text:
    SHADFORD v. ANN ARBOR STREET RAILWAY CO.
    1. Master and Servant—Duty as to Appliances.
    An employer is not in duty bound to furnish his employés the safest known appliances and instruments, but he discharges his duty towards them in that respect if he furnishes appliances which are in common and general use throughout the country in the same or similar lines of work.
    2. Same—Facts Conclusively Shown—Instructions.
    In an action by an employé for personal injuries alleged to have been sustained by reason of an unfit appliance furnished by the employer, it is error to submit to the jury the question whether the particular kind of appliance was commonly used by other employers in the same line of work, -where defendant’s evidence that it was so used is in no way controverted.

      Error to Washtenaw; Kinne, J.
    Submitted October 9, 1896.
    Decided January 5, 1897.
    Case by John H. Shadford against the Ann Arbor Street Railway Company for personal injuries. From a iudgment for plaintiff, defendant brings error.
    Reversed.

      Isaac N. Payne (Robert Young, of counsel), for appellant.

      A. J. Sawyer, for appellee.
   Long, C. J.

On September 29, 1894, plaintiff, then about 23 years of age, was employed by the defendant company in the capacity of a lineman, and was engaged with one Wilson in constructing a curve in the trolley wire of defendant’s street-railway equipment at the junction of Wells street and Forest avenue, in the city of Ann Arbor. In the performance of his work, plaintiff stood on a platform of the dimensions of 8 by 4 feet, erected upon a common lumber wagon. This platform was about 14 feet above the ground, the workmen being protected by a railing, 2 feet high, erected on three sides of the platform. Plaintiff was endeavoring to fasten a guy wire to the trolley wire, in order to produce the curve necessary. To do this he used a hand vise, to which was fastened a strap. The vise was screwed to the guy wire, the strap thrown over the trolley wire, and the trolley wire drawn into position. The plaintiff then attempted to fasten the slack of the guy wire into the goose necks attached to the trolley wire. To do this he passed under the trolley wire, and into the inside of the curve made •by that wire. He put one arm over the trolley wire. At this instant the vise failed to hold the guy wire, the trolley wire was violently released, and the plaintiff was hurled to the ground, sustaining injuries which nearly paralyzed both limbs, and from which he has never recovered. The trial in the lower court resulted in a verdict and judgment for plaintiff. . Defendant brings error. On the trial the plaintiff contended that the railing around the platform was too low to properly protect the workmen ; that the hand vise used was an improper and unsafe tool for the work required; that it was also defective; that plaintiff was not properly instructed in its use; that a device known as a “come along” should have been used; that plaintiff was not guilty of contributing to his own injury. The court submitted those questions to the jury. But defendant contends:

1. That the evidence is conclusive that the defendant supplied tools that were safe.

2. That it was not bound to furnish the plaintiff with tools of the latest device or pattern, but, if the tool furnished was such as was in common and general use by other companies doing like work, the defendant had discharged its duty to the plaintiff.

3. That the evidence is conclusive that the vise was in common use by other companies.

But one question need be considered, as the evidence is conclusive that the vise was in no way defective, and that is whether the tool furnished was such as was in general use by other companies doing like business. Neither individuals nor corporations are bound, as employers, to insure the absolute safety of the machinery or appliances which they provide for the use of their employés; nor are they bound to supply the best or newest of those appliances for the purpose of securing the safety of those who are thus employed. Washington, etc., R. Co. v. McDade, 135 U. S. 554. In Sisco v. Railway Co., 145 N. Y. 296, the court say:

“The employer does not undertake with the employé that he will use the very best appliances, nor is he called upon to discard machinery adopted by him in his business reasonably suited therefor, although there may be other machinery that may be safer. He is bound to the exercise of reasonable care in providing machinery and appliances, in view of all the circumstances. Still less is the master to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on proof that another method or appliance is better or safer, when both methods or both kinds of appliances are in common use._ * * * Proof that it was dangerous is not enough,”—citing Frace v. Railroad Co., 143 N. Y. 182; Flinn v. Railroad Co., 142 N. Y. 11.

See, also, Titus v. Railroad Co., 136 Pa. St. 618 (20 Am. St. Rep. 944); Kehler v. Schwenk, 144 Pa. St. 348 (27 Am. St. Rep. 633); Louisville, etc., R. Co. v. Allen’s Adm’r, 78 Ala. 494, 503 (28 Am. & Eng. R. Cas. 514).

In the latter case, it was said:

“We conceive the correct and just rule to be that a railroad company’s duty to its employés does not require it to adopt every new invention or appliance useful in its business, although it may serve to diminish risks to life, limb, or property incident to its service. It is sufficient fulfillment of duty to adopt such as are ordinarily in use by prudently conducted roads engaged in like business and surrounded by like circumstances.”

In Titus v. Railroad Co., supra, it was said:

“Absolute safety is unattainable, and employers are not insurers. They are liable for the consequences, not of danger, but of negligence; and the unbending test of negligence in methods, machinery,, and appliances is the ordinary usage of the business. No man is held by law to a higher degree of skill than the fair average of his profession or trade, and the standard of due care is the conduct of the average prudent man. The test of negligence in employers is the same; and, however strongly they may he convinced that there is a better or less dangerous way, no jury can be permitted to say that the usual and ordinary way, commonly adopted by those in the same business, is a negligent way, for which liability shall be imposed. Juries must necessarily determine the responsibility of individual conduct, but they cannot be allowed to set up a standard which shall in effect dictate the customs or control the business of the community.”

This rule is laid down in Hosic v. Railway Co., 75 Iowa, 683 (9 Am. St. Rep. 518); Vinton v. Schwab, 32 Vt. 614; Michigan Central R. Co. v. Coleman, 28 Mich. 449; Hagan v. Railroad Co., 86 Mich. 615.

There is no evidence in the present case that the vise was out of repair, and it is shown without contradiction that other street railways, as well as telephone and telegraph companies, used the same device. The court submitted to the jury the question as to whether other companies used this device as follows:

“If the jury find that the vise complained of as causing the accident was one of a kind in general use throughout the country, in the same or similar lines of work, and was not itself broken or defective, the defendant cannot be found guilty of negligence in the selection or use of the vise.”

We find no evidence in the case that the vise was not so used, and the court should not have submitted that question to the jury. The rule is well settled in this State that an employer cannot properly be held to be under so strict obligation to his servants as to be required, under all circumstances, to make use only of the safest known appliances and instruments, and to be held responsible for any failure to discard what is not such, and to supply its place with something better and safer. Fort Wayne, etc., R. Co. v. Gildersleeve, 33 Mich. 133. See, also, Chicago, etc., R. Co. v. Bayfield, 37 Mich. 205; Richards v. Rough, 53 Mich. 212; Sjogren v. Hall, Id. 274; McGinnis v. Bridge Co., 49 Mich. 469; Smith v. Potter, 46 Mich. 259; Piquegno v. Railway Co., 52 Mich. 44 (50 Am. Rep. 243). We are of the opinion that the court below should have directed the verdict in favor of defendant, as requested by counsel.

The judgment below will be reversed, and a new trial granted.

Grant, Montgomery, and Moore, JJ., concurred. Hooker, J., did not sit.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    HALL v. WAYNE CIRCUIT JUDGE.
    1. Receivers—Divestiture of Possession—Ex Parte Order. An order appointing a receiver pendente lite, and requiring property in the possession of mortgagees to be turned over to him, issued in a proceeding under 3 How. Stat. § 8749o, relating to voluntary assignments, and authorizing persons having preferred claims to apply for a receiver in certain cases, attempts to divest possession on a preliminary inquiry, and is therefore improvident, if not an absolute nullity.

      % Same—Mandamus.
    Such order being appealable, mandamus will not lie to set it aside.

      Mandamus by Thomas E. Hall and others, to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order appointing a receiver.
    Submitted October 20, 1896.
    Denied January 5, 1897.

      Julian G. Dickinson, for relators.

      Harry F. Chipman, for respondent.
   Hooker, J.

The circuit court in chancery made an order appointing a receiver, and requiring defendants to deliver over to said receiver all property constituting a stock of dry goods owned by Richardson and others, which was in the possession of other defendants as mortgagees. The bill was filed under 3 How. Stat. § 8749o, and the order was made pendente lite. A motion was made to vacate said order, which was denied,' and an application for mandamus to compel it is made.

This order attempts to divest possession of property on a preliminary inquiry, and, if not an absolute nullity, was improvidently made. Port Huron, etc., R. Co. v. St. Clair Circuit Judge, 31 Mich. 456; People v. Simonson, 10 Mich. 335; Barry v. Briggs, 22 Mich, 201; Sailing v. Johnson, 25 Mich. 489; People v. Jones, 33 Mich. 303; McCombs v. Merryhew, 40 Mich. 725; Tawas, etc., R. Co. v. Iosco Circuit Judge, 44 Mich. 481; Jones v. Schall, 45 Mich. 380.

But, as shown by most of the cases cited, and many others that might be cited, the order is appealable, and mandamus should not be resorted to in such cases, as we have repeatedly held. The case of Scott v. Wayne Circuit Judges, 58 Mich. 314, is in point. We must, therefore, deny the writ, but we have no doubt that the circuit judge will vacate the order upon a renewal of the application, and upon being advised of the view taken by this court. Neither party will be allowed costs.

The other Justices concurred.


author: Long, C. J.

text:
    SCHNEIDER v. DAYTON.
    1. Landlord and Tenant — Change of Possession — How Effected.
    A change of possession of a stock of merchandise from the merchant to the owner of the store building is effected, where the latter, on being informed by the merchant that he has sold the goods, and that he claims no further interest therein, acquiesces in a surrender of the lease, and thereafter watches and cares for the goods during litigation between the former tenant and the alleged purchaser.
    2. Same—Warehousemen—Liens.
    Although the landlord, to whom possession is so surrendered, may not be a warehouseman within the meaning of the statute, he is entitled to a lien as such as against the tenant, where he immediately advises the latter that he will make a claim for storage if the goods are not removed.

