author: Hooker, J.

text:
    STUART v. GREANYEA.
    1. Fish — Fishing Rights — Nature.
    The right to fish in the waters of the Great Lakes, like the right to navigate, is a public right, which extends to all portions of the lakes.'
    2. Navigable Waters — Fishing Rights —Statutes—Construction.
    In Act No. 122, Pub. Acts 1905, giving shore owners in Arenac and Iosco counties an exclusive fishing right in front of their lands extending two miles out, it was not the legislative intent to limit the right to those owners whose frontage is situated opposite the open waters of Saginaw Bay, thus denying it to a portion of the owners of frontage upon coves, but the intent was to confine the right of each landholder to the limits of pre-existing riparian rights, and to the rules applicable to the determination of such limits, except as to the distance the right extends into the bay.
    3. Same — Riparian Rights — Extent.
    Though riparian rights in the Great Lakes do not extend beyond access to navigable water, every shore owner has such right of access, subject to the general right of navigation.
    4. Same — Wharf Rights.
    It is the general rule that frontage on navigable waters for wharfage is proportionate to the extent of shore frontage.
    5. Same — Fishing Rights — Determination—Cove Frontage.
    Under Act No. 122, Pub. Acts 1905, in marking the boundaries of the rights of the owners of frontage upon coves, a base line should be drawn between the headlands of the cove, to which all boundary lines will converge; and in case there be frontage from which straight lines cannot be drawn intersecting the base line, secondary base lines should be drawn, between inner headlands, if any, if not to the center of the cove; and the several base lines should then be divided proportionately to the shore frontage of the owners.
    Appeal from Arenac; Sharpe, J.
    Submitted June 11, 1908.
    (Docket No. 69.)
    Decided September 10, 1908.
    Bill by John Stuart against Joseph Greanyea and others to enjoin fishing in certain waters. From a decree for complainant, defendants appeal.
    Reversed, and remanded.

      W. C. Cook, for complainant.

      S. E. Hayes (De Vere Hall and E. V. Ingersoll, of counsel), for defendants.
   Hooker, J.

The parties to this suit own adjoining premises, bordering Saginaw Bay. The complainant’s bill was filed to enjoin defendants from fishing with set nets within two miles of the shore at a place alleged to be in front of complainant’s land, and in which he had riparian rights, and defendants had not. The defendants have appealed.

Apparently it is claimed by counsel for both parties that fishing in the Great Lakes was in common until the enactment of Act No. 94, Laws 1869. That was a statute which prohibited the placing in waters where fish are taken by the legal owner or occupant of adjacent lands any ship ballast, stone, sand, coal cinder, ashes, log slabs, decayed wood, bark, sawdust, or obstruction or filth of any other description, or placing or driving any pound net piles or stakes or any other piles or stakes or posts, or building any platforms or pier or any species of seines or continuous trap nets to the extent of the breadth of such legal # owner or occupant’s lands so far as the channel banks of rivers, and to one mile from the beach or shore, at low-water mark of the lakes, straits, inlets, and bays or said waters fronting such owners’ or occupants’ lands, and subjecting any boat owner or captain to punishment who should wilfully run into or molest any pound net, etc. In 1905 an act was passed prohibiting any person, for the purpose of fishing, from driving any stakes or setting or placing any nets in the waters of Saginaw Bay contiguous or adjacent to the shores of Arenac and Iosco counties for

a distance of two miles from said shores, unless such person is the lawful owner or occupant of the shore frontage opposite to. which said stakes are driven or nets set or placed, or unless such person shall have a license to do so from said owner or occupant. Section 2 made the act penal, and also provided a civil liability, damages to be recovered by such owner, occupant, or licensee in an action of trespass. See Act No. 122, Pub. Acts 1905.

Assuming that the law is constitutional and gives exclusive rights — questions not before us on this record — it is only necessary to decide where the line separating rights under it should be located in Wigwam Bay, for there is nothing indicating a necessity that it be settled for the. entire two miles, unless it shall be found necessary to do so in order to determine its location in Wigwam Bay. We think it is not. We attach a map to this opinion.

The lands of the parties are upon sections 35 and 36; and the boundary line between them is at or near the center of what is called “Wigwam Dredge Cut,” shown on the map by a heavy black line, a short distance east of the section line between the sections named. This cut was made for the purpose of floating logs, and it is our understanding that it extends from Rifle river to Wigwam Bay, and is a short cut for bringing logs from the river to the mills on that bay, and that fish are in the habit of going through the cut, on their way to the river, during the spawning season. Wigwam Bay, so called, has an area of something over two miles. It is shallow, and at each end there is a pronounced cove, owing to the existence of two promontories or capes that extend toward the east and southwest, respectively. The easterly one is called ‘ ‘ Green’s Point, ” the westerly ‘ ‘ Pine River Point. ” The testimony convinces us that a bar opposite or immediately in front of the entrance of the cut deflects the main channel from the cut toward Green’s Point, and that the fish as a rule follow this channel. The defendants, before the filing of the bill, have, at times, set their nets across the entire front of the complainant’s lands, but we understand that they now claim only the right to extend their nets from the center of Wigwam dredge cut at the outlet, south six degrees east, into the bay, for a distance of two miles, and that their nets were so set at the time of the hearing. On the other hand, the complainant contends that the line should be ascertained by finding the center line of Saginaw Bay, and running a line at right angles therewith to the boundary line between the parties’ lands, or, if that is not the rule, such line should be run at right angles with the line of navigable water; i. e., the line separating the blue and green water where the depth is about 16 feet, some distance outside of Wigwam Bay. If defendants’ contention is correct, viz., that they have an exclusive right of fishing, the entire width of their land for two miles out, it is obvious that every other proprietor cannot have a similar right, for the reason that the opening of the bay is not wide enough to accommodate all. Moreover, if “opposite” is held to mean strictly “in front of,” any attempt to extend straight lines for two miles would make confusion through the intersection of lines. If, on the other hand, complainant’s theory is to be adopted, all abutting premises lying-east of defendant’s land will be cut off from such right by Green’s Point. We understand it to be conceded by both parties that, previous to the enactment of the statute of 1869 referred to, the riparian rights of abutting proprietors did not include an exclusive right to set nets in the waters included in what are ordinarily denominated “riparian waters,” and that riparian rights, whatever they were, did not necessarily extend two miles or one mile from shore. We have often said that the right to fish, like the right to navigate, was a public right, and that it extended to all portions of the lakes. Sterling v. Jackson, 69 Mich. 509. See People v. Silberwood, 110 Mich. 103 (32 L. R. A. 694); People v. Warner, 116 Mich. 228; Brown v. Parker, 127 Mich. 390, which recognize the rule. See, also, Ainsworth v. Fishing Club, 153 Mich. 186. It would seem to follow that the right asserted here by each party is no more than a statutory right; and that we understand to be their claim. Whether it is open to the criticism of being class legislation, and whether the legislature may grant exclusive rights of fishery over any portion of the public waters, are questions that we will not pass upon in this case, as we cannot properly do so upon this record.

Assuming it to be a valid statutory right, we must ascertain the meaning of the statute. An easy way to dispose of it would be to adopt defendants’ theory that it was intended to give every abutter an exclusive right to fish on a strip as wide as his lot extending out two miles, and, if the shore were straight and there were no headlands, no objection could be made to it. But it is not straight and shores seldom are; and counsel have not been able to suggest any rule of division that seems to offer a fairer solution than the general rule for the ascertainment of access to navigable water. This rule would give every landowner on the bay a right of access to a two-mile area, but the shore of Wigwam Bay is much longer than the distance between the headlands at the entrance of the bay, and, as the lines of all must pass between the headlands in order to extend to the two-mile limit, one of two things necessarily follows: (1) That lands whose frontage collectively equals the distance between headlands only can have such rights under the statute; or (2) such lines must all converge. If we were to adopt the former theory, we should then be perplexed to ascertain which of the several parcels were to be denied the right. If the latter, we are confronted with the question whether any of the shore line between headlands should be omitted from the operation of the statute, and, if so, how far this omission should extend. The difficulties of the former and the palpable injustice of an arbitrary selection of. favored lands leads us to discard it. We cannot believe that such was the legislative intent, and we are therefore forced to the conclusion that the real intent was to confine the right of each landholder to the limits of pre-existing riparian rights, and to the rules applicable to the determination of such limits, except as to the distance the xfight extends into the bay, riparian rights in the Great Lakes not extending beyond access to navigable water, whereas these rights may. As we understand these rights and rules, every shore owner has a right of access to navigable water, subject to the general right of navigation. If we assume that the line of navigable water is outside of Wigwam Bay, all lines must converge to the distance between headlands. The corners of the abutting parcels furnish starting points for each parcel. Therefore we should take an imaginary line from Pine River Point to Green’s Point as a base line, to which the various lines must converge. A glance at the map is sufficient to show that there are lands from which a straight line could not possibly intersect the base line, and it is therefore necessary to establish another base line. Were there headland on both sides of the inner coves, we should perhaps take those as termini for such inner lines, but there are not, and we therefore establish the center of the shore line as the point to which lines from Pine River Point and Green’s Point shall converge, and meet. Lines from the shore will run to those inner base lines, striking the same at points proportionately the same distance apart as on the shore line, and the process will be repeated in running the lines between the base lines. This seems to us to be the only practicable method of making a fair division.

