author: Hooker, J.

text:
    PARSONS v. CITY OF GRAND RAPIDS.
    1. Municipal Corporations — City Charter — Local Assessments —Validity.
    Under the charter of Grand Rapids ah assessment for a street improvement is not void for the reason that the contract was let and executed, the bond approved, and the work completed before any opportunity was given the landowners to be heard.
    2. Same — Notice to Taxpayers.
    • In proceedings under the charter of Grand Rapids to improve streets at the cost of property benefited, the only notice required to be given to property owners is that provided after the assessments are reported, the council having the sole power to require and make the improvements, and the taxpayer being concerned only in the apportionment of the cost thereof.
    3. Same — Storm Sewer.
    The council in improving a street has authority to require storm water sewers as a part of the improvement.
    4. Same — Assessments—Separate Parcels.
    Where a widow occupied two parcels of farm land together, one of which she owned in fee and held a dower estate in the other, an assessment of both tracts in one parcel for street improvements was not erroneous.
    Appeal from the superior court of Grand Rapids; Newnham, J.
    Submitted June 22, 1905.
    (Docket No. 50.)
    Decided September 28, 1905.
    Bill by Walter S. Parsons and others, heirs at law of the estate of Abby A. Parsons, deceased, against the city of Grand Rapids to restrain the collection of a tax for street improvements. Prom a decree 'dismissing the bill, complainants appeal.
    Affirmed.

      Holmes & Holmes, for complainants.

      Taggart & Taggart, for defendant.
   Hooker, J.

The bill of complaint in this cause was filed in August, 1898. Abby A. Parsons, a widow, since deceased, was the sole complainant. Its object was to restrain the collection, by sale of the premises, of an assessment for street improvements theretofore made against her interest in certain real estate that had belonged to her deceased husband at the time of his death, her interest in which consisted of an estate in fee of a portion and a dower right of another part; both being fully described in the bill. All were farm lands and parts of one tract, which was the home of herself and husband while he lived. The bill states that she was the person to pay the taxes assessed against said property. An answer was filed. Abby A. Parsons died on March 18, 1899, and an order reviving said suit in the name of Hiram G. Luce, special administrator, was made August 2, 1899.

On January 4, 1902, upon a showing that said Luce had been discharged as special administrator, an order was made reviving the suit in the names of the present parties complainant; they being heirs at law of Abby A. Parsons. The bill was dismissed after a hearing of the merits on April 22, 1904, and an appeal has been taken by one or more of the complainants.

According to the claim of the complainants’ counsel, as shown in their brief, this improvement was unnecessary and ill-advised; the soil being sandy and not requiring a sewer. "Witnesses so testified, giving their opinion, also, that the work was poorly done. They also allege that the assessment was void by reason of noncompliance with the law under which they were ordered and made.

Kalamazoo avenue runs northwest and southeast, joining Burton avenue at the south quarter post of section 5, according to the map furnished by complainants’ counsel. The land in which Abby A. Parsons had a dower interest is the S. E. of the S. E. of section 5, and it is contiguous to Burton avenue, lying north of said avenue. Its southwest corner extends to, or within a few rods of, Kalamazoo avenue. West of this parcel is the land which she claimed to own in fee, which is all of the S. W. £ of section 5, lying east of Kalamazoo avenue, which it abuts.

On June 7, 1897, a resolution was adopted by the common council that the grading and graveling with pit gravel of Kalamazoo avenue from the south line of Fifth avenue to the north line of Burton avenue, including the construction of vertical stone curbing and necessary bridges, culverts, catch-basins, approaches, and cesspools, was a necessary public improvement. On June 14th a motion to reconsider this resolution was adopted. Thereupon, as substitutes for such resolution, two resolutions were offered and adopted. One of these related to a proposed improvement of Kalamazoo avenue from Fifth avenue to Burton; the other, from Boston avenue to Burton avenue. We find but one of these resolutions in the record. It is as follows:

“By Aid. Yerkerke:
“ ‘ Resolved, by the common council of the city of Grand Rapids, that the grading and graveling of Kalamazoo avenue, a public street in the city of Grand Rapids, from the north line of Boston avenue, a public street in said city, to the north line of Burton avenue, a public street in said city, including the construction of the necessary bridges, culverts, gutters, cross-walks, manholes, catch-basins, approaches, storm water sewers, and cesspools in portion of said Kalamazoo avenue, is a necessary public improvement. And be it further
“ ‘Resolved, that the expense of said public improvement shall, pursuant to title 5 of the charter of the said city, be defrayed by assessments payable in five equal annual installments in the manner in said title 5 provided for.’ Adopted.”

On June 26th a final estimate of $5,600 for this improvement was filed. On June 28th the clerk presented a contract, which was approved by the council, and the mayor was directed to execute it, which he did. On September 7th a resolution was adopted, directing the mayor to appoint a committee of three from the council to locate a district to be assessed for the improvement to Kalamazoo avenue between Boston and Burton avenues. Presumably this was done, for the report of such committee appears in the record, and also its adoption on September 13th. A petition to have the roadway made 28 feet wide, instead of 18, and aremonstrance against such change, were filed and referred to the aldermen of the ward. This was on September 27th. On October 25th, under a suspension of the rules, the resolution and order for the improvement of Kalamazoo avenue from Boston to Burton avenues yras reconsidered, and substitutes were adopted as follows:

