text:
    OLD SECOND NATIONAL BANK OF BAY CITY v. WILLIAMS.
    1. Garnishment —Continuance Over Term—Loss oe Jurisdiction—Appeal.
    That a garnishment suit was not brought on for trial at the term at which judgment in the principal suit was rendered, does not require its dismissal in the Supreme Court on appeal, where there is nothing in the record to show that it was not continued over the term upon cause shown or by consent of counsel.
    2. Same—What Subject to.
    The right to hold a garnishee depends upon the state of the claim, as one garnishable or not, at the time of serving process.
    3. Same—Corporate Stock.
    A certificate of stock in a corporation is subject to garnishment under 2 How. Stat. § 7697, providing that such stock may be taken and sold on execution, and sections 8058, 8059, providing for charging a garnishee with the property, money, goods, chattels, and effects in his hands.
    Error to Bay; Maxwell, J.
    Submitted February 4, 1897.
    Decided May 11, 1897.
    Garnishment proceedings by the Old Second National Bank of Bay City against Charles S. Williams, as garnishee of David M. Estey and James H. Calkins. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      William M. Kilpatrick (Cahill & Ostrander, of counsel), for appellant.

      C. L. Collins, for appellee.
   Long, C. J.

December 21, 1895, the plaintiff commenced suit in the Bay circuit court against David M. Estey and James H. Calkins, partners under the name of Estey & Calkins, and on the same date sued out a writ of garnishment against defendant Williams; alleging in the affidavit upon which the writ was issued that “Charles S. Williams, of Owosso, Mich., has property, money, goods, chattels, and effects in his hands and under his control belonging to the said David M. Estey and James H. Calkins, and each of them, and is indebted to them, and each of them.” Mr. Williams made disclosure in the case under oath, in which he stated that he was not indebted to the principal defendants, or either of them, and was not at the time of the service of the writ upon him, but that at the time of the service of the writ he then held 100 shares of the' capital stock of the Estey Manufacturing Company, of Owosso, Mich., represented by certificate No. 68, of the par value of $25 each, which had been duly assigned to him by David M. Estey, “and which he now holds as collateral security for the indorsement and guaranty by him, the said Charles S. Williams, of a certain promissory note made by David M. Estey on December 5, 1895, to C. J. Monroe, for the sum of $2,500, payable four months from date, with interest at 7 per cent., but by whom the Said note is now held he is unable to say,” and that he has no other property, credits, or effects of said Estey & Calkins. On the trial the plaintiff offered in evidence the judgment in the principal case against Estey & Calkins. This was objected tó by counsel, for the garnishee defendant for the reason that the judgment was obtained at a former term of court, and under the statute the garnishee suit should have been brought on for trial at that term. It was also objected that the stock of a corporation is not subject to garnishee process. These objections were overruled. It appeared that the judgment in the principal suit was for $2,617.35, that the garnishee defendant had advertised and sold this stock for the sum of $3,250, and that the note upon which he was held as indorser- was paid in full out of the moneys arising from the sale of the stock, leaving a surplus in his hands of $669.41. For this amount the court below entered a judgment in favor of the plaintiff, less the expense of the sale of the stock and the garnishee’s witness and attorney fees, which were fixed at $35.

The case was tried before the court without a jury, and, so far as appears by this record, there were no requests by either party for findings of fact or law. The record consists simply of copies of the records and files in the principal case and in the garnishee proceedings, together with the articles of association of the Estey Manufacturing Company, the testimony in the case, and objections to the introduction of testimony, the rulings of the court thereon and added thereto, and the assignments of error by the garnishee defendant. It appears that the trial of the garnishee case was had September 29, 1896, while the judgment was rendered in the principal case on January 14, 1896. But for the exception which was taken to the ruling of the court in admitting in evidence the judgment in the principal case, as heretofore stated, this case could not be heard in this court, as it would be ruled by Gemberling v. Lazarus, 100 Mich. 324; Township of Cumming v. Shick, 94 Mich. 222; Keystone, etc., Manfg. Co. v. Jenkinson, 69 Mich. 220; Child v. City of Jackson, 93 Mich. 503; Haines v. Saviers, 93 Mich. 440. It may be added, also, that the record does not, in terms, purport to contain all the evidence submitted upon the trial. While the garnishee case was not heard until September, although the judgment in the principal suit was rendered in January preceding, there is nothing to show but that the garnishee case was continued over the term upon cause shown, or by consent of counsel. This court will not presume error, and there is none shown by the record.

It is not disputed but that the surplus remaining in the hands of the garnishee defendant after the sale of the stock belonged to Mr. Estey, one of the principal defendants. Counsel for defendant argue that while the shares of stock may be reached by attachment and execution under 2 How. Stat. § 7697 et seq., and section 7993, yet there is no statute which provides for reaching such surplus by writ of garnishment; that at common law there was only one way to reach the interest of a shareholder in a corporation, and that was in equity, the interest being, an intangible one, not subject to levy by execution; that, proceedings in garnishment being statutory, the rule that they cannot be extended to include any case not provided by the statute is one of necessity; that there is no process of court provided by statute by which the surplus itself can be made available to the plaintiff, as the court has no power to order a sale in such a proceeding; that the fact that the garnishee defendant, after being served with the writ, sold the shares, and had the proceeds in his hands in money, did not enlarge the plaintiff’s rights; that the right to hold the garnishee depends upon the state of the claim, as one garnishable or not, at the time of the serving of the process.

The last proposition is well settled in this State. Martz v. Insurance Co., 28 Mich. 201; Hopson v. Dinan, 48 Mich. 612; Bethel v. Judge of Superior Court, 57 Mich. 379. The question is therefore presented, as contended by counsel for defendant, whether this certificate of stock in the hands of the garnishee was subject to garnishment. While we find no statute in this State which expressly provides that stock in a corporation may be the subject of garnishment, yet section 7697, 2 How. Stat., provides that such stock may be taken and sold on execution; and the rule seems to be settled by the weight of authority, and in reason, that, where stock may be taken and sold on execution, the garnishee may be charged for choses in action in his possession. It is the rule of. the common law that no such stock can be taken in execution, but the statutes of most of the States now provide for such levy and sale. The reason given in many of the cases cited by counsel for garnishee why such stock is not subject to garnishment is that the judgment needed is one authorizing a sale of the stock, and there is no law making bank and other stock subject to execution. Our statute provides for such levy and sale. Sections 8058, 8059, 2 How. Stat., provide for charging the garnishee defendant with the property, money, goods, chattels, and. effects in his hands, etc. Section 8065 reaches any personal property, etc., subject to any pledge, lien, or mortgage. Under these statutes, we think the stock was subject to garnishment. It was personal property which might be taken in execution, and, within the garnishee statute, was personal property subject to that claim. This was the rule laid down by the supreme court of Minnesota in Puget Sound Nat. Bank v. Mather, 60 Minn. 362, and in Edwards v. Beugnot, 7 Cal. 162. Shares of stock in corporations are bought and sold in the markets of the world as personal property. The shares in controversy were treated as personal property, pledged as such, and sold under the pledge. The garnishee statute, while not expressly providing for the holding of this particular personal property under garnishment process, yet does hold personal property and certain choses in action. The maker of a promissory note may be garnished after its maturity, if it is then owned by the principal defendant. Somers v. Losey, 48 Mich. 294. The statute in Minnesota is very similar to our own, and in Banning v. Sibley, 3 Minn. 389, 405, it was held that shares in a railroad company were liable to be taken on garnishee process. The court said: “There being nothing in the nature of the property itself which exempts it from process of execution or attachment, no valid reason can be given why it should not be reached by this process, which is, in effect, but another form of attachment, and intended to reach a class of cases in which the ordinary writ is of no avail.” See, also, Storm v. Cotzhausen, 38 Wis. 139; La Crosse Nat. Bank v. Wilson, 74 Wis. 391.

The judgment must be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Long, C. J.

license: Public Domain

text:
    PEOPLE v. HUNTLEY.
    1. Convicts—Crime Committed in Prison—Sufficiency of Information.
    Under section 64 of Act No. 118, Pub. Acts 1893, making convicts in prison for any term other than life, who commit any crime, subject to the same punishment as if the crime had heen committed elsewhere, and section 65, providing that the warrant issued in such case shall be made in the ordinary form, and be directed to the warden of such prison, and that it shall set forth that the accused is imprisoned by authority of the laws of the State, an information against a convict for assault with intent to kill, which contains all the averments required by the statute to be set forth in the warrant, is sufficient ; it being unnecessary to allege in detail the prior conviction and sentence of the respondent, and the lawfulness of his detention. People v. Hamaher, 92 Mich. 11, distinguished.
    2. Same—Constitutional Law—Statutes—Object Germane to Title.
    Act No. 118, Pub. Acts 1893, entitled “An act to revise and consolidate the laws relative to the state prison, to the state house of correction, * * * and the government and discipline thereof, and to repeal all acts inconsistent therewith,” does not embrace an object not expressed in its title, in that it contains a provision (section 64) for the punishment of convicts committing crimes in prison.
    3. Same—Gruel and Unusual Punishment.
    The punishment prescribed by the statute, being the same as if the crime had heen committed at any other place or by a person not so confined, is not “cruel and unusual.”
    4. Same—Double Punishment.
    The fact that the warden of the prison may, by section 40 of the act, punish convicts for misconduct, does not render section 64 invalid as providing a second punishment for a single offense, the former section being designed merely to aid the authorities in maintaining discipline, and not to provide a punishment for crime.
    5. Same—Sentence to Commence in the Future—Uncertainty.
    A convict imprisoned in state prison, convicted of a crime committed therein, may be sentenced to imprisonment to begin at the expiration of the term which he was serving at the time such offense was committed, although the date of the expiration of such term is uncertain, under Act No. 132, Pub. Acts 1887, § 3, authorizing the term of sentence in such case to commence forthwith, or at the expiration of the term of sentence the convict may be serving at the time.
    6. Same—Statutes—Repeal.
    Act No. 132, Pub. Acts 1887, § 3, which provides for the sentencing of a convict serving a term in state prison, is not inconsistent with, and hence is not repealed by, Act No. 118, Pub. Acts 1893, which revises and consolidates the laws relative to the state prison, and repeals all inconsistent acts.
    Error to Jackson; Peck, J.
    Submitted February 4, 1897.
    Decided May 11, 1897.
    Edward Huntley, William Curley, and William Boot were convicted of assault with intent to do great bodily harm less than murder, and sentenced to imprisonment for 10 years in the state prison at Jackson.
    Affirmed.