We should consider whether this disposition of the question has the sanction of authority. We deem it an elementary rule that all shore owners on the lakes have a right of access to navigable water, if it is feasible to give it to them, and that it is the general rule that frontage on navigable waters for wharfage is proportionate to the extent of shore frontage. For this State the question was settled in Blodgett & Davis Lumber Co. v. Peters, 87 Mich. 498, and the method to be adopted in ordinary cases is there pointed out. But that case, recognizing the difficulty of an inflexible rule, gives prominence to the fact that a fair apportionment is the object in view, and asserts the propriety of modifying the rule, to that end, where circumstances seem to require it. Something like the modification in this case was resorted to in that case. See, also, Gould on Waters (3d Ed.), §§ 149,164,165. Under this plan, the rights of these parties can be easily ascertained. Manifestly, a line from the center of the shore line to the center of the outer base line can be easily fixed. To ascertain the boundary line, it is only necessary to ascertain the distance from the center of the shore line to the point on the shore where the lands of the parties meet, and a proportionate distance on the base line. A straight line between them will be the boundary. It is illustrated upon the map. As shown there, the nets represented by the dotted line appear to be wholly within the defendants’ allotment, but we cannot be sure that our measurements are accurate.

We cannot ascertain from the proofs in the case the length of either base line or the center of the shore line. Therefore we find it necessary to remand the cause, with directions to the trial court to take the necessary proof and make such changes in the decree as may be necessary to make it comply with the requirements of this opinion. Costs of this court will abide the event.

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


source: Caselaw Access Project

author:
Grant, C. J.
      Hooker, J.

license: Public Domain

text:
      In re PHILLIPS.
    1. Certiorari — Propriety—Existence op Other Remedy.
    The writ of certiorari is not usually allowed where there is an other and adequate remedy.
    2. Guardians — Appointment — Procedure — Findings — Necessity.
    The law makes no provision for a finding of facts and law by the probate court in proceedings for the appointment of guardians, and the court cannot be compelled to make such findings.
    8. Insane Persons — Determination op Incapacity — Courts— Jurisdiction.
    The probate court, and upon appeal the circuit court, is the proper forum in which to determine the fact of mental incapacity.
    4. Same — Findings—Conolusiyeness on Appeal.
    In proceedings for the appointment of a guardian of an alleged insane person, the person charged is entitled to a finding by a jury as to his mental condition, if he so elect, and the verdict, or the finding in case there is no jury, is conclusive, if there is evidence to sustain it.
    5. Same — Appeal—Review—Extent—Sufficiency of Evidence.
    Before this court can review the question whether there was evidence upon which to base a finding of mental incapacity, on writ of error to the circuit court, it must have before it the entire testimony, from which it must conclusively appear that there was no evidence showing mental incapacity.
    6. Certiorari — Propriety — Insane Persons — Appointment of Guardian.
    A writ of certiorari to the probate court to review upon the merits the action of the court in making a finding of mental incapacity and appointing a guardian of an alleged incompetent, was dismissed.
    Certiorari to probate court of Houghton; Bentley, J.
    Submitted June 11, 1908.
    (Docket No. 82.)
    Decided September 10, 1908.
    Petition by Arthur Phillips for the appointment of a guardian of the person and estate of Gertrude C. Phillips, an insane person. There was an order granting the petition, and respondent brings certiorari.
    Writ dismissed.

      W. J. Galbraith, for petitioner.

      Hanehette & Lawton, for respondent.
   Grant, C. J.

This case is before us on the writ of certiorari to review the order of the probate court of the county of Houghton appointing a guardian of the person and property of Gertrude C. Phillips as an insane person. The probate judge made a finding of facts, and found as a conclusion therefrom that a guardian should be appointed over the person and property of Mrs. Phillips. The order made by the probate court adjudging her mentally incompetent to have the care and control of her business and appointing a guardian makes no reference to the judge’s finding of facts. No jurisdictional questions áre raised. No attack is made upon the regularity of the proceedings. It is sought now by the discretionary writ of certiorari to review the case in this court upon the merits, and have this court determine whether, upon the finding made by the probate court, the adjudication as to the mental condition and capacity of Mrs. Phillips was correct.

Counsel cite no precedent for this proceeding. The statute provides for an appeal to the circuit court. The testimony taken before the probate court is not before us, but only the conclusion of the probate judge as to facts to be drawn therefrom. The writ of certiorari is not usually allowed where there is another and adequate remedy. Farrell v. Taylor, 12 Mich. 113; City of Ishpeming v. Maroney, 49 Mich. 226; John Hancock Mut. Life-Ins. Co. v. Hill's Estate, 108 Mich. 129; John Hancock Mut. Life-Ins. Co. v. Wayne Probate Judge, 97 Mich. 613. The law makes no provision for a finding of facts and law by the probate court in proceedings for the appointment of guardians. The court could not have been compelled to make such finding. Why it did so in this case does not appear. It may have been at the request of counsel in order to raise the question of her mental capacity by certiorari rather than by appeal. The probate court (and upon appeal the circuit court) is the proper forum in which to determine the fact of mental incapacity. The person charged with such incapacity is entitled to a finding by a jury as to his mental condition, if he so elect. The verdict of the jury would be conclusive if there was evidence to sustain it. We can no more weigh the evidence in a case when a jury has determined the question than in a case where the court has determined it. We must not be understood as holding that, if there is no testimony showing mental incapacity, that question might not be reviewed in this court by writ of error from the circuit court; but in such case the court must have before it the entire testimony, from which it must conclusively appear that there was no evidence showing incapacity.

The writ is dismissed.

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

Hooker, J.

I concur in the result reached in this case, but think that the practice of issuing a certiorari, especially from this court, should not be encouraged where an appeal will lie to the circuit, as in this case. We have jurisdiction of the case, however, under former decisions. In addition to those cited by Chief Justice Grant, see Coot v. Willett, 93 Mich. 305. Were it a new question, I should think the writ improvidently issued.


author:
McAlvay, J.
      Grant, C. J.

text:
    BEUTHIEN v. ALBERTS.
    Brokers — Real Estate — Commissions—Contracts.
    In an action by a real estate broker against several persons doing business as a partnership, to recover commissions on the sale of land, a judgment against the partners jointly is reversed; Mr. Justice MoAlvay, with whom concur Justices Hooker, Moore, and Carpenter, writing for reversal, on the ground that the contract, such as it was, was made by the individual partner who owned the land, and there was no evidence to support a joint judgment; and Chief Justice Grant writing for reversal on the ground that, under the contract shown hy plaintiff, his exclusive option had terminated before the sale made by defendants.
    Error to Wexford; Chittenden, J.
    Submitted June 11, 1908.
    (Docket No. 81.)
    Decided September 10, 1908.
    Assumpsit by Enewold A. Beuthien against Prank Alberts, Roy E. Alberts, and Earl Alberts, copartners as P. Alberts & Sons, fox commissions on the sale of certain land. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Stephen H. Clink, for appellants.

      F. O. Gaffney (Henry Miltner, of counsel), for appellee.
   McAlvay, J.

This case is before us upon writ of error to review a judgment rendered against defendants after a trial before the court without a jury. Findings of fact and conclusions of law were made and filed. The errors assigned are upon exceptions (1) to the findings of fact; (2) to the conclusions of law; (3) to the admission or rejection of evidence upon the trial. Defendant Frank Alberts was the owner of certain timber lands in Missaukee county. He was in business with his sons, and, although it appears he alone had any interest in these lands, yet some of the letters between the parties were signed in the firm name. Plaintiff sued the members of the firm.

It will not be necessary to give all the correspondence between the parties concerning the lands in question. Whatever occurred before the letter of December 8, 1905, is immaterial, except as showing that plaintiff was interested in making a sale of the land in question. The former authority had lapsed by limitation. The letter referred to is as follows:

“Muskegon, Mich., 12-8-05,
“E. A. Beuthien,
“Lake City, Mich.
‘ ‘ Dear Sir: My son just told me of your ’phoning to me today in regard to the lands in Pioneer. I will say. I have written you only yesterday in regard to them, but will say if you can sell them any time for cash during this month, I will make the price to you at the sum of thirty dollars ($30.00) per acre net, as I think you have put in some work and thought on the proposition and I want you to make a sale if you can. This price is for the two descriptions. Hoping to hear from you in regard to it soon, I remain,
“ Respectfully yours,
“F. Alberts.”

The letter which on the part of the defense is claimed to have waived any and all right to act further in the matter is as follows:

“Lake City, Mich., December 23, 1905. “F. Alberts & Son,
“Muskegon, Mich.
Dear Sir: I didn’t succeed in selling the Pioneer lands yesterday. The parties offer $25 per acre. Undoubtedly your buyers are some men that I have tried to deal with. I have asked $6,500 for the tract and it is worth it. Should it be that you don’t sell it, I would like pórmission to show it to another party. I am in position to exchange some timber for some timber near your camp. Do you wish to buy in that locality ? It is nice hemlock.
“Yours truly,
“E. A. Beuthien.”

On December 27th following defendant Frank Alberts made a sale of the land. Plaintiff claims that he had an exclusive option or refusal from defendants to buy, or make sale of, these lands during the entire month of December, and brought suit to recover from defendants the difference between the price agreed upon and the price for which he claims he had negotiated a sale. The defense was that plaintiff did not have the exclusive authority to make a sale, that he recognized this in his letter of December 23d, and waived all such right thereby. He recovered judgment for the full amount claimed against all of the defendants.

The court was in error in finding as a matter of fact that the agreement was made by defendants jointly and as a conclusion of law rendering a judgment against all of them. The land was owned by defendant Frank Alberts, and the writing in the case upon which plaintiff must rely was signed by him individually. There was no evidence in the case upon which to base the finding. Other questions raised need not be considered.

The judgment of the circuit court is reversed, and a new trial ordered.

Hooker, Moore, and Carpenter, JJ., concurred.

Grant, C. J.