      3. Liens—Execution Levy—Title.
    Where it appears, in a proceeding to restrain an officer from interfering with the possession of goods held for storage charges, that the title to the goods was in a married woman, and that the officer levied thereon under an execution running against her husband, a decree establishing the lien for storage cannot be complained of by the officer.
    Appeal from Ingham; Person, J.
    Submitted October 21, 1896.
    Decided January 5, 1897.
    Bill by Fred Schneider against Sarah M. Dayton, William B. Stone, and Carl J. Loomis, to enforce a lien for storage. From a decree for complainant, defendant Loomis appeals.
    Affirmed.

      Cahill & Ostrander, for complainant.

      Arthur D. Prosser, for appellant.
   Long, C. J.

The bill in this case was filed to enforce a lien claimed by the complainant on a quantity of goods stored in his building, in the city of Lansing, this State. The cpmplainant is the owner of the building, which, for a term of years, was rented to George M. Dayton as a dry-goods and millinery store. Some time prior to January, 1895, the title to these goods had been transferred by mortgage foreclosure to his wife, Sarah M. Dayton, one of the defendants in this case. On or about the 5th of January, 1895, some arrangement was made by which Mrs. Dayton sold, or agreed to sell, the stock of goods to defendant Stone. During the taking of an inventory, Mrs. Dayton and Mr. Stone had some misunderstanding or dispute in reference to what the terms of the contract were, when the store was locked up, and the key deposited in the People’s Savings Bank, of that city. There was a considerable quantity of goods in the store, both on the main 'floor and in the basement. The complainant’s claim is that about January 5, 1895, Mr. Dayton, acting for his wife, notified the complainant that the goods had been sold to Stone; that the lease was surrendered, and that complainant must look to Stone thereafter for his rent; that, after spending some days in taking an inventory of the goods, Stone went away, declaring that he would not take them; that the Daytons claimed he must take them, and litigation ensued; that both the Daytons and Stone disclaimed any interest in the goods, refusing to take them away, and they were left in the store. The complainant thereupon had a talk with Mr. and Mrs. Dayton, in which he directed them to take the goods away, and told them that, if they did not, he should claim a lien on them for storage. They claimed not to own the goods, and stated that they surrendered their lease. It is admitted that the Daytons gave no express assent that the complainant should have a lien if the goods remained there, but they left the goods, and never removed them. Complainant thereafter caused a notice to be served upon Stone of what the Daytons claimed. The complainant claims that, while the goods remained in the store, he kept watch over the store to see that it was properly fastened up. While the goods were so in storage, and in January, 1896, the defendant Carl Loomis, who is a deputy sheriff of Ingham county, levied an execution upon them for the sum of $1,230. The execution was issued in favor of Clarissa Byam against George M. Dayton. It is not shown from the record just how Loomis obtained admission to the store to make this levy, but it is apparent that it was not with the consent of the complainant.

The complainant claims that, under these circumstances, he held the goods as warehouseman; and he offered proof tending to show that the storage of the goods was worth at 'least $50 per month, and asked an accounting for the amount of his claimed lien, and also for an injunction against defendant Loomis, restraining him from interfering with the possession of the goods, or with his (complainant’s) lien thereon, until such amount should be first paid. Upon the filing of the bill in the court below, an injunction was issued, as prayed, against Loomis, and on the hearing the court entered a decree finding that on January 5, 1895, Sarah M. Dayton was the owner of the goods in question; that she never parted with such title or ownership; that on January 5, 1895, she surrendered all her rights as a tenant in said store to the complainant, and at the same time left such goods and property in said store, and permitted the same to be stored there, after being notified by complainant that he would claim a lien thereon for his charges for storage. The court thereupon found that the complainant had a lien upon the goods, and that $50 per month was a reasonable charge for such storage, and payable so long as said goóds remained in said store, and that defendant Sarah * M. Dayton, or any of the defendants, might pay to the complainant the amount of such storage, but that, in default of such payment, the goods should be sold to satisfy such claim of lien; that the cost of the proceedings should also constitute a lien upon the goods. No personal decree was rendered against any of the defendants. From this decree, defendant Loomis alone appeals. It is contended by his counsel: ■

1. That there is no evidence upon which the court below could base a decree for complainant.

2. That the store in which the goods were stored is not a warehouse, and the complainant not a warehouseman, within the contemplation of the law governing and regulating warehouses and warehousemen.

3. That, at the time of the levy of the execution, the possession of the goods, as well as of the alleged warehouse, was in George M. Dayton.

4. That a verbal lien cannot be created, as ^against creditors.

5. That the complainant is estopped from claiming a lien, because it was his duty to advise Mr. Stone of his claim at the time he contemplated taking the goods from George M. Dayton, and that it was also his duty to advise defendant Loomis of his claim at the time the levy was made.

The contention that there has been no change of possession of the goods from the Daytons to the complainant, we think, is settled the other way by the evidence. The complainant asked that the goods be removed. Mr. and Mrs. Dayton both disclaimed any ownership in them, and insisted that the title had been transferred to Mr. Stone. They refused to have anything further to do with them, and claimed that they would be no longer bound by the lease. Apparently, the complainant acquiesced in the surrender of the lease, and made no further claim under it. He then notified Stone of the situation, but it is apparent that Mr. Stone made no claim to the goods, and he was not bound, by any contract with complainant', to pay rent or storage. The complainant was then put in the position of having the goods in his store with no party claiming ownership of them. He then asserted to the Daytons that he would insist upon a lien for storage. From that time forth he was the only person having possession. The only change of possession that could be made was the care and oversight which the complainant exercised; and, under the circumstances here, we think it was sufficient to put the goods into the possession of the complainant. The store was locked up. It was complainant’s store, and the lease under which the Daytons held had been surrendered by them.

While in fact the complainant may not have been’ a warehouseman, under the provisions of chapter 58,1 How. Stat., and Act No. 220, Pub. Acts 1895, as being employed in the business of a warehouseman, yet, as between himself and the Daytons, he had asserted his rights as such, and had made a claim of lien for store-age. As between those parties and himself, his lien was perfect, as it seems to have been assented to by the Daytons, inasmuch as they did not remove the goods.

It is to be remembered that the claim asserted by defendant Loomis is that the goods were the property of Mr. Dayton, and the execution ran against him, and the levy was made by Loomis upon the goods as the property of Mr. Dayton. But the court found that they belonged to Mrs. Dayton. The proofs support this finding. There was no evidence in the case that they did not belong to her. The court found that complainant had a lien. From this decree Mr. and Mrs. Dayton have not appealed. The goods belonging to Mrs. Dayton, defendant Loomis, under these circumstances, was not in a position in the court below, and is not in a position here, to assert any claim under his levy of execution, as he could not take the property of Mrs. Dayton to satisfy the debt of Mr. Dayton. The Daytons not having appealed, the decree, as to them, must stand; and, as to defendant Loomis, it must stand for the reason, among others, that the goods do not belong to Mr. Dayton, against whom defendant’s execution runs. Complainant will recover his costs of this court against defendant Loomis.

The other Justices concurred.


author: Grant, J.

text:
    DETROIT GAS CO. v. MORETON TRUCK & STORAGE CO.
    1. Gas Companies—Removal of Meter—Replevin.
    A gas company lias the right to remove its meter from a consumer’s premises where the consumer refuses to pay the cost of the service pipe in accordance with the agreement under which the meter was put in place, and may maintain replevin if delivery is denied.
    2. Damages—Personal Property—Deprivation of Use.
    Inconvenience, unaccompanied by any pecuniary loss, is not an element of damages for the deprivation of the use of personal property.
    Error to Wayne; Frazer, *J.
    Submitted October 23, 1896.
    Decided January 5, 1897.

      Replevin by the Detroit Gas Company against the Moreton Truck & Storage Company. From a judgment for defendant, plaintiff brings error.
    Reversed.

      Brennan, Donnelly & Van De Mark, for appellant.

      Julian CJ. Dickinson, for appellee.
   Grant, J.

Replevin. Property replevied: A gas meter of the value of six or seven dollars. The cause of the suit: The refusal of the defendant to pay a bill for furnishing 60 feet of gas pipe, and labor, to connect deféndant’s stables with plaintiff’s gas-pipe line. The amount of the bill rendered, according to plaintiff’s testimony, was $7.45; according to defendant’s testimony, $11.50. The suit was instituted in justice’s court, and was appealed to the circuit court, and then to this court. The circuit court held that title to the meter was in plaintiff, that the right of possession was in defendant, that plaintiff could not maintain the action, refused to award the return of the property, and directed the jury to assess damages to the defendant, which they did at the sum of $55. As long as the law permits.such petty suits to be appealed from one court to another till they reach the court of last resort, imposing expense upon litigants and the public, costing many times the amount involved, the courts must determine them upon legal principles, notwithstanding they take time which ought to be devoted to important suits.

Two, questions are presented:

(1) Had plaintiff the right to remove the meter ?

(2) If it had not that right, what is the measure of damages ?

