author: Grant, J.

text:
      In re SMITH.
    Perjury — Testimony Taken on Stipulation.
    Perjury may be predicated upon false testimony given before the circuit judge, under oath by him administered, in a county adjoining that in which the acticm is pending, but in the same judicial circuit therewith, where the parties stipulated, with the consent of the judge, that the testimony should be so taken.

      Habeas corpus by Frank B. Smith to obtain his discharge from imprisonment in the state prison at Jackson upon a conviction for perjury.
    Submitted June 17, 1896.
    Writ dismissed July 28, 1896.
    The petitioner was convicted of perjury, and is now undergoing sentence in the state prison. He applies for release upon the writ of habeas corpus. In 1891 a suit in chancery was commenced in the circuit court for the county of Van Burén by one William Harrison against the petitioner, Frank B. Smith, and others, as defendants. Van Burén and Kalamazoo counties comprise the Ninth judicial circuit. The circuit judge, George M. Buck, resides in Kalamazoo. After the case was at issue, it was stipulated in open court by the solicitors for the respective parties, the judge consenting, that the testimony should he taken, and the case argued and submitted, before the judge at Kalamazoo. This appears to have been for the 'accommodation and benefit of all the parties to the suit. The testimony was taken at Kalamazoo, the case argued, and the decree duly rendered in the circuit court for the county of Van Burén.
    The petitioner offered himself and was sworn as 'a witness in that suit, and, after its termination, was prosecuted and convicted of perjury.

      JEt. R. Pealer and George F. Miller, for petitioner.

      Fred A. Maynard, Attorney General, Alfred S. Frost, Prosecuting Attorney, and William G. Howard, Assistant Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). The petitioner insists that the taking of testimony and the hearing of the case in the county of Kalamazoo were without the jurisdiction of the court, and that, therefore, perjury cannot be assigned. It is too clear to require argument that a valid decree was rendered in that case. All parties understood that the case was still pending in the Van Burén circuit, and .stipulated that the testimony should be taken and the arguments had at the residence of the circuit judge in the adjoining county of the same circuit. It would be illogical to hold that the court had jurisdiction to render a valid decree, but that it had no jurisdiction to take the testimony upon which the decree was based. The testimony was taken in a judicial proceeding. The court had- jurisdiction of the subject-matter. The parties waived, for their own convenience, the taking of testimony at the county seat, and agreed to take it elsewhere. The waiver- binds them. The consequences of false swearing were the same as if taken at the courthouse in Van Burén county, and the moral turpitude of the petitioner as great in one case as in the other. Circuit judges have the power to administer oaths. When courts have jurisdiction of the subject-matter of a suit, all irregularities may be waived, and such irregularities will afford no defense to a charge of perjury. A well-considered case is State v. Stephenson, 4 McCord, 165, where a justice of the peace administered an oath to a witness in a matter submitted to arbitration by the consent of parties. After citing several authorities, the court says:

“The authorities before cited have collected a great variety of cases calculated to mark the line of separation between that class of oaths which, with respect to the tribunal by which they are a dministered, constitute the crime of perjury, and those which do not; and, without entering into a minute analysis of them, all the principle clearly deducible from them is that whenever the law confers the power of ascertaining facts, and from which any legal consequences are to follow, and in the investigation of which the examination of witnesses is necessary, it is perjury in a witness to testify falsely.”

See, also, Maynard v. People, 135 Ill. 416; 2 Whart. Cr. Law, § 1272; 2 Bish. Cr. Law, § 1028; Montgomery v. Town of Scott, 32 Wis. 249; People v. McCaffrey, 75 Mich. 125.

The writ is dismissed, and the prisoner remanded.

The other Justices concurred. ' '


source: Caselaw Access Project

author: Moore, J.

license: Public Domain

text:
    WHEELER v. SUPREME SITTING, ORDER OF IRON HALL.
    1. Mutual Benefit Associations — Matured Certificate — Right of Action — Defenses.
    An action on a matured relief-fund certificate will not be dismissed upon the objection, raised for the first time at the trial, that the suit is prematurely brought, for the reason that the association is entitled to time within which to levy an assessment for the purpose of raising money to meet the claim, where it does not appear that the funds on hand are insufficient to pay the same, or that an assessment is necessary.
    2. .Same — By-Laws—-Effect on Existing Contracts.
    The adoption of by-laws by a mutual benefit association, prohibiting the assignment of certificates, and giving the association 90 days after maturity in which to make payment thereof, cannot affect the rights of members as to certificates previously issued, unless they expressly assent thereto.
    Error to Wayne; Aldrich, J., presiding.
    Submitted June 11, 1896.
    Decided July 28, 1896.

      Assumpsit by David W. Wheeler against the Supreme Sitting-of the Order of the Iron Hall upon relief-fund certificates. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Griffin & Warner, for appellant.

      Washington I. Robinson, for appellee.
   Moore, J.

The plaintiff sued the defendant on a relief-fund certificate issued to him by the defendant August 7, 1885, and upon two certificates that had been assigned to him before the commencement of the suit. These certificates were payable seven years from their date. Suit was commenced August 27,1892. Judgment was rendered in favor of the plaintiff for the full amount of the certificates. The defendant appeals. It appeared in evidence that the plaintiff and the two assignors had each paid the assessments mentioned in the certificates for the full period required therein. It also-appeared that the certificates had been presented to the accountant of the local branch, after maturity, who informed the members that the money would be paid in a few days. It was not paid, and suit was brought.

It is insisted by way of defense that, as réspects a going concern, the court will not entertain jurisdiction to adjudicate a claim of a member upon a matured certificate issued by defendant; that the court, at least in the first instance, will compel the member^ to resort for payment to those methods which are prescribed by the constitution and laws, rules, and regulations governing the order, and therefore controlling the members. It is claimed that the member must be deemed to know that, by reason of the by-laws, the money could not be paid by the accountant of the local branch, but must be paid by an order drawn by the supreme accountant on the supreme treasurer, signed by the supreme justice, and forwarded by him to the local accountant, who should, in turn, deliver it to the beneficiary, and receive a surrender of the certificate. It is also urged that, if there is no money in the treasury to pay the certificates, an assessment must be made, and that this suit is prematurely brought.

If there is any force in this contention at all,' it can only be when it is shown that the conditions urged exist as a matter of fact. There is nothing in the record to show that there were not funds in the treasury to pay these certificates, or that there was any occasion to make an assessment. There is no question about the sum to be paid the plaintiff, or the time the certificates matured. The certificates provide that if the member has paid assessments for seven years, and otherwise complied with the conditions, and has in all respects maintained himself in good standing, “the said member shall be entitled to a sum not exceeding the principal amount named herein, less the amount he has already received for sick benefits.” All these conditions were complied with in this case. The certificates were presented to the accountant. The beneficiaries were informed that the money would be paid in a few days, and, as it was not paid, suit was brought, and it is not until the trial that it is urged that the certificates aíre not yet payable. We do not think the objection can be sustained, especially as there is nothing to indicate that the failure to pay is for want of funds in the treasury. Silvers v. Benefit Ass’n, 94 Mich. 39.

It is also claimed by defendant that there is no obligation to adjust a benefit certificate until 90 days from maturity ; and, also, that claimants cannot bunch their certificates by assignment under the by-laws. The by-laws of 1891 give 90 days after maturity of benefit certificates in which to pay the losses, and also forbid transfers of membership certificates. It is probable that, after the maturity of these certificates, they became claims that could be assigned like other claims; but, whether that is so or not, these by-laws were not adopted until six years after the certificates sued upon were made. It was held in Starling v. Royal Templars, 108 Mich. 440, that, where a mutual benefit society issued to a member a certificate of insurance, the subsequent adoption of a bylaw by the society could not modify or change the contract of insurance without the express consent of the member.

We think there was no error in the trial of the case.

Judgment is affirmed.

The other Justices concurred.


text:
    TOBIAS v. MICHIGAN CENTRAL RAILROAD CO.
    Railroad Companies — Accident at Crossing-Automatic Bells —Contributory Negligence — Instructions.
    Plaintiff’s intestate was killed by a train at a highway crossing at which an electric bell, rung automatically by passing trains, was maintained, by the company. Upon the occasion in question, however, the bell was out of repair, and did not ring; but an approaching train could be seen for a long distance. In an action against the company, the jury were instructed that, if the deceased had looked, he could have seen the train, and that his failure to look would, if it were not for the question of the bell, constitute contributory negligence precluding a recovery; that it was the duty of the deceased to be cautious and careful in approaching the crossing, and that the presence of the bell did not diminish the care required; and that it was for the jury to say, in view of all the circumstances, how far, if at all, he was authorized to rely upon the bell. Held, that the instructions were not open to the objection that the right of the deceased to rely in any degree upon the ringing of the bell was eliminated.
    Error to -Ingham; Person, J.
    Submitted June 18, 1896.
    Decided July 28, 1896.

      Case by Esther J. Tobias, administratrix of the estate of James Tobias, deceased, against the Michigan Central Railroad Company, for the alleged negligent killing of plaintiff’s intestate. From a judgment for defendant, plaintiff brings error.
    Affirmed.

      Smith & Lee and Black & Dodge, for appellant.

      M. V. & B. A. Montgomery, for appellee.
   Moore, J.

This case has been in the court before. It is reported in 103 Mich. 330, where a very complete statement of the facts may be found, except some additional testimony which was offered upon the second trial in relation to the electric bell at the crossing. A brief statement of that testimony, read in connection with the statement contained in the case as reported in 103 Mich., will make a full statement of the case unnecessary here.