I concur in reversing the judgment in this case. I prefer, however, to place my reason for reversal upon the conclusion that plaintiff did not have the exclusive option for the month of December either to buy or sell the lands. I think this is conclusively shown by his letter of December 23d, stating that he had not succeeded in selling them, and that he was offered only $25 per acre, and making a request of the defendants for permission to show the lands to another party, provided the defendants did not sell them. This letter, in effect, said to the defendants and to Mr. Frank Alberts, who was sole owner of the lands, that the plaintiff had abandoned all attempt to make a sale under the authority he then had. The defendants so construed the letter, and sold the lands on the 21'th.


author: Moore, J.

text:
    PEOPLE v. HOFFMAN.
    1. Criminal Law — Trial—Witnesses —Indorsement of Names —Assault.
    A motion, made during the progress of the trial of a prosecution for assault with intent to do great bodily harm, to re'quire the prosecuting attorney to indorse upon the information the name of a witness not shown to be an eyewitness, and whom the prosecuting attorney stated he knew nothing about, or where he was, was properly denied.
    3. Witnesses — Accused as Witness — Cross-Examination — Extent.
    Where the respondent in a criminal case offers himself as a witness, and there is a sharp conflict between his testimony and that of the people’s witnesses, a considerable latitude may be allowed as to his cross-examination without abuse of discretion.

      3. Same — Credibility—Accused as Witness — Other Offenses.
    Where, on a prosecution for an assault, accused offered himself as a witness and denied making any assault, it was proper to show on his cross-examination that he had previously been convicted of an assault, as bearing upon his credibility. Sections 10210, 10211, 3 Comp. Laws.
    4. Criminal Law — Instructions—Harmless Error —Effect of
    Evidence.
    An instruction that evidence of the previous commission of a similar crime by accused may be considered by the jury upon the question of his intent in making the assault charged is harmless where the jury acquitted respondent of the intent to do great bodily harm charged in the information and found him guilty of simple assault.
    5. Indictment and Information — Included Offenses — Assault
    — Conviction — Propriety.
    On a prosecution for an assault with a pistol with intent to do great bodily harm, the theory of the defense being that respondent did not use a pistol at all, a conviction of a simple assault is not necessarily without supporting testimony, since the jury are not obliged to credit the entire testimony of either party, but may credit a part of each.
    Exceptions before judgment from St. Clair; Tappan, J.
    Submitted June 12, 1908.
    (Docket No. 118.)
    Decided September 10, 1908.
    Frederick L. Hoffman was convicted of simple assault.
    Affirmed.

      Samuel D. Pepper and W. L. JenJcs (Phillips & Jenks, of counsel), for appellant.

      Alex. Moore, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was informed against for an assault with intent to do great bodily harm less than the crime of murder upon George Barton. He was found guilty of simple assault. The case is here upon bill of exceptions before sentence.

It is the claim of the people that the respondent committed the assault charged by means of firing a loaded revolver at or towards the complaining witness, attempting and intending to shoot Mr. Barton, and do him serious bodily injury. The respondent claimed he did not fire a revolver at Barton, or at anyone else, and that he did not use any firearms upon the night in question.

A great many assignments of error grow out of the ruling of the court in sustaining objections made by the prosecuting attorney upon the cross-examination of witnesses offered by the people. The judge allowed these witnesses to be examined at great length. We have examined each of the questions referred to above, and do not think error was committed in the ruling made..

Error is assigned upon the refusal of the court in not requiring the prosecution to indorse the name of William Griffin upon the information. The motion was made during the progress of the trial. The prosecuting attorney stated he knew nothing about William Griffin or where he was. There was no showing made that Mr. Griffin was an eyewitness of the transaction. The ruling of the court was not error.

A great many of the assignments of error relate to the rulings of the court on the cross-examination of the respondent. Mr. Hoffman offered himself as a witness. He denied that he fired upon Mr. Barton, or upon any other person. There was a sharp conflict between the testimony of Mr. Hoffman and that coming from the witnesses for the people. The judge allowed this cross-examination to proceed at very considerable length, but we cannot say there was such an abuse of discretion as to make reversible error.

Especial stress is laid upon the fact that the prosecuting attorney was allowed to show that respondent had been convicted of an assault. It is urged that the prosecuting attorney cannot show other similar but unconnected acts to prove commission of the crime charged; citing 1 Wigmore on Evidence, §§ 192, 193, and other authorities. As to this feature of the case, the judge charged the jury as follows:

“ Evidence has been admitted as to the conviction of the defendant .of prior offenses. You are not to consider this as evidence that Hoffman fired the shot in question in this case. The purpose of this evidence is to aid you in determining what Hoffman’s intent was, if you find, as a matter of fact, he actually fired the shot in question. This evidence can be used by you for no other purpose than to aid you in determining what his intent was if you conclude he actually fired the shot as claimed by the prosecution.”

It is evident that the jury could not have understood that, because Mr. Hoffman had been convicted of other offenses, they might infer therefrom that he was guilty of the offense charged. This testimony was clearly admissible as bearing upon the question of the credibility of Mr. Hoffman. See sections 10210, 10211, 3 Comp. Laws. See, also, People v. Foote, 93 Mich. 38, and the cases there cited. If it be conceded that the trial judge erred in charging the jury that the testimony might be used as bearing upon the question of intent, it is evident it was harmless error,- as the jury acquitted the respondent of the intent to do bodily harm. The judge also charged the jury as follows:

“In conclusion, gentlemen, you are instructed that under this information you are at liberty to return any one of three verdicts: First. If you find beyond a reasonable doubt that the defendant made the assault in question upon Barton with intent to shoot and injure him and do him serious bodily harm, as I have explained, then your verdict should be guilty as charged. Second. If you should find beyond a reasonable doubt that the defendant did not intend to shoot Barton and do him serious bodily harm, but that he did make a wanton and reckless use of a loaded revolver, shooting at and in his direction and endangering his life, as I have explained, but without intent to actually wound him, as I have explained, then your verdict should be guilty of simple assault. Third. If you determine from the evidence that it is not shown beyond a reasonable doubt that the defendant is guilty of either of these acts, then your verdict should be not guilty.”

It is insisted respondent should have been convicted of the offense charged in the information, or that he should have been acquitted wholly. The argument of counsel is that, if the people’s witnesses are to be believed, Mr. Hoffman must have shot at Mr. Barton with an intent to either kill or wound him; while,

“ On the other hand, the theory of the defense was that Hoffman did not use a revolver at all, and therefore, if no revolver was used by him, he could not be guilty of any offense whatever. It is therefore plain that either one set of witnesses or the other would be believed by the jury. There was no room for a compromise on this point. "When such is the case, the rule of law is that the defendant must either be found guilty as charged of the whole offense or acquitted, unless there is testimony to support a conviction of the lesser offense.”

The trouble with the argument is that it assumes that the jury must believe all the testimony given by the witnesses for the people, and discredit all the testimony offered by the respondent, or vice versa; while as a matter of fact they may have believed part of the testimony offered on each side, and discredited part. This was peculiarly within their province. The lesser offense of which respondent was convicted was included in the greater offense charged in the information, and there was testimony to support the conviction.

The conviction is affirmed, and the case is remanded, with directions to the circuit judge to proceed with the sentence.

Grant, C. J., and Carpenter and McAlvay, JJ., concurred. Blair, J., concurred in the result.


author: Carpenter, J.

text:
    PEOPLE v. BURMAN.

    1. Indictment and Information —Election Between Counts — Refusal to Compel — Propriety.
    On a prosecution for violation of a municipal ordinance, no injury results from a refusal to compel an election between the counts of the complaint until after the conclusion of the case, where the trial proceeded precisely as it would had the election been made at an earlier time.
    2. Criminal Law — Trial—Joint Defendants — Severance—Discretion of Court.
    Under sections 3100 and 11956, Comp. Laws 1897, the discretion of the circuit court on appeal in refusing a severance to persons jointly complained of for violating a municipal ordinance is not reviewable.
    3. Breach of the Peace — Evidence—Admissibility.
    In a prosecution for violating a city ordinance prohibiting the making of noise, riot, disturbance, or improper diversion, the gist of the offense being that defendants infuriated the local public by carrying red flags through the streets in a parade, it may be shown that the general public of the city, and the citizens and travelers on the streets upon which the parade was held, regarded the red flag as an emblem of anarchy, and a danger signal to the government and all law-abiding citizens.
    4. Criminal Law — Trial — Objections to Evidence — Sufficiency.
    In a prosecution for violation of a city ordinance by inciting disturbance by parading with red flags, an objection to testimony as to how the general public of the city regarded the red flag, on the ground that such evidence was immaterial, did not raise the question whether the witnesses giving the testimony showed themselves to be qualified.
    5. Breach of the Peace — Inciting- Disturbance — Liability.
    In a prosecution for violation of a city ordinance by inciting disturbance by parading with red flags, a claim by respondents that they had a right to parade with red flags, and that those who opposed them with violence, and not respondents, were the wrongdoers, is untenable, where respondents knew that their course would provoke violence and disorder, since the fact that those incited to violence were wrongdoers only makes them joint wrongdoers with respondents, and in no way relieves respondents from responsibility for their share in the disturbance.
    Error to Houghton; Streeter, J.
    Submitted June 12, 1908.
    (Docket No. 119.)
    Decided September 10, 1908.
    Fahle Burman and others were convicted of violating an ordinance, and sentenced to pay a fine of $15 each.
    Affirmed.
    P. H. O'Brien (O. J. Larson, of counsel), for appellants.