      Eugene Pringle, for appellants.

      Elmer Kirkby, Prosecuting Attorney (Charles A. Blair, of counsel), for the people.
   Long, C. J.

The information in this cause charges that the respondents, on, to wit,—

“The 26th day of November, 1895, at the city of Jackson, in said Jackson county, they, the said Edward Huntley, William Curley, William Boot, and William Maloney, being then and there convicts imprisoned, for a term other than life, in the state prison at the city of Jackson, within said county, under and by the authority of the laws of the State of Michigan, with force and arms in and upon one Albert C. Northrup, then and there being, did make an assault, and him, the said Albert C. Northrup, then and there did beat, wound, and bruise, with intent him, the said Albert C. Northrup, then and there to kill and murder, and other injuries to him, the said Albert C. Northrup, then and there did, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

To this information the respondents demurred. The demurrer was overruled, and the respondents thereafter filed pleas in abatement. The prosecuting attorney demurred to these pleas, and the- demurrer was sustained. William Maloney asked for a separate trial, which was granted. Upon the trial of all the respondents, except Maloney, they were convicted. Sentence was pronounced against Edward Huntley upon the verdict of the jury, in part reciting:

“It appearing to the court, from the evidence adduced, that the said Edward Huntley was at the time said crime was' committed, and now is, a convict confined in the state prison at Jackson, in said State, serving an unexpired sentence therein, imposed upon him by the recorder’s court of the city of Detroit on the 12th day of April, A. D. 1888, for the period of 20 years from and including said day, and that the crime of which he is convicted in this cause was committed by him within said state prison: Therefore it is ordered and adjudged by the said court now here that the said Edward Huntley be confined in the state prison at Jackson, in this State, at hard labor, for the period of 10 years, to commence at the expiration of the term he was so serving under his said sentence by said recorder’s court when the crime for which he is now sentenced was committed.”

The former sentences of the other two respondents, Curley and Boot, it appears, would soon expire; and therefore the court sentenced each of them to be confined in the state prison at Jackson at hard labor for the period of 10 years from and including the day of sentence.

On the trial, the three respondents being tried together, the prosecution called George R. Stone as a witness, and, before he had given any testimony, the attorney for respondents objected to any testimony being given under the information, alleging that it did not charge any offense known to the laws of this State. This objection was overruled, and respondents’ counsel excepted. Witnesses were sworn upon the part of the people, and also of the respondents, from which it appears that Edward Huntley was held as a convict in the state prison at Jackson. The people then offered in evidence a mittimus. Counsel for respondents objected to the introduction of this, for the reason, as stated by him, that “it does not show a conviction for any crime known to the laws of this State.” This mittimus shows the conviction of Huntley on April 12, 1888, on a trial before a jury, “with having, on the 27th day of. March, 1888, committed the crime of burglary, being armed with a dangerous weapon, to wit, a pistol loaded with powder and balls, at the city of Detroit, Wayne county, Michigan.” Evidence was also introduced showing that the information in that case was filed in the recorder’s court of the city of Detroit; that respondent, Huntley, pleaded orally thereto, “Not guiltythat he was the same Edward Huntley as the one on trial. The information was also produced and put in evidence, and charges substantially that—

“Mathew Monahan and Edward Huntley, late of said city of Detroit, in the county aforesaid, on the 27th day of March, 1888, at the said city of Detroit, at about the hour of 1 in the night-time of said day, with force and arms, the dwelling house of Edmund Austin, there situate, feloniously and burglariously did break and enter, with intent the personal property, goods, and chattels of him, the said Edmund Austin, in said dwelling house being found, then and there feloniously and burglariously to steal, take, and carry away; he, the said Edmund Austin, at the time of the breaking and entering aforesaid, being lawfully in said dwelling house, and they, the said Mathew Monahan and Edward Huntley, being then and there armed with a dangerous weapon, to wit, a pistol, loaded with powder and balls, contrary to the form of the statute in such case made and provided.”

Other evidence was also offered on the part of the people showing that respondent Huntley took part at the time mentioned in the information in an assault within the state prison at Jackson upon Albert 0. Northrup, and there was also evidence tending to show the intent with which the assault was committed, which, if believed by the jury, and the respondent was properly charged in the information, was sufficient to sustain the verdict.

After the conviction of Huntley, he moved in arrest of judgment, setting out:

1. That he has been prosecuted while serving a sentence other than for life, upon a previous conviction, in the state prison at Jackson, which sentence was not imposed upon him after he had served a second term in said prison.

2. That this respondent is at said prison placed in the class of convicts and entitled by law for allowances for good conduct or “good time;” and it is indefinite and uncertain when the term of his present sentence will expire.

Like motions were entered in behalf of respondents Curley and Boot, and the motions denied.

In the case of William Curley, like proceedings were had, and like testimony was offered to sustain the conviction. The information in the case of Curley recites substantially that—

“William Curley, late of said city of Detroit, on the 17th day of June, 1892, at said city of Detroit, in the county aforesaid, at about the hour of 10:35 in the nighttime of said day, with force and arms, the dwelling house of Julius Stoll, there situate, feloniously and burglariously did break and enter, with intent the goods and chattels of him, the said Julius Stoll, in said dwelling house then and there being found, then and there feloniously and burglariously to steal, take, and carry away, no person lawfully therein being put in fear.”

This conviction was on the 26th day of August, 1892, and he was sentenced to the state prison at Jackson for the period of five years from that date, as appears by the record. Respondent Boot was convicted in the county of Ottawa, August 24, 1894, of the crime of larceny from the person, and sentenced to imprisonment in the state prison at Jackson for three years from and including that day. In each of the cases it appeared that a mittimus was produced by the clerk of the prison, and that it was delivered to him by the officer in charge of each respondent at the time of reception at the prison. The introduction of each mittimus was objected to, on the ground that it was neither a certified transcript from 'the minutes of the court, nor a warrant under the seal of the court, requiring the convict to be removed from the county jail to the state prison.

The first contention made by counsel for respondents is as to the sufficiency of the information under which they were convicted. The information does not state as to any one of the respondents a conviction or sentence of any court, or for any crime committed, except that it states that they were convicts, imprisoned for a term other than life in the state prison at the city of Jackson, within said county, under and by authority of the laws of the State of Michigan. It is contended that it was necessary to prove such convictions and sentences, and therefore necessary to state the same in the information, as any fact necessary to be proved to make the act complained of a crime is matter of substance in an indictment, and what is necessary to be proved must be. alleged.

Section 64 of Act No. 118, Pub. Acts 1893, provides:

“Any convict now or hereafter confined in any prison for any term other than life, who, during the term of such confinement, shall commit any crime punishable under the laws of this State by imprisonment in such institution, shall be subject to the same punishment as if the crime had been committed at any other place or by a person not so confined.”

Section 65 provides for the jurisdiction of the circuit court in which the prison is situated, and that the proceedings shall in all ways conform to the law and rules in cases of like offenses occurring elsewhere,—

“Except that the examination may be held in one of the offices of the penal institution where the crime is committed, at the option of the justice of the peace before whom the complaint may be made, and that the warrant shall be made in the ordinary form, shall be directed to the warden of such prison, and shall set forth that the accused is imprisoned in such prison under and by authority of the laws of the State of Michigan; and, further, that the convict so confined shall remain in the custody of such warden, subject to the order of the circuit court of the county in which such prison is located.”

We think the information was sufficient. It did set out that the respondents were properly and lawfully confined within the state prison. Section 65 prescribes what the warrant shall contain, and the information does contain all the essentials therein required to be set forth in the warrant. These sections add nothing to the penalties which the law had already pronounced. They make no new offense. They enable the court to obtain jurisdiction for the trial of those already under sentence, and imprisoned within the state prison. Before the passage of the statute, the courts were powerless to entertain or prosecute inquiries or take proceedings with reference to crimes committed within the state prison; and the purpose of the statute was to provide a mode for the conviction of offenses there committed. But counsel for respondents cites the case of People v. Hamaker, 92 Mich. 11, as supporting his contention that these facts must be alleged in the information. In that case the respondent was discharged by this court, for the reason that it did not appear that the convict he assisted to escape was lawfully held. The prosecution was had under section 9245, 2 How. Stat., which provides that—

“Every person who shall convey into any jail, prison, or like place of confinement any disguise, or any instrument, tool, weapon, or other thing adapted or useful to aid any prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, * * *, shall be punished by imprisonment in the state prison,” etc.