The accident to Mr. Tobias occurred October 30, 1891. Mr. McKim testified that he knew of there being an electric bell at the crossing at that time; that it had been there over a year; that it was operated by a wire from a battery about 80 rods away; that, 'when the bell was in order, the approaching train would ring it; that sometimes it would ring and sometimes not, depending upon whether it was in working order; that it began to ring when the train was 80 rods away, and would ring as long as the train was crossing the instrument, but did not ring after the train crossed the highway going south; that the bell made a loud noise, — could hear it 60 rods away, frequently ; that he and his son were at work near the crossing on October 30th; that several - trains passed while he was there, and the bell did not ring. He testified that there was a great deal of travel on that street; that he learned of ■ the accident, and went down to the crossing after the train went south, 20 minutes or so later; that it was dark when the train went south. On cross-examination he testified that he had lived five years within 40 rods of the crossing; that the bell did not ring the day of the accident, when trains passed; that there had been times before when it was out of repair, and did not ring; that a long train would make it ring longer than a short one; that it would sometimes ring until the train reached the crossing, and sometimes not; that sometimes the bell rang and sometimes not, which was a fact pretty well known to a good many; that Mr. Tobias lived two miles away, and passed over the crossing two or three times a week; that the bell had been out of repair two days; that he saw Mr. Tobias pass there the day of the accident. His son gave substantially the same testimony.

The assignments of error all relate to the charge of the court. It is contended by counsel for appellant that the charge of the court to the jury left no room for recovery; that it amounted to a direction to find for the defendant; that it eliminated any right of the deceased to in any degree rely upon the ringing of the electric bell to warn him of the approach of the train; that, in short, the court told the jury it was the duty of the deceased to look and listen on approaching the crossing, or he was guilty of negligence; that if he had íooked he could see the approaching train, and that it was certain on the record he did not look, and that the presence of the electric bell would not excuse him. from looking. So far as it is necessary to quote the charge to a proper understanding of the case, it reads as follows:

“First. A party, to recover for the injuries caused by the negligence of another, must, as I have stated, be free from fault. In determining the alleged negligence of the company and the question of whether Mr. Tobias was negligent or not, you must take into consideration all the facts and circumstances of the case, the character of the crossing, of the road, and everything connected with the matter. It does appear as a matter of fact in the case that at certain points Mr. Tobias could have seen the approaching train from the north. The evidence as to those points and distances is probably plainly in your minds. He evidently did not look to the north with as much care and caution as would have been necessary if the electrical bell had not been there. Were it not for the question of that electrical bell in this case, under the opinion of the Supreme Court filed in this case at a time when it was before that court, it would be my duty to say to you that Mr. Tobias was negligent in not looking, and, to take the case from you. But the electric bell brings into the case another question that the courts cannot decide, and that can be decided only by a jury.
“ I do not want you to understand that the presence of that electric bell diminished the' caution or care required of an approaching traveler,. for it did not. A traveler must be cautious; a traveler must be careful. But it brings before you the direct question whether, under the circumstances of this case, in making that crossing, he did or did not exercise that care and caution which an ordinarily prudent man would have exercised under all the circumstances. In other words, it brings before you the question of how far and how much he was authorized to rely upon the bell. If the electric boll rang, then the cpmpany performed its full duty, and he could not recover in this case; if it rang so that he heard it, and performed the function of warning, then I can conceive of no excuse for his getting injured. If he knew or understood that the electric bell was liable to get out of order, and to fail in an emergency for which it was put there, "then it would not have been prudent for a man to rely upon it, and he could not have prudently relied upon it. In such a case I could see no excuse for the injury. The question comes up under these circumstances: Did the electric bell fail to ring ? Did it fail to give him warning either by fully or partially ringing? Was he ignorant of the fact that the bell was liable to fail, and did he rely upon it? If you find these facts to be true, — that the bell failed to give warning, that he didn’t know that it was liable to fail, and that he relied upon it, — then the question comes up for you to determine how far — whether, as a reasonably prudent man, he' should have relied upon the bell at all, and, if he should, how far, as a reasonably prudent man, should he have relied upon it.
“And it amounts to this— Of course, it is a case where there was no eyewitness to the immediate casualty. We have not the testimony from the lips of living witnesses as to just how he approached the crossing, nor as to just what the circumstances at the immediate time of the casualty were. We have not the facts from the lips of living witnesses. And although the burden of proof is upon the plaintiff to show that Mr. Tobias exercised due care, yet, under the law of this State, in the absence of witnesses to the occurrence, it is presumed that the deceased was in the exercise of reasonable and ordinary care. But testimony from living witnesses is not the only testimony in a case. Facts, surroundings, circumstances are testimony in a case, just as strong sometimes, and sometimes stronger, perhaps, than the testimony of living witnesses. And if the facts and circumstances of the case, as you find them, are inconsistent with the exercise of due care upon the part of Mr. Tobias, then his administratrix cannot recover.
“For instance, I said to you that it was the duty of a man to look and listen. It is. It was in this case. Had there been nothing else upon which he had a right to place a reliance, had there been no other point to which his attention could have been reasonably directed in the exercise of prudence, then it would have required that he look to the north; look after he came to the right of way; and, if he had looked at that time, he could have seen the approaching train, because the testimony shows that its headlight shone. It would not have been prudent to cross, had there been no electric bell, without looking to the north. That is certain. That I can say as a matter of law. Therefore we know that he could not have looked, because, if he had, he would have seen the train. That is an illustration. Judge the whole case, taking all the things together. You are to determine whether the presence of the electric bell was to be relied upon by him; as I have stated before, whether he acted as a prudent, reasonable man in relying upon it; and whether he relied upon the electric hell any further than a reasonably prudent and cautious man would have done, under the circumstances. If you find that the railroad company was negligent in the respect mentioned, and that Mr. Tobias was not negligent, and did not contribute to the negligence, your verdict will be for the plaintiff. If you find the railroad company was not negligent, or that Mr. To-bias himself was guilty of contributory negligence, your 'verdict will be for the defendant. If you reach a verdict for the plaintiff, then comes the question of damages to be awarded.”

We do not think this charge sustains the contention of counsel. It fully and fairly presented to the consideration of the jury the law as applicable to the facts proven and the theories of the respective counsel.

The judgment is affirmed.

The other Justices concurred.


text:
    BOWEN v. FLINT & PERE MARQUETTE RAILWAY CO.
    1. Railroad Companies — Killing Stock — Defective Fences— Evidence.
    Evidence that, on several occasions within about a month before the killing of plaintiff’s colts at a railroad crossing, cattle were found upon the track, and driven through the fence along the right of way at the point where plaintiff claims the colts subsequently went through, is admissible upon the issue whether the oolts escaped at such point, or at a point in plaintiff’s fence along the highway, where the defendant’s testimony is to the effect that the former fence was in a good condition. Jébb v. Railway Co., 67 Mich. 160, distinguished.
    2. Same.
    Upon such issue, the question whether a witness knew of the colts’ “coming out and being shut up on the highway” is incompetent, it referring to no particular time and being directed to no particular fence.
    Error to St. Clair; Vance, J.
    Submitted June 19, 1896.
    Decided July 28, 1896.
    Case by Owel Bowen against the Flint & Pere Marquette Railway Company to recover for the loss of horses killed on defendant’s track. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      The defendant’s right of way crosses the plaintiff’s farm and a highway adjoining. In one field, adjoining the right of way, he pastured some colts. Two of them were killed in the highway upon the crossing. The claim of the plaintiff is that the colts escaped from the pasture through a defective fence along the right of way, crossed over into his adjoining field, and thence into the highway. The claim of defendant is that they escaped through the plaintiff’s fence along the highway, which was claimed to be defective. The case was left to the jury upon both theories, the court instructing them that if they found that the colts escaped through the defendant’s fence, on account of its defective condition, the plaintiff was entitled to recover, but, if they found that the colts escaped through the plaintiff’s fence along the highway, their verdict should be for the defendant.

      Atkinson & Wolcott, for appellant.

      Avery Bros. & Walsh, for appellee.
   Grant, J.

(aftér stating the facts). Plaintiff was permitted to show, under objection and exception, that, ■on several occasions within about a month before the accident, cattle were found upon the track, and driven through the fence at the point where it is insisted the plaintiff’s colts went through. It is insisted that this was error, .under Jebb v. Railway Co., 67 Mich. 160. We think that case does not rule this. The object of this testimony was to show the condition of the fence at the identical spot where plaintiff insists the colts went through. This was not the case in Jebb v. Baihvay Co., in which it appears that the testimony introduced •covered many months prior to the accident, and was not confined to any particular part of the fence. In view of the fact that the defendant’s testimony was to the effect that this fence was in good condition, we think the testimony was competent.

It is also insisted that the court erroneously ruled out testimony tending to show that plaintiff’s colts were frequently in the highway, and that they got out of plaintiff’s field over his fence along the highway. If defendant had offered such testimony, it would have been competent, but such was not the question. The question objected to was, “Do you know of Mr. Bowen’s colts coming out and being shut up on the highway?” The •question referred to no time, and was not directed to the plaintiff’s fence.

The judgment is affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    FIRST NATIONAL BANK OF MONROE v. WILLS CREEK COAL CO.
    Bills and Notes — Discount Before Acceptance — Bona Fide Holder.
    A bank is not, as to an accommodation acceptor, a bona fide holder of a draft which it discounted prior to its acceptance, unless, at the time the acceptance was secured, it parted with value in reliance thereon; and evidence that the proceeds were paid or credited to the drawer conditionally only is insufficient to establish that fact, in the absence of a showing that, when the acceptance was received, the drawer in fact had a credit on the books of the bank against which the amount of the draft could have been charged.
    Error to Wayne; Donovan, J.
    Submitted June 18, 1896.
    Decided July 28, 1896.

      Assumpsit by the First National Bank of Monroe against the Wills Creek Coal Company upon a draft discounted before acceptance. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Malcolm McGregor, for appellant.

      Dickinson, Thurber & Stevenson and Charles Warren, for appellee.
   Montgomery, J.

Action on an accepted draft drawn by the Monroe Manufacturing Company on defendant, and discounted by the plaintiff bank befox’e acceptance. There was testimony tending to show that the acceptance was for the accommodation of the drawer; that the acceptance was made by the bookkeeper, who had no authority to accept drafts for the company, and without any coxxsideration passing to the company. Plaintiff, however, claimed that it was a bona fide holder, and that the action of the bookkeeper in accepting the draft was fully- ratified by the defendant’s vice president, who had general authority to accept drafts. The questioxx of ratification was submitted to the jury, under instructions which appear unobjectionable, and was found ixi the affirmative.