‘ ‘ ‘ Whereas, it has been determined by the common council of the city of Grand Rapids, by resolution, that the grading and graveling of Kalamazoo avenue, a public street in the city of Grand Rapids, from the north line of Boston avenue, a public street in said city, to the north line of Burton avenue, a public street in said city, including the construction of the necessary bridges, culverts, gutters, cross-walks, manholes, catch-basins, approaches, storm water sewers, and cesspools in said portion of said Kalamazoo avenue, is a necessary public improvement; and,
“ ‘ Whereas, the board of public works in and for the city of Grand Rapids has estimated the expense of said improvement, including the cost of such estimates and plans and assessments incident thereto, at the sum of five thous- and six hundred (5,600) dollars; therefore,
“ ‘ Resolved by the common council of the city of Grand Rapids, that the entire of such expense be assessed upon the owners or occupants of lands and houses benefited by such improvement. And be it further
‘ ‘ ‘ Resolved, that the following portion of said city be deemed to be benefited by said public improvement to the entire extent of said estimatedexpense, and proper to be assessed to the whole expense thereof, to wit:
“ ‘All lots, parts of lots, and pieces of land included within the following boundaries: Commencing at the intersection of the easterly line of Kalamazoo' avenue and the north line of Boston avenue; thence southerly along the said easterly line to the south line of Boston avenue, thence east along said south line to a line parallel with and distant 100 feet from the said easterly line of Kalamazoo avenue; thence southeasterly along said parallel line to a line parallel with Boston avenue and distant 100 feet therefrom; thence east along said parallel line to the east limits of said city; thence south along said east limits to the north line of Burton avenue; thence west along the north line of said Burton avenue to the easterly line of the Detroit, Grand Rapids & Western Railroad right of way; thence northwesterly along said line last mentioned to the north and south quarter line of section 5, township 6 north, range 11 west; thence north along said quarter line to a point 150 féet westerly at right angles to the southwesterly line of Kalamazoo avenue; thence northwesterly, parallel with Kalamazoo avenue, to a line drawn through the place of beginning at right angles to the easterly line of Kalamazoo avenue; thence northeasterly to the place of beginning, excepting from the above-described district all public streets and alleys.’ Adopted.
‘' By Aid. Gibson: Order relative to the improvement of Kalamazoo avenue from Boston avenue to Burton avenue:
“ ‘Whereas, the common council of the city of Grand Rapids did, by the affirmative vote of five-sixths of all the aldermen-elect of said common council, resolve to make the following public improvements in said city, viz.: The grading and graveling of Kalamazoo avenue, a public street in the city of Grand Rapids, from the north line of Boston avenue, a public street in said city, to the north line of Burton avenue, a public street in said city, including the construction of the necessary bridges, culverts, gutters, cross-walks, manholes, catch-basins, approaches, storm water sewers, and cesspools in said portion of said Kalamazoo avenue; and
“‘Whereas, said common council has determined to make such public improvements; and
“ ‘Whereas, the board of public works in and for the city of Grand Rapids has estimated the expense thereof at the sum of five thousand six hundred (5,600) dollars, including the costs of estimates, plans, and assessments incident thereto: It is thereupon ordered that the following portion of said city is deemed to be benefited by said public improvement to the entire extent of said estimated expense and proper to be assessed for the whole expense thereof, to wit:
“‘All lots, parts of lots, and pieces of land included within the following boundaries: Commencing at the intersection of the easterly line of Kalamazoo avenue and the north line of Boston avenue; thence southerly along the said easterly line to the south line of Boston avenue; thence east along the said south line to a line parallel with and distant 100 feet from the said easterly line of Kalamazoo avenue; thence southeasterly along said parallel line to a line parallel with Boston avenue and distant 100 feet therefrom; thence east along said parallel line to the east .limits of said city; thence south along the said east limits to the north line of Burton avenue; thence west along the north line of said Burton avenue to the easterly line of the Detroit, Grand Rapids & Western Railway right of way; thence northwesterly along the said line last mentioned to the north and south quarter line of section 5, township 6 north, range 11 west; thence north along said quarter line to a point 150 feet westerly at right angles from the southwesterly line of Kalamazoo avenue; thence northwesterly, parallel with Kalamazoo avenue, to a line drawn through the place of beginning at right angles to the easterly line of Kalamazoo avenue; thence northeasterly to the place of beginning — excepting from the above described district all public streets and alleys.
“ ‘And that the board of assessors of the city of Grand Rapids, who by the charter of said city are constituted commissioners for the purpose, be, and they are hereby, directed to make said assessments upon all owners or occupants of lands and houses within the district aforesaid in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire by the making of such public improvement; and it is further ordered and directed that said commissioners shall divide each assessment on the assessment roll so to be made into five equal parts, and that said commissioners meet for the purpose of making such assessment on Friday, the 29th day of October, 1897, at 10 o’clock in the forenoon, at the office of the city clerk.’ Adopted.
“January 10, 1898.
“The following assessment roll, heretofore returned by the assessors and filed in the office of the city clerk, was presented by the clerk: The improvement of Kalamazoo avenue from Boston avenue to Burton avenue.
“Aid. Yerkerke moved to accept the roll, and that further consideration of the same be postponed, and Monday evening, January 17, 1898, at the session of the common council on said evening, be designated as the time, and the common council rooms in the city of Grand Rapids as the place, for hearing appeals therefrom, and the city clerk be instructed to give notice of said time and place of hearing appeals, and of the names being returned to his office to be published in the Grand Rapids Herald, a daily public newspaper, printed, published, and circulated in the cjty of Grand Rapids, for at least two successive days previous to said January 17, 1898. Carried.
“January 17, 1898.
“The clerk presented for further consideration and for hearing appeals the assessment roll for the improvement of Kalamazoo avenue from Boston avenue to Burton avenue. Appeals being presented by Sarah S. Fisk, Mrs. Abby A. Parsons, Margaret Powers, and others, Aid. Gibson moved that the same be referred to a special committee of three to be appointed by the mayor, and that further consideration of the roll be postponed for one week. Carried, The mayor appointed Aid. Verkerke, Gibson, and Slocum as such committee.
“January 34, 1898.
“The clerk presented for further consideration the assessment roll for the improvement of Kalamazoo avenue from Boston avenue to Burton avenue. Aid. Verkerke moved that further consideration of the roll be postponed for one week. Carried. Aid. Verkerke moved to reconsider the vote on his motion to postpone consideration on the assessment roll for the improvement of Kalamazoo avenue. Carried. Aid. Verkerke then moved the following as a substitute for his original motion: That further consideration of the roll be postponed one week, and that the roll be laid on the table, and that the committee be given further time for the hearing of appeals. Carried.
“January 31, 1898.
“ The clerk presented for further consideration the roll for the improvement of Kalamazoo avenue from Boston avenue to Burton avenue: Thereupon Aid. Verkerke,
the chairman of the committee having the matter in charge, asked that the committee be granted one week more time. On motion, time asked for was granted.
“ February 7, 1898.
“The clerk presented for further consideration the assessment roll for the improvement of Kalamazoo avenue from Boston avenue to Burton avenue. Thereupon Aid. Verkerke, chairman of the committee having the appeals from the assessments in said roll in charge, presented the following report:
“‘To the Honorable the Mayor and the Common Council oe the City oe Grand Rapids.
‘Gentlemen: Your special committee, to whom was referred the various appeals from the assessment roll for the improvement of Kalamazoo avenue from Boston avenue to Burton avenue, respectfully report that the same has had careful consideration. While we find the assessments on said roll rather burdensome, we find it equitably apportioned according to benefits. We therefore recommend that the appeals be denied and the roll ratified and confirmed.
“ ‘John Verkerke,
“ ‘ W. H. Gibson,
“ ‘ C. E. Slocum,
“ ‘ Special Committee.’
“ Adopted.”
The foregoing shows that, while many measures were adopted and reconsidered, the following proceedings were taken:
1. A resolution of -necessity for the improvement on June 14th, and that the cost be assessed on landowners.
2. The filing of an estimate on June 26th.
3. The appointment of a committee to determine an assessment district on September 7th.
4. A report of the committee and its adoption on September 13 th.
5. The entry in its minutes required by section 2 of title 5 of the charter, which describes the improvement, declares its necessity, states the proportion to be assessed on landowners to be benefited, specifies the whole sum to be assessed, and the portion of the city deemed benefited. This was done October 25th.
6. The entry of the order required by section 5 of title 5 of the charter.

An appeal was taken from the assessment which followed, and this was heard and determined adversely to complainants.

It is claimed that the assessment is void for the reason that the contract was let and executed, bond approved, and work completed before any opportunity was given the landowners to .be heard. The answer admits that the contract was let and signed, and the contractor was ordered to commence work at once, on July 3d. By its terms the work was to be finished by September 1st, following. It is stated, and not denied, that we discover, that the work was done according to the terms of the contract, and before any steps were taken to determine the assessment district, and before the action of October 25th. It seems to have been the understanding of the council that, upon declaring the necessity of certain street improvements, it might go on and make them and afterwards take the necessary steps to assess the cost upon the landowners of the vicinity, and, as already stated, it completed this work before it took any step to determine the district to be assessed. The charter confides to the council the power to require and make street improvements. It does not require it to submit the question to the taxpayers, or give them an opportunity to be heard in relation thereto; but, having declared the necessity, it may proceed with the work, anticipating the collection of assessments and taxes —a method pointed out in subdivision 1 of section % of title 5 of the charter. The only notice to the citizen is that provided after the assessments are reported, which he has a right to have, and which relates to his assessment, and to that only. We are of the opinion that the proceedings up to and including the assessment were regular, and that they should not be set aside for the reason stated, nor for the reason that the work was done before the assessment was made or the assessment district determined upon.

We think it was competent for the council to include in its resolutions storm water sewers. It did this in its substitute adopted June 14th, and we must assume that the ■resolution reflected its judgment, whether it acted upon the recommendation of the city engineer or not. It was a legislative act, the validity of which does not depend upon what some court of justice may think of its wisdom, or upon the want of personal knowledge of individual members of the council.

