author: Moore, J.,

text:
    BOLTON v. CHOPE.
    Equity Practice — Findings—Evidence.
    A finding of fact in a chancery case may properly be based on any evidence which has a legitimate tendency to establish it, although not offered for that specific purpose.
    Appeal from Wayne; Daboll, J., presiding.
    Submitted November 22, 1898.
    Decided December 13, 1898.
    Bill by Frederick pi. Bolton against Robert L. Chope for specific performance of contract and for an accounting. From a decree dismissing complainant’s bill, and granting affirmative relief to defendant upon his answer in the nature of a cross-bill, complainant appeals.
    Affirmed.

      George W. Radford, for complainant.

      Alfred Lucking, for defendant.
   Moore, J.,

Complainant filed a bill in this case asking for an accounting and for specific performance. Defendant answered complainant’s bill, denying the allegations therein contained, and asked that his answer be treated as a cross-bill, and prayed for affirmative relief. The circuit judge dismissed the bill of complaint, and granted the-relief prayed for in the cross-bill. From this decree, complainant has appealed.

In November, 1891, the complainant and one Alvord formed a partnership, under the firm name of Alvord & Co., for the purpose of buying, selling, and manufacturing office supplies. This partnership was to continue five years. After the expiration of the five years, the firm continued to do business, though the articles of partnership were not renewed. In 1894, the defendant, who was the owner and inventor of machines for making coin cases, was engaged in business under the name of the Bankers’ Coin Case Company. In May, 1894, an arrangement was made by which Chope sold to Alvord & Bolton the business of the Bankers’ Coin Case Company, its plant, stock, and good will, and all inventions and patents owned by it, for $10,000; $500 to be paid upon the making of the contract, and $200 or more each month thereafter, with interest, until all was paid. The payments were made until January, 1897, when $6,700 had been paid upon the contract. At this time, Alvord had furnished $755, and the balance had nearly all been paid out of the business. The active partner was Mr. Bolton. Mr. Alvord was a photographer, and did not spend much time with the ■ business, but he made no charge for his services, while Mr. Bolton drew out of the concern, first, his expenses, and then $50 a month. The articles of partnership treated the members of the firm as equal partners, and the record discloses they so treated each other. In January, 1897, Mr. Chope bought Mr. Alvord’s interest in the business, for which he paid $2,500. At the same •time, the following writing was executed:

“Detroit, Mich., Jan’y 22, Í897.
“For a valuable consideration, and under mutual agreement between the parties to the foregoing contract, we hereby release Charles E. Alvord from the terms and obligations of the foregoing contract; and I, Frederick H. Boltbn, hereby agree to carry out and assume the obligations. of said contract, and to receive a one-half interest in said contract for my interest therein, and all rights, patents, and claims covered thereby, when said contract is fully completed; and I, Robert L. Chope, hereby agree that said Frederick H. Bolton shall so assume said contract, and said Alvord be released as above stated.
[Signed] “Frederick H. Bolton.
“Robert L. Chope.
“Charles E. Alvord.”

After this paper was executed, Mr. Bolton continued to manage the business, and made payments upon the contract, until all but $700 of the principal was paid. He then tendered to Mr. Chope the $700 and interest, and demanded from him a receipt in full of the balance due on the contract made by him with Alvord & Bolton, ’and a conveyance to Bolton of the entire business, plant, stock, and patents. Mr. Chope, claiming to own a half interest therein, offered to convey one-half interest, but declined to convey the whole interest. The complainant then filed this bill, bringing into court $701.75 for Mr. Chope; and, after a full hearing in open court, the circuit judge decreed as follows:

1. Complainant’s bill was dismissed, with costs. •
2. Awarded to Chope the $701.75 paid into court, and $12.25, interest on same, which was made a lien on complainant’s interest.
3. Decreed Chope to be the owner of an equal undivided half of the contract property, and Bolton the owner of the other half.
4. Decreed that a physical division of the property cannot be had.
5. Appointed complainant and defendant joint receivers of the property, and directed a sale thereof to the highest bidder for cash, after 20 days’ notice.

The questions involved are purely questions of fact. A careful reading of the entire record and briefs of counsel shows an utter failure on the part of the complainant to establish a case for relief. It discloses that he understood fully the arrangement of January 22, 1897, when it was made, and desired to make it. It is urged that, as no proof was offered that a physical division of the property cannot be had, the decree in that respect was wrong. It is true, no testimony was offered for that specific purpose, but the record is full of proof tending to establish that fact. A discussion of these questions of fact would not profit any one.

The decree is affirmed, with costs.

The other Justices concurred.


source: Caselaw Access Project

author: Grant, C. J.

license: Public Domain

text:
    McPHERSON v. PINCH.
    1. Agency — Tenants in Common — Alteration op Lease — Ratification.
    Where one of two prospective tenants presents a lease signed by them to the owner of the premises for his signature, and obtains the same after striking out a material provision to which the owner objects, a ratification of the alteration by the other tenant is, unless original authority is shown, essential to the validity of the lease.
    2. Same — Declarations op Agent.
    The declarations of the tenant procuring the lease, as to the authority vested in him by his cotenant, may be shown to impeach his testimony that he had no original authority, but not to prove the fact of agency.
    3. Same — Evidence—Question por Jury.
    Evidence that the cotenant saw the lease in its changed form a few days after it was executed, and made no objection then or when the rental was demanded, but, on the contrary, used language from which it might be inferred that he considered himself bound by the lease, and held himself out to the public, by bill heads, as a proprietor of the premises, is sufficient to go to the jury on the question of ratification.
    4. Judgment — Joint Dependants.
    The jury should not be instructed to render a verdict of no cause of action in the absence of a joint liability on the part of defendants, when one of them admits his liability, bat a verdict against such defendant should be directed under Circuit Court Rule No. 27 (e).
    Error to Eaton; Smith, J.
    Submitted November 17, 1898.
    Decided December 13, 1898.
    Covenant by Samuel A. McPherson against Benjamin W. Pinch and Charles M. Beecher to recover the rent due upon a lease. From a judgment for plaintiff, defendants bring error.
    Reversed.
    Suit to recover the rental upon a lease of a mill property. Defendant Pinch was the owner of the property, and exchanged it with plaintiff for property in Battle Creek, where the latter resided. The property was situated in Olivet, where defendants resided. The lease bears date December 9, 1895, and is signed by plaintiff and both defendants. Defendants signed it at Olivet, and defendant Pinch took it to Battle Creek to have it executed by plaintiff. The lease, as signed by both defendants, contained the following clause:
    “ Said second parties have privilege to make any necessary small repairs at expense of first party without giving notice to said first party of the same, and to deduct actual cost of same out of rent; said second parties to furnish bills and receipts for all money paid out for same: Provided, that, if any repair is made necessary the expense of which is more than $25, said second parties shall not be authorized to make said repairs without first consulting said first party or his authorized agent.”
    Plaintiff refused to execute the lease with this clause in. Thereupon plaintiff and Pinch agreed to strike it from the lease. It was erased with red ink, and Pinch and plaintiff signed the following, written upon the back of the lease:
    “This lease is in duplicate, and both have the same alterations. It is hereby understood and agreed that all that part of this lease which has been erased by drawing red lines across same, and that part of the lease referring to keeping np the repairs of said property covered by the lease, has been done by and consent of both parties to this lease, namely, S. A. McPherson and Benjamin W. Pinch.”
    The lease was then delivered, and Pinch returned with it to Olivet, and carried on the business with Mr. Beecher.
    The original declaration sets forth the lease in full, including the erased portion as a part of it. Subsequently plaintiff, by order of the court, amended his declaration by striking out this clause. Neither the original nor the amended declaration contained the agreement upon the back of the lease. Defendants pleaded the general issue. Upon the trial defendant Beecher asked and obtained permission to file an affidavit denying the execution of the lease, which he did. Plaintiff recovered verdict and judgment against both defendants.

      Huggett & Smith, for appellants.

      Powers & Stine, for appellee.
   Grant, C. J.

(after stating the facts). 1. Plaintiff offered the lease in evidence, except the agreement upon the back, to which defendants’ counsel objected. It was received under exception. The latter agreement was subsequently introduced. The alteration was a material one, and neither before the lease was offered in evidence, nor afterwards, was there any competent evidence to show that Mr. Beecher had authorized Mr. Pinch to change the lease. If the case rested upon this, the objection would be fatal, not only to the admission of the leáse in evidence, but to the right of recovery against Beecher. ' There was, however, evidence of ratification, so that the objection becomes a technical one, and relates only to the order of proof.

%. The court, in its instruction, left the question of authority to the jury. There was no evidence of original authority. Mr. Pinch, a witness for the defendants, testified that he had no such authority. On cross-examination he was asked if, at the time the change was made, he did not state in the presence of certain persons that he had such authority from Beecher. This he denied. Plaintiff then introduced witnesses to impeach this statement. While this impeaching testimony would have been competent to discredit the witness, especially if there had been other testimony of authority, it could not be used by the jury to prove the fact of agency. It was no more competent for that purpose than it would have been if offered as independent testimony of the agent’s declaration. It is elementary that the declarations by an agent are incompetent for that purpose. The 'court should have so instructed the jury, and should also, as requested, have eliminated from their consideration the question of authority. It is true that there was no intention on the part of plaintiff and Pinch to release Beecher, but such was the legal effect, unless he ratified the change.