Even if the acceptance of the draft was ratified, if it was for the accommodation of the drawer, a recovery could be justified only upon a finding that the plaintiff was a bona fide holder; and it is contended by the defendant that the evidence failed to show that the bank parted with value on the strength of the acceptance.

The testimoxxy given upon this point was by Gen. Spaulding, the president of the bank. He testified, in sxxbstance, that the draft was discounted before acceptance, and sent forward to the bank’s correspondent in Detroit, for acceptance and return; that it was returned, bearing the indorsement—

“Accepted by the Wills Creek Coal Co.
“B. E. Berry,
“Vice President.”

On cross-examination he testified that he was not able to state whether the money was paid on the dx’aft, or whether it was credited to the account of the Monroe Manufacturing Company, and that he discounted it relying upon the Wills Creek Coal Company, because he did not presume that the Monroe Manufacturing Company would draw against the Wills Creek Coal Company unless they were indebted. On redirect examination, he was asked to state what the arrangement was with the Monroe Manufacturing Company in regard to what should be done with the proceeds of this draft if it was not accepted by the Wills Creek Coal Company. The answer was as follows:

“The instructions to those in the bank-under me were that if paper was sent for acceptance, and acceptance refused, the amount would be charged right back to the account of the drawer.
“The Court: So that it was a conditional credit ?
“A. Yes, sir.
“Q. Depending upon the indorsement ?
“A. Yes, sir; entirely.”

There was no testimony as to whether the Monroe Manufacturing Company had funds in the bank against which this draft could have been charged, after the ¡discount of the same.

The court charged:

“If you believe the testimony of Gen. Spaulding that the First National Bank of Monroe discounted the draft in suit upon the condition that the acceptance of the Wills Creek Coal Company should be obtained, and reserved the right to charge the proceeds back against the Monroe Manufacturing Company in case the acceptance of the Wills Creek Coal Company should not be obtained, then I charge you that the bank would be a bona fide holder of the paper, and would be entitled to recover; that is, if they relied upon that, other things being duly authorized, and if they relied upon that, they would be entitled to recover, if the paper appeared regular on its face, was taken in the ordinary course of business, was taken [accepted] by some one authorized by the Wills Creek Coal Company, either expressly or by ratification, growing out of the acts of the vice president and general manager of the company, or arising from a course of conduct pursued by the vice president and general manager of the defendant company, having knowledge that the paper had been accepted by the bookkeeper of the company.”

It will be noted that the testimony of Gen. Spaulding does not show that there was any agreement between the parties to charge back the amount of the draft, nor do we think that this would be essential, if, in fact, there was a credit on the books of the bank which would have enabled the bank to do so. But there was no such evidence, nor does the instruction make the right to recover depend upon any such fact. Under these circumstances, the instruction was erroneous. Unless, when the acceptance came to the bank, it had funds in its hands which it released or failed to withhold from the drawer, the Monroe Manufacturing Company, because of the acceptance, the bank did not part with value in reliance on the acceptance, in such sense as to constitute it a bona fide holder. Farmers’ & Mechanics’ Bank v. Empire Stone Dressing Co., 5 Bosw. 275.

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

The other Justices concurred.


text:
    GUMBERG v. TREUSCH.
    1. Debtor and Creditor — Fraudulent Sale — Consideration.
    Knowledge, either actual or constructive, by a creditor, of an intention on the part of his debtor to defeat other creditors by a transfer to him, is sufficient to avoid the transaction, where part of the consideration is cash paid to the debtor, although the other portion is the discharge of the transferee’s claim.
    2.. Same — Evidence.
    It is competent, upon the question whether all of the goods transferred by a debtor to another were entered upon the former’s books, to show a removal of goods during the noon hour, in the absence of the bookkeeper, in connection with his evidence that he does not remember of any instance when goods that had been ordered in the forenoon were not sent until after he came back from dinner, nor of any instance of finding a memorandum of goods to be entered up when he came back from dinner.
    8. Garnishment — Mistake of Fact.
    An item of indebtedness arising out of an admitted mistake in bookkeeping, which constitutes a present legal demand in favor of the creditor, may be reached by garnishment.
    Error to Kent; Grove, J.
    Submitted June 10, 1896.
    Decided July 28, 1896.
    Garnishment proceedings by John Gumberg and another against Morris H. Treusch and another, as garnishee defendants of Jacob Lustig. From a judgment for defendants, plaintiffs bring error.
    Reversed.

      Rood & Ryan, for appellants.

      Fletcher & Wanty, for appellees.
   Montgomery, J.

This case has once been before the court, and is reported in 103 Mich., at page 543, to which reference is made for a general statement of the facts. On the second trial defendants prevailed, and plaintiffs bring error. The assignments of error relate to the charge of the court and the refusal to give certain requests of plaintiffs and the granting of certain requests of the defendants.

The testimony on the last trial tended to show that, for the last of the goods received by the Treusches from Lustig, cash to the amount of $1,333.19 was paid, in addition to crediting Lustig with a portion of the purchase price on the alleged indebtedness from Lustig to the Treusches. The plaintiffs requested an instruction as follows:

“The undisputed evidence shows a sale, during a short time prior to the failure, from Lustig to the Treusches, of goods, and about one-half cash paid Lustig by the Treusches therefor, viz., $1,333, on the 33d day of June, 1891; and if you find from all the evidence in the case that either of the Treusches had such notice as would put any ordinarily prudent man on inquiry, that Lustig intended to defraud his creditors by these sales to the Treusches, plaintiffs must recover.”

This request was refused, and error is alleged upon the refusal. Counsel for defendants contend that the instruction by the court upon this subject was, however, sufficiently favorable. The court did charge the jury, in effect, that, to warrant a finding that the title which the Treusches acquired to the goods in question was void against creditors, the jury must find that Lustig’s purpose was fraudulent, and that the Treusches had knowledge of that fraudulent intent, or had knowledge of such facts surrounding the transaction as would have been sufficient to put an ordinarily prudent man upon inquiry as to Lustig’s intent; but added:

“And even in a case where they might have had knowledge of the condition of Lustig’s affairs, that he was insolvent, and in failing circumstances, they would have the right, if they knew that, to secure their own debt.”

The court further stated:

. “He [the creditor] may also be aware that the effect of the payment to him will be to hinder and delay, or even defeat, other creditors in the collection of their just claims, and yet such knowledge will not avoid the sale made to pay the honest antecedent indebtedness. ”

And again:

“A creditor may purchase in order to secure a bona fide indebtedness, and he is not affected by a fraudulent intent on the part of his grantor in which he did not participate. The law permits a debtor to prefer a creditor either by the way of payment or security, where such security is disassociated with a common-law assignment. If such a conveyance is made to defraud creditors, it must be becausé the debt is fictitious in whole or in part, and so intended for a mere cover. But, if the debt is not fictitious, the creditor has a right to take goods in payment of it, even though he knows that the effect will be to cut off the ability of his debtor to pay others.”

We think the learned circuit judge failed, through inadvertence, to cover the ground stated in plaintiffs’ request, above quoted. There is a distinction, well established by authority, between the case of a purchase by a creditor from a debtor in failing circumstances of goods or property received in satisfaction of an indebtedness, and a purchase for a money consideration passing into the hands of a debtor. In the former case, knowledge of a purpose to defeat creditors is not necessarily sufficient to avoid the transaction, if the indebtedness is honest, and no more property is taken than is sufficient to satisfy such indebtedness. The transaction, in such a case, amounts to nothing more than a preference of one creditor over others, which the debtor has the right to make. But a sale of property, by which the whole or part of the purchase price finds its way into the hands of a failing debtor, if made with intent to defraud creditors, and with knowledge in the purchaser that such is the intent, is none the less fraudulent, and the purchaser is none the less liable as a participator in the fraud, because there is included in the transaction a cancellation of an indebtedness owing to him. Hough v. Dickinson, 58 Mich. 89; Bedford v. Penny, 58 Mich. 428. While the learned circuit judge evidently had this distinction in mind, we think he failed to express it to the jury, and that the charge, as given, tended to mislead.

The plaintiffs, on the trial, also offered testimony of one Orson Stebbins, who was Lustig’s bookkeeper at the time of these transactions, and he testified that all the entries of goods sold to the Treusches appearing upon the books of Lustig were in his (Stebbins’) handwriting; that he did not remember of any instance when goods that had been ordered in the forenoon were not sent until after he came back from dinner; nor did he remember of any instance, after coming back from dinner, of finding a memorandum from Mr. Lustig of any goods to be entered up which had gone out during the noon hour. The plaintiffs then called a Mr. Kelly, a drayman, who testified that during the noon hour goods were taken by him from Lustig’s store, and conveyed to the Treusches; that some of the goods taken consisted of cases of cigars that were sealed and strapped when he (Kelly) went into Lustig’s store to get them, and that Mr. Lustig would cut the straps and pull them out, and that these sealed and strapped cases were in the same condition as they were when put in from the depot. Stebbins, the bookkeeper, testified that an account of the goods received did not go onto the books until they were unpacked. It appears that Lustig’s books and Treusch’s books correspond in the account of the amount of goods received by the Treusches from Lustig. The contention of the plaintiffs was, as to the testimony referred to, that goods were taken from Lustig’s to Treusch’s dui’ing the noon hour, of which no account was given to Lustig’s bookkeeper, and which did not, therefore, appear upon Lustig’s books or Treusch’s books, and which the jury were consequently justified in inferring were not paid for. The circuit judge refused to submit this question to the jury, and, on the contrary, charged that there was no evidence to support the claim that any goods were taken from Lustig’s store that were not in fact entered upon the books of the Treusches. We think this testimony should have been submitted to the jury. It is true, the defendants offered testimony tending to dispute that offered by the plaintiffs on this point, and it might also be said that the testimony offered by plaintiffs is not in itself of great force; but we are not able to agree with the circuit judge that there was not enough of it to go to the jury.