It will be noticed that this statute provides a punishment to any person who does any of these acts with intent to facilitate the escape of a prisoner lawfully committed or detained. In the statute under consideration there is an entire absence of any language to convey the inference that the legislature intended that the lawfulness of the conviction or detention should be a necessary prerequisite to a conviction. It simply has reference, as before stated, to the manner of proceeding, and is designed to give to the court jurisdiction to punish persons confined within the state prison to the same extent and for like offenses as if committed by persons who are outside of the prison. In the Hamaker Case the information did not show that the person aided was lawfully committed. The commitment did not show that fact, and there was no evidence of that fact upon the trial.

But it is contended that Act No. 118, Pub. Acts 1893, is unconstitutional. The reasons for this claim are set out in the demurrer. The constitutionality of the act was attacked in Fuller v. Attorney General, 98 Mich. 96, and in Attorney General v. Parsell, 99 Mich. 381, but not upon the ground here claimed. The act was also before us in Re Canfield, 98 Mich. 644. In each case the act has been upheld. In its title it is:

“An act to revise and consolidate the laws relative to the state prison, to the state house of correction and branch of the state prison in the Upper Peninsula, and to the house of correction and reformatory at Ionia, and the government and discipline thereof, and to repeal all acts inconsistent therewith.”

Section 32 provides for the punishment of persons aiding a prisoner to escape; section 48, for conveying persons convicted in any county to the state prison; and section 49, for the payment of fees therefor. Section 54 provides for the writ of habeas corpus to bring persons confined in the prison before a court for the purpose of giving testimony in criminal cases; section 60, for the auditing of the accounts of the warden by the auditor general. Section 64 provides for the punishment for crimes committed in the state prison by convicts confined therein; and section 65, for the mode of procedure in such cases. The general object and scope of the act are stated in the title. It is to consolidate the laws of these different prisons, and provide for the government and discipline thereof, and the different-sections point out the manner in which its object is to be accomplished. The fact that it provides penalties for violations does not render the act invalid. Hartford Fire Ins. Co. v. Raymond, 70 Mich. 485, 499, and cases there cited.

It is said, however, that the act prescribes cruel and unusual punishment. We think this assertion needs no refutation. The punishment is fixed by the act itself, and is in the same degree as though the crime were committed outside the prison walls.

But it is claimed that a prisoner may be'twice punished for the same offense, as by section 40 he may be punished by the prison authorities, and by sections 64 and 65 he may be subject to trial, conviction, and further imprisonment. Section 40 was not intended to provide for the punishment of such crimes as those covered by sections 64 and 65. It was intended merely for the good government of the prison, and to aid the officers thereof to maintain discipline, while sections 64 and 65 were intended to provide punishment for crimes committed therein.

It is next contended that no valid sentences can be imposed upon the respondents, as they are now serving valid sentences, and it cannot be determined when their present sentences will expire, and when the new sentences will begin. The sentences of the respondents, except Edward Huntley, commenced at the day they were pronounced; so that no uncertainty exists as to time in their cases. In reference to respondent Huntley, his sentence is to begin at the expiration of his present term. He was first sentenced for the period of 20 years from and including the 12th day of April, 1888. While it is not certain when this first term will expire, as he may gain time by good behavior, yet it is certain, whenever his first term does expire, his new sentence will begin. In Re Bloom, 53 Mich. 597, it was said: “We have no statute providing for such sentences, and, in the absence of statutory provision therefor, the question presented is hot without difficulty.” In Re Lamphere, 61 Mich. 105, the same difficulty was encountered, and it was said in reference to cumulative sentences: “As we have no statutes on the subject, we must, in our opinion, wait until the legislature shall see fit to devise adequate means to avoid these difficulties.” This decision was rendered at the April term, 1886. At the session of the legislature in 1887, Act No. 132, Pub. Acts 1887, was passed. Sections 1 and 2 of that act are substantially the same as sections 64 and 65 of the act of 1893, above quoted. Section 3 of the act of 1887 provides:

“If, on the trial of any such cause, the accused shall be found guilty, the term of sentence imposed for such offense may, at the discretion of the court pronouncing judgment in such cause, commence forthwith, or at the expiration of the term or terms of sentence such accused convict may be serving at the time of the commission of the offense for which he may be committed, or, if such term or terms shall have expired at the time of such sentence, then at the time fixed therein.”

Undoubtedly, the legislature had in mind, at the time this act was passed, the difficulties suggested in Re Lamphere. Under this statute there can be no doubt of the power of the court to pronounce the sentence upon the respondents.

But it is contended by counsel for respondents that this section of the act of 1887 was repealed by Act No. 118, Pub. Acts 1893. The act of 1893 was a revision and consolidation of the former acts, and to repeal all acts inconsistent therewith. While the general rule is that statutes and parts of statutes omitted from a revision are to be considered annulled,, and not to be revived by construction, yet there are many exceptions to this rule. A revisal repealing all acts repugnant to the provisions .thereof cannot affect statutes which are omitted, and which are not repugnant to its provisions. State v. Pollard, 6 R. I. 290. The rule of implied repeal is clearly inapplicable also where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions of earlier acts as are inconsistent with it, which is regarded as a declaration that it shall repeal only such provisions, and leave unaffected such as are not inconsistent. End. Interp. Stat. § 203; Patterson v. Tatum, 3 Sawy. 164; Lewis v. Stout, 22 Wis. 234; Gaston v. Merriam, 33 Minn. 271. Applying these rules to the present case, it must be held that section 3 of the act of 1887 was not repealed. The court therefore had power to impose the sentence, commencing after the former sentence shall have expired.

We find no error in the record in any of the cases, and the, judgment below must be affirmed.

The other Justices concurred.


author: Moore, J.

text:
    JOSEPH v. BRAUDY.
    1. Sale—Executory Contract—Identification of Goods.
    Plaintiffs accepted in writing defendant’s offer to sell them a quantity of scrap iron for a stated price per ton, as follows: From 650 to 700 tons of No. 1 wrought, seen by the purchasers’ agent; about 80 tons of heavy mixed country steel, also seen by the agent; one car load of horseshoes; and one car load of fiat steel sheet car rails. Defendant refused to ship, and plaintiffs brought replevin. The rails were not in defendant’s yard when the agreement was entered into, and were not seen by the agent. Held, that, all of the items not being specifically identified by the agreement, title did not pass to the plaintiffs.
    3. Replevin—Judgment—Collusion.
    A prevailing defendant in replevin, on waiving a return of the property, is entitled to nominal damages only, and not to a judgment for its value, where, a few minutes after the property was nominally turned over to the plaintiff by the sheriff, without in fact being removed from defendant’s possession, it was delivered to third persons, acting in collusion with the defendant, upon a second writ.

      Error to Kent; Grove, J.
    Submitted February 3, 1897.
    Decided May 11, 1897.
    Replevin by Joseph Joseph and another against Max Braudy. From the judgment rendered, all parties bring error.
    Reversed.

      T. J. O’Brien and James H. Campbell, for plaintiffs.

      Frank A. Rodgers (Fletcher & Wanty, of counsel), for defendant.
   Moore, J.

This is an action of replevin brought by plaintiffs to recover a quantity of iron they claim to have bought of defendant. Trial was had before the circuit judge, who made a finding of facts and of law. Both parties appeal. The iron involved consisted of four piles of iron which lay in the yard of defendant. The agent of the plaintiffs saw the iron June 19, 1895, and negotiated for its purchase, and the parties agreed upon terms. To indicate their agreement, the following paper was drawn:

“Office of M. Braudy, Dealer in Old Rails, Scrap Iron, and Metals. Office and Yard, 10 to 20 Alabama St.
“Grand Rapids, June 19, 1895.
“Jos. Joseph & Bros.,
Cincinnati, Ohio.—
Gentlemen: We hereby accept the offers of your Mr. Leonard Joseph for the following material, f. o. b. cars Grand Rapids, we guaranteeing a rate of $1.80 gross ton to Muncie, Ind., and Marion, Ind. (Grant Co.): From (650) six hundred and fifty tons to (700) seven hundred tons of No. 1 wrought, which has been seen by Mr. Leonard Joseph, at the price of $9.55 (nine dollars and fifty-five cents) per net ton, f. o. b. Grand Rapids; also, about ( 30) thirty tons heavy mixed country steel, as seen by Mr. Leonard Joseph, at the price of $8.25 (eight dollars and twenty-five cents) per gross ton, f. o. b. Grand Rapids; one car load of horseshoes, at $9.55 (nine dollars and fifty-five cents) per net ton, f. o. b. Grand Rapids; and one car load of flat steel sheet car rails, at $8.65 (eight dollars and sixty-five cents) per gross ton, f. o. b. Grand Rapids, or f. o. b. point where rate is equivalent; terms cash. We also agree to cancel all claims in regard to the transaction of iron and steel rails shipped to Lockport, Ills., Washington, Ind., Cincinnati, O., and Newburgh, O.
“Tours, truly,
“M. Braudy.
“Accepted: J. J. & B. per Leonard Joseph.”

The paper was delivered to Leonard Joseph, who took it away. Some correspondence ensued after this between the parties. The iron was not shipped. Plaintiffs deposited enough money in a bank at Grand Rapids to pay for the iron, which they authorized their attorney to draw out, and notified defendant that the iron would be paid for as fast as weighed, and requested him to ship the iron. He refused to do so. No'formal tender was made of money to pay for the iron, and this suit was brought. The circuit judge found that the title to the iron passed to the plaintiffs, but that they were not entitled to the possession of the iron at the time the suit was brought, because no payment or sufficient tender was made.