In disposing of the first question, we shall assume that the defendant is liable for the reasonable cost of putting in the service pipe. It is conceded that the plaintiff owns the meter, and that ’it may remove the same for nonpayment of gas consumed. It is argued that the company could not remove it for nonpayment of the bill for making the connection and piping the defendant’s barn, and the court so instructed the jury. This involves a determination of the contract between the parties. The connection was made, the pipe furnished, and the meter put in for the sole purpose of furnishing gas to the defendant. The agreement to do these things and to furnish gas were parts of. the same contract. If the company may remove its meter for failure to comply with the one provision of the contract, it is difficult to understand why it may not for failure to comply with the other. The defendant agreed to pay for both. The plaintiff is under no obligation to continue to perform its part of the contract when the defendant has refused compliance. Under the defendant’s contention, the gas company might pipe a man’s building at great expense, for which he agreed to pay, and when it was done, and the meter in place, be compelled to furnish gas so long as he paid for the gas consumed, although he refused to pay the other bill. Suppose that, before the meter was put in, the man should refuse to pay, would the company be liable for damages for not putting in the meter? Would he be entitled to the meter without first paying or tendering the reasonable cost of piping? To these questions there can be but one answer. If A. agrees to place a machine, the title to which remains in A., upon B.’s land, and to do further work with it for B. after it is so placed, upon condition that B. pay the expenses of moving and placing the machine, and after A. has done this work B. refuses to pay, B. cannot say to A., “I will not pay you for moving and placing the machine, but you must keep it on my land and work it for my benefit so long as I pay you the agreed price for its use.” A. has two remedies. He may either remove his machine, or he may go on with his contract and sue B. for the labor performed. This practically illustrates the defendant’s position,—that plaintiff must continue to perform its part of the contract, while defendant violates its part. Its counsel cites no authority to support it. The present case is not one of the ordinary performace of labor or the furnishing ,of materials, unattended with any other conditions. We think the plaintiff was entitled to remove its meter, and to maintain the action of replevin upon refusal to deliver it.

There was no evidence to sustain the verdict for damages. The defendant did not show that it was entitled to any but nominal damages. After the meter was removed, it used lamps and lanterns, which were cheaper than gas. The court instructed the jury to ‘ ‘ give such damages as defendant is entitled to for being deprived of the convenience and use of gas, * * * and you must make up that estimate of damages as best you can under the testimony.” Inconvenience, unaccompanied by pecuniary loss, is not an element of damage upon being deprived of the use of property. No actual damage being shown, it was the duty of the court to instruct the jury that they could find only nominal damages.

Judgment reversed, and new trial ordered.

Long, C. J., and Moore, J., concurred with Grant, J. Montgomery, J., concurred in the result. Hooker, J., did not sit.


text:
    PEOPLE, ex rel. HOME LIFE INSURANCE CO., v. HOME LIFE ASSURANCE CO.
    Foreign Corporations—Similarity of Names.
    A foreign corporation doing business in Michigan in conformity to the laws of the State is not an organization of this State, within the meaning of 3 How. Stat. § 3960cZ3, forbidding corporations organized in this State from taking any name so closely resembling the name used by “any other organization of this State”, as to mislead the public as to its identity.
    Petition by the Home Life Insurance Company for leave to file an information in the nature of quo warranto against the Home Life Assurance Company.
    Submitted November 10, 1896.
    Denied January 5, 1897.

      James Stvan, for relator.

      John W. McGrath, for respondent.
   Grant, J.

The relator is a foreign corporation organized in the State of New York, and under the laws of that State. It has for some years been doing business in Michigan in conformity to the laws of this State, which permit foreign corporations to do business within its borders. The respondent is a new corporation, just organized by citizens of Michigan, and under its statute. The relator insists that the respondent is acting in violation of section 3960ci3, 3 How. Stat., which provides that “ corporations organized in this State shall not take any name in use by any other organization of this State, or so closely resembling such name as to mislead the public as to its identity.” The relator has filed this petition asking leave to file an information in the nature of a quo %varranto against the respondent for violating the above provision. Objection was made that the relator is not entitled to file such information, because it is not “a corporation of this State,” within the meaning of the law.

The contention must be sustained. The relator is a foreign corporation. Its domicile is in another State. By comity alone it is permitted to do business in this State. This State may at any time say to it, “ Go! ” and it must go. It may at any time voluntarily withdraw from the State. Lehigh Valley Coal Co. v. Hamblen, 23 Fed. 225. 1 How. Stat. § 2, provides that “all words and phrases shall be construed and understood according to the common and approved usage of the language.” The term “corporation of this State,” used in the statute, means a corporation organized under the laws of this State, and not a foreign corporation, which may at any time remove from the State, or, by the action of the proper state authorities, be compelled to go.

It follows that the petition must be denied.

Long, C. J., Montgomery and Hooker, JJ., concurred. Moore, J., did not sit.


text:
    DETROIT MOTOR CO. v. THIRD NATIONAL BANK.
    1. Banks and Banking—Pledge—Collateral Security.
    Under an agreement with the cashier of defendant bank, complainant corporation mortgaged its property to secure an issue of bonds, which were left in the mortgagee’s possession, to be delivered to the cashier, for sale, on his demand, the proceeds to be credited to complainant’s account at the bank. A portion of the bonds had been sold and credit given, when, in the absence of the cashier, complainant was notified that certain of its paper was due. An agreement was thereupon made with the assistant cashier that credit should be extended until the cashier’s return, upon the condition that the remainder of the bonds should be held by the bank as collateral security, complainant thereupon giving a note reciting that it was secured by said bonds. Upon the cashier’s return a renewal was provided for, complainant consenting that the bank should hold the bonds as collateral for all of its indebtedness. The cashier, after obtaining the bonds from the mortgagee, and depositing them in the vaults of the bank, sought to pledge them to the bank as security for his own debt. Held, that the bonds were received by the cashier in his official capacity, as collateral to complainant’s indebtedness, and that they should be so treated by the bank.
    2. Same—Proof of Possession—Presumptions.
    Where it is established, in a suit by a pledgor against a bank for an accounting as to certain bonds, that they were delivered over to the defendant as collateral to complainant’s indebtedness, it will be presumed, in the absence of contrary evidence, that they either remain in defendant’s possession or have been disposed of for its benefit.
    3. Estoppel—Equity Procedure.
    The receiver of an insolvent bank cannot, in a suit against him to compel him to account for and restore certain bonds deposited with the bank as collateral security, claim on appeal that the proper remedy was at law or by a bill to redeem, averring a willingness to pay the debt, where such claim was not made in the court below, and the receiver went to trial on a claim of title to the bonds.

      Appeal from Wayne; Carpenter, J.
    Submitted November 12, 1896.
    Decided January 5, 1897.
    Bill by the Detroit Motor Company against the Third National Bank and Joseph L. Hudson, receiver, for an accounting as to certain bonds pledged as collateral security. From a decree dismissing the bill, complainant appeals.
    Reversed.
    • George W. Radford and Walker & Spalding, for complainant.

      De Forest Paine, for defendants.
   Hooker, J.

The complainant, a corporation doing a manufacturing business at Detroit, was largely indebted to the Third National Bank of that city and others, and the following scheme was hit upon, in a consultation between complainant’s officers 'and Frederick Marvin, the cashier of the bank, to afford it relief: It was proposed that the complainant should mortgage its plant to the Union Trust Company, to secure an issue of 100 bonds of $1,000 each, said bonds to be guaranteed by several of complainant’s stockholders, who were already upon its outstanding paper. Said bonds,'when issued, were to be left in the custody of the Union Trust Company, and were to be delivered by it to Frederick Marvin, cashier of said bank, for sale, upon his demand; and, as fast as sold, Marvin was to give the complainant credit for the proceeds, upon its account in said bank. In pursuance of this arrangement, the mortgage and bonds were made and deposited; and a written order upon the trust company for the delivery of such bonds to Marvin, cashier, was given by complainant, and 75 of the bonds were taken by Marvin, and disposed of, and credit given to complainant upon its bank account. Subsequently, Marvin obtained the remaining 25 bonds, numbered, consecutively, from 76 to 100, inclusive; and it is in regard to these bonds that this controversy arises.

The circumstances under which these bonds were taken by Marvin appear to us to be as follows: On September 7, 1892, the complainant received notice that certain paper, which it had given to the Third National Bank, was due, some of it in the hands of the Peninsular Savings Bánk, and possibly some in the State Savings Bank. This paper was guaranteed by the Third National Bank, and complainant was notified from said bank that the paper was due. An officer of the complainant called at the Third National Bank to arrange the matter; and, in Mr. Marvin’s absence, the assistant cashier, acting under the direction of the board of directors, agreed to extend credit until Mr. Marvin should return, when the matter could be adjusted with him, upon condition that the remaining 25 bonds should be held by the bank as collateral to secure the bank. This was upon an offer by the complainant to so arrange the matter, and after the assistant cashier had ascertained and informed his directors that the bohds were in the hands of the Union Trust Company, subject to the order of Mr. Marvin, cashier. The following is a copy of a note given upon that occasion:

“$20,361.67. Detroit, Mich., Sept. 7, 1892.

“On demand after date the Detroit Motor Co. promise to pay F. Marvin, cashier, or order, at the Third National Bank, twenty thousand three hundred and sixty-one 67-100 dollars, with interest at the rate of seven per cent, per annum, value received; having deposited or pledged with him as collateral security, with authority to sell the same at public or private sale, or otherwise, at his option, on the nonperformance of this promise, and without notice, twenty-five thousand dollars of the unsold bonds of the 'Detroit Motor Co., in the hands of the Union Trust Co. of Detroit, Michigan.

“Detroit Motor Co.,

“By F. A. Blades, Sect.”

Indorsed on back:

“D. B. No. 377.

“This note is given for two notes falling due Sept. 7, 1892; one for $15,271.25, at the Preston National Bank; one falling due Sept. 7, 1892, at the Third National Bank, for $5,090.42. Said notes to be arranged for on Mr. F. Marvin’s return to city.

“Detroit, Sept. 7, 1892.

“By F. A. Blades, Sect.

“F. A. Blades.”

A few days later, Mr. Marvin returned; and on September 10, 1892, he surrendered this note, at the same time taking i’enewal notes for those for which'it had been given, and obtaining the consent of the complainant that the bank should hold the 25 bonds as collateral security for all debts of the complainant to the bank. Soon after, Mr. Marvin procured the bonds, and deposited them in the vaults of the bank, with its other collateral. It is contended that this is not shown by the evidence, especially as to 10 of said bonds; but, in our opinion, it may be properly inferred from the testimony given.