Another item of minor importance is an alleged indebtedness of $28 from the Treusches to Lustig, arising out of a mistake of bookkeeping. It appears that in an entry, in extending the credit for 2,100 cigars at the price of $28 per 1,000, the extension was for. the price of 1,100 cigars only, showing a mistake in favor of the Treusches of $28. This is within the affidavit, and we see no reason why the plaintiffs should not recover it. The evidence shows very clearly that it was a mistake of fact, and that the goods were actually received by the Treusches at a stipulated price, and that Lustig was not paid for them. The circuit judge seemed to be of the opinion that it was covered by the settlement between the parties, but we think it was evident that the parties never intended to settle for this mistake; that the error was not discovered. There was nothing to bar a recovery by Lustig.

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

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


text:
    BEECHER v. COMMON COUNCIL OF DETROIT.
    Taxation — Unconditional Debt — Exemptions.
    An absolute liability for future payments of rent, under a lease for a term of years, does not constitute an unconditional debt of the lessee, within the meaning of section 9, Act No. 206, Pub. Acts 1893, exempting from taxation “so much of the debts due or to become due as shall equal the amount of bona fide and unconditional debts by the person owing.”

      Certiorari to Wayne; Frazer and Carpenter, JJ.
    Submitted June 17, 1896.
    Decided July 28, 1896.

      Mandamus by George L. Beecher and another, administrators of the estate of Luther Beecher, deceased, against the common council of the city of Detroit, to compel the reduction of an assessment against the estate. From an order denying the writ, relators bring certiorari.

    Affirmed.

      Alfred Russell, for relators.

      Charles D. Joslyn, for respondent.
   Montgomery, J.

This is certiorari to review the decision of Judges Frazer and Carpenter in refusing a mandamus to compel a modification of the assessment of the estate in relators’ hands for the purpose of taxation. The facts, as disclosed by the return, are that the relators have credits in their hands amounting to $261,000, and that the estate is responsible, under the covenants of a lease of property known as the “Biddle House,” in Detroit, for rent for 75 years at an estimated rental of $16,000. The rent fluctuates on revaluations at intervals. The claim is that the assessors should have allowed the present value of the amount to grow due as rent, as an offset against these credits, and mandamus was asked to require the common council to so modify the assessment as to give relators the benefit of the reduction.

The statute (section 9, Act No. 206, Pub. Acts 1898) exempts from taxation “so much of the debts due or to become due as shall equal the amount of bona fide and unconditional debts by the person owing.” The contention by the counsel for the relators is that this statute is to be construed as meaning that so much of the debts due the taxpayer as shall equal the bona fide and unconditional debts owing by the taxpayer is exempt; and itfis contended that the engagement to pay rent on this lease is a bona fide and unconditional debt owing by the estate, within the meaning of the statute. We think it is not such an unconditional debt as is contemplated by this statute. It is rather a charge upon an estate, which is supposed to equal the value of the estate to be enjoyed. It is no more an unconditional debt than would be a contract to pay for wheat, or any other commodity, to be delivered at a future time, at a stated price. In either case there is an obligation to pay, conditional upon the enjoyment of the estate or the receipt of the commodity; and, though the engagement may be absolute, we think it is not a debt, within the meaning of the statute, the aim of which is to offset against credits the unqualified obligations owing by the person taxed, which decrease his taxable property in fact.

The order of the circuit court is affirmed.

The other Justices concurred.


author: Moose, J.

text:
    CLEMENT, BANE & CO. v. MICHIGAN CLOTHING CO.
    1. Sale — What Constitutes.
    In compliance with defendant’s request, plaintiff gave defendant an option for 60 days to purchase a certain judgment at 35 cents on the dollar, defendant agreeing that plaintiff’s claim “should have preference” next to that already held by defendant against the judgment debtor. Afterwards defendant wrote plaintiff to execute an instrument that would allow defendant to enforce the judgment in its own name, adding that, “of course, this will be on the understanding that, if'we use the same, we shall pay you for the claim.” Plaintiff sent an assignment of the judgment, stating that it was to be held in trust until defendant should decide whether it would buy “according to previous correspondence.” Defendant subsequently brought suit against the judgment debtor, obtained judgment in which both claims were.included, and received considerable property thereon. Held, that the transaction amounted to an absolute sale of the judgment.
    2. Corporations — Unauthorized Act op Agent — Ratification.
    A corporation ratifies the unauthorized contract of one of its officers by accepting and retaining the proceeds of the contract.
    3. Same — Contracts—Ultra Vires.
    A corporation, having received the benefits of a contract not unlawful in itself, cannot be heard to say that it was not within its power to enter into the same.
    Error to Ionia; Davis, J.
    Submitted June 5, 1896.
    Decided July 28, 1896.

      Assumpsit by Clement, Bane & Company, a corporation, against the Michigan Clothing Company, for the purchase price of a judgment assigned to the defendant. From a judgment for defendant, plaintiff brings error.
    Reversed.

      William O. Webster (Henry J. Horrigan, of counsel), for appellant.

      Vernon H. Smith, for appellee.
   Moose, J.

The case was tried before the court without a jury. In brief, the facts are: The plaintiff is a corporation under the laws of Illinois, and defendant is a corporation under the laws of Michigan. The plaintiff recovered a judgment against Thomas Bates in the Muskegon circuit court, on or about May 12, 1893, for $2,528.17, and costs were taxed at $20. The purpose of defendant’s organization as a corporation is the manufacture and sale of clothing. The business of defendant corporation is under the control of a board of directors consisting of nine persons. Thad B. Preston was and is the secretary, treasurer, and general manager of the defendant corporation. On May 16, 1893, Thomas Bates was indebted to defendant in the sum of $432. Thad B. Preston, May 16, 1893, began a correspondence with plaintiff' about the purchase of its judgment against Bates, the letter reading:

- “Gentlemen: Referring to claim v. Thomas Bates, Muskegon, Mich., we had given up getting anything out of this matter, until, some little time since, from a ‘pointer’ we received, we put detectives at work, and, from reports received, today, think we have a small amount of property where we are justified in proceeding against it. Our claim is $432. Our expenses will be as yet uncertain; but we think we can get you out 35 per cent, on your claim if the amount is about $2,600. We will not agree to do this, but will take an option on it at that figure for 60 days (though we will probably know definitely in 15 days), on the understanding that yours shall have preference next to ours. We have made this offer to no one else, and will not until we hear from you, and ask you to treat this in strict confidence. Please wire; ‘Yes,’ or ‘No.’
£ (Y ours
“Thad B. Preston.”

He received the following reply:

Michigan Clothing Co.,
“Ionia, Mich.
“Yes.
“Clement, Bane & Co.”
Plaintiff, on the same day, sent this letter:
“Michigan Clothing Co.,'
“Ionia, Mich.,
“Thad B. Preston, Secretary.
“Dear Sir: We have your favor of 16th inst., requesting the option for 60 days on our claim against Thomas Bates at 35 cents on the dollar. We have wired you as instructed, ‘yes.’ We will give you the option as above stated, and, although it will prove quite a loss to us, we hope you will make some money out of it. The claim is now in judgment, dated May 12th, $2,528.17, drawing interest at 6 per cent. You say you will probably know within 15 days, and, as soon as you do, we will be pleased to hear from you.
“ Yours very truly,
“Clement, Bane & Co.”

The following was sent:

Gentlemen: Referring to the matter v. Thomas Bates, you do not state to us in what court you have obtained judgment against Mr. Bates. We wish that you would have your attorneys execute to us such an instrument as will allow us to proceed on your claim in our own name, in case we find it necessary. Of course, this will be on the understanding that, if we use the same, we shall pay you for the claim. We make this request that we may have all of our papers in proper shape, in case we desire to proceed in the matter.
“Yours truly,
“Thad B. Preston.”

The reply was as follows:

“ Michigan Clothing Co.,
“Ionia, Mich.
Gentlemen: Replying to your favor of the 20th inst. Our judgment against Thomas Bates is recorded May 12th, in the circuit court of Muskegon county. We suppose the proper 'way to transfer this to you, in case you decide to buy it, will be to make an assignment of the judgment to you. We will instruct our attorneys to prepare this.
“ Yours very truly,
“Clement, Bane & Co.”

They were instructed to have assignment made at once. This reply was sent:

“Michigan Clothing Co.,
“Ionia, Mich.
Gentlemen: Replying to your favor of the 24th inst. We hand you herewith an assignment of our judgment v. Thomas Bates, as requested. This is to be held by you in trust until you decide whether you will buy it of us at 35 cents on the dollar, according-to our previous correspondence. Please acknowledge receipt.
“ Yours very truly,
“Clement, Bane & Co.”

This reply was sent:

Gentlemen: Yours of 25th inst. We are in receipt of assignment of judgment v. Thomas Bates, that you sent us, and accept same on conditions that you specify. We think now there is but little doubt but what we shall use same, and will advise you promptly regarding it.
“Yours truly,
“ Thad B. Preston.”

The following was sent:

Gents: Our attorneys have drawn within assignment of judgment, which please execute in lieu of one sent us, and return.
“Yours truly,
“T. B. Preston.

All the letters sent by Preston were on the letter heads of defendant, and Preston testified that he always signed defendant’s business correspondence, “ThadB. Preston.”

May 31, 1893, plaintiff made a formal assignment of the claim to defendant, and inclosed it in a letter of the same date, reading:

“Michigan Clothing Co.,
“Ionia, Mich.
Gentlemen: Replying to your favor of 30th inst. We have executed and inclose herewith the assignment of our judgment against Thomas Bates as prepared by your attorney. This is sent you on the same conditions as the previous assignment, and is to take the place of that. You will please return the other one.
“ Yours very truly,
“Clement, Bane & Co.”

