112 Mass. 157; Bell v. Scammon, 15 N. H. 381; Toms v. Williams, 41 Mich. 562; McCarty v. Fish, 87 Mich. 48; Cropley v. Cooper, 19 Wall. (U. S.) 167.

The 19th clause of the will, at the utmost, only postpones the vesting of the estate in the persons named therein for two lives in being and, therefore, does not conflict with the rule in question.

The decree of the circuit court is affirmed, with costs of both courts to defendants, payable out of the estate.

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


author: Grant, C. J.

text:
    CASCARELLA v. NATIONAL GROCER CO.
    1. Torts — Actions—Parties—Joint Tort Feasors — Joinder. Joint tort feasors maybe sued individually or jointly.
    2. Same — Principal and Agent.
    Where a wrong is committed by an agent for the principal under circumstances which make the principal liable, there are two actors, the principal and the agent, and the injured party may sue either or both.
    3. Corporations — Agents—Torts—Ratification.
    The general agent of a trading corporation, having authority to act in the interests of the corporation and to institute a criminal prosecution to protect those interests, has authority to ratify a prosecution begun by an agent who had not such authority.
    4. Malicious Prosecution — Defenses—Compromise and Settlement.
    No action can be maintained for maliciously prosecuting a suit which was terminated by compromise and settlement.
    5. Same — Termination of Suit — Sufficiency.
    Where, upon learning the facts antedating plaintiff’s arrest for larceny, the magistrate discharged him upon the merits, the fact that plaintiff paid the costs because told that unless he did so he would have to go back to j ail did not operate as a compromise and settlement of the prosecution so as to bar his action for malicious prosecution
    6. Same — Advice of Counsel.
    When an examining magistrate or counsel advises one that upon the facts stated it is doubtful if the party has committed any crime, the party applying for a warrant proceeds at his own risk.
    7. Saving Questions for Review — Exoessiveness of Verdict-Necessity of Motion for New Trial.
    Where there is a legal basis for the damages assessed a motion for a new trial is necessary to raise the question of excessiveness of the damages.
    Error to Ingham; Wiest, J.
    Submitted November 18, 1907.
    (Docket No. 178.)
    Decided January 31, 1908.

      Case by Charles Cascarella against the National Grocer Company and Charles R. Nesen for malicious prosecution. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      T. Rogers Lyons (E. 8. Avery, of counsel), for appellants.

      E. L. Dodge (Gyrenius P. Black, of counsel), for appellee.
    This is an action for malicious prosecution. The trial resulted in a verdict for plaintiff for 1500. Plaintiff kept a small retail confectionery store in Lansing. Defendant is a foreign corporation doing business in Michigan, with a branch at Lansing, and its home office in Chicago, whose general manager is one Gamble, and one Nesen is its local cashier. Plaintiff had bought several small bills of goods on 30 days’ time and had paid for them. On October 3,1906, he purchased of defendant a bill of goods amounting to $38.15 on 30 days’ time. This bill was considerably larger than were his former bills. October 16, 1906, plaintiff sold his business and stock to one Peter DeRose for $375. On the same day, about 5 o’clock, defendant’s salesman, Mr. Mott, called at the store and was there informed that Mr. DeRose had bought out plaintiff and was in possession, and testified that Mr. DeRose said, plaintiff “has gone to Italy.” Mr. Mott reported this to Nesen, Mr. Gamble being absent, and Mr. Nesen made inquiries of certain Italians as to the whereabouts of plaintiff, and testified that the usual answer he received was, “He gone; he no come back. If you want him get him quick.” He also received information that plaintiff had gone to Albion, Mich., where he had a brother. Between 11 and 12 o’clock defendant Nesen called at police headquarters in Lansing, and asked the policeman then in charge to call up the marshal in Albion, and keep posted on the whereabouts of plaintiff. Mr. Nesen called up Mr. Roe, the police justice, by telephone, desiring to get a warrant that night, but Mr. Roe made an appointment to meet him at his office in the morjaing. In the morning, before goipg to the justice’s office, Nesen called upon a brother of plaintiff who was in the city and whom he had interviewed the night before, and elicited from him the information, “He (meaning plaintiff) gone.” • Mr. Nesen stated to the justice substantially the facts as above stated. The justice informed Mr. Nesen that it was doubtful if plaintiff had committed a crime, but said, “I will give you the benefit of the doubt.” The justice thereupon drew a complaint, charging plaintiff with larceny. The justice issued a warrant and it was placed in the hands of a constable named .Moore for service. Moore proceeded to Albion, arriving there about 6 o’clock in the evening of October 17th. He promptly arrested plaintiff, who informed him that he had sent the defendant company a check that day just after noon for the amount of the bill, showed him the stub of the check, and requested him to ascertain from the bank that he had done so, and that he had money deposited in the bank to meet the check. The constable refused to do this, brought him under arrest to Lansing, where he arrived about 10 o’clock p. m., and incarcerated plaintiff in the common jail. The nest morning plaintiff was brought before the justice by the constable. He protested his innocence. Meanwhile the check had been received by the defendants, and the justice, on being informed of that fact, stated that in his opinion the charge could not be maintained, and advised the discharge of the prisoner. The justice insisted that his fees be paid. The plaintiff finally paid them upon the statement made by the justice that if he did not he would (as he testified) have to go back to jail. He testified also that “ Mr. Nesen said, I had to pay the costs or go back to jail.”
   Grant, C. J.