In October, 1892, Marvin executed his note for $10,000, payable to himself, as cashier, and put the amount to his credit in the bank, without the knowledge of the directors,' and without making an entry upon the offering book, as was the custom. Said note stated that he had deposited or pledged, as security, $10,000 of the first ip.ortgage bonds of the complainant. A second note for $5,000 was made May 2, 1893. This stated that he^had “deposited or pledged Detroit Motor Co. bonds,” without stating the amount. In neither case were the bonds designated by number or otherwise, and they do not appear to have been attached to or to have accompanied the notes. Soon after the date of the second note, Mr. Marvin’s conduct was investigated, and his resignation was tendered, but not accepted for some months, it being deemed inexpedient to do so at the time. He was, however, dismissed in September, 1893. At this time the 20 bonds identified by the testimony were found among the securities of the bank which were held as collateral. There was nothing to show that they were not held as collateral to the complainant’s paper, or to whom they belonged. Mr. Marvin is said to have pointed out these particular 20 bonds as collateral to his paper, and claimed that he owned them. Noble, who succeeded Marvin as cashier, testified that they could not tell who owned these bonds, ‘ ‘ except they were the only bonds in our possession pledged as collateral to a certain note, and if they were in our collateral file, arid had been stated to be the property of the person who pledges them.” He also testified that these 20 bonds, which he says were collateral to the Marvin- notes (which does not appear from the notes, however), were transferred to what he calls the regular collateral account, in the absence of Marvin. Hudson, a director of the bank, testifies that he learned that the bank had $20,000 of bonds collateral to Marvin’s notes, and, with Marvin’s consent, they took them away from the notes, leaving the notes without collateral, and gave him credit for $15,000 on his overdraft, and charged them to the bond and mortgage account. The bank was subsequently closed, and went into the hands of a receiver, and this bill is filed to compel the defendants to account for and restore the 25 bonds to the complainant, subject to the right of the bank to hold them as collateral security for the indebtedness of the complainant.

Counsel for the receiver contends:

1. That Marvin, and not the bank, was complainant’s agent for the sale of the bonds, and that it is in no way responsible for his appropriation of the bonds.

2. That the bonds were not, in fact, pledged to the bank, because not delivered to the cashier at the bank; and that, legally, they cañnot be said to have come to its possession.

3. That, in appropriating these bonds to his own use, Marvin was not acting within the scope of his authority as cashier, and that the bank is not liable for his acts.

4. That complainant has a complete remedy at law.

We are satisfied from the evidence that the scheme of issuing these bonds was the result of the pressure brought by the bank, to induce payment of the complainant’s paper held by the bank; but whether this were so or not, and whether, if it were, we would be justified in holding that the bank undertook the sale of bonds, and that it was within its powers, we are convinced that afterwards, in an attempt to secure itself upon its claims against the complainant, Mr. Marvin, its cashier, demanded and received the bonds in controversy, and brought them into the bank, and deposited them with other collateral security of the bank. It is therefore unnecessary to discuss or pass upon several of the questions raised.

We think that the bank is in no situation to take these securities upon Marvin’s indebtedness, and that it holds them as security for the indebtedness of complainant, and the receiver should so apply them. As to 15 of these bonds, there is no dispute over their whereabouts, as they are shown to be in the possession of the bank, which claims title to them. Counsel asks what was done with the other 10, and say that it does not appear. Our opinion is that it satisfactorily appears that all of the bonds were taken to the bank under circumstances that justify the conclusion that they ■ came into the possession of the bank. Beyond this, we agree with defendants’ counsel that “it does not appear what became of them;” and we need not conjecture, but may assume that they are in the possession of the defendants, or have been disposed of for their benefit.

It is urged that the complainant’s remedy is at law, or, at all events, that it should filé a bill to redeem; averring a willingness to pay the debt. This does not appear to have been a mooted question below. Counsel did not see fit to raise it by demurrer, as he might have done, but chose to go to hearing upon'his claim of title to the bonds. Under the circumstances, especially in view of the alleged insolvency of the bank, we think this technical defense should not be permitted to prevail. Equity has jurisdiction to compel a replacement of stock held as collateral security, lost through gross negligence or carelessness of, or misapplication by, the pledgee, or payment of its value. Colebrooke, Collat. Sec. § 340.

We are of the opinion that the complainant should be decreed to be the owner of said 25 bonds, subject to the lien of said bank, and that defendants restore the same to the complainant upon tender of payment of its indebtedness, or account for them upon said indebtedness at their par value. It is decreed accordingly, complainant to recover costs of both courts.

The other Justices concurred.


text:
    LANSING IRON & ENGINE WORKS v. WILBUR.
    1. Conditional Sale—Bona Fide Purchaser.
    A purchaser of chattels from one holding the same under a conditional contract of sale obtains no better title than had his vendor, although he buys in good faith, and without notice of the rights of the original vendor.
    2. Fixtures—What Constitute—How Determined.
    The controlling principle in determining whether chattels annexed to real estate have become fixtures is the intention of the parties between whom the question arises; and the mode of annexation and manner of use ■ are not necessarily conclusive, but yield to such intent.
    3. Same—Evidence.
    Plaintiff sold to W. an engine and boiler under a contract by the terms of which the title was retained by plaintiff until the property should be fully paid for. W. set up the machinery, in a substantial manner, on land held by B. under a contract with a land company for its purchase; the engine being bolted to a stone foundation, and the boiler arched over with brick, and connected by rods with the outer walls of the building. B. forfeited his contract to the land company, which had previously obtained a bill of sale of the boiler and engine from W. Defendant, who held a chattel mortgage given by W. upon the property in question, purchased the realty, supposing that she would thereby acquire title to the machinery as fixtures. Held, that the property retained its character as personalty, the title to which was in the plaintiff.
    Error to Ionia; Davis, J.
    Submitted November 11, 1896.
    Decided January 5, 1897.
    Trover by the Lansing Iron & Engine Works against Hannah C. Wilbur. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Me Garry & Nichols, for appellant.

      Harris E. Thomas, for appellee.
   Long, C. J.

December 12, 1891, George P. Booth and Randall T. Van Vaulkenburg, who were stockholders in the Belding Chemical Fire Engine Company, entered into a land contract and agreement with the Belding Land & Improvement Company of Belding for the purchase of certain lots. It was agreed:

First. That Booth and Van Vaulkenburg should have immediate possession.

Second. That Booth and Van Vaulkenburg should erect, within six months, upon the premises, a brick factory two stories high, 50 feet wide, and 150 feet long, for the purpose of manufacturing chemical engines, etc.

Third. That the Belding Land & Improvement Company, upon the completion of the building, and upon the boiler and engine being set in the building, should pay Booth and Van Vaulkenburg $5,000 in cash.

Fourth. That Booth and Van Vaulkenburg should cause to be employed a daily average of 35 men per year for four years next ensuing after said six months.

Fifth. That, upon all these conditions being performed by Booth and Van Vaulkenburg, the Belding Land & Improvement Company should, at the expiration of five years, give to Booth and Van Vaulkenburg a warranty deed of the premises, but that, in case they failed to perform any of the conditions, the Belding Land & Improvement Company should have the option to declare the contract void, and should have the right to re-enter and repossess the premises, but upon the condition that, if it exercised such option, Booth and Van Vaulkenburg were to have the right to remove from the premises all machinery, boilers, engines, shafting, tools, etc., and that they were to have a reasonable time for that purpose.

In August, 1892, the Belding Land & Improvement Company claimed that the work had not progressed as rapidly as agreed, and refused to pay over the $5,000 until the words “boilers” and “engines” were stricken out of the fifth paragraph of the contract, and it be given a bill of sale of the boiler and engine, to be used in the building, by Wiennett & Bauer, from whom Booth and Van Vaulkenburg had purchased them. The contract was so modified, and the bill of sale given. The building was completed, and the boiler and engine placed therein. Some time during the summer of 1892, the defendant had loaned to Wiennett & Bauer something over $2,000, and had taken a note therefor, and in the month of December she took as security from them a chattel mortgage upon certain personal property, including this boiler and engine. Thereafter she took two bills of sale of this property covered by the mortgage, but did not include the boiler and engine. A few days afterwards, and on January 9,1893, the defendant, who had not learned until then that the boiler and engine were left out of the bills of sale (said bills of sale having been taken for her by her son), was advised that the Belding Land & Improvement Company claimed them as a fixture, that company having gone into possession of the property at that time. The defendant thereupon purchased the whole of the plant from the Belding Land & Improvement Company, taking a warranty deed therefor, and went into immediate possession. Wiennett & Bauer had purchased this boiler and engine from the Lansing Iron & Engine Works, the plaintiff in this case, under a written contract, by the terms of which the title and right of possession were retained by the Lansing Iron & Engine Works until the property was fully paid for. Wiennett & Bauer having failed to make payments under the contract, the plaintiff made inquiry in reference to the boiler and engine, and for the first time learned that the defendant claimed title. Demand was made upon her for the property, which she refused to surrender, and this action was brought in trover to recover its value.

In the contract between plaintiff and Wiennett & Bauer, it was provided that the boiler and engine and fixtures therewith should be used in Belding, Ionia county, and that the vendees were to retain the use so long as they took reasonable care of the machinery, and were not in default in payments; but in case of default or failure of payment of any part of the price, or interest thereon, at the time and in the manner specified in the contract, or if the vendees should attempt to sell, assign, or dispose of the same, or remove, or attempt to remove, the same from Belding, that the Lansing Iron & Engine Works might take the property into its possession, and retain it as its property, or sell it at private sale, and apply the proceeds on- the contract.

The manner in which the boiler and engine were placed in the building at Belding is described by Mr. Barnes, the president of the plaintiff company, as follows:

“We found the boiler and engine located in the large brick building at Belding. The boiler was bricked in, or arched in with brick. Could not say whether the arch formed a part of the side of the building against which the boiler set, or not; but the arch that covered the boiler was connected with the outside wall of the building. The boiler room in which this boiler was placed was all brick, and joined onto the main building. I think the boiler could have been taken out of the door without removing any of the outside walls, although the foundation and arches over the boiler would have to be torn down; also, the smokestack that goes through the roof would have to be removed. This boiler and engine were placed in the building as permanently and solidly as ever I saw a boiler and engine placed in a building.”