It is claimed that this assessment is void because the complainants’ land was assessed as one parcel, while she held different estates in two parcels (though occupied as one), one of which abutted upon the street, while the other did not. It seems to be assumed that land not abutting upon a street is not benefited by street improvements, or, if at all, not as much as lands which abut. It is doubtless generally true that distinct and separate parcels must be assessed separately, but this is as much a matter of occupancy and use as of title. A home covering two lots may be assessed as a whole, or a farm including two 40-acre lots may be assessed as one parcel. The fact that the owner has different estates does not make separate assessments necessary. Counsel’s brief states that “every individual foot of adjacent property extending back half a mile was assessed at an amount equal to the abutting property.” We are not impressed by the contention that mere separation from the street by a narrow strip should make property exempt from assessment, when other adjacent property, not so separated from the street, would not be. Benefits depend upon something more substantial than mere occupancy or ownership, which are necessarily temporary.

We are asked to sit in review of the judgment of the assessing board, but we cannot do that. The power of assessment is vested elsewhere. We think that the claim of fraud is not sustained by the proof. It was competent to include the storm sewer with the other improvements. It was a part of them, as it was a means of expeditiously removing water from the highway. Having discussed the questions that seem most meritorious, we omit allusion to others, which do not require it.

The decree is affirmed, with costs.

McAlvay, Blair, Montgomery, and Ostrander, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    COOPER v. PHŒNIX ACCIDENT & SICK BENEFIT ASS’N.
    1. Insurance — Sick Benefit — Policy—Conditions—Recovery.
    Where a sick benefit policy covers the period while the assured is “necessarily, entirely, and continuously” confined to the house, there can be no recovery for the time during which assured and his physician state he was not entirely confined, but went out for an airing under his physician’s orders.
    2. Same — Time to Sue — Limitations—Waiver.
    After an unqualified denial of liability on a sick benefit policy, an offer to pay a certain sum “for the sole purpose of avoiding litigation and the attendant expense thereof,” and subsequent efforts on the part of assured’s attorney to induce the company to pay more, do not constitute “ negotiations ” which will amount to a waiver of a provision in the policy that an action thereon must be brought within three months from the time the cause of action accrues.
    Error to Kent; Perkins, J.
    Submitted June 22, 1905.
    (Docket No. 53.)
    Decided September 28, 1905.
    Assumpsit by Thomas E. Cooper against the Phoenix Accident & Sick Benefit Association of Benton Harbor on a certificate of insurance. There was judgment for plaintiff on a verdict directed by the court, and defendant brings error.
    Reversed.

      E. J. Adams, for appellant.

      McKnight & McAllister, for appellee.
   Ostrander, J.

Plaintiff sued upon a policy of insurance issued by defendant company. With its plea the defendant set up various provisions and conditions of the policy sued upon, and upon them and upon evidence claimed to be undisputed based its defense to the action. The condition relied upon is:

“Legal proceedings for recovery hereunder shall not be brought until after three months from date of filing proofs at home office of the association, nor brought at all unless commenced within three months of the time when right of action may accrue.”

Plaintiff claims this provision was waived and the time ■extended by negotiations for a settlement. The provisions ■of the policy relied upon are the following:

Third. In the sum of $35 per month [this refers to the indemnity provided to be paid], or at that rate for any proportionate part thereof, for the number of consecutive days after the first five days, that the assured is necessarily, ■entirely, and continuously confined to the house and subject to the calls of a registered physician in good standing. * * ❖
“Fourth. (d) Disability resulting from sunstroke, ■freezing, carbuncles, boils, felons, abscess, * * * is ■classified as illness, and covered only under clause third of this contract.”

Such disability as plaintiff suffered resulted from a felon, -and the declaration avers the right to recover under clause “third,” above quoted. The court directed a verdict for ■plaintiff for $80.85, and judgment was entered on the ver•dict. This ruling of the court involved the determination that plaintiff had made a case entitling him to indemnity under clause “third ” of the certificate, and also that the ■action was begun within three months after his right of action accrued. For plaintiff in error it is contended that the record supports neither conclusion, and that either a verdict should have been directed for defendant or the questions submitted to the jury.

Plaintiff resides at Newaygo, and for three years before this case was tried in the circuit court had been foreman ■on the street and contractor. He testified that about December 23, 1901, his finger began to trouble him, and on January 2,1902, he consulted a physician, who pronounced that he had a felon and prescribed a poultice. Later the finger was twice amputated, the second amputation taking place at the office of the physician.

“During all this space of time, from the time I first discovered it, the 23d day of December, up to March 5th, I did not do any work whatever, and I was in the house most of the time, and only went out in going to the doctor’s office, and out under his direction to take an airing. ”

On cross-examination he testified:

“ I was in bed a couple of days. I think that was the second and third day after it was lanced. I remember testifying in the case partially tried before the justice at Newaygo that I was not confined to the house.
Q. Why do you tell us now ín this court that you were confined to the house ?
“A. I don’t think that I understood it that I was confined continuously to the house, for I don’t think I swore, if I remember right, what I said, that I was confined continuously to the house.
Q. You do mean to swear now, then, that you were confined continuously to the house, necessarily and continuously and entirely confined to the house ?
“A. No, sir.
Q. You were not, as a matter of fact, necessarily confined to the house, except when you would go in there for 20 minutes every two hours to dress it, were you ?
“A. I was confined to the house, but I was out when it was necessary. The doctor said whenever I wanted anything done to it to come to the office, according to his orders.
Q. Well, you went other places besides the doctor’s office during the time you were nursing this felon ?
“A. I went to the post office, and went to the drug store.
Q. And went to the hotel, too, didn’t you ?
“A. Yes; I dropped into the hotel one day and saw Mr. Christian. I was not confined to the house all of the time. The biggest majority of the time I was there. Some of the days it was necessary for me to remain in the house between the times I was dressing my hand. I cannot tell what days. There was different times that I would stay in that I did not. feel like getting out in the streets. I couldn’t say how many days. There was from two to three days of different sessions. Some days I felt fairly well, except from pain. Then there were other days that I was so sick I did not feel like moving at all, except from pain, just tramp around the house.”

Plaintiff sent a preliminary notice to the defendant January 2, 1902, which states he has a felon, quit work December 25th, and gives the name of his physician, whose report accompanied it. This report contains the following questions and answers:

“ 15. Is he necessarily confined to his house F No.
“16. Is he confined to his bed ? No.”

The final proofs furnished by plaintiff in March, 1902, contain the following:

“6. On what date was it necessary for you to quit work on account of this disability F January 1. * * *
‘ ‘ 8. On what date were you first out of the house ? I was not confined to the house.”

Plaintiff produced his physician as a witness, and his testimony is, after describing the ailment and its treatment:

“ During all this time he was under my care, and I was subject to his call, and I saw him and treated and examined his hand almost every day, and during that time the man was unable to do any manual labor. He was not necessarily confined to the house during the continuance of it. I suggested to him the advisability of going out, if he felt disposed to. He suffered a great deal of pain, and was restless, sleepless, and I directed him to get out —get out and take an airing. That is what I mean by ‘he was not confined.’ ”

The further testimony tends to prove that the case was a severe one,- accompanied by elevation of temperature. On cross-examination witness testified: “I said that Mr. Cooper was not confined to the house necessarily.” At the trial the agent of defendant was a witness, and he was asked:

“ Q. Was he confined to the house F
“A. No; I guess not. I met him out on the street.
The Court: Is there any necessity of going over that again F He whs not confined to the house during his illness. That is conceded. Let us get at the real point. Nobody claims he was confined to the house.
Mr. McKnight: That is, all the time. We do not claim he did not go out, just as we have stated.”