Afterwards Preston caused a suit to be begun against Bates, by attachment, in the Muskegon circuit, in the name of defendant, he swearing he was its agent, and authorized to make the affidavit in its behalf, and recovered judgment, against Bates, including in the same the claim of the Michigan Clothing Company of $432, and the judgment recovered by plaintiff against Bates, and assigned to defendant. The defendant corporation never authorized Preston to purchase the judgment, never ratified its purchase, never authorized or ratified its assignment, never authorized any suit to be brought in its name on the same, and never ratified Preston’s acts in that regard by any formal resolution. The matter was never before the board of directors. After the assignment of the judgment to defendant, and recovering of judgment by it, Preston caused execution to be issued, and certain lands were levied on in Kent county, and certain merchandise obtained in Ohio. The merchandise was sold for about $1,700, and, from the proceeds, the debt due the Michigan Clothing Company, of $432, was paid, and the-costs and expenses of litigation, amounting to about $1,200; and there was left in the hands of Preston about $25, from which taxes on land held in trust for parties to this suit were due, to the amount of $19. After recovering the judgment against Bates, certain lands were deeded by Bates to McKnight, in trust for defendant, and a judgment was assigned to McKnight in trust; the land being worth about $1,800, but the judgment of no value. McKnight had charge of the litigation for defendant as its attorney.

January 6, 1894, Preston wrote to plaintiff, inclosing copy of deed to McKnight, explaining the situation and the condition of property held by McKnight in trust. Oh the 8th of January, 1894, plaintiff replied as follows:

“Gentlemen: We have your favor of the 6th inst., regarding the Thomas Bates matter, and we return the papers herewith. At the time we received your offer, we inferred you would make the settlement with us in 60 days, as that was the time you asked for option on our claim. However, as you say, we would have doubtless been left ■out entirely but for the effort you have made. We are willing to accept the situation as it is, and trust you will soon realize on the property and judgment' which you hold.
“Yours very truly,
“Clement, Bane & Co.”

Other correspondence followed, but we have given .all that is necessary to understand the questions involved.

On the trial, counsel for plaintiff, upon the request •of counsel for defendant, stated that he claimed the right to recover on the second count in his declaration. It was the claim of the plaintiff that it sold its claim against Bates for 35 cents on the dollar, to the defendant, and that it was entitled to its pay after 60 days; that it was dealing, with the defendant company, and not with Preston; that it was competent for the defendant company to purchase the claim of plaintiff, and join it with the claim of defendant against Bates, so as to lessen the expense of litigation; that Preston had the authority, as general manager, secretary and treasurer of defendant company, to do this, whether authorized by formal action of the directors or not. The plaintiff also claims that, whether Preston had authority in the first instance to make this purchase or not, the defendant having allowed the claim to be sued, with its claim and in its name, and having received, on a judgment so obtained, merchandise to the amount of $1,700, at least $450 of ■which it applied on its debt, and $1,200 for costs and expenses of litigation, and having received a large quantity of real estate from Bates to satisfy said judgment, the deed to which now stands in the name of McKnight, its attorney, as trustee for defendant, to be applied towards the payment of said judgment, by these acts it has ratified the purchase by Preston in its name, and is estopped from questioning his authority.

It is the claim of the defendant that — •

“The purchase of this judgment was outside the business of the defendant corporation, and the corporation has no power to purchase it; hence a contract of purchase by it would be void.
“Even if the corporation could make such contract, it was outside the business of the corporation, and Preston could not make it without express authority. No authority is shown. Hence Preston could not make it. It was not a corporate contract when made, and no ratification is shown.
“Preston’s act, never being authorized by the defendant, did not bind it, and by his own acts he could not ratify what he had done without authority, and no other acts save his own are shown.
“Even if this was a corporate contract, plaintiff cannot recover, as it has not shown such facts as entitle it to judgment under the count it seeks to recover under and the contract it attempts to prove. Under plaintiff’s own theory, the findings, and the evidence, it would be necessary for plaintiff to show something in defendant’s hands after the payment of defendant’s claim, before it would have any right to a judgment. This it has not shown.
“Nothing but a trust is shown. There is no legal liability.”

The learned judge accepted the view of the defendant, and rendered a judgment in its favor.

The first question to be discussed is, what did the correspondence establish ? The letter first written, and the telegram sent in reply, gave the defendant an option to purchase the claim at 35 per cent. The letter of May 20th, asking plaintiff to have its attorneys execute an instrument that would allow defendant to proceed with the claim in its name, with the statement, “Of course, this will be on the understanding that, if we use the same, we shall pay you for the claim,” followed by the other correspondence, the making of the assignment, and the use of the claim by the defendant, constitute, in our judgment, a purchase of the claim at 35 cents on the dollar.

We do not need to determine whether, growing out of the fact that he was general manager, Preston would have authority to^make this contract or not. Under fhe facts shown by the record, the defendant must be deemed to have ratified the contract of Preston. It has inured to its benefit. It has received a large amount of property by reason of the contract. It cannot keep the proceeds of the contract, and at the same time repudiate it. See Jones v. School District No. 3, ante, 363, and cases cited therein; Nichols, Shepard & Co. v. Shaffer, 63 Mich. 599; Busch v. Wilcox, 82 Mich. 315 (21 Am. St. Rep. 563). As to the claim that the contract is ultra vires, and for that reason cannot be enforced, see Bissell v. Railroad Co., 22 N. Y. 258; Whitney Arms Co. v. Barlow, 63 N. Y. 62 (20 Am. Rep. 504).

The judgment is reversed, and judgment entered here, on the findings, for plaintiff.

The other Justices concurred,


author: Long, C. J.

text:
    DUMMER v. SMEDLEY.

    1. Fraudulent Conveyances — Mortgage to Secure Future Advances.
    That the whole amount secured by a mortgage was not advanced at the time of its execution does not render it fraudulent as to creditors of the mortgagor, in the absence of an intent to hinder, delay, or defraud creditors, although it does not state on its face that it is given to secure future advances.
    2. Corporations — Increase op Capital Stock — Bonus to Mortgagee-Rights op Creditors.
    The right of a corporation to increase its capital stock, and to transfer a portion thereof as a bonus to a mortgagee to induce the making of the loan, cannot be questioned by creditors of the corporation whose claims antedated the giving of the mortgage.

    3. Same — Equitable Set-opp.
    Creditors of a corporation whose debts accrued after an increase in its capital stock, and after the giving of a mortgage and the transfer of a portion of the increased stock to the mortgagee as a bonus, have no right to an equitable set-off against the mortgage for the amounts due upon their demands, where the mortgagee acted in good faith, and there is no evidence that the mortgage and the stock were worth more than the amount advanced.
    4. Mortgages — Priorities—Payment op Prior Liens.
    A second mortgagee is entitled to a lien for money advanced to pay delinquent interest upon the prior mortgage in order to prevent foreclosure, superior to that of creditors under levies subsequent to the mortgage but prior to the payment.
    5. Same — Receivers.
    A receiver of a corporation is entitled to a lien for taxes paid on the corporate realty, and interest paid upon a mortgage thereon, superior to that of a second mortgagee or of execution creditors of the mortgagor.
    6. Same — Rights of Intervening Creditors.
    Execution creditors of a mortgagor are entitled to priority over the mortgagee as to moneys advanced by the latter subsequent to their levies.
    7. Vendor’s Lien — Waiver.
    A seller of chattels to be annexed to realty, by taking the written guaranty of a third party for the payment of the purchase price, waives his right to a vendor’s lien.
    Appeal from Kent; Grove, J.
    Submitted June 4, 1896.
    Decided July 28, 1896.
    Bill by William F. Dummer against Charles O. Smedley, receiver of the Gypsum Plaster & Stucco Company, and others, to foreclose a mortgage. From the decree entered, complainant, defendant Smedley, as receiver, and defendants Nancy M. Hinsdill and William L. Tyler, appeal.
    Modified and affirmed.

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

      Benn M. Corwin (Taggart, Knappen & Denison, of counsel), for defendant Smedley.

      Charles O. Smedley (Taggart, Knappen & Denison, of counsel), for defendant Hinsdill.

      Maher & Salsbury, for defendant Tyler.

      Charles B. Blair, for defendant Lidgerwood Manufacturing Company. - '

       Rehearing (application of defendants Hinsdill and Lidgerwood Manufacturing Company) denied November 17, 1896.

       With this case as reported in 38 L. R. A. 490, is a note collating the authorities on bonus stock of corporations.

   Long, C. J.

This is an action to foreclose a mortgage made by the Gypsum Plaster & Stucco Company to the complainant on October 4, 1892, on 120 acres of land in the township of Wyoming, Kent county, with the gypsum mines and mills thereon, to secure payment of $25,-000, with interest. The mortgage was recorded October 5, 1892. A chattel mortgage covering the personal property about the mills was given as additional security.

It appears that, prior to 1891, the Union Mills Plaster Company, a corporation, had been engaged in business near Grand Rapids in the quarrying of plaster rock, and in the manufacture and sale of land and calcined plaster. The lands and quarries, with the mills, were sold by the company to Andrew L. Hubbell, and by him, December 23, 1891, conveyed to the Gypsum Plaster & Stucco Company, a corporation organized under the laws of Illinois, for the stated consideration of $165,500, and the company’s notes were given for this amount. The stockholders of the new company were James B. Hubbell, Mr. Russell, and Mr'. Carland. The two latter held one share each, and the.balance of the stock was held by Mr. James B. Hubbell. The capital stock was $100,000. A note for this amount was given to Andrew L. Hubbell by the company as a part of the purchase price of the property, and was by him transferred to James B. Hub-bell, and by the latter surrendered and canceled, and in this manner the capital stock was treated as fully paid. The Gypsum Plaster & Stucco Company also assumed certain of the debts of the Union Mills Plaster Company, among them being many debts still existing and involved in the present litigation, and also a mortgage to the Union Mutual Life Insurance Company, which amounted at the date of the transfer, for principal and interest, to $28,600. Thereafter the company carried on the business, and became more and more involved in financial difficulties. A foreclosure decree was taken upon the insurance company mortgage, and the day of sale was fixed for October 6, 1892. From time to time during that summer, levies of attachments and executions had been made upon the property, subject to the mortgage, when, about the 1st of October, these levies amounted in all to $14,000.