(after stating the facts). Defendants’ counsel make four contentions:

(1) That the defendants cannot be held jointly liable.

(2) That under the law and, the facts the defendant corporation is not liable. .

(3) That defendant Nesen is not liable.

(4) That in any event the damages are excessive.

Joint tort-feasors may be sued individually or jointly. 26 Cyc. p. 68.

“All concerned in originating and carrying on a malicious prosecution are jointly and severally responsible.” 1 Cooley on Torts (3d Ed.), p. 342.

See, also, Govaski v. Downey, 100 Mich. 429.

Where the wrong is committed by an agent for the principal under circumstances which make the principal liable, there are two actors, the principal and the agent. The injured party may sue either or both. If he sues the agent it does not lie in the mouth of the agent to say in defense that he was acting not for himself but for another. If the principal is sued individually the question is, Was the agent, in committing the wrongful act, acting within his authority as agent ? If the principal is liable the agent also is liable. The rule governing principal and agent in contracts has no application to cases of tort. This case is not within the principle of Travis v. Insurance Co., 86 Mich. 288, and Govaski v. Downey, 100 Mich. 429. The corporations in those cases were held not liable for the tortious act of their employés, because there was no evidence to show that they either authorized or ratified the tortious act.

In Travis v. Insurance Co., the company was a foreign corporation, and a loss had been settled and paid. Afterwards the State agent made a criminal complaint against the insured, charging fraud. The agent had no further authority in the case. His general agency was properly held not sufficient to show,either original authority or ratification.

In Govaski v. Downey, Downey was a mere watchman of the railroad company, and naturally had no authority to bind the company by criminal prosecutions.

Was Nesen acting within the scope of his authority, or if not, was his act ratified by the defendant ? The defendant company is a foreign corporation; its chief manager in Lansing was Mr. Gamble. The evidence shows that in his absence Mr. Nesen, who was called cashier, was authorized to act in any emergency that might arise and to do whatever acts were necessary for the interests of the corporation. However, the question of original authority of Nesen to institute this suit was not submitted to the jury. The court submitted to them the question of ratification by Gamble. This prosecution was instituted in the interests of the corporation. Mr. Nesen had no personal interest in it. Mr. Gamble, when informed of what had been done, not only made no objection, but told Nesen he hoped it would teach some of those fellows a lesson. Mr. Gamble, representing the defendant, had personally sought advice of defendant’s counsel as to the right of the company to institute criminal proceedings under similar circumstances. The jury might well infer that the criminal arm of the law was to be used by the company when debtors conducted themselves as did the plaintiff in this case. "We think there was sufficient evidence of ratification. Mr. Gamble as an agent of the company had the authority to institute the suit. He therefore had the right to ratify the act of another agent in instituting it, though that agent might have had no original authority. Ironwood Store Co. v. Harrison, 75 Mich. 197; Mechem on Agency, § 121.

Under the third contention, defendants insist that the proceedings were terminated by compromise and settlement, and therefore plaintiff cannot maintain his suit. A compromise and settlement would defeat the plaintiff’s action. 19 Am. & Eng. Enc. Law (2d Ed.), pp. 684, 685.