The first important question to be considered is, did the title to theu property pass from defendant to plaintiffs ? As bearing upon this feature of the case, in addition to what has already been said, the record discloses that June 26, 1895, defendant wrote plaintiffs, among other things:

“ I have sold No. 1 wrought, and I told Leonard Joseph that I will ship the two piles as they run, which Mr. Leonard Joseph has seen,-one pile that lies in the shop, and one that lies in the yard. * * * All that you have to do is to order me to ship so many car loads to the place you wish it shipped, to your order.”

Later he wrote:

“Now, what I want you to do is to release me from the $1.80 rate, and I will ship the iron.”

Still later he wrote:

“The iron, if you want it, has got to be shipped right off, as I do not sell iron to be delivered two or three months after.”

Was the judge warranted in finding from this evidence that the title passed? It is urged upon the part of the defendant that the amount of the iron of the various qualities was not ascertained at the time the contract was made, and could not be told until the iron was drawn to the cars, and weighed. It is urged that the quality of the iron was subject to further scrutiny, and the contract provided in express terms for the payment in cash for the iron, delivered on the cars, and it also provided for the sale of one car load of flat sheet steel car rails, amount not stated, which had never been seen by plaintiffs or their agent, which was to be shipped from a point not then agreed upon, and that these things, taken in connection with the surroundings of the transaction, indicate that the parties did not intend the title to pass, and that it did not in fact pass. The case is difficult to place, as it is on the border line between the cases where the title unquestionably does pass and those where it does not. The contract is to be treated as an entirety. The property cannot be sufficiently identified so it can be said just what property was sold. It does not appear that the car load of flat steel sheet car rails was in the yard at Grand Rapids, or was ever seen by the agent of the plaintiffs; and the contract does not identify it from any other carload of flat steel sheet car rails. It cannot be said that the parties had agreed upon all of the specific property which was to be sold. We think the case is governed by First Nat. Bank v. Crowley, 24 Mich. 492; Lingham v. Eggleston, 27 Mich. 324; Hahn v. Fredericks, 30 Mich. 223 (18 Am. Rep. 119); Story, Sales, § 296; 2 Kent, Comm. 492, note y; and that the title did not pass from defendant to the plaintiffs.

The defendant waived a return of the property, and the trial judge gave him a judgment for over $7,000. The record shows that, after the writ of replevin was issued, the iron was not removed from the yard where it was found by the sheriff, and, though the return of the sheriff shows the iron was delivered to the plaintiffs, it in fact never did go into their possession. A few minutes after the property was nominally turned over to the plaintiffs by the sheriff, a writ of replevin was put into the hands of the sheriff, which writ was sued out by Henry Silberman and others against Joseph Joseph and Samuel Joseph, and the property was delivered to the plaintiffs in the second suit. The record also discloses that the same attorneys who acted for the defendant in the first replevin suit appeared as attorneys for the plaintiffs in the second suit. The defendant in the first suit also appeared as bondsman for the plaintiffs in the second suit, so that we cannot resist the conclusion that the defendant in the first suit and the plaintiffs in the second suit were acting in concert. As the case now stands, the plaintiffs in the first suit had never had the title to the iron or the iron itself, or any proceeds from it, and are confronted by a judgment of more than $7,000 for something from which they never received any benefit. We do not think this judgment ought to stand. Defendant should have had a judgment for nominal damages and costs of the court below.

Judgment is reversed, and judgment entered here for nominal damages in favor of defendant; neither party to recover costs in this court.

The other Justices concurred.


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    BEECHER v. FERRIS.
    1. Adverse Possession—Trial—Instructions.
    An instruction in ejectment that plaintiff’s adverse possession would become perfect with the lapse of 15 years,- even if he originally had no shadow of title, if such possession was so open that any other person could bring suit to eject him, sufficiently presents the point that plaintiff need not show any deed, survey, or plat as evidence of ownership to entitle Mm to recover.
    2. Same—Fences—Boundaries—Estoppel.
    The fact that a land owner puts up a fence inside of Ms boundary line, without knowing where the line is, will not estop him from subsequently removing it to the true line, unless the adjoining owner has in the meantime acquired title by adverse possession.

    Error to Wayne; Donovan, J.
    Submitted February 5, 1897.
    Decided May 11, 1897.
    Ejectment by George L. Beecher against Alfred Ferris and Osman B. Canney. From a judgment for defendants, plaintiff brings error.
    Affirmed.

      Henry M. Cheever, for appellant.

      John Galloway and Henry M. DuBois, for appellees.

       The authorities as to adverse possession due to ignorance or mistake in respect to boundary are collected in a note to Preble v. Maine Cent. R. Co., (Me.) 21 L. R. A. 829.

   Long, C. J.

This is an action of ejectment to recover possession of a strip of land 2 feet wide and 115 feet long. It is the strip extending southward from the barn, as shown on the plat in the case of Beecher v. Ferris, 110 Mich. 537. In that case the controversy arose over a strip 2 feet wide and 16 feet long, being the land on lot 5 covered by the barn. There, as here, the controversy arose over the question of plaintiff’s continuous adverse possession of the strip for a sufficient length of time to ripen into a title. The question there was fully and fairly submitted to the jury, and that judgment was affirmed in this court, the defendants having recovered in' the court below. In the present case the defendants also recovered.

Some contention is made that the court erred in the admission of certain of the testimony. We have examined these questions, and find no error, and shall not discuss them. .

The next contention is that the court erred in refusing to give plaintiff’s first request to charge, as follows:

“Plaintiff claims to recover upon what the law calls ‘adverse possession’ of this strip of land; and it is not necessary, to entitle him to recover, that he should show any deed or survey or plat, or anything of that kind, as evidence of ownership.”

The court refused this request, but counsel for defendants contend that the giving of the third request cured the error, if any error was committed. The third request reads:

“Plaintiff’s adverse possession would become perfect with the lapse of 15 years, even if plaintiff originally had no shadow of title, provided such adverse possession was so open that any other person could bring suit to eject the plaintiff.”

We think the third request substantially covered what was asked in the first request.

Some contention is made that the court erred in modifying the plaintiff’s seventh, eighth, tenth, and eleventh requests. These requests all proceeded upon the theory that, when Mr. Ferris built the fence, he put it upon the true line. He testified that at that time he did not know where the true line was; that all of Mr. Beecher’s property was open common, and he built his fence to keep the cattle out, and not as a boundary line fence; that, when he had it surveyed, he found where the line was, and moved the fence upon the true line. We think all these questions were fully and fairly submitted to the jury. The controversy is over this disputed boundary. The fact that Mr. Ferris put a fence there without knowing where the line was would not estop him from putting his fence on the true line, unless Mr. Beecher had acquired title to the disputed strip by adverse possession. This question was left to the jury.

The judgment must be affirmed.

The other Justices concurred.


author: Grant, J.

text:
    FRENCH v. WEISE.

    Appeal prom Justice’s Court—Discontinuance op Suit —Revival op Judgment.
    The discontinuance by a plaintiff in the circuit court of a suit appealed by him from justice’s court, wherein defendant had judgment of no cause of action, does not revive said judgment, so as to render it a bar to a suit for the same cause of action subsequently instituted by the plaintiff in the circuit court.
    Error to Wayne; Hosmer, J.
    Submitted April 6, 1897.
    Decided May 11, 1897.

      Assumpsit by Albert E. French against Charles Weise for work and labor performed. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.
    Plaintiff brought suit in justice’s court, was defeated, and took a general appeal to the circuit court. The attorney for plaintiff entered his appearance in the circuit court, and, before any appearance by defendant, caused an order to be entered discontinuing the suit. This suit was then brought in the circuit court for the identical cause of action as that in the former suit, and plaintiff recovered judgment. Defendant gave notice of the former suit as a bar to the present one.

      George Gartner (E. A. Stricker, of counsel), for appellant.

      James H. Pound, for appellee.

       Rehearing denied July 16, 1897.

   Grant, J.

(after stating the facts). Upon a general appeal from a justice’s court to the circuit court, the suit is for trial de novo, and is subject to the same rules as though originally brought in the latter court. 2 How. Stat. § 7014. Upon the dismissal or discontinuance of the appeal, the judgment of the justice’s court is revived. Id. §§ 7021, 7023. The discontinuance of an appeal provided for in the statute is not the same as a discontinuance of a suit pending in court. Plaintiff may, upon the trial, submit to a nonsuit, or voluntarily discontinue before trial, in a suit brought into the circuit court by appeal, as well as in one brought there by original writ or declaration.

The judgment is affirmed.

The other Justices concurred.


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    CITY OF DETROIT v. JUDGE OF RECORDER’S COURT.
    Taxes — Public Improvements—Assessments — Constitutional Law.
    The legislature has no power to fix an arbitrary percentage of the cost of a public improvement to be imposed upon a local assessment district, regardless of the benefits received. Act No. 467, Local Acts 1895, authorizing the city of Detroit to take private property for public use, and requiring at least one-half of the amount awarded as compensation tobe assessed upon the district fixed by the common council, is therefore unconstitutional.