      S. L. Lawton (Kerr & Peterman, of counsel), for the people.
    The following complaint was made against defendants: That on the 28th day of July, A. D. 190?,
    “Within the corporate limits of the city of Hancock, county of Houghton, and State of Michigan, in and on a certain street of said city, to wit, on Quincy street, one of the public thoroughfares and streets of the said city of Hancock, did then and there make, aid, abet, countenance, and assist in making a disturbance and improper diversion, to the annoyance and disturbance of citizens and travelers, by then and there aiding, abetting, countenancing, and assisting in making and exciting loud and boisterous and profane language and noises within the hearing and to the disturbance of citizens and travelers on the said street, and within the said city of Hancock; and by then and there, for the purpose of exciting a disturbance of the peace within said city, aiding, abetting, countenancing, and assisting in forming a procession to parade and carry red flags; and by aiding, abetting, countenancing, and assisting in raising up, exhibiting, and carrying red flags, to wit, 10 red flags, while marching on said street and public thoroughfare, well knowing that said procession and assembling together and marching with said red flags would excite anger and indignation and produce fear and fright of many of the citizens and travelers upon the streets of said city of Hancock and elsewhere, and create breaches of the peace; and by then and there aiding, abetting, countenancing, and assisting in exciting the anger, indignation, and fear of the citizens and travelers on said street; and by then and there aiding, abetting, countenancing, and assisting with divers other persons in forming a procession to carry red flags, for the purpose of defying the law and government of the said city of Hancock; and by then and there aiding, abetting, countenancing, and assisting in defying and insulting the law and government of the city of Hancock, by then and there aiding, abetting, countenancing, and assisting, together with divers other persons, in creating boisterous and disorderly conduct, and boisterous and loud language, within the hearing of citizens and travelers upon the said street; and by then and there, after being duly warned by the marshal of the said city of Hancock, and requested not to carry or exhibit red flags which would cause boisterous noises, threatening or unlawful language, disturbances of the peace, and riots on the streets of said city, and well knowing that assembling together and marching upon the said street with red flags would bring together upon the said street a large crowd of people who believed that red flags are carried by anarchists or persons believing in overthrowing the established government, and defying the established law and government, in aiding, abetting, countenancing, and assisting, together with divers other persons, in marching and parading upon Quincy street carrying red flags, creating threatening and excited conduct and disturbance of the peace, causing fear and excitement of the citizens and travelers upon the said street; and by then and there aiding, abetting, countenancing, and assisting in gathering, and causing to gather, a large crowd, to wit, 1,000 people or thereabouts, upon the said Quincy street, to the interference and prevention of lawful traffic upon the said street, and to the danger of creating riots and destruction of life and property; and by then and there aiding, abetting, countenancing, and assisting, together with divers other persons, in blockading and interfering with the lawful traffic and use of said street, endangering the lives and property of citizens and travelers upon said street of the city of Hancock, and to the annoyance and disturbance of the peace and of citizens and travelers, and to the evil example of all others in the like cause offending, contrary to and in violation of Ordinance No. Ten (10) of the ordinances of the said city of Hancock, entitled ‘Police Regulations,’ passed and approved on, to wit, the 9th day of March, A. D. 1898.”
    Ordinance No. 10 referred to in said complaint, reads as follows:
    “That any person who shall make, aid, abet, countenance or assist in making any riot, noise, false alarm of fire, disturbance or improper diversion or commit any nuisance in any street or alley, or in or on any public or private property within the village to the annoyance or disturbance of citizens or travelers, shall, on conviction, be punished by a fine of not more than $20.00 or by imprisonment for a period not exceeding twenty days, or by both such fine and imprisonment, together with the costs of prosecution, in the discretion of the court.”
    Defendants were tried before a justice of the peace, and found guilty. They appealed to the circuit court. There the case was tried before a jury, and there, too, they were found guilty. They bring the case to this court for review. There was testimony introduced in the circuit court tending to prove every material averment in said complaint. Special attention is called to the circumstance that this testimony showed that the day before the parade occurred that defendants were advised by the city marshal not to carry red flags, because it was feared “it would cause a disturbance and riot on our streets if they did so.” The testimony also showed that the defendants are socialists, and on the said 28th day of July, 1907, which was Sunday, they participated with others in a socialistic parade in the streets of the city of Houghton. Defendants introduced testimony tending to prove that among socialists the red flag is not an emblem of bloodshed and violence, but is an emblem of their order, and signifies brotherhood. They also introduced testimony tending to prove that another ordinance passed by the council of the city of Hancock forbade the carrying of red flags in processions, that they knew of this ordh nance, and decided to disregard it because they had been advised that it was invalid.

       Rehearing pending.

   Carpenter, J.

(after stating the facts). When the trial commenced, the complaint had two counts. The second count is set forth in this opinion. The first count merely charged.that the defendants “ did then and there make, aid, abet, countenance, and assist in making a disturbance, to the annoyance and disturbance of citizens and travelers, contrary to, and in violation of, Ordinance No. 10.” Defendants’ counsel asked that the people be compelled to elect between these two counts. The trial court reserved his decision upon this motion until the conclusion of the case. He then compelled the people to elect, and they elected to proceed under the second count. It is now contended that they were entitled to have this election made at the beginning of the trial. It is sufficient to say of this contention that the defendants were not injured by the action of the trial judge. The trial proceeded precisely as it would had the election been made at an earlier time.

2. The trial judge denied the application of defendants for a separate trial. It is contended that this was error. Section 3100, 1 Comp. Laws, provides that, on appeal to the circuit court from a conviction for the “violation of any ordinance,” the “proceedings * * * shall be the same as on appeal in criminal cases cognizable by justices of the peace.” In the latter cases it is provided (section 11,956, 3 Comp. Laws) that joint defendants “shall be tried separately or jointly in the discretion of the court.” The decision of the trial judge that these defendants should be tried jointly is not, therefore, open to review in this court.

3. The people were permitted to prove—

“ That the general public of the city of Hancock, the citizens, and travelers on Quincy street [the street upon which the defendants paraded], regarded the red flag as an emblem of anarchy and a danger signal to the government and all law-abiding citizens.”

Witness Dr. J. E. Scallon testified:

“ The red flag in the popular mind of the citizens of Hancock represents, practically, anarchy, whether the party calls itself socialists, anarchist-socialists, democrat-communists, or whatnot. In the popular mind they are considered Reds.
“Q. What do you mean by ‘ Reds ? ’
“A. Men organized to destroy the present forms of government by violence.”

This testimony was objected to as immaterial, incompetent, and irrelevant. The counsel making this objection said “the point we make here is how the people regarded the red flag has nothing to do with it.” We are asked now to say that this testimony was erroneously admitted. It is said that the testimony is immaterial. We think this objection untenable. The gist of the offense of defendants is that they infuriated the local public by carrying these flags in the parade. The existence of that sentiment was therefore a very material fact, and that was the fact which this testimony tended to prove. The point is now made that the witnesses who gave this testimony did not show themselves qualified to give it. The objection made by the counsel did not suggest, and would not naturally suggest, this point to the trial judge. Nor do we think that it was well taken if it had been clearly made.

4. It is insisted that a verdict should have been directed in defendants’ favor. Their counsel urge that they had a right to parade and display the red flag, the emblem of their order, and that the ordinance prohibiting it — which ordinance defendants are not charged with violating— was invalid. That ordinance apparently was general in its nature, and forbade the display of a red flag in any parade whatever. Whether or not there might be occasions when defendants had a lawful right to parade with a red flag — and this would be a question which, would arise upon the validity of said ordinance — we are not called upon to determine, and we ought not and will not attempt to determine in this case. [The question here is not whether the defendants have in general a right to parade with a red flag. It is this: Had they such right, when they knew that the natural and inevitable consequence was to create riot and disorder? Defendants knew this red flag was hated by those to whom it was displayed, because it was believed to represent sentiments detestable to every lover of our form of government. They knew that it would excite fears and apprehension, and that by displaying it they would provoke violence and disorder. Their right to display a red flag was subordinate to the right of the public. They had no right to display it when the natural and inevitable consequence was to destroy the public peace and tranquility. It is idle to say that the public peace and tranquility was disturbed by the noise and violence, not of defendants, but of those whose sentiments they offended. When defendants deliberately and knowingly offended that sentiment, they were responsible for the consequences which followed, and which they knew would follow. It is also idle to say that these others were wrongdoers in manifesting in the manner they did their resentment at defendants’ conduct. This merely proves that they and defendants were joint wrongdoers; that they, as well as defendants, violated the ordinance in question. \The object of this proceeding is not to redress the grievance of these other wrongdoers, but it is to redress the grievance of the public whose rights they and defendants jointly invaded. The guilt of their associate wrongdoers does not lessen defendants’ responsibility. It is sufficient to say that defendants by their conduct did “aid, countenance, and assist in making a riot, noise, and disturbance,” and therefore violated Ordinance No. 10 of the city of Hancock. This reasoning is sustained by authority. Says Chief Justice Champlin, speaking for the entire court in People v. Johnson, 86 Mich. 177 (13 L. R. A. 163):

“ In general terms the offense [breach of the peace] is a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence, or tending to provoke or excite others to break the peace.”

See, also, State v. White, 18 R. I. 473. lit does not avail defendants to say that they have a right to propagate their political views. That right is not denied. But we do deny and emphatically deny that in propagating their views they may commit a crime or violate any constitutional law or valid municipal ordinance.

Defendants rely upon the Frazee Case, 63 Mich. 396. There the petitioner, who had taken part in a Salvation Army parade, had violated an ordinance of which the court said:

“ It left practically within the unlimited discretion of the mayor * * * the power of determining whether processions shall be allowed.”