To say as matter of law that this evidence is sufficient to entitle plaintiff to recover indemnity contracted to be paid in case he was necessarily, entirely, and continuously confined to the house, is to do violence to the law and the facts. Such a ruling involves much more than the construction of the contract. It is an interpretation of it which is inconsistent with its terms. It would seem that, when defendant company had received from plaintiff, as part of his final proofs, an affidavit in which he stated, “ I was not confined to the house,” and when this statement was confirmed by that of his attending physician, who made'no answer in the final proofs to the questions asked for information upon this subject, nothing remained to be done in the case, except to reject the claim. Instead, we infer that, because of the interest and request of the local agent, it offered to pay plaintiff $35. Counsel for plaintiff rely upon the decision of this court in Hoffman v. Hospital Ass’n, 138 Mich. 323 (54 L. R. A. 746). In that case the words of the contract were 1 ‘ continuously confined to the house.” The court submitted to the jury the question of liability, which, by the terms of the instruction given, involved a finding that plaintiff was continuously confined to the house on account of illness. It is true that the jury were advised that it was not necessary that the plaintiff should remain in the house continuously during the entire time of disability, that to step out of doors now and then, or to occasionally go to the office of his physician, would not be a violation of this clause, and that the question was:

“Was the plaintiff sick, and with a disease covered by his policy, to the extent that he was totally disabled from prosecuting any business ? And was he continuously confined to his house on account of such sickness, to the extent that he was necessarily and in good faith there the larger portion óf his time, and only went forth either from necessity for consultation with or by direction of his physician, in whose charge and care he was

In the clause now before us the words are ‘c necessarily, entirely, and continuously confined to the house.” The contract is not one of indemnity for disability caused by a felon. It is only when the resulting disability is of such nature that the holder of the policy is necessarily, entirely, and continuously confined to his house that indemnity is promised. If the provision had been written expressly to meet and avoid the effect of the reasoning in the case referred to, it could not have well been made stronger. See, also, Shirts v. Benefit Ass’n, 135 Mich. 439.

Plaintiff did not make a case entitling him to the verdict which was directed. We do not, however, feel compelled to say that he is not entitled to recover for some of the time during which disability continued, and therefore shall send the case back for a new trial. This determination requires us to consider whether the court below was in error in holding that the action was begun in proper time. The defendant, in reply to the preliminary notice which plaintiff sent to it, wrote him a letter, dated January 7,1902, denying any liability upon the express ground that he was not confined to the house, and referred him to clause “third” of his policy. Prom this position the defendant is not shown to have moved. The offer made by the attorney of defendant to the attorney for plaintiff, dated July 15, 1902, to pay $30, “for the sole purpose of avoiding litigation and attendant expenses thereof,” and stating that, if plaintiff cared to accept that amount, a check would be sent, otherwise the claim would be contested, does not necessarily, if at all, indicate any change of position on the part of the company. If there is question about it, the letter of defendant’s attorney, dated July 18, 1902, answers the question. A part of this letter is here given:

“ In reply, beg to say it would hardly seem necessary for me again to repeat the conclusion arrived at by the [defendant] after due deliberation; but you evidently have failed to understand what I said, and therefore I again repeat it. If [plaintiff] prefers to accept the offer of the company, made for the sole purpose of avoiding litigation, the company will pay him $30. If he prefers litigation, we are perfectly willing that he should have it. We leave the matter entirely for him to decide. * * * ”

This offer, made in July, was attempted to be accepted by plaintiff in November. The defendant declined to pay. It cannot be said, we think, as matter of law, that defendant waived the provision requiring suit to be begun within three months after right of action accrued, or that the talks between attorneys after July 18, 1902, were negotiations calculated to prevent plaintiff from bringing an action. Unless there was something in the conduct of the company upon which plaintiff had the right to and did rely, which reasonably evidenced parley and the yielding of the position assumed, plaintiff cannot excuse postponement of his suit. The case is not, upon this record, ruled by Voorheis v. Benefit Society, 91 Mich. 469, 474. It is doubtful if there is any testimony from which a jury would have the right to find that there were “ negotiations ” between the parties in the proper meaning of that word. We resolve the doubt in favor of plaintiff.

Judgment is reversed, with costs, and a new trial granted.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.


text:
    DOUGLASS v. PAINE.
    1. Principal a^id Agent — Scope of Authority — Evidence.
    In an action for the unlawful sale and conversion of certain stock, which defendants had purchased for plaintiff upon her order, given to one of defendants’ agents, evidence that the agent had no authority to make a contract obligating defendants to purchase the stock is admissible to show that the contract was made where the order was executed, and not where it was given.
    2. Contracts — Place of Execution.
    Where plaintiff, who lived in this State, directed defendants, through their agent in this State, to purchase certain stock, which order defendants, who lived and transacted business in Massachusetts, executed in that State, the contract was made in Massachusetts.
    3. Same — What Law Governs.
    A contract is to be interpreted according to the law of the place where it is made, unless by the terms or nature of the contract it appears that it was to be executed in another State or country, in which case the law of the place of execution governs.
    4. Same — Intention of Parties.
    Where plaintiff, residing in this State, ordered of defendants, through their agent in this State, stock which defendants, who were residents of Massachusetts, purchased in that State, and for which, according to an established custom, plaintiff paid in this State, but was entitled to pay for in Massachusetts or elsewhere, no intent to have performance of the contract take place elsewhere than in Massachusetts is apparent, and hence the law of Massachusetts governs.
    5. Same — Interpretation—Question of Law.
    Where the testimony in reference to the terms of an oral contract is not in conflict, interpretation of the contract is for the court.
    Error to Houghton; Streeter, J.
    Submitted June 23, 1905.
    (Docket No. 56.)
    Decided September 28, 1905.
    Case by Nellie B. Douglass against William A. Paine and Charles H. Paine, copartners as Paine, Webber & Company, for the unlawful sale and conversion of certain shares of stock. There was judgment for plaintiff, and defendants bring error.
    Reversed.

      Gray & Stone, for appellants.

      Ball & Ball, for appellee.
   Hooker, J.

The plaintiff is a married woman, residing at Houghton, in this State. Defendants are stockbrokers, residing and doing business at Boston, Mass. They also maintain a branch office at Houghton, Mich., in charge of one Mr. Dee, a salaried employé of the defendants ; the sign over the door of his office being ‘ ‘ Paine, Webber & Co. Thomas S. Dee, Manager.” The plaintiff occupied rooms in the same building at the time of the transaction which gave rise to this action. The action was brought to recover damages for the alleged unlawful sale and conversion of some Copper Range stock which defendants had purchased for the plaintiff. She recovered a judgment in the circuit court, from which the defendants have appealed.

The principal question arises over the defendants’ claim that the court should have directed a verdict in their favor. A consideration of this question will require a brief statement of the facts of the case made by the plaintiff’s evidence. What has been said regarding the residence and character of the business of the defendants were admitted facts. The plaintiff testified that she was cognizant of such facts, and commenced dealing with the defendants in May, 1901, when they purchased for her New York Elevated stock, upon her verbal order given to Mr. Dee at Houghton, as was her uniform custom. She said in her testimony:

“ Aside from that, I have purchased stock through them on several occasions. I always gave the order to purchase the stock to the manager, Mr. Dee, in the office of Paine, Webber & Co., in this village. Whenever I have given those orders, the purchases have always been made for me. I always gave a verbal order to buy the stock— never a written order. After I gave the orders I would always learn from Mr. Dee that the stocks had been purchased and the prices paid for same. I never had any statements in writing of stocks purchased. I suppose statements of my account came to their office, but they were never sent to me. I got my information as to what they had purchased, and the prices charged to me, from what Mr. Dee told me. * * *
“I didn’t want Mr. Douglass to know about these various dealings. He didn’t know anything about them, and I didn’t wish him to know. I asked Paine-Webber not to mail me anything direct; that I would get things at their office. Everything came to their office, and I requested, when any statement was sent me from the East, that it should be sent to the office here under cover.”