3. It is urged that there was no evidence of ratification. There was evidence that Beecher held himself out to the public, by bill heads, as a proprietor; that he saw the lease in its changed form a few days after it was executed, and made no objection; that plaintiff demanded the rental; and that he did not then deny his liabilty, but used language from which the jury would be justified in inferring that he considered himself bound by the lease, and obligated to pay. We think there was sufficient to justify the -submission of this question to the jury.

4. In view of a new trial, — although the point does not appear to be raised, — we notice one other error in the instruction of the court, to the effect that, if the jury found there was no joint liability, they must find a verdict of no cause of action. Pinch admitted his liability, and, under Circuit Court Rule No. 27(c), the jury should have been instructed to render a verdict against Pinch, if they found that Beecher was not liable.

Reversed, and new trial ordered.

The other Justices concurred.


text:
    CAMPBELL v. BANE.
    1. Partnership — Remedies Inter Se — Mortgages—Foreclosure.
    A sale by one member of a firm to his copartners of all his “right, title, and interest” in and to “all the assets” of the copartnership will pass title to a promissory note and collateral mortgage given to the firm by the retiring partner, and the mortgage may be foreclosed without an adjustment of the partnership accounts.
    2. Mortgage Foreclosure — Parties—Subsequent Lienholders.
    A subsequent lienholder is a proper party defendant to a bill to foreclose a mortgage, of the existence of which the mortgagee claims that the lienholder had actual notice before his lien attached, although the mortgage was not recorded until afterwards.
    Appeal from Clinton; Daboll, J.
    Submitted November 22, 1898.
    Decided December 13, 1898.
    Bill by Oliver B. Campbell and Thomas P. Steadman against George Bane, impleaded with Horace N. Keys and Antha D. Keys, to foreclose a mortgage. From an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.
    The bill contains the following allegations: Complainants are partners engaged in a banking business at Elsie, Mich. Defendant Horace N. Keys was once associated with them in the same business, carried on in the name of the Elsie Bank. January 2, 1894, Keys became indebted to the firm for $2,645, for which he gave his note, payable to the order of T. P. Steadman, cashier. February 19, 1897, Keys and his wife, the defendant Antha, executed a mortgage to the firm (Campbell, Keys & Steadman), for the consideration of $1,000, as collateral security to the note above mentioned. May 3, 1897, the mortgage was recorded. Complainants are the sole owners of said note • and mortgage; said Keys having, on April 15, 1897, “sold and transferred all his right, title, and interest in and to all the assets of the copartnership known as Campbell, Keys & Steadman” to them. Keys has no interest in or title to said mortgage. Defendant Bane has, or claims to have, some interest in said premises, as judgment creditor, which has accrued subsequent to the delivery of the said mortgage, and is subject thereto.
    The bill then sets out an attachment suit commenced April 28, 1897, under which defendant Bane claims his interest. The bill further alleges that Bane had notice, prior to the levy, of his said attachment, of the existence of said mortgage, and knew that it was a valid and substantial lien upon the said premises. Defendant Bane demurred, alleging as grounds for the demurrer:
    (1) Want of equity in the bill.
    (2) Multifariousness'and misjoinder.
    (3) The inability to try his adverse claim of paramount title in a foreclosure suit.
    (4) Want of privity between complainants and Bane to justify any relief against him.
    The demurrer was overruled, and defendant appeals.

      Fedewa & Walbridge, for complainants.

      Almond G. Shepard and Edwin H. Lyon, for defendant.
   Grant, C. J.

(after stating the facts). 1. The main contention is that, under the allegations of the bill, there has been no final adjustment of the partnership accounts between complainants and Keys, and therefore the suit will not lie, because it is against a member of the firm. In support of their position, counsel cite Gardiner v. Fargo, 58 Mich. 72. In that case, which was a suit at law, one partner, Gardiner, sold his interest in all the goods, personal property, fixtures, book accounts, of every kind and nature, of the firm of Gardiner & Fargo, to the firm of Fargo & Peck. It was held that the indebtedness of Gardiner to the firm was not included in the bill of sale. The language in the present case is far more comprehensive. Keys had acknowledged himself indebted to the firm, and had given it a note and mortgage. This was one of the assets of the copartnership. By the arrangement set out in the bill, the partnership was dissolved. Keys ceased to be a member, and transferred to the remaining partners his right, title, and interest in all the assets, which included his own note and mortgage. Under the allegations, all title in him passed to complainants, and lodged in them the power to proceed to enforce the collection, as though the mortgage had been given by a stranger to the firm. Partners may deal with each other as individuals, and, when they have so done, a suit at law to enforce the contract is applicable. Carpenter v. Greenop, 74 Mich. 664 (4 L. R. A. 241, 16 Am. St. Rep. 662); Smith v. Kemp, 92 Mich. 357. This is a suit in equity, and if Keys claimed payment, or that under the arrangement it was necessary for a partnership accounting in order to determine the amount due upon his note and mortgage, he could file an answer in the nature of a cross-bill. Bane, as a subsequent purchaser or lienholder, has a right to redeem, and is also entitled to have the amount due upon the mortgage determined. The parties are not in a court of law, but in equity, where all their rights can be protected.

2. Under the allegations of the bill, Bane is a subsequent lienholder, and, under the statute, is a proper party defendant. The case of Dickerson v. Uhl, 71 Mich. 398, has no application, because there the claim of the defendants antedated the mortgage which was in process of foreclosure. In the present case Bane’s lien is subsequent in date, and his right of priority must be determined bjr the fact of actual notice of the existence of the mortgage. The statute providing for foreclosure suits contemplates the settlement of just such suits.

The decree is affirmed, and the case remanded, with leave to the defendant to answer in accordance with the rules and practices of the court.

The other Justices concurred.


text:
    GRANT v. CITY OF DETROIT.

    Paving Contract — Construction—Car Tracks.
    A contract providing for paving a street “40 feet wide, less car tracks, 15 feet,” requires the contractor, as a matter of law, to pave the space under a flange on the outside of the rails.
    Error to Wayne; Frazer, J.
    Submitted November 23, 1898.
    Decided December 13, 1898.

      Assumpsit by James Grant against the city of Detroit for work and labor. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff entered into two contracts with defendant to pave certain streets with cedar blocks on concrete. The streets were traversed by double street-car tracks. The contract did not include these tracks or the space between them. This space had been previously paved. Each contract involving the same question, we will refer to one only. The contract provided for grading and paving the street “with cedar blocks on concrete foundation, 40 feet wide, less' car tracks, 15 feet,” for $5,080.22. The rails had flanges at .the top and bottom, leaving a space on the outside of the rail, hollowed out about 5 inches in depth, and extending about If inches towards the body of the rail. The engineer testified, under objection and exception, that, in making his estimate, he did not “include anything for tamping, for filling in under the outer flange of the railway flange,” but that he took the extreme width from the top of the rails. When plaintiff commenced work, he insisted that his contract did not include this space; that it was not included in the estimate made by the engineer; and that Mr. Guthard, one of the board of public works, who supervised the work, told him that the space must be filled, and, if it was not provided for, the engineer would give him an estimate for it. He did the work, and the city refused payment, whereupon plaintiff instituted this suit, and recovered a verdict of $175.

      Charles Flowers and Arthur Webster, for appellant.

      Louis C. Wurzer, for appellee.

       Rehearing denied May 23, 1899.

   Grant, C. J.

(after stating the facts). We are of the opinion that there is no doubt about the construction to be placed upon this contract. It seems unreasonable to suppose that the parties were making a contract leaving this small space unfilled, or that either could have so understood it. There is nothing in the contract, specifications, or estimate to indicate the exclusion of this space. The paving could not have been complete without it. Plaintiff saw the street before entering into the contract, and accepted the estimates of the engineer. The estimates and measurements were binding, in the absence of fraud or mutual mistake. There is no claim of the former and no proof of the latter. It follows that the court was in error in submitting the construction of this contract to the jury. It was a question for the court, and a verdict should have been directed for the defendant.

Judgment reversed, and no new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    SPAULDING v. O’CONNOR.
    1. Tax Sales — Affidavit of Publication — Sufficiency.
    An affidavit of publication in a tax proceeding is not void because it refers to the petition of the auditor general and the order of hearing thereon, copies of which are attached to the affidavit, as the “annexed printed notice.”
    2. Same.
    In such case, where the copy attached consists of a single newspaper clipping, in which the order precedes the petition, it will be presumed that the publication was made in the same order.
    3. Same — Decree—Evidence.
    The entry of a tax decree in the chancery record, with the name of the circuit judge attached, countersigned by the register, and the date of filing appended, is sufficient evidence that a decree was duly made and filed, although no decree is found in the files of the court, nor any entry thereof upon the calendar.
    4. Same — Setting Aside Sale — Grounds for.
    Under section 70 of the tax law of 1893 (Act No. 206, Pub. Acts 1893), providing that the practice with reference to setting aside sales shall be the same, so far as applicable, as in cases of mortgage foreclosure, but that no sale shall be set aside after confirmation except where the taxes were paid or the land was exempt from taxation, a sale will not be set aside after confirmation, either on petition or bill of review, except for one of the reasons specified, or (under Benedict v. Auditor General, 104 Mich. 269) for defects going to the juris diction.
    Appeal from Monroe; Kinne, J.
    Submitted October 21, 1898.
    Decided December 13, 1898.
    Bill by Dewitt O. Spaulding and Clarence A. Ligbtner against William O’Connor and Roscoe D. Dix, auditor general, to review a tax sale. From a decree setting aside the sale on terms, all parties appeal.
    Reversed.