On the trial, it was disputed whether or not the boiler could be taken out of the building without injuring the outside walls, some of the witnesses testifying that it could, and others that it could not. It appears, however, that the engine was placed upon a stone foundation, and fastened with rods and bolts which went down through the foundation and clinched at the bottom; that the boiler was arched over with bricks, with rods running through the boiler, and stayed by cleats on the outside of the building to the outside of the arch over the boiler on the inside of the building; also, that there was a smokestack that went up through the roof, which would -have to be taken down to take the boiler out. There were steam pipes running from the boiler, through the brick walls, connected with the engine, and connected also by belts, pulleys, and other machinery with the engine. It also appears from the testimony of Mr. Clark, who made the contract on behalf of the Lansing Iron & Engine Works with Wiennett & Bauer, that he had been told by them where the engine and boiler were to be placed, arid for what purpose; and the testimony of Mr. Barnes shows that the plaintiff furnished blue prints to purchasers, showing how engines and boilers should be set, and that these in question were set according to the prints, and that this boiler and engine were not portable.

At the close of the testimony in the case, the court charged the jury as follows:

“Now, gentlemen, a title can be surrendered upon notice of forfeiture, but this gave the improvement company no better title than Booth and Van Vaulkenburg obtained from Wiennett & Bauer. They had treated it as personal property. This lady, the defendant in this case, claims that she had a chattel mortgage upon this property, taken soon after it was put in this building. That, in the judgment of the court, was notice to her of the character of the property, and she could not come in here, and contend she was an innocent purchaser of the property, by reason of afterwards obtaining a deed of the real estate upon which this property stood. So, I say to you, gentlemen of the jury, that, under the undisputed evidence in this case, your verdict must be for the plaintiff.”

The court further charged:

“There is no question in this case but what the title to that property was reserved, and is now in the Lansing Iron & Engine Works.”

Under this charge, verdict and judgment were entered in favor of the plaintiff. Defendant brings error.

The only question in the case is whether, under the facts here stated, this boiler and engine are to be treated as personalty, or whether they became so affixed to the realty that they passed to the defendant under the deed taken by her from the Belding Land & Improvement Company. The controlling principle in determining the question of fixtures is the intention of the parties. It is well settled in this State that the vendor may retain title to personal property sold until paid for, and that the vendee cannot, before his title becomes absolute, pass a good title, and that the good faith of a purchaser from the vendee is immaterial. Nor is the question of notice of the vendor’s rights material. Lansing Iron & Engine Works v. Walker, 91 Mich. 409 (30 Am. St. Rep. 488); Gill v. De Armant, 90 Mich. 430; Thirlby v. Rainbow, 93 Mich. 164; Marquette Manufacturing Co. v. Jeffery, 49 Mich. 283; Pettyplace v. Manufacturing Co., 103 Mich. 155, and note.

In the first case cited, the plaintiff sold to one Myers a boiler, engine, and fixtures under a similar contract to the one in controversy, retaining the title until the property was paid for. The property was to be removed to the township of Sandstone, and was taken there. The boiler was bricked in and arched up, and the engine was set upon brickwork, and bolted down to the foundation. Myers owned an undivided interest in the real property where the boiler and engine were placed. About a year after the boiler and engine were placed in this mill, Myers conveyed the real estate by quitclaim deed to the defendant. Payments became due under the contract. Thereafter demand was made for the boiler and engine. Defendant refused to surrender them, and trover was brought to recover the value of the property. The court directed verdict for the plaintiff for the balance due on the contract. The defendant contended that the case should have been submitted to the jury upon the question of fact raised by the testimony as to whether the purchase made by the defendant from Myers was in good faith, for a valuable consideration, and without notice of the claim of plaintiff against the property purchased. The court refused to give such request. It was said by this court:

“ There was nothing done by plaintiff indicative of an intent to permit the machinery to be so annexed to the realty as to change its character. The state of the title to the realty, and the conduct of Myers regarding the machinery, negatived any intent on his part to allow his interest in the machinery to be absorbed by the owners of the realty, or to permit it to be merged. The circumstances of the purchase by defendant clearly indicate that he took the entire interest in this machinery, while he took but an undivided interest in the realty.”

The judgment was affirmed. It was held in that case that it was ruled by Adams v. Lee, 31 Mich. 440, and Robertson v. Corsett, 39 Mich. 777. In the first of these cases it was said by this court:

“All the time, therefore, the parties have had title to the machinery distinct from their title to the land, and this fact of itself is conclusive that the former was personalty; for, to constitute a fixture, there must not only be physical annexation in some form to the realty, but there must be unity of title, so that a conveyance of the realty would of necessity convey the fixture also. When the ownership of the land is in one person, and of the thing affixed to it is in another, and in its nature is capable of severance without injury to the former, the latter cannot, in contemplation of law, become a part of the former, but must necessarily remain distinct property, to be used and dealt with as personal estate only. And the fact that the owner of the thing affixed to the freehold has also an undivided interest in the latter cannot render the former a fixture when the interests are different in extent. A thing cannot, as to an undivided interest therein, be real estate, and as to another undivided interest be personalty. It must be the one thing or the other. And the position which is taken by Lee in this case involves this absurdity: That Kaufman, at the time when he and Kinney were severally the owners of an undivided half of the land, might have sold that, and, as a necessary consequence, transferred an undivided one-half of the machinery also, though the whole of the machinery belonged to Kinney as exclusive owner. This would be. the necessary result if the machinery was real estate, for there could be no such a thing as attaching it to an undivided interest in the land only.”

In the present case, every person connected with the matter, at some time during the dealing, regarded and treated this machinery as personal property, and not as a fixture. At the time of the sale to Wiennett & Bauer, they had no interest in the realty. They placed the machinery in position in the mill, the title to the mill being in Booth and Van Vaulkenburg under their contract with the Belding Land & Improvement Company. Booth and Van Vaulkenburg forfeited their contract, and the company took possession of the land, not with the understanding that this machinery belonged to and was a part of the realty, but that the title to it was in Wiennett & Bauer, from whom it demanded that a bill of sale should be given. The defendant also regarded the machinery as personal property, as she took a chattel mortgage from Wiennett & Bauer on it as security for her debt from them, though afterwards, and without her knowledge, her son, in taking the bills of sale of the property, left out the boiler and engine. It is undoubtedly true that she presumed, in making the purchase of the realty from the Belding Land & Improvement Company, that she was acquiring title to the boiler and engine; but we think there is nothing in the' case which indicates that it was the intent of any of the parties that this machinery should be so annexed to the realty that it should become a part of it. As was held in Wheeler v. Bedell, 40 Mich. 693, there is no universal rule by which the character of what is claimed to be a fixture can be determined in the abstract. Neither the mode of annexation nor the manner of use is in all cases conclusive. It must usually depend on the express or implied understanding of the parties concerned. In Colemanm v. Manufacturing Co., 38 Mich. 30, the court, commenting upon the line of authorities which seems to regard the manner of attachment to the realty as the test, say: “This, however, is a very extreme view, and is hardly compatible with the tenor of our own previous decisions.” If the manner in which the boiler and engine were attached were to be treated as the sole" test, there might be some force in. defendant’s contention; but in view of the fact that there was never unity of title of the realty and the personalty in one and the same person or persons, and of the manner in which the property has been dealt.with, together with the respective interests, we are compelled to hold that the defendant did not acquire title under her deed from the Belding Land & Improvement Company. The court was therefore correct in directing verdict and judgment in favor of the plaintiff.

The judgment must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. Moore, J., did not sit.


author:
Moore, J.
      Grant, J.

text:
    HOWEY v. FISHER.
    Negligence—Question for Jury.
    The action of the trial court in directing a verdict for the defendant in a suit for injuries sustained by falling upon an icy sidewalk was held to have been erroneous, in that the evidence offered by plaintiff as to defendant’s negligence in failing to keep) his eaves troughs in repair, thereby permitting an accumulation of ice, raised a question of fact for the jury. Grant, J., and Long, C. J., dissenting.
    Error to Wayne; Frazer, J.
    Submitted November 12, 1896.
    Decided January 5, 1897.
    Cage by Margaret J. A. Howey against Maxwell M. Fisher for personal injuries. From a judgment for defendant on verdict directed by the court, plaintiff brings error.
    Reversed.

      Frank T. Lodge, for appellant.

      Charles Flowers, for appellee.
   Moore, J.

The plaintiff sued the defendant to recover damages because of injuries received by her, caused by her slipping upon an icy sidewalk. The defendant was the owner of a dwelling house on Duffield street, in Detroit, which came out nearly or quite to the street line. There were eayes troughs upon this house, which were connected with a pipe which led to the sewer. It was claimed by the plaintiff that these eaves troughs had been out of repair for a long time, resulting in a dangerous accumulation of ice on the sidewalk, whenever it rained and froze, or when snow on the roof was thawed, followed by freezing weather. It was also the claim of the plaintiff that defendant had been notified of the situation. Defendant denied that the eaves troughs were out of repair, and claimed that new ones had been put up in June prior to the accident. Evidence was given tending to support the theory of each of the parties. The circuit judge submitted the case to the jury in the following charge:

“Gentlemen of the jury: This action, as I have stated, was brought for the purpose of recovering damages alleged to have happened to plaintiff on account of slipping upon an icy sidewalk in front of the premises of the defendant, or adjoining the premises of the defendant. The only question there is for you to consider, as I understand the law, is whether the eaves troughs were out of repair at the time this accident happened. The allegation in the declaration in this case claims that the eaves troughs upon the building were out of repair, and that, on account of their being out of repair, the water ran upon the sidewalk, and, freezing, became ice, and, on account of this condition of the eaves troughs and the ice formed upon the sidewalk, that the plaintiff, without negligence upon her part, slipped and fell. Now, gentlemen of the jury, you have heard the testimony in this case concerning the condition of these troughs. You have heard the testimony of these women, who have given their testimony concerning the condition, and about passing by there; but it is not your duty to consider any testimony, except such testimony as shall relate to the time that this accident occurred. If they have proved a condition of affairs, —that is, defective eaves troughs, being defective for want of repair,—and that that condition existed up to the time the accident happened, then, if you find that condition existed at that time, you are at liberty to enter upon the consideration of the other questions in this case, which I shall submit to you. You have also heard the testimony of the young man who came upon the stand, and said that he put these eaves troughs in at a certain time,—in June, I think,—-and that this accident occurred in January, if I am not mistaken; and if you shall find from the testimony, aud believe it to be true, that those eaves troughs were repaired in June, or made new, or put in good and proper condition and repair, and that they remained so up to the time of the accident, then your verdict must be for the defendant, because, if these eaves troughs were not out of repair, under the declaration in this case, the plaintiff would not be entitled to recover. You are to consider all the testimony on both sides of this case for the purpose of determining that condition, and then you must ascertain, further, that there was a reasonable time existing between the time at which this condition existed, or that Mr. Fisher had some knowledge of it,—that it was brought in some way home to him. There has been some evidence tending to show that, for a long time previous, these eaves troughs had been out of repair, and there is some little evidence tending to show that some notice of this condition of affairs was brought home to Mr. Fisher; .but if, subsequent to that time, this condition in the eaves troughs was remedied, then that notice would amount to nothing.”