This ordinance was held void. That the reasoning of that case does not apply to this is clearly shown by the following quotations from that opinion:

“ There may be times and occasions when such assemblies may for a while be dangerous in themselves because of inflammable conditions among the population. * * * It is only when political, religious, social, or other demonstrations create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, that the law interferes. A.nd, when it interferes, it does so because of the evil done, or apparently menaced, and not because of the sentiments or purposes of the movement, if not otherwise unlawful; and things absolutely unlawful are not made so by local authority, but by general law. * * * It is lawful to provide for dealing with the mischief, but it is not lawful to go beyond reasonable measures and precautions in anticipating it. * * * These processions might, no doubt, become nuisances, as any others might do so, but it cannot be assumed that they will.”

Other complaints are made. They need no special attention. They are all answered either by an application of the principles herein stated, by other elementary principles of law, or by a proper construction of the record.

The judgment is affirmed.

Grant, C. J., and Hooker, Moore, and McAlvay, JJ., concurred.


author: McAlvay, J.

text:
    PEOPLE v. VAN DRIESCHE.
    1. Criminal Law — Appeal — Matters Considered — Necessity or Exceptions.
    Assignments of error in a criminal case unsupported by exceptions will not be considered.
    2. Same — Trial—Instructions—Waiver or Objections.
    Where, during the charge in a criminal case, respondent’s attorney, in reply to a question from the judge, stated that his points had been fully covered, and that he was entirely satisfied, there was a waiver of objections to that portion of the charge already given, irrespective of the statute (Act No. 52, Pub. Acts 1901) giving a right to assign errors upon the charge without exceptions.
    3. Same — Instructions—Assault—Misleading Instructions.
    Where, in a prosecution for assault with intent to do bodily harm, respondent stated that he struck the complaining witness with a knife in self-defense, an instruction that the “ assault ” is admitted, that the question is one of self-defense, was not misleading as intimating that an unlawful attempt to do violence was admitted.
    Error to the recorder’s court of Detroit; Phelan, J.
    Submitted June 12, 1908.
    (Docket No. 115.)
    Decided September 10, 1908.

      Julius Van Driescbe was convicted of an assault with intent to do great bodily harm less than the crime of murder, and sentenced to imprisonment for not less than two years in the Detroit house of correction.
    Affirmed.

      Thomas J. Mahon, for appellant.

      George B. Yerkes, Prosecuting Attorney, and Stewart Hanley, Assistant Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was convicted before the recorder’s court for the city of Detroit of assault with intent to do great bodily harm less than the crime of murder. He was sentenced to the Detroit house of correction for a term of not less than two years, and is now confined under said sentence. On the part of the people, it was claimed upon the trial that the complaining witness Boussie and Boehm, a companion, were walking along Franklin street, in the city of Detroit, and were accosted by respondent and Van Der. becke, his companion; that without cause or warning, after the interchange of a few words, the two last named assaulted the others; that respondent drew a knife, threw Boussie to the ground, and severely cut him five times before assistance arrived. Two wounds were in the back, one in front, which penetrated the lung, one in the neck, and one in the hand. Boussie was under the physician’s care 10 or 12 days, and unable to work for 4 months. On the part of the respondent, it was claimed that the attack was made by the other two upon his companion and then upon him; that he was thrown down, with the complaining witness on top of him, and a crowd came from a poolroom near by with billiard cues, all attacking him; that he was in great fear, and drew his knife in self-defense ; that Boussie was the first one he struck. Reversal of the case is sought on errors assigned.

No exceptions appear in the record to the rulings of the court upon the matters sought to be raised under the first four assignments of error. The only time counsel for respondent took exception was when the prosecutor stated that he objected to swearing a witness who was present during the trial contrary to an order to exclude all witnesses made on motion of the counsel himself. The prosecutor was strictly within his rights in making the objection. It was after-wards withdrawn, and no exception whs taken to what was said at the time or objection made. No witness offered by respondent was excluded from testifying.

The other errors assigned are to certain portions of the charge. The attorney who conducted the trial for respondent is not the one who appears for defendant before us. After the court charged the jury at length upon every material aspect of the case, he said to respondent’s counsel: “Do you think I covered your points ?” Counsel responded: “Veryfully, your honor. Iam entirely satisfied.” The court then completed the charge by a general statement that no bias or prejudice should enter into their deliberations, and, among other things, said:

“The assault in this caséis admitted, I believe. The defendant claims it was done in self-defense. The people contend the contrary.”

As to all matters in the charge upon which errors are assigned, we hold that the right to assign such errors was waived by counsel. The statute which gives a right to assign errors upon the charge is one which is to the disadvantage of the trial court, who, if his attention were called to the claimed error, would at least have opportunity to consider it, and make correction, if convinced he had made a mistake. To indorse the practice in this case would be, in effect, to say that the same attorney could tell the court he had no objection to make to the charge, but was satisfied, and a few days later change his mind and assign errors to the charge. We will not say that a case might not arise where such practice would be permitted, but then only after application to the trial court. This is not such a case, and we will not consider the errors assigned to the charge before the waiver by counsel. What was said afterwards above quoted is not within the waiver. This was not prejudicial to defendant, nor misleading to the jury. Defendant testified that Boussie was the first man he struck after he drew his knife. He said he did it in self-defense. This charge carries with it no intimation that the word “ assault ” used meant an unlawful attempt to do violence. The statement was intended to convey to the jury the gist of defendant’s testimony, the same as if the court had said: ‘ ‘ Defendant admits he struck Boussie; but claims he did it in self-defense.” It was not error.

The judgment is affirmed.

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

       Act No. 52, Pub. Acts 1901. — Reporter.


text:
    REED v. LOYAL PROTECTIVE ASSOCIATION.
    1. Accident Insurance — Notice to Insurer — Incapacity or Insured — Evidence—Surricienoy.
    In an action on an accident policy, evidence examined, and held, not to raise the inference that plaintiff was mentally incompetent after the injury received, so as to excuse his failure to notify the. insurer of his injury within the period required by the policy.
    2. Same — Notice—Inability or Insured — Erreot.
    A provision in an accident policy requiring notice of the in-' jury to be given to the insurer within a certain time under pain of forfeiture will not be construed to require strict performance made impossible by act of God; and where the injury shown rendered the insured mentally incompetent to give the notice, the failure was excused.

      Error to Eaton; Smith, J.
    Submitted June 16, 1908.
    (Docket No. 24.)
    Decided September 10, 1908.
    Assumpsit by Watson Reed against the Loyal Protective Association on a policy of insurance. There was judgment for plaintiff, and defendant brings error. Reversed.

      Huggett & McPeelc, for appellant.

      Rosslyn L. Sowers, for appellee.
   Hooker, J.

The plaintiff, a policy holder, sued the defendant for sick benefit claimed thereunder, in justice’s court, where he recovered a judgment for $170. On appeal the learned circuit judge restricted the jury to a verdict for $60, and, from a judgment for that sum, the defendant has appealed.

We infer that the plaintiff was hurt through a fall in his barn, and the testimony indicates that his recovery from the effects of the fall was not complete for some months. The accident happened on October 24th or 26th. A physician was at once called, and his last visit at the home of plaintiff was on October 31st. The policy was made—

“ In consideration of the payment of the membership fee, and of the agreements and statements contained in the application for membership, and of the conditions and agreements contained herein and on the back hereof, all of which are hereby made a part of this certificate.”

It promised:

“It is further agreed that if said member shall be afflicted with sickness or receive an injury as aforesaid (other than an injury received while riding as a passenger on said public conveyance), which sickness or injury shall independently of all other causes immediately, wholly, and continuously disable and prevent him from the prosecution of any and every kind of business or labor, then said member in case of sickness and subject to the conditions herein and on the back hereof/shall be indem. nified in the sum of 5.00 dollars for the first week and 10.00 dollars a week thereafter, not exceeding twenty.-nine weeks in any twelve months that said member is totally disabled, and, if total disability exceeds thirty weeks in any twelve months, then the said member shall be indemnified in the sum of 5.00 dollars a week for a further period not exceeding twenty-two weeks in the aforesaid twelve months; and, in case of a total disability resulting from accident, 10.00 dollars a week for fifty-two weeks from the date of happening thereof. * * *
“ Total disability by reason of sickness or accident shall be interpreted as inability of said member to perform any of the duties of his usual occupation, trade or employment, or other business or labor, and requiring the regular and frequent attendance of a physician or surgeon.
“Unless notice of any injury or of the beginning of any sickness is received in writing at the home office of this association in Boston, Massachusetts, on or before the expiration of fourteen days from the commencement of such disability, together with particulars of the injury or sickness, including a statement of the time, place and cause of injury, or date of beginning, and an accurate description of the sickness, signed by the claimant or attending physician or surgeon, the claim shall be valid only for the period dating from the actual time the notification is received at the home office. The claimant shall also furnish within thirty days after the termination of the disability period a sworn statement of the time he was totally or partially disabled, and actual time attended by the physician or surgeon and chairman of the visiting committee of the lodge of which he is a member or of the lodge whose care he is under on and in accordance with blanks provided by this association, and shall furnish such further proof as may be deemed necessary. Failure to comply with the above conditions renders all claims against the association null and void. * * *
“ To receive the weekly indemnities for sickness as stated upon the face of this certificate, a member must be totally disabled for fourteen consecutive days, in which event he shall be paid for the number of weeks he shall continue to be totally disabled and shall receive benefits from the Odd Fellows Lodge of which he is a member, provided he shall furnish the required evidence as to his claim, and that he was under the personal care of his lodge during disability and was visited regularly by its visiting committee, and further provided that, if not within the above proviso, the sickness must be such as to require absolute, necessary, and continuous confinement to the house and shall not be payable for a longer period than the actual, necessary, and continuous confinement to the house. * * *
“ The member herein named to secure indemnity agrees that some medical adviser or representative of this association shall have the opportunity to examine him as often as may be required by this association during the disability; also that during the disability he shall be regularly and frequently attended by a duly authorized and legal practicing physician or surgeon fully qualified and recognized by the profession in his State. * * *
“No suit shall be brought in any case until after the expiration of ninety days from the receipt by this association of acceptable proofs of loss, nor after the expiration of six months from the date of termination of the disability period or death.”

