author: Grant, C. J.

text:
    MANISTEE & NORTHEASTERN RAILROAD CO. v. COMMISSIONER OF RAILROADS.
    1. Statutes — Railroads—Exemption prom Taxation — Gratuity.
    A statute extending to railroads building and operating lines within a specified territory a partial exemption from taxation does not create a contract, but confers a gratuitous privilege, revocable at the pleasure of the State.

      2. Same — Suppioienoy op Title.
    That the title of an act is not broad enough to cover certain provisions thereof does not invalidate the act as to other and independent provisions.
    3. Same — Repeal.
    The repeal by Act No. 228, Pub. Acts 1897, of the partial exemption from taxation extended to certain railroad companies by Act No. 174, Pub. Acts 1891, and Act No. 129, Pub. Acts 1893, does not deprive such companies of their exemption up to the time the repealing act took effect.

      Mandamus by tbe Manistee & Northeastern Railroad Company to compel Sybrant Wesselius, commissioner of railroads, to exclude a part of its road in computing the amount of its taxes.
    Submitted June 20, 1898.
    Writ granted October 3, 1898.
    Act No. 174, Pub. Acts 18,91, and Act No. 129, Pub. Acts 1893, provided for the taxation of railroads, and contained the following exemption clause:

      “Provided, further, that tbe rate of taxation fixed by tbis act, or any other law of tbis State, shall not apply to any railway or railroad company hereafter building and operating a line of railroad within tbis State north of parallel 44 of latitude, until tbe same has been operated for tbe full period of 10 years, unless tbe gross earnings shall equal $4,000 per mile, except in so far as said line so built shall extend south of said parallel; but no such company shall be entitled to tbe immunity from taxation herein provided, when tbe same is owned, leased, or operated by existing companies, until the report of earnings to the commissioner of railroads required by the laws of this State, containing the earnings of such lines hereafter built, separate and distinct from the earnings of existing lines, shall be made and filed.”
    This exemption clause was repealed by Act No. 228, Pub. Acts 1897. The relator was organized, and the greater part of its road constructed, prior to 1891. After the passage of that act, it extended its line from the village of Lake Ann to Traverse City, and constructed a branch 3£ miles long, known as the “ Glen Arbor Branch.” The respondent, under the act of 1897, computed the amount of tax upon the gross earnings of the entire road. The relator asks for the writ of mandamus to compel the respondent to make a new computation, leaving out that part of its road constructed after the passage of the act of 1891. ■

      M. J. Smiley, for relator.

      Fred A. Maynard, Attorney General (John Atkinson, of counsel), for respondent.
   Grant, C. J.

(after stating the facts). The relator contends:

(1) That by the extension of its road it accepted the proposition made by the State, and that thereby a contract exists between the corporation and the State, which a subsequent legislature cannot avoid by a repeal of the law.

(2) That the exemption was valid until repealed; that the repeal did not .take effect till August 30, 1897; and that the company was therefore exempt from taxation until that date, even if the repeal be held valid.

(3) That the law of 1897 is unconstitutional and void, in that it embraces two subjects, one of which is not expressed in the title.

1. The question whether such a statute creates a contract, or confers a gratuity or bounty or privilege, existing bene placitum, is no longer debatable. It is settled by a long line of decisions that they are mere gratuities. The essential element of a binding contract, viz., a consideration, is wanting. The question is ably and fully discussed in the following cases: East Saginaw Manfg. Co. v. City of East Saginaw, 19 Mich. 259 (2 Am. Rep. 82); Welch v. Cook, 97 U. S. 541; Tucker v. Ferguson, 22 Wall. 527; Grand Lodge F. & A. Masons of Louisiana v. City of New Orleans, 166 U. S. 143; West Wisconsin R. Co. v. Board of Supervisors, 93 U. S. 595. The East Saginaw Manfg. Co. Case was affirmed by the United States Supreme Court, in 13 Wall. 373.

The reasoning of these decisions is so clear and cogent that it would be useless to attempt to improve upon it. I call special attention to the opinion of Mr. Justice Cooley in the East Saginaw Manfg. Co. Case, and to the language of Mr. Justice Swayne in the Ferguson Case, on pages 573 to 575. There is no real difference in meaning between the language of the act involved in the East Saginaw Manfg. Co. Case and that in the present case, except that the former was unlimited in time, while in this it is limited. But time does not determine the character of the transaction, or change a gratuity into a contract. There was a time limit in Welch v. Cook, Tucker v. Ferguson, and West Wisconsin R. Co. v. Board of Supervisors. We have examined the cases cited in behalf of relator: State Bank of Ohio v. Knoop, 16 How. 369; Wilmington Railroad v. Reid, 13 Wall. 264; Home of the Friendless v. Rouse, 8 Wall. 438; Farrington v. Tennessee, 95 U. S. 679; University v. People, 99 U. S. 309. They are not in conflict with the holding of the other cases cited. They were all rendered by the same court, and illustrate the distinction between a gratuity and a contract. In Com. v. Essex Co., 13 Gray, 239, the consideration is clearly pointed out at page 253 of the opinion. The company, under its act of incorporation, had constructed a dam with a fishway according to its charter, and had paid all parties damnified in their several fisheries large sums of money. It was held that this was a contract which could not be repealed.

2. The body of the act of 1897 contains a clause taxing union railroad station and depot companies, which are organized under another act. The title contains no reference to the latter. It is unnecessary to consider whether the act is void as to those companies. The title of the act is sufficient as applied to railroads, and the provision in regard to station and depot companies is entirely distinct from that in regard to railroads. In such cases the act is void only as to those matters not contained in the title. 23 Am. & Eng. Enc. Law, 232, 270; Ames v. Port Huron, etc., Booming Co., 6 Mich. 266; Board of Sup’rs of Sanilac Co. v. Auditor General, 68 Mich. 659; Schehr v. City of Detroit, 45 Mich. 626. The point, however, is disposed of in the opinion in Fort-Street Union Depot Co. v. Commissioner of Railroads, ante, 340.

3. The respondent was in error in holding that relator was not entitled to its exemption until the repealing act took effect. The exemption was good, and the right to it was vested, until repealed. People v. Board of State Auditors, 9 Mich. 327; Welch v. Cook, supra.

The writ is granted, directing respondent to compute the amount in accordance with this opinion.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    MARDIAN v. WAYNE CIRCUIT JUDGE.
    1., Receivers — Divestiture of Possession — Appealable Orders.
    An order appointing a receiver, whereby the possession of property is divested, is appealable.
    2. Same — Mandamus.
    Such order being appealable, mandamus will not lie to set it aside.

      Mandamus by Rudolph Mardian to compel Sherman B. Daboll, acting circuit judge of Wayne county, to vacate an order appointing a receiver.
    Submitted June 7, 1898.
    Writ denied October 3, 1898. -

      William F. Connolly, for relator.

      Walters & Walters, for respondent.
   Hooker, J.

This is an application for a mandamus to compel the vacation of an order appointing a receiver. It has been repeatedly held that orders appointing receivers, whereby the possession of property is divested, are appealable. See Barry v. Briggs, 22 Mich. 201; People v. Jones, 33 Mich. 303; Taylor v. Sweet, 40 Mich. 736; Morey v. Grant, 48 Mich. 330; Perrin v. Lepper, 56 Mich. 351.

It is a well-settled rule that mandamus will not lie when there is another adequate remedy. The following Michigan authorities will be found to sustain this rule: People v. Jackson Circuit Judges, 1 Doug. 302; People v. Wayne County Court Judge, 1 Mich. 359; People v. Wayne Circuit Judge, 19 Mich. 296; People v. Allegan Circuit Judge, 29 Mich. 487; O’Brien v. Tallman, 36 Mich. 13; Stall v. Diamond, 37 Mich. 429; Olson v. Muskegon Circuit Judge, 49 Mich. 85; Delhi School Dist. v. Ingham Circuit Judge, Id. 432; Lloyd v. Wayne Circuit Judge, 56 Mich. 236 (56 Am. Rep. 378); Perrin v. Lepper, 56 Mich. 351; Scott v. Wayne Circuit Judges, 58 Mich. 314; Burt v. Wayne Circuit Judge, 82 Mich. 251; Eyke v. Lange, 90 Mich. 592, 104 Mich. 26; Corby v. Wayne Probate Judge, 96 Mich. 11; Thomas v. Wayne Circuit Judges, 97 Mich. 608 (McGrath, Mand. Cas. No. 853); Hall v. Wayne Circuit Judge, 111 Mich. 395; Aldrich v. Wayne Circuit Judge, Id. 525.

In the case of Hall v. Wayne Circuit Judge we applied the general' rule, and held that an order exactly like the one before us was appealable, and refused to compel its vacation by mandamus, although clearly improvident. In that case we cited the case of Scott v. Wayne Circuit Judges as directly in point. The same disposition of a similar case is found in Thomas v. Wayne Circuit Judges, 97 Mich. 608 (McGrath, Mand. Cas. No. 853).

The writ is denied, with costs.

The other Justices concurred


author: Per Curiam.

text:
    DEVINE v. WAYNE CIRCUIT JUDGE.
    Mandamus — Order Appointing Receiver.
    Case ruled by Mardian v. Wayne Circuit Judge, ante, 353.