      Keena & Lightner (John H. Goff and Willis Baldwin, of counsel), for complainants.

      C. H. Rose, for defendants.
   Hooker, J.

In 1891, Vahey owned the premises in question, and gave to Spaulding a mortgage upon them. In 1892, Vahey deeded to Bishop, and the land was assessed to him in 1892, and in March of that year he paid the delinquent taxes for 1891. Spaulding foreclosed his mortgage, and received a sheriff’s deed in 1894. He ascertained in 1896 that Bishop had not paid-the taxes, and that O’Connor claimed to own the land under a tax deed, and he wrote to the auditor general and county treasurer in relation to the same, and paid the amount due for redemption for the year 1893. In May, 1896, Spaulding executed and delivered to Lightner, as security for indebtedness due from him to Keena & Lightner, a warranty deed of the premises. O’Connor refused to accept a tender of $50 for his interest under the tax sale for taxes of 1892, and, the proceedings having been enrolled, Spaulding obtained leave to file a bill of review in Januáry, 1897. With this order this court refused to interfere, and the cause was heard, resulting in a decree setting aside O’Connor’s deed, but requiring the payment by complainants to O’Connor of $100 in addition to the amount paid by him for taxes and interest. Both parties have appealed.'

In support of the decree, counsel urge that there was a want of jurisdiction in the tax proceeding, and that no decree was filed. The first point is based upon the affidavit of publication, which is as follows:

“Fred D. Elmer, being duly sworn, says that he is foreman of the Monroe Commercial, a newspaper published and circulated in said county of Monroe, and that a notice of which the annexed printed notice is a true copy has been duly published in said paper once each week for four successive weeks; and the first publication thereof was on the 5th day of October, A. D. 1894.
“Fred D. Elmer.
“Sworn and subscribed to before me, this 2d day of November, A. D. 1894.
“D. T. Elmer, Notary Public.”

Two points are made against it, viz.: That it does not show that copies of the petition and order of hearing were published, but that a notice was published; and that it does not show that the order preceded the petition, as required by law. An inspection of the original affidavit shows that it has attached to it a single clipping from a newspaper, and nothing else, and that upon this clipping the order and petition are printed in the order specified. The affidavit calls them a notice, which they are, in a sense; but it is also obvious that they are the instruments required by law to be published, and nothing else, and, being upon a single piece of paper, we should do violence to common sense did we not understand the statement that the document was a copy to show that they were published in the order shown by the copy. It is obvious that the ‘ ‘ notice attached ” is a clipping from the newspaper of one of the publications. It conforms to the statute, and we think the proof of publication should not be held invalid because it calls the copies of the order and petition “a notice,” when the papers attached clearly show the statute to be compliéd with. Garner v. Wallace, 118 Mich. 387.

No decree is found upon the files of the court, nor is there a calendar entry of a decree. There is, however, an entry of a decree in the chancery record, with the name of the circuit judge attached, countersigned by the register, with the date of filing appended. To our minds this is sufficient evidence that a decree was duly made and filed, and its contents are preserved as required by law. It is as convincing evidence of its filing as a calendar entry would be, and better evidence of its contents. We must assume that the register followed the requirements of the Jaw, by entering the decree after it was made, signed, and filed, rather than to conclude that he entered a fictitious decree.

These appear to be the principal questions discussed in the complainants' main brief. A second brief asserts that the property was excessively assessed, and that the tax was $2.24 more than it should have been. This is disputed, but we do not investigate the question, because it was settled by the decree. We are asked to open these proceedings upon the claim that the petition is filed within one year after the complainants received notice of confirmation of the sale. The statute (Act No. 206, Pub. Acts 1893, § 70) provides that “no sale shall be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation. In such cases the owner may move the court, at any time within one year after he shall have notice of such sale, to set the same aside, and the court may so order upon such terms as may be just.” This case is not within the classes mentioned as exceptions to the prohibition, and it is not our province to enlarge the statute.

It is urged that, under the general chancery practice, the court has power to open a decree, upon petition, at any time before enrollment, and to set it aside upon bill of review filed after enrollment. In the case of Benedict v. Auditor General, 104 Mich. 271, we held that a decree might be opened upon petition in ordinary chancery cases before enrollment, and in that case the decree was set aside in such a proceeding upon the ground that the court did not acquire jurisdiction. Section 70 of the tax law provides that — ■

“All sales shall stand confirmed, * * * unless objections thereto are filed within eight days after the time limited for filing the report of sale. * * * The practice with reference to setting aside such sale shall be the same, so far as applicable, as in a sale in equity on the foreclosure of mortgages: Provided, no sale shall be set-aside for inadequacy of price, except upon payment of amount bid upon such sale, with interest and- costs: And provided, further, that no sale shall, be set aside after confirmation, except in cases where the taxes were paid or the property was exempt from taxation. In such cases the owner of the lands may move the court at any time within one year after he shall have notice of such sale,” etc.

The practice of setting aside sales upon foreclosure is not a statutory one, but is done in the exercise of a power essentially equitable, inherent in the court of chancery. Its exercise is not limited to cases where there is irregularity, but, where the sale is not void, special circumstances appealing tb equitable censiderations must exist. Page v. Kress, 80 Mich. 85 (20 Am. St. Rep. 504); Pewabic Mining Co. v. Mason, 145 U. S. 349. Not only must there be equitable considerations to move the court, but there must also be an absence of laches. Lyon v. Brunson, 48 Mich. 194; Goodwin v. Burns, 21 Mich. 211; Bullard v. Green, 10 Mich. 268; Leonard v. Taylor, 12 Mich. 398. And a much stronger case must be made out after confirmation than before it. Bullard v. Green, supra. It is this practice that the legislature has attempted to deal with in the section quoted, and has limited the power of the court to set aside sales for irregularities, except in two classes of cases, to the period preceding confirmation. This does not necessarily limit the time to eight days after sale, as the confirmation may be deferred. If we hold that a sale may be set aside for irregularities other than the two excepted, upon petition filed after confirmation, we shall have difficulty in finding a purpose for this provision, and in such case it might as well have been omitted from the law. Section 73 is cited as a basis for the claim that the legislature could not have meant to so limit the right to move to set aside the sale by petition, because under that section it fixes a period of five years in possession as a period after which no sale can he.set aside by any court; but we are of the opinion that this provision is in effect a statute of limitation, and, after the running of that statute, a possession under a sale upon a void decree protects the occupant.

In the Benedict Case, supra, we have recognized that a sale upon proceedings without jurisdiction might be set aside upon petition, and by doing so we have necessarily determined that the prohibition in section 70 did not apply to that kind of a case. In that case the sale and all proceedings were absolutely void for want of jurisdiction, and no title could be acquired upon such sale except- in cases where a possession of five years would preclude attack upon it, under section 73. It was held by this court in the case of Crawford v. Tuller, 35 Mich. 57, that one who attacks a judicial sale as invalid after strangers have acquired rights under it must do so by some original proceeding, in which an issue can he formed and tried in the ordinary way, and the persons concerned brought in as parties. Under the facts shown in the Benedict Case, the sale and deed were void, and might have been attacked in a suit to remove a cloud or upon ejectment. Perhaps it would have been a more technically correct course had we dismissed the petition in that case as precluded by section 70, leaving the petitioner to proceed in another way to get rid of the cloud upon his title. That course, however, would have left the question undetermined, and, as all of the parties were before the court, there seemed to be no obstacle' to a disposition of the case, except a rule of equity practice and a technical and strict construction, of section 70. We are of the opinion that a reasonable construction of that section may exclude jurisdictional questions from its terms, as was done in Benedict v. Auditor General, supra. But other defects in the procedure, which are mere irregularities, and therefore do not make the decree void, cannot be excluded, if we give any effect whatever to the statute. We may also be justified in inferring that section 70 was designed, not only to permit the setting aside of sales to the end that a fairer sale might he made, but that it was intended to relieve a party against any sale in a meritorious case within its terms; and that the practice by petition might be resorted to before confirmation, in case of a want of jurisdiction, to declare the entire proceeding void, cannot be doubted. That being so, we see no reason to deny the remedy after confirmation, upon the ground merely that the procedure is irregular.

Complainant held a mortgage upon these premises from 1891, and obtained title under a sheriff’s deed made in 1894=; yet the taxes were delinquent from T892, and he gave himself no concern about taxes until informed of the defendant’s deed. It is true that the defendant has acquired title to this land for a nominal sum, and the complainant’s interest has been sacrificed, and the sympathies of courts' as well as the public go towards the loser in such cases, notwithstanding the fact that inexcusable negligence may alone have made the situation possible; but we are not at liberty to allow such questions to enter into the disposition of causes.

The decree of the circuit court is reversed, With costs of both courts.