Her attention being' called to the purchase of the Copper Range stock, she said:

“ I went to the office this day with a friend who was holding some Copper Range, who went there for the purpose of selling it, and asked me to go with her for that purpose, and we went to the office, and she told Mr. Dee that she wanted to sell her Copper Range that day, and Mr. Dee told her that she must not think of selling it, and that it was going into the consolidation at -$112?50 — was to be consolidated with Baltic; that he had a telegram from Boston stating that this would be the kind of consolidation before the middle of September, and he showed that telegram to this party, and she decided not to sell her stock. He showed the telegram to me, and asked me why I did not sell 100 shares of Union Pacific, which I was carrying in their office at that time, and which was a dividend-paving stock, and which I had as an investment —why I did not sell that and buy Copper Range, 200 shares of Copper Range. I told him, if I sold the Union Pacific, I sold it at a loss; but he said, if this goes into the consolidation at that time, you will make so much more you could afford to take that small loss, and, after talking it over, on his advice I told him that he could purchase —could sell the Union Pacific for me, and purchase 200 shares of Copper Range stock for me. The telegram was signed by one of the Paines. It was not a table telegram, as I have seen those frequently. The telegram was sent to Thomas S. Dee, and it said: ‘Advise customers to buy Copper Range. Will go into the consolidation before September 15th at $112.50.’ It was not written on any table telegram. Those usually, I think, are put on the typewriter. I gave Mr. Dee an order to sell my Union Pacific at a loss, which was an investment and a dividend-paying stock, on his advice, and bought 200 shares of Copper Range — gave him an order to buy it. I do not know exactly what my loss was on the sale of the Union Pacific, but I should say between $400 and $600. Paine, Webber & Co. held at that time a Union Pacific 4 per cent, bond for $1,000, and 25 shares of National Bank stock of Houghton, a dividend-paying stock, and I had paid in about $1,000 in cash. The bank stock was paying 12 per cent, on the par value. It would be worth about $300 a share, I suppose. After-wards I was informed by Mr. Dee that they had bought 200 shares of Copper Range for me at $82.50. I got that information that same afternoon. I did not get any written statement of it. He just told me. That stock was bought on the 22d of August, and Mr. Dee left on the 27th, five days later, and there was Sunday intervening, I think. After Mr. Dee told me that I had no further communication with him in regard to it up to the time he went away. Mr. Foster took his place in the office at the time he went away on the 27th. Mr. Foster took charge of the office, I believe, on the 28th. Mr. Dee left on the 27th. On Wednesday morning, the 28th, Mr. Foster sent the office boy to my door to ask me to come to Paine-Webber’s office. I went there and had an interview with Mr. Foster in the private office. He told me that I must either put up more collateral on the stock that they had bought for me or close out part of the stock. I told him that they had the same margin that they had when they bought the stock for me as an investment, and that, as the stock had not depreciated in value, I refused to put up more margin, and I told him that he should not close out any of my stock, and he told me that those were the orders, and that he would close out the stock, and he closed out 100 shares of Copper Range. He told me that morning that he would close it out, and told me the next day that he had sold 100 shares at $80. I told him that he had no right to close it out; that Mr. Dee bought the stock for me, advised me to buy it on the margin that I had there; and, as the stock had not depreciated in value, that I would compel the firm to put it back. I wrote Mr. William A. Paine a letter stating the facts of the case to him, and they returned that 100 shares Copper Range to my account, and put it back at $80, charging commission both ways. I cannot state the exact time that I learned that the stock was put back in my account. They have it in the statement that it was put back on the 6th of September, but it was put back before' that. I should say that Mr. Foster informed me that the stock had been put back as early as the 4th or 5th. I learned it then from Mr. Foster, and I also had a letter from Mr. Paine, stating that he had put the stock back. At the time Mr. Foster told me that the stock had been put back he said that he was only acting according to orders; that he had orders to sell the stock or have more margin on it, and, of course, he said, if Mr. Paine put it back, it was all right, and that he had put it back in the account; but they charged commission both ways, taking the stock out at $80, and putting it back at $80. They charged one-eighth of 1 per cent, for buying, and the same for selling. I believe that is their rule. I mean to say that when they sold my stock against my protest they charged me a commission for selling it, and when they put the stock back on my demand they charged me a commission for putting it back — the same commission that they had charged for selling it. That would be $12.50 commission each way, making in all $25. On the 6th of September, the day that President McKinley was shot, I gave Mr. Foster an order to sell 100 shares of Missouri Pacific, a dividend-paying stock that they were holding for me —to sell that because I thought it was going down in price; and I talked with Mr. Foster whether I should sell that 100 shares of Missouri Pacific, which was a dividend-paying stock, or sell the 200 shares of Copper Range which were in my account, and he advised me not to sell the 200 shares of Copper Range, because it was going to advance so much when it went into the consolidation, which would take place within a very short time. He advised me very much against it —if I wanted to sell any stock to sell the Missouri Pacific; and I gave him an order to sell it, 100 shares. He told me afterwards that he had sold it. It was sold at about $102 a share according to his report, and I lost $2,000 by the sale of that stock. The money was retained by Paine, Webber & Co.,-and credited on my account. That was all that took place at that time in regard to stock transactions. • The next communication I had with Paine, Webber & Co., or their manager here, in regard to stock account, was on Tuesday morning, September 24th. Between this day and the day on which I ordered the sale of the Missouri Pacific, I had had no communication with them at all in regard to this stock transaction, nor had I been called upon during that time to put up any more money or security, nor had it been intimated to me in the meantime that my account was poorly secured, and that any sale would be made of my stock. On the 24th of September Mr. Foster sent the office boy to my door to ask me to come to the office; that he would like to see me. We were living in the same building with Paine-Webber’s office at that time. I went to the office of Paine-Webber, into the private office, and Mr. Foster told me that my 200 shares of Copper Range was sold, and told me the price they had got for it. When I talked with him about it, he said that the stock went down, depreciated in value, and that they were obliged to sell it to protect themselves, which they did. I told Mr. Foster that they had no right to sell the stock without giving me notice and without my order. He claimed that they had a right to sell it, and that they had sold it. I told him that I would see Mr. Paine about the sale of the stock, and that they had no right to sell it without an order, and he claimed that the margins were lower than they allowed the account to be in the office, and that he had a right to sell it. There was no agreement as to what amount of margin was to be kept, nor was there any such agreement at any time. At the time I bought the stock the margin was never mentioned, because I had ample margin to buy the stock as an investment at that time. He told me that he had sold it for $60.50 and $61, I think, and $60. It made a loss of about $4,500 on the Copper Range stock. Afterwards I saw Mr. Dee and talked with him about it. I had told Mr. Foster that I would not allow that they had a right to sell the stock, and he told me that he was acting under orders, and that he could not do anything about it. I asked him to put the stock back in my account, and he said that he could not do that, and that Mr. Dee would be home soon, and I could talk with him about it. It was about a week after that before I talked with Mr. Dee about it, and he told me that, if he had been here, it would never have happened, and I told him that this wiped out my credit, and that I would not allow that my stock was sold, and that they should put it back to my account, with the collateral that I had up at that time. Mr. Dee said that he could not do anything about it; that I would have to talk with Mr. Paine about it. But he said: ‘ Had I been here, it never would have happened.’ He said that he was powerless to do anything; that he couldn’t do anything about it; and that Mr. Paine would be here soon, and he would appoint an interview, so that I could talk with him in regard to it. After talking with Mr. Dee on or about the 3d or 5th of October I wrote Mr. Paine a letter — Mr. William A. Paine — in regard to their closing out my stock, and told him that they had closed the stock without notice, and asked him to put it back in my account. I never received any reply to that letter, and I talked with Mr. Dee in regard to that.
“Mr. Ball (to Mr. Gray): Have you got that letter?
“Mr. Gray: No; we haven’t for a reason.