The court instructed the jury that there was a final termination of the suit sufficient to sustain the action. The justice,-upon learning the facts when plaintiff was brought before him by the constable, discharged him upon the merits, holding that there was no case against him. The payment of the costs under the circumstances did not operate as a compromise and settlement. The instruction was correct.

It is also contended that the court should have instructed the jury that Mr. Nesen fully and fairly stated all the facts in the case to the justice, and that the justice there upon authorized the issuing of the warrant. There is ample evidence that Mr. Nesen did not rely upon the advice of the justice, even if his-advice upon a full statement of the facts would have been a defense. The justice did not advise Mr. Nesen that the plaintiff was guilty of a crime,— on the contrary, he told him it was doubtful. A prisoner is entitled to the benefit of any reasonable doubt. When the examining magistrate or counsel advises one that it is doubtful if upon the facts stated a party is guilty of any crime, the party proceeds at his own risk. The court properly refused to instruct the jury that the advice of the magistrate in this case would be a defense. He did instruct them that they might consider it as bearing upon the question of the good faith or want of malice on the part of Mr. Nesen. It could not be considered by the jury for any other purpose.

No motion was made for a new trial, and therefore the question of excessive damage is not before us. Only when there is no legal basis for the damages can error be assigned, except upon a motion for a new trial. McDonald v. Steel Co., 140 Mich. 401.

Judgment affirmed.

Blair, Moore, Carpenter, and McAlvay, JJ., concurred.


text:
    STACK v. DETOUR LUMBER & CEDAR CO.
    1. Corporations —Powers—Borrowing Money — Rate op Interest-Usury — Prohibition to Plead — Effect — Illinois Statute.
    Section 11 of the Illinois statute concerning interest (111. Rev. Stat. 1903, chap. 74), providing that “No corporation shall hereafter interpose the defense of usury in any action,” was not intended to enlarge the power of corporations formed under the Illinois statute approved April 18, 1872 (111. Rev. Stat. 1903, chap. 32), to “borrow money at legal rates of interest ” nor in any wise to affect the capacity of the corporation to contract under its charter and the general laws of the State relating to corporations.
    2. Courts — Rule of Decision — Foreign Statutes — Construction-Sister States.
    In determining the powers under its charter of an Illinois corporation admitted to do business in this State, the court directs its attention to the construction placed upon the charter by the courts of Illinois, and is not concerned with the interpretation of a similar charter by the courts of another State.
    3. Corporations — Usury—Right to Plead — Illinois Statute— Extra-Territorial Effect. .
    Seotion 11 of the Illinois statute concerning interest (111. Rev. Stat. 1903, chap. 74), providing that “No corporation shall hereafter interpose the defense of usury,” has no extra-territorial effect, and cannot operate to deprive an Illinois corporation, admitted to do business in this State, of its right to plead such defense in our courts when sued on a Michigan contract.

      4. Same — Foreign Corporations — Rights.
    The effect of sections 8587 and 10466, 3 Comp. Laws, is to put foreign corporations, complying with the provisions of our statutes and thereby acquiring authority to transact business in this State, upon the same footing as domestic corporations, with the same right to prosecute and defend actions in the courts of this State and to enforce their contracts and use the remedies authorized by law as are possessed by such domestic corporations.

      5. Contracts — Construction—What Law Governs.
    A mortgage executed by a foreign corporation admitted to do business in this State to the owners of a bank in this State covering lands located in this State and intended to be per. formed in this State is a Michigan contract, subject to interpretation by and enforcement under our laws.
    6. Usury — Contracts—Construction—Usurious Contracts.
    A contract to pay the highest rate of interest allowed by law and in addition thereto the taxes upon the indebtedness represented by the contract is usurious.
    Case made from Chippewa; Steere, J.
    Submitted November 13, 1907.
    (Docket No. 179.)
    Decided January 31, 1908.
    Bill by John K. Stack against the Detour Lumber & Cedar Company to foreclose a mortgage. From a decree for complainant, defendant appeals'.
    Reversed, and decree entered for defendant.

      Carey & Hayden, for complainant.

      McDonald & Doore (E. S. B. Sutton, of counsel), for defendant.
   Blair, J.