The other Justices concurred.


author: Moore, J.

text:
    HORNING v. BOARD OF CANVASSERS OF SAGINAW CO.
    Elections — Ballots—Inspector’s Initials — Place of Indorsement-Directory Provisions of Statute.
    The provisions of the election law (Act No. 190, Pub. Acts 1891) requiring the inspector (section 22) to write his initials upon the upper left-hand corner of the ballot, and declaring void (section 36) all ballots “not indorsed with the initials of the inspector as provided in this act,” do not authorize the rejection by the canvassers of ballots inadvertently indorsed by the inspector in the lower right-hand corner; so much of the statute as designates the particular place for the indorsement being directory only.

      Certiorari to Saginaw; Wilber and Snow, JJ.
    Submitted December 13, 1898.
    Decided December 21, 1898.

      Mandamus by Washburn Horning to compel the board of canvassers of Saginaw county to count certain ballots rejected by it as invalid. From an order granting the writ, respondent brings certiorari.

    Affirmed.

      L. E. Bradt and W. G. Gage, for relator.

      James H. Davitt and George W. Weadock, for respondent.
   Moore, J.

The relator, Washburn Horning, and James Creen, were rival candidates for the office of county treasurer of Saginaw county. Upon the face of the returns, Mr. Horning had 101 majority. Mr. Creen petitioned the board of county canvassers for a recount in a number of voting precincts, among which was the township of Chesaning. The recount was granted. The only question involved is whether a proper disposition was made of the votes of that township. The returns from Chesaning show that 346 votes were cast for Mr. Horning, and 123 for Mr. Creen. Upon the recount by the board of canvassers, 174 votes were credited to Mr. Horning from this township, and 53 votes to Mr. Creen. The result of this action, if allowed to stand, would be to elect Mr. Creen. Upon the petition of the relator, after a hearing, the circuit court for the county of Saginaw directed a writ of mandamus to issue to the canvassing board, directing it to reconvene and recount the ballots qast in the township of Chesaning, including the ones rejected by the board. The board then filed a petition in this court for a writ of certiorari to have the order of the circuit court granting the writ of mandamus vacated.

The ballots which were cast in the township of Chesaning were all marked upon the back thereof with the initials of one of the inspectors of election. Two hundred and thirty-nine of them were marked in the lower right-hand corner, instead of in the upper left-hand corner,, as required by the provisions of section 22, Act No. 190, Pub. Acts 1891. All of these ballots were rejected by the board of canvassers, upon the ground that the marking in the lower right-hand corner constituted a distinguishing mark. One hundred and seventy of the rejected ballots were cast for the relator and sixty-nine for Mr. Oreen. It is urged upon the part of respondent that the requirement that the inspector’s initials shall appear upon the back of the ballot, and the place where they shall be placed, is mandatory, and not merely directory,— citing Attorney General v. May, 99 Mich. 538, 558, 559 (25 L. R. A. 325); Attorney General v. McQuade, 94 Mich. 439; 6 Am. & Eng. Enc. Law (1st Ed.), 348; People v. Board of Co. Canvassers, 129 N. Y. 395 (14 L. R. A. 624); Sweeney v. Hjul, 23 Nev. 409; Ex parte Riggs, 52 S. O. 298; West v. Ross, 53 Mo. 350, 355; State v. McKinnon, 8 Or. 500.

It is also said: “ The electors whose votes were thrown, out by respondents in their recount cannot complain if that action is affirmed. An elector who votes a ballot not bearing the initials of the inspector, as required bylaw, or bearing any other distinguishing mark, is bound to know that it will not be counted. Every elector must know that the law forbids counting ballots which bear distinguishing marks, either on the back or face. If a ballot improperly marked with the initials of the inspector is given to a voter, the latter is not bound to vote it, but he should demand a lawful ballot. He cannot blindly rely upon the inspectors,” — citing People v. Board of Co. Canvassers, supra; Sweeney v. Hjul, supra.

It is further stated: “The fact that a considerable number of votes must be thrown out cannot affect the application of the rule,” — citing People v. Board of Co. Canvassers, 129 N. Y. 414 (14 L. R. A. 633), opinion of Ruger, C. J.; Attorney General v. Glaser, 102 Mich. 401.

None of these cases is directly in point, but it is asserted the reasoning contained in them justifies the action of the canvassing board. We shall have occasion to refer ■to some of them later.

The provisions of the statute, so far as they relate to the initials, are as follows:

Section 22: “The inspector so designated shall at once proceed to write his initials in ink on the upper left-hand corner of the back of each of said ballots, in his ordinary handwriting, and without any distinguishing mark of any kind.”

Section 26, as amended by Act No. 202, Pub. Acts 1893, provides:

“Before leaving the booth, the elector shall fold his ballot so that no part of the face thereof shall be exposed, and so that the initials of the inspector shall be on the outside thereof, and on leaving the booth shall at once deliver, in public view, such ballot to the inspector designated to receive the same, who shall thereupon announce audibly the name of the elector offering the same. * * * The inspector shall then, in the presence of the elector and the board of inspectors, deposit the same in the ballot-box without opening the same.”

Section 36 provides:

“In the canvass of the votes, any ballot which is not indorsed with the initials of the inspector as provided in this act, and any ballot which shall bear any distinguishing mark or mutilation, shall be void, and shall not be counted. ”

■ The record shows that all the ballots which were rejected bore the initials' of the proper officer. To mark these ballots, the convenient and natural way would be to spread them before the inspector with face down. The rejected ballots were doubtless put before the inspector with the bottom of the sheet where the top should have been, and, as so placed, were marked in the upper left-hand corner with the initials of the inspector. This is shown by the fact that the upper part of the initial letters was next to the lower margin of the paper. The record does not disclose that either the electors or the inspectors knew any mistake had been made in the marking. When one of the ballots was folded, it could not be told that the ballot was not marked in the upper left-hand corner. The ballots were voted and counted without their validity being questioned. There is nothing to indicate the inspector who marked them, or the electors who voted them, discovered they were not properly marked, or that there was any wrong intended by any one in connection with the transaction. Nor could it be told for whom any individual elector voted. Under such a state of facts, should the electors voting these tickets be disfranchised, and a man declared elected when fewer votes were cast for him than for his opponent ?

In Attorney General v. McQuade, supra, and Attorney General v. May, supra, persons entered the booth with the electors, when they were not authorized to do so-by the statute, and the secrecy provided by the law was violated. The inspector and the electors were' both parties to the illegality. The cases do not aid in the solution of the questions involved in this case. The case of West v. Boss, 53 Mo. 350, was under a statute which required the ballots to be numbered, and which provided in express terms that ballots not numbered should not be counted. It would be in point if our statute provided that no ballot should be counted unless the initials of the inspector were in the upper left-hand corner; but it does not so provide. In the case of State v. McKinnon, supra, the elector cast a ballot which was upon colored paper, when the law required the ballots to be upon plain white paper, thus making the ballot easily distinguishable. The case of People v. Board of Co. Canvassers, supra, was one where there was a ballot for each party ticket, instead of having the tickets all printed upon one ballot, as our law requires. The indorsement on the back of the ballots enabled the inspectors to know what party ticket the elector voted. Three of the seven judges dissented from the majority opinion. One of the majority judges based his opinion upon the fact that he thought the evidence disclosed the law had been designedly violated. The court refused to follow this opinion in the later case of People v. Wood, 148 N. Y. 142.

While it cannot be said the authorities are uniform, we think a distinction is made between the act of the electors and that of the inspector. In People v. Bates, 11 Mich. 362 (83 Am. Dec. 745), Justice Christiancy said:

“ If the fraud of the voters, the ballots should not be counted; if that of the inspector, they should.”

In Lindstrom v. Board of Canvassers, 94 Mich. 467 (19 L. R. A. 171), in construing section 36 of the act, it is said:

“The evident intent of this provision was to provide against voters’ marking the individual ballot which they cast in such manner as to distinguish it.”

In Loranger v. Navarre, 102 Mich. 259, it is said:

“The voter, finding the ticket upon the ballot, cannot be required to determine its regularity at his peril. This might involve a necessary knowledge of fapts difficult to ascertain. He may safely rely upon the action of the officers of the law, who he has a right to suppose have done-their duty.”

In People v. Avery, 102 Mich. 572, it is said:

“ The electors are not to be deprived of the result of their votes at an election by the mistake of election officers, when it does not appear to have changed the result.”

In Moyer v. Van Be Vanter, 12 Wash. 377 (29 L. R. A. 670, 50 Am. St. Rep. 900), this language is used:

“Many cases have been cited by counsel as supporting the positions taken by them, respectively, and many of these involve a consideration of various phases of the law commonly known as the ‘Australian Ballot Law,’ in force here, but which is a comparatively new thing in this country. These cases cannot all be harmonized, but the general trend thereof has been to recognize a clear distinction between those things required of the individual voter and those imposed upon election officers. There is a disposition to hold the former valid and mandatory; but where there has been a substantial compliance with the law on the part of the individual voter, and it is made to appear that there has been in fact an honest expression of the popular will, there is a well-defined tendency to sustain the same, although there may have been a failure to comply with some of the specific provisions of the law upon the part of the election officers or some of them. Language may have been employed in some of the cases in conflict with this position; but, when such cases are examined with reference to the specific facts passed upon, it will appear that this distinction has been adhered to, and it may truly be said to be the one great underlying principle of all the cases. In case of a violation of the law on the part of an election officer, punishment may be provided therefor, and in this way the law can be rendered effectual without going to the extent of depriving the voter of his right to have his vote counted, in consequence of such violation.”