“ Witness (proceeding): Mr. Paine never made any reply to that letter, and Mr. Dee told me that he would be here soon, and that he would appoint an interview for me to see him, and let me know when I could see Mr. Paine. He was here the last of October, or in November. I went to the private office and told Mr. Paine that I thought they had used my stock in a very wrong manner in selling it without proper notice, and Mr. Paine said that the margin was reduced, and that they had the right to sell that stock, and that he would not do anything about it at all, and said that, even at the price it sold, the stock account showed a loss to them at the price it was at that time, and, of course, as I had had all this worry and sleeplessness over the account, I think I cried a little and talked with Mr. Paine and tried to persuade him to do something for me in regard to the matter, which he refused to do. He at that time tried to persuade me to give them a note for the difference in this account for what they had sold the stock, and I told him that I didn’t consider that I owed them anything, that I thought the debt was the other way, and I refused to give any note or make any settlement with him whatever. He asked me to sign a note for the difference that showed in this account at the time, and what he called this collateral note that they had up. He said that he only called the securities that Í had up worth $6,000— the bank stock $5,000, and the Union Pacific bond $1,000; and he said there was a loss of about $1,200. It was that amount that he wanted me to give him a note for. He had those securities, of course. I wanted him to return those to me and put the stock’ back in my account — the 200 Copper Bange which they had sold. And Mr. Paine said that he couldn’t do that as the account stood; that I owed him this amount of money over and above the value of the securities. I told him that I would not recognize the sale; that I would not give him any note, because I would not recognize the sale. The Union Pacific bond that I had up with them as security was my own. The 25 shares of Houghton National Bank stock belonged to Mr. Douglass, and they knew it at the time they took it as collateral. At the time when the bank stock was put up Mr. Dee had asked me for additional margin. This was before the Copper Bange was bought, and I asked Mr. Douglass if he would let me take his stock to put up on Missouri Pacific, of which I had 100 shares; that it was a dividend-paying stock, and I asked him to loan me this bank stock, and he gave me — well, I don’t know what you call it — power of attorney, or something, with the stock. Mr. Dee understood. He was called to the bank. He understood that the stock stood in Mr. Douglass’ name, and was never to be changed on the books of the bank. At the same time that I had those securities with Paine, Webber & Co., I also had between $600 and $1,000 in cash, which was money that I had deposited with them. * * *
“ In my transactions with Paine, Webber & Co. all moneys that I paid in or deposited were always deposited or paid in, in the office of Paine-Webber, to Mr. Dee. I also drew money from that office on some of my transactions. When I drew money, Mr. Dee, in the office here, gave me checks for it on the Houghton National Bank. In all my business that I did with the firm of Paine, Webber & Co., I never did any with them anywhere, except at this office. I never drew any money after taking their advice to buy Copper Bange. I never had any to draw. * * *
Q. You were stating about an interview that you had with Mr. Paine about the last of October or the 1st of November. Did you state all that occurred between you and him at that time ? * * *
“A. Well, no; I did not state all that occurred. 4! * *
Q. Well, can you give a complete and full account of the interview? Was there anything else that passed between you ? * * *
“A. Well, Mr. Paine— At the time, of course, as I say, I used all the persuasion possible to get him to return the stock to my account, and he said that he couldn’t do it, and, as I said before, tried to get me to give him a note for it, and I told him about the bank stock that he held; that it did not belong to me; that it belonged to Mr. Douglass; that he could not hold it. I told him that I never had any notice that they contemplated the selling of the stock after the time when he had returned the stock that was sold to my account. I told him that I had had no notice to put up more money, and he said, as I said before, that the margin was exhausted, and that they had a right to sell the stock without giving notice. Mr. Paine told me at that time, also, that if I didn’t give him a note that there was a way he could get it from some one else. He didn’t mention selling the securities. I never received a written statement from them, because they knew in the office that Mr. Douglass didn’t know about this transaction at all, and they never sent me any statement on that account. I used to go to the office nearly every day and get the information there. After Mr. Foster told me on the 24th of September that the stock was already sold I didn’t learn that they claimed that it was sold on the 25th of September, until I received their statement that they made out for me in the Boston, office. It was sent to Mr. Dee, and delivered by him to me. That statement was received some time in February or March, 1903. I had another interview with Mr. Paine after the interview in November or October, 1901. I can’t state when it was, but I should say it was in the following spring. It was in the private office here in Houghton. I had been writing to Mr. Paine, imploring him to make some arrangements with me about this account, and I wrote him one letter asking him to put the stock back in my account, and I remember his writing to me saying that, of course, he couldn’t do that, but that, if I could buy Copper Range stock and hold it, he thought that I would make up my loss. My second interview with him, above referred to, was almost a repetition of the first interview. It was in regard to the sale of the stock, and begging him to put it back in my account, and his refusing to do so. With reference to my statement about finally getting a statement of account,,which was sent to Mr. Dee and delivered by him to me, after I had been informed of the sale of the stock, I had tried by writing letters, by talking with Mr. Paine,'and talking with Mr. Dee, to get some satisfactory arrangement about the sale of my stock, and I had never been able to do that. So I decided to bring suit for it, and I asked them for that statement. It was made in February, and I received it, I think, the 1st of March. It was about a month after I asked him for it before I received it. I asked Mr. Dee for it, and told him the purpose that I wished to use it for. I told him that I intended to do something about recovering my stock that they had sold. He said that the statement had to come from the Boston office. I repeatedly asked for it, and he said he hadn’t received it. In response to my request I finally got the statement, which was delivered to me by Mr. Dee, here in Houghton. (Statement shown witness marked “Exhibit 5.”) That is the statement. It is dated February 28, 1903. Mr. Dee telephoned me he had the statement, that he had received it from Boston, and I went to the office and got it; but it was some time about the 1st of March. It was about the 1st of February that I called on him and asked him to have it made out. (Statement received in evidence as marked without objection.) I kept ’ no account myself, so that I could check this statement up to see whether it was correct or not. With reference to the item in that account, ‘July 5, 1901, 1Ó0 Missouri Pacific rights received,’ the holders of Missouri Pacific stock were given the right to purchase a certain amount of stock at a certain price, and they were called ‘rights’ on the stock. It was the right of the holders of the stock to purchase. Those rights were supposed to have been purchased and paid for and kept with the stock. As to the item in the statement of account, ‘May 24th, 1,000 U. P. 4’s received,’ that was the Union Pacific bond that was held of mine. I put it up as collateral with them. With reference to the item of ‘ August 2d, 15 Missouri Pacific received,’ that is the stock that I had a right to purchase, and that also went in as collateral with the rest. With reference to the item ‘ December 8, 1901, 25 National Bank Houghton, received,’ that is the same 25 shares of bank stock that I suppose they received on August 17th. I did not have it after August 17th, and I have never had it since. With reference to the item on the opposite side of the account. ‘ September 30, 1,000 U. P. 4’s delivered,’ I never had more than one Union Pacific or one lot of bonds of Union Pacific 4’s, the $1,000 Union Pacific bond that was deposited as stated in the account May 24th, and that was never delivered back to me. With reference to the item in the statement of the account near the bottom on the left-hand side, ‘ December 8th, 1,000 U. P. 4’s received,’I never deposited any 1,000 4’s or any bonds or securities of any kind, on December 8,1901. I never deposited any securities of any kind with them after they had reported to me that they had sold that Copper Range stock. I was told it was put on there to make it show that I had paid them that on account. This bond here, after I deposited that in May, or whenever it was, I never received it back •or redeposited it. This statement gave me the first information that I had that the sale was claimed to have been made on the 25th of September, instead of the 24th of September, or prior to that time. * * *
“ I believe that they charge 10 points on railroad stocks, and 20 points on copper stocks. I believe that was the rule in Paine-Webber’s office. I d on’t know it to be a fact, but I have heard that anybody buying stocks in Paine-Webber’s office would have to put up a margin of $10 a share on railroad stocks, and $20 a share on copper stocks; but as to my stocks there was no talk of margins. In all the time intervening between my purchase of the 200 shares of Copper Range and my information that it had been sold, I was never asked for further margins but once, when I was asked for margins on that account by Mr. Poster and refused to put them up, and he sold 100 shares of the Copper Range stock I was never asked for further margins on Copper Range by Mr. Dee. To my knowledge and recollection I didn’t try between August 22 and September 25, 1901, to get money in Houghton to put into Paine-Webber’s office upon my account. At the time of the sale of the 200 Copper Range my margins in Paine-Webber’s office were not short to my knowledge, nor was I informed that they were. I supposed that I had ample there to protect those stocks. After the purchase of the Copper Range stock I went to Buffalo on a pleasure trip. We left here on the 7th of September, 1901, and returned on the 23d of September. While I was absent I did not make any arrangements with anyone here to protect my account with Paine, Webber & Co. while I was gone. I supposed my account was amply protected. I requested an acquaintance to write me about the stock as to the prices of it, but I didn’t ask a friend here to protect my account with. Paine-Webber while I was absent, nor did I send a telegram to this town to a friend here while I was absent to protect my account. I never took any statements from Paine-Webber’s office. If they were sent there, they were left there. They were never delivered to me to take from the office. They would keep a statement there. I had requested Paine-Webber not to send any statements to me through the mail. They were to come to their office under cover for me. I saw statements so sent, I suppose two’ or three. I saw no statements there after sale of the stock. They claimed I owed them a balance after the sale of the stock. They had a statement, I think, in the office. I knew the amount that they claimed at the time. I think Mr. Dee kept the statement in the office. I knew the figures of the account. After my interview with Mr. Paine I wrote him a great many letters offering to make any kind of a settlement, if he would return the stock to my account, or if he would return the bank stock that he held as collateral.”