After the jury had been out for a time, the judge recalled them, and directed them to find a verdict for the defendant, for the reason that there was no evidence of want of repair of the eaves troughs or conductor. The plaintiff brings the case here, and makes some assignments of error in relation to the exclusion of testimony.

We do not think the court was in error in excluding the testimony he did. The question is not, however, of sufficient importance to make it necessary to discuss it here. The important question in the case is whether the court was in error in directing a verdict for the defendant when there was conflicting evidence in relation to the condition of the eaves troughs. In Demill v. Moffat, 45 Mich. 410, it was held that a trial judge should never take a case from the jury on the evidence, unless it is very clear; and, when he does so, he should specify the particular ground or grounds of his ruling. This case has been followed by a long line of authorities: Goodale v. Bridge Co., 55 Mich. 413; People v. Eaton, 59 Mich. 559; Carver v. Plank-Road Co., 61 Mich. 584; Buhl Iron Works v. Teuton, 67 Mich. 623; Parrish v. Bradley, 73 Mich. 610; Blade v. Lee, 94 Mich. 127. We think the trial court was in error in directing a verdict for the cause stated by him.

Judgment is reversed, and new trial ordered.

Montgomery and Hooker, JJ., concurred with Moore, J.

Grant, J.

{dissenting). I think the court was correct in directing a verdict for the defendant. There is evidence that the eaves trough and conductors were once out of repair, and that defendant had been notified of this the latter part of 1889 or first of 1890. One John Eagan, a tinner, testified that he put on a new eaves trough and conductors June 23, 1892, only six months prior to the accident; that they were put in perfect order; that he had seem them frequently thereafter; and that they continued so. Mrs. Fleming, who rented the house, testified to the same thing. So, also, did the defendant. There was no evidence to contradict these three witnesses that the old eaves trough and conductors had been replaced by new ones. If these new ones were improperly constructed, or had gotten out of repair, or for any reason were defective, there is no testimony to show that the defendant had knowledge of it, and defects in construction or material are not alleged. The conductors connected with the sewer close to the building, and in this respect the case differs from Gavett v. City of Jackson, 109 Mich. 408. The streets and sidewalks in the city of Detroit were at that time covered with ice. Plaintiff’s own witnesses testified that there was ice all along on the sidewalk, and in this street, and also in the other streets of the city, and that the ice could not be taken off. Plaintiff herself testified that it would not have been safe for her to go out into the. street, because there was ice on the stones. She testified: “ It [ the ice] had made no ridge, but it was a layer of ice about a yard square. I should judge the ice was an inch or two inches thick.” Plaintiff’s witnesses testified that Mrs. Fleming, who leased and occupied the premises, kept her sidewalk clean, and in better condition than did most others in the vicinity. The weather was cold, and the snow on the roof thawed to some extent, and, as it reached the trough, froze and overflowed. I think it very clear that the overflow of the water was not the result of any defect in the trough or conductor, but resulted from natural causes. There was, therefore, no negligence. Gavett v. City of Jackson, supra.

I think the judgment should be affirmed.

Long, C. J., concurred with Grant, J.


text:
    LUCAS v. FRIANT.
    1. Corporations—Mortgages—Directors—Estoppel.
    A stockholder and director rpf a corporation who has voted at a regular meeting of the directors, at which a majority were present, in favor of a resolution to mortgage the property of the corporation, cannot complain that such resolution was not regularly adopted because one of the other directors, who voted in favor of the resolution, was the indorser of paper secured by the mortgage, and two other directors so voting had indemnified him in writing as such indorser.
    2. Same—Resolutions—Waiver.
    The officers of a corporation which had become largely indebted were authorized by the directors to execute to the creditors, upon demand, a chattel mortgage covering the corporate property. At the same .time a committee was appointed to devise a scheme for reorganization, and a plan was subsequently proposed, and adopted by resolution, which involved an increase of the capital stock. The attempt at reorganizing the corporation was unsuccessful, and a mortgage was given as security for the payment of its debts. Held, that the resolution to mortgage was not waived by the subsequent resolution to increase the capital stock.
    3. Same—Foreclosure Sale—Purchase by Director.
    A stockholder and director in a corporation, who loans it money, and takes as security a chattel mortgage covering its effects, may, as against other stockholders and directors, become a purchaser at the sale on foreclosure of the mortgage.
    Appeal from Kent; Grove, J.
    Submitted November 12, 1896.
    Decided January 5, 1897.

      Bill by Thomas J. Lucas and Mary A. Lucas against Thomas Friant, McGeorge Bundy, the Grand Rapids Vapor-Stove Company, and others, to set aside a mortgage and sale of corporate property, and for an accounting. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Albert Crane, for complainants.

      P. H. Travis (McGeorge Bundy, in pro. per.), for defendants.
   Long, C. J.

In October, 1892, Charles H. Child, of Cleveland, Ohio, claiming to be the owner of valuable patents for the construction of vapor stoves, came to Grand Rapids, and interested with himself T. J. Lucas, one of the complainants. Together they interested other parties in the formation of what was called the Grand Rapids Vapor-Stove Company, Lucas claiming that he had investigated the proposed business, and representing it as very profitable. A prospectus of the business was shown, exhibiting large profits. The defendants, together with Lucas and Child and some other parties, became the stockholders in the company. Child transferred his patents to the company, and received therefor $5,000 of the capital stock. The company was capitalized at $25,000, but at that time only $18,500 was paid in by the stockholders. None of the stockholders had ever had any experience in the business, and they claim to have invested in it on the representations of Child and Lucas. Lucas was made manager of the company at a salary of $100 per month, because he was one of the promoters, and claimed to have posted himself in the business. He and Child proceeded to purchase machinery, tools, and stock suitable for manufacturing stoves under the Child patents, and Mr. Child was to get up the patterns for the stoves. The business was commenced in a rented building. It was represented to the stockholders that the business could be conducted on the capital paid in, and that several thousand stoves could be manufactured the first year. The stoves -which were to be made the first year were contracted to Leonard & Sons, of Grand Rapids. A large quantity were manufactured and delivered to this firm, and by it placed on the market; but the stoves failed to work, and were returned by the public to Leonard & Sons, and by it turned back to the company. Stoves commenced to come back early in the season, and continued to come back during the whole year. A large quantity of materials had been bought for the construction of the stoves, similar to those put. out, which became practically worthless, -so that the main business of the company after that time consisted in attempting to fix over the old stoves, and to devise some new stoves which would prove marketable. The money which had been paid in had been expended, and the company commenced borrowing at the bank to continue the business.

In June, 1893, a meeting was called to arrange for the indebtedness. $7,500 had been borrowed at the National City Bank of Grand Rapids on Mr. Friant’s indorsement. At that meeting it was proposed to provide funds by which each stockholder should voluntarily advance to the company an amount equal to 10 or 20 per cent, of his stock in the company. In this way $1,295 was advanced by different stockholders. The complainant Thomas J. Lucas, though a stockholder, made no advances, and no money was paid in by Mr. Child. These moneys did not meet the obligations of the company, and on September 4, 1893, a regular meeting of the directors was held at the company’s office, át which were present Friant, Raniville, Lucas, Child, and Bundy,—a majority of the directors. A resolution was unanimously passed by them as follows:

“The present affairs of the company being under consideration, and its obligations maturing, on motion of Mr. Bundy, seconded by Mr. Raniville, it was unanimously resolved as follows: That the Grand Rapids Vapor-Stove Company, by its president and secretary, execute to the holders of the company’s paper or the indorser thereon a chattel mortgage on all the property of the company, including its patents, to secure such paper and such indorser; that such mortgage be given on the demand of either the holders of said paper or such indorser.”

It was further resolved as follows:

“On motion of Mr. Bundy, seconded by Mr. Lucas, it was resolved that a committee of three of the stockholders be appointed by the chair to formulate a plan for the future action of the company for submission to the stockholders.”

In October following, the committee made a report to the company, proposing a scheme for the reorganization of the company, by increasing the capital stock from $25,000 to $50,000, and making the new stock preferred stock. This resolution and preamble had been prepared in advance, and stated the purpose of the proposed reorganization as follows:

“It is understood that said company is now insolvent, and that this agreement is made to secure the continued operation of the company’s business, and the making valuable all stock thereof, if possible; that some of the present stockholders are willing to subscribe and pay for such new stock on the foregoing conditions, and some of such stockholders are not willing or able to so subscribe and pay for such new stock on any conditions; and that the agreements herein contained are made to indemnify the subscribers to such new stock against losses, so far as possible, and to compensate them for the risk which they take in order to make all the stock of said company valuable, which risk is not assumed by all the stockholders of the old stock.”