      Mandamus by Edward D. Devine to compel Sherman B. Daboll, acting circuit judge of Wayne county, to vacate an order appointing a receiver.
    Submitted June 7, 1898.
    Writ denied October 3, 1898.

      Jasper C. Gates, for relator.

      Walters & Walters, for respondent.
   Per Curiam.

This case is ruled by the decision in the case of Mardian v. Wayne Circuit Judge, ante, 353.


author: Montgomery, J.

text:
    LIEBERMAN v. SLOMAN.
    1. Equity — Demurrer—Remedy at Law.
    A bill to restrain defendant from prosecuting an action at law against complainant growing out of a, purchase of land on their joint account, which sets up defendant’s fraudulent conduct with respect to the purchase, avers that the land is held by complainant as trustee, and asks that an account be taken, and a decree rendered establishing the respective rights and interests of the parties, and that the necessary conveyances be directed, — is not demurrable on the ground that complainant’s remedy at law is adequate.

      2. Same — Averment of Jurisdiction — Effect of Omission.
    If the case made by a bill is clearly of equitable jurisdiction, the court will sustain it, although the formal allegation that complainant has not an adequate remedy at law is omitted.
    Appeal-from Wayne; Donovan, J.
    Submitted June 10, 1898.
    Decided October 18, 1898.
    Bill by John P. Lieberman against Eugene H. Sloman for an accounting.» From an order overruling a demurrer to the bill, defendant appeals.
    Affirmed.

      Chamberlain & Guise (John J. Speed, of counsel), for complainant.

      Sloman & Groesbeclc, for defendant.
   Montgomery, J.

This is an appeal from an order overruling a demurrer to a bill in equity. The brief of the counsel for the complainant states the t facts and law so clearly that we quote from it at length:

“The case as made by the bill is, briefly stated, as follows: The parties, at the solicitation of the defendant, entered into a purchase on joint account of certain real estate. A portion of the purchase price was secured by mortgages upon the property, and, of the balance, a portion was to be paid by complainant and the remainder by defendant. The property was purchased in the name of the defendant, and he represented to complainant that the purchase price was very much larger than it actually was; and upon such representation the complainant was induced to advance $7,400 as his share of the purchase price, when in fact the entire balance above the mortgages did not exceed $6,029, the difference between this sum and the $7,400 being retained by the defendant; the defendant further representing that, in addition to the $7,400 advanced by complainant, he (defendant) had paid on account of the purchase, and as his share of the advanced payment, the sum of $1,400. It was agreed that defendant should convey to complainant the land, to be held by him in trust, and the conveyance was made, and a written agreement was made, which recited the malting of the . purchase in the name of complainant, and agreed that complainant would make certain advances of expenses and taxes and the amount payable to the mortgagees, and the defendant should take chai’ge of the platting, improvement of the property, and the sale of lots, the amount received from sales to be applied to the payment of expenses, the payment of the mortgages, and the repayment of the advances made by each of the parties, with interest at 7 per cent., and the balance divided equally between the parties. It was further agreed: ‘ And, in case the land shall not be sold within five years, then the advances of the parties hereto shall be adjusted, computing interest at 7 per cent., so that each shall have contributed one-half of all sums paid on account of the same, and thereafter the land shall be owned in common, and all liabilities shared equally; the intention being that all losses and gains shall be shared equally.’
“ The bill further alleges that, since the making of this agreement, the complainant has paid out for interest and taxes the sum of $4,596.07, and the defendant claims he has advanced moneys on account of the lands to an amount exceeding $2,300, and has commenced a suit at law to recover from complainant the amount of such advances, claiming that the agreement has been canceled by mutual consent, but which pretenses have no foundation in fact; that the mortgages have not been paid, and are due; that five years have elapsed since the purchase and making of said agreement, and the land has not been sold as provided by the agreement; and the complainant claims that he is entitled to have the advances made by each party adjusted, and such advances made by each over and above the sum contributed by the other party repaid, so that each shall have contributed one-half of the sums paid, and thereafter the lands owned in common, as provided in the clause of the agreement recited above. The complainant acknowledges that he holds the lands in trust, and he offers to convey, upon adjustment of the accounts, one-half of the property to defendant.
“ The bill prays that an account may be taken; that the representations made by the defendant as to the purchase price be decreed to be fraudulent; that the aggregate amount actually advanced by each party be ascertained, and contributions made to equalize such advances, the liabilities adjusted as between themselves, the respective rights and interests of each party in the lands be ascertained and decreed, and the defendant restrained from prosecuting his action at law against the complainant. To this bill of complaint the defendant filed a demurrer, claiming that the complainant has not made a case entitling him to relief in a court of equity, and that he has a complete and adequate remedy at law.
“The bill does not merely seek to obtain an account between the parties, nor to establish a defense to an action at law, but to obtain a decree establishing the. rights and interests of the parties in real estate which is now held by the complainant as trustee, and that the necessary conveyances in accordance with such determination be made. It is obvious that a court of law cannot deal with the entire subject-matter, and that a court of equity can alone do justice to the parties in relation to their respective rights, not only as between themselves in the matter of the accounts, but in respect to their interest in the lands, and the conveyances or releases which should be decreed. Provision should also be made with reference to the liability upon the mortgages. The remedy at law is not only wholly inadequate, but incomplete. See Blodgett v. Foster, 114 Mich. 688.
“It is not necessary to make the formal allegation that the complainant has not a complete and adequate remedy at law. It is a mere superfluity. The facts stated confer the jurisdiction. Story, Eq. Pl. § 34.”

The order appealed from will be affirmed, and the case remanded for further proceedings.

The other Justices concurred.


author: Moore, J.

text:
    E. H. CHASE & CO. v. WAYNE CIRCUIT JUDGE.
    Attachment for. Debt Not Due — Sufficiency of Affidavit.
    An. affidavit for attachment, which sets up the surreptitious transfer from defendant’s place of business to a private residence of a portion of a stock of goods purchased from plaintiff on credit, the disposition of others to personal friends financially irresponsible, the mortgaging of the stock to its full value, and the false representation to other creditors that plaintiff’s claim had been paid, — is sufficient to authorize the issuance of the writ, under 3 How. Stat. § 8016a, before the maturity of the debt.

      'Mandamus by E. H. Chase & Company to compel Joseph W. Donovan, circuit judge of Wayne county, to vacate an order quashing a writ of attachment.
    Submitted October 4, 1898.

      Mandamus granted October 18, 1898.
    Counsel for relator, in their brief, give the substance of the affidavits for attachment, as follows:
    “(a) That the defendant, Kaufman, was indebted to the relator in the sum of $1,136.
    “(6) That relator had good reason to believe that defendant was guilty of the several acts of fraud incorporated in the affidavits, admissible under the statute in reference to a debt due.
    “(c) That on February 12th Kaufman had executed two chattel, mortgages, — one to Mihalovitch, Fletcher & Co., for $1,231.24, and one to A. J. G-roesbeck, as trustee for certain creditors, for $349.18.

      “(d) That on February 12th affiant was at Kaufman’s place of business, and that a large part of the goods sold by his firm were of recent purchase, yet that deponent was able to find but a small portion of the goods at such place.
    “(e) That the stock of goods of Kaufman would not exceed from twelve to fifteen hundred dollars.

      “(f) That outside of the indebtedness of $1,231.24 to Mihalovitch, Fletcher & Co., and $349.18 to Groesbeck, and $1,136 to relator, Kaufman had other debts, to his knowledge, aggregating $2,989.59.

      “(g) That affiant had been informed by a brother of defendant that his outstanding indebtedness was from twelve to fifteen thousand dollars.

      “(h) That Kaufman, at an early hour in the morning of February 12th, had taken a wagon loaded with three barrels of whisky, and 20 new kegs, and a number of cases of liquors and wines, to the rear of the private residence of one Sol. Kaufman, on Mullet street.

      “(i) That on February 12th affiant went to the store of one Joseph Neiderlander, a friend of Kaufman, and financially irresponsible, and found a portion of his goods at the store of said Neiderlander, who claimed to have bought them.

      “(j) That affiant had made an investigation, and could find no goods or property of Kaufman, real or personal, outside of that contained in his store or in Neiderlander’s store, and in the private residence of Sol. Kaufman.

      “(k) Robert Schlesinger’s affidavit also accompanied the application. He showed that in December, 1897, and January and February, 1898, his firm, of Rosenthal & Sons, sold goods to Kaufman; that, as an inducement to such sale, Kaufman represented that he had discounted the bills of Chase & Co., and that he owed no one, of any consequence, outside of the firm of Mihalovitch, Fletcher & Co.
    “(Z) Schlesinger’s affidavit further showed that he had had frequent conversations with Kaufman, and that, besides the amounts embraced in the mortgages to Mihalovitch, Fletcher & Co. and Groesbeck, he knew that Kaufman owed certain bills, amounting in the aggregate to over $4,000.
    “(to) Further, that he had frequently been in the business place of Kaufman, and was familiar with the approximate value of the stock of goods in that store, and that, in his opinion, they would not exceed in value from twelve to fifteen hundred dollars.
    . “(n) Henry Look’s affidavit also accompanied the application, and showed that he was deputy sheriff; that a writ of attachment was placed in his hands on February 12th; that he went with the writ to the house 112 Mullet street, where he had been informed that some portion of Kaufman’s goods had been taken; that upon arriving there he discovered in the alley, in the rear, a wagon containing three barrels of whisky; that he thereupon attached the same; and that said 112 Mullet street was a private residence.”