Mr. Frank L. Noble had been the active business manager of the corporation, and a portion of Mr. Hubbell’s stock had been transferred to him. Mr. Hubbell, Mr. Noble, and Mr. Russell were then the directors and stockholders. It was found necessary to raise money, not only to satisfy the insurance company’s decree, but to compromise or adjust the attachment and execution levies, and provide a working capital for the company. Negotiations had been for some time carried on between the corporation and Mr. E. F. Uhl, of Grand Rapids; and before October 1st this had resulted in an agreement that Uhl would take from the corporation a mortgage of $35,000, and would loan it the sum of $30,000, the remainder being for his services in procuring the loan. Mr. Herbert R. Gill, of Ohio, was extensively interested in the plaster business, as a purchaser of such material. He examined the property, and considered the lands and quarries worth $100,000, and the improvements $18,000. In the expectation that he would ultimately be interested in the business, he had associated himself with Mr. Hubbell and Mr. Noble in active efforts to procure further capital. Together they had interested Mr. Dummer, the complainant here, who was the vice president of the Northwestern National Bank of Chicago. Together they had determined that $25,000 in addition to that realized on the Uhl mortgage would be necessary to carry on the business successfully. The mortgage in controversy was given to Mr. Dummer, but the moneys were not all paid in at that time, being paid from time to time, as will be stated hereafter. The Uhl mortgage was given on October 5th, the decree of the insurance company satisfied, and on the same day the mortgage in controversy was recorded. The moneys advanced by Mr. Dummer were paid over to Mr. Russell, who, with Mr. Noble and Mr. Gill, came to Grand Rapids, and entered upon the task of adjusting the liens upon the property.

It is claifned by the defendants that these gentlemen represented to the attachment and execution creditors that 'they had only a small amount of money available, and could not pay in full; and that these creditors, supposing that the moneys came from the Uhl mortgage over and above the amount necessary to pay the insurance company decree, compromised their claims at about 50 cents on the dollar, taking renewal notes for the residue, upon the representations of these parties that the company would be able to go on and do a successful business and pay its debts; and that they thereupon discharged their levies. It is also claimed that at this time the creditors knew nothing of the existence of the Dummer mortgage, and did not discover it had been given until 33 days thereafter. Afterwards they began suits as the renewal notes matured, and the same attachment and execution liens were placed upon the property, together with many additional ones. The dates of the attachment and execution levies will hereafter be shown. In the meantime, Mr. John W. Dickinson, of Chicago, had become interested with Dummer and Gill, and the $25,000 represented by the Dummer mortgage was paid by the three, as follows: October 4, 1892, by Dummer, $8,500; October 17, 1892, by Dummer, $1,500; September 21, 1892, by Gill, $600; October 24, 1892, by Gill, $400; November 4, 1892, by Gill, $2,100; November 7, 1892, by Gill, $1,500; November 29, 1892, by Gill, $2,000; December 7, 1892, by Gill, $400; January 10, 1893, by Gill, $2,000; January 13, 1893, by Gill, $1,000; January 23, 1893, by Dickinson, $2,000; February 6, 1893, by Dickinson, $500; February 11, 1893, by Dickinson, $500; February 24, 1893, by Dickinson, $500; March 10, 1893, by Dickinson, $500; March 25,1893, by Dickinson, $1,000.

At the time of the execution of the mortgage iir controversy, a series of notes was executed, due in from 30 days to 18 months, and were all payable to Mr. Dummer. After the moneys were all paid in, the corporation took up these notes, and issued a new series of notes, dated back as of the date of the mortgage, and running from 1 to 5 years, viz.: Five notes, of $2,000 each, to Mr. Dummer; five notes, of $2,000 each, to Mr. Gill; five notes, of $1,000 each, to Mr. Dickinson. The complainant claims that these notes were given in place of the old ones, and were secured by the $25,000 mortgage. It is claimed by the defendants that in June, 1893, Dummer, Gill, and Dickinson agreed to surrender $10,000 of their holdings under this mortgage, or two-fifths of the holdings of each, in order that the company might raise money elsewhere, and agreed to accept for their security a third mortgage for $10,000, running to John W. Dickinson, and which mortgage was executed; that, to accomplish this, the second series of notes was surrendered by Dummer, Gill, and Dickinson, and new notes taken, thus leaving their interest in the mortgage only' $15,000, the remaining $10,000 being released for the benefit of the company, and being represented by five notes of $2,000 each. The complainant claims that, while these notes and the mortgage to Dickinson were executed, the arrangement was never completed, and that the mortgage in controversy stood as security for the payment of the second series of notes.

It appears that in November, 1892, the capital stock of the corporation had been increased from $100,000 to $500,000. Of this increase, $100,000 was made preferred stock, and was to be used for the purpose of paying creditors as far as they could be induced to accept the same. Of the remaining $300,000 of stock, it had been agreed that Dummer and Gill should have $2.50 for each $1 of money paid in by them, thus giving Dummer and Gill each $25,000 of the stock; and, when Dickinson entered into the arrangement, he was given a similar issue of stock, amounting to $12,500.

In 1893, litigation was commenced by some of the execution creditors to set aside the Dummer mortgage, as fraudulent as against them. Mr. Dummer appeared and answered. This litigation is still pending, and, by consent of the parties, has been transferred to the present suit. The business of the corporation was continued until January 1, 1894, when the company entered into a pool with other manufacturing companies. The mill was thereafter operated only at intervals, to produce its quota of material, and but little money was realized by the corporation.

On July 6, 1894, this bill was filed. Defendants Hinsdill and Tyler answered. The bill was taken as confessed against the Gypsum Plaster & Stucco Company. In December, 1894, Mr. Smedley was appointed receiver, and was thereupon granted leave to intervene and answer. He filed an answer, setting up that the mortgage was invalid, and averring that the general creditors of the Gypsum Plaster & Stucco Company had rights in the properties prior to the Dummer mortgage. After some proofs were taken, the Lidgerwood Manufacturing Company, a New York corporation, also obtained leave to intervene as a defendant, and, by way of a basis for affirmative relief, alleged that in March, 1893, it sold to the Gypsum Plaster & Stucco Company a cable apparatus for hoisting rock out of the quarry, for the price of $4,000, of which $3,500 remained unpaid; that this property had become an -essential part of the plant, and was procured by the company by fraud; and that, though the intervener was entitled to retake the property, it had so become a part of the plant that equity and the interests of all the parties required it should remain there, and the intervener should have a lien for the amount unpaid. The answers of the defendants Hinsdill, Smedley, and Tyler also set up facts as a basis of affix’mative relief, in the nature of a cross-bill, and they ask that the complainant’s mortgage be vacated.

It appeared upon the hearing that the complainant had advanced $1,050 for the payment of delinquent interest upon the Uhl mortgage, in order to prevent foreclosure; that the receiver had paid taxes upon the company property, and also delinquent interest upon the Uhl mortgage, to the amount of $1,365. The proofs were taken in open court and by deposition, and on September 20, 1895, a decree of foreclosure was entered, and awarded priority to the several parties as follows:

1. To the complainant, $1,050 and interest, for moneys advanced to pay delinquent interest on the Uhl mortgage.
2. To Receiver Smedley, $1,365 and interest, being the amount paid by him for taxes, and delinquent interest on the Uhl mortgage.
3. To the Lidgerwood Manufacturing Company, $4,080, being the entire amount of its unpaid debt and interest.
4. To complainant, Dummer, the sum of $10,000 and interest, for advances made by him under the mortgage.
5. To H. R. Gill, $4,100 and interest, for moneys advanced by him under the mortgage prior to November 7, 1892, that being the date when defendant Hinsdill levied the first attachment after the giving of the Dummer mortgage.
6. To defendant Hinsdill, $4,408, with interest, being the amount of her debt under the levy of November 7, 1892.
7. To H. R. Gill, $4,561, for moneys advanced by him on the Dummer mortgage after the Hinsdill levy, and before the next levy.
8. To E. D. Preston and D. H. Armstrong, $4,000 and interest, they beihg the next levying creditors, and that being the full amount of their claim.
9. To H. R. Gill, $1,161, being for moneys advanced on the Dummer mortgage after the foregoing named levies, and before the next levy.
10. To E. D. Preston, $177, he being the next levying creditor.
-11. To H. R. Gill and John W. Dickinson, $4,600, being the remainder to Gill for his advances, and to Dickinson for advances made by him before the next levy.
12. To C. O. Smedley, $365, he being the next levying creditor.
13. To John W. Dickinson, $2,300, being the remainder of his advances upon the mortgage.

From this decree, defendant Smedley, as receiver, and the defendants Hinsdill and Tyler, appeal. The other defendants do not appeal. The complainant also appeals from the decree.

The receiver contends that the. mortgage is fraudulent and void as against the general creditors, and that the lien under it should be postponed to the payment of their claims. This claim is based upon two grounds: (1) That the mortgage was given for a greater amount than was paid at its execution, and, if any future advances were to be made, such fact was not set forth in the mortgage; (2) that the beneficiaries under the mortgage were stockholders in the corporation, they having received a large number of shares of the bonus stock.

It appears from the record that the corporation had ample power to borrow money, and give security on the corporate property therefor. The statute of Illinois, under which this corporation was organized, gives it this power. From a careful reading of the record, it appears to us that no other conclusion can be reached than that, before the time the mortgage was given, an arrangement was made by the corporate authorities to make a loan of that amount. They regarded the condition of the company as serious, and that by the placing of the Uhl mortgage, and thus discharging the insurance company decree, the company would not be in a condition to go on with the business without further means. Mr. Gill had been working to make the loan. Dummer was seen, and was offered some of the bonus stock if he would take part of the mortgage. While the arrangement was not fully completed, Mr. Dummer says that Gill agreed to put in $10,000 if the company would arrange for the other $5,000, as he (Dummer) was to put in $10,000. Matters were in this condition when the mortgage was executed. Dickinson thereafter consented to put in the other $5,000. From all that took place during the few days prior to the execution of the mortgage, and the conduct of the parties afterwards, it is apparent that it was the intent of all the parties that the full sum of $25,000 should be paid in. As soon as Gill could raise his money he was to pay it over. Dummer put in $8,500 at first, and within a few days thereafter paid over the balance of $1,500, completing his share. Gill and Dickinson subsequently paid the full amount they were to take. There is no showing upon the record that there was any bad faith in the giving of the mortgage, and the consideration was fully paid. The mortgage was therefore a valid lien upon the property, at least as between the corporation and the mortgagees.