This resolution was written out in the record of that meeting, and signed by all of those present,' including both complainants, as Mrs. Lucas at that time had become the owner of a part of the stock held by her husband, Thomas J. Lucas. An attempt was thereafter made to get all of the stockholders in the company to agree to this, as it involved the preferring of the new stock, and could be accomplished only by the consent of all the stockholders. This was found impossible.' Mrs. Child, in the meantime, had become the owner of stock held by her husband, Charles H. Child. The defendants Friant, White, and Bundy each consented to the arrangement, and subscribed for some of the new stock. The complainants consented to the arrangement, but did not subscribe for any new stock. During this time the condition of the affairs of the company’s business was growing worse, and it was understood that, unless this scheme for the reorganization could be accomplished, the business could not continue. In the latter part of October, 1893, the company had no funds, except about $30 in the bank, and there was nothing with which to pay the debts, except the property of the company. The creditors urged payment of their debts or security therefor. The mortgage, which had been provided for at the directors’ meeting of September previous, was then given as security for the payment of the debts. It was thereafter foreclosed, and the property bid in by Mr. Friant, who shortly afterwards conveyed equal interests in it to eight of the old stockholders, who had signed the indemnity agreement, and who joined with him in paying up the debts of the company.

The complainants set out in their bill that, even up to the 31st of October, 1893, the corporation was in good credit, owing only about $7,500, with assets and business exceeding in value $25,000; that no. creditors were pressing the corporation; that the business of the company was increasing, and its affairs in every way promising; that, shortly prior to this suit, defendants Friant, White, and McCoy, with the pretense that defendant Friant must be relieved of his liability on the paper of the corporation, but in truth and fact to carry out a fraudulent scheme and plan on their part to get the title and control of the business of the corporation, and to divest the corporation and about one-third of its stockholders of all interest in such property and business, commenced to complain of the state of the company’s finances, and that such complaints and agitation did not come from the company’s creditors; that in the latter part of October the defendants Friant, White, McCoy, and Bundy pretended to hold a meeting of the directors of such corporation; that said last-named defendants, or some of them-, caused a report of said meeting to be written up, representing Thomas J. Lucas as being present and seconding a motion to mortgage the property of the corporation, but that Thomas J. Lucas was not present at such directors’ meeting, if any was held in fact; that he never received notice of such directors’ meeting, and that he never seconded any motion to mortgage the property of the corporation; that he had no notice or information of the scheme of defendants Friant, White, McCoy, and Bundy to mortgage the propery until he saw a notice in one of the'newspapers published in the city of Grand Rapids. He therefore charges that the defendants Friant, White, and- McCoy willfully and fraudulently conspired to divest the corporation of its property and business, and to obtain title to the same for their own purposes, and to continue and carry on such business in their own names; that defendant Bundy has been under their control, and has been influenced by them, and they have shared with him the property and profits of the scheme, and by acquiescence, and by participating in the benefit of said fraudulent scheme, said Bundy has ratified the fraudulent acts of the other defendants; that by such fraudulent scheme all the defendants determined to put a chattel mortgage upon the property and effects of the corporation,- and that they did put a chattel mortgage thereon, reciting that the corporation was indebted to certain of its laborers and employés to the sum of $600, more or less, to the bank $6,500, and to the firm of Leonard & Sons the sum of $400, and appointed in said mortgage Charles Chandler as. trustee; that this mortgage was filed in the city clerk’s office, and thereafter foreclosed, and the property bid in by Friant, for the sum of $1,600, for the benefit of himself and defendants White, McCoy, and Bundy, and that they afterwards started, up the business of manufacturing vapor stoves with the same property; that the mortgage given as aforesaid was fraudulent and void as against complainants and other stockholders similarly situated. The prayer of the bill is that the resolution of the directors authorizing the giving of the mortgage be set aside and held void; that the chattel mortgage be set aside and decreed void, as well as the sale thereunder; and that the defendants Friant, White, McCoy, and Bundy account for the value of the property, together with all profits and income derived therefrom, and all additions thereto. This bill was sworn to by complainant Thomas J. Lucas.

The defendants answered the bill, denying all the material allegations therein, but admitting the giving of the mortgage, and asserting that Thomas J. Lucas was present at the time the resolution was passed authorizing it; that it was given to secure the indebtedness of the company, and the foreclosure’was had for the purpose of paying such indebtedness; and that the sale was in all respects fair. The proofs were taken in open court, and the court made a decree reciting that—•

“It appearing that the material allegations in the bill of complaint in said cause are not established by the evidence, and that the fraud and conspiracy alleged in said bill did not exist, but have been expressly disproved; and it further appearing that the mortgage therein mentioned was duly and legally authorized by said corporation, and that the giving and foreclosure thei’eof were, in all respects, regular and fair; and it further appearing that, at the time said mortgage was given and foreclosed, said Grand Rapids Yapor-Stove Company was insolvent, and that the value of its property and assets was less than the amount of its indebtedness and liabilities,—it is therefore ordered, adjudged, and decreed that the bill of complaint in said cause be dismissed, and that the defendants Thomas Friant, T. Stewart White, Daniel McCoy, and McGeorge Bundy do recover from said complainants their costs of this suit, to be taxed, and that they have execution therefor.”

The charge of conspiracy in the bill is abandoned by complainants’ counsel, and in his brief he makes no claim that complainant Lucas was not present at the meeting when the mortgage was voted, or that the record of that meeting was a false record, and spread upon the books without the knowledge and consent of Lucas. We feel that these questions should not pass unnoticed here. The evidence is overwhelming to our minds that there was no ground for the charge of conspiracy against these defendants, and that, while complainant Lucas charges in his bill that he was not present at the time the resolution was passed authorizing the giving of the mortgage, he was present at that meeting, and took part in the proceedings thereof. We are also satisfied that the liabilities of the company exceeded its assets.

Counsel for complainants contends in this court

1. That complainants’ error in regard to the manufacture of stoves, and in respect to the money required to carry on the business, is a defense without merit.

2. That the defendants held the relation of trustees to the stockholders of the corporation.

3. That the resolution to mortgage was not legally adopted.

4. That the resolution to mortgage was waived by the resolution and agreement to increase the stock of the corporation.

5. That the trustees could not purchase the property which they held in trust for others at public auction.

6. That the directors could not sell the company property, even though the corporation was insolvent, against the dissent of any stockholder!

7. That the complainants have not confirmed the foreclosure sale by not opposing it.

8. That the directors of a corporation actually insolvent cannot bring about a sale of its property to themselves for the purpose that they may continue the business of the corporation.

9. That the complainants are entitled to their proportionate value of the property of the corporation, with interest from the date of its conversion.

We do not understand that the defendants attempted to make a defense to the complainants’ bill on the ground that the complainant Lucas erred in regard to the manufacture of stoves, or in respect to the money required to carry on the business. The defendants were charged by the bill of complaint with having committed a fraud upon the complainants in the sale of the corporate property, and in the manner of bringing about the sale, while the company had sufficient assets to meet its liabilities. In answer to this claim, the defendants sought to establish, and did establish by the record, the facts that it was through the representations of Lucas and Child that they were induced to go into the enterprise, and that Lucas, being the manager of the company, became greatly indebted, and for the purpose of securing these debts the mortgage was given, as well as the fact that the company was insolvent at the time the resc5ution was passed to place the mortgage upon the property.

It is not contended but that the directors of the corporation were trustees of the stockholders and the creditors.

The point; made by counsel for complainants, that the resolution to mortgage was not regularly adopted, is based upon the fact that Friant was a director of the company and its president, that he was also the indorser of its paper, and that Bundy and McCoy had in writing indemnified him as indorser, and that for these reasons neither Friant nor McCoy nor Bundy was competent to vote at the directors’ meeting when the resolution to mortgage was adopted. Counsel cites, in support of this proposition, Butts v. Wood, 37 N. Y. 317; Miner v. Ice Co., 93 Mich. 97. We think the case does not fall within the principle stated in those cases. In the last one, it appeared that Lorman was a director and president of the company, had a majority of the stock, and absolutely controlled the corporation in his own interest, without dissent from any of the directors or stockholders, except Miner, who filed the bill in that case. The other directors were simply figureheads on the board, and controlled absolutely by Lorman. Whatever he desired to have voted by the directors.was complied with by all except Miner. Lorman, in fact, by his control of the company, voted himself a salary of $4,000 per year, and kept no account of the company’s business, covered up the proceeds of the sale of ice, and in other ways hindered and prevented Miner from receiving any part of the profits. The bill was filed for an accounting, and the charge of fraud was made and shown against Lorman in the conduct of the business. In the present case no charges of fraud have been sustained. The corporation was insolvent, and the mortgage was given to secure a bona fide indebtedness. Another fact, also, appears in this case, making it very different from the cases cited by counsel. Complainant T. J. Lucas was present at the time the resolution was adopted to mortgage the property, took part in the proceedings of the board, and voted in favor of the passage of the resolution. We think, under such circumstances, that the complainants are not in a position to complain of the adoption of that resolution, though Friant and the other parties voted in favor of it. If the doctrine which is contended for by counsel for complainants could be applied to this case, then it would have been impossible for the corporation, by any action which it might take, to secure either the bank debt or the labor debts, because all the stockholders were liable for the labor debts, and all of them had signed the agreement to indemnify Mr. Friant, to the amount of the stock held by each of them, on his indorsement at the bank.

The proposition that the resolution to mortgage was waived by the resolution to increase the capital stock of the corporation has no force whatever. These two resolutions were passed, one at the September meeting, and the other in October following, and it is apparent that the resolution to appoint a committee to formulate a plan for the future action of the company was an effort in the direction of raising funds to continue the business, and that, failing in that, the mortgage was to be placed upon the property. This is shown by the testimony in the case, and by the resolutions themselves.