The rule is stated as follows in McCrary, Elect. (4th Ed.) § 724:

“The decisions cited in the preceding sections upon the question whether the provisions of the law are mandatory or directory are not entirely harmonious. They, however, disclose a well-defined disposition on the part of the courts to distinguish between acts to be performed by the voters and those devolving upon the public officials charged with the conduct of the election. The weight of authority is clearly in favor of holding the voter, on the one hand, to a strict performance of those things which the law requires of him, and on the other of relieving him from the consequence of a failure on the part of election officers to perform their duties according to the letter of the statute, where 'such failure has not prevented a fair election. The-justice of this rule is apparent, and it may be said to be the underlying principle to be applied in determining this question. The requirements of the law upon the elector are in the interest of pure elections, and should be complied with, at least in substance; but to disfranchise the ^oter because of the mistakes or omissions of election officers would be to put him entirely at the mercy of political manipulators. The performance by the election officers of the duties imposed upon them can be reasonably well secured by providing a penalty for failure so to do.”

In State v. Fransham, 19 Mont. 273, it is held, where electors vote the official ballots supplied to them by tbe judges of election, their legally-expressed will cannot be overthrown, where they are not at fault, by the fact that the public officer who prepared the ballots in some way neglected his duty. See, also, State v. Russell, 34 Neb. 116 (33 Am. St. Rep. 625); Cook v. Fisher, 100 Iowa, 27.

The case of Parvin v. Wimberg, 130 Ind. 561 (30 Am. St. Rep. 254), is almost a parallel case to this. The election law in Indiana is very similar to the Michigan law. This is especially true of the initialing of the ballots and the counting of the votes. In that case the statute required the initials to be in the lower left-hand corner. They were inadvertently placed in the lower right-hand corner. In holding that the ballots should be counted, the court said as follows:

“So, it has often been held by this court that a departure from the mode of holding an election as prescribed by statute, which does not deprive legal voters of their right to vote, or permit illegal voters to participate in the election, or cast uncertainty on the result,.does not affect the validity of the election. Gass v. State, 34 Ind. 425; Lafayette, etc., R. Co. v. Geiger, Id. 185; Dobyns v. Weadon, 50 Ind. 298; Mustard v. Hoppess, 69 Ind. 324; Duncan v. Shenk, 109 Ind. 26. Judge McCrary, in his work on Elections (4th Ed., § 228), says: ‘The principle is that irregularities which do not tend to affect the results are not to defeat the will of the majority. * * * The officers of election may be liable Jo punishment for a violation of the directory .provisions of a statute, yet the people are not to suffer on account of the default of their agents.’

“Section 34 of the election statute provides:

“ ‘ At the opening of the polls, after the organization of, and in the presence of, the election board, the inspector shall open the packages of ballots in such a manner as to preserve the seals intact. He shall then deliver to the poll clerk of the opposite political party from his own twenty-five each of the State and local ballots, and to the other poll clerk the stamps for marking the ballots. The poll clerks shall at once proceed to write their initials in ink on the lower left-hand corner of the back of each of said ballots, in their ordinary handwriting, and without any distinguishing mark of any kind. As each successive elector calls for a ballot, the poll clerks shall deliver to him the first signed of the twenty-five ballots of each kind; and the inspector shall immediately deliver to the poll clerks another ballot of each kind, which the poll clerks shall at once countersign as before, and add to the ballots already countersigned, so that it shall be delivered for voting after all of those theretofore countersigned.’
“The sections following provide for the manner of conducting the election until the close of the polls.
“Section 52 provides:
“ ‘The board shall then proceed to canvass the votes, beginning first with the State ballots, and completing them before proceeding with the local ballots, by laying each ballot upon the table in the order in which it is taken from the ballot-box, and the inspector, and the judge of the election differing in politics from the inspector, shall view the ballots as the names of the persons voted fox-are read therefrom. In the canvass of the votes, any ballot which is not indorsed with the initials of the poll clerks, as provided in this act, and any ballot which shall bear any distinguishiixg mark or mutilation, shall be void, and shall not be counted; and any ballot or part of a ballot from which it is impossible to determine the elector’s choice of candidates shall not be counted as to the candidate ox- candidates affected thereby.’
“ It is not claimed that the failure of the poll clerks to indorse their initials at the place on the back of the ballots -indicated by the statute constituted a distinguishing mark, for they were all indorsed alike, but the claim is that the statute is mandatory as to the place upon the ballot at which the initials shall be written. The purpose of construing a statute is to arrive at the intention of the legislature. For that purpose, the courts will look to the whole statute and all its parts, and, when such intention is so ascertained, it will prevail over the literal import and the strict letter of the statute; and, where the meaning is doubtful and uncertain, the courts will look also to the situation and circumstances under which it was enacted, to other statutes, if there are any, upon the same subject, whether passed before or after the statute under consideration, whether in force or not, as well as to the history of the country, and will carefully consider, in this connection, the purpose sought ,to be accomplished. Storms v. Stevens, 104 Ind. 46; Stout v. Board of Com’rs, 107 Ind. 343; May v. Hoover, 112 Ind. 455; Board of Com’rs of Fountain Co. v. Board of Com’rs of Warren Co., 128 Ind. 295.
“A study of the statute upon the subject of elections leaves no doubt that its purpose is to secure a fair expression of the will of the electors of the State, by secret ballot, uninfluenced by bribery, corruption, or fraud. The disfranchisement of whole precincts by reason of an honest mistake on the part of election officers is inconsistent with this purpose. The immediate purpose of the provisions of section 34 is to prevent the counting of fraudulent votes, by requiring the poll clerks to indorse their initials upon the official ballots, to the end that they may be identified when taken from the ballot-box. This purpose is accomplished as well by the indorsement of such initials in one place as in another on the back of the ballot. Of course, so much of the statute as requires the ballots to be indorsed with the initials of the poll clerks is mandatory; but we are of the opinion that so much of the statute as requires the initials to be indorsed at a particular place on the back of the ballot is directory only, because the purpose of the legislature is accomplished when the indorsement is made in such manner as to enable the election officers, in conducting the count, to identify it as the official ballot.
‘ ‘ Judge Cooley, in his valuable work on Constitutional Limitations (6thEd., p. 92), says: ‘Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time nor in the precise mode indicated, it may still be sufficient if that which is done accomplishes the substantial purpose of the .statute. ’ See, also, Martin v. Pifer, 96 Ind. 245; Middleton v. Greeson, 106 Ind. 18; In re Douglass, 58 Barb. 1?4.”

The indorsement of the initials was made in all respects as required by law, except that, instead of being in the upper left-hand corner, they were in the lower right-hand corner. The ballot, when folded, could not be told from a folded ballot with the initials in the upper left-hand corner. The inspectors of election did not intend to do any wrong. The electors were all qualified voters. They accepted the ballots as given to them by the inspector, supposing them to conform fully with the law. As voted, they were secret ballots. ■ No one of the 239 ballots was distinguishable from the others. The electors voted them in the utmost good faith, without objection or challenge from any one. The inspectors counted them without protest from any source. No one then supposed they were illegal or unofficial ballots. No one knew of the mistake, or thought the election of any candidate was imperiled. The electors took as much precaution as any elector would be expected to take. They were in no sense responsible for the mistake of the inspector. To disfranchise hundreds of legal voters, for an unintentional mistake of this character by a public officer, is a gross injustice, and is calculated to bring a very commendable law into disrepute. It would enable a corrupt inspector to disfranchise the electors when they were not parties to any fraud.

The application to have the order of the circuit court vacated is refused, and the board of canvassers is directed to issue a certificate of election to the relator.

The other Justices concurred.


author: Montgomery, J.

text:
    ELDRIDGE v. HUBBELL.
    1. Justices oe the Peace — Jurors—Peremptory Challenge.
    It is reversible error for a justice of the peace to excuse one of the jury struck by the parties upon a peremptory challenge.
    2. Same — Certiorari.
    The ruling of a justice in allowing a peremptory challenge to a iuror may be reviewed on certiorari, though appeal is the better remedy.
    Error to Ionia; Davis, J.
    Submitted October 4, 1898.
    Decided December 28, 1898.
    Replevin by Martha E. Eldridge against Nathan Hub-bell. From a judgment reversing, on certiorari, the judgment of a justice of the peace, plaintiff brings error.
    .Affirmed.

      Frederick & W. H. Mains, for appellant.

      F. II. Stowe (M. A. Nichols, of counsel), for appellee.
   Montgomery, J.

This case originated in justice’s court. The defendant demanded a jury. The jury was selected in the usual manner, and the jurors selected by the parties summoned. Five of the jurors appeared, and plaintiff challenged one of the original panel peremptorily. The challenge was allowed by the justice, and defendant declined to take any further part in the proceeding. The plaintiff proceeded to judgment. Defendant removed the case to the circuit on certiorari, alleging, as ground of error, that the justice erred in excusing a juror of the regular panel on a peremptory challenge. The circuit court reversed the judgment of the justice, and plaintiff brings the case here for review. Two questions are presented : First, whether it was error to permit a peremptory challenge; and, second, whether certiorari is a proper remedy to review the ruling of the justice.