The foregoing sufficiently shows the plaintiff’s testimony regarding the contract, and, we think, warrants the statement that the evidence shows that the plaintiff sent an order to Paine, Webber & Co. to purchase this stock, and that she had a deposit of collateral with, them, which secured them in making it, and that she knew that she was buying upon margin, and that the margin required was $20 per share on copper stocks. That the price of this stock fell, so that the margin was reduced below $20, does not appear to have been disputed, nor was the fact that defendants then sold some of the stock upon the stock exchange, without previous notice of time and place of sale. One of the legal questions discussed is whether the contract whereby the stock was purchased was a Michigan or Massachusetts contract, and upon its determination the necessity of notice of an intention to sell at auction, giving time and place of such sale, is said to depend; it being contended that, if a Massachusetts contract, the case must be governed by the law of Massachusetts, and that in such event the notice insisted upon by plaintiff’s counsel was not necessary.

Two questions enter into this, viz.: (1) When and where were contract relations established ? (2) Where did the parties contemplate performance of the contract to be made ? The proofs show pretty clearly that Dee had not authority to make a contract obligating the defendants to purchase the Copper Range stock, and evidence offered of limitations upon his authority should not have been excluded. The record shows that the plaintiff knew the course of dealing; and, furthermore, there is no evidence tending to show a promise upon the part of Dee that his principal would buy Copper Range stock, or sell Elevated. He received and forwarded an order to his principals in Boston, with whom plaintiff already had dealings. It was subject to acceptance or rejection, and it was accepted and the purchase made. Such acceptance closed a contract which was theretofore a mere offer, and it occurred in Massachusetts. What was the contract thus made ? Merely that defendants should purchase for the plaintiff 200 shares of a designated stock, if obtainable at a defined price, and that she should pay them the cost thereof and reasonable compensation; or, if it is inferable from the proof that it was to be purchased upon margin, that she should keep the margins good.

There can be no question that the contract was made in Massachusetts, and under the settled rule it should be interpreted by the rules of Massachusetts law, unless a clear contrary intent is apparent, or the place of performance affects the question. The rule that a contract is to be interpreted according to the law of the place where it is made is subject to the exception that—

“ If by the terms or nature of the cpntract it appears that it was to be executed in another country, then the place of making the contract becomes immaterial, and the law of the place where the contract is to be performed governs, in determining the rights of the parties. If a contract is made in one State or country, and it is to be performed in another, it will be presumed that it was entered into with reference to the laws of the latter, and those laws will be resorted to in ascertaining the validity, obligation, and effect of the contract.” 1 Beach on Contracts, §§ 592, 606.

See, also, 9 Cyc. 582, subd. 3; Paret v. Bryson, Fed. Cas. No. 10,710; 2 Parsons on Contracts (9th Ed.), p. 734 et seq. That this contract was made in Massachusetts cannot be questioned. It does not appear from the terms of the instrument that the parties intended that the stock should be purchased in any other State, though there was no limitation upon defendants’ right to purchase anywhere. In fact, it was purchased there. It must have been expected that it would be held there, if bought on margin, and plaintiff’s collateral was held there.

There would probably be no escape from the conclusion that the Massachusetts rule should govern this case, but for the claim that payment was to be made in Michigan, if that can be said to affect the question. Ordinarily the acceptance of the order in Boston would entitle the acceptor to payment there. But it is evident that both parties knew the custom of the office in permitting payments to the agent in Houghton, and defendants could, not avoid accountability for payments or deposits of collateral thus made. We think that it was intended that plaintiff should have such right, or the right to pay in Boston. We doubt defendants’ right to refuse to receive, payment in Boston. Payment is as much a part of the performance as the purchase, of the stock. We have, then, a contract made in Massachusetts under which the purchase might be made anywhere, and payment might be made either in Michigan or Massachusetts, or, perhaps, anywhere, at plaintiff’s option. 2 Parsons on Contracts (9th Ed.), p. 738, and cases cited. We do not intend to imply that an express provision that payment should be made in Houghton would justify the application of Michigan law to the interpretation of other provisions of the contract. We do not decide that question. Under this state of facts we cannot say that the terms of the contract show an intent to have the performance take place elsewhere than in Massachusetts. This was not a written contract; but the testimony is not in conflict, and therefore we must pass upon the legal question of its interpretation.

This does not leave us the opportunity of questioning the correctness of the Massachusetts rule relating to the sale; for, as conceded by counsel, we must accept it as the law applicable to the contract of the parties, it being determined that the law of Massachusetts applies. We think it unnecessary to pass upon other questions, as they may not arise, should the cause be tried again.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Blair, and Ostrander, JJ., concurred.


author: Moore, C. J.

text:
    DANIELS v. CRANE.
    Saving Questions for Review — Case Tried to Court — Absence of Findings.
    Where in a case tried to the court without a jury no written findings of fact or law were made or requested there is nothing for this court to review on error.
    Error to Benzie; Chittenden, J.
    Submitted June 29, 1905.
    (Docket No. 95.)
    Decided September 28, 1905.
    Assumpsit by William S. Daniels against Martin Crane for goods sold and delivered. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      D. Q-. ff. Warner, for appellant.

      Stuart & Heald, for appellee.
   Moore, C. J.

This case was commenced by attachment. It was tried before the judge without a jury. No requests were filed for written findings of fact or law. None were found. The judge rendered a judgment in favor of the plaintiff. The case is brought here by writ of error. Under the repeated rulings of this court there is nothing for us to review. McDonell v. Union Trust Co., 139 Mich. 386; and the many cases there cited.