The fact that the mortgage did not state that it was given t o secure future advances would not render it void as to creditors. Brace v. Berdan, 104 Mich. 356. A mortgage is not fraudulent for including contemplated advances. Newkirk v. Newkirk, 56 Mich. 525. Counsel for the receiver cite Showman v. Lee, 86 Mich. 560, in support of their contention; but all that was held in that case was that, if the mortgage was taken for a greater amount than was actually paid, the parties must act in good faith; that parties who fake security from insolvents, or from parties who are indebted to others, must act in good faith, and so as” not unnecessarily to hinder, delay, or deceive other creditors; that the taking of a mortgage for an amount in excess of the debt or the assumed liability is a badge of fraud, and it is a fraud in law if the purpose is to protect the debtor’s interest from other creditors. This is but the statement of a familiar principle of law. In the present case, however, no such showing is made. The parties were acting in good faith, and the whole of the consideration thereafter paid. The mere fact that the mortgage was given for a greater amount would not necessarily make the mortgage fraudulent. There must be some fact or circumstance showing an intent to hinder, delay, or defraud creditors, and this is necessarily a question of fact. This record, as we have said, discloses no such fact.

The contention that the beneficiaries under the mortgage stood as stockholders, and not as mortgagee creditors, has no force. It is claimed by counsel for the receiver that the record' discloses that these beneficiaries intended to become interested as stockholders, and that the mortgage was a plan adopted to save them against the risk of loss on their investment, while they obtained all possible chances of gain. Counsel treat the question as though the stock given to the mortgagees were part of the original capital 'stock. This is not the fact. The original capital stock was $100,000, and was treated as fully paid. The corporation received all the properties for that amount and the payment of some old debts, and in this suit the original stock must be treated as fully paid up. In November, 1892, the stock was increased from $100,000 to $500,000. The mortgagees took the mortgage with the understanding that this should be done, and they be assigned certain shares of this common stock, the first $100,000 being held as preferred stock. At that time the company was greatly embarrassed, and, as is claimed, found it difficult to raise money on a second mortgage. The mortgage had been given to Uhl for $35,000. There were certain attachment and execution levies against the property to be taken care of, and the proposition was made to Dummer and Gill that a portion of this “bonus stock,” as it is called, should be given to them if they would advance this $25,000 on the mortgage.

In Handley v. Stutz, 139 U. S. 417, this subject was fully discussed. The bill was filed by Stutz and others, creditors of the Clifton Coal Company, to compel an assessment upon certain shares of stock for the satisfaction of the debts of the company. The company was organized-in 1883, and the capital stock of $120,000 all subscribed and paid for. In May, 1886, the stock was increased to $200,000. The increased stock was issued to Handley and the other defendant under the following circumstances: After unsuccessful attempts to sell $50,000 of its bonds secured by mortgage, the company offered $1,000 stock as a bonus with each $1,000 bond. The defendants bought the bonds and took the bonus stock. The debts of the complainants were created before the increase of the stock. Speaking of this bonus stock, the court said:

“The case, then, resolves itself into the question whether an active corporation, or, as it is called in some cases, ‘a going concern,’ finding its original capital impaired by loss or misfortune, may not, for the purpose of recuperating itself and providing new conditions for the successful prosecution of its business, issue new stock, put it upon the market, and sell it for the best price that can be obtained. * * * To say that a corporation may not, under the circumstances above indicated, put its stock upon the market, and sell it to the highest bidder, is practically to declare that a corporation can never increase its capital by .sale of shares if the original stock has fallen below par. * * * It frequently happens that corporations find it necessary to increase their capital in order to raise money to prosecute their business successfully, and one of the most frequent methods resorted to is that of issuing new shares of stock, and putting them upon the market for the best price that can be obtained. * * * It would seem to follow that, if the stock had been of some value, that value, however much less than par, would have been the limit of the stockholders’ liability.”

Speaking further in the case as to the rights of creditors, and what particular creditors would be affected by the increase of the capital stock, it was said:

“We have no doubt that the learned circuit judge held correctly that it was only subsequent creditors who were entitled to enforce their claims against these stockholders, since it is only they who could by any legal presumption have trusted the company upon the faith of the increased stock.”

In Richardson’s Ex’r v. Green, 133 U. S. 30, it appeared that Richardson had advanced moneys on bonds, and taken stock as bonuses. On a suit to foreclose the mortgage, the moneys actually advanced by him were allowed, without any reduction on account of the bonus stock, though there were general creditors subsequent to the mortgage securing his bonds.

It is therefore apparent from these cases; which we think embody the settled law on the subject, that the defendants Hinsdill and Tyler are not in position to question the right of the corporation to increase its capital stock, and to sell or pledge such bonus stock to raise money for the legitimate purposes of the corporation. Their debts antedated the giving of the mortgage.

As to creditors whose debts have since arisen, the receiver contends that, in equity, they have the right to an equitable set-off against the mortgage for the amounts due upon their demands. In the first place, it may be said that that question was not raised by the answer of the receiver, and for that reason cannot now be considered; and, second, we know of no rule of equity that would allow such set-off against the mortgage under the circumstances here stated. The mortgagees were acting in good faith; had paid in full for the mortgage,'upon the understanding’ that this bonus stock should be assigned to them. The company had a right to issue the stock, and sell it for the best obtainable price. It realized $25,000 cash for the mortgage and stock. There is no showing here that the mortgage and stock were worth a dollar more than the $25,000.

We think the complainant was entitled to his decree of foreclosure for the full amount of the mortgage, and that he had such right under the second series of notes, as the third was never used, and the first was delivered up and cancelled. We are also of the opinion that the court was not in error in giving the complainant the prior lien for interest paid on the Uhl mortgage. It was necessary to protect his own mortgage lien. Neither do we think the court was in error in providing, second, that the receiver should have a lien for the moneys paid by him for interest on the Uhl mortgage and the taxes on the property. It would be inequitable to hold that the receiver, having protected the property from sale for the taxes assessed and interest on the Uhl mortgage, and preserved the .security for the mortgagees, should not now be protected.

We now come to the discussion of the priorities fixed hy the court in other portions of the decree. The Lidgerwood claim is made a lien prior to the complainant’s, except as to the moneys advanced as interest upon the Uhl mortgage. We think this claim cannot be sustained by the Lidgerwood Company. A court of equity will not create a lien upon real estate in favor of a party unless, from the nature of the transaction, rights have spi’ung up which ought to be held binding upon the specific property. Kelly v. Kelly, 54 Mich. 30. In the present case there is nothing in the record showing that the company ever intended to claim a lien upon the corporate property of the Gypsum Plaster & Stucco Company. On the other hand, the Lidgerwood Company was informed by Gill, before the machinery was sold, that the Gypsum Company was in a bad condition financially. The order was made by the Gypsum Company for the machinery on January 17, 1893. The matter ran along until February 2d, when Mr. Gill gave his personal guaranty for the payment of the machinery. During the summer of that year, the Lidgerwood Company was pressing Gill for payment upon his guaranty. Gill thereupon took a bill of sale of the engine and cable to himself. "We are satisfied from the evidence that no false representations were made by the officers of the corporation to the Lidgerwood Company, or by Gill, of the financial condition of the corporation. The Lidgerwood Company was advised by Gill, in advance of the sale, that “ Bradstreet and Dun give very unfavorable reports of the concern, and well they might.” Acting upon this report, the company sold upon the written guaranty of Gill. The rule is well settled that a vendor’s lien is waived by taking the obligation of a third party. 2 Washb. Beal Prop. 94-96 (*507). This rule has been fully sustained by this court. Sears v. Smith, 2 Mich. 243; Wisconsin, etc., Bank v. Filer, 83 Mich. 496. The Lidgerwood claim cannot therefore be sustained, but that company must be held to have waived it, and, having waived it, the lien is lost. Au Sable River Boom Co. v. Sanborn, 36 Mich. 358.

We think the court was not in error in fixing the priorities between the other claimants. By the decree, the court gave the execution and attaching creditors priorities over the moneys which were paid under the mortgage subsequent to the levies.

The decree of the court below will be modified in respect to the Lidgerwood claim, and affirmed as to the other portions. The complainant will recover his costs against the Lidgerwood Manufacturing Company. No other costs will be allowed.

The other Justices concurred.


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    DODGE v. TULLOCK.
    1. Principal and Agent — Authority.
    A finding that a local real-estate agent, who negotiated for the sale of land, was an agent of the nonresident owner, is justified by proof that he was paid by the owner, and that the land contract was sent to him for delivery to the purchaser.

      2. Same — Ratification—False Representations.
    A vendor who adopts the contract of his agent must take it burdened with the responsibility for the fraudulent representations of the latter in respect to the premises sold.
    3. Contracts — Rescission—Executors and Administrators.
    ■ The rescission by the purchaser, because of false representations, of a contract for the sale of land, cannot be defeated on the ground that he failed to act with promptness, where the contract itself was void because executed by only one of several executors upon whom the power of sale was conferred, and the purchaser repudiated the contract before its adoption by the other executors.
    Error to Charlevoix; Corbett, J.
    Submitted April 23, 1896.
    Decided July 31, 1896.

      Assumpsit by Melissa P. Dodge and others, executors of the will of William E. Dodge, deceased, against Robert W. Tullock, upon a promissory note. From a judgment for defendant, plaintiffs bring error.
    Affirmed.