1. There is no statute authorizing a peremptory challenge of the members of the original panel in justice’s court. It is error to allow a peremptory challenge not authorized by statute. In re Convers, 18 Mich. 468. On a trial at circuit, where the record shows that the regular panel is not exhausted, this may be error without prejudice. See Luebe v. Thorpe, 94 Mich. 268; People v. Fowler, 104 Mich. 449. But in justice’s court the trial should proceed before the jury struck by the parties, unless there be challenge for cause; and we cannot hold that this right is unimportant, in view of the fact that there is no reserve of jurors selected in like manner.

2. We regret to say that, under the rule early established, a question of this nature may be reviewed'iby certiorari. Dooley v. Eilbert, 47 Mich. 615; Boatz v. Berg, 51 Mich. 8; Gordon v. Sibley, 59 Mich. 250; Whittle v. Bailes, 65 Mich. 610; Harris, Certiorari, § 568 et seq. We say we regret the existence of this rule for the reason that we are convinced that the remedy by appeal is ample in all cases where jurisdiction of the cause is obtained by the justice. We have, in numerous cases, pointed out that appeal is the better remedy. But, in the absence of legislative restriction, we can go no further than to require that, if the aggrieved party resorts to certiorari, he make the error to appear affirmatively and clearly. This has been done in this case, unless we are to say that the right to a trial by a jury other than the one to which plaintiff was entitled, and composed of men selected by a different method, is the equivalent of a trial by a lawfully constituted jury. We do not feel justified in so holding.

The judgment of the circuit court is affirmed.

The other Justices concurred.


text:
    LANDRY v. LANDRY.
    Witnesses — Cross-Examination—Harmless Error.
    The exclusion, of a question, on cross-examination, irrelevant except to show bias of the witness, was not prejudicial error, where the bias was otherwise shown.
    Appeal from Saginaw; Snow, J.
    Submitted October 5, 1898.
    Decided December 28, 1898.
    Bill by Elizabeth Landry against James Landry for a divorce. From a decree for complainant, defendant appeals.
    Affirmed.

      F. L. Beach, for complainant.

      John F. O'Keefe, for defendant.
   Montgomery, J.

The defendant appeals from a decree of divorce, granted on a bill charging extreme cruelty and nonsupport. The solicitor for defendant contends that the proofs wholly failed to sustain either charge. We think the charge of nonsupport is not well sustained, but, as to the charge of cruelty, we have, with some hesitation, reached the conclusion that it is sufficiently sustained to justify the decree. In reaching this result, we take into account the fact that the testimony was taken in open court, and that the circuit judge had better opportunity to judge of the candor of the witnesses than we have.

On the cross-examination of a witness for complainant, a question was asked which had no relevancy except to show bias of the witness. This was improperly ruled out. While the circuit judge was mistaken as to the practice, we do not think the case should be remanded for new trial because of this error, for the reason that the interest and bias of the witness were otherwise shown, and the defendant has evidently not suffered by the ruling.

The decree will be affirmed.

The other Justices concurred.


text:
    McCLAY v. HICKS.
    1. Malicious Prosecution — Probable Cause — Evidence.
    ■ Upon a review of the testimony in an action for malicious prosecution, it was held that the question whether defendant had probable cause for making the complaint upon which the action was based was properly left to the jury.
    2. Same — Advice oe Prosecutor.
    In an action for malicious prosecution, evidence by the prosecuting attorney that the defendant did not, at the time of entering complaint, make full disclosure of the facts to him, is inadmissible, even though defendant gave notice with his plea that he would show advice of the prosecuting attorney after a full statement of the facts, if, upon the trial, he expressly disclaims having relied upon such advice.
    3. Same — Instructions.
    In an action for malicious prosecution, where the facts are in dispute, the court should state hypothetically what facts, if found, would constitute probable cause, and not leave the jury to determine the question under a general definition.
    Error to Alpena; Kelley, J.
    Submitted October 5, 1898.
    Decided December 28, 1898.
    Case by Elizabeth McClay against Charles V. Hicks for' malicious prosecution. From a judgment for plaintiff, defendant brings error.
    Reversed.

      J. D. Turnbull, for appellant.

      Dafoe & Gustin, for appellee.
   Montgomery, J.

This is an action for malicious prosecution. Defendant caused the arrest of the plaintiff on a charge of statutory larceny. On her examination before the justice of the peace who issued the warrant, she was discharged. It appeared on the trial of the present case that a warrant for the arrest of the plaintiff was issued on complaint of the present defendant; that, after the arrest, the defendant stated to the officer that, if plaintiff would return the property which it was charged she had appropriated, he would not prosecute her. The property in question was an organ. The evidence as to the manner in which it came into plaintiff’s possession was conflicting. .Defendant testified that he sold plaintiff a piano, and took from her an organ in part payment, allowing her $90 for the organ; that, after the piano had been in plaintiff’s possession for some time, the plaintiff told him she could not pay for the piano, and asked him to give her an organ in place of the one she turned in; that he agreed to give her a secondhand organ, and that he sent one to her house; that she refused to receive this organ, and, at an interview between the parties, plaintiff stated that she’ wanted an organ similar to the one she had before, and would be willing to pay the difference; that no bargain was made at this interview ; that defendant agreed to send up an organ, with the statement, “We will see what the difference will be;” that he did send up the organ in question, and afterwards went up and asked her $4=0 difference; that plaintiff then stated that she did not know how she could pay for the organ, unless a relative would help her out; that the matter was allowed to rest for some two months; that she then told him the relative referred to could not help her, and that she could not see any way to pay for it, but would like to keep the organ for a while; that he then told her he had no use for the organ for a while, and that she could have the use of it until he called for it; that he subsequently learned that the house of plaintiff was vacant, and on inquiry learned that plaintiff had taken an early boat one morning.

The plaintiff’s testimony accords with defendant’s, up to the point when the organ was sent to the house, which she refused to accept. As to what took place between the parties thereafter, she testified as follows:

“After talking a little while, he said that he had another one down at the store that he would give me, and I asked him, ‘ What difference ? ’ He told me that he would send that one up, and I could see it, and it was a good organ. But it Was a second-hand organ. It wasn’t as good as mine, that I let him have. I asked him what difference he wanted. He said, ‘Forty dollars.’ I told him no, I couldn’t give it to him. He asked me if I hadn’t somebody — my brother or some relation — to help me pay it. I told him no. And I distinctly refused to give him the $40 difference.
“Q. What did he agree to do, before he went awáy?
“A. He said he would go down; he would send that one up, anyway; he didn’t want to beat me out of the organ; I had had trouble enough. And he sent up the organ that same afternoon, and the organ was in my possession from that time up to the time-I was arrested. From the time he went away and sent up the organ, Mr. Hicks never came to me in reference to that organ at all, and never asked me about the organ afterwards. That was between the 10th and middle of January, 1896. I was then living at 508 Washington avenue. * * * At that time I didn’t tell him to tell Mr. Hicks I would pay the difference between that and a good organ. I did tell him I would have been willing to pay a little difference and get my own organ back. * * * Mr. Hicks wished me to pay a difference of $40, and I refused. I refused before he sent up the organ. I told him I didn’t want to buy an organ. This was the day he sent up the organ,— before he sent it up. When I talked with Mr. Hicks about the $40, I supposed he meant a new organ.' I told him I didn’t want to buy an organ now, and I refused distinctly to pay him the $40.
“Q. Now, then, I want the conversation. What else was said ?
“A. I refused distinctly to give him $40.
“Q. What did you say to him?
“A. I don’t know as I can tell you.
“Q. Tell me just what you said to him.
“A. I cannot.
“Q. Ton cannot?
“A. No, sir; not the whole conversation.
“Q. Did he say anything more to you about the organ at that time, except what you told me ?
“A. He told me he had one down there; he would send it up; I had had trouble enough; he didn’t intend to beat me out of the organ.
“Q. After he got through, when he asked you for the $40, and you said you didn’t know whether you could pay it, what did he say then about sending that one up ?
“A. He told me that he would send that one down in the store up.
“Q. The understanding between you and him then was, you expected, if he sent it up, you was to pay him the $40 ?
“A. No, sir; I didn’t.
" Q. Did you expect at that time he was going to send you, — to donate that $40 to you?
.“At No, sir; I expected him to give it to me in place of mine.
“Q. He told you he should want a difference of $40 between those organs, didn’t he ?
“A. He said that they wanted more than that, — the difference in the piano.
“Q. I say, he said that to you ?
“A. He asked me that first, and I refused it,
“Q. Do you want this jury to understand that he donated to you the difference of $40, by agreement with you at that time ?
“ The Court: I don’t see, Mr. Turnbull— The witness has distinctly stated the conversation. He said he had an organ down there he would send up; he wanted the difference, — wanted her to pay him $40, and she declined to do it. Before he went away, he told her he would send that organ up anyway.
“Mr. Turnbull: Yes.
The Court: She has given the whole conversation.
“Q. That is all the conversation you had with him about this organ ?
“A. Yes; he went away, and the organ came up in half an hour, — half or three-quarters of an hour. Hicks never came up afterwards to see about the organ. He never visited my house at all to see about it.”