      Mandamus by the city of Detroit to compel William W. Chapin, judge of the recorder’s court of Detroit, to vacate an order quashing condemnation proceedings.
    Submitted April 6, 1897.
    Writ denied May 11, 1897.
    The relator instituted proceedings under Act No. 467, Local Acts 1895, to open a street for public use, and to condemn private lands for that purpose. The respondent quashed the proceedings, holding the act to be unconstitutional. Section 2 provides that, when the common council of the city declare a public improvement to be necessary, they, shall pass a resolution declaring that they deem it necessary to take private property (describing it) for such public improvement. The section then has the following provision:
    “Before the institution of such proceedings, the common council shall, if it be their intention to assess any part of the damages awarded in such proceedings upon a special or local district, declare by resolution such purpose, and fix such district, embracing only such real estate as in their opinion will be specially benefited by the improvement, and they shall describe such district with reasonable certainty by well-known boundaries, so that all persons owning real estate in such district may readily ascertain the facts. ”

      Sections 3, 4, 5, 6, and 7 provide for proceedings prior to the summoning of the jury; sections 8 and 9 define the duties of the jury; and section 9 contains the following:
    “The jury shall also determine in their verdict what amount, if any, shall be assessed upon the property in the assessment district: Provided, that such property in said assessment district shall in no case be assessed for less than one-half of the tptal amount so awarded as compensation. Said .amount shall be stated in said verdict at a certain gross sum, which sum shall be assessed upon the property in the assessment district as hereinafter provided.”

      Charles Flowers and C. D. Joslyn, for relator.

      John J. Speed, for respondent.
   Grant, J.

(after stating the facts). The power of taxation granted by this act is not one of necessity conferred upon the State, involving the right to apportion to each political subdivision of the State its share of the public burdens. The sole ground for imposing a part or all of the cost of a public improvement upon one part of a municipality is that the part burdened with the cost receives corresponding benefits, which the general public does not receive. The rule is so clearly and concisely stated in State v. City of Newark, 27 N. J. Law, 190, that we quote it:

“The theory upon which such assessments are sustained as a legitimate exercise of the taxing power is that the party assessed is locally and peculiarly benefited, over and above the ordinary benefit which, as one of the community, he receives in all public improvements, to the precise extent of the assessment.”

Where a statute authorized the expense of paving a roadbed to be assessed, two-thirds on the property abutting the street, and one-third on the public at large, it was held unconstitutional. Agens v. Mayor, 37 N. J. Law, 415. So a law directing such an assessment as the commissioners should deem “just and equitable” was held unconstitutional because it did not direct the fact to be found that the property was benefited to the amount of the tax imposed. Barnes v. Dyer, 56 Vt. 469; New Brunswick Rubber Co. v. Commissioners, 38 N. J. Law, 190. The same principle is approved in the following cases: Stuart v. Palmer, 74 N. Y. 183 (30 Am. Rep. 289); Chamberlain v. City of Cleveland, 34 Ohio St. 551; City of Bridgeport v. Railroad Co., 36 Conn. 255 (4 Am. Rep. 63); Dyar v. Village of Farmington, 70 Me. 515; Hammett v. City of Philadelphia, 65 Pa. St. 146. A multitude of other cases might be cited. We are cited to none holding to the contrary. Applying this rule to this act, it must be declared void. It contains no provision which requires the assessment upon the local district to be in proportion to the benefits received. The common council are not required to determine, when they establish the district, to what extent it is benefited. The jury are required to assess one-half upon the assessment district, regardless of whether it is benefited to that extent, and are clothed with power to assess a larger amount only when they conclude that the benefit exceeds 50 per cent. The legislature has .no power to fix an arbitrary percentage of a public improvement to be imposed upon a local assessment district, regardless of the benefits received.

It follows that the writ must be denied.

The other Justices concurred.


author: Hooker, J.

text:
    MATTHEWS v. FORSLUND.
    1. Evidence—Implied Admissions.
    Statements by one who conducted a mercantile business for his wife, that certain accounts transferred by him to his brother were to be used in paying the wife’s creditors, are admissible in evidence as the admissions of the assignee, where they were made to creditors in the assignee’s presence and were not contradicted by him.
    2. Equity—Assignment of Accounts—Parol Trust.
    Parol evidence is admissible in equity to show that an assignment of accounts, though absolute in form, was made upon an understanding that they should be collected by the assignee, and the proceeds held in trust for the assignor’s creditors.
    3. Same—Remedy at Law—Adequacy.
    A creditor is not precluded from pursuing in equity a fund so held in trust by the fact that he has taken a judgment at law against the debtor, and has attempted to collect the same by garnishment of another fund.
    Appeal from Gogebic; Haire, J.
    Submitted April 6, 1897.
    Decided May 11, 1897.
    Bill by John B. Matthews and others against Mathilda Forslund and others to enforce a trust. From a decree for complainants, defendants appeal.
    Modified and affirmed.

      John D. Barry, for complainants.

      Buck & Waples, for defendants.
   Hooker, J.

The bill of complaint was filed in this cause for the purpose of enforcing an alleged trust. Charles Forslund had been conducting a grocery and meat business for his wife, Mathilda Forslund, and, a short time before the bill was filed, a written assignment of all accounts owned by Mathilda was made by her to John Forslund, a brother of Charles, and the accounts delivered. It is claimed by the complainants that this assignment, though absolute in form, was made upon the understanding that the accounts were to be collected by John, and used to pay the debts of Mathilda. It is contended by the defendants:

1. That the evidence fails to show the creation of a trust, and does show that the accounts were assigned in payment of an indebtedness to John.

2. That complainants have an adequate remedy at law, having taken judgment against Mathilda Forslund, which they sought to collect, in whole or in part, by garnishee proceedings.

John Forslund testified to the transaction wherein the assignment was made, and he said that Mathilda was indebted to him to the extent of $500, and assigned the accounts in payment. The books of Mathilda Forslund showed a balance of $565 to John Forslund’s credit. The bookkeeper, sworn for complainants, testified on cross-examination that he was present when John’s account was made up, and stated to him the amount that was due him. He “heard nothing said between Mathilda and John, when the account was made up by her, to the effect that these accounts would be transferred to pay any debt she was owing him, or about his collecting these accounts to pay the creditors of Mathilda,” though he “understood the accounts were turned over to pay the balance due him.” On re-direct examination he said that he did not hear the talk between John and Mathilda when the accounts were transferred.

The testimony in support of the bill consisted mainly of statements made by Charles Forslund in the presence of John, to the effect that he had transferred these accounts to John, to be collected and used in the payment of her (Mathilda’s) creditors. It is contended that statements of Charles Forslund cannot bind his wife or brother. They appear to have been introduced upon the theory that, not being contradicted by John Forslund, they may be treated as admissions by him; and we think them admissible for that purpose. The circuit judge has found that these accounts were transferred to John upon an arrangement to apply the proceeds to the payment of Mathilda’s creditors, and we think his finding of fact should not be disturbed.

The transfer was evidenced by a formal written assignment, executed by Mathilda Forslund. This contained nothing to indicate that it was not an absolute sale of the accounts, and, if there was any trust, it rested in parol. The circuit judge found that a parol trust was agreed upon, and that, in furtherance of such arrangement, a formal assignment was made to transfer the accounts. This writing was a mere incident of the agreement. It does not constitute the contract, nor is it necessarily the only evidence of the contract. As in the case of a deed, the circumstances under which it was given may be shown, and in either case it is possible for equity to find upon parol evidence that the writing absolute upon its face was given for security or in trust.

The claim that complainants have an adequate remedy at law, because they have taken judgment upon their claims, is not conclusive of their right to pursue the trust fund in equity, and we think there is nothing inconsistent with the present claim in an effort to reach another fund by garnishment.

We are of the opinion that the decree of the circuit court should stand, with a slight modification. Its benefit should not be limited to creditors who have intervened in the cause, but should include such as may hereafter seasonably do so. With this change it will be affirmed, with costs of this court against the defendants personally.

The other Justices concurred.


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    WHELPLEY v. STOUGHTON.
    1. Married Women—Promissory Notes—Consideration.
    A note executed, by a married woman for the surrender of a note of the same amount against her husband, and to prevent the payee therein from attempting to collect the same by attacking a transfer to her by her husband of all his property on the claim that such transfer was voluntary and in fraud of creditors, is supported by a sufficient consideration to make it binding on her separate estate.
    2. Same—Evidence—Question for Jury.
    In an action on a promissory note, wherein defendant, a married woman, introduced no evidence, plaintiff’s testimony that he originally held the husband’s note for the same amount, that the latter transferred to the defendant all of his property, that defendant thereupon promised, in consideration of plaintiff’s forbearing to attack the transfer as fraudulent, to pay the debt, that a new note was then executed by the defendant and her husband, and that such note had been kept alive by renewals for 19 years, was sufficient to go to the jury upon the question as to whether defendant’s promise was in fact made upon such consideration, though the husband testified that there was some consideration for the transfer to his wife.
    3. Same—Admissions of Husband.
    Admissions by the husband, not brought home to the wife, relative to his purpose in transferring to her his property, were properly excluded. Wright v. Towle, 67 Mich. 255, followed.
    Error to Van Buren; Buck, J.
    Submitted April 7, 1897.
    Decided May 11, 1897.

      Assumpsit by Henry Whelpley against Clarissa S. Stoughton on a promissory note. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      T. J. Cavanaugh, for appellant.

      Lincoln H. Titus, for appellee.
   Hooker, J.