      Warner, Codd & Warner, for relator.

      Sloman & Groesbeck, for respondent.
   Moore, J.

This is an application to require the circuit judge to vacate an order quashing a writ of attachment issued in a suit wherein relator is plaintiff and Abraham B. Kaufman is defendant. The debt from defendant was not due at the time the writ was sued out. It is claimed on the part of the respondent that the writ was properly quashed; citing Howell v. Muskegon Circuit Judge, 88 Mich. 361, and McCrea v. Muskegon Circuit Judge, 100 Mich. 375. The writ of attachment was based upon three affidavits. These affidavits, in addition to showing such facts as would have been sufficient, if the debt had been due, to entitle the relator to the writ, showed in detail such facts and circumstances as to establish, by a reasonable and logical inference, fraud upon the part of the defendant, and showed the necessity for the issuance of the writ of attachment before the debt came due. These affidavits supplied the proof of facts and circumstances which were lacking in the case of Howell v. Muskegon Circuit Judge, supra, and McCrea v. Muskegon Circuit Judge, supra. We think the affidavits comply with the requirements of the statute (3 How. Stat. § 8016a), as construed in Mosher v. Bay Circuit Judge, 108 Mich. 503.

The writ will issue as prayed.

The other Justices concurred.


text:
      In re CHUDEK.
    1. Insanity — Petition—Verification.
    A petition under Act No. 120, Pub. Acts 1897, to have a person adjudged insane by the probate court, need not be verified.
    2. Same — Indigent Insane — Appeal. ■
    Act No. 120, Pub. Acts 1897, amending section 21 of the general law respecting asylums for the insane (3 How. Stat. § 1930a et seq.), provides for an appeal “in all cases or proceedings arising under this act.” Held, that the right of appeal is not limited to cases arising under section 21, which relates to persons not in indigent circumstances, but extends to proceedings under section 23, which treats of indigent insane.

      Certiorari to Wayne probate court; Willard M. Lillibridge, acting judge.
    Submitted October 4, 1898.
    Decided October 18, 1898.
    Ida Chudek was adjudged insane, and committed to the Eastern Michigan Asylum, at Pontiac. Upon an appeal being denied to her, she sued out writs of certiorari and habeas corpus.

    Petitioner discharged.

      James H. Pound, for petitioner.

      Allan H. Frazer, Prosecuting Attorney, and Byron 8. Waite, Assistant Prosecuting Attorney, for the people.
   Montgomery, J.

The petitioner was adjudged insane by the probate court of Wayne county, Judge Lillibridge, of the Wayne circuit court, sitting in place of Judge Durfee, who was’himself the petitioner. After an adjudication of insanity, the petitioner made application to appeal to the circuit court. A bond was presented to Judge Donovan, acting as probate judge, and approved, but, after consideration, Judge Donovan directed the probate register not to receive the bond, for the reason that, in his view, the order was not appealable. The petitioner has now sued out a writ of habeas corpus, and also a' writ of certiorari, and asks a review of the proceedings, claiming: First, that the proceedings resulting in the adjudication of insanity were fatally defective; and, second, that she is entitled to be enlarged, because an appeal was regularly taken, and was authorized by statute.

1. The claim is made that the court did not obtain jurisdiction, for the reason that the petition which set the court in motion was not verified. The statute (Act No. 120, Pub. Acts 1897) does not require a verification of the petition. Counsel cites, as sustaining his contention, the case of Lindsay v. Huth, 74 Mich. 712; but that casé was decided distinctly upon the ground that the statute required the notice which was in question to be verified.

2. Under the law as it existed prior to 1897, no appeal was allowed from a determination of insanity. Sparrow v. Ingham Circuit Judge, 109 Mich. 272. In 1897 the legislature, by Act No. 120, amended section 21 of the act entitled “ An act to amend, revise, and consolidate the laws organizing asylums for the insane,” etc. (3 How. Stat. § 1930a et seq.), and provided for an appeal. The question is whether such appeal is limited to cases arising under section 21, or whether it was the intention to authorize an appeal in all cases. The present proceeding is under section 23 of the act, relating to persons in indigent circumstances. Section 21 relates to all other persons alleged to be insane. The purpose of discriminating against persons in indigent circumstances should not be lightly imputed to the legislature. The grant of an appeal was, doubtless, deemed an added safeguard against the restraint of sane persons in an asylum. Certainly, the restraint of an indigent person who is wrongly adjudged insane is as unfortunate as the restraint of one in better circumstances. The language of the statute is, “In all cases or proceedings arising under this act, any person aggrieved by any order, sentence,” etc., “may appeal therefrom.” This language became a part of section 21, and section 21 was a part of the complete act. The amendment should be read as though it was a part of the original act. When so read, the language is not su'ch as to limit the appeal to cases v arising under section 21, but applies to all cases under the act. We think the appeal should have been allowed, and, as it was duly perfected, the petitioner should be discharged from custody.

The other Justices concurred.


author: Grant, O. J.

text:
    McCARTHY v. KENT CIRCUIT JUDGE.
    Water-Craft Act — Collisions—Advisory Verdict.
    2 How. Stat. § 8261, provides that “all cases of * * * collision * * * arising under this act [water-craft act] shall be determined upon the trial or hearing, and upon appeal, according to the principles established in courts of admiralty and maritime jurisdiction in such cases.” Section 8281 provides that “the proceedings and practice under this act shall be the same as in personal actions at law, except as herein otherwise provided, so far as the same may be applicable.” Section 8259 provides that the trial shall be “by the court without a jury, unless a jury be demanded.” Held, that the findings of a jury in cases of collision are merely advisory.

      Mandamus by Michael G. McCarthy to compel William E. Grove, circuit judge of Kent county, to enter judgment in proceedings under the water-craft act in accordance with the findings of a jury.
    Submitted October 4, 1898.
    Writ denied October 18, 1898.
    Two steamboats, the Major A. B. Watson and the Trixie, both pleasure boats, collided on Reed’s Lake. The Trixie was injured. Her owner, the relator, brought suit against the Watson under the water-craft act (2 How. Stat. chap. 285). Suit was commenced.by filing a complaint, to which the owner of the Watson filed an answer. Relator demanded a jury, which was ordered. The parties, by consent, agreed to six special questions to be answered by the jury. They were not required to, and did not, render a general verdict. To the first question the jury found that the Watson was at fault for the collision; to the second that the Trixie was not at fault; to the third that the Trixie could not, by reasonable care, have avoided the collision; to the fourth that the damage to the Trixie was $162.50; to the fifth that the Trixie could have earned during the remainder of the day, but for the collision, $50; to the sixth that the Watson could have avoided the collision by the use of reasonable care. Relator moved the court for judgment on the findings of the jury. The court refused to accept the findings of the jury as conclusive, but only advisory, and found from the evidence that both boats and their masters were equally at fault for the collision, and that each should bear one-half of the damage suffered by the., Trixie, and that neither party should recover costs, and entered a judgment upon the bond which had been given for $106.25.

      Charles O. Smedley and L. E. Carroll, for relator.

      More & Wilson', for respondent.
   Grant, O. J.

{after stating the facts). Was the verdict of the jury conclusive and binding upon the court? This is the sole question presented. The statute provides that a “trial or hearing shall be by the court without a jury, unless a jury be demanded by either party. ” Section 8259. Section 8261 is as follows:

“All cases of general average, salvage, and collision, and all cases relating to sailors’ wages or to the employment of seamen, arising under this act, shall be determined upon the trial or hearing, and upon appeal, according to the principles established in courts of admiralty and maritime jurisdiction in such cases.”

It is also provided:

“The proceedings and practice under this act shall be the same as in personal actions at law, except as herein otherwise provided, so far as the same may be applicable.” Section 8281.

We think that section 8261 is conclusive against the contention of the relator. It provides that all cases of collision, whether upon trial or appeal, shall be determined according to the principles established in courts of admiralty and maritime.jurisdiction. Cases arising under this section come within the exception mentioned in section 8281. It was said in the case of The Empire, 19 Fed. 560:

“In chancery cases, the province of the jury is said to •be to ‘enlighten the conscience of the court;’ and, as the court of admiralty is but the chancery of the seas, I see no reason why we should not give it the same effect here.”

Under a much more stringent provision it was held that the verdict of the jury in an equity case was simply advisory. Basey v. Gallagher, 20 Wall. 670. See, also, The City of Toledo, 73 Fed. 220; Dunn v. Dunn, 11 Mich. 284; Brown v. Kalamazoo Circuit Judge, 75 Mich. 274 (5 L. R. A. 226, 13 Am. St. Rep. 438). The verdict of a jury is only advisory in cases of accounting by administrators, executors, and guardians. In re Pfeffer’s Estate, 117 Mich. 207.