Judgment is affirmed.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


text:
    COLLAT v. IVES.
    Appeal and Error — Dismissed Appeal — Register’s Fee — Reinstatement — Statute.
    Under Act No. 15, Pub. Acts 1905, an appeal dismissed for nonpayment of the register’s fee will not be reinstated where an examination of the record satisfies the court that justice does not require a revision of the case upon the merits.
    Bill by Julius Collat and Theodore Collat against Marietta Ives to restrain the forfeiture of a lease. From a decree dismissing the bill, complainants appealed, which appeal was dismissed for nonpayment of the register’s fee. On petition to reinstate the appeal under Act No. 15, Pub. Acts 1905.
    Submitted July 21,1905.
    (Calendar No. 21,-212.)
    Denied September 28, 1905.

      McKnight & McAllister, for petitioners.

      Ward & Brown, for respondent.
   Moore, C. J.

This is an application for an order to compel the register of the circuit court for the county of Kent, in chancery, to make a return to an appeal, where the $5 fee was not paid within 30 days after the settlement of the case. It is claimed the order may be made under the provisions of Act No. 15 of the Public Acts of 1905, which amended section 552, 1 Comp. Laws, by adding the following proviso:

Provided, however, That when any such appeal shall, either before or after the passage of this act, have been dismissed for nonpayment of said register’s fee within said period of thirty days, if the appellant shall by petition and competent proof make it appear to the Supreme Court that said fee has since been paid and that justice requires a revision of the case upon the merits, said court may reinstate such appeal upon such terms as may be just; but such reinstatement shall not be allowed without due notice to the party adversely interested and giving him an opportunity to be heard, nor unless the petition therefor shall be filed within one year after such dismissal.”

Three objections are made by the defendant to the granting of the order: First, that the failure to pay the fee is not excused; second, that the case at bar does not come within the provisions of Act No. 15; third, that justice does not require a revision of the case upon the merits. We think it necessary to consider only the'third objection. An examination of the record satisfies us that justice does not require a revision of the case upon the merits.

The application for the order is denied.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


author: Moore, O. J.

text:
    WALTON v. RYAN.
    Appeal and Error — Findings—Conolusiveness.
    Where in a case tried to the court without a jury, the evidence is conflicting, but there is testimony which, if believed, justifies the findings, the judgment will be affirmed.
    Error to Kent; Wolcott, J.
    Submitted July 21, 1905.
    (Docket No. 178.)
    Decided September 28, 1905.
    Assumpsit by Terry Walton against Otis H. Ryan for breach of warranty in the sale of a horse. There was judgment for plaintiff, and defendant brings error.
    Affirmed.

      McBride & Connell, for appellant.

      Bodgers & Bodgers, for appellee.
   Moore, O. J.

This case was commenced in justice’s court. It was appealed to the circuit court, where it was tried by the judge without a jury. Several witnesses were sworn on the part of each of the parties to the litigation. The judge made findings of fact and law, and rendered a judgment in favor of the plaintiff. The defendant asked the judge to amend his findings in such a way as would result in a judgment for defendant. This the judge declined to do. Exceptions were taken to said denial and to the findings as made. A motion was then made for a new trial, which motion was denied. The case is brought here by writ of error.

It would profit no one to take up each of the assignments of error. An examination of the record shows testimony which, if believed, justified the findings made by the judge. See Cole v. Shaw, 103 Mich. 505; Lamoreaux v. Creveling, 103 Mich. 501; Crockett v. Bearce, 104 Mich. 257; Boyle v. Walsh, 105 Mich. 237; Painter v. Ledyard, 109 Mich. 568; Fuller v. Ehle, 116 Mich. 13; Childs v. Nordella, 116 Mich. 511; Morse v. Blanchard, 117 Mich. 37.

Judgment is affirmed.

Carpenter, McAlvay, Grant, and Blair, JJ., concurred.


author: Grant, J.

text:
    HALL v. CITY OF KALAMAZOO.
    Appeal and Error — Decision—Prior Suit — Res Adjudicata.
    All points both of fact and law raised by a record on error are res adjudicata in another suit between the same parties on the same cause of action, though the court in affirming the prior judgment discussed only the point deemed decisive of the case, and as to the others stated that the circuit judge decided correctly.
    Error to Kalamazoo; Hopkins, J., presiding.
    Submitted April 25, 1905.
    (Docket No. 85.)
    Decided October 2, 1905.
    Trover by William B. Hall against the city of Kalamazoo and Ered Winslow, city treasurer. There was judgment for defendants, and plaintiff brings error.
    Affirmed.
    This is an action of trover between the same parties, involving the same property and the same issues, and based upon the same facts as those in Hall v. City of Kalamazoo, 131 Mich. 404. After the affirmance of that case, Mr. .Hall brought this action. The defendant gave notice with his plea that all the issues in this case were passed upon and disposed of in the former suit, and that all questions were therefore res adjudicata.
    The case was tried before the court without a jury. Plaintiff’s attorney made an opening statement of his claim, which covers the same facts and issues as those passed upon in the former suit. It was then conceded by counsel that the goods involved and the parties to this suit were the same as in the former suit, and that the record in that case should stand as the record in this, so far as it raises the question of res adjudicata. The court held that the questions involved were res adjudicata by the former suit, and entered judgment for the defendant.

      E. A. Crane, for appellant.

      Harry C. Howard (William JR. Fox, of counsel), for appellees.
   Grant, J.

(after stating the facts). All the issues presented upon this record were fully considered and passed upon by the circuit court for the county of Kalamazoo in the former case. The record in that case contains 285 pages. It was tried before the court without a jury. Counsel for plaintiff presented 96 findings of fact and 29 findings of law, covering 37 pages of the record. Counsel for the defendants presented 22 findings of fact and 13 findings of law, covering 12 pages. The court’s findings of fact number 31 and cover 14 pages, and his conclusions of law cover 3 pages. The record contains 140 assignments of error. A comparison of plaintiff’s opening statement in this case with his, brief in this court in the former shows that they are identical in substance and, to a great extent, in language.

Plaintiff in the former suit claimed title and right of action mainly upon three grounds: (1) That he purchased the goods at the public sale; (2) that he purchased and took an assignment of an attachment suit and the claim of the gjaintiff thereunder, the Kalamazoo Supply & Construction Company; and (3) that he had an interest in two chattel mortgages which gave him title sufficient to maintain suit. Those claims and all questions bearing thereon were distinctly passed upon and decided by the circuit court against the plaintiff. All these questions were brought to this court for determination and fully presented. The language of that decision is plain that “the court [the circuit] found against all the claims of the plaintiff, and we think correctly.” This language affirmed all the rulings of the circuit judge bearing upon the plaintiff’s claim. We did not specifically discuss each one in the opinion, inasmuch as one of the findings was decisive, viz., that the defendant had not, at the time suit was brought, the possession or control of the goods. Holding that the court ruled correctly on all the other points makes the case as clearly res ad judicata as though we had taken up, discussed, and affirmed each holding separately.

It is no uncommon practice for courts, where several points are raised for determination, to affirm the case upon one point, and to say that, as to the other points, the decision of the court below was correct. All such questions, whether of fact or law, are then res adjudicata, and in another suit, brought for the same cause of action, it is of no importance whether the conclusions, either of fact or law, are right or wrong. Jacobson v. Miller, 41 Mich. 90; Carr v. Brick, 113 Mich. 664. See, also, 34 Am. & Eng. Enc. Law (3d Ed.), pp. 765, 766.

Judgment affirmed.

Moore, C. J., and Blair, Montgomery, and Ostrander, JJ., concurred.