The principal legal question in this case is whether a married- woman’s note is supported by a sufficient consideration to make it binding upon her separate property where it is given for the surrender of, and to prevent the payee from attempting to collect, a note of the same amount against the husband, by attacking the validity of the transfer by said husband to the wife of all his property, including a farm worth about $8,000, upon the claim that such transfer was voluntary and in fraud of his creditors. Many decisions of this court support the proposition that the executory contract of a married woman is not binding upon her, unless made upon a consideration involving or relating to her separate estate. As to this she may contract, even to the extent of giving a mortgage for her husband’s debt. The record shows that the defendant had title, by deed from her husband, to valuable property. This deed was given at a time when the plaintiff held a promissory note against him. It is asserted that the husband, at the time of giving these deeds, conveyed to the defendant all of his property subject to execution. If, as contended, this was a voluntary conveyance, such property (although defendant’s separate property, under a deed valid as against the husband) was subject to the plaintiff’s claim in a court of equity. And this is true if the consideration was nominal, or so grossly inadequate as to warrant the conclusion that the conveyance was fraudulent as against creditors. If, under these circumstances, and to relieve herself from an attack upon the property conveyed, she saw fit to promise to pay the husband’s debt, to relieve what had become her separate property from liability, it was a contract in relation to her own property, and valid.

It is said that the evidence does not show that this was the situation, but clearly shows the contrary. The plaintiff produced testimony tending to show that he learned that the defendant’s husband had conveyed all of his property to his wife, and deeds of premises said to be worth $8,000 were introduced. Plaintiff at once charged defendant and her husband with this, and threatened (in substance) to attack the transfer; and the defendant asked that he would not distress her, and said that, if he would not, she would pay the debt. Thereupon a new note was given by her and her husband. This was about 19 years ago, and the debt has been kept alive by renewals, and the defendant has been undisturbed in her claim to the property. No testimony was offered by the defendant. Her husband was called as a witness for the plaintiff, and admitted the conveyance of his real and personal property to his wife, the latter upon an alleged consideration of $200. He stated that she paid some consideration for the land, but what does not appear. We think this raised a question for the jury, who should have been permitted to determine whether the note was given to prevent a threatened attack upon her separate property.

The offered admissions of the husband, not being-brought home to the defendant, were properly excluded. See Wright v. Towle, 67 Mich. 255.

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


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    HAND v. AUDITOR GENERAL.
    Taxes—Sale oe Land—Withholding Deed.
    Under Act No. 154, Pub. Acts 1895, § 98, subd. 4, authorizing the auditor general to withhold a conveyance of lands sold for delinquent taxes if he discovers that the proper officer has given a certificate that no taxes were charged against the land, a deed is properly withheld by the auditor where it appears that, three months before the sale, the owner of the land was given by the county treasurer what purported to be a statement of all taxes due upon his property in the city wherein the land in question was located, and that the owner thereupon paid the entire amount so claimed.

      Mandamus by Charles E. Hand to compel Eoscoe D. Dix, auditor general, to issue to relator a tax deed of certain lands.
    Submitted April 6, 1897.
    Writ denied May 11, 1897.

      John M. Gleason and Phillips & Jenks, for relator.

      Fred A. Maynard, Attorney General (Elbridge F. Bacon, of counsel), for respondent.
   Long, C. J.

The relator filed a petition in this court for mandamus to compel the auditor general to issue to him a deed of certain lands in St. Clair county. It appears that the lands were returned for delinquent taxes for the year 1893. Regular proceedings were taken in the circuit court, in chancery, for that county, for the sale of the lands, and the sale ordered to take place December %, 1895. At said sale the lands were offered, and, for want of bidders, were struck off to the State. The lands were so held at the time the relator made application to purchase the State bid. He tendered the amount of money required for that purpose, but the respondent refused to issue the deed. The respondent by his answer shows that the reason for such refusal is that Homer Warren is the owner of the lands, and has tendered the amount of money necessary to pay and discharge said tax; that on August 28, 1895, and before the time fixed by law for the sale of lands delinquent for the taxes of 1893, Homer Warren wrote the county treasurer of St. Clair county, asking for a statement of the taxes due upon all his property in the city of Port Huron, and on the 29th the deputy county treasurer wrote him what the amount was, which amount was sent forward by Mr. Warren; and that Mr. Warren relied upon such statement. The respondent says that, in view of these facts, he refused to issue the deed to the relator.

Counsel for relator contend that the auditor general had no power, under the tax law, to receive the money from the owner after he (relator) had made application to purchase and had tendered his money. Section 98 of Act No. 154, Pub. Acts 1895, provides, substantially, that whenever any lands returned to the office of the auditor general shall have been sold on account of nonpayment of taxes thereon, if the auditor general shall discover, before a conveyance of said lands is executed and delivered—First, that the land sold was not subject to taxation ; second, that the taxes have been paid to the proper officer within the proper time; third, that the sale was not made in accordance with law; or, fourth, that the proper officer has given a certificate that no taxes were charged against the land,—he shall withhold a conveyance, etc. We are of the opinion that the auditor general very properly withheld the deed from the relator. The correspondence between Mr. Warren and the deputy county treasurer has been returned here, from which it appears that Mr. Warren made every reasonable effort to pay his taxes. He wrote to ascertain what lands were still held for taxes, and the amount thereof, and was advised of the amount, and that all taxes were paid except on certain descriptions, and that on those descriptions there was due $68.10. This Mr. Warren paid. It is apparent that Mr. Warren was acting in good faith. The relator is an entire stranger to the proceedings, and we think that, under subdivision 4 of section 98, the auditor general very properly refused the conveyance. The letter of the deputy county treasurer amounted, in effect, to a statement that no taxes were charged against these particular lands.

The writ of mandamus must be denied, with costs against the relator.

The other Justices concurred.


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    CRAWFORD v. BYRNES.
    Certiorari—Justice’s Judgment—Review in Circuit Court.
    The office of the writ of certiorari is to try questions of law; and the circuit court, therefore, has no authority, on certiorari to a justice of the peace, to reverse a judgment which is supported by competent testimony, merely because it arrives at a different conclusion upon the facts.
    Error to Shiawassee; Smith, J.
    Submitted April 7, 1897.
    Decided May 11, 1897.

      Assumpsit by Robert D. Crawford against Daniel Byrnes for commissions on the sale of lands. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff brought suit in justice’s court to recover a commission on the sale of defendant’s farm. Trial was had by the justice without a jury, and judgment rendered against the plaintiff, who took the case to the circuit court by the writ of certiorari, claiming that the justice, upon the proofs, should Rave rendered judgment for him for $100, the amount of his claim. The circuit court reversed the judgment, and rendered one for the plaintiff. The sole question is, do the proofs support the judgment ?

      Selden S. Miner, for appellant.

      Lyon & Hadsall, for appellee.
   Grant, J.

(after stating the facts). The office of the writ of certiorari is to try questions of law. McGraw v. Schwab, 23 Mich. 13. Where there is any testimony to support the judgment, the appellate court will not review it. Plaintiff gave testimony tending to show that defendant offered him $100 if he would sell his farm for $4,500; that, soon after, plaintiff took a man named Martin to see it, and that, several months afterwards, defendant sold it to Martin’s' wife for $4,000. Defendant admitted that he offered plaintiff $100 if he would find a purchaser at $4,500, but testified that all plaintiff did was to bring Martin there to see the place; that Martin was a stranger to him, and that, when he went again to see the place, he did not know that he was the man who had been there with plaintiff; and that he finally sold to Martin’s wife for $4,000. Martin was a witness for plaintiff, and testified that he did not intend to buy the farm at $4,500, and should not have again gone to look at it if he had not heard that defendant had offered it for $4,000; that defendant did not know witness; that plaintiff demanded a commission from witness, and that he denied buying the farm under any supervision from plaintiff. It is unnecessary to further state the testimony. The conclusion was for the trial court, and will not be reviewed on certiorari.

Judgment reversed, and the judgment of the justice’s court affirmed, with the costs of all the courts.

The other Justices concurred.


text:
    TOWNSHIP OF BANGOR v. SMITH TRANSPORTATION CO.
    1. Takes—Collection by Township—Action at Law.
    Under section 40 of Act No. 206, Pub. Acts 1893, providing that taxes assessed on personalty shall become at once a debt to the township from the person to whom they are assessed, and 1 How. Stat. § 737, making the supervisor the proper agent of the township for bringing suits, an action at law may be instituted by a township, under the authority of its supervisor, to enforce the payment of such taxes as its treasurer has failed to collect.
    2. Same.
    The right of action conferred upon the township by section 40 is independent of that which is derived from sections 55 and 56, providing for the collection of such delinquent taxes by the treasurer of the township upon warrant issued by the county treasurer.
    Error to Bay; Maxwell, J.
    Submitted April 9, 1897.
    Decided May 11, 1897.

      Assumpsit by the township of Bangor against the Smith Transportation Company to collect a tax assessed on personal property. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Simonson, Gillett & Courtright, for appellant.

      T. A. E. & J. C. Weadock, for appellee.
   Grant, J.

For a statement of this case we refer to 106 Mich. 223. The present record is the same as that, except that it is now shown that the suit was authorized by the supervisor of the township. Section 40 of Act No. 206, Pub. Acts 1893, is as follows: “The taxes thus assessed shall become at once a debt to the township, ward, or city from the persons to whom they are assessed,” etc. The supervisor is the agent of the township for bringing suits. 1 How. Stat. § 737. We have, therefore, a valid debt due the township, and the proper officer authorizing the suit. The authorities cited by counsel for defendant involve the action of the township treasurer and his authority to bring the suit, and hold that he must follow the statute. Where the treasurer has failed to collect, and the taxes are made a debt due to the township, we see no legal objection to the institution of suit by the authority of the supervisor to enforce payment.