There are other provisions of the water-craft law which throw some light upon the question. The court may refer any matter, during the progress of the cause, to an attorney or circuit court commissioner, to take evidence, and report the same to the court, with his opinion thereon; but his opinion shall not be binding on the court. Section 8260. So, in the case of an appeal to the Supreme Court, the case is heard de novo, and either party may take additional testimony, and the court shall enter such judgment or decree as shall be just. Sections 8270-8274. If the verdict of the jury is conclusive in the circuit court, it ought, for the same reason, to be conclusive in the appellate court. The legislature could not have intended that the verdict should be conclusive in one court and not in the other. A statutory provision which would lead to such a result must be so clear as to leave no doubt as to its meaning.

The writ is denied, with costs.

The other Justices concurred.


text:
    POST v. VOORHEES.
    1. Trial — Instructions not Based on Evidence.
    Where plaintiff in his pleadings based his claim upon an alleged sale of property at a specified price, and presented his proofs on that theory, an instruction that, if the jury should find that defendant was to take the property and dispose of it, and account to plaintiff after deducting an amount due, and that the value of the property was not agreed upon, the jury might fix its value, and render judgment for the balance, was erroneous.
    2. Same — Action on Contract — Evidence oe Reasonableness.
    A party who declares upon a contract cannot support it by evidence of its reasonableness until the adverse party has attacked it as unreasonable.
    8. Same — Irrelevant Testimony — Duty to Exclude.
    In an action to recover the purchase price of property, evidence by the plaintiff regarding his purchase of the same, and the amount of money he then had, which had no bearing upon the question whether or not the contract sued on was executed, should have been excluded.
    4. Same — Inconsistent Contentions.
    A claim that deeds and a bill of sale executed by the plaintiff to the defendant were mortgages, and that the plaintiff’s remedy was by foreclosure, is inconsistent with a plea admitting a sale of the property, and with the introduction in evidence by the defendant of a written release of all interest in the land, executed by the plaintiff.
    Error to Gratiot; Daboll, J.
    Submitted October 4, 1898.
    Decided October 18, 1898.

      Assumpsit by Philemon H. Post against Jacob A. Voorheesupon an alleged contract of sale. From a judgment for plaintiff, defendant brings error.
    Reversed.
    Plaintiff’s declaration contains the common counts in assumpsit, and a special count alleging the sale of certain described lands by the plaintiff to the' defendant for what they were reasonably worth, and alleges their value to be $3,000. Defendant demanded a bill of particulars, which was furnished, containing various items of personal prop erty, stock, and farm implements, aggregating $792.25. Defendant demanded a more specific bill of particulars, and also a more particular statement of the transaction contained in the special count. Plaintiff furnished an additional bill of particulars, containing a long list of the personal property, without any value attached, and then specifically set forth an agreement that the land, which was a farm, and the personal property, were agreed to be worth the sum of $4,000, and that, in consideration of the sale, transfer, and delivery of the same to the defendant, he (the defendant) had agreed to pay plaintiff therefor the sum of $4,000. The defendant, with his plea of the general issue, denied any such agreement, claimed a full and complete settlement, and that the land and personal property were conveyed to him for the amount he had advanced to plaintiff, and for which he held a mortgage upon the land for $1,300, and chattel mortgages upon the personal property for other sums. The total of plaintiff’s indebtedness to Voorhees was $2,460.74. The jury rendered a verdict for plaintiff for $1,121.12. Plaintiff’s counsel, in opening his case to the jury, based his claim for recovery upon the contract for $4,000, less the amount due from plaintiff to defendant, and plaintiff testified to it.

      J. Lee Potts {Cahill & Wood, of counsel), for appellant.

      John T. Mathews {W. A. Bahlke, of counsel), for appellee.
   Grant, C. J.

{after stating the facts). 1. In one portion of his charge the learned circuit judge instructed the jury that, if they should find the arrangement to be that defendant was to take the property, and dispose of it, or keep it, and account to plaintiff for the balance after paying what was due defendant, and the value of the property was not agreed upon, the jury might fix the value, deduct the amount due from plaintiff, and render judgment for the balance. Evidently the jury adopted this theory, for, if they found the contract as stated by the plaintiff, he was entitled to recover over $1,500. There was only one theory upon which the plaintiff could recover under his pleadings and proof, and that was a sale at the agreed price of $4,000. The above instruction was therefore erroneous.

2. Plaintiff was permitted on his case in chief to state the value of the land and of the items of personal property sold. This was not competent. If the defendant had introduced evidence tending to show that the value of the property was very much less than the price plaintiff claimed was agreed upon, for the purpose of showing the improbability of the contract, plaintiff would, of course, have been entitled to rebut it. But a plaintiff cannot support his contract by evidence of its reasonableness until the defendant has attacked it as unreasonable.

3. Plaintiff was permitted to testify to his purchase of this 80 acres, the amount of money he then had, and certain dealings between him and the defendant. These things had no bearing upon the question whether or not the contract plaintiff relied upon was made, and should have been excluded. Some of them might very naturally tend to prejudice the jury against the defendant.

4. It is claimed by the defendant that the deeds - and a hill of sale executed by plaintiff to defendant were in fact mortgages, and that plaintiff’s only remedy was in a court of equity to foreclose them. This claim is inconsistent with the defendant’s plea and notice. Both parties, by their pleadings, admitted a sale of the real and personal property, and defendant introduced a written release of all interest in the land, executed by plaintiff. The case was properly left to the jury upon this point.

Judgment reversed, and new trial ordered.

The other Justices concurred.


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    CARLAND v. WESTERN UNION TELEGRAPH CO.
    1. Pleading — Joinder oe Counts.
    A special count in assumpsit may be joined with the common ' counts.
    2. Same — Election.
    Where the common counts were practically abandoned, there being nothing in the case to support them, it was not necessary to compel an election of counts.
    3. Telegraph Companies — Failure to ' Transmit Message — Action for Damages — Assumpsit.
    An action by the sender of a telegram against the company to recover damages for failure promptly to transmit and deliver the message may be brought in assumpsit.

      4. Same — Rules and Regulations — Notice to Sender.
    The sender of a telegram is bound by the rules and regulations under which the company transmits messages only so far as they are brought to his knowledge.

      5. Same — Presumption op Notice.
    There is no presumption that business men are acquainted with the conditions usually imposed upon patrons by telegraph companies.
    6. Same — Telephoning Message to Operator.
    An operator of a telegraph company is the agent of the company in receiving over a telephone a message to be trans- ■ mitted by the company, in the absence of any showing that the company forbade such practice, or that, if it was forbidden, the sender had notice of such regulation.
    7. Same — Cipher Messages — Interpretation.
    The meaning of a cipher telegram may be shown by the sender in an action by him against the company for failure promptly to transmit the same.
    8. Same — Nondelivery—Admissions op Operator.
    A statement by a telegraph operator to the sender of a message, that it has not been delivered, made as a report of his efforts to trace the telegram, is admissible, as against the telegraph company, to show the fact of nondelivery.
    9. Evidence — Question por Jury.
    Testimony of a witness that he knew the price of wheat at C. on a certain day, where his cross-examination did not show that he had no knowledge on the subject, was sufficient to justify the court in submitting the question of such price to the jury.
    10. Contracts — Dealings in Futures — When Valid.
    Plaintiff, in January, telegraphed his broker in Chicago to buy 8,000 bushels of May wheat. In an action against the telegraph company for failure promptly to transmit the telegram, he testified that he expected to pay for and actually receive the grain. Held, that it could not be said, as a matter of law, that the contract contemplated was void as a gambling contract, within 8 How. Stat. § 9854/, prohibiting the purchase and sale of grain, etc., on margins for future or optional delivery, without intention of receiving or paying for the property so bought and sold.
    Error to Shiawassee; Smith, J.
    Submitted October 4, 1898.
    Decided October 18, 1898.

      Assumpsit by John E. Carland against the Western Union Telegraph Company for failure to deliver a message. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      John T. McCurdy, for appellant.

      Watson & Chapman, for appellee. .
   Hooker, J.

The plaintiff’s action was brought to recover damages from the defendant for its failure to promptly transmit and deliver a telegram, whereby the plaintiff is said to have suffered a loss. The record contains testimony tending to show that the plaintiff, a merchant, residing at Corunna, called the office of the defendant.at that place by telephone. Mr. Young, defendant’s agent, responded, whereupon the plaintiff asked him to take a message, which he did. The message was as follows, viz.:

“Corunna, Mich., Jan. 25, 1898.
“ To G. W. Wylie Company,
“145 Yan Burén Street,
Chicago, 111.
“Buy three May. , John E. Carland.”

It was intended to be understood to mean, “ Buy 3,000 bushels of May wheat.”

After waiting 24 hours without response to his message, the plaintiff called the defendant’s office by telephone, and was answered by Mr. Reed, Young’s assistant, who, in response to his inquiry, assured him that the message was sent. Twenty-four hours later the plaintiff called upon Young, who said he would trace the message, and he reported later that the message was never received at the Chicago office, and a duplicate of the message was sent on January 28th. The testimony tended to prove further that the price of wheat advanced meantime, and plaintiff’s agent was obliged to pay a higher price than would have been necessary had the first message been sent promptly. A verdict was rendered in favor of the plaintiff, and the defendant has brought the case to this court by writ of error.