We have quoted this testimony at length, for the reason that it is claimed by counsel for the appellant that the evidence conclusively shows that there was probable cause for making the complaint. It will be seen, however, that the plaintiff’s version of what took place at the time of the delivery to her of the organ in question is susceptible of a construction which leads to the conclusion that it was intended that the title to the organ should vest in plaintiff. This being so, it was for the jury to construe the testimony and determine the fact.

One Daggett testified that at one time plaintiff inquired of him what Mr. Hicks could do if she moved the organ away, and that he replied that Hicks could replevy it wherever he found it. This testimony is not denied in terms, and it is urged with much force that this testimony, taken in connection with plaintiff’s, shows that plaintiff did not understand that the title to the organ passed to her, and that, if the title is shown to have been in defendant, the conversion by plaintiff was such as authorized an inference of guilt. It must be admitted that this testimony is strongly corroborative of defendant’s theory, but we are not prepared to say that it established that theory conclusively. It was entitled to be weighed by the jury, but there was no express admission by plaintiff of want of title, and it was not conclusive on that question..

It is also claimed that there was error in admitting negative testimony by the prosecuting attorney, to the effect that defendant did not tell him of the original transaction at the time the piano was sold to plaintiff, at the time the complaint was made. The defendant had offered no testimony as to the advice of the prosecuting attorney, and the failure to disclose these facts would appear to have been immaterial. Its reception was objected to, and plaintiff attempted to justify its admission on the ground that defendant attached a notice to his plea that he would show advice of the prosecuting attorney, after a full statement of all the facts. This testimony was offered in rebuttal, after it was apparent that defendant did not rely upon the advice of the prosecuting attorney; and the defendant’s counsel, in answer to a question from the court, stated that he did not rely upon the advice of the prosecuting attorney. We think this was error. The testimony had no tendency to disprove any fact shown in the case, and was calculated to distract the attention of the jury from the real questions.

The charge of the circuit judge was, in the main, fair and clear, but in one respect it failed to submit the issue to the jury in the manner which the law points out for this class of cases. Upon the question of probable cause the court instructed the jury as follows:

“ Now, as to what will constitute probable cause, or . want of it, I charge you that ‘ probable cause ’ consists and means that state of facts which would move a man of reasonable prudence and caution to prosecute, or to suspect and complain and prosecute, under similar circumstances. It is the only standard by which we can determine in cases of this kind what probable cause is. ‘ Probable cause’ means — probable cause for making a complaint or instituting a criminal prosecution means — a state of facts known to the person who makes the complaint, and believed to be true, and which would move or actuate a reasonably cautious or prudent man to act and make the complaint under similar circumstances, and with similar knowledge of the facts. This is the only definition that I can give you. And I apprehend that you will comprehend it and understand it in applying it to this case.”

It will be seen that the charge does not point out what facts would constitute probable cause, but leaves the jury to determine the question according to their best judgment. One vice of such an instruction lies in the fact that it, of necessity, leaves the jury to determine for themselves what constitutes the offense for which plaintiff was prosecuted. Until the jury know the elements of the offense, it is impossible for them to determine intelligently whether the knowledge of certain facts by defendant justified him in making the complaint. This could only be determined when it was known whether the certain facts which defendant knew, or had reasonable proof of, tended to show an offense in law. The question of what constitutes probable cause in a particular case has for this reason, among others, been treated as a mixed question of law and fact; and correct practic'e requires that, where the facts are in dispute, the court shall state hypothetically what facts, if found, would constitute probable cause. Hamilton v. Smith, 39 Mich. 222; Rankin v. Crane, 104 Mich. 6.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


text:
    FULLER v. DETROIT LOAN & BUILDING ASSOCIATION.
    1. Mechanics’ Liens — Subcontractors—Who Are Contractors.
    One who deeds mortgaged property to the mortgagee, and takes back a land contract for a stated consideration representing the amount of the mortgage and a further sum which the vendor agrees to furnish him to complete a building erected on the premises, does not stand in the position of a contractor of the vendor, so as to entitle another, who furnishes labor and material at the vendee’s request, to a lien as subcontractor, under section 1 of the lien law as amended (Act No. 199, Pub. Acts 1893).
    2. Same — Completion op Structure.
    Nor will the person so furnishing materials to the vendee to complete the building be entitled to a lien under section 3 of the lien law (Act No. 179, Pub. Acts 1891), which gives a lien to one furnishing materials for the “erection” of a “new building,” though the person contracting for such erection has not the legal title.
    Appeal from Wayne; Daboll, J., presiding.
    Submitted October 5, 1898.
    Decided December 28, 1898.
    Bill by William P. Fuller against the Detroit Loan & Building Association, John F. Higginbotham, and Thomas Y. Leonard, to enforce a mechanic’s lien. From a decree for complainant, defendant association appeals.
    Reversed.

      Moore & Moore, for complainant.

      Levi J. Lick and Robert Young, for appellant.
   Montgomery, J.

This is a proceeding to enforce a mechanic’s lien. The loan and building association had, prior to April 30,1896, held a mortgage upon the premises in question, the fee being in defendant Higginbotham. On that date Higginbotham deeded to the association, and a land contract was given back to Higginbotham for the expressed consideration of $3,008.5é, which represented the amount of the mortgage, and $800 more. At the same time a supplementary agreement was indorsed on the contract as follows:

“Detroit, Mich., April 30, 1896.
“As a part of the consideration of the land contract hereto attached, the said first party agrees to furnish a sum of money, not to exceed eight hundred dollars, to be used in completing the building on said premises. Said money to be advanced as the work progresses, except that twenty per cent, thereof shall be retained until the building is fully completed. Said second party to pay all expenses, including a reasonable charge for inspection, if desired by said first party.
“The Detroit Loan & Building Ass’n, “Darius D. Thorp, Prest.,
“ J. G-. Battelle, Sec’y.”

At the time this contract was made, a house had already been erected upon the premises, which was incomplete. The complainant, subsequently, under a contract with Higginbotham, furnished labor and material towards finishing the house. Higginbotham failed to pay, and complainant filed his lien. The bill treats the association as owner and Higginbotham as contractor, and proceeds upon the theory that Fuller is a subcontractor.

Section 1 of the mechanic’s lien law provides:

‘ ‘ Every person who shall, in pursuance of any contract, express or implied, written of unwritten, existing between himself as contractor and the owner, part owner, or lessee of any interest in real estate, build, alter, improve, repair, erect, ornament, or put in, or who shall furnish any labor or materials in or for building, altering, improving, repairing, * * * any house, building, * * * or structure, and every person who shall, as subcontractor, laborer, or material man, perform any labor or furnish materials, * * * shall have a lien * * * to the extent of the right, title, and interest of such owner, part owner, or lessee at the time work was commenced or materials were begun to be furnished by the contractor under the original contract.” Act No. 199, Pub. Acts 1893.

Was Higginbotham an original contractor, within the meaning of the section ? If so, he would, by the terms of the statute, be entitled to a lien as against the loan and building association, and the complainant is entitled to a lien as subcontractor. But we think such was not the relation of the parties. The loan and building association was not entering upon the construction or completion of this building in its own interest. The money which it undertook to advance was to be repaid by Higginbotham, and was in the nature of a loan. The money was withheld, and advanced from time to time as the work progressed, it is true-; but this was no more than prudence dictated to insure the safety of the loan. Higginbotham was not the agent of the loan and building association, but contracted on his own behalf and in his own interest. The expenditures might greatly have exceeded the $800 which the association agreed to advance, and the association would have been powerless to prevent it. See Loonie v. Hogan, 9 N. Y. 435 (61 Am. Dec. 683); Knapp v. Brown, 45 N. Y. 207, 211; Pinkerton v. Le Beau, 3 S. Dak. 440; Burbridge v. Marcy, 54 How. Prac. 446. Cases will be found which indicate a different view, but it will, we think, be found that the statutes of the States in which these cases were decided differ materially from ours. These cases hold, in effect, that, wher.e the construction of a building by a contract purchaser is authorized by the vendor, the lien attaches to the entire land. See Bohn Manfg. Co. v. Kountze, 30 Neb. 719 (12 L. R. A. 33). We do not think our statute can be construed as creating a lien in such cases, particularly in view, of section 3, which reads:

“Any person furnishing services or materials for the erection of a new building or structure upon land to which the person contracting for such erection has no legal title shall have a lien therefor upon such [building] buildings or structure; and the forfeiture or surrender of any title or claim of title held by such contracting 'person to such land shall not defeat the lien upon such building or structure of such person furnishing services or materials as
aforesaid. In case the property covered by the lien is held by the vendee in a land contract, and he surrenders or forfeits his rights thereunder, the person or persons holding such liens may be subrogated to the rights of such vendee, as his rights existed immediately before such surrender or forfeiture, by performing the covenants contained in such contract within thirty days after such forfeiture or surrender is made.” Act No. 179, Pub. Acts 1891.

It appears that the defendant in this case offered to subrogate complainant to the rights of the contract purchaser, but the offer was not acted on. The case does not fall within the provisions of section 3, for the reason that these contracts did not relate to the construction of a new building.