This is a suit to foreclose a mortgage upon real estate in the county of Chippewa. The mortgage was executed by the defendant to John K. Stack and John Corcoran on the 30th day of November, 1901, for $26,976.70, to secure payment of five notes for that sum, Stack and Corcoran then being the owners of the Bank of Escanaba, and the defendant being a corporation organized under the laws of the State of Illinois for the purpose of manufacturing and buying and selling lumber and forest products, and had duly filed its articles of incorporation in the office of the secretary of State for Michigan and the county clerk of Chippewa county prior to the date of the mortgage, and complied with the other requirements of section 8587, 3 Comp. Laws, and Act No. 206 of the Public Acts of 1901, and had its principal office in Michigan at Detour, in Chippewa county, where it was carrying on a general lumber business and had a sawmill.

John Corcoran, one of the mortgagees, died July 3, 1904, and complainant Stack purchased the interest of John Corcoran in the mortgage and mortgage debt, prior to filing this bill, from the administratrix of his estate, and is now the sole owner of the mortgage and notes.

The mortgage reserves, by one of its covenants, 7 per cent, per annum, and, in addition, the mortgagor, by a covenant in the mortgage, covenanted to pay any and all taxes and assessments levied on account of the mortgage, or the indebtedness secured thereby, or upon the interest or estate in the lands created by the mortgage, or by the indebtedness. Further, it agreed to pay all taxes already assessed or levied upon another mortgage for $30,000 made by it to Stack & Corcoran upon same lands, which last-mentioned mortgage reserved 7 per cent, interest per annum, and was dated September 8, 1899.

The defendant has paid upon the mortgage being foreclosed, from time to time, $14,181.96, some being devoted by complainant to payment of interest, some to pay taxes on the mortgage itself assessed against the mortgagees, and some upon the principal debt; and the complainant claimed that the sum due, by reason of the covenants in the mortgage, on the hearing, was $23,490.99; and the defendant claimed'that only the sum of $12,794.74 was due; that the mortgage, by reason of its covenant to pay the taxes on the mortgage and taxes on the mortgage of September 8, 1899, is usurious, and all payments made should be applied in reduction of the principal sum of the mortgage, agreeably to the defense of usury, which is fully set up in the answer of defendant.

The complainant claims that the defendant, being an Illinois corporation, is precluded from interposing the defense of usury, because the statutes of Illinois prevent all Illinois corporations from interposing the defense of usury.

The court applied the said $14,181.96 in payment of the taxes paid by complainant on the mortgage debt, and on accrued 7 per cent, interest reserveá in the mortgage, and the balance pn the principal debt, and rendered its decree for $28,490.99, denying the defense of usury; and defendant appeals, claiming, among other things, the mortgage to be in contravention of sections 4857 and 4858, 2 Comp. Laws, pertaining to usury.

The question presented for review is: Is an Illinois corporation admitted to do business in Michigan deprived of the “right” to plead usury on foreclosure of a mortgage executed in Michigan, payable here and covering lands here, because the interest statute of Illinois contains a provision that “No corporation shall hereafter interpose the defense of usury in any action ? ”

Complainant contends that the disability imposed upon defendant by this provision of the statute regulating rates of interest in Illinois constitutes a restriction upon its general capacity and powers which follows it and attaches to its charter in this State, citing: 19 Cyc. pp. 1214, 1215; American Water Works Co. v. Trust Co., 20 Col. 203 (25 L. R. A. 338); Fidelity Mut. Life Ass’n v. Ficklin, 74 Md. 172; Thompson v. Waters, 25 Mich. 214; Diamond, Match Co. v. Powers, 51 Mich. 145; Supreme Lodge K. of H. v. Nairn, 60 Mich. 44; Starkweather v. Bible Society, 72 Ill. 50; Edgeworth v. Wood, 58 N. J. Law, 463; Rue v. Railway Co., 74 Tex. 474; Dubuque Fire & Marine Ins. Co. v. Oster, 74 Ill. App. 139; North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co., 16 Utah, 246 (40 L. R. A. 851); Ford v. Milk Shippers’ Ass’n, 155 Ill. 166 (27 L. R. A. 298).

The defendant corporation was organized under the provisions of “An act concerning corporations,” approved April 18, 1872, providing: '

“That corporations may be formed in the manner provided by this act for any lawful purpose except banking, insurance, real estate brokerage, the operation of railroads and the business of loaning money.” Revised Statutes Illinois (1903), chap. 32, p. 471, § 1.