On December 1st the notice required to be served within 14 days after the accident was received by the company. It was made — i. e., filled out — by the physician and dated December 5th, and it was claimed by the defendant that this noncompliance with the terms of the contract was fatal to plaintiff’s action, but the trial judge held that this would be true, unless the jury should find that the plaintiff was insane at the time of the accident—

“ To the extent that his mind was so deranged that he was unable to furnish defendant notice of such accident within 14 days from the happening of the accident, which derangement of mind was the result of such accident. If you so find, then such failure on the part of plaintiff to give such notice within the 14 days as provided for in said policy of insurance would not operate as a forfeiture of plaintiff’s right to recover under the policy, but that plaintiff would be entitled to a reasonable time in which to furnish defendant with such notice after his mind had attained its normal condition.”

Counsel for defendant assign error upon this instruction on two grounds:

(1) That the contract is an unconditional agreement as to notice, and not subject to a construction, which does violence to its plain terms.

(2) If this construction were a proper one, the plaintiff has not proved such derangement, and the proof conclusively shows the opposite.

The testimony upon the subject is, in substance, as follows:

Weaver, the physician, testified that when he was called, .which was soon after the accident, he “found him suffering from an injury of some sort that he had received, an injury to his head, as I remember it, to his shoulder, back and one rib fractured. He was in a sort of dazed condition, did not fully comprehend things.” He made out the notice in December, and at that time examined him at his store. He continued:

“At that time I did not particularly notice any mental impairment. After my first visit, he was in a sort of dazed condition each visit I made there; yet he would answer questions when I would ask him a question. I think that, as I stated on the former trial, all of his answers were rational.
“Q. And you never in any of your visits heard him make any irrational statements did you, doctor ?
“A. Not particularly. •
“Q. Did he talk with you on the occasion of your first visit ?
“A. No, sir; he didn’t — only as I would ask him a question. He seemed to be suffering considerably from his pain. Part of the time he would answer my questions I would ask him. He didn’t seem to realize or know how he was injured, or know anything about it. I asked him how it occurred. He said he didn’t know. On other occasions his talk was fairly rational as far as it went. I don’t remember that I talked on other matters, except those connected with his illness.
“Q. Did you think it strange, doctor, that, injured as he was, he did not talk any more than he did ?
“A. Oh, I have seen people injured that simulate; that didn’t seem to be at themselves wholly. It wouldn’t occur to me that a man in that condition was necessarily out of his mind if he did not carry on a lively conversation. * * * The trouble with Mr. Reed after I discontinued my visits was he was complaining of his head — • head bothering him — dizziness. I don’t remember just what all his complaints were. He had several little things he was complaining of. He seemed rational, certainly. I did not consider him so seriously injured or ill that he should be confined to the house at all. * * * I don’t remember how long he was confined to the bed. It seems as though it was a week or two weeks, somewhere along there, a week or ten days. I think he was up the last visit I made there.
“ Q. Did he seem to be dazed at all at that time ?
“A. Not particularly so. I should think probably that dazed condition would have passed off anywhere from a week to 10 days entirely, to my best judgment I should think he was perfectly normal at the outside in 10 days.
“Q. Even during that 10 days his talk was entirely rational so far as it went ?
“A. Yes, sir; he would answer all questions put to him. * * *
“ Since I was on the stand yesterday I have looked at my books, and learned when and how many visits were made by me to Mr. Reed’s home during the time I attended him. The dates are October the 26th, 27th, and 31st. Those were the only visits I made to the home.”

Redirect examination:

“Q. The affection Mr. Reed was bothered with is that what you term a ‘ concussion of the brain ?’
“A. Yes; he might have had a slight concussion.”
Nelson Gibbard was the next witness to testify upon this subject. He was at plaintiff’s home the next day.
“I reside less than three-quarters of a mile from the plaintiff. I knew of his accident last fall, and was at his home the next day. I couldn’t tell the date.
“Q. Can you tell us how long he was sick abed ?
“A. Well, I couldn’t tell just that exactly. He was sick two or three weeks I should judge. The first week after the accident I was at his home every day, and then, as it grew later, I lapsed a day or two. I continued to visit at his home for a matter of six weeks or two months afterwards at intervals. * * *
“Q. I will ask you how he appeared to be affected with regard to his mental faculties.
“A. They were not good. He didn’t know anything about how the accident happened or anything.
“Mr. Huggett: I object to that.
The Court: Let the record show that is objected to and objection overruled.
“Mr. Sowers: I think the answer is hardly responsive. The question was as to his being able to advise with regard to his business.
“ Mr. Huggett: That question is objected to, and you withdrew it.
Mr. Sowers: I ask what his mental condition was.
“ Mr. Huggett: I object to that from this witness.
“ The Court: It would seem to me that there might be some objection to this witness. He doesn’t claim to be a doctor.
“Mr. Sowers: Your honor please, he was there. I think that he says he took care of this man.
The Court: That is true. I think he can tell about how the plaintiff appeared in relation to his mental capacity, whether he seemed to have any, or not, rather than to state the conclusion that he was incompetent.
“Mr. McPeeTc: Shouldn’t he state what acts he considered were not rational ?
“ The Court: Yes.
The Witness: Give what acts that I considered?
“Q. No; as to his mental condition. How he acted.
“A. Why, he acted dazed, and his mental condition was not good. I wouldn’t say as to how long that condition existed, but it was so for the first few days that I was there, but, as to being any length of time, I wouldn’t state any positive time; but I do know that he couldn’t tell, and I don’t know as he can now, the way it happened. He didn’t while I was there. He didn’t know anything about how it was done. * * *
I wouldn’t say that he made complaints of his distress the first evening I went there, which was the evening following when he was hurt. I understood he was hurt the night before. I think it was three or four days afterwards that I talked with him about how he got hurt. I am sure it was on the day of the doctor’s second visit. The doctor came there while I was there. I couldn’t say that I heard the doctor talk with him. I think I went out of the room when the doctor went in there because it is a small room. I talked with him before the doctor came. As to how he got hurt, he said he didn’t know. Didn’t tell me how he thought he might have got hurt. I don’t think it was talked over with him. He fully appreciated he had been hurt. He said he didn’t remember where he was when he was hurt. I think he knew where he was at that time. He appeared to understand fully what we were talking about, because I asked him how he got hurt, and he didn’t know. I presume he fully appreciated we were talking about his injury he had received. He did not talk rationally at that time, because he was flighty. He was kind of flighty about different things. He would be off different times. I don’t think he was flighty all the time. I couldn’t say what was the cause of it. I didn’t see the doctor there again. It was longer than three or four days before he was perfectly rational to talk with. He at that time talked and answered my questions, and told me he didn’t remember just how he was hurt. I couldn’t say that was all I talked with him, for I was there perhaps two months on and off. He stayed at home for two months. He was not downtown that I know of. I couldn’t say as to his being confined to the house all that time, but he was home every time I went there. He was in the house. Sometimes I went in the evening and sometimes in the forenoon. I know nothing about his being downtown and making out his application for insurance. I never knew there was any insurance in no shape or manner until after this trial was started. I never heard of it. I didn’t know he was insured. I didn’t say'he was confined to the house. I said he was in the house every time that I went there to see him, and I talked with him. He was not dazed all that time. From what I know he was just as clear as I was. I don’t think he was within a week or 10 days after this occurred. I have no means of telling just how long it was because I didn’t pay any attention to it any more than neighborly — going in to see.”

Redirect examination:

CiQ. Mr. Huggett asked you how long he appeared to be dazed. I will ask you the same question. You did not complete the answer, I do not think.
“A. Well, I couldn’t swear to that positive, because— but I should think it was a week or 10 days, because I didn’t pay no attention to it. Just went there as a neighbor.”

Recross examination:

“ I think a week or 10 days. It might have been two weeks. It might have been less. I wouldn’t put it any time; that is, I wouldn’t put it 2 months, of course.”

The next witness to prove derangement was the plaintiff himself. He testified:

“I suffered from an accident last fall, sometime the last of October. I think it was the Mth. I don’t know how that accident occurred. I was affected through my head and back of my neck and back, run right down my back as result of that accident. One or two ribs was broken. I don’t know how long I was confined to the house. ,It must have been four or five weeks before I could get out any to get around any to amount to anything. I notified the company or caused them to be notified of that accident after the accident as soon as I was able to.
“Q. How did that accident affect you as regards your mentality ?
“A. Well, sir, I didn’t remember anything about the —in fact, I. didn’t know as I had a policy until—
“Q. Did you as soon as you learned, when your mental condition was of that nature give notice to the company ?
“A. Yes, sir, I caused a letter to be written by James Moore, the local collector here, or agent for the company. I suppose the defendants have that letter. I have not got it, I did not retain a copy. * * *
“In my letter I stated or caused it to be stated that, as soon as I recovered or able to, that I notified the company. I don’t know what my mental condition was after the accident. I was not able to carry on my business, nor to direct the affairs of my business. That continued until towards spring. In fact, I never recovered yet from it. As to my mental trouble, as soon as I was mentally able, I notified the company.”