The decree-below is reversed, and the bill dismissed, with costs of both courts to the defendant loan and building association.

The other Justices concurred.


author: Long, J.

text:
    CRONIN v. FIRE ASSOCIATION OF PHILADELPHIA.
    1. Fire Insurance — Conditions oe Policy — Foreclosure Clause —Waiver.
    A provision in a fire-insurance policy that it shall be void if, with knowledge of the insured, foreclosure proceedings be instituted against the property without permission of the company indorsed on the policy, is waived where the company’s agent, who, at the time the policy issued, was informed by the mortgagee, whose interest is covered by the policy, that he would soon foreclose the mortgage, upon being requested by - the mortgagee to make the required indorsement, advises him that it is all right for him to proceed without it.
    2. Same — Instructions.
    An instruction in an action on a fire-insurance policy, that if the defendant’s adjuster assigned some special reason for denying liability, and the plaintiff acted thereon, employed counsel, and incurred expenses, the company would be held to have waived all other grounds of forfeiture, is misleading and erroneous, where it appears that another defense was insisted on, concerning which there is no evidence of waiver.
    3. Same — Manufacturing Plant — Failure to Operate.
    A condition in a fire-insurance policy that it shall be void if the manufacturing establishment insured ceases to be operated for more than 10 consecutive days is a reasonable and proper one, and failure to comply with it invalidates the policy.
    Error to Shiawassee; Smith, J.
    Submitted October 5, 1898.
    Decided December 28, 1898.

      Assumpsit by Michael B. Cronin and Thomas Cronin, for the use and benefit of Milton M. Rose, against the Fire Association of Philadelphia, on a policy of insurance. From a judgment for plaintiffs, defendant brings error.
    Reversed.

      Crane, Norris & Stevens, for appellant.

      Walter McBride (Watson & Chapman, of counsel), for appellees.
   Long, J.

This case was in this court at the January term, 1897. 112 Mich. 106. In the trial in the court below in the first instance, plaintiffs had recovered a judgment by the direction of the court for $1,449.30. The case was reversed and remanded for a new trial. The principal defenses then attempted were:

1. That the policy was issued upon a written application, containing representations of facts material to the risk, which were violated.
2. That the insured ceased to operate the creamery for more than 10 days before the fire.
3. That foreclosure proceedings were commenced, to the knowledge of the insured.
4. That the building insured was unoccupied, and so remained for 10 days prior to the fire, without the consent of the company indorsed upon the policy.

It was held that none of these defenses, except that based upon the representations contained in the application for the policy, was set up in the pleadings by defendant, and that only such as were set up could be considered, under the pleadings. The case was reversed upon the ground that the questions should have been submitted to the jury whether the written application offered in evidence was the basis of the insurance, or whether the policy was issued upon a distinct oral application; and whether there was a material misrepresentation. The facts are set out in the former opinion, and need not be again stated, except so far as they become necessary in the'determination of the questions raised upon the record now before us. The case has been again tried, and plaintiffs had verdict for $1,682.75. The plea now contains notices of the several defenses referred to in the former opinion, and apparently has been amended since the former trial.

1. The policy provides:

‘ ‘ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be Aoid, * * * if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed.”

It appears that on January 9, 1895, Milton M. Rose, as mortgagee, filed a bill to foreclose this mortgage. It was the mortgage mentioned in the policy, and the interest of Mr. Rose as mortgagee was covered by the policy. A subpoena was issued in the case on the filing of the bill, and served on the Cronins. No permit to foreclose was ever indorsed on the policy. It is therefore contended by counsel for defendant that there was a breach of that condition of the policy. It was shown, however, that on December 7, 1894, when the policy was issued, the agent of the insurance company, Mr. W. S. Cooper, was informed that the mortgage would be foreclosed in a short time. Mr. Rose testified that, when he was ready to foreclose, he went to see Mr. Cooper; that he had the policy with him, and asked Mr. Cooper to fix it, as he had just commenced proceedings that day to foreclose the mortgage ; that Mr. .Cooper told him to go on with the foreclosure proceedings. It is claimed that this constituted a waiver of the condition in the policy above set forth. In this, we think, counsel for plaintiffs are right. Beebe v. Insurance Co., 93 Mich. 514 (18 L. R. A. 481, 32 Am. St. Rep. 519); Rediker v. Insurance Co., 107 Mich. 224. It is true that in the above cases the questions arose over the placing of chattel mortgages upon the property without having the permission of the companies indorsed on the policies as provided by them. The provisions were held to have been waived by the action of the local agents; and we think here that Mr. Cooper, the agent of the company,, having been informed that the mortgage was about to be foreclosed, and advising, in effect, that it was all right to go on with the foreclosure without permission being indorsed on the policy, the company cannot now insist upon the forfeiture, but must be held to have waived that provision.

2. We have carefully examined the testimony and the charge of the court in reference to the question whether there was a written application presented to the agent, and upon which it is claimed by defendant that the policy issued. The jury found against the claim by defendant’s counsel, and, in effect, found that there was no written application made. It would profit no one to set out the testimony or the charge of the court, as we are satisfied that the testimony warranted the verdict found.

3. The policy contained a clause that—

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, * * * if the subject of insurance be a manufacturing establishment, and * * * if it cease to be operated for more than 10 consecutive days, * * * or if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for 10 days.”

Both the Cronins testified that the creamery had not been ran or occupied for more than 10 days prior to the fire. Mr. Rose, the mortgagee, however, testified that he found it running less than 10 days prior to the fire. The court was asked by counsel for defendant to submit special questions upon these facts, which was done, and the jury found that the creamery was operated for the time required by the policy. It is the contention of counsel for defendant, however, that the court submitted the questions under a charge which made them wholly immaterial. Counsel asked the court to charge:

“If you find that the creamery stopped running, and ceased to produce its usual and ordinary product, more, than 10 days prior to the fire, and so remained for 10 consecutive days prior to said fire, the policy was voided, and plaintiffs cannot recover. ”

The court refused to so charge, but did charge:

“If you find that the defendant, by its adjuster, denied its liability to the plaintiffs, * * * and gave its reason for such denial, and plaintiffs immediately acted upon such denial and reason so given, and went to the expense of employing an attorney for the collection of its policy, the defendant would be estopped from ever afterwards setting up any other forfeiture, or any other reasons for not paying the policy; so, if you find that Mr. Wells [defendant’s adjuster] gave as the only reason for denying the liability of the defendant that the plaintiffs had failed to have the permit to foreclose the mortgage * * * indorsed on the policy, and plaintiffs acted thereon, and employed an attorney and incurred expenses, then the defendant cannot set up any other or different reasons now, and would be held to have waived all other forfeitures,” etc.

In refusing defendant’s request, the court stated the condition of the policy in reference to the building’s remaining vacant for 10 days, and added:

“A building becomes vacant and unoccupied when it ceases to be used in the usual and ordinary manner of premises intended for such purposes.”

Nowhere in the charge was this request further referred to. As we have seen, the Cronins both testified that the building was not in operation during the 10 days. If there was any testimony the other way, it became a question of fact for the jury to determine; and the court should have submitted it in submitting the special questions, unless the court was right in leaving the question of waiver of that clause to the jury.

It appears that David W. Wells was the adjuster of the defendant. On December 19, 1895, he went to the place of the fire, saw the plaintiffs, made an examination, and took the statement of the plaintiffs. After that they went to the office of the plaintiffs’ attorney, and talked the matter over. Mr. Wells testified that he told them at that time that there were three things, at least, which would render the policy void, — the foreclosure of the mortgage, the vacancy of the property, and a violation of the warranty in the application as to having a watchman to protect the property. After that, and on January 6, 1896, he wrote the plaintiffs about the policy and the violation or its terms, saying:

“Among other things, the foreclosure of said mortgage, and order for sale of said property, and the shutting down or closing of said creamery for more than the allowed time, without proper notice and indorsement made upon said policy, and for such violations as may be shown, the liability of said fire association under said policy ceased at the date of such violations.”

Proofs of loss were thereafter sent to the company by plaintiffs, and in answer thereto Mr. Wells again wrote the plaintiffs, saying:

“As I had informed you previous to, the date of these papers that the fire association did not and would not recognize any liability under said policy, on account of failure on your part to observe or fulfill the various conditions of said policy or contract, it was not necessary that formal or informal proof of loss be made by you.”

We find no evidence in the record contradicting this, and the letters were apparently received by the plaintiffs. Most certainly there is nothing in these letters, or in the testimony of the witness Wells, tending to show that the company waived this condition of the policy. The condition was a reasonable and proper one to be inserted in the policy. Compliance with it would render the risk less hazardous to the company, and it had the right to insist upon the condition being complied with. The court was in error in submitting the question to the jury whether there had been a waiver of that condition. There was no evidence of waiver, and the court should have given the request tendered by defendant’s counsel. The charge as given was misleading, and may have influenced the jury in determining whether the premises were vacant or not.

We have examined the other questions raised, and find no error in them. For the error pointed out, the judgment must be reversed, and a new trial granted.

Grant, C. J., Montgomery and Moore, JJ., concurred with Long, J. Hooker, J., concurred in the result.