Section 5 provides, among other things, that corporations formed under the act “may borrow money at legal rates of interest and pledge their property, both real and personal, to secure the payment thereof.” Chapter 74, page 1128, relates to interest. Section 1 provides that the legal rate of interest shall be 5 per cent. Section 4 provides that 7 per cent, may be contracted for. Section 5 provides that “no person or corporation” shall, “directly or indirectly, accept or receive ” any greater sum “than as above prescribed.” Section 6 provides as a penalty for contracting for more than 7 per cent, that “such person or corporation shall forfeit the whole of said interest so contracted to be received and shall be entitled only to recover the principal sum due to such person or corporation,” etc. Section 7 provides that the defense of usury must be pleaded. Section 11 provides: “ No corporation shall hereafter interpose the defense of usury in any action.”

We think it has .been settled by the supreme court of Illinois that section 11 was not intended to enlarge the power of the corporation to “borrow money at legal rates of interest ” nor in" any wise to affect the capacity of the corporation to contract under its charter and the general laws of the State relating to corporations. A corporation is not authorized to borrow money at a higher rate than the statute prescribes. On the contrary, the power granted to it by its charter is to “borrow money at legal rates of interest.” A contract by a corporation to pay interest in excess of 7 per cent, is as much within the ban of the statute as a similar contract on the part of an individual.

“The theory seems to be, that because a corporation cannot set up usury as a defense, any person or corporation dealing with a corporation may lawfully exact such rate of interest as may be agreed upon, whether in excess of the statutory limit or not, so that, where a corporation is the debtor, no rate of interest is fixed by the laws of this State. To this view we are totally unable to yield our assent.

“ The defense of usury is made by setting up and seeking to enforce the forfeiture or penalty imposed by section 6 of the statute. That, doubtless, a corporation cannot do. But the force and efficacy of the statute, or the binding nature of its prohibitions, does not depend upon the penalty which it imposes for disobedience to those provisions. Whatever a statute forbids becomes unlawful, whether a penalty is annexed' as a consequence of disobedience or not. While corporations cannot enforce the forfeitures imposed by our usury laws, it does not follow that the statutory prohibition against exacting or paying more than the lawful rates of interest has no application to them. The prohibition is general, and applies by its terms to every person or corporation, and no contract, whoever may be the parties to it, can be so framed as to provide for the reservation of more than the rates of interest allowed by the statute without being in contravention of the statute and therefore unlawful.

“Nor does it follow that, because the debtor who has agreed to pay more than the legal rate of interest is a corporation, and therefore incapable of interposing the defense of usury, the law will treat the contract as valid and enforce it according to its terms. No agreement between parties to do a thing prohibited by law or subversive of any public interest which the law cherishes, will be judicially enforced. * * *

“Our statute in relation to interest contains both a prohibition and a penalty. Where the party agreeing to pay illegal interest is a corporation, the penalty cannot be invoked in its favor, but the prohibition remains wholly unaffected by the provisions of section 11, which takes from corporations the right to interpose the defense of usury.” Union Nat. Bank of Chicago v. Railway Co., 145 Ill. 208.

A different view has been taken of such a statute in New York, where it has been held that its effect is to repeal the usury laws of the State as to corporations and to. render valid any contracts they may choose .to make as to interest. Rosa v. Butterfield, 33 N. Y. 665; The Vigi lancia, 68 Fed. 781. In this case, however, we are only concerned with the interpretation of the supreme court of Illinois.

The enforcement or nonenforcement of penalties or forfeitures for the violations of the statutes of a State are peculiarly matters of local concern, which have no force outside of the boundaries of the State. This section 11 seems to be designed for the enforcement of a local policy only, and not intended to operate outside of the State under the decisions of the supreme court of Illinois. Warren v. First Nat. Bank of Columbus, 149 Ill. 9 (25 L. R. A. 746).

“It is the charter alone which, by the law of comity, is recognized and enforced in other jurisdictions, and not the general legislation of the State in which the company is formed. The general laws and regulations of a State are intended to govern only within the limits of the State enacting them, and the State can have no power to give them extraterritorial force. Such provisions do not, as a rule, enter into contracts made within the State, if they are to be performed in another jurisdiction. It follows, therefore, that where a State statute is enacted for the enforcement of a local policy only, it will not be presumed that such statutory provision was intended by the State, or by the shareholders forming the corporation, to enter into the charter contract, and to regulate the company in its transactions outside of the State, and it will not affect the validity of the dealings of the company in foreign States. 2 Morawetz on Corporations, § 967.”