Cross-examination by Mr. Huggett:

“ I don’t know where I received my injury. I don’t know how I knew when I made the statement here that I received it in my barn. I don’t know where I got hurt, anything about it; I didn’t know it was in my statement that I received it in my barn. I remember the day now. I couldn’t say when I came to that recollection, a good while afterwards. I couldn’t say how long. I don’t remember where I was, anything about it. I couldn’t tell you the last thing I remember before that accident occurred. I remember going home from Charlotte, where I had been before the accident. I was down here alone; couldn’t tell you what I came down for; don’t remember any business I did on that occasion. I drove one horse down. I don’t know which one. I couldn’t tell you what I did with the horse when I got home.
“Q. Were you dazed so that you couldn’t tell that?
“JL I don’t know what it was. I don’t — I go to saloons. I never drink to excess. I drink a glass of beer once in a while. I don’t remember what I did the day before that.
Q. Do you remember anything that occurred before that time? [No response.]
“ It is likely that I remember some transaction that occurred before that time. I couldn’t tell you the last thing I remember before that occurred. I don’t remember going into a saloon that day.' I remember going home. Don’t remember going to the barn, or that something occurred there; that I was injured or fainted or something of that kind. I don’t remember the first time the doctor came there or the second, as I know of; don’t know as I remember the third, I remember his being there. I remember he was there at different times. I don’t remember that he examined me. I can’t tell how many times he was there. I paid his bill. Don’t remember having a conversation with the doctor. I sold my stock last fall, quite a little of it, hogs and cattle. I couldn’t tell you how many I sold. Don’t know as I sold any cattle last fall. Couldn’t tell you when I sold my hogs or what I got for them. I didn’t bring them down myself. A man brought them down for me. I rode down in a buggy, I think. Don’t know whether I took the money or not. • I remember selling the hogs to Bowes & Griffin. * * *
I don’t want the jury to understand that I didn’t know anything after this accident occurred. I don’t know whether this man was there or not, because I don’t. I don’t remember the doctor being there the first time. I don’t know who took care of me for a spell. For how long a time I couldn’t say. After I got where I did know something, I suppose the family took care of me, either my wife or Mr. Gibbard. They were there, I believe. Mr. Gibbard said he was there a good deal. I don’t remember his being there. After a spell, I knew he was there. Can’t tell you when, anything about it. I can’t tell whether one day or three days of his being there. I suppose other of the neighbors called there. I don’t know. I couldn’t say when I first got out of the house. I guess I was out in January, I was up and around the house. I don’t remember anything about making the proofs in this case. After a spell I remembered seeing Mr. Sowers, but I didn’t see him for quite a while. The lodge offered to help me up there.
“ Q. When was that ?
“A. After — I couldn’t tell you when it was. I can’t say when it was. I don’t know as any one in particular told me they would help me. I don’t know as I told them anything when they offered to help me.
Q. Now, sir, did you have any trouble in recognizing Dr. Weaver when he was up there to see you ?
“A. I don’t remember his being there until the last time. I don’t remember of his being there any.
“ Q. You do not remember until he was there the last time ?
“A. I don’t know as I could remember his being there.
" Q. Didn’t you state before you did remember his being there ?
“A. I don’t remember his being there. * * *
Q. You testified here yesterday to the letters you wrote, that they were written and received. Did you mean by that you knew they were written and knew they were received at the time ?
“A. I couldn’t tell you whether I did or not.
“ Q. What did you mean yesterday by swearing you knew these letters were written and these letters you received that were put in evidence here ? Was that simply because your counsel asked you to ?
[No response.]
Q. The facts are you knew all about it ?
“A. I couldn’t say. No, sir; I don’t remember all about it. I remember something about the letters, but I couldn’t say much about them. I don’t remember much about them. I couldn’t explain it. I couldn’t say when it was written. When I went to Mr. Sowers with the policy, he did not tell me that I ought to have given a notice. I don’t think he did. I don’t know as I took the policy to him. I think somebody else took the policy to Mr. Sowers. I couldn’t say who. I couldn’t tell you when it was I told them I didn’t want that order. It was a long time afterwards. * * *
“Q. How do you know it rendered you mentally incompetent for 14 days ?
“A. I don’t remember anything about it, and don’t now. I d on’t remember when I did recover consciousness. I think I have recovered consciousness at the present time. I couldn’t tell you now when I remember I was conscious of what was going on around me.
“Q. You are swearing to it simply because it is alleged in the declaration that you recovered consciousness ?
“A. No, sir; I don’t remember anything about it. I couldn’t tell you whether I recovered consciousness before the 1st of December. I was not attending lodge before that time. I might have been down here in the city several times. I don’t know; not a good many times.”

Morris Bowes testified: That he saw plaintiff the second Sunday, about 10 days after he was hurt. He found him in bed.

“Q. How did he appear mentally as to his mind being clear or otherwise, how did he appear ?
“A. Why, he didn’t have anything to say to us. there was a couple of us went up there to visit him, and he was in bed, and he didn’t have much of anything to say to us, only as we would ask him a question, you know.
Q. Did he originate any conversation whatever ?
“A. No, sir; nothing more than answer questions. We asked him where he was hurt and how, and he kind of motioned so and so, and that is about all there was to ik * # *
“I don’t think it was the first Sunday after he was injured. I think it was the second Sunday. I am pretty positive. I think it was after dinner. He was in bed. I think Mr. Ells was there, and Griffin went with me. If I remember right, Ells set in the sitting room or set in the room, and, when we went in the room, he got up and went out. So far as I know, they admitted everyone who came there to see Mr. Reed. They let us in. We didn’t talk with him much. We asked him how he felt and he told us, and he couldn’t. I says: ‘ Can’t you get up, Wat?’ He said every time he moved, why his head — his head bothered him, made him dizzy, and he couldn’t sit up in bed. He said his head was hurt and went blind and dizzy like when he would try to sit up. That is about all. He didn’t know how he got hurt. I said to him: ‘Wat, where was you hurt ? ’ He put his hand up, and he said in the back of his neck and back of his head like. At the same time there was a sort, if I remember right, there was quite a bruise on the side of his head at that time.
“Q. His questions were all rational, were they?
“A. Why, he would say, ‘Yes’ or ‘No.’ We didn’t stay long — didn’t talk much with him.
“Q. Seemed like a perfectly sensible explanation, didn’t it, the one he made of his symptoms ?
“A. He said ‘Yes’ or ‘No.’ I suppose he meant it. That is all there was. I didn’t question him much.
“Q. He described them to you ?
“A. He said he was hurt in the back of his neck and hurt in his head. We didn’t stay but a few minutes. He didn’t try to talk to us much of tell us much. I talked with members of the family, and they talked more about that than he did.
“Q. Did you consider it strange for a man sick in bed not to talk any more than he did; would you expect him to talk any more ?
“A. It seems so in 10 days.
“Q. You would expect him to would you ?
“A. I would think so.”

He next saw him when he bought the hogs.

“Q. Do you remember ever seeing him when you thought he was not perfectly rational and normal, except when you thought he acted a little queer on the occasion of your first visit there ?
“A. I think he was all right other times from anything I know. He has always acted. I think at the present time he is the same as he was before the accident.”

Fred Griffin was present with Bowes when he called on plaintiff. He testified:

“He didn’t have much to say to us. He merely laid there. Of course, we spoke to him when we went. He didn’t say much. We talked to him very little, and he didn’t say much, and Mr. Ells was there, and we visited and we talked and visited with his wife. We asked a few questions, and he didn’t have much to say to us. We was not there a great while. The first time I met him here in town was the time he was down with his hogs. He appeared very quiet, and didn’t act to me as though he felt very well.”

We have given this testimony at great length to avoid the possible omission of anything that can be said to warrant an inference that the plaintiff was deranged or devoid of understanding for the period of 14 days. The testimony of the physician clearly shows that he was not, for he states that he never heard him'make a particularly irrational statement, and that the dazed condition was all he saw, and he thought that he was perfectly normal at the outside in 10 days, and that even during that 10 days his talk was entirely rational as far as it went. Neither Gibbard’s nor Bowes’ testimony justified an inference of irresponsibility, and, if we strike out the statement of the plaintiff that he sent the notice as soon as he was mentally competent, we have nothing left but an alleged forgetfulness of some things which occurred. We think that there is not proof from which it can be inferred that this plaintiff was prevented from sending his notice by reason of derangement or inability to understand and remember, and if an alleged insane person can be allowed to prove his own insanity, which is anomalous, to say the least, he cannot do it by merely swearing point blank to the statement that “he sent the notice as soon as he was mentally competent.” That is the question which the jury was to decide. We are of the opinion that the plaintiff has failed to show his inability to serve the notice. There is no testimony from which a just inference can be drawn that he was deranged at all, certainly none that such was his condition until December 1st. For'this reason, the case must be reversed, for a verdict should have been directed for defendant.

In view; of a possible new trial, we consider another question, viz.: Would such an impediment to the serving of notice within the prescribed period relieve the plaintiff from the forfeiture ? We assume that no one will contend that a court of justice has authority to change the obligations of a contract which the parties have seen fit to make. The case is resolved, then, into a question of construction of the language used. After providing for indemnity, the contract provides:

“Unless notice of any injury or of the beginning of any sickness is received in writing at the home office of this association in Boston, Massachusetts, on or before the expiration of fourteen days from the commencement of such disability together with particulars of the injury or sickness, including a státement of the time, place and cause of injury, or date of beginning and an accurate description of the sickness, signed by the claimant or attending physician or surgeon, the claim shall be valid 'only for the period dating from the actual time the notification is received at the home office. * * * Failure to comply with the above conditions renders all claims against the association null and void.”