The action was commenced before a justice of the peace. The docket shows that:

“Plaintiff declared orally on all matters provable under the common counts in assumpsit, and especially on a contract with said defendant, and files a written memorandum of said contract, and claims damages $300 or under.
Written Memoranda of Plaintiff’s Declaration Herein.
‘ ‘ Plaintiff says that heretofore, to wit, on the 25th day of January, A. D. 1898, said defendant was, and still is, a telegraph company and corporation engaged in the telegraph business, and a common carrier of telegraph messages. And on, to wit, the 25th day of January, 1898, said defendant undertook, for a valuable consideration, to wit, 40 cents, to convey and deliver for said plaintiff a telegraph message to G. W. Wylie & Co., No. 145 Van Buren street, Chicago, Ill., which message was as follows: Corunna, Mich., Jan. 25th, 1898. To G. W. Wylie & Co., 145 Van Burén Street, Chicago, Ill.: Buy three May. J. E. Carland,’ — which message instructed G. W. Wylie to purchase for said plaintiff 3,000 bushels of wheat, to be delivered to said plaintiff on May first. _ And said defendant, by its contract with said plaintiff, owed said plaintiff a duty to deliver- said telegram promptly, and without unnecessary delay. But, notwithstanding such contract and duty, said defendant wholly failed to deliver said telegram in any manner, and wholly failed and neglected so to do, and, on account of such failure and neglect of said defendant, said plaintiff was deprived of and lost large gain and profits on said wheat which the said George W. Wylie would have purchased for this plaintiff, and said plaintiff was deprived of the opportunity of purchasing said wheat on said 25th day of January, 1898, and on account of which said plaintiff has been damaged in the sum of $300, for the recovery of which this suit is brought.
“J. E. Garland.”

Several assignments of error relate to the declaration, it being claimed that it does not state a cause of action; that there is a misjoinder of counts; that the ad damnum clause, being $300, was fatal to the jurisdiction of the justice ; and that, if none of these points are valid, the court should have compelled an election of counts.

It is manifest from the record that the plaintiff did not recover upon the common counts, and that, there being nothing in the case that tended to support them, they were practically abandoned, and an election would have been an empty form.

The special count appears to have been intended as a count in assumpsit for the breach of a contract, and not a count in case for a negligent injury in the nature of a tort. See Tiff. Justice’s Guide (How. 5th Ed.), 183. It follows that, being a count in assumpsit, it was properly joined with the common counts, as “all causes of actions enforceable in assumpsit may be joined.” 1 Enc. PI. & Prac. 169.

But it is contended that there can be no recovery in assumpsit in such cases, and that the action must be case for a breach of duty, and not assumpsit for breach of contract. Counsel says that the “gist of these actions is negligence,” quoting the language of Mr. Justice Grant in Birkett v. Telegraph Co., 103 Mich. 367 (33 L. R. A. 404, 50 Am. St. Rep. 374). We think counsel has misinterpreted this language, and that there is nothing in that case which compels one having contract relations with a telegraph company to forego an action of assumpsit upon breach of the contract, and resort to an action ex delicto. It was true that negligence was the gist of that action, be_ cause the conditions which were made a part of the contract made it essential to recovery. In this case the plaintiff’s claim is that the usual conditions are not a part of the contract.

‘ Where the sender can show that, through the negligence of the company in transmitting or delivering a message, he has suffered a legal injury, there can be no question as to his right to sue for damages; and this whether the right of action be regarded as resting in contract, or in tort for the breach of public duty.” 25 Am. & Eng. Enc. Law, 824; Gray, Telegraphs, § 64; Playford v. Telegraph Co., L. R. 4 Q. B. 706, 10 Best & S. 759.

Again:

“ The action is properly one ex contractu, and based on the contract of sending.” 25 Am. & Eng. Enc. Law, 830.

In the case of Western Union Telegraph Co. v. Carew, 15 Mich. 525, cited by counsel, the action was assumpsit, and, though the case was reversed, the court seems to have recognized the propriety of the form of action by ordering a new trial. There may be cases where an action upon contract would not be appropriate, as-where the plaintiff was not a party to the contract. In actions brought by the person to whom the message is addressed, some of the courts so hold. This is so in England, where the rule is strictly enforced; but in this country there is a want of harmony upon the subject. See 25 Am. & Eng. Enc. Law, 824.

This also disposes of the jurisdictional question, as the statute (2 ITow. Stat. § 6814) confers concurrent jurisdiction upon justices of the peace in all civil actions upon contract where the debt or damages do not exceed $300. The declaration was entitled to the liberal treatment which the courts accord to pleadings in justice’s court, and sufficiently set forth the alleged contract, and its breach, to apprise the defendant of the plaintiff’s claim. This also disposes of the objection made to the introduction of the depositions.

' A number of questions relate to the alleged contract. It is contended that the contract to send the message was subject to the conditions which the defendant usually imposes upon its patrons; that Young was, by the plaintiff, made his agent to write the telegram upon the blank containing the conditions; and that receiving a message upon any other terms than such conditions would be outside of the scope of Young’s authority. Young, being the person in charge of the defendant’s business, and authorized to receive telegrams, was acting within the general scope of his authority in so doing, and the plaintiff was not bound, at his peril, to ascertain the secret instructions that the defendant had given in relation thereto. In Maryland some recognition has been given to the defendant’s contention by cases which hold that the sender of a message must be supposed to be informed in regard to the rules and regulations of the telegraph company; but the weight of authority is to the contrary. See Thomp. Elect. §§ 211, 212, for a discussion of this subject; also, 25 Am. & Eng. Enc. Law, 804; Beasley v. Telegraph Co., 39 Fed. 181. But, while this is true, if the plaintiff had knowledge of the rules and regulations under which the defendant did business, he would be bound by them so far as they were valid and binding upon others, and it was a question for a jury to determine whether he had such knowledge or not, if a question in the case.

Should it be said that Young, in receiving, by telephone and writing such message, was the agent of the plaintiff ? We are cited to several cases holding that the operator is such agent, under somewhat similar circumstances. Thus, in the case of Western Union Telegraph Co. v. Edsall, 63 Tex. 677, where, at the request of the sender of the message, it was written by the operator upon a blank of the company, which the sender signed, it was held that the operator was, as to that message and its preparation, the agent of the sender. The court said: “Evidently the operator, in the preparation of the message, was acting for the appellee, and not the company. True, he was the agent of the company to receive and forward messages, but not to write messages for others.” This case was followed in the case of Western Union Telegraph Co. v. Foster, 64 Tex. 220 (53 Am. Rep. 754). In that case the sender wrote the message, and, upon its being read over by the clerk, he (the sender) detected a mistake in it, and the clerk undertook to correct it by an interlineation, which he made in a wrong place. The court held that he was not acting within the scope of his authority, and was the agent of the sender. In a still later case the Texas court of civil appeals has sustained this doctrine. See Gulf, etc., R. Co. v. Geer, 5 Tex. Civ. App. 349. The original message, written upon a piece of brown paper, was rejected by the operator as unintelligible, and by him handed back to the person sent by the plaintiff to deliver the same. Plaintiff’s messenger stated to the operator that he was hot and nervous, and asked the operator to ’write down the message. He wrote it on a telegraphic blank, as dictated, and sent it. It was held that the operator, in the preparation of the message, was acting for the sender, and not the company, and that the plaintiff could not, therefore, complain of his act in writing the message upon the form commonly used for the purpose, and that the conditions upon the blank were binding upon the sender.

It seems to us that in the cases cited the Texas court went too far if it took judicial notice that the scope of the agent’s authority did not permit him to write messages for those desiring to send them, who, from infirmity, were incapacitated from writing the same, or were, from ignorance, unable to do so. The law does not forbid such authority, nor does it make it the duty of the sender to write the message. If the rules of the company forbade it, there is nothing in the case to show that the fact was brought home to the knowledge of the patron, and the rule would have no greater force than any other of which he was ignorant. We cannot conclude, in the absence of proof, that the telegraph companies expect their operators to turn away patrons who cannot write, or that they keep telephones in the office, but do not permit their use in their business by their patrons who send and receive messages. And we are of the opinion that such use should not be altogether at the peril of the patron, or that he should suffer for mistakes made at either end of the line, merely because such are the instructions to the operator, or made the subject of a rule of which the patron has no knowledge. It would seem more reasonable to hold such acts to be within the general scope of his authority, or, at least, hold it to be a question for a jury. There is sufficient justification for the decision in the Edsall Case without invoking such a rule, for the sender signed the message upon the blank, thus making it his own, under the current weight of authority that so holds, although the conditions be not read. 25 Am. & Eng. Enc. Law, 805, and cases cited in note 1. So, in the case of Gulf, etc., R. Co. v. Geer, supra, the message was written upon the blank by request. The Foster Case, supra, more nearly sustains defendant’s contention. We are cited to no authorities in support of the Texas cases. We are of the opinion, therefore, that the- court committed no error in holding that Mr. Young acted as agent for the defendant, under the proofs contained in the record, and might properly have instructed the jury that he was not shown to have acted as agent for the plaintiff.

It is urged that the court erred in permitting the plaintiff to testify to the meaning of the words used in the dispatch, viz., “Buy three May.” Counsel cites some authorities supporting the doctrine that such evidence is not admissible where the statute of frauds has application; but no such' question is raised here. There was no contract with the Wylie Company; merely a request to purchase something. If the language had a secret meaning, it was proper to show the fact. Ciphers play an important part in business affairs, and we see no reason why they are not as proper subjects for translation as foreign languages.