The proposition that Mr. Friant could not become a purchaser at the sale cannot be sustained. That question was settled in Bank of Montreal v. J. E. Potts Salt & Lumber Co., 90 Mich. 345. See, also, Twin-Lick Oil Co. v. Marbury, 91 U. S. 587; Saltmarsh v. Spaulding, 147 Mass. 224; Harts v. Brown, 77 Ill. 226.

Th'e claim that the directors could not sell the corporate property, even though the company was insolvent, against the dissent of any stockholder, is not involved here. The directors authorized the mortgage to be made by and with the consent of the complainants, and certainly the trustee in the mortgage had the right to sell the property for the payment of the corporate debts.

We think the other propositions need not be considered, as the sale seems to have been an open and fair one.

The decree of the court below must be affirmed, with costs in favor of the defendants.

Grant, Hooker, and Moore, JJ., concurred. Montgomery, J., did not sit.


author: Montgomery, J.

text:
    RANDALL v. DUDLEY.
    Corporations—Sole Stockholder—Right to Sue as Individual.
    The mere fact that one has become the owner of all the stock of a private corporation does not entitle him to sue in his own name upon an account stated with the corporation, but his succession to its interests must be averred and proved.

    Error to Saginaw; Wilber, J.
    Submitted November 12, 1896.
    Decided January 5, 1897.

      Assumpsit by Robert M. Randall against Fred A. Dudley on an account stated. From a judgment for plaintiff, defendant brings error.
    Reversed.

      John F. O’Keefe, for appellant.

      Hanchett & Hanchett, for appellee.

       Sole ownership of the stock of a corporation is considered in a note to Louisville Banking Co. v. Eisenman Bros. & Co., (Ky.) 19 L. R. A. 684.

   Montgomery, J.

The Cross Lumber Company was a corporation organized under tbe laws of this State. In May, 1892, an agreement was made between the Cross Lumber Company and defendant, by the terms of which the Cross Lumber Company was to furnish the capital to be used in the business of buying and selling shingles, etc., and defendant, Dudley, was to manage the affairs of the concern, and the profits and losses were to be equally divided. The business was conducted under the name of F. A. Dudley & Co., and was continued until the spring of 1894, when F. A. Dudley & Co. stopped doing business, closed out the stock on hand,-and collected in the accounts as fast as collections could be made. The books of account were kept by defendant, Dudley, and, after the company had ceased active operations, defendant furnished the Cross Lumber Company with a statement from the books, showing the condition of the business. Plaintiff, claiming to have succeeded to the rights of the Cross Lumber Company, brings this action, alleging an account stated, and was permitted to recover in the court below.

Numerous errors are assigned, but we think the case must turn upon the question of the right of the plaintiff to maintain the action in his own name. On the trial it was objected that the plaintiff could not recover, for the reason that no sale or assignment of the Cross Lumber Company’s claim to plaintiff was alleged in the declaration. Plaintiff seeks to avoid the force of this objection by claiming that plaintiff had succeeded to the rights of the Cross Lumber Company, and that the account stated was with the plaintiff. The circuit judge treated this fact as conclusively shown by the testimony, but we think that in doing so the court erred. Plaintiff states in his testimony that, after the company ceased operations, defendant furnished the Cross Lumber Company with a statement from the hooks, showing the condition of the business. The statement sent was a trial balance, which did not purport to be a statement of account between plaintiff and defendant, but in which appeared a debit of the Cross Lumber Company, and also a debit of defendant, to F. A. Dudley & Co., and various other small items of account against different parties.

Plaintiff’s testimony as to his succession to the business of the Cross Lumber Company is as follows:

‘ ‘ Q. What became of the Cross Lumber Company ?

“A. I purchased the stock of the stockholders, and closed the business up myself. The business of F. A. Dudley and the Cross Lumber Company was carried on under the firm name of F. A. Dudley & Co.

“Q. State whether or not the business of F. A. Dudley & Co. was transferred to you, together with the other property of the Cross Lumber Company.

“A. Yes; an account against them on our books was.

“ Q. State whether there was any written instrument showing such transfer of the property generally.

“A. No; transfer of stock,—the only written transfer there was.

Q. You simply took the property or business yourself afterwards ?

“A. Yes.”

And on cross-examination he further testified upon the subject as follows:

Q. Now, you say that, when the Cross Lumber Company went out of business, in 1893 or 1894, this claim, together with other claims, you purchased for yourself ?

“ A. Yes, sir; that came into my hands from the purchase of the stock,—owning the stock entirely.

“ Q. Let me understand you. You say that this corporation went out of existence in 1894, or the latter part of 1893. What do you mean by that ?

“A. Why, according to the law under which we were organized, we were obliged to report to the secretary of state when the business was closed, and we did at that time, or I did it, really.

‘ ‘ Q. Was that the time the corporation went out of existence ?

“ A. Yes, sir.

Q. Closed up its business?

A. As near as it could; yes.

Q. And you succeeded to this claim by purchase of the stock from the corporation ?

“A. Yes, sir.”

We think the evidence did not conclusively show that defendant had made a promise to the plaintiff, understanding that he had succeeded to all the interests of the Cross Lumber Company. At most, this was a question for the jury. This being so, the succession of the plaintiff to the Cross Lumber Company should have been averred in the declaration. But, even if averred, it was not shown, as the extent to which the proof went was that the plaintiff had become the sole owner of the stock of the corporation. This did not entitle him to sue in his own name. Button v. Hoffman, 61 Wis. 20 (50 Am. Rep. 131).

The judgment will be reversed, and a new' trial ordered.

The other Justices concurred.


text:
    ROBSON v. DAYTON.
    1. Bonds—Sufficiency of Declaration.
    A declaration in an action on a bond conditioned for the payment of such sum as might be decreed against the principal in a suit for a partnership accounting then pending in chancery, which alleges that no portion of the amount decreed in the suit, in favor of a receiver, has been -paid, and that plaintiff is damaged thereby, sufficiently shows the relation of the receiver to the chancery suit, and the interest of plaintiff in the payment of the sum decreed, where the decree, which is set out in the declaration, contains a recital of the appointment of a receiver, and directs the receiver, out of the sum decreed, to pay the plaintiff a specified amount.
    2. Same—Consideration.
    In an action on a bond, the declaration need not aver the consideration for which it was given; and the defense that the instrument was without consideration is unavailable, unless defendant gives notice thereof with his plea of the general issue. Boyer v. Sowles, 109 Mich. 481, followed.
    3. Appeal—Trial Before Court—Special Findings. »
    The conclusions of the lower court upon the facts and law of a case tried without a jury cannot be reviewed in the absence of special findings.
    Error to Ingham; Person, J.
    Submitted November 12, 1896.
    Decided January 5, 1897.

      Assumpsit by John Robson and others against George M. Dayton and others upon a bond. From a judgment for plaintiffs, defendants bring error.
    Affirmed.

      M. V. & B. A. Montgomery, for appellants.

      Cahill & Ostrander, for appellees.
   Montgomery, J.

This action is based upon a bond made by the defendant Dayton, as principal, and his codefendants, as sureties, in the sum of $15,000, with a condition as follows:

‘ ‘ The condition of this obligation is such that whereas the above suit in chancery is pending for an accounting and settlement of a partnership heretofore existing between the parties thereto, in which each side claims rights not conceded by the other, and each said complainants and said defendant claim a sum of money due, owing, and to be decreed to them, and by mutual agreement it is understood that this obligation shall be filed: Now, therefore, the condition of this obligation is such that if the above-bounden principal shall well and truly pay all such sums of money, and perform and satisfy any final decree made against him in this cause, then this obligation to be void; otherwise, to remain in full force and effect.”

Plaintiffs recovered a judgment of $1,665:76, and defendants bring error.

Plaintiffs introduced in evidence a decree of the circuit court in chancery, in the suit pending and referred to in the condition of the bond, which provided, among other things, that defendant should pay the receiver the sum of $1,460,11, and should pay to complainants in that case (the plaintiffs in this) costs, which were shown to have been afterwards taxed at the sum of $89.85. The decree further provided that the receiver, out of the sum mentioned to be paid to him, pay to the complainants the sum of $574.08.

It is alleged that the declaration did not set out when or why a receiver was appointed, or what his relation to the chancery case was, or why the defendant Dayton should pay him any money, or how the plaintiffs were damaged by his failure to do so. The decree itself is set out in the declaration, and contains a recital that Charles F. Hammond had been theretofore appointed receiver in the cause. We think this is sufficient. We think it also appears sufficiently that the plaintiffs were interested in the payment of this money, at least to the extent of the $574.08, which was by the decree directed to be paid by the receiver to plaintiffs. This much, at least, appears.

It is also urged that no consideration was shown for the execution of the bond. We think this case is fully covered by the recent case of Boyer v. Sowles, 109 Mich. 481.

It is also contended that there is no proof that the condition of the bond has ever been violated, and no proof that plaintiffs were damaged in any way by defendant’s failure to pay the receiver; that the evidence simply shows that, during the pendency of the chancery suit, each of the parties thereto filed a voluntary bond. We find an insuperable difficulty in dealing with these various questions, growing out of the state of the record. There was no special finding of facts and law, and this court has frequently held that in such case we cannot review the conclusions reached by the court upon the facts and law. See Butts v. Davis, 50 Mich. 310; Cumming Tp. v. Schick, 94 Mich. 222; Gemberling v. Lazarus, 100 Mich. 324. The propriety of this rule is made manifest in the present case. It appears that, at the conclusion of the testimony, two requests to find were presented to the court. The first was:

“The court is requested to find, as a matter of law, that the undisputed proof in this case shows no liability on the part of the sureties on the bond, and that the verdict as to such sureties must be for defendant sureties.

“Second: Under all the proof in the case, the judgment should be for the defendants Holmes and Stahl.”

This did not suggest a failure to make a case against the principal, nor was there any request for a finding of the facts upon which a judgment should be based. The court refused to^adopt these views of counsel, and that is as far as the record goes. We think the contention of plaintiffs that, no other objection except those stated having been made upon the trial, no other is now open, is, upon this record, correct.

The judgment will be affirmed.

The other Justices concurred.