We all know that a failure to perform any ordinary contract is not excused by inability to perform an unqualified promise. See Pollock on Contracts (7th Ed.), p.. 408 et seq. Certainly this is true, unless the failure is due to the act of God, and in such cases, while it may sometimes excuse the promisor from performance, it is not so certain that it will permit his enforcing the contract which he has' been unable to fully perform against the other party, which is what is sought here. It is urged that the authorities are overwhelmingly against the contention of the plaintiff in this ease, and many are cited. But we are committed to the doctrine in insurance cases, that a provision requiring a notice on pain of forfeiture will not be construed to require strict performance, when, by a plain act of God it is made impossible of performance.

In the case of Phillips v. Benevolent Society, 120 Mich. 142, the certificate provided:

“In all cases of accident or sickness, immediate notice was required to be given in writing, addressed to the secretary, with full particulars thereof. Failure to give such notice within five days from the happening of such accident or beginning of illness renders the claim invalid, and it cannot be recognized or paid.”

We said:

“It is claimed that the plaintiff did not give timely notice of his injury, in accordance with the provisions of the charter and by-laws. Notice was served upon the company with promptness after he had been informed by one of his physicians that his illness did not result from disease, but from an accident. We do not think that the first notice that he was suffering with neuralgia was binding upon him. It would be a hard rule, and one which the rules of the company must place beyond doubt, which would deprive a member of his benefits through the mistake of his physician. The notice was served as soon as he ascertained that the accident with which he had met was the occasion of his trouble. We think this a sufficient 'compliance with the by-law.”

This case was decided in 1899, and we see no means of distinguishing the question now under consideration from the one then decided. See, also, the later cases of Woodmen Accident Ass’n v. Byers, 62 Neb. 673 (55 L. R. A. 291), and Comstock v. Accident Ass’n, 116 Wis. 382, and Munz v. Insurance Co., 26 Utah, 69 (62 L. R. A. 489), and cases cited. These cases seem to proceed on the theory that it cannot be supposed that the parties contemplated that the assured should be required to do an impossible thing or suffer a forfeiture of existing rights.

There are other questions in the case, but they may not arise on another trial, and we do not discuss them.

The judgment is reversed, and a new trial ordered.

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


author: Ostrander, J.

text:
    LATTIN v. GAMBLE.
    1. Arbitration and Award — Award by Majority — Validity-Scope of Articles.
    The general rule is that where articles for a common-law arbitration by three arbitrators do not provide for an award by J two' of them, an award by two is not binding.
    2. Same — Interference by Counsel — Evidence—Sufficiency.
    On the issue of the validity of an award signed by ,'only two of three arbitrators under articles not providing for an award by two, evidence examined, and held, that agreement by the third arbitrator was not prevented by interference by counsel for the party who appointed him.
    8. Same — Conduct of Counsel — Propriety.
    It was improper for counsel, in the absence of opposing counsel, to submit further argument to arbitrators, after being shown their proposed award, and, without knowing that further conference of the arbitrators was impossible, to privately express, or intimate, his opinion to the arbitrator chosen by his client.
    4. Partnership — Accounting — Sale of Assets — What Included.
    It is not presumable that cash in the hands of a receiver appointed to close up the affairs of a partnership was included or understood to be included in a sale of the assets.
    Appeal from Oceana; Rose, J., presiding.
    Submitted June 17, 1908.
    (Docket No. 70.)
    Decided September 10, 1908.
    Bill by Julia S. Lattin, administratrix of the estate of Sylvester Lattin, deceased, against Joseph E. Gamble and Charles Jensen for an accounting, and for the appointment of a receiver. From a decree for complainant, defendant Gamble appeals.
    Affirmed.

      O. B. Stevens, for complainant.

      Rufus F. Skeels and F. E. Wetmore, for appellant.
   Ostrander, J.

Complainant is administratrix of the estate of Sylvester Lattin, deceased, and is his widow. She filed the bill in this cause, asking for an accounting and for the appointment of a receiver to take charge of and close up a mercantile business in which the estate was interested. Before an answer to the bill had been filed, complainant and defendant Gamble agreed to arbitrate their differences, and made and signed articles for a common-law arbitration by three arbitrators; no provision being made for an award by two of them'. ' At the same time it was stipulated that the arbitration should not operate to dismiss the chancery suit, but that, unless the arbitration was completed and a decision rendered within a reasonable time, the chancery case should proceed to a hearing, “and, incase the arbitration is concluded and settlement made on that basis, then said Julia S. Lattin may dismiss said cause without costs.” Two of the arbitrators made and signed an award; the arbitrator chosen by complainant being the one who did not sign. Complainant renewed her application for the appointment of a receiver. • In his answer defendant Gamble set up the arbitration proceeding, and prayed, as affirmative relief, that the award be decreed to be carried out, offering and tendering execution and delivery of all the papers required to be executed and delivered by him in accordance with the award. The court refused to enforce it. From a final decree upon the merits defendant Gamble has appealed.

His contention is that it was error to refuse to enforce the award. Counsel are agreed that the general rule requires an award under a submission like the one before us to be signed by all of the arbitrators. But it is insisted— I quote from the brief:

“ This case is taken out of the general rule, for the reason that the failure of Mr. Butler to sign the arbitration award was caused by the conduct of Mr. Stevens, the solicitor for the complainant, who chose Mr. Butler for their arbitrator. It does not seem to us that there can be any other or different conclusion than that Mr. Stevens was solely responsible for that failure.”

This was the ground urged at the hearing, with references to testimony supposed to establish the fact that the solicitor for complainant was responsible for the action of the third arbitrator. It is a ground not set up in the answer and cross-bill, and was asserted for the first time during the taking of proofs. We do not find that it was supplied by amendment to the cross-bill. It appears from the record that the court was of opinion that amendments might be made to conform with the proofs, and, as opposing counsel do not object, we assume the failure to make formal amendment was an inadvertence. It is evident that, if the fact is not found in agreement with appellant’s contention, there is no occasion to consider other objections to the award. The contention of appellant not only involves the merits of the particular matter, but also, in some degree, the professional conduct of the solicitor for the complainant. We have examined the record with care, with the result that we find ourselves in agreement 'with the court below. It is not necessary to set out the testimony. The three arbitrators heard testimony, listened to arguments by counsel, and proceeded to deliberate. After a session, which, with adjournment for dinner, continued from about 10 o’clock in the forenoon until after 4 in the afternoon, two of them reached conclusions to which the other did not assent. The disagreement being evident, the third arbitrator absented himself from the sitting, which was at Pentwater, after stating that he must leave for Minneapolis, Minn., the next morning. Thereafter, during the same day, two of the arbitrators exhibited to the solicitor for complainant the award they were prepared to make. He claimed that it was unjust, said he did not believe the judge of probate would approve it (it was his opinion that any award concerning the affairs of the estate of a deceased person to which the administratrix was a party must be approved by the judge of probate), and he pointed out to the two arbitrators, in the absence of opposing counsel, what he claimed were errors. It seems to be now conceded that they were errors, and they were later, on that day or the next morning, corrected. They related to some at least of the matters about which the arbitrators had disagreed. After the solicitor for complainant had so expressed himself, he saw and talked with the third and dissenting arbitrator on the street. He testified as follows:

Q. And did you then in your conversation with Mr. Butler say to him that it was an unjust award, and intimate to him that you didn’t want him to sign it ?
“A. I presume I did.”

This was after the arbitrator had told him he would not sign the award which the others had agreed to and before it was known that the proposed award would be in any respect changed. Later Mr. Butler declined the invitation of one of the other two arbitrators to again go into conference, ordered his horse, and returned to Hart. Some evidence was thereafter taken by the other arbitrators, and the next day the award was signed. The record supports the finding of the trial court that:

“ The award was not presented to the arbitrator Butler for his approval. The two arbitrators did not wait for him to return from Minneapolis before they signed it. In fact, the award was signed by the two arbitrators on the theory and belief that it would be valid and binding if made by the majority of the board of arbitrators, and this is the sole position and claim made by defendant in his cross-bill. No claim is there made that complainant or her counsel had done anything by which she would be estopped in a court of equity from urging the validity of this award.”

No one can say, because no one can know, that Mr. Butler would in any event have agreed with the others in the award which was made. It is clear that the conduct of counsel complained about was not the cause of the disagreement of the arbitrators, and we cannot say that it induced Mr. Butler to decline further conference. We conclude, therefore, there was no award, and that the court below was right in refusing to enforce the conclusions of the two arbitrators. While it may be presumed that the statement of counsel to the arbitrator was called out by the statement of the arbitrator that he would not sign the award of the other two, and that it was influenced, also, by his knowledge of the proposed award, by what he believed to be errors therein, and by lack of knowledge that the two arbitrators would recede from the position they had taken, the circumstance was calculated to arouse, as it has, the suspicion of those representing opposing interests. We shall assume that in sending for the solicitor for complainant and in exhibiting to him the proposed finding, in listening to his criticisms thereon, and in later considering evidence not adduced before all of the arbitrators, the two arbitrators were entirely innocent of any wrong intention or of impropriety. We are obliged to say that those rules of conduct to the observance of which the profession is bound were violated when one of the solicitors, in the absence of the solicitor for the other party, submitted further argument, and when, without knowing that further conference of the arbitrators was impossible, he privately expressed, or intimated, his opinion to the arbitrator chosen by his client. Whether counsel was unfriendly to those rules, which we do not assume, or only forgetful of them, the apparent effect is the same.

While this court is not asked to review the accounting had in the court below, it is claimed by appellant that the decree should be modified and the receiver directed to pay the sum of $612.82 to one Neils Jensen, to whom upon his bid the assets of the firm were sold. This was money in the hands of the receiver at the time of the sale. It seems incredible that, in a sale of partnership assets, cash would be included or be understood to be an asset to be sold.

We are satisfied with the decree below; and it is affirmed, with costs.

Montgomery, Hooker, Moore, and Carpenter, JJ., concurred.