See, also, Mutual Life-Ins. Co. v. Cohen, 179 U. S. 265.

Usury laws have been uniformly held to be local and having no extraterritorial effect. It necessarily follows that statutes designed to enforce compliance with such laws must be restricted to á local operation. 29 Am. & Eng. Enc. Law (2d Ed.), p. 527; Western Transportation & Coal Co. v. Kilderhouse, 87 N. Y. 480.

Again, the denial to corporations of the right to invoke the usury laws in their defense, as construed by the supreme court of Illinois, presents a question of pleading not different in principle from the question presented by a denial of the right to invoke statutes of limitation in their defense, and it is the settled law that—

“ Matters respecting the remedy, such as the beginning of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.” Scudder v. Union Nat. Bank, 91 U. S. 406.

See, also, Townsend v. Jemison, 9 How. (U. S.) 407; Home Life-Ins. Co. v. Elwell, 111 Mich. 689; Bank of the United States v. Donnally, 8 Pet. (U. S.) 361.

If section 11 should be given the extraterritorial effect claimed for it, it would conflict with our local interest laws. Our statute, like the Illinois statute, makes a contract for more than 7 per cent, interest unlawful and undertakes to promote compliance with its provisions by penalizing noncompliance on the part of the lender by a forfeiture of the entire interest contracted for; and the right to interpose the defense belongs to corporations as well as to individuals. If one of our citizens can escape the penalties of our laws, intended to operate upon all, by virtue of this Illinois statute, then, as to a part of our citizens, our own laws may be annulled by a foreign statute. And if all of our sister States should adopt similar provisions, our usury laws would, to a considerable extent, become ineffective.

Section 8587, 3 Comp. Laws, provides that foreign corporations authorized to do business in this State “shall enjoy all the rights and privileges and shall be subject to all the restrictions, requirements, and liabilities of corporations of like character incorporated under Michigan statutes.”

Section 10466, 3 Comp. Laws, provides that foreign corporations “may prosecute in the courts of this State in the same manner as corporations created under the laws of this State,” etc.

“The power of determining whether, and how far, or with what modification, or upon what conditions, the laws of one State, or any rights dependent upon them, shall be recognized in another, is a legislative one; the comity involved is the comity of the States and not of the courts; and the judiciary must be guided in deciding the question by the principle and policy adopted by the legislature.” Thompson v. Waters, 25 Mich. 214.

The principle and policy of the legislature is embodied in section 8587, 3 Comp. Laws, being Act No. 270 of the Public Acts of 1895.

The effect of this statute is to put foreign corporations, complying with its provisions and thereby acquiring authority to transact business in this State, upon the same footing as domestic corporations, with the same right to prosecute and defend actions in the courts of this State and to enforce their contracts and use the remedies authorized by law as are possessed by such domestic corporations. Isle Royale Land Corp. v. Osmun, 76 Mich. 162; Floyd v. Investment Co., 49 W. Va. 327 (54 L. R. A. 536).

“ The manifest and only purpose was to produce uniformity in the powers, liabilities, duties and restrictions of foreign and domestic corporations of like character, and bring them all under the influence of the same law.” Stevens v. Pratt, 101 Ill. 206.

The contract in question in this suit was made and to be performed and its performance secured upon lands in this State. It was a Michigan and not an Illinois contract, subject to interpretation by and enforcement under our laws. National Mut. Bldg. & Loan Ass’n v. Burch, 124 Mich. 57; Hoskins v. Loan Ass’n, 133 Mich. 505; Palmer v. Hill, 140 Mich. 468; Cobe v. Summers, 143 Mich. 117.

The contract was usurious and unlawful. Green v. Grant, 134 Mich. 462.

In consequence of the usurious character of the contract, complainant forfeited the entire amount of interest and his recovery must “be limited to the principal sum, less payments actually made, however designated at the time of payment.” Estey v. Loan Ass’n, 131 Mich. 502.

The decree of the circuit court is reversed, with costs, and a decree directed in accordance with this opinion.

Grant, C. J., and Moore, Carpenter, and McAl- . vay, JJ., concurred.