The judgment is affirmed.

The other Justices concurred.


text:
    LAMMIMAN v. DETROIT CITIZENS’ STREET RAILWAY CO.
    1. Evidence—Physicians and Surgeons—Privilege.
    In an action for personal injuries, a physician cannot testify, over plaintiff’s objection, for what ailment he treated hex-prior to the accident; the information being privileged under 2 How. Stat. § 7516.
    •2. Same—Remoteness.
    Where, in an action for personal injuries tried one year after the accident occasioning them, evidence was introduced on both sides for the purpose of showing plaintiff’s physical condition before and after the injuries, the testimony of the physician who was attending the plaintiff at the time of the trial, as to the condition of her nervous system during the time he had attended her, was not too remote, although he did not begin to treat her until two months before the trial.
    3. Married Women—Personal Injuries—Damages.
    A married woman whose husband is a non-resident, and has lived apart from her for six or seven years, during which time she has px-ovided her own support, may, in an action for personal injuries, recover for medical attendance, although the physician’s bill was unpaid when the suit was commenced.

      Error to Wayne; Daboll, J., presiding.
    Submitted April 9, 1897.
    Decided May 11, 1897.
    Case by Kittie M. Lammiman against the Detroit Citizens’ Street Railway Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Brennan, Donnelly & Van De Mark, for appellant.

      F. J. Riggs and Lehman Bros., for appellee.
   Moore, J.

Plaintiff recovered a judgment against defendant of $1,600 for personal injuries received by her. Defendant appeals. The defendant concedes that the plaintiff has a cause of action against it, but contests the litigation on the ground that the damages claimed are excessive.

On the cross-examination of the plaintiff, it appeared that prior- to the injury she had obtained medicine for a stomach trouble of Dr. Barclay. She denied that he had treated her for bladder and other troubles to which her attention was called. Dr. Barclay was called by the defendant. The inquiry was made of him for what ailment he treated plaintiff prior to the accident. The question was objected to as being a privileged one, because of the relationship of patient and doctor. We think the question is made by the statute a privileged one. 2 How. Stat. § 7516; Briggs v. Briggs, 20 Mich. 34; Storrs v. Scougale, 48 Mich. 387.

This case was tried in June, 1896,—one year after the accident occurred. Dr. Linn attended the plaintiff as her physician for the two months immediately preceding the trial, and was her physician at the time of the trial. He was permitted to answer the question, “What is now, and what has been, the condition of her nervous system, as long as you have been treating her?” This testimony was objected to upon the ground that the time was too remote from the time of the accident. The record shows that testimony was introduced upon both sides for the purpose of showing the physical condition of Mrs. Lammiman from a period prior to the accident up to the time of the trial. We think the testimony of Dr. Linn was competent.

Dr. Linn was allowed to testify as to the amount of his bill for attending the plaintiff as her physician. The objection to this was not very definite, but it is urged here that, as the bill had not been paid when the suit was brought, the plaintiff could not recover the amount of it; and it is also urged that, as plaintiff is a married woman, the husband, and not the wife, is liable for medical bills. It appears from the record that the husband of plaintiff is not a resident of this State. Mrs. Lammiman has not lived with him for six or seven years, during which time she has supported herself by clerking in stores and by teaching music. Under the circumstances disclosed by the record, we think the testimony was competent. The other assignments of error are covered by the disposition of those discussed.

Judgment is affirmed.

The other Justices concurred.


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    PEOPLE, for use of SMITH, v. COLLINS.
    Public Works—Contractor’s Bond—Laborers and Material Men.
    Plaintiffs entered into a subcontract with a paving contractor by which they agreed to excavate, according to grades and approval of engineer, certain portions of the roadway; to unload and place in the roadway, by means of tracks and cars, a specified quantity of crushed stone; and to unload and place in the roadway all the curbstone to be used on the work, according to the orders of the foreman in charge. In addition to the services rendered under the written contract, plaintiffs, pursuant to an oral agreement, furnished to the contractor a car load of crushed stone, and drew and unloaded a quantity of crushed stone in wagons. Held, that, with respect to the services performed and materials furnished outside of the written contract, the plaintiffs were laborers and material men, and entitled as such to enforce their claim against the sureties on the contractor’s bond.
    Error to Wayne; Lillibridge, J.
    Submitted April 9, 1897.
    Decided May 11, 1897.

      Assumpsit by the People of the State of Michigan, for the use and benefit of Frank Smith and Anthony H. Reynolds, against. Henry Collins, as principal, and John C. McDonald, Charles P. Collins, and Henry Houghten, as sureties, upon a statutory bond. From a judgment for plaintiffs on verdict directed by the court, defendant sureties bring error.
    Affirmed.
    This suit is based entirely upon the oral agreement referred to in the opinion, it being conceded that the plaintiffs, with respect to the written contract, were subcontractors.

      Harlow P. Davock, for appellants.

      Edwin Henderson, for appellees.
   Hooker, J.

Henry Collins constructed certain pavement in the city of Detroit under a contract and specifications made by himself and the city authorities. The other defendants are sureties upon the statutory bond given by Collins for the protection of laborers and material men, under 2 How. Stat. §§ 8411b, 8411c, and 3 How. Stat. § 8411a. This action is brought upon the bond, and the defendants who appeal deny liability, upon the ground that the plaintiffs’ claim is that of subcontractors, and not for labor or materials furnished in any other capacity. The undisputed testimony shows that the following contract was made between Collins and the plaintiffs:

“Memorandum of agreement made this 22d day of March, A. D. 1893, between Henry Collins, party of the first part, and Frank Smith and Anthony H. Reynolds, doing business under the firm name of Smith & Reynolds, of the second part, all of the city of Detroit, Michigan, witnesseth: Said parties of the second part covenant and agree to and with the said party of the first part to excavate, according to grades and approval of engineer and superintendent, all that piece of boulevard roadway between the turn at Hendrie street to Gratiot avenue, fifty-foot (50) roadway, and from Gratiot to Mack avenue, thirty-foot (30) roadway, and to dispose and place said material to a distance of one-half a mile, as per superintendent’s orders, for twenty-five (25) cents per cubic yard, engineer’s measurements. Said parties of the second part also agree with said party of the first part to unload and place on roadway, by means of track and cars furnished by party of the first part, ten thousand (10,000) cubic yards of crushed stone, more or less, for eighteen (18) cents per cubic yard, said stone to be unloaded from railroad cars at the Boulevard siding of the M. C. Belt Line. Said parties of the second part also agree to unload all the curbstone to be used on work, and place on roadway, according to orders of foreman in charge of said work, for three (3) cents per lineal foot, straight curb, and five (5) cents for circles; engineer’s measurements to govern. Money payments to be made at least once a month, as per estimates of the park and boulevard commissioners.
“In witness whereof, we have hereunto set our hands and seals this 22d day of March, A. D. 1893.
“Henry Collins,
“Smith & Reynolds.
“Witness: Thomas J. Tully.”

The work mentioned in this contract was fully performed, and all was paid for. In the course of the work it became necessary to draw some crushed stone in wagons, and an oral agreement was made whereby the plaintiffs drew and unloaded 2,000 yards of such stone at an agreed price of 30 cents a yard. They also furnished a, car load of crushed stone, for use upon the work, which was worth §19.20. The amount was ascertained from the estimates and books of the park and boulevard commission. It is said that this last item does not appear to have been used upon the portion of the boulevard covered by the contract to which the bond relates. Our attention is not called to any evidence that it was used elsewhere, and the testimony of the plaintiff Smith implies that it was used in connection with this work, which is the only work mentioned. Counsel did not take the trouble to cross-examine the plaintiff about the matter, and nothing indicates that this claim was made at the trial. That this work was done upon a contract is not disputed, but it does not necessarily follow that it was not labor, within the meaning of the statute, for all labor in such cases is performed upon contract. We have held that contracts to work upon or furnish materials for a contractor for use in building are not necessarily and always subcontracts. The subject has been discussed in the cases of Avery v. Ionia Board of Supervisors, 71 Mich. 538; Owen v. Hill, 67 Mich. 43; Sterner v. Haas, 108 Mich. 488; People, for use of Hirth, v. Powers, Id. 339. We are of the opinion that the services rendered and the material furnished are covered by the bond, and that the learned circuit judge did not err in directing a verdict for the plaintiffs.

The judgment is affirmed.

The other Justices concurred.


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    ROEDER v. NIEDERMEIER.
    Sureties—Contribution.
    The right of a surety, who pays a judgment against his principal, to contribution from his co-surety, is not lost by the fact that he has accepted a conveyance of the principal’s land, to be sold for the best price obtainable, the proceeds applied to the payment of such sums as he may be obliged to pay as surety, and the balance paid over to the principal, since the transaction amounts, not to a sale in consideration of the surety’s undertaking to pay the entire amount of the obligation, but to a transfer of the property in trust by way of security inuring to the benefit of both sureties.
    Appeal from Monroe; Kinne, J.
    Submitted April 14, 1897.
    Decided May 11, 1897.
    Bill by Jacob Boeder against Frederick Niedermeier and Charles Mainzinger to set aside a deed, alleged to have been made in fraud of complainant’s right to contribution. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Charles A. Golden and Willis Baldwin, for complainant.

      Landon & Lockwood, for defendants.
   Hooker, J.