The defendant asserts further that there was no competent evidence that the telegram was not delivered. Young stated such fact to the plaintiff before sending the duplicate message, and we think this was an act within the scope of his authority, and a part of this transaction. .As it is not in any way contradicted, it is unnecessary to inquire whether the testimony of the Chicago witnesses upon the same subject was admissible or not.

We are of the opinion that the court did not err in leaving the question of the price of wheat at Chicago to the jury. The plaintiff testified that he knew what it was, and his cross-examination did not show that he had no knowledge upon the subject.

It is contended further that this telegram was sent in furtherance of a gambling contract, which would have been void under the statute, and that damages for a failure to deliver it cannot be recovered. 3 How. Stat. § 9354/, prohibits the purchase and sale of grain, etc., on margins for future or optional delivery, without any intention of receiving or paying for the property so bought or sold. If this claim were conclusively proved, so that we could find the fact as alleged, we should have no doubt that the plaintiff’s action must fail; but this is a disputed fact. The plaintiff testified that such an arrangement was not contemplated, and that he expected to pay for and receive the grain. We have no occasion to express our opinion of the matter. There was evidence for the jury, and the responsibility of justly determining this fact was theirs. Every contract for a future delivery of grain is not a gambling contract. It is only when the parties mutually understand it to be such, and no actual sale or purchase or contemplated delivery is involved, and where the one is tp pay and the other receive the amount of fluctuations in the market, that this statute applies. It is the pretended, and not the actual, buying and selling of grain, etc., that is prohibited. An extended discussion of this subject will be found in 8 Am. & Eng. Enc. Law, 1005 et seq. The subject is also fully discussed by Mr. Justice Marston in Gregory v. Wendell, 39 Mich. 338 (33 Am. Rep. 390), and later, upon another review of the same case, by Mr. Justice Cooley. See 40 Mich. 435.

The judgment is affirmed.

The other Justices concurred.


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    HENRY v. GATES.
    Justice’s Judgment — Lost Record — Parol Proof.
    Complainant, claiming to have obtained a judgment against defendant before a justice since deceased, was unable to find either the docket or any paper in the case, except one purporting to be an execution and return. He produced this in evidence, and testified that he saw the judgment entered upon the docket, but offered no proof as to the contents of the lost record. Held, insufficient to prove the judgment.
    Appeal from Branch; Yaple, J.
    Submitted October 4, 1898.
    Decided October 18, 1898.
    Bill by Warren Henry against Jesse Gates and Delos P. Leonard to reach the interest of William B. Gates, a judgment debtor, impleaded with said defendants, in certain moneys in the hands of defendant Gates as executor of the will of Ellen A. Jones, deceased. From a decree for complainant, defendants appeal.
    Reversed.

      A. L. Locke (H. H. Barlow, of counsel), for complainant.

      George Styles (H. J. Barton, of counsel), for defendants.
   Hooker, J.

The complainant obtained a judgment against William B. Gates in justice’s court for $208.79 damages and $2.30 costs, in the year 1877. Execution was issued, and returned unsatisfied, as appears from the execution. The justice is dead, and after diligent search it was impossible to find his docket, or any paper in the case except the execution and return. The issue of this execution was delayed upon the promise of Gates to sell his wheat and pay the judgment; but, after selling his wheat, he absconded, and has since lived in the State of Washington. In the year 1897, his sister, residing in Branch county, Mich., died, leaving a will, whereby she bequeathed to him her property. Immediately after her funeral, the property, consisting of securities, came into the possession of Leonard, her sister’s husband. Jesse Gates, a brother, was named as executor; and, after proceedings were instituted for the probate of the will, the complainant had a conversation with him, requesting payment of his claim, and offered to take half of it, but this was refused. Jesse Gates offered to pay him $50, and afterwards, acting under the advice of counsel, sent an assignment to William B. Gates, who signed and returned it duly signed, whereby x^e assigned to Leonard all of his interest in the estate, the proceedings to probate the will being meantime postponed. This assignment was dated September 8, 1897. It was delivered to Leonard, and he gave his note for $500, payable on or before a year from its date. What the date was does not appear, as the note does not appear to have a date. Leonard testified that he paid $400 upon the note by a draft sent William B. Gates on October 13th, and the remainder later. The complainant filed a bill soon after the will was probated, to reach the interest of William B. Gates in the hands of the executor, and some months later, on being advised of Leonard’s connection with the transaction, filed an amended bill, making him a party. From a decree in favor of the complainant, the defendants have appealed.

Defendants’ brief states that there are two questions in the case:

First, whether either of the defendants is liable to the complainant upon the merits.

Second, whether a bill in chancery will lie to establish a lost judgment of a justice of the peace, rendered in this State, there being no copy or note of the judgment.

We are convinced from the testimony in the case that the complainant had a valid claim against William B. Gates at the time that he left Michigan, but the amount of such claim does not appear. He testified that 40 years ago he had a note against him, but the note was not produced, nor is there any competent evidence to show its date or amount. The witness testified, further, that this note was sued before one Sawin, a justice, and that judgment was rendered upon it, and that he saw the entry of the judgment upon the docket. A paper purporting to be an execution issued upon such a judgment appears in the record, but such execution is insufficient to show a valid judgment. It is no less hearsay than would be testimony of oral statements of the justice to that effect.

To prove a justice’s judgment, it must be shown that jurisdiction of the defendant was obtained, and that at a proper time a trial was had and a judgment rendered, and its amount. This would be required if the docket were produced, and certainly proof that the lost docket contained as much is requisite. Kenyon v. Baker, 16 Mich. 373 (97 Am. Dec. 158); Hickey v. Hinsdale, 8 Mich. 267 (77 Am. Dec. 450). It is the rule that the loss of the record must first be shown, and 'then the substance of the contents must be established. 1 Whart. Ev. § 139. In section 140 it is said: “But, to authorize memoriter proof of a lost document or record, the witness must have read it, and be able to speak at least to the substance of its contents.” See, also, Coxe v. England, 65 Pa. St. 212. In Com. v. Roark, 8 Cush. 210, it was held that “the contents of a complaint and warrant in a criminal case, lost after being returned into court, may be proved by secondary evidence; and witnesses to prove the contents may state the substance, without giving the exact words.” See, also, Simpson v. Norton, 45 Me. 281; Hall v. City of Manchester, 40 N. H. 410.

It is manifest that anything less than a statement of the contents would be unsafe, and, especially in criminal cases, could not be accepted. It would necessarily involve an opinion of a witness to say that a judgment or warrant — i. e., a valid judgment or warrant — existed, and that would be clearly inadmissible. It has been held that previous talk of the parties as to what they proposed to agree to in the writing is not even secondary evidence of the contents of the paper. Richardson v. Robbins, 124 Mass. 105. And the opinion of the witness as to the effect of the language of a paper, the language not being given, was held inadmissible in Elwell v. Walker, 52 Iowa, 256. In 1 Greenl. Ev. § 558, it is significantly said: “Satisfactory proof being thus made of the loss of

the instrument, the party will be admitted to give secondary evidence of its contents.” This court has recognized the rule in Norvell v. McHenry, 1 Mich. 227, which implies the necessity .of proving the steps taken before judgment. See, also, Eslow v. Mitchell, 26 Mich. 500. In re Lambie’s 'Estate, 97 Mich. 55, recognizes the rule, though itself exceptional. In Showier v. Bonander, 80 Mich. 534, Mr. Justice Cahill says, upon behalf of the court: “ When parties rely upon parol evidence to establish the contents of a written agreement, they should be required * * * to show its contents by proof,” etc.; quoting with apparent approval the following: “No vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily;” citing Tayloe v. Riggs, 1 Pet. 600, and Richardson v. Robbins, supra.

It is with reluctance that we reach the conclusion that proof of judgment is wanting, and that we cannot afford the complainant the relief that we would' be glad to give him.

The decree is reversed, and the bill dismissed, with costs of both courts.

The other Justices concurred.


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    LITCHFIELD v. TUNNICLIFF.
    1. Executor’s Sale — Indirect Purchase by Executor — Recording Laws — Notice.
    Evidence of record that an executrix sold property of the estate under license of the probate court, and, on the day after the sale was confirmed and the deed executed, took a quitclaim deed to herself from the purchaser, is notice, it seems, that she was indirectly interested in the sale, contrary to the statute (2 How. Stat. § 6042).
    2. Same — Limitation of Actions — Life Estates.
    An executrix who unlawfully bids in, at a sale of decedent’s property, lands devised to her for life, and who afterwards executes to a third person a deed purporting to convey the fee, cannot rely on the statute of limitations to make the title good as against the heirs, since the heirs could not maintain ejectment in her lifetime.
    3. Same — Mortgages—Consideration.
    A mortgage executed by one who is interested as legatee in having an estate settled, to secure the performance by the executrix of her agreement either to perfect in her grantee, within a given time, the title to lands which had belonged to the estate, subject to a life interest in the executrix, and had been sold under license of the probate court, and purchased indirectly by herself, or, failing in this, to take back such title as the grantee has, paying therefor an agreed amount, is supported by a sufficient consideration.
    Appeal from Jackson; Peck, J.
    Submitted October 4, 1898.
    Decided October 18, 1898.
    Bill by Emeline A. Litchfield against Caroline E. Tunnicliff and Bob Breck Tunnicliff to foreclose a mortgage. From a decree for complainant, deféndants appeal.
    Affirmed.