      Dart & Dart (B. T. Halstead, of counsel), for appellants.

      Fred W. Mayne, for appellee.
   Montgomery, J.

This is an action upon a promissory note given upon the intended purchase of 80 acres of land in the county of Charlevoix. The estate of William E. Dodge owned three 40’s of land in section 18, in town 34-7, and a contract agreeing to sell two of the 40’s was given to defendant, signed by one of the executors. The consideration price agreed upon was $1,000, upon which $500 was paid down, and the balance secured by two •notes of $250 each. The defendant entered upon one 40 of the land, and took off some of the timber, after which he discovered, as he claims, that the land which was described in the contract was not the land which he had agreed with the agent of the estate to purchase. He thereupon offered to take a deed for one 40, and refused payment upon the note. On the trial the defendant offered testimony showing this state of facts as a defense to a recovery on the note, claiming that a fraud was practiced upon him. The court instructed the jury, in effect, that if it was shown that the agent of the plaintiffs was guilty of fraud in making the contract cover lands other than those which were described to and examined by the defendant, and if they further found that the defendant had taken steps to rescind the contract, and place the plaintiffs in the condition they were in before the contract, so far as lay in his power, promptly upon discovery of the fraud, and that the timber taken did not exceed in value the amount of money already paid upon the contract, plaintiffs could not recover. The plaintiffs bring error, and assign error upon a large number of rulings, which we think it unnecessary to discuss at length.

It is contended, among other things, that there was no evidence tending to show that the party with whom the defendant dealt was the agent of the plaintiffs. An examination of the record convinces us that there was evidence to go to the jury upon this question. There was testimony that Mr. Harsha, the agent, was. paid by the estate, and that the contract was sent to him to be delivered. From these facts the jury would be justified in assuming that he was an agent of the plaintiffs. This being so, if the estate seeks to take advantage of a contract made with the agent, they must take it burdened with responsibility for his acts. Busch v. Wilcox, 82 Mich. 340 (21 Am. St. Rep. 563).

But it is contended that the defendant did not act with sufficient promptness in repudiating the contract, and that, in any event, his remedy was in equity. We need not determine whether these contentions would be sustained if the original contract was put in form which made it enforceable against the estate. It appears, however, that in the will of William E. Dodge, deceased, the three plaintiffs were made executrix and executors of his estate. The will expressly provides that “power is conferred upon the executrix and executors to sell all or any part or parts of the real estate at public or private sale for cash or upon credit, and to make, execute, and deliver conveyances,” and that “all power, discretion, and authority conferred upon the executrix and executors is given to and conferred upon * * * a majority at any time of such executors and executrix.” The only writing between these parties prior to the commencement of this suit was signed by but a single executor. This being so, the contract was not enforceable against the estate, and if the jury found that a fraud was committed in procuring the signature of Tullock, and that before the contract was ratified by a majority of the executors the defendant repudiated the contract, we think it would not be competent for the executors to thereafter avoid the force of this fraud, and for the first time infuse life into the contract by affirming the unauthorized action of the single execntor. We think, under such circumstances, that the defense offered was admissible, -and that no error was committed to the prejudice of the plaintiffs.

The judgment will be affirmed.

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


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    STORRS v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — Defective Sidewalks — Sufficiency of Declaration — Waiver.
    A declaration in an action against a municipality for injuries sustained by reason of a defective sidewalk, averring that the defendant “then and there wrongfully and negligently suffered the walk to be and remain in bad and unsafe repair, * * * of which it then and there had notice,” is not open to the objection, after a plea of the general issue, that it does not contain a sufficient allegation of reasonable time and opportunity, after knowledge or notice of the defect, to put the walk in a proper condition, and of failure to use reasonable diligence therein.
    2. Same — Evidence—Nature and Extent of Injuries.
    Evidence as to the extent and nature of the injuries received by plaintiffs intestate upon the defective walk is admissible under an averment that he “received certain bruises, wounds, and contusions, and certain internal injuries, whereby he became immediately sick, lame, and disordered, * * * and continued'to be so sick and ill that within one week thereafter he died.”
    3. Same — Notice—Evidence—Harmless Error.
    Upon the trial, a resolution of the common council, adopted three years before the accident, instructing the marshal to repair the walk in question, was received in evidence, under the objection that it was too remote. It was shown conclusively by other evidence that the walk was subsequently out of repair, and that the city had notice thereof. The case went to the jury upon the issue whether the Walk had been repaired so soon before the accident that the city was free from negligence. Held, that the evidence objected to could not have prejudiced the defendant.
    4. Death by Wrongful Act — Damages—Evidence.
    In an action for death by wrongful act, a witness may testify as to the present worth of decedent’s services, based on his expectancy of life at the time of the accident, and on different assumptions as to his earning capacity, for the purpose of suggesting to the jury methods of computing the damages in case they should find for the plaintiff.
    Error to superior court of Grand Rapids; Burlingame, J.
    Submitted April 23, 1896.
    Decided July 31, 1896.
    Case by Ellen E. Storrs, administratrix of the estate of Carlton L. Storrs, deceased, against the city of Grand Rapids, to recover damages for the death of her intestate, alleged to have been caused by a fall upon a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Henry J. Felker, for appellant.

      Fletcher & Wcmty, for appellee.
   Moore, J.

The plaintiff sued to recover damages. Her husband, November 3, 1894, received an injury from a fall on a defective sidewalk, which resulted in his death. She recovered a verdict. The defendant appeals.

The defendant assigns a large number of errors, all of which have been considered; but it will not be necessary to discuss all of them. Many of them relate to the insufficiency of the declaration, which reads in part as follows:

“But the defendant, not regarding its duty in that behalf, while it was so possessed and had control of the said sidewalk, on, to wit, the 3d day of November, 1894, then and there wrongfully and negligently suffered the same to be and remain in bad and unsafe repair and condition, and divers of the planks wherewith the said sidewalk was laid to be and remain broken and unfastened, and the stringers or timbers upon which said planks were laid to become rotten and broken, and the said planks to become loosened therefrom, of all of which the said defendant then and there had notice; and by means whereof the said Carlton L. Storrs, who was then and there passing along and upon the said sidewalk, to wit, upon that portion thereof which is situated on the south side of said Williams street, between Ellsworth avenue and Einney street, was then and there necessarily and unavoidably, and without neglect or default on his part, tripped up by one of the said loose and broken planks, and was thereby thrown and fell to and upon said sidewalk and the ground there, and then and there received certain bruises, wounds, and contusions, and certain internal injuries, whereby he became immediately so sick, lame, and disordered as to be unable to help himself, and was so greatly injured that it then and there became necessary for him to be carried to his home; and that the said Carlton L. Storrs, as the immediate result of the said injuries, continued to be' so sick and ill that within a short time thereafter, to wit, in one week, he died; that by reason of the said injuries and illness great expense for medical attendance and care was incurred.”

There is no averment, in direct terms, that the defendant, after knowledge or notice of the defect in the walk, had a reasonable time and opportunity to put the walk in a proper condition for use, and did not use reasonable diligence therein after such knowledge or notice. It is insisted that the declaration is fatally defective for this reason, and that it was error to receive testimony under such a declaration. If the city repaired the walk within reasonable time after notice, can it be. said that it “then and there wrongfully and negligently suffered the same to be and remain in bad and unsafe repair?” We think not. We express no opinion as to whether the declaration would have been sufficient on demurrer, but, the general issue having been pleaded, we think it good.

In Fuller v. Mayor, etc., of Jackson, 82 Mich. 480, which was a suit to recover damages for injuries received on a defective walk, objection was made to the declaration as not sufficiently stating a cause of action. Justice Gbant made use of this language:

“ If any of these objections were good, they should have been raised by demurrer. All the objections are purely technical. The declaration is sufficient to sustain a general verdict. Only when no cause of action is stated in the declaration is defendant justified in pleading the general issue, and raising the objections upon the trial; otherwise the plea waives all defects. We are not disposed to treat such objections with much favor.”

See, also, Campbell v. City of Kalamazoo, 80 Mich. 655.

We think this case comes within the above cases.

The next group of errors relates to the admission of testimony as to the extent and nature of the injuries received by Mr. Storrs, and their effect upon him. It is argued this testimony was not admissible, because the declaration was not sufficiently specific. We cannot agree with counsel in this contention, and think the testimony was properly admitted. Thompson v. Village of Quincy, 83 Mich. 173.

The plaintiff was allowed to put in evidence a resolution adopted by the city council in May, 1891, instructing the marshal to put this walk in repair. This is assigned as error, because too remote from the time of the accident. There was a good deal of testimony introduced as to the condition of the walk prior to the accident. Whether the evidence was competent or not, there was an abundance of testimony to show that after May, 1891, the walk was, at times, out of repair, under such circumstances that the city must be presumed to have had notice, at those times, of its want of repair. It was the claim of the defendant that the walk, where the accident happened, had been repaired just prior to the time of the accident, and that sufficient time had not elapsed after that, and before the accident, so that the city could be said to be negligent. The city offered testimony to support this theory. If this theory had been established, it would have been a complete defense. The position of the city was controverted by the plaintiff, and the question of fact raised upon that point was fully and fairly submitted to the jury, who found against the city; so that, whether the admission of the resolution was competent or not, it cannot be said to have prejudiced the case of the defendant.

A number of errors are assigned in relation to the testimony of Mr. Potter as to the present worth of the services of Mr. Storrs, based upon his expectation of life. He made a calculation upon the basis of Mr. Storrs’ ability to earn $234 a year; also on the basis of $200 a year, and $104 per year. We do not think this testimony incompetent. Testimony had been offered on both sides as to the physical condition of Mr. Storrs, as to his age, and his earning capacity. This testimony was offered and received as suggesting methods of computing the damages in case the jury found from the testimony that the plaintiff was entitled to damages.

A great many errors are assigned in relation to the charge of the trial judge. A careful inspection of the record satisfies us that none of the assignments are well taken.

The judgment is affirmed.

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