The complainant and defendant Niedermeier were co-sureties for 'one Schmelzer upon an executor’s bond, upon which a judgment was rendered on February 26, 1895, for the sum of $6,964.97. An execution was levied upon several parcels of land the record title to which was in complainant, and a parcel of land which Niedermeier owned up to the day before the entry of judgment, when he deeded it to defendant Mainzinger. The complainant thereupon paid the judgment, and filed the .bill in this cause, praying an accounting and contribution as against Niedermeier; that the conveyance to Mainzinger be decreed fraudulent; that complainant be subrogated to the rights of the execution creditor, and the premises subjected to the execution for the amount that shall be found due to him from Niedermeier.

The defendants allege two reasons why complainant’s bill should be dismissed, viz.:

1. That Schmelzer had paid complainant for assuming the entire amount.

2. That the conveyance to Mainzinger was not fraudulent.

The first of these propositions is predicated upon the following transaction: Complainant was surety for Schmelzer upon a guardian bond in the estate of one Grauf, which was given in 1884. In the year 1892 a settlement of Schmelzer’s account as guardian showed him in debt to his ward to the amount of $1,527.99, for which the complainant was liable as surety upon the bond mentioned, whereupon a deed of certain real estate and an assignment of personal property were executed and delivered to the complainant; the considerations named in the instruments being, respectively, $7,000 and $1,000. These writings were absolute in form, but were subject to mortgages and liens amounting to $1,976.64; and at the time they were given the complainant executed and delivered the following writing to Schmelzer, viz.:

“ Whereas, Christian Schmelzer has this day conveyed to me a house and lots and store lot described in said deed of conveyance, and his household furniture, fixtures, and goods, I do hereby promise and agree to and with said Christian Schmelzer as follows: I will sell said property for the best price I can obtain for the same, and will pay to said Schmelzer so much of the proceeds of said sale as shall be left, if any, after the payment of such sum or sums as I may be obliged to pay as surety upon the guardianship bonds of said Schmelzer in the estate of Minnie Grauf et al., minors, and estate of William Roeder et al., minors, and as administrator of estate of Mary Roeder, deceased.
“Jacob Roeder.
“Dated December 3, 1892.”

This property has since been in the possession of complainant, it having been occupied in whole or in part by Schmelzer, for a time after the sale, upon an agreement to pay rent; but he failed to do so, and vacated the premises, which complainant has since rented to others, it being claimed by him that neither he nor Schmelzer (to whom he says he gave the privilege of selling the same) has been able to find a purchaser. Both seem to agree that the consideration named in the deed was made $8,000 at Schmelzer’s request, with a view to its aid in making an advantageous sale, and we are satisfied that the sum named was nearly or quite double its actual value. The defendants contend that this transaction amounted to a sale, upon the undertaking of the complainant to pay the amount of Schmelzer’s obligations upon both bonds. Complainant, on the other hand, maintains that the property was taken in trust by way of security, and that he is willing to have it sold, and any balance left after satisfying the guardian’s bond applied to the Roeder judgment for the equal benefit of himself and his co-surety, Niedermeier. While the circuit judge dismissed the bill upon the hearing, it is significant that he did so without prejudice to future proceedings for contribution, from which it is inferable that he was not convinced that the complainant was under an obligation to Schmelzer to pay this judgment. An examination of the testimony has convinced us that the complainant’s contention is the just one. That the instruments, taken together, gave Schmelzer a right to redeem the property upon payment of the two claims, would be held by a.ny court of equity. It contains no express promise to pay anything.

The case appears to have turned upon the honesty of the transaction between these defendants. The judge saw the witnesses, and evidently was convinced that there was no collusion in the transaction. But we think the testimony is quite convincing that thp transfer was made to prevent the collection of this judgment, and it was not justified by a claim that it should be wholly paid by the complainant. Many circumstances indicate a knowledge of Niedermeier’s condition, and a willingness to aid him. Mainzinger’s own testimony shows that Niedermeier is defending the case, and that he has no fear of loss in the matter if complainant should be granted the relief prayed. Under these circumstances, we think he cannot equitably ask that Niedermeier’s creditors should suffer a loss,

We therefore adjudge that the deed from Niedermeier was fraudulent as to the Roeder estate and the complainant. Niedermeier is liable to the complainant for his half of the judgment debt, which we understand to be $7,067.-74, with interest from May 20, 1895; and the premises are adjudged subject thereto, except that the indebtedness assumed by Mainzinger shall have precedence. Main-zinger shall be credited with one-half of any amount that has been or may be realized from the Schmelzer property, after the payment of the liens subject to which complainant took it, and the amount of the Grauf indebtedness. The cause will be remanded to the circuit court, with directions to take an accounting of the property received by the complainant from Schmelzer, and to cause said property to be sold, and applied first to the payment of the pre-existing liens thereon, and complainant’s claims arising out of the Grauf matter, the remainder, if any, to be applied upon the execution in this case, and thereafter to cause the amount remaining due to be collected from the premises in controversy (unless defendants shall pay the same) and paid to the complainant, who is entitled to be subrogated to the rights of the judgment creditor in the premises. Complainant will recover costs of both courts.

The other Justices concurred.


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    RAUCH v. SEIP.
    Mortgages—Taxes—Interest.
    The mortgagee in a mortgage which provides that the mortgagor shall pay interest “at the rate of 6 per cent, per annum if the mortgagee pays the taxes, or otherwise, if the mortgagor pays all taxes assessed on the mortgage, to be computed at 5½ per cent.,” is entitled to interest at 6 per cent, where no assessment whatever is made upon the mortgage.
    Error to Monroe; Kinne, J.
    Submitted April 14, 1897.
    Decided May 11, 1897.

      Assumpsit by John H. Rauch against Mathias E. Seip to recover an alleged overpayment of interest on a mortgage. From a judgment for defendant, plaintiff brings error.
    Affirmed.
    This case originated in justice’s court, where plaintiff had judgment for $4.40, and, on appeal to the circuit court, was tried before the court without a jury, resulting in a judgment in favor of defendant for costs. The excuse given by counsel for appellant for bringing it to this court is that there are many other cases in Monroe county of the same character, and. that this is a test suit. Plaintiff executed a mortgage to the defendant, in which the mortgagor agreed to pay all taxes, “particularly all taxes which shall be assessed under the provisions of Act No. 200, Pub. Acts 1891, upon said premises, including the taxes upon the mortgage interest of said party of the second part in and to said premises by virtue of this mortgage, and that such payments shall not be treated as payments on the interest or principal of the mortgage.” The mortgage also provided that the mortgagor should pay interest “at the rate of 6 per cent, per annum, provided second party pays the taxes, or otherwise, if the first party pays all taxes assessed on this mortgage, to be computed at oi per cent.” By the stipulated facts it appears that the supervisor, in making the assessment of defendant’s property in 1894, asked about these notes. Defendant said that he had them, but that he owed debts to that amount, and asked to have the notes set off, which the supervisor allowed, and no further assessment was made on the said mortgage and notes. .Plaintiff and defendant agreed that plaintiff should pay the interest at 6 per cent., and bring an action in assumpsit to test the question.

      Charles A. Golden, for appellant.

      Landon & Lockwood, for appellee.
   Grant, J.

(after stating the facts). The mortgage was not assessed to the plaintiff, and he has not paid any tax upon it. The court was therefore right in holding that defendant was entitled to his interest at 6 per cent.

The judgment is affirmed.

The other Justices concurred.


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    PFEIFFER v. MICHELSEN.
    Implied Contracts—Work and Labor.
    That plaintiff boarded defendant, and did his washing and mending, for an agreed price per week, will not preclude a recovery by her upon an implied contract for extra services as a nurse, where there is nothing to show that they were to be included under the express contract.
    Error to Wayne; Lillibridge, J.
    Submitted April 13, 1897.
    Decided May 11, 1897.

      Assumpsit by Gertrude Pfeiffer against Henry Michelsen for services as nurse. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    The defendant had boarded with the plaintiff since the year 1886. At first he paid $5 per week, then $7. The defendant was adjudged incompetent, and a guardian appointed, July, 1894. Plaintiff brought suit to recover for services as nurse from June 1, 1891, to November 13, 1894. She claimed $15 per week. Her testimony tended to show that he was afflicted with a loathsome disease, which caused running sores, which she dressed daily. She recovered a verdict.

      George X. M. Collier, for appellant.

      William E. Henze, for appellee.
   Grant, J.

(after stating the facts). The theory of the defendant is that there could be no recovery upon an implied contract, for the reason that plaintiff was paid a full and specified sum per week for board, and that the jury should have been instructed that they must find for the defendant unless an express contract to pay for nursing was proven. The court might with propriety have given this instruction, since three witnesses testified positively to a promise on the part of the defendant to pay for these services, and there was no testimony to the contrary. Aside, however, from the testimony of an express contract, the jury would have been justified in finding an implied one. The services rendered were not included in the contract for board, washing, and mending. There is nothing in the circumstances of the hiring, or of the services, to show that either party contemplated that the nursing of the defendant while ill was included in the contract for board. If plaintiff had made a suit of clothes for the defendant, the law would have implied a promise to pay, unless the circumstances were such as to show that the work was done as a gift, and without expectation of pay. So an agreement to pay for services as nurse will be implied under the same circumstances. There was nothing in the relation between these parties to indicate any reason for supposing that she intended to perform this disagreeable and offensive work for nothing, or intended it as a gift or charity. The case was therefore submitted to the jury under the proper instructions.

Errors are assigned upon the admission of testimony. We find no errors in these rulings, and do not discuss them, because they are not of sufficient importance to the profession.

Judgment affirmed.

The other Justices concurred.