      Russell O. Ostrander, for complainant.

      Charles A. Blair and Thomas E. Barkworth, for defendants.
   Moore, J.

The husband of Caroline E. Tunnicliff, one of the defendants, died in 1881, leaving a will, which appointed Mrs. Tunnicliff his executrix. The other defendant is an adopted son of Mr. and Mrs. Tunnicliff. By the provisions of the will, the widow was given a life estate in all of the real and personal property. The adopted son was given a legacy of $10,000. Included in the real estate was a home occupied by Mr. and Mrs. Tunnicliff. In 1881 a claim of $2,800 was allowed in favor of Mrs. Tunnicliff against her husband’s estate. A license was granted the executrix to sell the homestead to pay the debts, and it was sold by her, in December, 1881, upon the bid of Andrew J. Gould, for $3,500. The sale was confirmed by the judge of probate, and a deed was executed to Mr. Gould, who upon the next day executed and delivered to Mrs. Tunnicliff a quitclaim deed of the premises. Mr. Gould purchased the property for Mrs. Tunnicliff. Payment for it was made by Mrs. Tunnicliff crediting the estate $2,500 received for the property, and charging it with a like amount paid upon her claim against the estate. She remained in possession of the property until October, 1883, when she conveyed the property, by a deed with the usual covenants of warranty, to the complainant and her husband, who went into possession. Later, Mr. Litchfield deeded his interest in the premises to his wife, the complainant.

In 1893 a dispute arose over the line between the property and the adjacent property, when the title conveyed to Mr. and Mrs. Litchfield was questioned, upon the ground that it was unlawful for the executrix to purchase the real estate, directly or indirectly, sold by her at executrix’s sale. Both parties to the deed conceded there was some question about the title, and efforts were made for the purpose of perfecting it. Mrs. Litchfield claimed she was entitled to a title about which there could be no question, and this claim was conceded by Mrs. Tunnicliff and her adopted son. It was finally agreed between the parties that Mrs. Tunnicliff should perfect the title within one year, or, in default thereof, that she would repurchase the property from the complainant for $4,000. To secure the performance of this agreement, Bob Breck Tunnicliff, who was interested, as a legatee under the will, in having the estate settled, made a mortgage to the complainant. This mortgage was drawn by an able lawyer, and the parties all understood the purpose for which it was made. There •were a number of nonresident heirs to the property, and an effort was made to obtain deeds from them. The effort was not successful. At the end of the year, Mrs. Tunnicliff refused to repurchase the property. The complainant. instituted this proceeding to foreclose the mortgage. A decree was entered in her favor. From this decree, defendants appeal, claiming—

First. That the mortgage was given without consideration.

Second. That the sale made by the executrix was not void.

Third. That the statute of limitations has made the transaction good.

As to the last claim it may be said ejectment could not be brought by the heirs of Mr. Tunnicliff against Mrs. Tunnicliff or her grantee during her lifetime, for the reason that by the terms of the will she was given a life estate in the property.

2 How. Stat. § 6042, reads as follows:

“The executor or administrator making the sale, and the guardian of any minor heir of the deceased, shall not, directly or indirectly, purchase or he interested in the purchase of any part of the real estate so sold, and all sales made contrary to the provisions of this section shall be void.”

This statute has been before this court several times, and the cases are cited in the note to this section. The authorities are not altogether uniform in deciding whether such sales are void or only voidable. See Freem. Void Jud. Sales, § 33; McGraw v. Daly, 82 Mich. 500; Otis v. Kennedy, 107 Mich. 312. We do not deem it necessary to decide whether the title obtained by Mrs. Litchfield was void or simply voidable. The record in the office of the register of deeds showed, long before Mrs. Tunnicliff conveyed the property, that she got her title by means of a quitclaim deed from Gould, dated but a day later than his deed and the order confirming the sale to him. It might well be argued that this was notice to all subsequent purchasers that there was a question about the validity of the sale.

When the complainant obtained her title, she was assured by Mrs. Tunnicliff it was good. She paid for a good title.' At the time the mortgage was drawn, it was conceded there was a question about the title; and it was agreed that, if Mrs. Litchfield would give Mrs. Tunnicliff a year in which to perfect the title, she would do so, or take back such title as Mrs. Litchfield had, paying her $4,000 for it. This was consented to by Mrs. Litchfield, and the mortgage was drawn. The consideration was sufficient. The default in the mortgage had occurred. The decree was properly entered, and it is affirmed, with costs to complainant.

The other Justices concurred.’


author: Long, J.

text:
    GARNER v. WALLACE.
    1. Tax Sales — Proof of Publication — Sufficiency.
    An affidavit attached to a copy of the petition of the auditor general for the sale of lands delinquent for taxes, and of the order of hearing thereon, stating that “the annexed printed notice was printed * * * for-successive weeks, at least once in each week, which publication commenced on the 23d day of September, 1893, and terminated on the 21st day of October, 1893,” sufficiently shows a publication of said petition and order once in each week for four successive weeks, as required by section 66 of the tax law of 1893.
    2. Same — State Lands — Transmission of Lists to Treasurer.
    The provision of section 78 of the tax law, requiring the auditor general to furnish to the county treasurer, in October of each year, a statement of all lands theretofore bid off to the State, then remaining unredeemed, was not designed for the benefit of the landowner, and hence a delay in forwarding such statement will not invalidate a subsequent sale by the State.
    3. Same — Notice of Sale.
    And, for the same reason, the notice of sale of such lands, provided for by section 79, need not contain a description of the lands.
    4. Same — Deed as Evidence.
    An objection that a tax deed fails to recite the statutory authority for its issuance, and is therefore inadmissible to prove title in the grantee, is without force, where the fact that it was executed in pursuance of the statute appears from the files and records in the tax proceedings, which are introduced in evidence.
    Error to Huron; Beach, J.
    Submitted October 4, 1898.
    Decided October 18, 1898.
    Ejectment by William A. Garner and George F. Brown against James O. Wallace, Roxiana Wallace, and Frank W. Hubbard. From a judgment for defendants on verdict directed by the court, plaintiffs bring error.
    Reversed.

      Black & Brown, for appellants..

      W. T. Bope (Bacon & Palmer, of counsel), for appellees.
   Long, J.

This action of ejectment is brought by plaintiffs to recover possession of 160 acres of land in Huron county. They claim title under a tax deed for the taxes of 1891. The defendants Wallace are the owners of the original title, and reside upon the land, and defendant Hubbard has an interest in it as mortgagee. The court below directed verdict in favor of defendants, and plaintiffs bring error.

The court, in directing the verdict, based his charge upon the insufficiency of the proof of publication of the petition of the auditor general, and the order thereon for the sale of the lands for taxes. The affidavit recites:

“State oe Michigan, ) County of Huron. [
“B. F. Browne, of Sand Beach, Michigan, being duly sworn, deposes and says that he is one of the proprietors and publishers of the Huron Times, a newspaper printed and circulated in said county of Huron, and that the an-. nexed printed notice was printed in said newspaper for -successive weeks, at least once in each week, which publication commenced the 23d day of September, „1893, and terminated on the 21st day of October, 1893.”

The proper jurat was added.

Section 66, Act No. 206, Pub. Acts 1893, provides that—

“The auditor general shall cause a copy of said order and a copy of said petition to be published at least once in each week for four successive weeks next prior to the time fixed for the hearing thereof.”

The proper petition and order were annexed to this affidavit, the petition being duly signed by the auditor general, and the order signed by the circuit judge of that circuit, stating that the petition would be brought on for hearing on October 23, 1893, at the opening of court on that day, and that the lands described in the petition would be sold at the office of the county treasurer on the first Monday of December thereafter. No further proof of publication other than by this affidavit was made on the trial, and counsel for defendants contend that this affidavit does not show a publication for any number of successive weeks, but only that tfie first publication was on September 23, 1893, and the last one October 21st thereafter; that nothing appears in the affidavit from which it can be inferred that there were any publications between said dates, and therefore it does not show that the petition and order were published at least once in each week for four successive weeks, as required by the statute.

We cannot agree with this contention. The affidavit shows that the annexed printed notice (that is, the petition and order) was printed and published at least once in each week, which publication commenced on September 23, 1893, and terminated on October 21, 1893. Certainly, language could not be employed which would more strongly show that there was a publication at least once in each week between said dates, and hence there was a full compliance with the statute. Once in each week between these dates could not be otherwise than successive weeks. This needs no citation of authority.

Section 78 of the tax law of 1893 provides that—

“ The auditor general shall furnish to each county treasurer in the month of October prior to the month of December in the year in which such tax sales are held, as provided in this act, a statement of all lands in his county that may have been bid in for the State, then remaining unredeemed or not otherwise discharged,” etc.

It appeared by the testimony of the chief clerk of the auditor general’s office that this list was not sent to the county treasurer of Huron county for the year 1894 until November 7th, for the year 1895 until November 2d, and for 1896 until November 20th, and that the land in controversy was included in these lists each year. It is contended that for this reason the sale was void, as the landowner had the right to have these lists sent to the county treasurer, so that he might know that his lands were contained therein; and that this statute was enacted for his benefit.

We think this contention has no force whatever. The lands after sale are redeemable at the county treasurer’s office, as well as at the office of the auditor general. Defendants had one year from the date of the sale to redeem. They could have found the status of the lands in the county treasurer’s office as well before these lists were transmitted to that office as afterwards. They were deprived of no rights by the delay in the transmission of the lists, and the information was as open to them before as after-wards. Their land had been sold and bid in by the State at the sales of 1893. The original lists remained in the office of the county treasurer, and showed that the land was sold and bid in by the State. By inquiry there, they would have found that they could redeem, there, as well as at the office of the auditor general. This statute was not intended to give the landowner any greater rights, but was passed for the purpose of enabling the county treasurer to know what lands remained unredeemed at the auditor general’s office. The statute is not mandatory, but merely directory, and for the convenience of the county treasurer.

Section 79 of the tax law of 1893 provides that—

“The auditor general shall cause to be published for four weeks successively, which shall be construed to mean four publications once a week, next previous to the first Monday of December in the years provided by this act, a notice that the lands described in such statement will be offered for sale at public auction at the time and place designated for the regular tax sales,” etc.

These notices were published for the years 1894, 1895, and 1896, and each contained a statement that “said statements contain a full description of each parcel of said lands, and may be seen on application at the office of the county treasurer after they are received by him.” It appears that none of these notices contained or had attached to it any descriptions of land. It is contended that they should have contained such descriptions of land as wbre to be sold; that it was the evident intent of the legislature to give the landowner a second notice before the redemption expired.

This statute refers to lands which had been bid in by the State in former years, and were still held by the State; and its intent was to enable the State, by another offering, to dispose of the lands for the taxes, interest, and expenses it had incurred in bidding them in. It was not for the purpose of giving the owner of the land further notice before the period of redemption expired. If these notices had not been published, the landowner whose lands had been bid in by the State the 1st of December previous could not contend that the time for redemption had been extended, by such failure to publish the notices. Such owner had a year after sale to redeem, and no more, whether the notices were published or not. It will clearly be seen that it was not for the benefit of the landowner that such statements should be published, and the statute does not require the lists of such lands to be inserted in or attached to the notice. The lists are published the year previous, and, the owners failing to pay, the State takes the bids, in the absence of other bidders. It would be a useless expense to republish the list the succeeding year. The lists are filed with the county treasurer, and any party who desires can redeem his lands, or purchase the bid of the State.

It is also contended that, the deed not reciting that it was made in execution of the statutory power, it could not properly be received as evidence of the plaintiffs’ title. The statute does not give the form of the deed to be executed on tax sales. This deed was executed by Stanley W. Turner, as auditor general of the State, and recites:

“That whereas, in pursuance of the provisions of law, the said parties of the second part, on the 28th day of December, A. D. 1896, became the purchasers of the rights of the State in and to the following described lands, situated in. the county of Huron, in said State, which were bid off to® the State for the taxes assessed thereon in the year 1891,” etc.

. The defendants put in evidence all the proceedings for the sale of the land, including the petition of the auditor general,.the order made by the court for the publication thereof, the publication of the petition and order, as well as the decree of the court for the sale of the land. Even if the recitations in the deed were not sufficient to permit the deed to be received as evidence of title, — a point which we need not pass upon, — yet the proceedings and the decree ordering sale show that the deed was made in pursuance of the statute, and together were sufficient to show title in the plaintiffs.

The court should have directed verdict in favor of plaintiffs. The judgment below must be reversed, and a new trial granted.

The other Justices concurred.


text:
    BAAR v. KIRBY.
    1. Municipal Corporations — Resolutions oe Council — Lodging Veto with Clerk.
    Under Act No. 215, Pub. Acts 1895, chap. 9, § 3, giving the mayor of a city of the fourth class three days after the passage of an ordinance or resolution by the council within which he may lodge his veto in the office of the clerk, the placing of a veto in the hands of the clerk at his residence in the evening, within the prescribed time, after making an ineffectual attempt to gain admittance to his office in the afternoon, is sufficient to give the veto effect.
    2. Same — Veto Power.
    Under the further provision of the same section that “no ordinance or resolution ” shall have any effect in such case unless passed over the veto, a resolution transferring moneys from the contingent to a special fund may be vetoed.

      Certiorari to Ottawa; Padgham, J.
    Submitted October 4, 1898.
    Decided October 18, 1898.

      Mandamus by Jacob Baar, mayor of the city of Grand Haven, to compel Thomas E. Kirby, city clerk, to file a veto message. From an order denying the writ, relator brings certiorari.

    Reversed.

      Charles O. Smedley, for relator.

      Charles E. Soule, for respondent.
   Long, J.

Relator is the mayor of the city of Grand Haven. Respondent is the clerk of that city. It appears that at a regular meeting of the common council of that city held on June 2, 1898, a resolution was adopted by a majority vote of that body to transfer the sum of over $7,000 of the contingent funds in the city treasurer’s hands, and divide and apportion said moneys to several different funds. The relator, as mayor, on June 3d filed a notice with the clerk that it was his intention to veto the resolution. On Saturday, June 4th, he prepared his veto, went to the office of the city clerk about 25 minutes after 4 o’clock in the afternoon, and found the office locked and the clerk absent. He found the clerk at his residence about 7 o’clock in the evening of that day, and left the veto message with him for filing on that day; and relator claims that he was given to understand the clerk would so file it. The clerk in fact did not place the filing thereon until the following Monday, which was June 6th. The relator presented a petition to the circuit court for Ottawa county for a mandamus to compel the clerk to file said veto message as of June 4th. In that petition he sets out-the facts above set forth, and alleges that —

‘ ‘Afterwards, at a meeting of said city council held on June 9, 1898, the said veto was ignored and considered by said city council as null and void, because it was not filed within the statutory period (which statutory period was three days, and expired June 5th); and the said council gives it out and says that the said veto is null and void and -of no effect, and that said Alderman Kiel’s report and resolution are valid, and that said council will consider the same valid, and shall consider said veto invalid.”

On return to an order to show cause, counsel for respondent, without filing an answer, moved that the peti tion be quashed, on the grounds:

(1) That it did not show upon its face that the veto had been lodged in the office of the city clerk within the period prescribed by the charter.
(2) That it did not show any resolution subject to the mayor’s veto.

This motion was granted by the court below. The case comes to this court by writ of certiorari.

The report of the committee'which the resolution adopted recommended the transference from the contingent fund of $7,084.88, and placed it in several funds, such as electric light fund, fire department fund, general street fund, water fund, police fund, poor fund, bonded debt fund, etc. It was the resolution adopting this report that the majmr attempted to veto, in which veto he claimed that it was illegal to divide the contingent fund, and distribute it to these several funds. Whether it was legal or not we do not attempt to decide. The city of Grand Haven is of the fourth class, under Act No. 215, Pub. Acts 1895. By the act, the mayor is made the president of the council, but he has no vote therein except in case of a tie, when he has the casting vote. Section 3, chap. 9, of the act, provides:

“No ordinance or resolution passed by the council shall have any force or effect if, on the day of its passage, or on the next day thereafter, the mayor, or other officer or person legally discharging the duties of mayor, shall lodge in the office of the clerk a notice in writing suspending the immediate operation of such ordinance or resolution. If the mayor, or other officer or person legally exercising the office of mayor, shall, within three days after the passage of any such ordinance or resolution, lodge in the office of the city clerk his reasons in writing why the same should not go into effect, the same shall not go into effect, nor have any legal operation, unless it shall, at a subsequent meeting of the council, be passed by a two-thirds vote of all the aldermen elect, exclusive of the mayor, or other officer or person legally exercising the duties of the office of mayor, and, if so repassed, shall go into effect according to the terms thereof. If such reasons shall not be lodged with the clerk as above provided, such ordinance or resolution shall have the same operation and effect as if no notice suspending the same had been lodged with the city clerk; and no ordinance or resolution of the cquncil shall go into operation until after the expiration of twenty-four hours after its passage, unless the said mayor, or acting mayor, shall approve the same in writing. ”

1. We think the veto message was lodged in the office of the city clerk within the time prescribed by the statute, within its meaning. The mayor gave the notice required by the act, which suspended the immediate operation of the resolution, and this was followed up by the veto message within the time required. It is true that he did not find the clerk in his office in the afternoon; but at 7 o’clock that evening he placed it in his hands, and it became the, duty of the clerk to at once place the filing thereon. The statute cannot have the restricted meaning sought to be placed upon it. The lodging of the message in the office of the city clerk was accomplished when it was placed in the hands of the city clerk for filing in his office within the time prescribed.

2. The claim that it was not a resolution which, under the statute, the mayor had the power to veto, has no force. The statute provides that no ordinance or resolution passed by the council shall have any force or effect if the notice is given, and such ordinance or resolution shall not go into effect when the veto message is interposed within the time prescribed, unless the same is passed over the veto by a two-thirds vote of all the aldermen elect.

The order made by the court below will be vacated, and the writ of mandamus issued as prayed, with costs of this motion. -

The other Justices concurred.